CDJ v VAJ

[1998] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S32 of 1998

B e t w e e n -

CDJ

Appellant

and

VAJ

Respondent

GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 21 MAY 1998, AT 12.01 PM

(Continued from 20/5/98)

Copyright in the High Court of Australia

GAUDRON J:   Yes, thank you, Mr Jackson

MR JACKSON:   Thank you, your Honours.  Your Honours, might I deal with two administrative matters before moving to conclude my submissions.  The first deals with the statements of the daughter, Kylie, and also Melissa Dickman and Williams.  Your Honours, can I say where they are to be found.  First of all, page 135 is the Kylie statement.  Secondly, in relation to the other two statements which were in evidence, we have given the Court this morning copies of those two statements.  Your Honours, our learned friends, I understand, have now got copies of the whole of that exhibit.  No doubt that can be given to the Court if the Court wishes to look at it.

Now, your Honours, the relevant parts, if I could just indicate to your Honours, of the statement of Melissa Dickman would seem to be paragraph 6 about 10 lines into it and going through then to the end of that paragraph, and then paragraphs 7 and 8.  In the statement of Kate Williams, paragraph 8 and paragraph 11 I say are most relevant, your Honours.

GAUDRON J:   What is this statement of Suzanne Jane ‑ ‑ ‑

MR JACKSON:   I am sorry, your Honour, I was not intending to refer to that.  It must have got caught up with the other documents.  It is part of the police files, I understand it.

GAUDRON J:   That was not in evidence before the trial judge?

MR JACKSON:   It was, I think, your Honour.

KIRBY J:   They do not refer to that as one of the factors.

MR JACKSON:   No.

KIRBY J:   It is in evidence so there is no point to discard it.

MR JACKSON:   Yes, yes.  Your Honours, the other matter was your Honour Justice Callinan asked yesterday if we could indicate something in relation to the summary of evidence which appears at pages 695 and 696.  Your Honours, I do not know if I have been able to put it in a form which quite answers the way in which your Honour wanted it but could I give your Honours the document in just a moment.  Could I say this?  First of all, so far as the respondent’s evidence is concerned, that, in our submission, is not, with respect, adequately summarised in the passage referred to by the Full Court.  Where one will find a summary of it, however, is in her own affidavit where she summarises the evidence she would have sought to adduce at pages 542 to 546.  It commences at the bottom of page 542 and then lists on the succeeding pages through to page 546 in evidence which she would have sought to adduce or the evidence on the topics.

CALLINAN J:   It seems to be just saying there, though, that she would deny those matters.

MR JACKSON:   Your Honour, there is both a negative and a positive element too, of course, because what she would be seeking to say was not just that the allegations were untrue but that there was, in fact, a good relationship between her and the various children except that in relation to Kylie.  No doubt one might, as in all these circumstances, seek to allocate blame, if that be the right word, that there was wilfulness in Kylie and strength of character on her part that had led to friction between them.  It is not just a denial, your Honour, it is a positive contention as to her suitability.

Your Honours, so far as the other evidence is concerned, there is a document which was given to your Honour’s tipstaves this morning entitled a Summary of the Fresh Evidence.  What it indicates, your Honours, is the various witnesses who might have been called and the subjects with which they deal and it endeavours to give your Honours the pages and the paragraphs that are the most relevant parts of those affidavits.  Your Honours, the list looks a little daunting.  In fact it is not, because the affidavits are relatively short in each case and the paragraphs are not many.

Your Honours, may I just go back for just a moment, to the topic with which I was dealing when the Court adjourned.  I had taken the Court to the material in the husband’s affidavit that raised new matters.  Could I just return from that for a moment to the respondent’s affidavit at page 542 in paragraph 17 and your Honours will see in paragraph 17 that she said that the:

Husband’s.....disregard.....caused me great distress and undermined my confidence.

And your Honours will see there, she:

felt as though we had been ambushed.

And so on.  And, your Honours, in our submission, as I submitted yesterday, although perhaps with some haste at the conclusion of proceedings and if I may seek to say it again, your Honours, in circumstances of the kind to which we referred which she refers there, we would submit it is entirely understandable that she would feel “threatened by the whole proceedings”, that is the observation made by Justice Baker at page 499 about line 30 and, in circumstances like that, that she would display “neither warmth nor humour”.  That is at page 493.  Your Honours, one might well understand that, in the circumstances that had occurred, she might well feel, as is sometimes said, very much a pawn in a game being played by others.

KIRBY J:   Many litigants feel that way, Mr Jackson; there is nothing peculiar in this.

MR JACKSON:   Well, with respect your Honour, if one is looking at circumstances where the issue is whether the interests of justice - and that is the ultimate criterion - require that there be the admission of further evidence, the circumstances which have occurred, in a particular case, are ones which are germane to the resolution of that issue, and that comes about by, for example, the application of the notion of surprise to which I adverted yesterday, but perhaps a notion somewhat analogous to that, and those notions recognise that it may not be the “fault” of the person themselves, but might be brought about by their representatives.  Your Honours, one appreciates of course that people might feel that way, but there are some remedies.

KIRBY J:   But where does that leave the principle of finality which we hear so much about?  Its great importance, its importance especially in this area where different views can quite genuinely and fairly be held by different judicial officers.

