CDJ v VAJ - [1998] HCA 67

HIGH COURT OF AUSTRALIA

GAUDRON, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

CDJ APPELLANT

AND

VAJ RESPONDENT

CDJ v VAJ (S32-1998) [1998] HCA 67
22 October 1998

ORDER

Appeal allowed.

Set aside Orders 2, 3, 4, 6, 7 and 8 of the Full Court of the Family Court of Australia and, in lieu thereof, order that the appeal to that Court be dismissed in so far as it relates to issues of residency and contact.

The parties have liberty to file, within 14 days of the date of this Order, written submissions with respect to the making of orders concerning the alteration of property interests and whether Order 1 made by the Full Court should be set aside.

The parties have liberty to file, within 14 days of the date of this Order, written submissions with respect to the order for costs in this Court and the Full Court and the granting of certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).

On appeal from the Family Court of Australia

Representation:

D M J Bennett QC with T L P Hodgson for the appellant (instructed by Barwick Boitano Lawyers)

D F Jackson QC with P Hanna for the respondent (instructed by
Mark Phillip Symonds)

Intervener:

P I Rose QC with R Flohm for the children's representative (instructed by Terence Murphy, Solicitor, Legal Aid Commission of New South Wales)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

CDJ v VAJ

Family law – Appeals – Appellate jurisdiction of Full Court of the Family Court of Australia – Parenting orders made pursuant to Family Law Act 1975 (Cth), s 64B – Principles to be considered in appeals concerning parenting orders – Whether different to principles requiring consideration at first instance.

Family law – Appeals – "paramountcy principle" in Family Law Act 1975 (Cth), s 65E – Best interests of a child – Relevance to decision whether or not to admit further evidence or set aside orders of primary judge in appeals concerning parenting orders.

Family law – Appeals – Discretion of the Full Court of the Family Court of Australia to receive further evidence on appeal – Statutory origins of the discretion – Relevance of common law principles governing admission of fresh or further evidence.

Family law – Appeals – Discretion of Full Court of the Family Court of Australia to receive further evidence on appeal – Extent to which limitations imposed by terms of conferring statute – Principles governing exercise of discretion – Whether discretion improperly exercised.

Evidence – Taking opposing party by "surprise" at trial – Whether late-filed affidavit material gave rise to "surprise" meriting an order for retrial.

Family Law Act 1975 (Cth), ss 64B, 65E, 93A.

Wollongong Corporation v Cowan (1955) 93 CLR 435, considered.

