Jordan v Jordan S107/2000

[2000] HCATrans 775

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S107 of 2000

B e t w e e n -

DEAN BERNARD JORDAN

Applicant

and

VICKI CAROLINE JORDAN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 12.56 PM

Copyright in the High Court of Australia

MR P. Le G. BRERETON, SC:   May it please the Court, I appear for the applicant.  (instructed by Barkus Edwards Doolan)

MR M.D. BROUN, QC:   I appear for the respondent.  (instructed by John R Quinn & Co)

GAUDRON J:   Yes, Mr Brereton.

MR BRERETON:   May it please the Court, there is no field of judicial decision making which tears more powerfully at the emotion of the parties to proceedings than that which involves the allocation of responsibility between separated parents for their children.  Because it is potentially so emotional a field, there is no field in which there is more potential for decisions not properly and adequately reasoned to produce an enduring sense and a rankling sense of injustice in the mind of the unsuccessful party.

In such cases, the beneficial facility of appeal to an intermediate Court of Appeal by way of rehearing of the facts and the law is all the more important than, perhaps, in an ordinary case first, because it enables the unsuccessful litigant to have a complete review by three fresh minds of a decision which might be perceived as being the whim of one.  But, perhaps more importantly, because if that appeal fails, it nonetheless enables the correctness of the first instance decision to be demonstrated by close analytical reasoning by the Full Court, showing that it has examined the facts and reached its own conclusion on them, no doubt affording due deference to the advantages of the trial judge but, nonetheless, examining the evidence upon which the trial judge acted.

That beneficial facility is rendered practically nugatory if the intermediate Court of Appeal does not condescend to re‑examine the facts, as I say, paying due deference where appropriate, and if it does not demonstrate in its reasons that it has done so and show why the trial judge did not err.

GAUDRON J:   But, I must say, Mr Brereton, I do not quite understand that submission.  Although it is an appeal by way of rehearing, there has to be some basis for suggesting that the findings were not open, does there not, before you get to a further examination of the facts?

KIRBY J:   Or erroneous.

MR BRERETON:   Or erroneous.

GAUDRON J:   Yes, erroneous.

MR BRERETON:   Yes, quite so.  But once one gets to that basis, in my submission, it calls for the Full Court not simply to restate the trial judge’s findings and to say they were open on the evidence, the Full Court must, at least, descend to show that it has looked at the evidence to see that they were open and show how they were…