Lowe v Lowe

[1990] HCATrans 67

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No BS0 of 1989

B e t w e e n -

PETER FRANCIS LOWE

Applicant

and

ELIZABETH DOROTHEA EDITH LOWE

Respondent

Application for special

leave to appeal

MASON CJ DAWSON J

TOOHEY J

Lowe

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 6 APRIL 1990, AT 9.38 AM

Copyright in the High Court of Australia

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MR J.A. GRIFFIN, QC: If the Court pleases, I appear with

MISS A. HALL for the applicant. (instructed by

G. R. Brown)

MR R.R. DOUGLAS, QC: If the Court pleases, I appear with

MR A.B. GEORGE for the respondent. (instructed

by Bain, Gasteen Smith)

MASON CJ: Yes, Mr Griffin.

MR GRIFFIN:  At issue is the correctness of the Full Court of

the Family Court's endorsement of the procedure

followed by a trial judge in relation to the
husband's application for custody of children in

circumstances in which there had been a previous

consent order in favour of the wife. The relevant

facts are in fairly short compass: the husband

and wife had finally separated on 19 June 1986
and the children remained with the wife; on

30 October 1986 an order was made for interim

custody in favour of the wife; on 13 May 1987

orders were made by consent that the wife have

custody of the children; on 26 July 1988 the

husband filed an application for the custody of

the five children; and on 5 September 1988 the

wife filed a cross application in relation to

custody.

The matter was dealt with by a Mr Justice Elliot

in May 1989 and the judgment was delivered on

10 May. The husband's material showed that there

was a change in attitude towards the husband of the

three older children. It says the wife's failure to

encourage thern·to go on access; the wife's failure to adequately

discipline or control the children and sexual

interaction between two of the children and the

wife's indifference to it.

The case began as if it were an ordinary

custody case; the husband gave evidence and was

cross-examined and Mr O'Hanlon, a counsellor who

had seen the applicant, was examined and cross-

examined. His Honour then raised what he
described as the liminal issue as to change of

circumstances as an exchange with, predominantly,

Mr Foley who appeared for the husband and that

exchange appears at page 38 of the appeal book.

I will not read it but Your Honours can see that he

referred to the liminal issue and at the foot of

the page he said:

The court has to be satisfied of changed

circumstances of sufficient moment to make

it worthwhile to carry forward -

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MR GRIFFIN (continuing):  He then said that he would hear the

counsellors and Mary Fay and a Mr Christensen.

Mary Fay was a counsellor who had seen both

parties and the children.	She was one of the
husband's witnesses.	Mr Christensen was a

court counsellor who would have been called by

the court. The evidence of those two witnesses

was then heard. His Honour then offered to allow

counsel for the husband to cross-examine the wife,
on what he described as the threshold question,

but the husband's counsel declined that

invitation. The trial judge then delivered

judgment and relevantly he found that there had

been a change of attitude of the three older
children to the applicant, but there was nothing

in the evidence of Mr Christensen that established

that that was due to any default on the part of

the wife. The various actions attributed by the

husband to the wife amounted to no more than

criticisms of her conduct and His Honour was not

persuaded that these matters would justify a

change in custodial arrangements. He found that

the possibility of the two younger children

becoming disaffected,if the present stalemate

between the parents continued, was regrettable.

Whilst we do not propose to go into the

husband's case in any detail, the seriousness of

the case that he sought to make out is really

demonstrated by the matters indicated in the

judgment of Mr Justice Strauss.on appeal.

:MASON CJ:  Why do you need to go into the case he sought to

make out, because you are seeking special leave

in order to ventilate a point of principle, are you

not?

MR GRIFFIN:  I am, Your Honour, yes.

:MASON CJ: Well, why is it necessary to see how serious the

husband's case was?

MR GRIFFIN:  Only because we do also submit that he did

make a case, a substantial case. It was not a

case which could be characterized as an abuse

of the process of the court.

:MASON CJ: But it was not found to be an abuse of the process

of the court, was it?