GAUDRON J. This is an appeal from a decision and orders of the Full Court of the Family Court of Australia[1]. The appellant and respondent are the father and mother, respectively, of three children. The children were referred to in the reported decision of the Full Court as "B", "C" and "D". It is convenient to refer to them in the same way in these reasons.
[1](1997) 22 Fam LR 166.
The Full Court allowed an appeal by the mother and, in consequence, set aside orders made by Baker J on 14 March 1997. His Honour had ordered that two of the three children, namely, C and D, reside with their father. Other consequential orders were made but it is not necessary to make further reference to them.
The decision of the Full Court was based, in significant part, on evidence admitted by it pursuant to s 93A(2) of the Family Law Act 1975 (Cth) ("the Act"). The Full Court did not, itself, determine the outstanding issues between the parties. Instead, it remitted the matter for further hearing by a judge of the Family Court other than Baker J and ordered that C and D reside with their father pending the outcome of that further hearing[2].
[2](1997) 22 Fam LR 166 at 202.
It is contended on behalf of the father that the Full Court erred in receiving further evidence in the mother's appeal. Additionally, it is put that the Full Court erred in ordering that there be a rehearing of the matter. Before turning to the arguments, it is necessary to say something of the background circumstances and, also, of the course of proceedings in the Family Court.
Background circumstances
The parties were married in 1972. They adopted their first two children, both girls. It is convenient to refer to the elder child as "A", as was done in the reported decision of the Full Court. B is the younger of those two children. A was adopted in 1978 and B in 1981. The elder child, A, committed suicide in December 1994. That tragedy and its consequences featured prominently in the proceedings at first instance. The children with whom this appeal is concerned are C and D, the parties' natural children. C, a girl, was born in 1988 and D, a boy, in 1990.
The parties separated in May 1996 but continued to live in the matrimonial home until December of that year, the father and the three children upstairs and the mother downstairs. It seems that, at or about the time of separation, the relationship between B and her mother broke down completely, with B refusing to speak to her and aligning herself with her father. The breakdown of that relationship also featured prominently in the proceedings at first instance. By comparison, relatively little attention was directed to the circumstances of C and D, the only children in respect of whom orders were made.
C was born prematurely and, according to the evidence, has developmental difficulties for which she has received treatment from a child psychiatrist, Dr Sara Williams. Dr Williams gave evidence in the Family Court that C has some "cerebral dysfunction" which causes learning difficulties and memory and comprehension problems. Dr Williams also testified that C has "always [been] an anxious child with a lot of difficulties, difficulty making friends, difficulty adjusting at school and learning."
The mother also consulted Dr Williams with respect to D after she and the father separated and while they were still living under the same roof. It is clear that there was a very considerable degree of stress associated with that arrangement. Dr Williams formed the view that D was "finding the pressure of being divided in loyalty between his mother and father ... too difficult to handle." By that stage, proceedings had been commenced in the Family Court and a separate representative appointed for B, C and D ("the separate representative").
After seeing D, Dr Williams contacted the separate representative requesting that the opinion of an independent psychiatrist be obtained. She declined to make further appointments for D because she did not wish to contaminate the interviews he might have with that psychiatrist. B, C and D were later interviewed for the purposes of the proceedings in the Family Court by Dr Rikard-Bell, a specialist in family, child and adolescent psychiatry.
In December 1996, the mother left the matrimonial home to reside in rented premises, taking C and D with her. C was then aged eight and D six. B, who was then 16, remained with the father.
Applications, affidavits and pre-trial procedures
In June 1996, after the parties had separated and while living under the same roof, the father made an application for orders that B, C and D reside with him and that he have sole responsibility for their long-term care, welfare and development. He sought various other orders, including that he have sole responsibility for their discipline, medical treatment, education, and their leisure and sporting activities. In October 1996, in her amended response, the mother sought various orders to the contrary, including that the three children reside with her and that she have sole responsibility for their day-to-day care and long-term welfare.
Correspondence ensued between the solicitors for the father and those acting for the mother. The solicitors for the father made complaint as to various incidents which took place after the parties separated but while living under the same roof. The separate representative was appointed to act for the three children and, at some stage, the matter was listed for final hearing for six days commencing on 10 March 1997.
On 11 December 1996, the day the mother moved out of the matrimonial home with the two younger children, the father swore an affidavit seeking an order that those two children continue to reside with him. In that affidavit he asserted that the mother's "emotional condition [was] such that she [was] unable to provide the necessary standard of care and attention required for the children." He also deposed to an incident during the evening of 1 December 1996, when, it was said, the mother was in an uncontrollable rage and abused and insulted B. In passing, he also made reference to a complaint for an apprehended violence order which had been made against the mother on his behalf. That complaint had, by then, been dismissed.
The mother swore an affidavit on 12 December 1996 in which she acknowledged that she had moved into rented premises with C and D. She claimed that she had been their primary caregiver and had attended to their day‑to-day needs until October 1996 when the father ceased full-time employment. Thereafter, according to her affidavit, he involved himself to a greater extent in their day-to-day activities. The mother also acknowledged that there had been a breakdown in her relationship with B and that there had been an incident which led to complaints on behalf of the husband and B for apprehended violence orders which were later dismissed. She attached copies of the complaints and the solicitors' correspondence in which reference was made to various incidents that had occurred since separation. On 16 December 1996, consent orders were made for C and D to reside with their mother for various specified periods and with the father for other specified periods pending further order.
In the meantime, on 13 November 1996, directions were given requiring the parties to file and serve the material on which they intended to rely at the hearing by 10 January 1997. The mother swore an affidavit on 23 December 1996. In it she elaborated her role as primary caregiver, her difficulties with B, and her proposals for the care of C and D. She also set out details of the relationship between B and the two younger children. Contrary to the directions given, the father did not swear an affidavit until 3 March 1997. It was served on 5 March and came to the attention of the mother on the evening of Thursday 6 March, less than four days before the matter was listed for hearing.
In his affidavit, the father gave an account of various incidents which occurred during their separation under the same roof. In most of those incidents, according to his affidavit, the mother had spoken to him in a derogatory manner in front of the children or there had been an unpleasant confrontation between the mother and B. He also briefly related the events which led to the proceedings for apprehended violence orders. None of this was new material, it having been raised in the correspondence between solicitors and in the father's affidavit of 11 December 1996.
The affidavit contained other material which was new in the sense that it was not raised in the correspondence, in the affidavits sworn immediately after the mother left the matrimonial home nor, apparently, in any other way. That new material included a claim by the father that, throughout the marriage, he and the mother had been equally responsible for the day-to-day care of all their children, and that, in some respects, he had been principally responsible.
Most of the material which was new, in the sense indicated, related to the mother's conduct in the period prior to the parties' separation in May 1996. That material referred, in the main, to the mother's relationship with A. It was said that there had been serious conflict between them, that the mother had verbally abused A, been over-strict in her discipline, broken up her friendships, and required her to leave school and attend business college against her will. It was claimed that these matters had contributed to A taking her own life.
It was also asserted in the new material that, following A's death, the mother had become unduly strict in relation to B's activities and details were given of the conflict that had developed between them. Other new material included a claim that the mother had constantly discouraged the friendships of all four children and that she had had trouble relating to their educational needs beyond year 4 at primary school. There was also new material concerning the period after the mother left the matrimonial home. It was said that she had been unco-operative in her dealings with the father in relation to contact visits by C and D.
Amongst other annexures to the father's affidavit were a statement made by B in relation to the proceedings for apprehended violence orders and the brief of evidence provided to the inquest into A's death. It will be necessary to refer again to those annexures.
The hearing before Baker J
When the matter came on for hearing, Baker J indicated that there were five, not six hearing days available. His Honour was informed that the central issue was the residence order to be made with respect to C and D and that there was no issue as to B. It had, by then, been agreed that she would remain with her father. So far as is presently relevant, the mother's counsel objected unsuccessfully to those annexures to the father's affidavit to which reference has already been made. No complaint was made by him as to the affidavit containing new material or as to its late delivery.
The father was the first to give evidence. His examination-in-chief was brief. It included the concession that C and D sometimes expressed the view to him that they preferred to live with their mother. He was then cross-examined at length. Early in his cross-examination, he was asked whether, as might reasonably have been concluded from his affidavit, his case was that his wife could not look after the children, particularly as they got older. He replied that that was part of his case, but the other part was that "she is completely overprotective of the children and doesn't give them space in which to develop; doesn't let them have friends; she verbally abuses all the children." The latter claims extended beyond the matters raised in his affidavit and were repeated three times in the course of cross-examination. In the main, the material upon which he relied for those claims related to A and B, but it was also said that some of the mother's restrictions in relation to phone calls and sleepovers were inappropriate for C.
The mother was called to give evidence on completion of the father's. There was a brief examination-in-chief during which she denied that she had stopped the children from having friends and produced photographs of them in the company of other children. Her cross-examination by counsel for the father was lengthy and, the transcript suggests, aggressive.
In the course of her cross-examination, the mother said that it was a joint decision that A should leave school when she did and the only point of disagreement between herself and her husband had been as to whether A should go to TAFE or to business college. She was cross-examined in greater detail as to her relationship with B and, more particularly, those events involving B which occurred while the parties were separated but living in the matrimonial home.
Although not directly asked as to the father's claim that he was equally responsible for the children's care and principally responsible in some areas, the mother conceded that he had played a significant role for a period following her injury in a car accident in 1987. Otherwise, her answers suggested that his role was much less significant than he claimed.
So far as concerns C and D, nothing was put to the mother in the course of cross-examination to suggest that she discouraged their friendships, that she was overprotective of them, did not give them space in which to develop or that she verbally abused them. To the contrary, she said in cross-examination that the father would not allow the children to have birthday parties until they were eight years of age and, then, only every second year. And she denied that she had told C and D what to say when interviewed by Dr Rikard-Bell for the purposes of the Family Court proceedings.
Finally, the mother acknowledged during cross-examination by the separate representative that some of her actions during the period in which the parties were separated and living under the same roof had not been in the best interests of any of the children. She said, however, that she would not have acted like that in other circumstances and would not do so in the future. Her re-examination was only brief and was concerned with events during the parties' separation under the same roof and with financial matters.
Apart from the evidence of a school counsellor with respect to B, the remaining evidence came from psychiatrists. That evidence was predominantly in favour of the mother's case. Dr Whetton, whom the mother had consulted with respect to her grief some ten months after A's death, expressed the opinion that she was "a caring and responsible mother" in relation to the physical and emotional needs of her children and that she was "totally fit to love and care for [them]".
Dr Rikard-Bell, who interviewed the mother, father and the three children for the purposes of the Family Court proceedings, prepared a report which was tendered in evidence. In his report, he recommended that "the younger two children remain ... with their mother." It was his opinion that, if that were to occur, B, C and D "would continue to develop normally in the care of their respective parents." He also indicated that, if the younger children were to reside with their father, they would be very distressed in the short-term but "in the long‑term they would develop normally."
In his report, Dr Rikard-Bell also stated that "the major factor influencing the breakdown of the relationship [between B and her mother] was [A's] death." And he expressed the opinion that it was "very destructive" for the father and B to place so much blame for the death of A on to the mother.
Dr Rikard-Bell also gave oral evidence during which he elaborated his statements with respect to A's suicide. He explained B's reaction to that event by saying that "it's been much easier to align herself with one parent and make him the good parent and make the other parent the bad parent to explain why something so terrible as a suicide should occur." He also said that B and her father had a "unified view" that the mother had contributed largely to A's death and expressed the opinion that, if C and D were to live with B and the father, there was a risk that they would adopt the same view and "attribute blame to the mother". He said that was a "real risk" so long as A's death was "an unresolved family issue".
In his oral evidence, Dr Rikard-Bell also said that "there was a danger that in trying to hold onto [C and D] ... [the mother] may feel the need to perhaps denigrate the father". He gave examples of statements made to him by C and D which led him to believe they had been influenced by her "to say negative things about their father". However, he was of the view that that would not continue if the mother felt secure that the two younger children would be staying with her. He also said that "there was a certain rigidity in [the mother's] approach" and that she "probably had some difficulty being able to shift her parenting style in order to manage adolescence".
The other psychiatric evidence came from Dr Williams. As earlier indicated, she had been treating C for some time and had been consulted with respect to D. She had seen B once in a family situation, but had not treated her. She expressed the view that it would not be an ideal situation for B, C and D to reside in the same household "unless [B] gets a great deal of help to resolve her difficulties." She also gave evidence as to her consultations with C and D and her observations of them, including some weight loss. However, some of her records were lost following production to the Family Court and she was unable to give complete details. She was cross-examined aggressively by counsel for the father to suggest that she was biased in favour of the mother. And it emerged in cross-examination that the father, with whom she had had some contact, was quite antipathetic towards her.

