Flanagan v Handcock S6/2001
[2001] HCATrans 588
•20 November 2001
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney Nos S5 and S6 of 2001
B e t w e e n -
JOHN EDWARD FLANAGAN
Applicant
and
NARELLE IRENE HANDCOCK
Respondent
Applications for special leave to appeal
GUMMOW J
KIRBY J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON TUESDAY, 20 NOVEMBER 2001, AT 10.55 AM
Copyright in the High Court of Australia
GUMMOW J: Call No 5 2001 outside the Court.
MS N.I. HANDCOCK appeared in person. I am Ms Handcock. I am the H.
GUMMOW J: Yes, officer, any response to that?
COURT OFFICER: No, your Honour.
GUMMOW J: You are Ms Handcock?
MS HANDCOCK: Yes, I am.
GUMMOW J: You are the respondent to this motion.
MS HANDCOCK: That is right, I am, yes.
GUMMOW J: Yes. It does not seem as if there is any appearance.
MS HANDCOCK: He was here earlier.
KIRBY J: Have you seen Mr Flanagan in the ‑ ‑ ‑
MS HANDCOCK: Yes, I have.
KIRBY J: So he is in the precincts of the Court?
MS HANDCOCK: Yes.
GUMMOW J: Yes.
KIRBY J: Perhaps, if you would call him by his name.
GUMMOW J: He may be waiting in the other Court, too.
MS HANDCOCK: He was in this Court earlier.
GUMMOW J: He was.
MS HANDCOCK: Yes.
GUMMOW J: Yes.
KIRBY J: Do you have any objection to being named by your name, as distinct from by an initial?
MS HANDCOCK: No, I do not, your Honour.
GUMMOW J: No, we thought not. We will take a short adjournment while efforts are made to try and locate Mr Flanagan.
AT 10.57 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.58 AM:
GUMMOW J: Call No 5 again.
MR J.E. FLANAGAN appeared in person.
GUMMOW J: Now, sir, do you have any objection to your surname being used on the transcript?
MR FLANAGAN: No, your Honour.
GUMMOW J: Thank you. Yes, Mr Flanagan.
MR FLANAGAN: Your Honour, I would like to present the oral argument in the applications for special leave, S5 and S6 of 2001. I refer to page 95 of the book of authorities in S5 of 2001.
GUMMOW J: This is the decision of Justice Lawrie, is it?
MR FLANAGAN: No, that is the decision of Justice O’Ryan, your Honour.
GUMMOW J: Wait a minute, I am not sure I have got the numbers right. Is this S5 or S6?
MR FLANAGAN: S5, your Honour.
GUMMOW J: Yes, thank you. Yes.
MR FLANAGAN: It is the larger book of the two, if that helps.
GUMMOW J: Yes, page 49.
MR FLANAGAN: No, page 95, your Honour, I am referring to.
GUMMOW J: Yes, but page 49 indicates that that was an application to the Full Court for leave to appeal against an order made by Justice O’Ryan on 7 March 2000.
MR FLANAGAN: That is correct, your Honour, yes.
GUMMOW J: Yes, 94?
MR FLANAGAN: Yes, in the book of authorities, your Honour. It is the larger of the two books.
GUMMOW J: Yes, we have it. Yes, thank you.
MR FLANAGAN: I refer you to page 95 of that book, your Honour.
GUMMOW J: Yes.
MR FLANAGAN: According to the opening sentence of the article by Rae Kaspiew ‑ ‑ ‑
GUMMOW J: Perhaps before we get too far into it, are you aware, Mr Flanagan, that we allow no more than 20 minutes for oral submissions?
MR FLANAGAN: Yes, your Honour.
GUMMOW J: We usually have lights but we do not have them today, so, I will give you an indication, if need be.
MR FLANAGAN: Thank you, your Honour. The opening sentence in that article says:
The Family Law Reform Act 1995 (Cth) was heralded as introducing a new era in parental responsibility.
