D v D

[1993] HCATrans 194

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry No B50 of 1992

Brisbane

B e t w e e n -

Q

Applicant

and

Q

Respondent

Application for special leave

to appeal

DAWSON J

TOOHEY J

MCHUGH J

Copyright in the High Court of Australia 1 2/7/93

TRANSCRIPT OF PROCEEDINGS
AT BRISBANE ON FRIDAY. 2 JULY 1993. AT 12.28 PM

MR D: If Your Honours please, I am the applicant in these

proceedings.

DAWSON J:	And you seek leave to appear in person, do you?
MR D:	Yes, Your Honour.
DAWSON J:	And you are aware of the provisions of Order 69A

rule 11?

MR D:  Yes, I am aware of the Halliday and Harradine cases,

Your Honour. I had a submission to make in respect

of those two cases which - - -

DAWSON J: Yes. Perhaps you could just proceed to tell us

why the application itself would merit leave and,

in so doing, no doubt you will deal with the merits

of the application you wish to make.

MR w. SOFRONOFF, QC:  May it please the Court, I appear with

my learned friend, MS M. MAY, for the respondent.

(instructed by Phillips Fox)

DAWSON J: Yes, Mr D.

MR D:  Thank you, Your Honour. The application for special

leave has, at its base, a very short sharp point.

It is whether or not section 64(l)(bb) is mandatory

or not. That section has been in a state of

amendment since 1983, I think it was most recently
amended last year. But as at August 1992, the date

when this came before the primary judge, the

material parts read as follows:

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 -

and:

(bb) the court shall take the following

matters into account -

And I refer specifically to -

(v) the capacity of each parent, or of any

other person, to provide adequately for the

needs of the child, including the emotional

and intellectual needs of the child -

It is put to Your Honours that that was not done by

the primary judge and that therefore he did not

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have power to make the order he made under

section 64(1)(c), which says:

subject to paragraphs (a), (b), (ba) and (bb),

the court may make such order -

That is the nub of this appeal, Your Honour. There is a more extensive outline of the Family Court

authorities and the one High Court authority that I

would like to take you to, if you would wish.

DAWSON J: Yes, you proceed, Mr D.

MR D: Your Honour, if I take you shortly to the - - -

TOOHEY J: Could I just understand the proposition, Mr D, in

relation to paragraph (v), are you saying that the
court was not provided with evidence relating to

the considerations in that paragraph, or that it

was provided with evidence but did not direct its

attention to those matters, or what?

MR D:  Your Honour, what the judge said at page 8 of the

application book is that he appreciated the

husband's material raises important issues, but he

said:

Because of the exigencies of time, those

issues were not able to be canvassed during

the hearing of these interim proceedings

which, in accordance with the practice of the

court, dictated by the need to·make best use

of limited resources have been necessarily

quite truncated.

Now, it is that practice that comes before you

today and it is the authorities that the

Family Court has developed and the difference in

them which we say makes this case a matter of

public importance and a matter that there is a

difference within the court that needs to be

resolved by guidance from the High Court.

The two legal issues outlined in the affidavit

are whether the principles set out in Cilento v

Cilento, a Family Court case in 1980, as confirmed

and commented on by other cases with important

dissents and contrary authority are contrary to

section 64 or not, and the subset of that is

whether or not it is proper for the Family Court to

make an interim custody order without regard to the

relevant factors required by section 64 to be taken

into account. The second issue of law that is

raised in the affidavit is whether or not the

Family Court should obtain evidence of its own

volition, but that depends upon the primary

question that is first identified, that is, whether

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or not 64 is mandatory, whether or not the

principles in Cilento v Cilento are in accordance with the legislation and whether or not the court

should proceed to an order without taking into

account the relevant factors.

In our submission, a great amount of the old

authorities in the Family Court are now outdated by

the legislation because there is a marked

difference between the legislation in 1983 and

legislation as it appeared at the time this came

before Mr Justice Lindenmayer. In 1983 the court

had simply to regard the welfare of the child as

the paramount consideration, and then clause (c)

that subject to doing so it:

may make such order in respect of those
matters as it considers proper, including an

order until further order -

has substantially remained unchanged. But (bb) has

been added and extended and prescribes a set of

factors which, in my submission, are mandatory on

the court to take into account.

