Langley v Tarelli & Ors

[2022] HCATrans 59

[2022] HCATrans 059

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S109 of 2021

B e t w e e n -

LANGLEY

Applicant

and

TARELLI

First Respondent

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

Third Respondent

Application for special leave to appeal

GAGELER J
GORDON J
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 8 APRIL 2022, AT 2.30 PM

Copyright in the High Court of Australia

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.F. JACKSON, QC appears with MR R.M. O’BRIEN for the applicant.  (instructed by Adam Jones Solicitor)

MR J.D. SHAW appears for the first respondent.  (instructed by FW Ewart & Ewart Solicitors)

MS M. VOHRA, SC appears for the second respondent.  (instructed by Crown Solicitor’s Office (NSW))

GAGELER J:   I also note that Mr Jackson and Ms Vohra appear by video link and that Mr Shaw is joining us by telephone.  Mr Shaw, can I be certain that you can hear us?

MR SHAW:   I can hear you, thank you, sir.

GAGELER J:   Thank you.  Yes, Mr Jackson.

MR JACKSON: Your Honours, at the heart of the Appeal Division’s reasons is its view that section 60CC(3)(d) of the Family Law Act had not been applied, or properly applied, by the primary judge.  That view can be seen in two passages in that court’s reasons.  The first is in paragraphs 28 to 32 at page 164 of the application book.  I will not read them, of course, your Honours, but your Honours will see the reference particularly to that paragraph in paragraph 32 of the reasons at page 165.  That is the first passage.  The second passage is at page 173 of the application book, and your Honours will see that in paragraphs 78 to 79. 

In our submission, there are two fundamental errors in the Appeal Division’s reasons.  One is that the assumption upon which the views to which I have referred are based is erroneous.  The primary judge had in fact, in our submission, taken into account the matters which the Appeal Division said she had not.  Your Honours, I will give the relevant references in a moment, if I may.

The second is that the approach taken by the Appeal Division gives a prominence to section 60CC(3)(d) which is undue. May I go first to the statutory provisions. Your Honours will se that Part VII of the Family Law Act deals with children.  It sets out in section 60B the objects of Part VII and the principles underlying it.  In relation to the objects of the part, could I refer your Honours to section 60B and in particular first of all to section 60B(1)(a) which says:

The objects of this Part are to ensure that the best interests of children are met by:

(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child ‑

Also, your Honours, section 60B(2)(b) ‑ I shall not read it out to your Honours, but your Honours will see the principles there set out – sorry, your Honours will see it also referred to.

In relation to the principles more particularly, could I refer also to section 60B(2)(a) and 60B(2)(b) to which I have already referred.  Your Honours, those are the objects and principles.  The implementation of them in proceedings in court is dealt with in Subdivision BA which commences with section 60CA.  I should mention that by section 60CB(1), that makes Subdivision BA applicable:

to any proceedings . . . in which the best interests of a child are the paramount consideration.

Section 60CA identifies the paramount consideration as being “the best interests of a child”.

One goes from those provisions to section 60CC(1) which says relevantly – if I could just say that there is an exception in the opening reference to subsection (5).  That is as to consent orders.  It does not matter for present purposes.  It says that the court must consider “the matters set out” in the following two subsections.  Those matters are described in section 60CC(2) as the “primary considerations” and in section 60CC(3) as the “Additional considerations”.  Your Honours will see that the primary considerations involved in section 60CC(2)(a):

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)the need to protect the child from physical or psychological harm –

There are then additional considerations as referred to in subsection (3).  In particular, the additional considerations, quite a long list which is set out there, include 60CC(3)(d) on which the Appeal Division placed such reliance.  But it is manifest, in our submission, from the structure of Subdivision BA that while 60CC(3)(d) is a relevant factor, it is not, or is not necessarily, a dominant factor.  Further, it is to be taken into account with, first of all, the primary considerations referred to in 60CC(2) and other potentially relevant considerations, and the true position is, as was referred to in Bondelmonte v Bondelmonte (2017) 259 CLR 662 at 669 in paragraphs 19 to 21. Your Honours will see the reference in paragraph 19 to subsection (1) requiring:

the court to consider the matters set out in sub‑ss (2) and (3), in determining what is in the child’s best interests.