One other matter should be noted. The separate representative put submissions to the effect that C and D should continue to reside with their mother.
The decision of Baker J
In his reasons for decision, Baker J recounted the evidence. He said that he did not find the oral evidence of Dr Williams particularly helpful and rejected her evidence of the younger children's weight loss. Thereafter, his Honour set out his "assessment of the personality, demeanour and motives of the parties". In this respect, he was of the view that the father presented as "an intelligent man who gave his evidence in a candid and straightforward fashion." On the other hand, his Honour said that the mother "gave her evidence in a slow and rather measured fashion." He added that she "appeared to lack warmth and remained expressionless in the early part of her evidence, but later became quite emotional". He expressed the view that her "serious and humourless mien and her volatility as displayed in the witness box [was] a cause for concern" and he thought that, perhaps, her life had "become overburdened with grief and remorse." Further, in his Honour's assessment it was "not at all surprising" that her relationship with B had broken down.
Having given his assessment of the "personality, demeanour and motives of the parties", his Honour proceeded to state his conclusions. He accepted the father's evidence that the mother "[s]houts at the children"; "[v]erbally abuses them"; "[p]laces strict limits upon their behaviour" and "[b]ehaves selfishly and inappropriately in their presence". On that basis, his Honour concluded that the issue was whether "the wishes as expressed by the younger children and their attachment to [their mother]" were such that "a change in their custodial placement is against their best interests."
His Honour stated a number of reasons for concluding that it was in the best interests of C and D to reside with their father, not all of them self-evidently consistent with the evidence. For example, his Honour expressed the view that the father had accepted A's death while the mother was "endeavouring to shift the blame upon the rest of the family and in particular, the [father]." That was an inference drawn by his Honour. However, it is not clear on what it was based. And so far as concerns the father's acceptance of A's death, it was contrary to the evidence of Dr Rikard-Bell. Further, his Honour was of the view that because of the mother's "over-protectiveness and her failure to give the children reasonable space" she would "actively sabotage" contact with their father, and "inevitably ... alienate [them] from [him]." That, too, was an inference drawn by his Honour. And it was contrary to the evidence of Dr Rikard-Bell that the mother would not seek to do that if she were secure in the knowledge that C and D would stay with her and that "in fact she ... thinks it is in [C and D's] interests to maintain a relationship with their father and sister".
One other matter should be noted. His Honour said that he had taken the children's wishes into account but, apparently, gave little weight to them because "[a]lthough those wishes were certainly expressed to both Dr Williams and to Dr Rikard-Bell, they were either expressions of what the children wanted their mother to hear or were an echo of the wife's perceptions." It is not at all clear why his Honour thought that C and D were not genuine in the expression of their wishes, particularly when they had been expressed to their father and, presumably, to the separate representative who supported the mother's case.
The decision of the Full Court
The mother's appeal to the Full Court included various grounds of appeal challenging particular findings made by Baker J. However, the Full Court held that "save for the issues relating to the fresh evidence, any errors demonstrated in the approach taken by his Honour ... would not amount to appealable errors when viewed in light of the test set out in Gronow v Gronow[3] ... or House v [The King][4]"[5]. As already indicated, the appeal was allowed by reason of further evidence admitted in the Full Court. Before turning to that evidence, it is convenient to say something of Gronow v Gronow and, also, of House v The King.
[3](1979) 144 CLR 513.
[4](1936) 55 CLR 499.
[5](1997) 22 Fam LR 166 at 197.
It is well settled that discretionary judgments and decisions based on value judgments (for example, determinations as to the best interests of a child) can be set aside only on strictly limited grounds. In House v The King, those grounds were identified in these terms:
"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."[6]
[6](1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
The principles stated in House v The King were applied to a custody decision of the Family Court in Gronow v Gronow[7]. And of course, those principles have to be applied in conjunction with the well established rule that an appellate court will not reverse findings of fact that depend to any substantial degree on credibility or demeanour, unless the trial judge "'has failed to use or has palpably misused his advantage'[8] or has acted on evidence which [is] 'inconsistent with facts incontrovertibly established by the evidence' or which [is] 'glaringly improbable'[9]."[10]
[7](1979) 144 CLR 513 at 534, 537-538 per Aickin J. Similar principles were expressed at 519-520 per Stephen J and at 525-526 per Mason and Wilson JJ. See also Lovell v Lovell (1950) 81 CLR 513 at 518-519 per Latham CJ, which concerned an application to the Supreme Court of Victoria under the Marriage Act 1928 (Vic) for an order for custody.
[8]SS Hontestroom v SS Sagaporack [1927] AC 37 at 47.
[9]Brunskill v Sovereign Marine and General Insurance (1985) 59 ALJR 842 at 844; 62 ALR 53 at 57.
[10]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479 per Brennan, Gaudron and McHugh JJ. See also Paterson v Paterson (1953) 89 CLR 212 at 218-224 per Dixon CJ and Kitto J; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 per McHugh J (with whom Mason CJ, Deane, Dawson and Gaudron JJ agreed); Dawson v Westpac Banking Corporation (1991) 66 ALJR 94 at 99 per Mason CJ, 105 per Dawson and Toohey JJ; 104 ALR 295 at 304, 314-315; Louth v Diprose (1992) 175 CLR 621 at 641 per Dawson, Gaudron and McHugh JJ.
Although the question was not raised in this Court, there appear to be a number of difficulties associated with the decision of Baker J which might properly have attracted appellate review consistent with the principles to which I have referred. As already indicated, there is no obvious reason why his Honour should have treated the expressed wishes of C and D as not being genuine, as apparently he did. Reference has also been made to the difficulties associated with his Honour's finding that the mother would "actively sabotage" the relationship of C and D with their father. Further, it is difficult to identify any basis for his Honour's findings that the father had accepted A's death and that, in contrast, the mother was attempting to shift the blame on to him.
Of greater significance than the matters just mentioned is the fact that Baker J apparently gave no account at all to the uncontroverted evidence of Dr Rikard-Bell that there was a risk of C and D coming to blame their mother for A's death if they were to live with B and the father. It is equally significant that findings were made as to C's best interests without taking account of the difficulties for which she was receiving treatment from Dr Williams and without ascertaining the father's proposals in that regard. I mention these matters because they provide some reason for thinking that the Full Court may have taken an overly strict view as to its function in relation to decisions which turn on facts found by a trial judge and involve a value judgment with respect to the best interests of a child.
It is convenient now to turn to the further evidence tendered in the Full Court. The evidence was in affidavit form. It falls into three categories. The first category includes the evidence of a relative, neighbours, friends and the family doctor directed to establishing that the mother was always the primary caregiver. In this category, there is also evidence that she was a giving and gentle person; that she had a satisfactory relationship with A and that she and the father both agreed that A should leave school. That evidence, if accepted, casts doubt on the findings that the mother shouted at and verbally abused the children and that she had a difficult relationship with A "to the extent that she forced her own views and opinions in relation to leaving school and employment upon the child".
In the second category is an affidavit of a neighbour and grief counsellor who counselled the family after A's death. Her evidence, as summarised by the Full Court, was to the effect that the mother was adored by her children and responded appropriately to A's death, whereas the father did not respond as expected and, in consequence, was referred for further counselling. This evidence casts doubt on the trial judge's assessment of the parties' personalities and attitudes, which assessment seems to have played a not insignificant role in his decision that C and D should live with their father.