MR GRIFFIN:  No it was not so found, no, but will - - -

:MASON CJ: Weli we will proceed on that assumption.

MR GRIFFIN:  Very well, Your Honour. It is submitted that there

is no warrant in the FAMILY LAW ACT itself for the

procedure the trial judge followed.

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MR GRIFFIN (continuing): There are no provisions with respect

to the variation of custody orders similar to those

contained in section 66N with respect to the

modification of maintenance orders. Section 66N(2)

of the FAMILY LAW ACT .makes provision in

relation to variation of maintenance orders. I will

not read the provision, but Your Honours see that
it requires one or more of certain prerequisites

to be established before a maintenance order can be

altered. By comparison, section 64(7) of the Act

provides, in relation to custody orders in simple

terms, as follows:

A court may discharge or vary an order

under this section, or may suspend

any part of the order and may revive the

operation of any part so suspended.

The comparison of the two sets of provisions, therefore,

suggests that it is the intention of the legislature

that there should be no hard and fast rule applied

by way of prerequisite to the reopening of a

custody order.

Of course, section 60D of the Act applies to

the variation of custody orders and, as Your Honours

will be aware, it provides that:

In proceedings under this Part in relation to a child, the court shall regard the welfare of the child as the paramount consideration.

Our next submission, Your Honours, is that

no practice akin to that endorsed in the present

case appears to be recognized in England.

In RE F(W) AN INFANT, (1969) 2 Ch 269, magistrates

had heard a custody application by the mother.	They
concluded that the mother's evidence was not
reliable, whilst the husband's was.

(Continued on page 5)

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MR GRIFFIN (continuing):  As a result:

they decided not to make any order on -

the mother's -

summons. The mother gave notice of appeal,

but subsequently -

a notice was signed -

consenting to the appeal being dismissed. All
of that appears to have occurred in about May 1968.

On February 17; 1969, a different bench of magistr.ates heard the•.'.second summons -

which had been filed by the mother.

They were informed of the proceedings under

the first summons. The appellant objected to

the hearing of the second summons but the

magistrates proceeded to hear it. Only the

mother and the appellant: gave evidence on

that hearing. Although their evidence was

not materially different ..... the magistrates

made an order granting custody to the

mother.

On the husband's appeal, Justice Pennycuick:

Held, that the principle of res judicata was

not applicable -

it being a custody matter -

and the magistrates had jurisdiction to

re-hear a matter and to allow new evidence to

be adduced notwit-h!=:t-anding that it had been

available on the first occasion but was not

called; but that it was not right for them

to entertain an application on the same

evidence as that adduced on the first

occasion and as soon as they became aware

that no new evidence was being led the

magistrates ought not to have continued to hear
the second application; and that, accordingly,

the second decision must be set aside.

His Lordship said that the statements made in previous

cases:

as to hearing the same case upon the same

evidence -

should be attributed -

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to the broad principle upon which the

principle of res judicata is based, namely,

that it is in the public interest that

there should be an end to litigation, and
that nobody should be troubled twice by the

same case.

We understand His Lordship to be saying that whilst

the principles of res judicata do not apply to
custody, nonetheless, it is an abuse of the
process of the court to seek to litigate again a

matter which has already been determined.

Neither this nor any other English case supports

the proposition that as a prerequisite to the

reopening of a custody order against the background of

a previous order, the party seeking the reopening

needs to satisfy the court of a substantial change in

circumstances.

(Continued on page 6)

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MR GRIFFIN (continuing): Furthermore, the case suggests no

warrant for the procedure followed in the

present case in which the .judge, in effect,

decided which witnesses ought to be called and

then evaluated the significance of their evidence,

not so much for the purpose of determining
whether or not the husband was alleging changed

circumstances, but in the result more for the

purpose of predicting whether if the case were

fully heard it would be likely that the eventual

order would be in favour of the husband.