You will see the reference to the “primary consideration”.  Then, your Honours, that goes through to paragraphs 20 and 21 and in particular in paragraph 21:

It is a stated principle underling the objects of Pt VII that children have the right to know and to be cared for by both parents and a right to spend time –

et cetera, and your Honours will see the reference to the objects of the Act.  If one goes then to the circumstances as in fact dealt with by the primary judge, once again a starting position is in the Court’s decision in Bondelmonte, this time paragraphs 31 to 32 at page 672 and following. As your Honours will see from paragraph 31, the question for the Full Court, as it was then:

was whether the father had identified an error in the reasoning of the primary judge of the kind referred to in House v The King.  It is only an error of this kind which will permit an appellate court to interfere –

et cetera, and your Honours will see that developed in paragraph 32.  We referred to this in our reply, paragraph 8 at page 226 of the application book.  We have set out in the application and in the reply numerous references to parts of the evidence and findings of the primary judge which indicate that the judge adverted to and took into account the matters germane to subsection (3)(d), if I could call it that.  In particular, your Honours, if I could go to ‑ ‑ ‑

STEWARD J:   Mr Jackson, I am sorry to interrupt you.  I had formed the impression that this was being put to us as a visitation case and that the error that was said to have occurred on the House v The King basis, namely the failure to take into account (3)(d), was on your view incorrect when one had regard to paragraph 31 of your application submissions in‑chief where you bring to our attention the areas where the judge did, in your view, consider (3)(d).  Is that how it is put?

MR JACKSON:   Well, your Honour, it is put as a little more than that, if I may say so, with respect.  If one goes to the special leave questions which your Honours will see we set out in our application at page 191 at the bottom of the page, your Honours will see we submit that the court had not performed satisfactorily its functions and in order to develop that proposition your Honours will see that we refer in the substance of the submissions to the requirements that are set out, for example, in paragraph 23 of those submissions which deal with the provisions of the Act.

So, your Honour, one of the ways in which we say that the Appeal Division did not perform its functions was because it selected out (3)(d) and gave emphasis to that without recognising that the primary judge had in fact considered it, but also considered it – correctly, in our submission - in the light of the way in which section 60CC requires the court to deal with it.  Your Honour, that is the best I am able to say in response.

GORDON J:   Mr Jackson, can I ask two other questions which probably are related to that.

MR JACKSON:   Certainly, your Honour.

GORDON J:   The history of this matter is tragic and what I cannot quite understand is really the next question.  Is the manifest injustice a further trial?  I mean, your client has the benefit of that order.  Can you just explain to me why that is not an answer?

MR JACKSON:   Yes.  Well, your Honour, our client – if we obtain special leave and the appeal is allowed, the appropriate result may well be simply restoring the orders of the primary judge, but making whatever adjustments are necessary for different timings that are involved.  So, your Honour, perhaps the application really understates the client’s position in seeking that there be a further hearing.  One would not, in our submission, be necessary – ultimately be necessary.

GAGELER J:   Mr Jackson, may I just understand that.  Are you saying that the orders that you indicate you would seek if special leave were granted are not the orders that you are likely to seek in any notice of appeal?

MR JACKSON:   Well, your Honour, if we were to succeed in the appeal, the result would be that prima facie the orders made by the primary judge would be restored.  It may be that it would be necessary for there to be some timing questions involved, some alteration with the passage of time, but a real possibility in the matter is that the matter would be resolved by simply restoring the primary judge’s orders together with whatever alterations are necessary to take account of the fact that they were made some time ago.  So, your Honour, yes, we perhaps understate the position in the application.

GAGELER J:   Mr Jackson, you mentioned the matter of time.  It is somewhat troubling how long this matter has been brewing in the court.  I just mention that for any observation you may have.

MR JACKSON:   What I would say about it, your Honour, is this.  We have been endeavouring to have the position resolved so far as the child is concerned.  We are still in that position.  I do not wish to engage in arguments about how long the case has taken one way or the other but, your Honours, if it be that the Court were minded to grant special leave, we would be in a position to have an appeal heard as early as the Court was able to do so.  I am conscious of the Court’s commitments, of course, but we would ‑ ‑ ‑

STEWARD J:   Mr Jackson, do I take it that what you are saying is that in the circumstances of this matter, tragic, as Justice Gordon has referred to them as, you want the chance to have this matter finally determined in this Court rather than it be remitted back with the possibility of yet another appeal?

MR JACKSON:   Yes, your Honour, that is the preferred view.

STEWARD J:   All right, thank you.

MR JACKSON:   Your Honours, could I just say ‑ if I could go for a moment to our reply, your Honours will see that in our reply in paragraph 9 what I am seeking to do, your Honours, is to indicate that the judge did take into account the matters, both sides.  In the reply at paragraph 9 at page 226 of the application book your Honours will see there are listed the matters which the primary judge had noted in describing the disruption to [the male child’s] usual care regime and the negative effect emotionally.  As we referred to in paragraph 10 of the reply, she also took into account the positive aspects of [the male child] being referred to his mother’s care, and we would invited the Court to have regard to the matters to which we have referred in paragraphs 11 and 12 of the reply at page 227.

Could I take the Court in particular, and as briefly as possible, to some observations of the primary judge, first of all, page 103, paragraphs 712 to 714.  You will see particularly at paragraph 714 where the judge regarded the opinion of Professor Newman as “fatally flawed”.  Could I take your Honours to paragraph 752 at page 108, and in particular paragraphs 752 to 753, especially paragraph 753(xiii) to (xvii), and then also to paragraphs 783 to 787 at page 115.  Your Honours, these are all matters where the judge is considering the effect. 