MR JACKSON:   May I seek to say something about that, your Honour, and it is this:  what your Honours will appreciate is that it is, of course, ultimately a matter for the Federal Parliament to determine what the appellate structure should be, or should be established for Federal Courts other than this Court.  In establishing the Family Court the Parliament has allowed for two types of appeal, namely appeals from judges of that court. That is dealt with by section 94(1)(a).  It is also dealt with appeals from courts of summary jurisdiction.  That is dealt with by section 96.

In each case it has, in conferring the right to appeal, and as an inherent part of it, allowed, though differently, for the admission of further evidence.  In the section 96 case, which is the appeal from courts of summary jurisdiction, it does so by providing for a hearing de novo.  It does so in the other case, the case with which this court is concerned now, the section 94 case, by the provisions of section 93A(2).  Section 93A(2) is not an appendage to the provisions for appeal, it is part of them.  It is, no doubt, discretionary, of course, whether further evidence is to be admitted.  But, your Honours, the provision is one to be used when occasion requires it.

GAUDRON J:   Are you able to identify the occasions that might require it with somewhat greater precision in relation to the issue of the welfare of the children?

MR JACKSON:   Generally, your Honour?

GAUDRON J:   Yes, for example, prima facie, at least, one would think that it would be hard to say that it would usually be in the interest of children to have second hearings and so forth.  What is the test, really?  There must be some test about the welfare of the children.  It would direct, not so much the receipt of further evidence, but the further course contemplated in this case.

MR JACKSON:   Your Honour may I start by saying this.  One does not, of course, in the case of children, deal with them in the abstract.  What I mean by that is that the issue that arises, arises in relation to particular children where there is effectively some competition as to the order that should be made, say, for their residence, as it is called, between differing parties.  Now, it may be that the judge of course does not accede to either of those, but broadly either of the propositions that is put in that form.

However, ultimately what the court is seeking to do is to provide for the residence for the children, or the order in respect of the residence of the children, that the judge is satisfied will be best for them in terms of, I suppose, a number of things.  First of all, their education, their relationships to their natural parents, or adopted parents as the case might be, their relationships to other members of the slightly more extended versions of those families, and the circumstances that will be ones that look to their welfare broadly speaking.  Your Honours will have seen the list of factors set out in one of the sections, 68F(2), of the Act which sets out many of the relevant factors.

Now, your Honour, I do not really know that it is possible to identify the course that is to be arrived at by the making of an order other than to say, in the end, one is looking at best interests of the child as the paramount consideration, but “best interest” is a concept which reflects a large number of matters including those which are set out in paragraph 68F(2).  Now, your Honours, in doing that - perhaps if I pause there.  That is the task the Court is engaged on.

GAUDRON J:   Would it be appropriate to determine, for example, that the best interests of the children were not served by residence orders which proceeded without a full elaboration of all relevant facts or a full analysis?  Could that ever be concluded?  I am not too sure it could.

MR JACKSON:   Well, your Honour, there is no - the Court might well take the view that neither order - I am sorry, that the order sought by the applicant, who is someone who starts the proceedings, is an order that should not be made and there be, in effect, no order.  And it might well come about and, your Honour, one would not be at all surprised to see a court saying this is a case where, in order to arrive at the appropriate course, there would need to be evidence adduced as to this or that or the other, and until that is done the Court would not be satisfied that there should be an order of the nature made, or the nature sought should be made.

So, your Honour, concepts of that kind, which would hardly be surprising to see, would be ones that do encompass the notion your Honour was just putting to me, that one of the aspects of making the order is to ensure that the Court is properly and, as fully as possible, informed on matters germane to the resolution of the issue.  What your Honour put to me involved another thing, I think, and that was the desirability of there being further hearings and so on. 

May I say in relation to that, your Honour, that one of the matters that is itself comprehended by provisions such as section 93A(2) is that there will be issues of fact that have to be resolved.  What your Honours will see in relation to appeals by section 93A(2) is that in deciding an appeal the Court does have to have regard to the evidence given in the proceedings below, and then, of course, there is the provision allowing for there to be further evidence.  In relation to that, one of the very subject matters that is likely to be the subject of appeal, attracting the operation of section 93A is an appeal in relation to matters of this kind. 

Your Honours, it is no doubt sad that there should be protracted litigation about children, to put it shortly, but it occurs, and it is a matter where the legislature has made specific provision which allows there to be cases where the matter can be relitigated. Your Honours have seen, of course, the provisions that I also referred to yesterday of section 94(2), indicating the forms of relief that can be granted.

Your Honours, part of it in enacting section 93A(2) in giving a right to appeal by section 94(1) but at the same time in dealing with the exercise of jurisdiction under section 93A(2) did not choose to limit the discretion by the adoption of familiar forms of language, such as by reference to special grounds or something of that kind as being qualifications for the admission of additional evidence in relation, say, to matters occurring before the hearing.  What it did do, however, was to rely on the Full Court’s good sense in identifying, by reference to the subject matter and the circumstances, when the interests of justice, to put it broadly, would require the exercise of the power to receive further evidence, and again, by relying on the good sense of the Court pursuant to section 94(2) to adopt the appropriate course once it had decided to admit further evidence.