I would like to refer you to the previous page which is page 94 and this is a copy of page 3303 of the Hansard report of the proceedings in the House of Representatives debate that was held on 21 November 1995. Page 94, your Honour.
GUMMOW J: Yes.
MR FLANAGAN: Mr Peter Duncan, the then Parliamentary Secretary to the Attorney‑General, when moving the final amendments to the Family law Reform Bill 1994, stated that:
As amended, the principles therefore establish a presumption of shared responsibility by parents for caring for their children. This sharing of responsibility can only be altered by agreement between the parents or by the court if it is not in the best interests of the child.
Mr Duncan, in the same section, then refers to:
a rebuttable presumption of shared parenting –
A rebuttable presumption of shared parenting simply means that the parenting of children should be shared unless it would be in the best interests of the child not to do so. As a result of the passing of the Family Law Reform Bill 1994 by Parliament a new Part VII, “Children” was added to the Family Law Act 1975. A key section of Part VII is section 60B. That is called, “Object of part and principles underlying it”.
A copy of the first two pages of this Part VII, including section 60B, is provided at page 52 of the book of authorities in S5 of 2001. Section 60B(2) of the Family Law Act 1975 states, and the wording is in ‑ ‑ ‑
GUMMOW J: Now, do not we have to get to this, though, Mr Flanagan: you would have us review the correctness of Cowling v Cowling, would you not?
MR FLANAGAN: The basis of Cowling v Cowling, as the Full Court said in S5, if I can take you to page 55 of the application book - - -
GUMMOW J: Yes, that is right.
MR FLANAGAN: The Full Court said ‑ ‑ ‑
GUMMOW J: Paragraph 21.
MR FLANAGAN: Paragraph 21:
One of his complaints would appear to be that that proposal was not in fact given a trial, notwithstanding the provisions of s.60B of the Family Law Act.
That is one of my main issues, your Honour. The Family Court do not take into account section 60B of the Family Law Act when they come to their decisions. The wording of section 60B, if I can go through it – it says:
The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:
(a) ‑ ‑ ‑
GUMMOW J: Just remind me, again, where the text is of section 60B.
MR FLANAGAN: It is on page 52 of the book of authorities in S5 of 2001.
GUMMOW J: Yes, I have it, thank you. Yes.
MR FLANAGAN: Subsection (a) says:
children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have neve never lived together; and
(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children.
The wording of this section 60B was based on the working contained in the United States Convention on the Rights of the Child.
KIRBY J: United Nations.
MR FLANAGAN: I am sorry, United Nations. Thank you, your Honour. In particular, Articles 2.1, 3.1, 3.2, 7.1, 9.3 and 18.1. For example, Article 7.1 states that:
The child . . . have the right . . . as far as possible . . . to know and be cared for by his or her parents.
KIRBY J: What is the provision in 60B that is inconsistent with Cowling v Cowling?
MR FLANAGAN: The problem with Cowling v Cowling is that it starts off with the wrong premise. It says that the status quo was important, your Honour, in paragraphs 21 to 25 of the ‑ ‑ ‑
KIRBY J: No, it says that the disturbing of the arrangements for a child can be disruptive for the child and that is therefore a matter to be taken into consideration.
MR FLANAGAN: Yes, your Honour.
KIRBY J: It does not knock out of the ring the presumption which is expressed in section 60B which was a very important change in Family Law. It simply says that you have to take into account that every time you change the arrangements it can be disruptive to a child.
MR FLANAGAN: Yes, your Honour.
KIRBY J: Now, surely you do not dispute that that is a factor?
MR FLANAGAN: I do, your Honour. The fact is that Cowling v Cowling starts off with a presumption that the status quo is important and I refer you to paragraphs 21 and 22 of the Cowling v Cowling decision, your Honour. Paragraph 21 says ‑ ‑ ‑
KIRBY J: Where do we find that?