The third category comprises evidence from neighbours that, since living with their father, the younger children appear depressed. There is also evidence that C was heard on one occasion to speak of killing herself.
In reaching its decision, the Full Court referred to the principles governing the reception of further evidence, including the decision of the Full Family Court in In the Marriage of N (No 2)[11]. It was emphasised in that case that the discretion to admit further evidence should be exercised but rarely. And, it was held that where a decision was made not to call available evidence at trial, "it would only be in rare, exceptional and compelling circumstances that a court of appeal would permit the tendering of further evidence and then on that basis set aside the judgment and direct a re-trial."[12]
[11](1981) 7 Fam LR 889.
[12](1981) 7 Fam LR 889 at 895 per Evatt CJ and Fogarty J.
In deciding to admit further evidence and to order a retrial in the present case, the Full Court noted "various unsatisfactory elements of the manner of which the case proceeded."[13] They were identified as including the very late delivery of the husband's affidavit and the admission into evidence of B's statement in support of the complaint for an apprehended violence order and the statements of two of A's friends included in the brief of evidence provided to the inquest into her death. The other "unsatisfactory element" identified by the Full Court was "[t]he significant emphasis on the events subsequent to A's death and the lack of emphasis on the quality of care provided by the [mother] towards all of the children in her role as their primary care-giver over a period of almost 18 years."[14]
[13](1997) 22 Fam LR 166 at 197.
[14](1997) 22 Fam LR 166 at 197.
The Full Court concluded that, when regard was had to the unsatisfactory aspects of the proceedings before Baker J and the further evidence tendered on appeal, "the best interest of [C and D] may not be served by allowing the residence order to stand."[15] It was for that reason that it ordered that the matter be reheard.
[15](1997) 22 Fam LR 166 at 197.
The reception of further evidence
Power to receive further evidence on appeal is conferred on the Family Court by s 93A(2) of the Act. Subject to s 96, which is concerned with appeals from courts of summary jurisdiction, that sub-section provides:
"... in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct."
By his Notice of Appeal to this Court, the father contends that the Full Court was in error in departing from "established principles as to the admission of ... fresh evidence". The argument to that effect was based on the decision of this Court in Wollongong Corporation v Cowan[16]. That case was concerned with the common law rules that govern "the grant of new trials on the ground of the discovery of fresh evidence"[17]. Those rules apply only if the evidence in question was not available at the trial and could not have been obtained by the exercise of reasonable diligence[18]. They require that, for a decision or verdict to be set aside on the ground of newly discovered evidence, it be reasonably clear that, if the evidence had been available at trial, "an opposite result would have been produced or ... must have been so highly likely as to make it unreasonable to suppose the contrary."[19]
[16](1955) 93 CLR 435.
[17](1955) 93 CLR 435 at 444.
[18]Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ. See also Gallagher v The Queen (1986) 160 CLR 392 at 395 per Gibbs CJ; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140-141.
[19]Wollongong Corporation v Cowan (1955) 93 CLR 435 at 444 per Dixon CJ.
There is, in my view, no reason for thinking that the common law rules which govern the admission of fresh evidence apply automatically to confine the discretion to receive further evidence conferred by s 93A(2) of the Act. Rather, the terms of that sub-section suggest otherwise in that they refer to "further evidence", rather than "fresh evidence". Moreover, the sub-section confers power on the Family Court to receive further evidence "in its discretion" and is silent as to any matter limiting or governing the exercise of that discretion.
It is well settled that if a discretionary power is conferred by a statute which is silent as to the matters which govern its exercise, the discretion is confined only by the subject-matter with which the legislation is concerned[20]. At least that is so if the discretion is conferred on an administrative tribunal. Where a general and unconfined discretion is conferred on a court, it is also governed by the requirement that it be exercised judicially and consistently with the judicial process[21]. It is also well settled that, where a power is granted to a court, it is not to be confined by reference to matters which are not required by the terms of the statutory provision by which it is conferred or the context in which it appears[22].
[20]Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 504-505 per Dixon J; R v Australian Broadcasting Tribunal; Ex parte2HD Pty Ltd (1979) 144 CLR 45 at 49.
[21]See Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ; Oshlack v Richmond River Council (1998) 72 ALJR 578 at 582 per Gaudron and Gummow JJ, 591 per McHugh J (with whom Brennan CJ agreed on this point); 152 ALR 83 at 89, 101.
[22]See Owners of "Shin Kobe Maru" v Empire Shipping Co Inc (1994) 181 CLR 404 at 420-421; PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 per Brennan CJ, Gaudron and McHugh JJ, 316 per Toohey and Gummow JJ; Oshlack v Richmond River Council (1998) 72 ALJR 578 at 582 per Gaudron and Gummow JJ; 152 ALR 83 at 89; Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 873 at 900 per Gaudron J; 153 ALR 643 at 678.
The principles of statutory construction to which reference has been made make it impossible, in my view, to conclude that the discretion conferred by s 93A(2) is necessarily confined by the rules which govern the setting aside of a verdict or decision on the basis of the discovery of fresh evidence. Rather, the principles of statutory construction require that the question whether the discretion is confined and, if so, in what way, be answered by having regard to the Act itself and the consideration that the power in question is conferred on a court exercising appellate jurisdiction.
The fact that the power to admit further evidence is conferred on a court exercising appellate jurisdiction is of considerable relevance. More particularly, it is relevant that it is a power to be exercised after a hearing conducted in accordance with procedures that allow the parties to put their case and, also, to answer the case made against them. That consideration requires that, ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing. Except for the evidence of subsequent events, there is no reason to suppose that the evidence admitted by the Full Court was not available or could not have been obtained at the time of the hearing before Baker J.
The subject-matter of the appeal may also bear on the scope of the discretion conferred by s 93A(2) of the Act. The Family Court has power to vary or discharge orders specifying a parent's rights and obligations with respect to his or her children[23]. Thus, ordinarily, evidence of subsequent events should not be admitted on an appeal from a parenting order if that evidence would more appropriately ground an application for variation of the order in issue. However, as will later appear, there may be circumstances in which evidence of subsequent events is relevant to the question whether, other evidence having been received, the appeal should be allowed.
[23]Section 65D(2) of the Act provides:
" Without limiting the generality of subsection (1) and subject to this Division, a court may make a parenting order that discharges, varies, suspends or revives some or all of an earlier parenting order."
Notwithstanding what has been said as to what should ordinarily be the case, different considerations may apply if the question is whether there has been some irregularity in the proceedings such that a party was unable to put his or her case effectively or effectively answer the case made by the other side. And that may be so even if the irregularity was not such as to constitute a denial of procedural fairness.
Given the lateness of the father's affidavit which, as already pointed out, contained new material, the refusal of an adjournment, if one had been sought by the mother's counsel, would almost certainly have constituted a denial of procedural fairness. As already indicated, however, there was no such application. Perhaps that was because of reluctance to surrender the time set aside for the hearing; perhaps, because an early resolution of issues affecting C and D was perceived to be in their best interests; perhaps, simply, because it was thought that the strength of the mother's case, supported, as it was, by the independent report of Dr Rikard-Bell, was such that an adjournment was unnecessary. Whatever the reason, it can be seen in hindsight that the case was not conducted in a manner that enabled the mother to meet the case against her.