Your Honours, the point I was seeking to make a moment ago was this, that one really should not treat in section 93A(2) the power to admit further evidence as though it is a kind of appendage added on to the appeal part.  It is and always has been a part of the provision for appeals in relation to the Family Court.  It is not a case, your Honours, where one has a kind of purity of appeal but an appendage that is only to be used from time to time.  It is not like having a top coat in Darwin.  You would only wear it when you go to Hobart.  It is a part of the wardrobe of the appeal.

Your Honours, could I just say - there is one other matter I wish to deal with and I can deal with it very shortly.  It concerns the fact that some of the further evidence related to events which have taken place after the making of the order.  Your Honours, we have dealt with that in paragraphs 14 to 16 of our written submissions.  May I say two things about it.  The first is this, your Honours, that in paragraph 14 we have given some reference to some of the further evidence.  Could I just invite your Honours to add a reference to the respondent’s evidence in that regard.  That is at volume three, page 546, line 48, and it goes through to page 556.  Your Honours, could I also alter one reference that is already there and that is the first reference on the third line of the paragraph.  Instead of being 633, line 15, it should be 632, line 55.

KIRBY J:   Can it be suggested that the respondent when cross‑examined, because I have not read any of the cross‑examination, really conceded a lot of the material in the affidavit of the appellant which, in a sense, undermines the significance of the ambush or the late supply of the affidavit.

MR JACKSON:   Your Honour, it is right to say there were some aspects of it which were ultimately conceded and they related to what, to put it shortly, was described as the somewhat bizarre conduct in relation to a number of particular matters.  However, the broad theme was not.

CALLINAN J:   Mr Jackson, I, with respect to you, doubt that.  If you look at the cross‑examination beginning at 236 and going on for some 20 or so pages you will see that there is a great deal of cross‑examination about diaries that your client kept.  Now those diaries were apparently produced on subpoena.  I do not know whether they got into evidence or not but their contents plainly did and they record a great deal of the detail about the relationship between your client and the children and the contents are generally accepted to be true and it seems to be a fairly complete record over a fairly long period of time of the relationship with the children.  My tentative view, and I will give you an opportunity to deal with it because it is only a tentative view, my tentative view is that the substance of the husband’s affidavit is effectively admitted there.

MR JACKSON:   Your Honour, what I seek to say in relation to that is that I will accept immediately some of the things that he put there in relation to a number of particular matters, were accepted.  What I would seek to differ, your Honour, in relation to it, is the proposition that the theme of the - that is why I put it that way - the theme of the affidavit, in relation to the relationship between the respondent and the children was accepted.  Your Honour, I do not know that I can deal with it differently ‑ ‑ ‑

CALLINAN J:   No, I understand.  I mean, let me be quite specific.  For example, if you look at page 247, you will see the lead-up to the concessions that were made there, it is in relation to the making of an obscene gesture.  Now, that of itself may not be a major matter, but it was denied until ultimately attention was drawn to a very specific reference in one of the diaries and the concession was made as it had to be made.  I am just wondering whether the trial judge, in view of the lead-up to that question and the ultimate concession and the context of that whole cross‑examination, might have been entitled to form a very adverse view of your client as a mother, albeit that it may not have been her fault.  She may have been badly affected by the suicide.

MR JACKSON:   Your Honour, that particular thing to which your Honour is referring is one of the instances that I was accepting.  But may I say in relation to it, your Honour, that what happened was rather this, that one can understand in a sense that a judge might form an adverse view against someone in particular circumstances where you see them cross-examined.  The difficulty with this case was that the respondent was never in a position where she was able to, in effect, put what her case was in relation to these things.  What I mean by that, your Honour, is this, that your Honour will have seen - I have been through the history of what happened.  You get a situation where instead of her being able, for example, either to put in an affidavit giving her version of these events or her being examined in-chief about them by someone who knew what she was talking about because she had read her instructions and who could lead her through the evidence, she is called to give evidence, she gives two or three pages of evidence on, really, matters which in the scope of things are probably trivial, and the next thing she is, in effect, thrown to the wolves.

CALLINAN J:   I do not know, Mr Jackson.  These diaries seem to have been very, very comprehensive, they seem to record not only some of her innermost thoughts but also her actions on a day-to-day basis in relation to the children.  She is cross-examined at length on them; they have been the subject of a subpoena so everybody knows they are going to be an issue; they deal specifically with a number of the incidents and, indeed, with the generality of a lot of the husband’s affidavit; she is cross-examined about them; she seems to have made a lot of admissions ultimately, and there does not seem to be any re-examination and nor could there be when she has made the admissions.  I mean, this is a tentative view but I mention it to you because I am very concerned.  It is a custody case and we want to get it right.

MR JACKSON:   Well, your Honour, undoubtedly, and what your Honour puts to me about re-examination probably can be the subject of the same observation as I made in relation to her evidence in-chief, because what your Honour will appreciate is that, in effect, you have someone who has been called to give evidence and in circumstances where what she is going to say in relation to particular allegations, has never been the subject of discussion between her and her counsel.

CALLINAN J:   But there must have been, because the diaries had been subpoenaed and the diaries contain a great deal of information.

MR JACKSON:   Well, your Honour, I accept that the diaries contain a great deal of information.  I would not contradict it, but what I am seeking to say is that she has never been in the position of what her evidence in relation to these matters might be, and how it might be adduced.  She is simply put in the witness box by someone who has never spoken to her about it.