Third, Your Honours, we submit that the

procedure is patently wrong from a number of

standpoints. To begin with, although the

procedure is justified by the trial judge and

the Full Court by reference to the interests

of the children in not having the issue of

their custody relitigated, it imposes an

inflexible rule, the very rigidity of which is

inconsistent with the requirement in

section 60D that the welfare of the children is

the paramount consideration. It is, of course,

true that at the end of the hearing of an

application such as that which the applicant

wished to have heard in the present case, a

change in custody would not be ordered unless

it was in the best interests of the children

and one of the matters to be brought into account

at that point would be changes in circumstances

since the previous order. But a change in

circumstances, since the last order, could not

even then be a prerequisite to a change in custody.

It might come to light in the course of the second

case, for example, that the custodial parent had

been guilty of conduct prior to the first order

which, along with the other features of the case,

demonstrated it to be in the best interests of the
child or children to be placed in the custody of

the non-custodial parent. In other words, lack of

a substantial change of circumstances between the

two orders ought not to fetter the Court's

discretion to make the order which is in the best

interests of the children even at the point at

which consideration is being given to the alteration

of the order. If that is so it must be even clearer

that the need to show a substantial change of
circumstances should not be a prerequisite to the

opening of the matter, or the reopening of the matter

at all.

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MR GRIFFIN (continuing): Another reason that the procedure

endorsed by the Full Court is basically wrong is

_that the judge had selected the witnesses to be

called. The Full Court relied on two previous

decisions of the Full Court of the Family Court,

namely RICE AND ASPLUND, (1979) FLC 90-725 and

FREEMAN, (1987) FLC 91-857. But neither of these

cases should be taken, in our submission, as

justifying the procedure endorsed in the present case.

RICE AND ASPLUND was a case in which within

12 months of an order for custody in relation to a young

child being made in favour of the father, the wife

filed an application for custody. A year later the

Family Court awarded custody to the mother.

The court was of the view that there was a significant change of circumstances. But there the matter was

fully reheard in the proceedings which culminated

in the order in favour of the wife and although the

presiding judge, Chief Justice Evatt, considered

that there had been a significant change of

circumstances because the wife had remarried and

obtained · suitable accorrnnodation, she also said

this, at page 90-725, and this is a statement with

which we would take no exception.

MASON CJ: What page is that?

MR GRIFFIN:  At page 725, Your Honour.

MASON CJ: Yes, I see.

MR GRIFFIN: It is at the top left-hand corner.

Once the court is satisfied that there is a

new factor or a change in circumstances, then

the issue of custody is to be determined in the

ordinary way. The court must apply the principles

of section 64 and weigh up the factors for and

against the proposals of each party, having regard

to the welfare of the child as the paramount

consideration. One of these factors is the length

of time the child has been in a particular

situation. Another is any earlier decision of

the court, and the reasons for that decision.

The possible advantages or disadvantages of a

change in custody need consideration along with
all the other usual factors. While the court

should give weight to any earlier decision and,

in particular, to any findings of fact, the judge

is not bound by the earlier court's assessment

of the parties or views as to the best interests

of the child. These are matters which cannot be

determined by any fixed or absolute standard.

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MR GRIFFIN (continuing):  The passage, of course, envisages

that the previous order followed a hearing, whereas,

in the present case, the previous order was a consent

order, but the passage, in our submission, applies

with at least the same and possibly even greater force

to a consent order. There may be all sorts of reasons

why. a party previously consented to an order for

custody in favour of the other parent and in each

case the reason for the consent being given to the

order and the significance to be attached to that

consent would need to be evaluated, bearing in

mind that when a consent order is made the court

learns little or nothing of the reasons behind it.

MASON CJ:  The important passage in the judgment in RICE AND

ASPLUND is·in following paragraph, is it not, the paragraph following the passage that you have read?

MR GRIFFIN:	Yes, Your Honour.
MASON CJ:	And that is the passage which obviously the primary

judge applied in the present case.

MR GRIFFIN:  Yes. They:

cannot be allowed to be recommenced

without some significant change

occurring after the original hearing.