As earlier indicated, the case against the mother emerged, in some respects, in the father's affidavit but, in others, only during the course of his cross‑examination. The lateness of his affidavit inevitably had the consequence that the mother had only a limited ability to call evidence to rebut the claim set out in the father's affidavit that she was responsible for A's death. That claim was buttressed, to some extent, by statements from two of A's friends included in the brief of evidence for the coronial inquest which was attached to the father's affidavit. The makers of those statements were not available for cross‑examination and, thus, their statements could not be tested in any way. Nor was the mother's counsel able to cross-examine or otherwise test B's version of events as set out in her statement in relation to the proceedings for apprehended violence orders.
Perhaps of greater significance is the fact that the father's claim that the mother was overprotective of C and D and did not give them space in which to develop emerged for the first time during his cross-examination. The mother was not asked a single question concerning those matters by her counsel or by the separate representative. And not surprisingly, she was not asked any question on that subject in the course of her cross-examination by counsel for the father. Similarly, she was not examined at any stage with respect to the allegation that she verbally abused C and D.
Although the Full Court did not say so in terms, the general thrust of its reasoning is to the effect that, by reason of the late delivery of the father's affidavit and the way in which the case was conducted before Baker J, the mother was, in a practical sense, prevented from meeting the case against her. In my view, that conclusion was well open. And in my view, there is no reason to confine the discretion conferred by s 93A(2) so as to prevent the reception of evidence that was available at the time of the trial if there was some irregularity that resulted in a party not being able to make an effective reply to the case against it. And that is so, in my view, notwithstanding that that irregularity does not constitute a denial of procedural fairness[24].
[24]See Jeffrey v Jeffrey (1931) 31 SR (NSW) 535. It was held in that case that the failure to request an adjournment at trial is not necessarily the "end of the matter" in deciding whether a new trial should be granted on the grounds of surprise: at 541 per Street CJ.