CALLINAN J:   Her evidence ultimately is, in most cases that I have seen, “Well, yes, now you have put it to me I have to admit it”.  I mean, that seems to be the evidence.

MR JACKSON:   In some respects, your Honour.

KIRBY J:   Is this really a sort of Burke’s Case, is it?  I got the impression from the overall case the judges of the Full Court really thought that your client had not been very well represented, and that she not really got a trial and that she not really had a chance to put her side of the case. 
Things were the document came in just before the weekend.  She worked over the weekend.  Instead of all the matters being examined, it went straight to trial.  Of course, if the rules had been observed the adjournment should have been sought, but they had set aside a week, they were emotionally prepared, and I just wonder if sub silentio in the case, though not expressed by the Full Court is the fact that they really thought she had not been properly represented and that the matters had not been properly and fairly put to the court for the consideration of the primary judge.  The problem from our point of view is that is not said by the Full Court.  They give three reasons, each of which when examined leaves a bit to be desired.

MR JACKSON:   What one needs to bear in mind is that if one goes to page 724, when the court there is speaking of:

The very late delivery of the husband’s material.

And where the court already has spoken about the events, it seems apparent enough, in our submission, that that is what the court is speaking of, and that is that, in effect, they were taken by surprise and that the representation of her at the time did not do what, to put it shortly, should have been done.  Your Honour, we say that ourselves.

KIRBY J:   But it is not really candid in the sense that if this is what was troubling the Full Court why did they not say that, that their ultimate conclusion is injustice, and their ultimate reason for injustice is that her side of the case was not properly put to the primary judge.

MR JACKSON:   At pages 703 and 704 they discussed what happened.  It commences under the heading “Further background to the fresh evidence application” on 703.  Then at the top of 704, line 9, “Despite this invitation” and then they refer to the evidence:

In examination‑in‑chief.....did not attempt to take his client -

to it.  Then, your Honours, you will see - so the court is referred to that.  When they are speaking at page 724 about:

The very late delivery of the husband’s material.

Your Honours will see in the preceding three lines, first of all they have said:

the various unsatisfactory elements of the manner in which the case proceeded.

KIRBY J:   Where is that, I am sorry.

MR JACKSON:   Page 724, your Honour, lines 19 to 22.  The second thing I am here to say about it was that you will see that they then say, “In summary they were:”.  They are giving a summary; they are speaking of there having been various unsatisfactory elements of the manner in which the case proceeded, and it is really a shorthand way of dealing with the matters to which I have referred.

McHUGH J:   It may be a shorthand way, but one thing that troubles me is that if your argument about surprises is good, that by itself may have been sufficient to get this evidence in in a new trial.  That is not the way the court seems to have approached it.  They certainly did not approach it that way in terms, but I suppose you would say it they have done it implicitly.  That leads me to this.  Supposing I came to the view that the discretion miscarried, either by a wrong statement of principle or misdirecting itself or not considering matters that it could.  What would you want us to do; to send the matter back or to re-examine the matter and exercise the discretion ourselves?

MR JACKSON:   Your Honour, it may be that the better course would be to remit the matter to the Full Court. 

McHUGH J:   I have to say, although it is attractive in most cases, I am just loath to put these parties through further expense of a Full Court hearing on that basis.

MR JACKSON:   Your Honour, it is ‑ ‑ ‑

McHUGH J:   Yes, it is a matter for the parties.

MR JACKSON:   Yes.  Your Honour, in the end it is a matter whether the Court will exercise its own discretion.  Your Honour, it seems an appropriate case, in our submission, for the Court to go to the Full Court.  It is possible, of course, that at that point it may be that circumstances have changed again.

KIRBY J:   It is rather difficult for us to exercise the discretion.  We can read the transcript but we have not seen either the husband or the wife.  We are not experts in this area.

MR JACKSON:   Your Honour, of course the Full Court did not do it either.  Your Honour, the position might well be that the Court took the view that the discretion had miscarried for, say, legal reasons, then the appropriate course would be to send it to the Full Court, because the Full Court - I was seeking to say before was that it may be that at that point there had been some change in circumstances that might produce an additional application for there to be further evidence.  One does not really know.  It may be, depending on the discretion of that court, that the evidence would be sought to be put in a more precise form in some respects.  So, your Honour, our submission would be the better course would be for it to go back.

CALLINAN J:   Mr Jackson, how old is Kylie?

MR JACKSON:   Now 17, your Honour.  Your Honour, the ages are set out in the first paragraph of, I think, our learned friend’s submissions. 

KIRBY J:   I think I asked you this yesterday but would you remind me.  If one came to the view that the Full Court had erred, what, from your client’s point of view as a practical matter, is the problem of saying, the Full Court erred; they should not have disturbed on that basis and therefore set aside their orders, confirm those of the primary judge and leave it to you, on a fresh application, to go back to the Family Court, if have got material that was not fairly put before the Family Court at this first trial.

MR JACKSON:   Well, the difficulty, your Honour, is that the tests adopted by the Family Court, and your Honours have seen the - my learned friend referred, I think, to D v Y yesterday, but it is one of a long line of cases that I referred to in which the test adopted by the Family Court has required a substantial change of circumstances since the making of the original order.