McHUGH J: But that cannot be right on an interim

application, can it, because on an interim

application the court may not be in a position to

have regard to all the matters referred to in, say,

the Roman numeral paragraphs in (bb). The court

just may not have sufficient information on an

interim basis.

MR D:  Your Honour, there is obviously a difference between

a full hearing and an interim hearing, but the
clear provisions of 64(l)(c) give the power to make

an order until further order after the court takes

them into account. It may be that not the full

forensic examination can be conducted at that time

but, in my submission, the idea of seeing important

issues raised and then proceeding to a

determination without concluding on them, even in

an interim or partial sense, is not authorized.

So, in my submission, the point is as has - and we

say there is dissenting authority in the Family

Court itself to take a different attitude, that is

to consider all those issues and to come to some

conclusion on it.

So the practice that has been adopted in the

Family Court as referred to in

Mr Justice Lindenmayer's judgment is that there is

an onus that a status quo, either in a physical

sense post separation or an emotional sense prior

to separation, is assumed to be the appropriate

position unless there is danger shown to the

children. My submission agrees with the dissenting

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judgment in Rainer v Rainer of Mr Justice Watson
where he said that:

The "endangered" onus espoused by Cilento belongs to a former age and to earlier

legislation. It bears little reference to the

legislative overview of the Family Law Act -

creating, as it does, non-fault divorce,

specialized courts, et cetera.

So the submission is that the court cannot

turn a blind eye to a material issue that is raised

on the facts before it and found to be raised and

relevant in the interests of following a practice

of truncating the hearings and requiring danger to

be shown before it will make the appropriate

decision.

TOOHEY J: But the trial judge, or the primary judge, as I

understand it, did not turn a blind eye to these

matters. He accepted, as he had to accept, that it

was an application for interim custody. That was

obviously going to dictate the range of matters or,

perhaps more accurately, the depth at which matters

could be canvassed and, as he says at the top of

page 9:

I am therefore -

having spoken of exigencies of time, and so on -

unable to reach any conclusion on those

issues. I am certainly unable to find as a

fact that the wife is incapable of providing

adequate and appropriate care for these two

very small children for whom she has been

primarily responsible for all of their short

lives.

And it is true that he focused on the role of the

mother as the primary care giver, but that does not

mean that he ignored all other considerations. He

just had to de.al with those within the framework of

an application for interim custody.

MR D:  The submission is not made on the basis that there

was a less than careful examination within the time

available. The submission is made on the basis

that, if found the other way, this factor would

have meant a different decision. And in fact the

judge said that he could not have it canvassed

before him. What we are saying is that it is not

open to the court under the words of 64(l)(c) which

says subject to him taking aspects into account he

can then order - it is not open to him to say "I

will not take that matter into account, I have not

2/7/93

been able to take it into account. I have not been able to reach either an interim or a final position

on it". But once he says that he is outside his

powers in going ahead to make the order.

So in terms of the practicality of the depth

of issues that have to be surveyed at that time, it

is for perhaps another time and a different method

of practice. But the submission is that 64(l)(c)

and 64(l)(bb) are mandatory and that the court is

not able to see issues raised to recognize them as

relevant and then to say to make - Your Honours, if

I take you to the aspects where we satisfy the

requirements of 35A and there the public importance

of the issue that is involved, we say that in

essence in interim custody applications a

presumption is applied by the Family Court that as

a matter of practice the status quo should continue

unless there is danger. The presumption is not

justified in law, in our submission, is contrary to

the decision in Gronow v Gronow of 1979 in this

Court, wherein it was said that presumptions have a

very limited application and a detailed examination

of all the factors is the appropriate way to go,

and section 64 of the Family Law Act.