MR FLANAGAN: Paragraphs 20 and 21 are found on page 11 of the book of authorities in S5 of 2001.
KIRBY J: Yes, thank you. Now, it is 20 and 22, is it?
MR FLANAGAN: It is 21 and 22, your Honour. Paragraph 21 says:
those interests will normally best be met by ensuring stability in the life of the child pending a full hearing of all relevant issues.
GUMMOW J: That sounds right enough, does it not?
MR FLANAGAN: No, your Honour, that is implying that the status quo should remain as it is.
KIRBY J: Not necessarily. It merely says that you have to comply with the Act of the Australian Parliament but in doing so you have to take into account the disruption of a child’s living arrangements, and visiting arrangements can be very disruptive to a child who does not understand all the law and what is going on between the parents.
MR FLANAGAN: Yes, your Honour, but I am putting an application for interim parenting orders which I am quite entitled to do under the Family Court Case Management Guidelines and it is normal practice for most parents who want to have shared parenting of their children is to put in two applications, the application for interim parenting and the application for final parenting. Now, I have put in both applications as standard and when I went to the court before Justice O’Ryan I felt as though I was going through a process that I could have done so on the ground floor of the Family Court with the court officers. He said, “I make this decision in accordance with Cowling v Cowling.” Cowling v Cowling says that if it is an interim order and unless there are exceptional circumstances the application will be dismissed.
Now, I think that is contrary to the principles of Gronow v Gronow, for example, which says there should not be any presumptions in any hearing.
KIRBY J: Since then there was the final order made by Justice Lawrie, is there not, and then it went to the Full Court of the Family Court.
MR FLANAGAN: That is correct, your Honour.
KIRBY J: So here we are ‑ ‑ ‑
MR FLANAGAN: But before Lawrie I said that – I had asked for trial on the basis of the interim orders. Now, that was in at least four locations, your Honour. If I can refer you to the various locations ‑ ‑ ‑
GUMMOW J: Where can we find Justice Lawrie’s order?
MR FLANAGAN: Justice Lawrie’s order is ‑ ‑ ‑
GUMMOW J: It is in S6, is it not?
MR FLANAGAN: It is S6, your Honour, yes. Justice Lawrie dismissed my application for a stay of proceedings, order 1.
GUMMOW J: That is right.
KIRBY J: It is 74, I think, of S6.
GUMMOW J: So what has happened to your application for final order?
MR FLANAGAN: That was varied slightly. What happens with that is that that is subject to this current proceedings because ‑ ‑ ‑
KIRBY J: That went to a Full Court.
MR FLANAGAN: No, it did not, actually. What it is it is – I only contested order 1 of the decision of Justice Lawrie. I did not contest the other orders. So, if this application is dismissed it will then revert to the other orders of Justice Lawrie.
KIRBY J: Yes. Just tell me, in general terms, how the other orders of Justice Lawrie differ from what you say would have been the orders made had your version of the Family Law Act been applied?
MR FLANAGAN: I asked for shared parenting, your Honour. Shared parenting is the modern word for joint custody.
KIRBY J: Is this a symbolic order that you were seeking from the judge and he refused it?
MR FLANAGAN: Yes, your Honour.
KIRBY J: Justice Lawrie refused it.
MR FLANAGAN: Justice Lawrie refused and Justice O’Ryan refused it.
KIRBY J: Yes.
MR FLANAGAN: But, I asked for shared parenting orders which is a 50:50 share of the responsibilities of looking after the children.
KIRBY J: Does it have any practical consequences for the issues of custody, what used to be called custody and access?
MR FLANAGAN: Yes, your Honour. The new word for custody – it goes back a fair way. It used to be called care and control and ‑ ‑ ‑
GUMMOW J: This notion of parenting came in with the Act you have referred us to, did it?
