JRN & Anor v IEG

[1998] HCATrans 320

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B18 of 1998

B e t w e e n -

JRN and KEN

Applicants

and

IEG AND BLG

Respondents

Application for special leave to appeal

GAUDRON J
McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 9.30 AM

Copyright in the High Court of Australia

MR P.A. KEANE, QC:   May it please the Court, I appear for the applicants in this matter.  (instructed by Hunt & Hunt)

MRS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR D.M. HAINES, for the respondents.  (instructed by Armour & Allen)

MR KEANE:   May it please the Court, the issue in respect of which special leave is sought concerns section 65E and section 93A(2) of the Family Law Act.  Your Honours have been given a supplementary index bundle containing these provisions, I understand.  Section 65E is the provision which is to the effect that a court in making a parenting order is to “regard the best interests of the child as the paramount consideration”.  Section 93A(2) is the provision which empowers the Full Court of the Family Court, on appeal, to admit new evidence.

GAUDRON J:   What is your submission?

MR KEANE:   Our submission is that the power conferred on the Full Court of the Family Court to admit further evidence on appeal is not subject to the constraints in Wollongong Shire Council v Cowan.

GAUDRON J:   Yes.  Where does that take you?

MR KEANE:   If it be correct to say, as we would, that the question is not whether the evidence is fresh, that is to say whether it could have been obtained by due diligence, but rather whether it is credible and cogent and could reasonably lead to a different result, or to create a real doubt as to whether the interests of the child has been served, then we would submit that the Full Court has erred in refusing to accept it.

McHUGH J:   But did the Full Court purport to apply Cowan’s Case?

MR KEANE:   In our respectful submission, it certainly applied the first limb, deciding the admissibility of the fresh evidence against us, simply and squarely on the footing that the evidence could, with diligence, have been adduced.

McHUGH J:   As I read their judgment it was a factor that they took into account in the exercise of their discretion.  What is the matter with that?

MR KEANE:   Your Honour, they rejected a suggestion, squarely rejected a suggestion, that the evidence was not credible or relevant.  They did that at page 183 in the second and third lines.  The arguments which, in the third line, they held to be well founded, set out on the preceding page.  If your Honours look at the preceding page, 182, commencing at line 5 with the reference to Abdo and Abdo, your Honours will see that the principal consideration which they addressed, referring to Abdo and Abdo - a case about property, we might say - was concerned with “the policy of the law as to finality” and “whether the evidence could have been obtained with the exercise of reasonable diligence”.  If your Honours look at the bottom of the page your Honours will see that it is concerned with the absence of objection to the evidence which was led and, over the page, their Honours accept its credibility and relevance ‑ ‑ ‑

McHUGH J:   I appreciate that, but the point I was putting to you why Cowan does not seem to me to be applied is that at 182, the second bullet after line 10, Ms Powell’s submissions were that:

Other considerations are whether the evidence could have been obtained -

et cetera, et cetera.  But under Wollongong v Cowan it is a fixed rule.  If you cannot satisfy the limb about reasonable diligence and so on, you are out of court.

CALLINAN J:   And, Mr Keane, at page 184, beginning really at the previous page, their Honours really make it clear, I would have thought, that they have exercised a discretion, not in any way trammelled by Wollongong.

MR KEANE:   Your Honour, they have exercised a discretion explicitly by reference to the consideration that the evidence was not fresh in the Wollongong sense.  They have not adverted at all to the consideration that these proceedings are not adversarial, in the sense that the interests of the child not a party is involved, much less that the interests of the child are paramount.  In our respectful submission, a proper consideration of the exercise of the discretion involves reference to that consideration as the paramount consideration.

GAUDRON J:   Does not the paramount consideration speak of the final order, not of the procedures to be adopted?

MR KEANE:   It does, your Honour, but our respectful submission would be that the procedures of the court, and the procedures referred to in the Act, must serve the substantive policies of the Act, not thwart them.  At least they must be subordinate to them.

GAUDRON J:   There is no suggestion that it thwarted them in this case.

MR KEANE:   Your Honour, perhaps that is a bit of a flourish.  But certainly the proposition that the procedural provisions of the Act must serve that paramount imperative, in our respectful submission, without the flourish, is a correct submission.

We should draw your Honours’ attention to the point at - two points:  firstly, the bottom of page 183, their Honours in the last full paragraph on the page seem to recognise that:

the admission of her evidence would itself have required a new trial -

That does seem to suggest, with respect, that their Honours accepted that it was so opposed to the evidence on which his Honour acted that, if accepted, it would lead to a different result.  And at page 189, commencing at line 8:

The fact is that in the absence of the evidence of Ms Hanafin, there was noting to suggest that the available evidence was in any way inadequate or misleading. 