We say that is contrasted with what is

submitted to be the proper approach, and that is

that there are no presumptions, the full

examination should be carried out and that under

section 64 the welfare of the child is paramount

and the court must have regard to a·number of

defined factors in promoting that welfare. We say

that as a result of the presumption, whether you

apply it in respect of Cilento v Cilento, that is,

post separation status quos, or, as we submit, on a

proper reading of Mr Justice Lindenmayer where he

extends it to go back into a perceived emotional

and care status quo prior to separation, we say it

develops a bias in most family structures towards

one party or other.

Obviously, in this situation we say a bias towards the division, the traditional division of family duties, which having been found by the parties to

be convenient prior to separation, is then used to

justify, in our view wrongly, the continuation of

that after separation. It is also, obviously, a

matter of importance that the law is not brought

into any disrepute by having a statute which says,

on the one hand these factors are to be considered,

even before interim orders, and then on the other

hand truncated hearings on what is, in my

submission, a very important issue in the case

based on a presumption that has been criticized.

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If I move to the resolution of the differences

aspect under 35A I would point to the critical

judgment of Chief Justice Watson in Rainer where he

said, and I quoted parts of that before, that:

Section 64(1) of the Family Law Act 1975 provides that in proceedings with respect to the custody or guardianship of, or access to, a child of a marriage the Court shall regard

the welfare of the child as the paramount

consideration. That is the duty of the Court

in all custodial proceedings howsoever they

arise. The fundamental principle can not be

watered down by judicial gloss.

And again, in respect of Cilento's case he says:

If Cilento's case is intended, or understood to intend, as going any further it places an unjustifiable gloss on sec 64(l)(a) and may

even be argued by some to fly in the face of

legislative provision.

Again, the quotation I have given before:

The "endangered" onus espoused by Cilento belongs to a former age and to earlier

legislation.

TOOHEY J: 

Can I just interrupt you, Mr D, because I do not

read anything in the judgment that suggests that
the primary judge worked according to some sort of

presumption.  He was dealing with an application

for interim custody.  He looked at the relative

position of the mother of the children and the

father of the children, what each could provide -
at least in the short term - looked at the position

of the mother as primary care giver, looked at the

alternative arrangements proposed by the father,

which he did not think were as adequate and as

satisfactory as the arrangement that would operate

if the children were with their mother and in

those circumstances decided that it was better for

the children to be with their mother and made an
order by way of interim custody to that effect.

Now, where has the judge gone wrong in principle in

doing that?

MR D: 

In principle he has said that one important aspect

raised has not been able to be concluded on. That

is the issue.	The issue is, he has done a detailed
examination on the evidence before him.	Of all the

other factors he comes to one factor and he says,

"I cannot conclude on it", yet 64 says you must, in

my submission, conclude on that before proceeding

further.

7   2/7/93

TOOHEY J: Yes, but I do not think 64 requires the court to

address each of those matters as if it were an

application for permanent custody. I mean, you

have to read it within the framework of an

application for interim custody and questions that might go to the capacity of one parent or another.

It might be so obvious that they can be dealt with

in the context of an interim custody application.

In other circumstances it might need a long and extensive examination of the relationship between the parents, and all sorts of matters which simply are not appropriate for an interim custody

application.

MR D: Yes, Your Honour, and if the point were that the

judge had approached it from that direction and

said, "Look, I have looked enough at that area to

know that I do not need to look at it now", then
this point may not arise. But, in my submission,

it is a matter that he has clearly indicated that

there is a material issue and clearly indicated

that he is unable to do it because of the practice

of the Court. That is a different matter, in my

submission, than somebody looking at it and saying

it does not need to be dealt with.

DAWSON J: But he does not have to reach conclusions in

these matters, he only has to take them into

account and that must mean to the extent that it is

appropriate in all the circumstances.