Could I add a further matter.  The father’s response at paragraph 6 at page 213 says that the evidence at first instance to which the Appeal Division is said not to have had regard is not identified.  We have set it out, your Honours, in paragraph 14 of the reply at page 227.  There is a great deal of it and time will not allow me to take the Court to it.  But if one goes to the primary judge’s summation of her views, in our submission, it is entirely orthodox and takes into account the factors so much relied on by the Appeal Division.  Your Honours, I am not certain if I heard a noise saying I was out of time.  I now have it.  May I just have a minute to conclude what I wish to say? 

Could I refer your Honours to paragraphs 768 to 787 at page 113, especially 785 to 787, 793 and 795 at page 117, 799 at page 118 and 807 at page 119.  In our submission, it is a case which merits the grant of special leave and I should invite the Court to note one thing, that the order made by the Appeal Division on 5 July last year is at page 157.  It allowed the appeal and stayed the primary judge’s order.

At a further hearing an order was made by the Appeal Division which set aside the primary judge’s orders.  That order was made on 6 October 2021.  It is at page 8 of the affidavit of Adam Jones, filed on 4 April this year, and I mention it because, in our submission, if special leave is granted, it should be with respect to the Appeal Division’s orders of both 5 July 2021 and 6 October 2021.  Those are our submissions.

GAGELER J:   Thank you, Mr Jackson.  Mr Shaw.

MR SHAW:   May it please your Honours.  The focus of the response to what my learned friend has put before the Court is, in reality, the test in Bondelmonte and also in Khan, that the judge is required to give proper, genuine and realistic consideration to the matters that fall to be considered by him or her.  It is the submission of the first respondent that her Honour failed to do so, although she appeared by a proliferation of references that my friend has referred to, to discuss every possible permutation and combination of what was before her.

But basically when you look at the 18 findings made by her Honour – and I ask your Honours to go to page 108 of the casebook at paragraph 753 – there are these 18 findings, but her Honour does not explain how all of these findings should be synthesised or correlated in order to bring forward the ultimate result that the court was committed to reach in the course of the inquiry or hearing.

STEWARD J:   Mr Shaw, is that not quite right?  Does she not do that in the paragraphs that follow and, in particular, if one goes to paragraph 785 there is a finding that:

Both parents have the capacity to provide for the child’s needs –

At 786 she talks about the mother; again at 787.  Then she deals with the father at 788, amongst other things, noting that:

the father has dismissed all attempts to have him engage in any therapeutic process and is a liar.  He has perpetrated significant violence on the mother –

Then at 789:

As Professor Newman opined, parents who do not accept responsibility for their actions and lie are not good role models and may lack empathy ‑

Is that not when it is all drawing together in the reasons of her Honour?

MR SHAW:   Well, your Honour, I think that the real starting and ending point for her Honour was that she considered that the mother should have the child because she alone was not able to spend time with the child if the child remained with the father.  So that was I think the key consideration that impelled her, if I can use that word, to the decision she made.

GORDON J:   Mr Shaw, what paragraphs – I am sorry to interrupt, where do you draw that conclusion from?

MR SHAW:   I draw it from where she says that the only way – I actually have lost my place, your Honour, because I have not been well ‑ the only way the child could have any time with the mother would be if the father has little or no time.  So that was in the context of the father having had three continuous years of care for the child without any input from the mother.  He was then to find himself – or I should say his son was then to find himself in a situation where he would only have time with his father for four hours, supervised, once a month.

STEWARD J:   But, Mr Shaw, did not the learned primary judge make it clear in 787 that her obligation was the best interests of the child, and she was not here to right a wrong for the mother.  So that was clearly understood.

MR SHAW:   Well, your Honour, she does say that, but again the impression is that she said the only way that this child will have any time with the mother is if the child lives with her almost wholly, seven days a week, virtually, except for four hours a month.  So that is a key matter that compels her to come to that decision which, of course, is common ground, was not in his best interests, because Mr Lodge and Professor Newman, and even her Honour, agree that that was not in the best interests of the child, to have only four hours every month.  Yet, despite that, she decided to make that order, contrary to what was a generally agreed position.

Now, if I might go on, your Honours, the situation concerning [the female child], who was then three years of age, was that she was somehow to spend time with the father – with her brother, I should say, for not less than two hours a week.  But no mechanism was put in place whereby that could be achieved.  There was no order made, or could be made, that the mother bring the child [the female child] to [the male child], it was just simply almost to happen by osmosis, as it were, and that was a most unsatisfactory feature of it, because the two children had been intertwined in their lives for three years at that stage.