Of course, in a negative sort of way, that is recognising, in our respectful submission, the potency of the evidence of Ms Hanafin which did suggest that the evidence on which the court acted was ‑ ‑ ‑

GAUDRON J:   It might suggest it, but there is nothing to say that it goes further and indicates that it is.

McHUGH J:   This is a specialist court, the members of which deal with cases concerning custody, if not every day, very regularly, and it is impossible to think that they did not take into consideration 65E, particularly when you see at 183, line 5, their Honours say:

While it is true that proceedings involving the welfare of a child are not strictly adversarial -

So their Honours have firmly in mind that these are not strictly adversarial proceedings, because they concern the welfare of a child.  Exercises of discretion are not to be set aside by nitpicking, going through line by line and saying they did not say these words, or they did not say this word; one has to look at the substance of it.  And surely, when one looks at the substance, this court thought it was exercising the discretion concerned with the justice of the case.

MR KEANE:   With respect, your Honour, if your Honour reads on your Honour will see that at that page at line 12 their Honours’ reasoning to the rejection of the evidence is based entirely on the proposition, at line 16:

The business of the Court would from a practical point of view become impossible -

Now, it seems to us, with respect, that the determination has been entirely by reference to the low principle, if we can call it that, with respect; no doubt important, but nevertheless the low principle, the practical business of the court, as opposed to the high principle, being the imperative that the paramount interests of the child should be served.

McHUGH J:   Surely you would not maintain the proposition that even in proceedings concerning the custody of a child, that in some circumstances the business of the court, from a practical point of view, must be taken into account.  People just cannot use the courts for as long as they wish and as long an they can think of question to answer, simply because they say “This goes to the best interests of the child”.

MR KEANE:   Your Honour, no doubt a decision has to be made about whether the best interests of the child have been served.  That is what the courts have to do.  The courts will not be put around and mucked about in that respect.  But a decision has to be made about it and, in our respectful submission, has to be made by reference to a test of whether the interests of the child have been served, as to whether there is a real doubt about it or whether there is sufficiently credible evidence to suggest a reasonable likelihood of a different result.

Your Honours, that lower threshold is the test that is applied in criminal cases, in criminal cases where the relevant statutes do not contain a mandate to the court to ensure that the best interests of the accused are served.

CALLINAN J:   Mr Keane, there were five experts, I think, called at the trial, were there not?

MR KEANE:   There were, your Honour.  His Honour the trial judge acted on the evidence of two, Ms Midford and Dr Rickarby.  His Honour acted explicitly on their evidence in order to change the settled situation that had applied for 12 months and he did so in the passage that their Honours in the Full Court set out, commencing at page 191, about line 23, where his Honour says:

“The Court needs to determine, therefore, if there are any long term advantages in placing E with her biological mother and then consider whether those advantages outweigh the identified problems associated with interfering with E’s current arrangements.

In my view, there are a number of significant potential advantages for E in a placement with the Gs.  Primarily, the advantages are those identified by Ms Midford and Dr Rickarby. 

If one goes over to 193, in the last paragraph of the cited text, commencing at about line 27:

In a negative sense, I accept the evidence of Ms Midford that a placement with the Gs is likely to offer a less traumatic solution for E in the longer term.  In a more positive vein, I accept the evidence of Ms Midford and Dr Rickarby to the effect that the optimum environment within which E can deal with the longer term issues is in the home of her biological mother.”

If I can come back to your Honour Justice Callinan’s question now, having shown your Honour the importance of Midford and Rickarby, it is this, that in this case, in our respectful submission, his Honour the trial judge has acted on evidence which is that of experts - in both these cases of experts who have not interviewed either set of parents or the child - who have based their views on analogies drawn from adoption and fostering, in circumstances where Dr Rickarby has no experience of surrogacy relationships, Ms Midford has some, but small, as against the experience of Dr Hanafin who has 15 years experience of work in the area; to extrapolate from the literature about fostering and adoption propositions about the welfare of the child in adolescence which justify disturbing, indeed destroying, the settled arrangement for the first 12 months of the child’s life, in circumstances where this arrangement was the arrangement which four adults intended, in circumstances where no one has anything to say adverse to the care and love and nurture that the child is receiving where she is, on the basis of an academic speculation about the future.

In our respectful submission in circumstances where there is reliance on that kind of speculation, based not on assessment of the families as families, but based on a speculation, then evidence that suggests that that speculation is itself flawed in terms of the analogies that are being pursued is cogent evidence and is evidence that is apt to suggest that there is a real likelihood that the interests of the child have not been served.

