Lech v Lech

[1988] HCATrans 16

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S73 of 1987

B e t w e e n -

WLADYSLAW LECH

Applicant

and

KRYSTYNA LECH

Respondent

Application for special

leave to appeal

NASON CJ
DEAl"\fE J

TOOHEY J

Lech

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 FEBRUARY 1988, AT 2.51 PM

Copyright in the Hi3h Court of Australia

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MR C. COOK:  May it please Your Honours, I appear for the

applicant in this matter, who was the respondent

in the court below. (instructed by C. Tosevic)

MR S.E. MITCHELL:  I appear for the respondent, if Your Honours

please. (instructed by Gillis Delaney)

MASON CJ:	Yes, Mr Cook.
MR COOK:	Your Honour, this matter, we would submit to the

Court, is a matter of public importance because it

involves the nature of a father having access to, in this case, his daughter. In general terms, it involves the question of access of parents to their

children. The gravamen of this appeal, or this

application, Your Honours, is the same, we would

submit, as was set out by Mr Justice Baker in the

court below, and that is, of course, the welfare of

the child is of paramount consideration.

We would say that the court below and the

court at first instance based its decision on a

fear that past events, and particularly, I refer

to the taking of the applicant's daughter from

New South Wales and living with her in Queensland

for some 20 months under an assumed name, was

likely to recur. That is referred to by

Mr Justice Baker in a a decision in which he

appeared at first instance of HUGHES V HUGHES.	That
decision is that there must be some real risk or
likelihood that such conduct will occur, that is,
of the behaviour in late 1983 by the applicant, recurring, or that there is a likelihood or real
possibility that access will either be flouted

or ignored. That is, that the orders governing

the conditions thereof, would be flouted or ignored.

Your Honours, the applicant would say that there

is no real evidence or not sufficient evidence to

establish that such a course of conduct is a real

possibility or likely; that indeed, although

opportunities have presented themselves, whereby

he could indeed abscond with his daughter again,
he has not taken such a course of action.

Mr Justice Lindenmayer based part of his judgment on

an historical view that past conduct must be taken

into consideration when coming to an assessment of

future conduct.	He said everybody has to be judged
by their past conduct to a degree.	He said one

has to prognosticate as to future conduct of a person by analysing their conduct in the past.

That, I would call the historical view, that is, that

one must learn by the lessons of history and, whereas

that might well apply to governments, I would say,

Your Honour, and submit to the Court, that it does

not apply to individuals when those individuals

have come to the realization that such conduct is

fraught with a great amount of danger. We would say,

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Your Honour, that there is no evidence of a

likelihood of abduction and indeed, that has been set out in the evidence in the court at

first instance, where it was said that it was

unlikely at this stage that such a course of events -

that is, a repeat of conduct of 1983 - would be

likely to occur, but that there may well be a
likelihood of conduct of an emotional separation,
that is, some pressure placed upon the daughter of

the parties involved, which would separate her

from her mother. We would say that that is not

enough under the law as stated in HUGHES V HUGHES,

that there must be some real likelihood of such

conduct, that is, of an abduction, occurring in

the future.

I would submit, Your Honour, that it is a matter

of public importance, because people coming before

the Family Court should have some basis for doing

so, on the decisions in the past of that court. If the Family Court is not going to adhere to its own

decisions,.then people will have no real basis for

coming to any decision as to the possibilities of

success or otherwise in litigation, unless, of course,

they litigate. That, I would submit, Your Honours,

is a matter of grave public importance.	They are,
basically, my submissions, Your Honours.

MASON CJ:  Yes, thank you, Mr Cook. We need not trouble you,

Mr Mitchell.	The proposed appeal is an appeal
from the exercise of a discretionary judgment.	We

do not consider that the grounds of appeal, as we

understand them, raise any question of general

principle. For that reason, the application, must

be dismissed.

MR COOK:	May it please the Court.
MR MITCHELL:	May it please Your Honour. Might I have

YourJ:Ionour's leave to make an application for

costs?

MASON CJ:  I do not know that you need our leave, but I am

not sure that you are going to succeed in the

application. Mr Mitchell, we have just been talking

among ourselves, with a view to recapturing what we

have done in the past in these cases. My recollection

is that, after considering this question of costs

in a variety of applications last year, we came to the
conclusion that we would treat an application for

special leave to appeal as if it were a proceeding

under the FAMILY LAW ACT and that the prima facie

rule as to costs in that Act should

apply, with the result that if an order for costs

is to be made against a party specifically, one

must identify special circumstances.

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MR MITCHELL:	Yes, Your Honour.	I would very briefly seek

to identify them. Your Honours, in the first

place, the relief that the husband in this

application really seeks is relief that he could

m:>rereadily and more conveniently seek by

bringing a fresh application before the Family Court

and claiming a change in circumstance, that change

in circumstance being that he can provide some

degree of security in relation to access or,

alternatively, that he now sees that he was wrong in

having abducted the child in the first place.

There has, in fact, been one such application

brought by the husband since the hearing of the

matter appealed against today. That is the first

basis, Your Honours. The second basis is that my client

has been involved, at the hands of the husband, in

at least half a dozen applications relative to this

same matter in the space of two years. It has not

cost her money, Your Honours, because she is legally

aided, but it has cost her, as Your Honours would

see if Your Honours were familiar with the views

that the wife has expressed before court after court,

it has cost her a great deal of anguish, because she

believes that these applications represent unfinished

business at the hands of the husband. It is not

for financial purposes that I bring the application,

it is because an order for costs. if made, might act as

some inhibiter on the husband and persuade him to

give some reasonable consideration before he brings

yet another application before the Court. I cannot

put anyting further to Your Honours.

MASON CJ: Yes, we need not trouble you, Mr Cook. There will

be no order for costs.

MR MITCHELL:	May it please Your Honours.
MASON CJ:	The Court will now adjourn sine die.
AT 3.01 PM THE MATTER WAS ADJOURNED SINE DIE

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