STEWARD J:   Could I ask you a question, Mr Shaw.  How does this material then address what was the only error of law found by the Appeal Division, namely a failure to have regard to 60CC(3)(d) and, in particular, what is your answer to paragraph 31 of the applicant’s submissions where they say that her Honour did take that provision into account, she did consider what was going to happen to the child if he was to be moved from the father to the mother?

MR SHAW:   Well, in relation to [the female child] there was really no power on the part of her Honour to bring about a time whereby the child would have the benefit of being with his sister for two hours or not less than two hours per week.  She left that completely unanswered and undisposed of.  So, the father could not do it because of her order that he not go anywhere the child, and [Ms S], who is the mother of this child, was not a party to the proceedings. 

GORDON J:   Mr Shaw, I do not know that you should be disclosing the names of the parties in this matter, should you?

MR SHAW:   I am sorry, your Honour, yes, I must say I have lapsed.  I should have used the words “half‑sister” and “the subject child”.

GAGELER J:   At this point the name that has been mentioned will be struck from the transcript.

MR SHAW:   Thank you, your Honour.

GORDON J:   Mr Shaw, can I raise – we seem to have gone off the issue which is the issue raised by the application for special leave, but do not her Honour the trial judge’s orders at application book 131 to 132 address all of those matters?  There were orders made for transition and assistance and advice to address a range of issues.

MR SHAW:   I am sorry, what was that page, your Honour?  I did not catch it.

GORDON J:   At pages 131 to 132 of the application book are the orders made by the trial judge, and do not those transitional orders address all of these issues?

MR SHAW: Well, the order in relation to the child who I will not name, the half‑sister, does not ‑ there is nothing there to indicate how that child is to be brought to spend time with her brother. There is just no attention given to it. Who is going to do it? The father cannot do it, with respect, your Honour. That leaves a lacuna in that particular respect whereby the child who is the subject of these proceedings may never see his sister, or half‑sister, again. So that is a very serious matter because that is of the utmost concern to the welfare of the subject child of these proceedings. Also, her Honour, in dealing with section 60CC(3)(d) made no provision at all for [Ms S], who had been a foster mother to the child for three years, to have any connection with the child whatsoever. This was really a dichotomy ‑ ‑ ‑

STEWARD J:   Mr Shaw, does any of this form part of the Appeal Division’s reasons?

MR SHAW:   Only in the general sense, your Honours, that insufficient attention was given to the situation that the child would find himself in if he stayed where he was, on the one hand, and if he was removed from that, insufficient attention to what he would confront or would have to deal with, upon being returned to his mother after a long period of no contact. 

So, all of those considerations are bound up with respect to section 60CC(3)(d), and what I have tried to suggest is that there was a trichotomy, a position here where her Honour dealt particularly, as she was required to, as to what the situation was with respect to the parents. But there seemed to be a substantial oversight in relation to what the foster mother would – what the effect of removal from the foster mother would have on that child. That does not figure in her considerations at all, and it is considered that that is a serious lacuna in the process that her Honour was obliged to enter upon.

STEWARD J:   Mr Shaw, I meant to ask you this before, I am sorry.  The applicant needs an extension of time.  Do you oppose that, or not?

MR SHAW:   The applicant needs an extension of time, but yes – I do not oppose that, no.

STEWARD J:   Thank you for that, Mr Shaw.

MR SHAW:   I am, of course, for the first respondent.  I do not know where I stand in terms of time now, to be quite frank, your Honour.  I have not heard a bell.

GAGELER J:   You should continue as long as you feel necessary, Mr Shaw.

MR SHAW: Thank you, your Honour. The position in relation to the matter that I have just raised is referred to in paragraphs 768 and beyond to 783, where her Honour, under the heading of “The nature of the child’s relationship with each of his parents”, does not refer to an important element, which is the nature, that is under section 60CC(3)(d), of separation from the foster mother who had been his actual mother, virtual mother, for three years. That is squarely within the ambit of section 60 ‑ ‑ ‑

GORDON J:   Sorry, Mr Shaw, but is it not addressed, at least generally, at paragraph 777?  It is addressed in 776 and then in 777, where the trial judge takes a view both on the negative and positive aspects of it.

MR SHAW:   Except, with respect, your Honour, there is no analysis made or attempt to be made to understand the impact that that might have on the child himself, apart from simply broadly saying that he will be separated – well, that is an illuminating glimpse of the obvious, with respect, your Honour.

STEWARD J:   Well, Mr Shaw, the trial judge at 783 makes it clear that her Honour considered that there would be a:

clear upheaval for [the child] of a change of residence to his mother –

and then says, in answer to that, he will be nonetheless:

reunited with his primary carer, and his grandmother with whom he clearly has a close and attached relationship.

So, the judge has understood what the impact will be, and considered it.