MR D: Well, Your Honour, that is right, but perhaps he has

to reach a conclusion at some point, he simply

cannot hear evidence and not be able to deal with

it in any way-at all. It may be that he does not

have to reach a final conclusion, but one would

think that if this were the only issue in the case

he could hardly hear it, not make any conclusions,

make the comment that he has that he is unable to

reach a conclusion on it, and then still proceed to
an order.	We say that if the order was valid,

except for consideration of this issue, and this

issue is said to be material and important, then we

say you cannot go further without doing that.	It
is like half a judgment. It is half a
consideration of the relevant issues. Having

determined that the important issues were raised,

we say that section 64 says that he must reach a

conclusion of some extent and that is that there

must be at least, if Your Honours are minded, an

interim conclusion, or a conclusion that it has

been looked at and he is satisfied to the extent

that it can wait, or some other conclusion.	But he
cannot, as we say, he has here - - -

8   2/7/93

DAWSON J: But he may have insufficient evidence to do so,

but that does not mean that he has failed to take

the matters into account.

MR D:  We say, then, that the application would not succeed,

and that, therefore, no order should be made and

that that would have resulted in the opposite

occurring than the order that did. So we say that

he might say, "Look, I am not satisfied on this

point, I will have to hear it for a couple of hours

tomorrow, somebody will have to get some evidence

on that point", but it is not a situation where he

can proceed to order at that time.	That is the
submission.

DAWSON J:	I think we take the point.
MR D:	The other aspect in terms of the investigation that

had been done by His Honour is simply that we say

on a proper and close reading of this judgment, he

effectively adopts and extends Cilento v Cilento.

If I take Your Honours to page 3 of the application

book. There he discusses Cilento and Cilento and

also his analysis of that contained in Griffiths

and Griffiths, and he stresses the importance of

the maintenance of any clearly established status

quo. And he says, in this case, that there was no

status quo, because it was very soon after

separation, and therefore he proceeds to analyze

this situation in detail. In doing that, on the

bottom of page 3, he says that:

One of the husband's proposals: namely that the wife and children return -

et cetera, is an attempt to offer the nearest thing

possible to the restoration of the status quo.

He then proceeds, and I take Your Honours to the nub of it on page 5: That leads me to what I regard as the

issue which is central to my determination of

these current proceedings for interim custody,

namely, which, if either, of the parties has

been the primary care-giver to the children

during their relatively short lives.

And we say that that is simply looking for a

substitute status quo, effectively applying the

presumption, subject to danger, that Cilento has

sought to apply, after separation -

pre-separation - and what he looks at is to promote

stability above welfare, and that is the

fundamental flaw in the approach, we would submit,

of the judge in his analysis of the detail of this

case.

2/7/93

So there are two flaws: there is the flaw

firstly that section 64(l)(c) is mandatory and he

should have reached, at least, an interim

conclusion; and, next, in the detailed analysis of
the facts of this matter, which is careful and
considered, he should not have had the over stress

on stability at the expense of what 64(l)(a) says,

that the welfare of the child is paramount; that

there should be a proper approach of considering'

who is the best future custodian, not who has been

custodian in the past. It should not be an

historical inquiry; it should be a prediction of

what he considers is best for the future.	So the
two flaws that we say, are those.

Your Honours, the second ground of appeal

involves a short point, that simply the court has

power to ask for various reports and collect

various reports, on its own volition. Obviously, unless you see it under the duty that I submit it

is under in the first point, that will not be

taken. And, additionally, as the Full Court said,

it would be a special case that the court would

extend to that in any event. But we say that the

obvious practical solution to this is the court

will simply say, I have not evidence on this and

one of the other parties will put it forward. But

we say this is a slightly, as has been recognized

by the court, different situation. It is not
primarily a brawl between two parties; it is the

promotion of the welfare of the children, and if

the court was short of evidence on any particular

aspect in the ultimate, then they would have the

power and the duty to inquire into it.

That is a secondary point to the main point,

which is a flaw in the way that the judge and,

particularly in terms of 35A, it is a practice of

the court that is followed, and the judge clearly

The Full Court has said he has done it and we can sees himself following a practice of the court.	find no error in it. Particularly Justice Purvis,
in his short judgment says, "I can find no error in
that approach". That, in essence, what is
presented is a practice of the court that has been
sensibly and closely followed but which, in my submission, is wrong in the sense of being in
breach of the legislation. And then, again, to
take a wrong view as to the detailed appreciation
of the facts. They are my submissions.

DAWSON J:  Thank you. The Court need not trouble you,

Mr Sofronoff.