McHUGH J:   For practical purposes the shutter comes down after the conclusion of the earlier proceedings and you have got to ‑ ‑ ‑

MR JACKSON:   Yes.  Now, your Honours, there may be perhaps a question about whether the rigid application of such a principle is itself permitted by the Act, but that is may be an interesting question perhaps for some other day, however.....your Honours, but what I was seeking to say was that as the law stands at present there would have to be shown a substantial change in circumstances since the making of the original order.  That is why one sees, for example, in Abdo in the passage I gave the Court yesterday a reference to the two possible courses open.

One is to admit fresh evidence, further evidence, on appeal.  The other is not to do so but to require the making of an application for a variation, but, your Honour, if we are right then we are entitled to be put in a position as if the original order had not been made as distinct from having to set it aside for reasons dehors the original order.

KIRBY J:   I may be absolutely wrong, but my impression which was with me at the beginning of this case and remains with me to the end is that the real thing that worried the Full Court was that they felt that the judge had rather hardly dealt with the wife on the basis that she did not make a very good impression in the witness box.  She looked gloomy and never showed warmth and so on, but they do not mention that, and/or that the wife did not really get a fair trot in having her case presented to the primary judge and you have really got to get this language and stretch it and expand it and read lots into the words to find that, so that I may be wrong about it, but that is the impression I have and yet they then nominate these three reasons which are not very convincing.

Would there be any reason - what does one do in that case, Mr Jackson, if that is my view, that the wife did not get a fair presentation and the wife and was not properly represented in the way the material was just three pages of examination in‑chief and then thrown to the wolves?  I do not think that is an unfair description, but this is not the basis on which the Full Court seems to have dealt with the matter.  What do we do then?

MR JACKSON:   Your Honour, may I say two things about that?  The first is - perhaps if I could deal with the first second, but I was going to say the first thing is that the court, in our submission, did set it out sufficiently.  I will come back to that, if I may.  As to the second of those, if the Court is of the view that the case is one where the result arrived at by the Full Court was right but the reasons were wrong, well, your Honour, that would be a case where the appropriate result would be that the Court would not send the matter back.

McHUGH J:   Can I tell you the only thing that is troubling me about the surprise case that you so powerfully made yesterday afternoon and again today, that it does not seem to be the case that was really run before the Full Court and I wonder whether or not there may not be some denial of natural justice to the appellant, because it is, by implication, perhaps expressly if they take on counsel who appeared for the wife, for all we know he may have had the diaries, that he formed the view that tactically, the best way to deal with the case with this particular client, is to put her in the witness box and get her out as quickly as you can without going into all the details, knowing what was in the diaries and what would happen.  His conduct does not seem to have been an issue as such, Mr Jackson.

MR JACKSON:   Well, your Honour, the - would your Honour allow me just a moment before answering that.

McHUGH J:   Yes.

MR JACKSON:   Your Honour will see at page 523, in volume three, the reference to “fresh evidence” and I would refer your Honour to ground 22(a).  This is the notice of appeal to the Family Court.

GAUDRON J:   What page?

MR JACKSON:   Page 523 in volume three.

GAUDRON J:   Thank you.

KIRBY J:   Which ground?

MR JACKSON:   It is ground 22(a), and what is put is:

That to preserve procedural fairness and to protect the interests of the children -

your Honours will see what is there set out, and 22(b).  Now, your Honours, that issue was one of the very matters dealt with in the judgment of the Full Court.  It was one of the reasons for the fresh evidence.  Now, the right to say the word “surprise” is not put there, but generically that is what it is.

I have taken your Honours to the references in the court’s judgment.  Your Honour, I am sorry, I have taken longer than I had expected.  May I just say one further thing in response to your Honour Justice Kirby’s question to me or one part of it and that concerns whether the Full Court was, in effect, saying one thing but meaning another.  Your Honours will have seen a number of passages in which I took the Court to ‑ ‑ ‑

KIRBY J:   I am not accusing them of dishonesty.  I am just accusing, perhaps, of excessive delicacy in not, as it were, saying all.

GAUDRON J:   They certainly say that they are not positively satisfied that what has happened has been in the best interests of the children, do they not?

MR JACKSON:   Yes, your Honour, they do.

GAUDRON J:   Whether that is sufficient is, I think, a question of some moment but perhaps you might say nothing much more can be said if the matter is to be reheard.

MR JACKSON:   Yes, your Honour, could I say, at page 690, the last paragraph on the page, they say:

His Honour then made his own assessment of what his Honour described as “the personality, demeanour and motives of the parties”.  He set out his conclusions -

and your Honours will see those there set out.

KIRBY J:   What page is this, I am sorry?

MR JACKSON:   I am sorry, your Honour, 690 commencing line 42 or 43.  It is immediately after that at page 691 line 25:

It is perhaps convenient to interpose that fresh evidence -

et cetera -

could well lead to the opposite conclusion -

and so on, and, your Honours, then at page 692, about line 36, they say:

It is convenient to interpose that some aspects of this criticism -

the criticism, your Honours will see immediately commencing at 691, line 40, “lacked warmth” and so on; “serious and humourless mien” and so on.