MR FLANAGAN: It came back with the Family Law Reform Act 1995, the notion of shared parenting as mentioned by Mr Peter Duncan. Now, shared parenting is practised in 30 States of the United States. There is legislation of joint custody. In Canada there is legislation in all the provinces of Canada for joint custody. In the United Kingdom earlier this year there was a decision by the English Appeal Court which overturned the previous decisions regarding what they call shared residence orders. I have got a copy of the decisions here if you would like to have a look at them but as of January of this year Dame Elizabeth Sloss‑Butler ‑ ‑ ‑
GUMMOW J: Butler‑Sloss.
KIRBY J: The other way around. It is a hard to remember, I will admit, yes.
MR FLANAGAN: Butler‑Sloss, sorry. Correction, Butler‑Sloss. She is the President of the Appeal Court of England.
KIRBY J: Yes, we know her well.
MR FLANAGAN: She has changed the thinking over in England so that what her words were that, “The Children Act of 1989 did not impose a general constraint of exceptional circumstances before a shared residence order can be made”. That was in the decision of In the Matter of D, Children’s Shared Residence Orders 2001. That is a change from their previous way of thinking that felt that shared residence orders were not appropriate. Now, this is a shift that has developed overseas but our Family Court has not taken up that position, they have still stuck to the position, the way it was before the Family Law Reform Act 1995.
KIRBY J: But do they not they have a bit of a quandary because the Act seems to have it a bit both ways?
MR FLANAGAN: It does, your Honour, yes.
KIRBY J: Section 65E says you have got to consider “the best interests of the child”. Then 66 – whatever it is – says that you have a presumption of a joint ‑ ‑ ‑
MR FLANAGAN: 60B, yes.
KIRBY J: So, the problem is reconciling those two and Cowling is the endeavour by the Family Court to say, “Well, we have regard to the disruptive effect because that is what 65E tells us to do, to look to “the best interests of the child”.
MR FLANAGAN: Yes, that is correct, your Honour.
KIRBY J: So, reconciling the two is not all that easy.
MR FLANAGAN: That is right, your Honour, it is not.
KIRBY J: But what is wrong with the way they have endeavoured to do that in Cowling?
MR FLANAGAN: Well, what they have done is in – in general, but also in Cowling v Cowling, the Family Court start with the situation that one parent, the resident parent, gets contact or residence for the majority of the fortnight which might be 12 days a fortnight and the other parent gets contact, or residence, as they call it, but it is not really residence, every fortnight. Now, what happens is that as a result one parent does not get involved in the daily decision making. It does not get to be involved in the care and control of the child. So, the child gets to grow up living under the care and control of one parent. Now, that is not what 60B says.
KIRBY J: You say that you have to read 65E with 60B and that whereas in the past you would give a very great weight to not disturbing the residency arrangements of the child because of 65E now there must be a new ingredient put into the equation which is the command of Parliament that you have to start from a normal proposition of joint parenting.
MR FLANAGAN: That is correct, your Honour, yes.
KIRBY J: And that that has shifted the gears somewhat.
MR FLANAGAN: It has, your Honour. It has shifted the starting position from a position of once a fortnight to a shared parenting arrangement which is a 50:50 basis and then if it is not in “the best interests of the child” then it should be moved.
KIRBY J: You can cut it back but you go through a different process.
MR FLANAGAN: But the Family Court has not, they have stuck to the old position of once a fortnight which is - Justice Lawrie eluded to it in her judgment.
KIRBY J: Yes. Where is that?
MR FLANAGAN: If you go to application book page 57, line 25.
KIRBY J: Is this in S6?
MR FLANAGAN: In S6, your Honour.
KIRBY J: Page 57?
MR FLANAGAN: Page 57, line 25.
KIRBY J: Yes.
MR FLANAGAN: At page 25 of this decision Justice Lawrie said in her judgment of the court:
They -
meaning the existing court orders which I had -
are close to being what you might call the “normal orders”, once the children start school with alternate weekends and so forth.