The order that there be a rehearing

It was argued for the father that the Full Court erred in not considering whether the fresh evidence was likely to have affected the outcome of the case. In this regard, it was put that the evidence was "standard evidence in custody cases" and was unlikely to have had any bearing on the result which turned substantially on the views formed by the trial judge as to "the parties' character and conduct" on the basis of their oral evidence and his observation of their demeanour. It was also put that the Full Court erred because the "true ratio" of its decision was that "in matters involving the welfare of children, the established principles relating to the acceptance of fresh evidence ... do not apply so long as the Full Court forms the view that the ultimate welfare of the children would be promoted by disregarding them."
It is convenient to first consider the significance of the fact that the appeal to the Full Court arose out of proceedings for a parenting order under Pt VII Div 6 of the Act. Section 65E, which is in Div 6, provides:
" In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
A "parenting order" is defined by s 64B of the Act to include an order as to "the person or persons with whom a child is to live"[25] and, also, an order under Pt VII "discharging, varying, suspending or reviving an order [of that kind]"[26]. An order made on appeal is not a parenting order under Pt VII[27] and is, thus, not governed by s 65E or what is commonly referred to as "the paramountcy principle". Even so, the fact that the paramountcy principle informed the decision and order of Baker J was necessarily relevant to the question whether, by reason of further evidence, that order should be set aside.
[25]Section 64B(2)(a).
[26]Section 64B(1)(b).
[27]Section 94(2) sets out the powers of the Full Court on appeal. It provides:
" Upon such an appeal, the Full Court may affirm, reverse or vary the decree or decision the subject of the appeal and may make such decree or decision as, in the opinion of the court, ought to have been made in the first instance, or may, if [it] considers appropriate, order a re-hearing, on such terms and conditions, if any, as it considers appropriate."
A decision as to a child's best interests is of a different character from a decision as to existing rights and obligations or the consequences to be assigned for infringement of a right. In proceedings involving the existence of a right or the consequences to be assigned for the infringement of a right, there is good reason for asking, in relation to fresh evidence, whether that evidence was likely to have affected the outcome of the case. However, different considerations apply in a context in which the paramount consideration is "the best interests" of a child.
When applied to an order as to the parent with whom a child is to live, the concept of the child's "best interests" necessarily looks to the future, with all the uncertainties that that involves. In that context, it seems to me that the more pertinent question is not whether the evidence would have produced a different result at the trial but whether, having regard to that further evidence, there is a real risk that the order under appeal is not in the child's best interests. If there is no risk of that kind, then there is no reason to interfere with the order. On the other hand, if there is such a risk, there is good reason why the order should not stand.
In the present case, the Full Court allowed the appeal and ordered a further hearing on the basis of its decision that "the best interest of [C and D] may not be served by allowing the residence order to stand."[28] Although it is not entirely clear, the better view is that the Full Court concluded that there was a real risk that that was so. After all, it is difficult to conceive that the Full Court would have set aside the order under appeal and ordered a rehearing on the basis that there was but a remote, tenuous or fanciful risk, as distinct from a real risk, that the best interests of C and D were not served by that order.
[28](1997) 22 Fam LR 166 at 197.
The remaining question is whether it was open to the Full Court to conclude that there was a real risk that the best interests of C and D were not served by the order made by Baker J. That question is not answered by having regard to the further evidence in a vacuum. Rather, it must be considered in the light of the evidence led at trial and, also, the trial judge's findings.
As already indicated, some of the trial judge's findings in this case are not self-evidently consistent with the evidence that was before him. When regard is had to the difficulties associated with some of those findings, the expressed wish of C and D that they live with their mother and Dr Rikard-Bell's independent opinion that that was the preferable course, it was well open to the Full Court to conclude that there was a real risk that the best interests of C and D were not served by the order of Baker J. And the further evidence that, since living with their father, C and D appeared depressed, could only serve to reinforce that conclusion.
Conclusion
The appeal should be dismissed with costs.