Some aspects of this criticism seem prima facie to be of doubtful justification, given the very difficult circumstances -

and so on.  Then your Honours have at page 692, line 50, further down the page, another criticism - I am sorry, a reference to the gravamen of the fresh evidence and its relevance to the approach taken by the judge.  Another passage from the judge, then page 693, line 30, reference to the effect of the fresh evidence:  different conclusions may well be reached, in effect.  So that, your Honours, if one adds those things together one does not really have a situation where the Full Court is just really accepting what the primary judge has said without criticism.  You see the core paths of it are ones that are the subject of adverse comment on the way through leading to the ultimate conclusion.  Your Honour, I do not think I can take it beyond that.  Your Honours, those are our submissions.

GAUDRON J:   Yes, thank you Mr Jackson.  Mr Bennett.

MR BENNETT:   If your Honours please.  Your Honours, first I hand up the police brief of evidence that I was asked for yesterday. 

GAUDRON J:   Were you asked for that?

MR BENNETT:   I understood I was asked for it yesterday and I had it produced in response to Justice Kirby.

GAUDRON J:   Yes, very well, thank you.

MR BENNETT:   Secondly, I have prepared some - - -

GAUDRON J:   And that was in evidence?

MR BENNETT:   Yes, your Honour, it was in evidence but not reproduced.

KIRBY J:   This is the material the Full Court refers to but as one of the reasons, is it not?

MR BENNETT:   It is referred to in general terms, yes.  It is the material from the inquest.

KIRBY J:   Yes.

GUMMOW J:   Was it an exhibit before the primary judge?

MR BENNETT:   Yes, your Honour.

GUMMOW J:   But not in the appeal book before the Full Court?

MR BENNETT:    I do not know if it was before the Full Court or not.  It has been marked “not reproduced” in the appeal books to this Court.

GUMMOW J:   I see.

MR BENNETT:   My learned junior thinks it was before the Full Court.  Might I also hand to your Honour an outline of submissions in reply.

GUMMOW J:   This does not seem to have an exhibit note on it.  It has an annexure note but there is nothing to show it came into evidence.

MR BENNETT:   If your Honours go to the front of any of the volumes of the appeal book, there is an index.  Your Honours will see on the third page of the index, item 15, husband’s affidavit, which is reproduced at 106 ‑ ‑ ‑

GUMMOW J:   It is brief on evidence.

MR BENNETT:   Then D, brief on evidence, and it is not reproduced in this appeal book.

KIRBY J:   This contains the statement of the daughter Kylie and Williams and Dickman, which is the second of the reasons, does it not?

MR BENNETT:   Kylie was only in the AVO proceedings, your Honour, and that is reproduced, I think, in the appeal book.

KIRBY J:   Is this the material that is referred to in item 2 of the list of three items of the Full Court?

MR BENNETT:   Yes, your Honour.  Certainly some of it.  The item 2, I think, encompassed this material and Kylie’s statement in the AVO proceedings.

KIRBY J:   Yes.

CALLINAN J:   Mr Bennett, did the diaries get into evidence?  Am I correct in assuming ‑ ‑ ‑

MR BENNETT:   No, your Honour, they did not.  There is one rather unfortunate consequence.  Cross-examining counsel took the view that because he had read all the bits that were relevant in the course of cross-examination, he did not need to tender the diaries.  Unfortunately, the shorthand writer or the transcript authorities have just put the beginning and end of each quotation with a dot-dot-dot between them, so the result is that the evidence that he thought was in is not reproduced.

GAUDRON J:   So these are by no means the whole of the diaries.  We have only one brief glimpse from the viewpoint of the cross-examiner, who obviously had a case to put.

MR BENNETT:   Yes, but also, your Honour ‑ ‑ ‑

GAUDRON J:   It is very dangerous to rely on just what we see of those.

MR BENNETT:   Your Honour, except the other - it would have been open to the wife’s counsel to tender them to show the overall matter.  But the point I am making is slightly different, your Honour.  It is that even the bits your Honours have are not the full bits that were read to her, because the shorthand writer has omitted everything in the middle and just put the first line or so and the last line or so.

GUMMOW J:   It is one of the first tricks for trial judges to watch this sort of thing to make sure it does not happen.

CALLINAN J:   You get the flavour of it fairly clearly.  I did, Mr Bennett.  Also, I notice not only was there no attempt to require the tender of them or for counsel for the wife to tender them, as that counsel could have, but also there was no re-examination, and there was no application to have a conference before re-examination.

MR BENNETT:   Your Honour, if one side puts part of a document to a witness in cross-examination and the other side wishes to contend that it is unrepresentative or that a better picture is obtained from the whole of it or that it is misleading, there are a number of remedies including, as your Honour says, tendering the diaries or putting other bits in, in re‑examination or otherwise dealing with it.  That was not done.  You Honours, in my submission, can safely conclude that the relevant parts are there.

CALLINAN J:   I might also say that the cross-examination of the husband, your client, appears to have been a competent cross-examination.

MR BENNETT:   I do not want to give evidence from the Bar table about competence of counsel, but we would not accept some of the remarks my friend has made.

CALLINAN J:   And on its face it appears to be an ample, competent, careful cross-examination.

MR BENNETT:   We would so submit, your Honour.