The Family Court accepts that as being normal, every fortnight, once a fortnight, that I get access or people in my position get access. Now, that is not, I believe, what 60B says and that is what I would like the Court to interpret.
KIRBY J: Would you remind me where 60B is, again?
MR FLANAGAN: Section 60B, your Honour is ‑ ‑ ‑
KIRBY J: In the application book.
MR FLANAGAN: It appears in two locations. It is in S5 on page 52 and S6 on page 33.
GUMMOW J: They are very wide words.
MR FLANAGAN: Yes, your Honour, they are.
GUMMOW J: And, in a way, you do not get very far with them without getting more specific words from somewhere else, I think, so the idea is you have to read them with more particular provisions found elsewhere in the Act and Cowling is an attempt to reconcile it, as it were.
MR FLANAGAN: Yes, but Cowling v Cowling itself has been criticised for taking the presumption that the existing situation should remain the same.
KIRBY J: Where is it being criticised, apart from by you?
MR FLANAGAN: Apart from by me, it has been criticised in Tate v Tate. It is in the ‑ ‑ ‑
GUMMOW J: Now, you are running over time but we will allow you another five minutes.
KIRBY J: Just.
MR FLANAGAN: Yes. It has been criticised by Chief Justice Watson in Tate v Tate, your Honour, but that was also ‑ ‑ ‑
GUMMOW J: That is in the past, is it not?
MR FLANAGAN: That is in the past, your Honour, and ‑ ‑ ‑
GUMMOW J: That is a pre‑1995 Act, is it not?
MR FLANAGAN: No, your Honour.
GUMMOW J: You had better take us to Tate.
KIRBY J: I think Chief Justice Watson retired many years ago. Are you sure you have got the right name? Is it Chief Justice Nicholson.
MR FLANAGAN: No, it is – but regards to that, your Honour, is that Cowling v Cowling ‑ ‑ ‑
KIRBY J: Have any judges of the Family Court said that they think Cowling should be reviewed?
GUMMOW J: Or complained about difficulty in applying it?
MR FLANAGAN: Yes, your Honour, they have.
GUMMOW J: Have they?
MR FLANAGAN: Yes, your Honour. If you would just bear with me for a sec? I am sorry, it was Justice Rowlands, I am sorry, your Honour.
KIRBY J: Where do we find this, in the materials book?
MR FLANAGAN: In Tate v Tate.
KIRBY J: Is that in the book of materials?
MR FLANAGAN: It is on page 58 of the application book in S5 of 2001, your Honour.
GUMMOW J: 58?
MR FLANAGAN: Page 58 of the application book in S5 of 2001. It is the smaller of the two books.
GUMMOW J: I do not think that is right.
KIRBY J: Justice Rowlands, down he bottom at paragraph 27.
MR FLANAGAN: Yes. By way of argument if I could mention to you, in my application to the Full Court of Ellis, Coleman and Joske, I mentioned to them that the decision had been criticised by Justice Rowlands in Tate v Tate and also noted to the Full Court that ‑ ‑ ‑
KIRBY J: Yes, but you have not given us Tate v Tate, you see.
MR FLANAGAN: No, I realise that, your Honour. Yes, I realise that, yes.
GUMMOW J: Any anyhow, what did the Full Court say about? That was your submission. What did they say about it?
MR FLANAGAN: The Full Court said that – as I eluded to them:
Nicholson CJ, with whom Coleman and Martin JJ –
as it says on page 58, says:
that in MB v AR –
that criticism was:
over‑ruled by the Full Court and has no validity or weight.”
GUMMOW J: Well, there we are.
MR FLANAGAN: So, in a sense, there has been no criticism of Cowling v Cowling other than that one criticism by Justice Rowlands in Tate v Tate and that has been since been overruled by the Full Court.
KIRBY J: Can I, just so that I will understand it, put to you what I understand to be your argument?