MASON CJ:	Yes, and that is good sense, is it not?
MR GRIFFIN:	We attack that proposition because it is

inconsistent with the provision in section 60D that

the interests of the child are paramount.

TOOHEY J:  Well, unless there is some control of that nature,

Mr Griffin, what is to prevent the constant

relitigation of custody applications?

MR GRIFFIN:  The control that is indicated in the English cases,

namely that one cannot abuse the process of the court

by bringing a subsequent application on the same

facts and that is sufficient to prevent, for instance,

the constant litigator; after all, if someone has

brought a second application and then he fails and

then he brings a third application, the fact that he

has brought a second application which has failed

will be brought into account.	That is a sufficient
restraint in our - - -

MASON CJ:  But why is it a sufficient restraint because the test

for abuse of process is a very hard one to satisfy?

What is wrong with saying to an applicant in

circumstances such as this, "The previous order has

been recently made, approximately 12 months ago;

before we are going to undertake a full hearing we

need to be satisfied that there has been a significant,

a substantial, a material change in circumstances".

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MR GRIFFIN:	Yes.	Your Honour, we do not object to that

provided it takes place on the material that

has been filed. The court can look at the affidavits

in the case of a Family Court matter and determine

whether the affidavits demonstrate the change

of circumstances that is needed. But we particularly

object to the way the matter was handled in this

case.

MASON CJ:  But why, because there was cross-examination

on affidavits?

MR GRIFFIN:  Because the case did not begin as an inquiry

as to whether there was a significant change

of circumstances, it began as a case and then

this issue was raised after two witnesses had

been heard.

MASON CJ:  The point is that the judge did identify it

as an issue that he thought should be resolved.

The parties had their attention directed to the

issue. Why, having done that, could the judge

not proceed to deal with the issue?

MR GRIFFIN:  Because counsel for the husband obviously

believed that the case was being embarked upon,

as did his clien~ and it was too late subsequently,

in my submission, for the court to identify a

threshold question and to enable this sort of

procedure to be undertaken really leaves it to

the judge to determine in these cases which witnesses

will be called and how long the case ought to

last.

DAWSON J: Well, all the husband's affidavits were considered,

were they not?

MR GRIFFIN: It does not appear in the judgment that they

were, Your Honour. The husband filed a very

large number of affidavits, as Your Honours have

seen, and it would appear from the judgment that

all His Honour considered was the evidence that

was taken from the husband and Mr O'Hanlon and

then the evidence subsequently taken from

Mary Fay and Mr Christensen. But all of the

husband's affidavits were filed. But if it was

so clear on those affidavits that the husband

could not make out the necessary prerequisite
then that, in my submission, should have occurred

or his case should have been dismissed at that

point.

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MR GRIFFIN (continuing): But it is most unsatisfactory for

the case to begin a:id then for this procedure to be

identified and then for the husband's application

to be dismissed on this basis. That is - - -

DAWSON J: Well, really, that amounts to a submission that

more was heard than was necessary to determine the

threshold question.

MR GRIFFIN:  It does, and the whole reason behind the

threshold question, of course evaporates once this

happens. The reason that is given for there being

a threshold question is that it is undesirable from

the point of view of the children for the case to be

relitigated. But if it is going to be relitigated to

this extent there is not really any difference

between the position, so far as the welfare of the

children is concerned, between this, on the one hand,

and the hearing of the case in full on the other.

MASON CJ:	If that is the basic submission you make, the point of general principle disappears into thin air. What
you are doing is complaining about the primary
judge's conduct of this particular case.
MR GRIFFIN:	And the Full Court's endorsement of it, of course.

MASON CJ: Yes, but as a matter of principle, the case

disappears as one of general importance.