In this matter, strictly speaking, the

applicant is applying for leave to appear in person
pursuant to Order 69A rule 11. However, in making

10   2/7/93

that application, the applicant has put the

arguments which he would wish to put on an

application for special leave to appeal and the

Court is able to deal with that application.

This is an application for special leave to

appeal from an interlocutory decision. The Court

has, on other occasions, indicated its reluctance

to grant special leave to appeal in relation to an

interlocutory judgment. Apart from this, it is not
in this case persuaded that the Family Court was in

error in reaching the conclusion which it did nor

does it think that any question of general

importance emerges which would justify the granting

of special leave. Accordingly, special leave is

refused.

MR SOFRONOFF:  Your Honour, I ask for costs.

DAWSON J: Costs are not ordinarily awarded in this

jurisdiction, are they?

MR SOFRONOFF: In the Family Court.

DAWSON J: Yes.

MR SOFRONOFF:  Your Honours, may I hand up the relevant

section of the Family Law Act, or do Your Honours

have copies of the Act?

DAWSON J:  We have the Act.

MR SOFRONOFF: It is section 117(2A). Subsection (1)

provides, of course, that in general costs are not ordered. Subsection (2A) provides for the matters

that can be taken into account if an application

such as this is made.

TOOHEY J: But just a moment, Mr Sofronoff; what is "the

court" referred to in subsection (2A)?

MR SOFRONOFF: It is the Family Court. This Court, in our

submission, has jurisdiction to order costs.	I
understood - - -

DAWSON J: There is no doubt about that, but it - -

MR SOFRONOFF:  - - - Your Honour was asking whether it would

be appropriate to do so or whether the - - -

TOOHEY J:  You are using (2A) as a sort of guide to on what

basis costs might be awarded here.

MR SOFRONOFF: Yes.

TOOHEY J:  I see.

11   2/7/93

MR SOFRONOFF:  The two parts of subsection (2A) to which we

would refer the Court are subparagraph (c) and (e).

The submission we wish to make is that this

application was really quite hopeless. The

applicant was represented by senior counsel before

the primary judge. He brought an appeal to the

Full Court of the Family Court. That was

unsuccessful; all three judges agreed in the

conclusion. The grounds for appeal that were

sought to be advanced in this Court are the same grounds of appeal that were rejected by the Full Court and, in all the circumstances, the respondent

has been put to expense in resisting what was an application that should never have been brought.

DAWSON J: Yes, thank you, Mr Sofronoff. Mr D.

MR D:  Your Honour, there are two points that I would make

in reply: one is that the ordinary rule in the

Family Court should apply here; the next is that

there has been an order in the Family Court for the

payment of moneys towards the wife for her costs -

that was made on 10 December - and as I understand

it, but I have not got the material here, the

appeal, having been lodged by that time, was

contemplated by the court at the time I made that

order; that order having been made and paid, the

wife would recover twice.

DAWSON J:  Is that what you want to say, Mr D.

MR D: That is all.

DAWSON J: Mr Sofronoff, what do you say about that last

matter?

MR SOFRONOFF:  I am informed, Your Honour, that the money

that was ordered to be paid that the applicant

refers to was to cover the costs of the custody and

property part of the proceedings, that is, the

ultimate proceedings, and the judge that ordered

the payment of that money did not have an

application like this in contemplation. It is a

depletion of both.

DAWSON J: But presumably further orders could be made if

applications were made for further orders.

MR SOFRONOFF:  And all that money has been spent on -

DAWSON J: Yes, but further application could be made to the

Family Court, if necessary, could it not?

MR SOFRONOFF: That is so, Your Honour.

DAWSON J:  It would order for moneys to be paid for the

purpose of meeting costs.

12   2/7/93

MR SOFRONOFF:  Yes, but it would not cover these costs,

Your Honour.

DAWSON J: No, that is right. There will be no order as to

costs, Mr Sofronoff.

MR SOFRONOFF:  As the Court pleases.

AT 12.59 PM THE MATTER WAS ADJOURNED SINE DIE

13 2/7/93