KIRBY J:   But, Mr Bennett, they had five days set aside.  Look at the realities:  there is a lot of pressure on people, or people of ordinary means, or legally-aided people to go on with the case.  I mean, we lawyers can say, “Well, they should have asked for an adjournment,” or “The judge should have insisted on an adjournment,” but this is a slightly unreal world, you know.

MR BENNETT:   There was a weekend ‑ ‑ ‑ 

KIRBY J:   You got your affidavit in so late.

MR BENNETT:   I accept that, your Honour, I accept that criticism, but I think, in fact, I was unfair to my own client because I said it was the Thursday.  It was served on the Wednesday and she saw it on the Thursday, and the case started on the Monday.  Of course it would have been a very serious thing to have adjourned the proceedings generally.  But it would not have been a serious thing to have stood them down till 2 o’clock, or till 10 the following morning.

GUMMOW J:   There are other things to talk about over five days, presumably.

MR BENNETT:   There were, your Honour, but it is not the end of the world if a case goes over ‑ ‑ ‑ 

GUMMOW J:   I know, there were property issues to sort out.

MR BENNETT:   There were, your Honour, but it is not the end of the world if a case goes over by a day.  The proposition that the remedy was ‑ ‑ ‑ 

GAUDRON J:   It might be if this one goes over by much more.

MR BENNETT:   Yes.  The proposition that what was involved was cancelling the fixture of a five‑day case is putting it more highly than the true choice facing counsel and the judge on the Monday morning.  The true choice was to go down till 2 o’clock or 10.15 on Tuesday morning.  The witnesses are all, substantially, neighbours.  They are not people who are going to be hard to find to come along if it is desired to call them.  There was no suggestion any of them would have been unavailable.  If it is a question of counsel getting proper instructions on the material, and the concern is he had not read the exercise book fully enough, that is a matter of standing down for an hour, not even till 2.15, until morning tea.  Of course, an adjournment would have been to the wife’s advantage in one sense, because the children were with the wife at the time.  That is another factor.  I will not go through these in great detail because they are in writing, and your Honours will have them, but may I just refer to a couple of the more important matters.

The matters concerning Mr Rose’s submission, the first matter is obvious.  The second matter is that we would simply ask your Honours to look more closely at the whole of the passages on those pages of the judgment because from 691 to 694 what is set out is a passage which really puts the throwaway line about demeanour in its context and it is much, much more than that.  That certainly came first.  I suppose when a judge writes a judgment and talks about a witness the first thing the judge thinks of is demeanour, but it was not the major factor, which has been suggested, we would submit.

In relation to costs, the intervener’s application, I can only say this:  my friend cannot have his cake and eat it too.  Either he is under the Family Law Act, in which case he cannot get costs because of section 117, or he is in this Court, in which case interveners do not get costs.  In my respectful submission, it would be unprecedented for an intervener to intervene and then seek that a party pay the intervener’s costs and I have certainly never heard of such a case and, in my respectful submission, it is simply not the practice.  So he has it one way or has it the other and either way he does not get them.

Coming to my learned friend’s submissions.  In relation to the shadow of the paramountcy principle, my friend was asked whether it extended to this Court and his answer was in part but, of course, the logical conclusion of my friend’s submission about the paramountcy principle is that on a special leave application in a custody case the paramount principle would not be whether the case involved an important question or whether it was a convenient vehicle, but the welfare of the children. 

Does that mean that this Court is bound in any case where it has doubts on a special leave application to grant special leave?  That, we would submit, is the true analogy and obviously this Court would not be so bound and the reason is that the paramountcy principle is something one applies when one gets to the decision of what happens, not at the procedural stage.

My friend referred to G v G, which was the House of Lord’s case in the English Family Law Reports, and he read a passage from it.  I only wanted to remind your Honours of one very short passage because it is interesting - it immediately follows the passage my learned friend read, and it shows a haunting resemblance to this case.  At page 901D Lord Fraser says:

With regard to the mother’s further affidavit -

this was, as in this case, a mother’s application to have further evidence -

I understand that it does little more than describe the children’s access visits and narrate that they have been happy and successful.  Evidence to that effect would not add significantly to that which had been before the judge, and in my opinion the Court of Appeal was well entitled to refuse to look at it.

So, of course, the evidence here goes a bit further than that but it is interesting that that is the sort of consideration which is not regarded as sufficient.

Turning to the second page of the outline.  My friend submitted that Kylie’s evidence in the AVO proceedings was prejudicial.  It is set out at pages 135 to 139.  I will not take your Honours to it but your Honours will see, and I do invite your Honours to read it, with a view to seeing what little effect it had or would have had on the trial judge.  It consisted partly of factual material appearing in other evidence, often uncontested evidence, a number of the incidents are referred to, a number of the admitted incidents.  A lot of it is - and I do not mean to be offensive by saying this - but they are typical outpourings of a rebellious teenager.  It is unlikely to have affected the judge and the judgment does not suggest that it did.  In any event, there was no real dispute that Kylie had a poor relationship with her mother and frequently denigrated her.  So it is hardly a significant piece of evidence which would have had any effect and it is not treated as such in the judgment.