MR GRIFFIN: Well, we would submit not because it is very

important for the judges of the Family Court to know

how these matters ought to be proceeded with and if

this decision stands then, in my submission, there

the court ought to proceed and'there is really an	is just no indication, no clear guideline as to how
endorsement of the way the judge proceeded in this
particular case. So, to summarize, Your Honours, we
submit that there should not be a rule that a custody
order, even one made two years earlier, can orily be reopened· if there is a substantial change of
circumstances. We submit that such a rule is too
inflexible to accommodate the statutory requirement;
secondly, the fact that there should not be such an inflexible rule is supported by a comparison of the
two provisions to which we have referred, that there is
no support in the English authorities for this practice.
We do not seek to deny, of course, the right of the court to prevent abuse of process in the manner that
we have indicated, and we submit that the interests of
the children do not require a more stringent rule to
be applied before the court hears a fresh application.
The wishes of the children are communicated to the court through the court consellors and the fact that the case is litigated does not in itself really affect the children. Certainly there is no real difference

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as I said before~ between litigating the case

in full and doing what occurred in the present

instance.

Of course, the question whether the children

will be affected by a change in custody is not in

issue. That will be determined when the case is decided,

and whatever the test to be applied, the question

whether the matter is one which is appropriate to be

relitigated should be determined before the case

begins on the affidavit material filed in support of

the application.

MASON CJ:  Mr Griffin, I do not see the virtue of adopting such

a rigid approach to the determination of the threshold

question. It may be that in some cases the judge, in

order to evaluate how strong the case is in relation to

change of circumstances, needs to do a little more

than read the affidavits. He may need to have the

benefit of cross-examination of some of the witnesses

in order to evaluate how strong the case for change

of circumstances appears to be. It seems to me that each

case must be tailored to its own circumstances and

an approach worked out which in the mind of the primary

judge is best for that particular case.

MR GRIFFIN: Well, the problem though is that then two issues

are confused: one, the threshold question, and

secondly, the hearing of the case itself.

TOOHEY J: Well, I wonder about that. You appear to place, as

it were, in opposition to each other, two considerations:

one, changing circumstances, and the other, the welfare
of the children, but they are not in opposition.

Change in circumstances, is a matter that the court

could look at to see whether there had been any

change which bore upon the welfare of the children,

having regard to the order that had been made

previously, whether by consent, or as a result of

a hearing and let us note at page 25 of the

application book, Mr Griffin, in the judgment of the

Full Court it said:

His Honour conducted a full hearing on the

merits, as to whether there had been a

sufficient change in circumstances, or other

factors had arisen affecting the welfare of

the children since the making of the original

order.

It is not as if it were the change of circumstances

in abstract that whether anything had happened which

bore upon the welfare of the children since the making

of the original custody order.

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MR GRIFFIN:  Yes, but, of course, Your Honour, in doing

that he only heard some of the evidence which is

our major complaint. If he was going to hear

some of the evidence then he should have heard

all of the evidence.

MASON CJ: You have made that point, I think, Mr Griffin.

That message has been received.

MR GRIFFIN:  Yes, we cannot take the matter any further,

if the Court pleases.

MASON CJ:  Thank you, Mr Griffin. The Court need not trouble

you, Mr Douglas. Without proceeding to a full

hearing, the primary judge, after hearing the

husband's case or a substantial part of it in his

application for a custody order, ruled that the

husband had not made out a case of substantial or

significant change of circumstances since the

consent order for custody in favour of the wife

had been made approximately one year earlier.

The primary judge stayed the application; the Full Court varied the order by dismissing the

application.

power to deal with the case as he did,and that	The applicant submits that the judge had no
there was an error in principle on his part.	In

our view, in the light of the facts of this case,

the primary judge had a discretion to deal with
the issue of change in circumstances as a fresh
threshold question and we are not persuaded that
there was any error of principle on the part of

the primary judge or on the part of the Full Court.

The application for special leave is therefore

refused.

MR DOUGLAS:  If the Court please, I ask for cost of the

application.

MASON CJ: Yes. Mr Griffin?

MR GRIFFIN: I cannot resist that, if the Court pleases.

MASON CJ: Very well, the application is dismissed with

costs.

AT 10.07 AM THE MATTER WAS ADJOURNED SINE DIE

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