McHUGH, GUMMOW AND CALLINAN JJ. This is an appeal from a decision of the Full Court of the Family Court (constituted by Lindenmayer, Kay and Maxwell JJ)[29]. Three questions arise in the appeal. The first is whether the power conferred on the Full Court by s 93A of the Family Law Act 1975 (Cth) ("the Act") to receive further evidence on appeal is governed by the principles laid down in this Court in Wollongong Corporation v Cowan[30].The second is whether and, if so, to what extent the Full Court "must regard the best interests of the child as the paramount consideration"[31] in determining the admissibility of further evidence in an appeal involving a parenting order. The third question is whether the Full Court erred in the exercise of its discretion in admitting further evidence or alternatively in ordering that the matter should be remitted to a single judge for a new hearing of the proceedings.
[29](1997) 22 Fam LR 166.
[30](1955) 93 CLR 435.
[31]Family Law Act 1975 (Cth), s 65E.
The history of the proceedings
The appeal is brought by a husband against an order of the Full Court ordering a new trial of his application for a parenting order. Baker J who heard the application effectively granted custody and day to day care of the two younger children of the marriage to the husband. The wife was given weekend and holiday access to the children.
The husband and wife were married on 14 January 1972. They separated on 31 May 1996. There were four children of the marriage, A (an adopted child born 1978), B (an adopted child born 1981), C (born 1988) and D (born 1990). On 9 December 1994, the eldest child A committed suicide by hanging herself in the garage of the matrimonial home. Baker J found that A's death "in all probability rendered inevitable the final break up of the marriage".
Upon the adoption of A in 1978, the wife ceased paid employment and remained at home as a full-time carer of the children until 1986. During 1986 and 1987 and again in 1993, she did some intermittent part-time work but was otherwise responsible for the care of the children.
Although the husband and the wife separated in May 1996 about 18 months after A's death, they lived under the same roof until 11 December 1996 when the wife left the matrimonial home with the two younger children.
On 26 June 1996, the husband applied to the Family Court for a parenting order in respect of the three children giving him responsibility for their day to day and long-term care. That application came before Baker J on 10 March 1997. The husband contended that the children's interests would be best served by orders in his favour for reasons which the trial judge summarised as follows:
"(a) The wife is over-protective of the children;
(b)    She does not give them space;
(c)    She verbally abuses the children;
(d)    She does not encourage the children to sleep over, to have their friends at her unit except on structured occasions or to have telephone calls during the week;
(e)    Finally, the husband asserts that, because of a combination of all the above factors, as both [A] and [B] progressed to puberty, the relationship between the wife and her daughters deteriorated to the extent that in the case of [B] no such relationship presently exists."
The husband led evidence to show that, after service of the application, the wife's behaviour towards the husband and the child B deteriorated markedly. The husband and B sought an Apprehended Violence Order against the wife in September 1996 which was dismissed after a contested hearing. Uncontradicted evidence at the hearing before Baker J showed, however, that, on several occasions between October 1996 and December 1996, the wife verbally abused the husband and B.
On 14 March 1997, Baker J made the custody and access orders to which we have referred. His Honour also ordered that the parties and children attend therapy sessions and that the husband pay the wife $379,730; the wife was ordered to transfer to the husband her title in the matrimonial home. The wife's application for spousal maintenance was dismissed.
In making these orders, his Honour referred to and contrasted the husband's outlook and calming demeanour with the "wife's serious and humourless mien and her volatility".