MR FLANAGAN: Yes, your Honour.
KIRBY J: Your argument is this, that in the past, for obvious reasons, there has been a starting point in these decisions that you do not disturb the settled arrangements of a child unless for very good reasons shown. Into
the equation comes the 1995 Act with two commands. First, that the best interest of the child is the overriding consideration which might reinforce the old rule but, second, an entirely new rule about joint parenting and you say that that requires a reconsideration of the old rule because if you start from the presumption that you leave children in the arrangements that they have been in then that is going to tend to favour the custodial parent whereas the whole point of the joint parenting was both symbolically and practically to cast the obligations jointly on both parents and that therefore the old tendency towards favouring the status quo has to be rethought, notwithstanding the provisions of section 66E and that that is the mistake that Cowling does not adequately address and that you want to argue in this Court, your attempt to have it reconsidered in the Full Family Court having failed?
MR FLANAGAN: Yes, your Honour.
KIRBY J: Is that your case?
MR FLANAGAN: That is correct, your Honour.
KIRBY J: Yes, all right, well, I think we understand it. We have got it from you now.
MR FLANAGAN: Okay.
GUMMOW J: Yes, thank you.
MR FLANAGAN: Thank you very much.
GUMMOW J: Yes, Ms Handcock.
KIRBY J: Can you help us on this point? It is a slightly technical question, but ‑ ‑ ‑
GUMMOW J: Would you like to come to middle?
MS HANDCOCK: I am sorry, your Honour, yes. Your Honours, the only thing I have to add in this is if I just draw your attention to the family report which is on pages 12 to 23 of Mr Flanagan’s application in S6.
GUMMOW J: S6.
MS HANDCOCK: S6, pages 12 to 23, and in particular the conclusion on page 23.
GUMMOW J: Just a minute.
MS HANDCOCK: Paragraphs 46 to 49.
KIRBY J: Just a moment.
GUMMOW J: So, you are saying, in effect, whatever might be the interesting legal questions, in a broad sense, in a particular sense, this is not an appropriate case to get into them because of what is said on page 23 as to the satisfactory situation of the children.
MS HANDCOCK: That is correct, your Honour.
KIRBY J: Could it be said that that will often be the case, and especially in the High Court, that we will be very loath to get into such matters because it is very disruptive to parents and children, especially children, but that if repeatedly the Family Court is applying an incorrect standard and not wholeheartedly given effect to Federal Parliament’s instructions that joint parenting is the prima facie rule that that is both hurtful, symbolically, to a lot of parents, but more importantly, is not addressing accurately, with legal accuracy, the question of the detailed orders that the Family Court makes in many, many cases where these issues arise?
MS HANDCOCK: Well, I think you have to look at the cases individually and the facts of the cases are looked at by the family report. That was after the application for interim orders was dismissed. You need to look at the facts of the case in each instance and these are the facts of the case and also in – I must draw your attention to the orders by Justice Lawrie on page 63 of Mr Flanagan’s application book in paragraph 51, line 35.
KIRBY J: Page 63?
MS HANDCOCK: Page 63, paragraph 51.
KIRBY J: In which volume?
MS HANDCOCK: S6.
GUMMOW J: Paragraph 51?
MS HANDCOCK: Yes, your Honour.
KIRBY J: Yes.
GUMMOW J: Yes, thank you.
MS HANDCOCK: That is really all I have to say, thank you.
GUMMOW J: Yes, that is very helpful. Thank you, Ms Handcock.
MS HANDCOCK: Thank you.
KIRBY J: What do you say, Mr Flanagan, in answer to that because these are very interesting, or potentially interesting legal questions but it is said that because of the family report which says that your children are bright, well cared for, well adjusted, evidently thriving in their current residential situation and because of Justice Lawrie’s finding that you are not really giving very much financial support and that the real financial support is being given by Ms Handcock who is in the work force, that we would not at the end of the day disturb the custodial arrangements and therefore we would not embark on the theoretical exercise just leading nowhere?