Might we say, with respect - and we say this with respect because all your Honours sat on the case - that this Court thought the issue sufficiently important to bring up in CJ v VJ, a case which this Court heard on 20 May this year, where this point was brought up at the instance, as it were, of the other side.  That point is still reserved.  In our respectful submission, there are three possibilities as to how that case might be resolved.  The first is that the contention which we seek to advance is accepted by the Court.  In that case, of course, a determination of the issue in this case would not be apt to clarify the law, because that would have been done, but in our respectful submission, it would be an affront to the due administration of justice in terms of the second limb of section 35A of the Judiciary Act if this case was not resolved according to the law as so declared because we were second in the queue.  And of course the resolution of this case would then be a relatively simple matter.

The second possibility is the issue is resolved against us in which event, if leave were granted today, it could be revoked and the Court would not be troubled further.

The third possibility is that the point of principle is not resolved in VJ v CJ because, for example, the Court holds that the evidence there was not apt to produce a different result by reference to the relevant test or ‑ ‑ ‑

GAUDRON J:   I am not too sure that you go so far as - this case can go so far as to say that that evidence is apt to produce a different result.

MR KEANE:   We have taken your Honours to ‑ ‑ ‑

GAUDRON J:   I mean, at the highest, it suggests that the analogy is not reasonable, but this is evidence from a lady who has a particular interest in promoting surrogacy, in a sense.

CALLINAN J:   In respect of a fairly recent discipline, necessarily.

GAUDRON J:   Yes.

MR KEANE:   Which it is.

GAUDRON J:   The experience you could have must be of a limited nature.  There would be few children reaching adolescence even yet.

MR KEANE:   Your Honour, her experience, of course, is American and she has 15 years of it which, relevantly, vastly outweighs the experience ‑ ‑ ‑

CALLINAN J:   I do not know whether you can see all the results in 15 years.  There would be a lot of people who have not reached adolescence yet who would have been no doubt born and the subject of her studies in the last 15 years.

MR KEANE:   And some who have.

GAUDRON J:   And it is not entirely clear that the arrangements that she is concerned with are on a par with those which the parties to this arrangement contemplated or even continue to contemplate.

MR KEANE:   No, and your Honour, those are matters that might be urged to temper the effect of her evidence.

GAUDRON J:   They also might be urged to suggest that it is not immediately obvious that the evidence is apt to produce a different result.

MR KEANE:   Your Honour, with respect, the circumstance that her experience has been gained in areas where surrogacy is not proscribed, a proscribed arrangement, in our respectful submission is a far cry from suggesting that her views, the points she makes - and they are referred to in our outline as to the difference between surrogacy and a fostering or an adoption arrangement - are not quite cogent on the face of them.  We have collected them in paragraph 25(a) of our outline.  On the face of those points they seem, with respect, to us to be quite cogent and not likely to be rejected as cogent on the simple footing that she has an interest in the promotion, to put it at its highest, of surrogacy as an institution.

In our respectful submission, the case is one where there has been reliance upon analogies with experience in fostering and adoption situations which the new evidence suggests, for very cogent reasons, cogent reasons going to the necessity or the desirability or the like that the child will be better off in her adolescence because she will be able to ask questions of her biological mother, in our respectful submission, are tenuous reasons indeed.  The prospect that the evidence of Dr Hanafin will displace that evidence, in our respectful submission, must be acknowledged to be a real one.

So that, for those reasons, in our respectful submission, this case would be a better vehicle for special leave than CJ v VJ were it to be the case that the issue at the base of each case were not to be resolved in CJ v VJ and that the third possibility that we adverted to, that the issue is not resolved in that case, would lead, in our respectful submission, to this case being regarded as a suitable vehicle for the resolution of what is a serious problem.

Your Honours, those are our submissions.

GAUDRON J:   We need not trouble you, Mrs Shaw.

Having regard to the evidence which the applicants sought to adduce in the Full Court and the nature of the ultimate issue presented for decision in the case, it cannot be said, in our view, that the Full Court erred in the exercise of its discretion by refusing to admit that evidence.  Nor can it be said that the trial judge was in error in acting on the evidence before him.  Accordingly, special leave is refused.

MRS SHAW:   If the Court pleases, I apply for costs.  I can indicate to the Court there was a stay application before his Honour Justice Kirby when the question of costs on that stay application was reserved for decision by this Court.  So I ask for costs in relation to that stay application.

MR KEANE:   If your Honour please, there is nothing we can say in response to that.

GAUDRON J:   By majority, there will be no order as to costs in this matter.

The Court will adjourn to reconstitute.

AT 9.51 AM THE MATTER WAS CONCLUDED