MR SHAW:   Your Honour, can I just – a glance at 782, I think that is where Mr Lodge is asked about the amount of time that the child will be having ‑ spending with his father, and it is there said, by him, that:

He is going to reunite with his father, having lived with him for three years, and then experience a separation an hour or so after . . . It doesn’t add up to me, I’m afraid.

Her Honour does not address that in 783, with respect. She just simply moves to one side and says despite the upheaval, a change of residence to his mother. That particular matter raised by Mr Lodge is set aside without any response, or without any attempt to either agree or disagree with what Mr Lodge has said. So that is in connection that I have – you know, tried to make it clear that the ambit of section 60CC(3)(d) does embrace a constellation of people and that it was necessary to consider whether or not it was worth the risk of transferring the child from one residence to another ‑ ‑ ‑

GORDON J:   Is that not what then happens, Mr Shaw, when you go on to the paragraphs that Mr Jackson took us to – 785 to 787, 793 to 795, 799.  There is a balancing exercise going on.  They have taken the relevant factors – the trial judge has taken these relevant factors and matters and identified that there are positives and negatives in understanding and undertaking this assessment.

MR SHAW:   There are positives and negatives, but it would appear, with respect, that common sense would indicate that the negative of going into a future that is unknown because of lack of time over a period of three years, what that would produce in terms of an impact on the child from a settled environment.  This was the drive or the gravamen of the evidence of Professor Louise Newman.  She is the only expert ‑ ‑ ‑

STEWARD J:   Mr Shaw, Professor Newman’s evidence was criticised by the primary judge and, as the applicant makes clear, there was no challenge to those criticisms on appeal.  They are set out at paragraph 29 of the applicant’s submissions.

MR SHAW:   The Full Court took the view that the only person of those who had spent – who were regarded as experts that had spent time with the child was Professor Newman and that she had a direct contact with the child, who made it clear that he was happy where he was and that he did not wish to move.  There was nothing, as it were, unusual about that except it had been a long, long time and the child had become embedded in a situation where he had a half‑sister that he had lived with for the last three years.  That is a matter that Professor Newman or anyone else could put without criticism.  But to say that her work was fatally flawed did not really

trench upon that particular aspect of the matter, which was obviously one that was hard to challenge. 

So the Full Court took the view that it was necessary for the trial judge to get into a situation where she gave proper, genuine and realistic consideration to those matters, and the Full Court took the view that she had not done so and it is our submission that they were quite justified in doing that and that that was part of their role – to correct what they saw as error, otherwise the Full Court would have little work to do.  So that is as much as I think I can ask of time before your Honours.

GAGELER J:   Yes, thank you, Mr Shaw.  Ms Vohra.

MS VOHRA:   Thank you, your Honour.  Your Honour knows from the response filed on behalf of the Department that the primary position we take is that there is nothing in this application that warrants special leave being granted in terms of clarifying any development in the law, procedural irregularity issues, legal principle and the like. 

As I understand my learned friends for the applicant, the primary reason that special leave seems to be sought, at least in the application, is that the argument is made that the Full Court did not appropriately approach its task in terms of section 93A(2), as it was then, of the Family Law Act, in terms of considering appropriately all of the evidence that was before the primary judge.

As I understand the Full Court’s reasoning, and the reason that we say that the appeal ‑ special leave application ought not be allowed, is that the Full Court does clearly say in its judgment of 5 July that there were numerous occasions when the judge referred to the effect of the change that she was about to make on this young child.  It says throughout the judgment - peppered throughout the judgment are references to that change. 

But what it found was that the primary judge did not adequately consider, in the active sense that she is required to under such cases as Khan and Bondelmonte, actively consider the effect of the change that she was proposing on this particular child because this particular child, the expert evidence showed, had vulnerabilities which were unique to him, because of the awful circumstances of his childhood so far, and my client certainly cannot be considered blameless in terms of the history of the matter, unfortunately, but what the Full Court says with respect to evidence which is just not considered by her Honour and which ought to have been considered, is contained when your Honours look under the heading “The expert evidence” in the Full Court’s decision at application book 165 and onwards.

Now, Professor Newman, it is true, her evidence was discounted by the primary judge because she was of the view, unchallenged, that Professor Newman’s assessment of the mother was pejorative and influenced by the inaccurate information that was provided to her by the father.  Professor Newman says of this particular child that the circumstances whereby he, at the age of four and a half, was removed without warning from his primary carer, then the mother, and placed with the father, made him particularly vulnerable to it happening again.

What her Honour’s orders proposed was it would happen again.  In two weeks’ time, your Honours know, having read the Full Court decision, the child was told in a Zoom call on New Year’s Eve he would be leaving his father on New Year’s Day.  In two weeks’ time he was to be again abruptly removed from the home that he had known for the last three years.

What Professor Newman says of that, which is in application book page 169, paragraph 54 of the Full Court judgment, is that these experiences have made this particular child “vulnerable to separations in the future”, he experiences them in a heightened sense because of his past, that it would be potentially very difficult for him, although he would be pleased to be with his mother and his grandmother, and that would be a very significant loss that would have to be very appropriately and carefully handled if it was going to happen at all.