Your Honour, Justice McHugh, put to my learned friend a number of considerations not appearing in the Full Court judgment including the question of whether the result would have been different and the effect on the children of a new trial.  May I respectfully put as - I had not formulated it in this way, I had formulated the error of principle your Honours recall by, in a negative sense, but one way in which the error of principle I complain of could be formulated in the light of that question is to treat it as a failure to take relevant considerations into account.  That was a description of it or a characterisation of it I had not adopted in-chief and perhaps should have done.  I refer to McDonald v McDonald.  In relation to surprise ‑ ‑ ‑

GUMMOW J:   You have given us a number of reference there which we ‑ ‑ ‑

MR BENNETT:   Yes, I have.  I will not take your Honours to those.

GUMMOW J:   They are not very important but we will have to go to them.

MR BENNETT:   Yes.  I will not go so far as to say that it is an allegation which takes us by surprise.  It is certainly a characterisation of it which is not a characterisation used by the Full Court or put to the Full Court and we would submit it falls a long way short of a case of surprise; a long way short.  It is a case of a procedural irregularity which has to be dealt with in the lateness of the affidavit but “surprise” is completely the wrong word for it.  This was not a case of surprise in that sense at all.  Surprise is where one is confronted at the trial with something, not where one is given an affidavit five days before which may be short but which ‑ ‑ ‑

GUMMOW J:   Yes.  Equity jurisdiction in New South Wales would have ground to a halt a long time before if that was some sort of real surprise.

MR BENNETT:   We would so submit, your Honour.  There is one other matter in relation to that.  There is a document which I assume is in the Court file although not in the appeal book.  I do not know if your Honours take the view that I am entitled to refer to it or not.  It is an affidavit filed in the course of the Family Court proceedings in December by the separate representative.  I only wanted to refer to it.  Your Honours do not have it.

GAUDRON J:   You will make copies of available, later, Mr Bennett?

MR BENNETT:   Yes.  I only refer to it for the purpose of showing that the separate representative there sets out what she understands the issues to be, and many of the matters which are complained of as being a surprise are included in that list in December.  That was given to the parties in the December before - I will have that done.  The Full Court did refer to it, I am told.  On page 3 I have dealt with the matters there.  I do stress that there was no finding by the trial judge that the wife’s conduct contributed to the suicide, nor was that suggested by the husband at the Full Court stage.  The last one refers to a long piece of cross-examination, 236 to 290.  Your Honours have no need to read it; it can be skimmed.  I do invite your Honours to skim it.  It does deal with the various allegations of what has been described as bizarre conduct, and your Honours will see that many of them were admitted and the way it is dealt with.

The remaining two pages are something I will not go through.  My friend took your Honours this morning to the wife’s affidavit to paragraph 20.  We have prepared a summary in anticipation of that submission showing the subparagraphs of paragraph 20 of her affidavit, where they are matters where she says, “If I had known this was in issue, I’d have done X.”  We have shown how in each case it was dealt with in evidence and how it was dealt it.  Really, a number of them are matters where answering simply would not have helped.  A very good example is the fifth one, paragraph (e).  The husband said in his evidence in the new affidavit that he took children to doctors, dentists and orthodontists from time to time.  In cross-examination he said, “And, of course, the wife did too.  We both did, from time to time independently.” 

The new piece of evidence, the startling new piece of evidence which would have been produced is Dr D’Souza, who is the family GP, who says, “Whenever they came to me it was just the wife.”  That is fairly obvious; one would expect that.  But it hardly contradicts the general statement, “I took them to doctors, dentists and orthodontists.”  In any event, there are a number of others and I have listed them all there.

Coming to the submissions my learned friend made this morning, or should I say this afternoon, my learned friend referred to the question of ambush referred to in paragraph 17 and the wife’s feeling that she had been ambushed and her disquiet.  Your Honours, without minimising that and, of course, one can understand the wife’s feelings at the trial and in the circumstances set out in paragraph 17, but one has to be this hard‑hearted,

that most losing litigants go away from litigation, especially in emotive proceedings, believing their case has not been fully put for one reason or another, believing that there was some aspect that counsel did not understand or did not put properly or did not listen to them about.  That is not an uncommon complaint and when one analyses in this case the actual items the complaint is seen to have very little substance.

It is a great complaint when one describes it in broad general terms, but once one comes down and looks at the items and looks at how it really affected the trial, in my respectful submission, the detail does produce a different result from the generalisations in that paragraph.  In relation to section 93A, may I simply say this, that the Parliament has chosen to have a general provision about fresh evidence on appeal, but that should not be taken as meaning that there are no restrictions on that.  We would submit that is simply adopting the existing state of the authorities in relation to it and nothing more and nothing less.  The circumstances in which that discretion is normally exercised were well known when the section was enacted and there was no attempt in the section to displace it. 

My learned friend was asked what order he sought if I was successful in the appeal and the Court considered that the discretion miscarried.  My submission is that at this stage this Court would be as seized of the material as the Full Federal Court.  In many cases that would not be so, but this is a case where one does have to look at the detail, unfortunately, and your Honours would have done that to get to that first stage and, in my respectful submission, your Honours would be in as good a position as the Federal Court to exercise - if I can call it this compendiously without attributing the label - the Wollongong Council discretion and make the Wollongong Council decision itself and, in my respectful submission, this Court would be in a position to do that.  Those are the submissions in reply, may it please the Court.

GAUDRON J:   Yes, thank you, Mr Bennett.  The Court will consider its decision in this matter.

AT 1.04 PM THE MATTER WAS ADJOURNED