MR FLANAGAN: Yes, your Honour. Can I refer you to page 61 of the book of authorities in S6 of 2001 in paragraph 11.
KIRBY J: Yes.
GUMMOW J: S6?
MR FLANAGAN: S6, page 61.
GUMMOW J: Yes, 61.
MR FLANAGAN: The smaller of the two books, your Honour.
GUMMOW J: Yes, this is a summary of argument?
MR FLANAGAN: This is the summary of argument that I put before the Full Court of Ellis, Coleman and Joske.
GUMMOW J: Justices Ellis ‑ ‑ ‑
MR FLANAGAN: Justices Ellis, Coleman and Joske, your Honour.
GUMMOW J: Yes.
MR FLANAGAN: In paragraph 11 I said.
GUMMOW J: These were criticisms of Justice Lawrie, were they?
MR FLANAGAN: No, your Honour, it was actually substantiation and it probably answers Mrs Handcock’s statement:
It is also submitted that proceedings for interim orders would not be disadvantaged by the lack of the provision of a family report.
At paragraph 32 of the judgment of the court of her Honour Justice Lawrie, her Honour states that:
the counsellor has certainly thought that the relationship between the father and the children was an appropriate one which wouldn’t give any cause for concern.
Now, that appears on page 63 of the application book in S6. I am sorry, correction, paragraph 32. It is on page 56, your Honours.
GUMMOW J: Yes, 32.
MR FLANAGAN: Is that Justice Lawrie did not have any cause of concern by the family report. She did not think it was anything exceptional and in actual fact what happened was that before I went before Justice Lawrie I had court orders that said I would have access to the children from Saturday morning to Sunday afternoon.
GUMMOW J: We know that, yes.
MR FLANAGAN: Justice Lawrie increased it from Friday afternoon to Monday morning. She increased it by 50 per cent, the amount of contact I had. Now, if she saw any problem in the family report I am sure she would not have increased the amount of contact that I had.
KIRBY J: She was trying to do what the Act of Parliament tells her to do and that is to ‑ ‑ ‑
GUMMOW J: She was doing her best.
MR FLANAGAN: For sure, your Honour. For sure. For sure, but she was starting from, again, the problem with section 60B.
GUMMOW J: She was, yes, that is right.
MR FLANAGAN: She was starting from the “every fortnight” basis rather than starting from the 50:50 basis that I believe should be in shared parenting.
GUMMOW J: Yes. I think you have reached the end of your time.
MR FLANAGAN: Okay, thank you, your Honour.
GUMMOW J: We will take a short adjournment.
AT 11.31 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.35 AM:
GUMMOW J: The applicant seeks special leave to challenge two decisions of the Full Court of the Family Court in related proceedings respecting the parenting regime which applies to the children of the applicant and the respondent. The only ground of general importance which would attract the intervention of this Court in an appropriate case is the challenge to the correctness of Cowling v Cowling (1998) FLC 92‑801 and the reconciliation between section 60B and the other provisions of the Family Law Act.
In an appropriate case this Court may well wish to consider the correctness of Cowling v Cowling. However, having regard to the family report and the findings of Justice Lawrie which were before the Full Court, we are not satisfied that these applications provide an appropriate vehicle for any reconsideration of the correctness of Cowling. Accordingly, each application is refused.
Do you seek costs?
MS HANDCOCK: No, your Honour.
GUMMOW J: Each application is refused. The Court will now adjourn ‑ ‑ ‑
KIRBY J: Can I just say, before we adjourn, that I am grateful to both of the parties for the way in which they put their argument and assisted the Court in the matter. It is not always easy to appear in the High Court, but both of you put your main points very succinctly and helped the Court.
GUMMOW J: Yes, I think that is right. We will now adjourn to reconstitute.
AT 11.37 AM THE MATTERS WERE CONCLUDED
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