STEWARD J:   Ms Vohra, what are we going to do about the fact that the primary judge criticised the professor?  At 715, for example, the primary judge says that what the professor said was “palpably wrong and grossly unfair”.

MS VOHRA:   She does.

STEWARD J:   These findings adverse to the professor are then not challenged on appeal.

MS VOHRA:   She does.

STEWARD J:   The Full Court do not seem to address what we are to do with the force of Professor Newman’s observations and opinions in circumstances where the report has been criticised and there is no challenge to the criticisms.

MS VOHRA:   Yes, your Honour.  What I would say with respect to that is that the primary judge is required to consider – and “consider” might mean consider and reject – but she needs to consider the vulnerabilities of this particular child from the single expert, the only expert who has seen this child in the last three years.  So, she could say, “Professor Newman tells me this particular child is hyper‑naturally vulnerable because of the terrible circumstances of his last four years of existence - taken from one primary carer without warning, handed to a virtual stranger, his father, and now he is about to be taken again from his primary carer to a virtual stranger, his mother.  This particular child has these sensitivities.  Professor Newman tells me that I should be particularly cautious.  I have considered that evidence.  I don’t accept it”.  That she did not do – the primary judge. 

It is her obligation, in my respectful submission. Under section 60CC(3)(d), she is required to consider the evidence as to the effect of the change and the separation, even if she rejects it. But she did not consider any of that evidence. She also did not consider the evidence of Paul Lodge, whose evidence she did otherwise generally accept and who features in the orders that she makes, as an appropriate person to assist with the transition for this child to his mother.

Mr Lodge also says of this particular child, because of his background, he will be a boy who – this is page 170 of the applicant’s book, paragraph 59 of the Full Court judgment – this will be a boy who will be highly traumatised by leaving his father’s household.  He will be a little boy who will:

begin to believe that the adult world is not full of people that come to love him and then disappear –

if it is not handled properly:

He needs a long – a long period of a stable environment with a relationship with both of his parents -

Mr Lodge goes on to say that there needs to be a gradual movement from the father’s household to the mother’s – not the abrupt movement ultimately ordered by her Honour.

So, in my respectful submission, what the Full Court is saying is, with respect to her Honour’s obligations under section 60CC(3)(d), is not that she did not mention it, not that she did not talk about the disruption – she calls it a massive upheaval, in paragraph 777 – moving from one household where he is well established to his mother’s household who he has not seen for a number of years. She does acknowledge it is a massive change but what she does not consider, in my respectful submission, is the effect on this particular child – the one before her in these proceedings – with his vulnerabilities given the way that he has been treated all his childhood thus far. That is, in my respectful submission, what the courts are concerned about.

GAGELER J:   Ms Vohra, looking at the chronology that is summarised at page 192 of the application book, in paragraph 13 of the application for special leave to appeal, it is hard not to have a concern that the issue at the heart of this appeal would not have arisen – or it certainly would not have arisen so acutely – if these proceedings had been brought to a conclusion at a much earlier date.  In other words, there is, on my part anyway, a grave concern about the creation of issues simply by the stringing out of litigation of this nature.  I know it is not at the heart of the special leave application, but do you have any comment on that concern?

MS VOHRA:   Well, no, it is – I cannot defend it, it is awful, and, of course, at least as far as the applicant’s orders so far request, she is asking for there to be another hearing with respect to how the transition ought be handled for this child to her household, although maybe my learned friend said that that is not what he is seeking so far.  But of course, three trials, three final hearings for this boy in proceedings that started when he was less than a year old and he is now nine is beyond defence.  I cannot defend it.

But in the end, what the Family Court has to consider, of course, your Honours, is the best interests of this particular child, and his particular vulnerabilities, given the history, and compounded – his personality is compounded by the fact that his parents have been in litigation for as long as they have been.  The judge and the Full Court talk about the level of anxiety and concern for this little boy at the uncertainty of his existence right now, and it is not ‑ ‑ ‑ 

GORDON J:   Can I ask something about that?  I mean, you rely on Professor Newman, who expresses – and the passage that I have looked at is page 169 of the application book, where he expresses views about the vulnerability of the child and then goes on to say:

His response to it would depend on what arrangements were in place, obviously, for ongoing contact and maintenance –

and he expresses the view:

if there were very limited contact . . . that would be potentially difficult for him, although he would obviously be pleased –

as you rightly acknowledge:

to have time with his mother and grandmother -

who, up until now, he has had zero time with.  Are not the arrangements that were made, though, set out, the ones that I took Mr Shaw to, that is, the arrangements made by the trial judge in order to try and address those very questions?