His Honour said:
"The wife, in my opinion sees life in black and white terms. Her behaviour in relation to the dog incident and the sewing machine incident in particular, and the events referred to in annexure 'C' to the husband's affidavit sworn 3 March 1997 in general, represent an insensitive and inappropriate attitude to the overall needs of the family. It is not at all surprising that the wife's relationship with [B] has broken down. The wife, I am satisfied, has on frequent occasions behaved inappropriately and insensitively towards [B] and has made no effort to effect any reconciliation with their daughter. Indeed, it is the wife's view and the view of her parents that any reconciliation attempt must come from [B] rather than from themselves.
...
The wife seems to have been able to care for the children appropriately whilst they were young, but is incapable in my view of coping with teenagers. [A] and then [B] clashed with their mother in large measure because of her inability to understand the needs of older children and the need which they have to expand their horizons and act with a certain amount of freedom. The wife's extraordinary behaviour … and the circumstances surrounding the AVO proceedings, cast very real doubt upon the wife as a suitable custodian of the children."
On 9 July 1997, the wife appealed to the Full Court of the Family Court against the orders made by Baker J and sought leave to adduce further evidence in the form of several affidavits sworn after the trial. The wife claimed that the further evidence would bring into better perspective her long-term parenting abilities and demonstrate that some aspects of her conduct after A's death were isolated aberrations. The Full Court found that the further evidence consisted of material which was available at the trial but not then produced and material relating to events that had occurred since the trial. The further evidence was not tested by cross-examination or otherwise in the Full Court of the Family Court.
Section 93A(2) of the Act confers on the Full Court a discretionary power to receive further evidence upon questions of fact. Subject to the provisions of s 96 which are not presently material, that sub-section declares that:
"[I]n an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court may direct."
During the hearing of the appeal by the Full Court, the parties agreed that if the appeal was allowed, the matter should be remitted for retrial to a judge other than Baker J. After referring to the criticisms of the wife's evidence by Baker J to which we have referred, the Full Court said[32]:
"It is convenient to interpose that some aspects of this criticism seem prima facie to be of doubtful justification, given the very difficult circumstances that prevailed in the home in the period between the institution of these proceedings and the wife's final departure from the home, especially with regards to the collapse of the wife's relationship with B."
Notwithstanding these criticisms, the Full Court held[33] that "save for the issues relating to the fresh evidence, any errors demonstrated in the approach taken by his Honour ... would not amount to appealable errors when viewed in light of the test set out in Gronow v Gronow[34] or House v The King[35]". However, the Full Court exercised its discretion to receive the further evidence and remitted the matter for retrial. In doing so, their Honours said[36]:
"Our discretion whether or not to admit the fresh evidence, needs however to be exercised in the shadow of the various unsatisfactory elements of the manner [in] which the case proceeded. In summary they were:
1.     The very late delivery of the husband's material.
2.     The admission into evidence of the statements of the daughter B and the witnesses KW and MD.
3.     The significant emphasis on the events subsequent to A's death and the lack of emphasis on the quality of care provided by the wife towards all of the children in her role as their primary care-giver over a period of almost 18 years.
Once all these matters are viewed together, and when regard is had, in particular, to the evidence of the witness CB as to the manner in which the wife responded to her professional help relating to the death of A, coupled with the material relating to the quality of care that the wife provided for the children both prior to and after A's death, we have concluded that the best interest of these children may not be served by allowing the residence order to stand. Accordingly, we have concluded that this is one of the rare and exceptional cases in which the discretion to admit fresh evidence on appeal should be exercised. The result of our so deciding is that there must be a re‑trial of the residence proceedings."
[32](1997) 22 Fam LR 166 at 175.
[33](1997) 22 Fam LR 166 at 197.
[34](1979) 144 CLR 513.
[35](1936) 55 CLR 499.
[36](1997) 22 Fam LR 166 at 197-198.
The husband appealed to this Court on the following grounds:
1. That the Full Court of the Family Court was in error in applying the "paramountcy principle" to remit the matter for rehearing, when the requirement for a rehearing was not otherwise made out.
2. That the Full Court of the Family Court was in error in admitting fresh evidence in circumstances in which the established principles as to the admission of such fresh evidence had not been satisfied.
The paramountcy principle
The reference to the paramountcy principle is a reference to s 65E of the Act which states:
"In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration."
Until amendments to the Act in 1995, the paramountcy principle was contained in s 64[37]. The learned Judges of the Full Court thought that the 1995 amendments may have changed the scope of the paramountcy principle in applications for parenting orders. Their Honours said[38]:
"The change from 'In proceedings in relation to' to 'In deciding whether to make a particular parenting order' may have the effect of limiting the application of the paramountcy principle in appellate cases. In this case the issue of whether or not a particular parenting order should be made by this court only arises if this court is to attempt to exercise its own discretion on what parenting order would be appropriate. The direct issue under consideration is whether to allow fresh evidence and remit for retrial. The application of the paramountcy principle in light of the legislative change was not argued before us and it is therefore inappropriate to do more here than identify the problem as one that either the legislature or a future Full Court might look at."
[37]Section 64, now repealed, provided:
"(1)In proceedings in relation to the custody, guardianship or welfare of, or access to, a child –
(a) the court must regard the welfare of the child as the paramount consideration".
[38](1997) 22 Fam LR 166 at 181.
Their Honours then continued[39]:
[39](1997) 22 Fam LR 166 at 183.
"The meaning of the term 'parenting order' is defined in s 64B as follows:-
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons;
(c)maintenance of a child;
(d)any other aspect of parental responsibility for a child.
Is an appellate court when deciding whether to admit fresh evidence in the course of hearing an appeal against an order concerning the person with whom a child is to live deciding whether to make an order as to the person with whom a child is to live? It seems to us that we would be required to find significant elasticity in the language to achieve a positive answer to that question. Assuming that we cannot stretch the language that far, then, in our view, the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interest considerations are powerful matters to be weighed up against a competing principle such as finality."

Plainly enough, the Full Court felt very uncomfortable in this case with the approach, reasoning and conclusions of the primary judge. They recognised "that this is one of the rare and exceptional cases in which the discretion to admit fresh evidence on appeal should be exercised."[195] Only an unduly pernickety concentration on a very small section of the Full Court's reasons would justify disturbance of its orders. No error of approach or of principle being shown, this Court should respect the Full Court's wide discretion and large statutory functions. All members of this Court have rejected the primary argument of the husband that the Full Court's discretion was controlled by considerations analogous to those stated in a very different context in Cowan's case[196]. The majority agree that the Full Court's discretion was one of "great width"[197]; that the Full Court's statutory powers must receive a liberal construction being provided to serve the demands of justice[198]; that intuition and impression play a part in a decision of the Full Court on whether to admit or reject fresh evidence[199]; and that this Court should not lightly set aside the exercise by the Full Court of the discretion which the Parliament has conferred on it and not on us[200]. The majority allow that in "exceptional cases", where the best interests of children require a new trial on all of the evidence, such may be ordered conformably with the Full Court's statutory powers[201]. Yet what is an "exceptional case" is assigned by law to be decided by the Full Court not by this Court. It would take a very clear instance of error to authorise this Court to intervene. This is not such a case.
[195](1997) 22 Fam LR 166 at 198.
[196][1998] HCA 67 at 51-54 per Gaudron J, 102 per McHugh, Gummow and Callinan JJ.
[197][1998] HCA 67 at 160 per McHugh, Gummow and Callinan JJ. See also at 151.
[198][1998] HCA 67 at 111 per McHugh, Gummow and Callinan JJ.
[199][1998] HCA 67 at 152 per McHugh, Gummow and Callinan JJ.
[200][1998] HCA 67 at 160 per McHugh, Gummow and Callinan JJ.
[201][1998] HCA 67 at 150 per McHugh, Gummow and Callinan JJ.
Far from reaching a decision which was plainly wrong, it is my opinion that the orders made by the Full Court were correct. In any case, they were well open to the Full Court and that is enough. This Court should not disturb them.
Orders
The parties, including the children's representative, asked to be heard separately on the issue of costs. They should have that opportunity. But the appeal should be dismissed.

[G1]