MS VOHRA:   She did.  Professor Newman is Louise Newman, she is a she, your Honour, but‑ ‑ ‑ 

GORDON J:   Sorry, I understand that, but I am talking about the orders made to address that criticism – or to address that matter, that is, the arrangements.

MS VOHRA:   Well, none of her Honour’s orders included the child.  She says, indeed, at the primary judge – sorry.

GORDON J:   They did not deal with the child, but they dealt with making arrangements to provide:

assistance and advice as to the transition, age appropriate communications with the child in relation to the child’s parental circumstances and his change in living circumstances –

the very thing which it was to address in paragraph 6 of the orders.

MS VOHRA:   That is correct, but I think the point that I was making, your Honour, with respect to Professor Newman’s evidence about the vulnerabilities of this child is that it is not addressed.  There is nowhere in the primary judge’s reasons where she talks about this particular child and his vulnerabilities because of the history that he has faced, and how those ought be addressed, and if Professor Newman’s evidence is not to be accepted but rejected, then why it is rejected. 

There are a lot of general statements about upheaval generally, and there are ultimately orders made for the parents to engage with Paul Lodge, which clearly did not occur because of the timing of the handing down of the judgment before the boy was supposed to leave his father’s house to go to his mother’s house.

STEWARD J:   Is that quite fair?  We have not only Professor Newman, but we have Professor Walter who thought that if the child was returned to his mother’s care he would need counselling and therapy with the anxiety of the transition.  Then you have at 787 the trial judge saying:

If I was not as confident as I am of the mother’s capacity to assist her son with these huge changes and engage fully in the therapeutic process with Mr Lodge, my decision may have been different –

That is the nub of it, is it not, that her Honour is accepting – and it is an invidious choice in these circumstances between a mother and a father at war that because the son will be able to transition with help - that he is better off with the mother.  Then she goes on to say – she contrasts that by saying:

the father has dismissed all attempts to have him engage in any therapeutic process-

That is the balancing act.

MS VOHRA:   That is the balancing act.  But her Honour, with respect to her, cherry‑picks because she repeats what is said by the experts with respect to the child needing therapeutic assistance.  Both of the experts who have seen the child – and Professor Walter did not – Paul Lodge, who saw him a number of years ago, and Professor Newman, both of them said the child himself would need therapy and a long period of transition.  Professor Walter said as far as the mother’s PTSD is concerned it would be better to be shorter rather than longer because the long period of transition would include her having contact with the child while he was living with the father, and she had been unable to do so. 

Her Honour decided in the end that that was what she would do.  She would ensure that the mother’s PTSD was not further triggered by the longer period of transition.  But, in my respectful submission, what the Full Court is criticising her for and why the appeal was ultimately allowed was the consideration given for this particular child in the decision ultimately made which was, “In two weeks’ time you leave your home that you’ve known for the last three and a half years and go to someone you haven’t seen for three and a half years”.

STEWARD J:   Yes, but that had already happened to this particular child three and a half years before that.

MS VOHRA:   It had.  I think that is my point, with respect, your Honour.  It had happened to him already, so his vulnerabilities are even greater.

STEWARD J:   But can I ask you though, how does this go to whether the judge made the error of law that the Appeal Division said her Honour did, namely that she did not consider 60CC(3)(d)?

MS VOHRA:   In my respectful submission, what the Appeal Division said ultimately of her was she did not consider – and this is at page 173 of the applicant’s book, paragraph 74 and onwards – given that the emotional consequences for this child were squarely raised before her by Professor Newman and indeed Paul Lodge, she did not take that evidence into account beyond saying that there was a monumental upheaval and it would be dealt with by the parents having therapy with Paul Lodge. 

Her consideration was limited to the effect on a child of this sort of destruction, not this particular child with his vulnerabilities, given he had suffered it before, is the way that I read the appeal court’s decision.  So, in those circumstances the trauma is compounded for this child. 

If her Honour were appropriately considering section 60CC(3)(d) she would say, in my respectful submission, very significant losses compounded for this particular child because of his tragic history, this is the evidence I have from Professor Newman- I do not accept it, this is the evidence I have from Paul Lodge - this is how I am ameliorating it or not accepting it or accepting it. She did not do any of those things in the reasons for judgment.

GORDON J:   We should not read them as – so, even if she did not say them expressly, one does not take the reasons for a whole and recognise that that is the task she undertook and did so with respect to the orders.

MS VOHRA:   In my respectful submission, given the strong evidence quoted in the Appeal Division’s judgment of both Professor Lodge and Professor Newman, if she was rejecting that, she needed to have done it expressly because that was evidence that was targeted to this child and his history and his vulnerability.

GORDON J:   So, what happens to this matter now, on your case?

MS VOHRA:   The matter has, on 6 October orders, your Honour, been remitted for rehearing.  It has a judge…..fairly shortly.

GORDON J:   What does that mean – why shortly?

MS VOHRA:   I understand there is a hearing in May, but I am not sure if that is the final trial or the beginning of the final trial.

GORDON J:   What is the distinction?

MS VOHRA:   The Family Court has what is known as a first day of a trial which is directions given, really.  But they call it ‑ ‑ ‑

GORDON J:   That is not the beginning of a trial.

MS VOHRA:   No, but once it is started, the judge is part‑heard as a counsel so it is ‑ ‑ ‑

GORDON J:   That does not help.  When does the trial actually start?

MS VOHRA:   I can ask my instructor – and I hope she is on the line for those instructions – or it could be that my learned friend, Mr Jackson, or Mr Shaw, know.

MR SHAW:   Your Honours, I can answer that question.  The judge who has the disposition of the matter is Justice Berman of the Family Court located in Adelaide, but he is going to hear the matter in Sydney, as from 4 May 2022.

MS VOHRA:   Thank you.

GORDON J:   So, the actual trial starts on that date?

MR SHAW:   So, nine days, your Honour.

GORDON J:   I beg your pardon?

MS VOHRA:   For nine days.  It sits for nine days.

MR SHAW:   For nine days. 

GAGELER J:   Very well.  Ms Vohra, your submissions are now complete, I understand.

MS VOHRA:   Yes, thank you, your Honour.

GAGELER J:   Can I just ask Mr Shaw about the nine‑day trial?  Are they nine continuous days?

MR SHAW:   They are, your Honour.

GAGELER J:   Thank you.

MR SHAW:   They are broken by a weekend, that is all.

GAGELER J:   Of course.  Mr Jackson. 

MR JACKSON:   May I just say, in relation to the nine‑day hearing, that, of course, is a hearing in which, once again, the applicant would be exposed to questions about the violence that has gone on.  There is no point in having the nine‑day trial unless it goes into great detail – and detail, which, from her point of view, is likely to increase the prospect of there being PTSD.  Your Honour, could I come back ‑ ‑ ‑

GAGELER J:   Mr Jackson, of course, the nine days ought primarily be focused on the best interests of the child.

MR JACKSON:   Of course, your Honour, of course it should.  Of course, it should, but how one would take nine days to do that amazes one, really, with respect.  Your Honours, could I come back first of all to what Mr Shaw says, and if one goes to what is at paragraphs 793 to 796 of the primary judge’s reasons at page 117, what else is she doing other than looking at what is to happen to the child and the best interests of the child?  That is the very thing she is talking about.  Will the child be – how will the child be if the child goes back to the mother?  She deals with that topic.

Your Honours, could I also say, if one goes to paragraph 796 and also 799 of page 117 and 118, she is recognising the possibility that the father’s ability to deal with the child will be increased from four hours with the passage of time.  If I could move on to – so it is not necessarily just four hours.  Could I go on to the actual orders that were made, at page 132, where my learned friend Mr Shaw is speaking of order 5, that is:

That the child spend time with his sister –

Now, this seems to be a point where emphasis is placed on the father being restrained from being within three kilometres of the venue.  But surely that must be at a time when the child is with his sister.  It is hardly a dramatic feature which is going to bring it all to an end or make it impossible.  Your Honours, if I could just say, so far as [Ms S] is concerned – I am sorry, I should not have said the name and I withdraw it, your Honours - so far as the father’s companion is concerned, that is dealt with in paragraph 7, and then if you look also at paragraph 8:

Both parties will accept the reasonable directions –

and so on.  Your Honours, if one goes back to the primary judge’s reasons at paragraphs 787 to 789, why is she not doing the very thing that she is supposed to do, weigh up these matters in the best interests of the child? 

Your Honours, in our submission, this is an appropriate case for a grant of special leave, and if the Court were of that view, we would – I appreciate this is a matter for the Court – invite the Court to deal with the appeal as soon as may be.

GAGELER J:   Thank you, Mr Jackson.  The name misspoken by Mr Jackson will also be struck from the transcript.  The Court will adjourn momentarily to consider the course we will take.

AT 3.37 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.49 PM:

GAGELER J:   We are not persuaded that there are sufficient prospects of success to warrant the grant of special leave.  Given that the rehearing of the matter has been scheduled for next month, we also consider, on balance, that it is not in the interests of justice for there to be a grant of special leave.  There will be an extension of time within which to file the application but special leave is refused.

The circumstance that these proceedings in relation to parenting orders have now been pending for nearly eight years cannot go unremarked.  As this Court has noted on three occasions in the past, the Family Court is obliged to ensure that proceedings under the Act are not protracted.  The delays that have occurred in the conduct of the proceedings to date are unacceptable.  It is to be expected that the proceedings will now be pursued by the parties under the supervision of Division 1 of the Federal Circuit and Family Court of Australia with appropriate expedition.

The Court will now adjourn.

AT 3.50 PM THE MATTER WAS CONCLUDED