MMW v JAB

[2004] HCATrans 61

[2004] HCATrans 061

IN THE HIGH COURT OF AUSTRALIA

Registry  No C1 of 2003

B e t w e e n -

MMW

Applicant

and

JAB

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2004, AT 1.17 PM

Copyright in the High Court of Australia

MMW appeared in person.

KIRBY J:   You understand the practice of the Court not to name parties ‑ ‑ ‑

MMW:   I do.

KIRBY J:   ‑ ‑ ‑ in protection of the children who are involved in proceedings in the Court?  So I will just call you the applicant, is that all right?

MMW:   That is fine, your Honour.

KIRBY J:   I understand that you served the notice of application on the mother in these proceedings and that she has indicated to the Registry that she does not wish to be heard in the ‑ ‑ ‑

MMW:   I do not know, your Honour, that she had actually gone so far as indicating to the Registry other than by a lack of indication.

KIRBY J:   I made enquiries because I was concerned that, if she had not been served, we might have a problem.

MMW:   Well, I stand corrected on that if you say she has contacted the Registry, but it is my understanding that she has made no contact.

KIRBY J:   Yes.  Well, in any case you have an affidavit of service, is that correct?

MMW:   Correct.

KIRBY J:   This is an affidavit sworn by you on 8 March 2004.

MMW:   That is correct your Honour.

KIRBY J:   You file that in these proceedings.

MMW:   Yes.

KIRBY J:   That indicates that the application has been sent to the respondent at her registered post office.

MMW:   Correct.

KIRBY J:   To her home address, rather.

MMW:   Yes.

KIRBY J:   Yes, very well.  We can take it, therefore, that the respondent does not wish to be present in the Court today and I do not think it is necessary to have her called outside the Court, having regard to what I understand to be the case.  Now, there is a problem of compliance with Order 69A rule 3(1), but I think in this case the Court would simply deal with the matter on the basis of your application to decide whether or not it is necessary to extend time.  You did give an explanation for the reason for the time – you tried first to appeal to the Full Court of the Family Court.

MMW:   Correct, your Honour.

KIRBY J:   And you then were told that the judge of that Court had been exercising the powers of the Full Court and, therefore, that you had to apply to this Court, is that correct?

MMW:   Well, I was running on phone advice, your Honour, and I was told, you know, submit this Form 42.

KIRBY J:   Well, I do not think that if you have otherwise a case that the Court would allow the time problem in those circumstances to stand in the way of the case being brought to the Court.  You also raised a special question concerning costs.  You asked that each party bear its own cost, but as the mother is not present today ‑ ‑ ‑

MMW:   It simplifies the ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ that would normally follow anyway, so that there would be no costs that she has come to seek, therefore, you need not trouble yourself with that matter.  So you can proceed to make your submissions.  You realise that there is a time limit.

MMW:   I do, your Honour.

KIRBY J:   We have read the written submissions, so there is no need for you to repeat what is in those, but this is your opportunity to put your case to the Court.

MMW:   Firstly, your Honour, I would like you to quickly fix up a typo of mine on this decision tree.  Down the bottom I have said the “Pre‑school teacher recommends 2002” ‑ ‑ ‑

KIRBY J:   Where do we find this?  I see, this is in a written document.  Yes, what is the typographical?

MMW:   On your copy it will say “2002” which ‑ ‑ ‑

HAYNE J:   Should be 2003.

MMW:   2003.  It is probably enthusiasm on my part.

KIRBY J:   Yes, very well.  We both corrected that in the document.

MMW:   Firstly, I would like to start with ground 6 of my appeal where the judge erred by placing little weight on the mother’s resumption of work.  Ground 6 relates to ground 8 of the appeal before the Full Court of the Family Court.  Now, I do not see working in itself as the problem.  The misrepresentation is the problem.  Paragraph 111 of page 67 of the application book, the appeal judge is referring to the Federal Magistrate and she quotes or paraphrases him to say that:

all the matters which favoured the mother would be outweighed by the factors which favoured the father, were it not for his concerns about three matters, being the father’s attitude to the relationship between the child and the mother, the father’s personality, and “the schooling issue”.

Now, I will take you to the Federal Magistrate’s decision tree.  Obviously for space limits I have paraphrased greatly what the Federal Magistrate said, so it can be seen as a road map rather than the entire document.  So over here is his conclusion which he has drawn from these last three items here in paragraph 54 of his reasons.  In paragraph 54, he said that parental availability must lean towards the mother, but in both cases there is a sense of equality.  Again, the issue of primary parent, lean towards the mother, but there is a sense of equality.  So he said those two would be overpowered by a) and b) in paragraph 53, the accommodation issue, and the child’s wishes.  I would like you to question ‑ ‑ ‑

KIRBY J:   Do you realise that your application to this Court is not from the Federal Magistrate, but from the Full Court of the Family Court, constituted by Justice Finn?

MMW:   Correct.

KIRBY J:   You have to somehow lift it up into this Court on the basis of an error of her Honour, what is essentially an evaluative, quasi‑discretionary decision, which has, since biblical times, been a very difficult decision for anybody to make, including judges.  That is a reason for great restraint in appellate courts interfering with those decisions, and that is basically what Justice Finn said.  We are not here to retry the Magistrate’s decision ‑ ‑ ‑

MMW:   No.  We are here to examine what Justice Finn said.  Justice Finn should have questioned how the Federal Magistrate would have worded paragraph 54a) had he had that information in front of him.  Had the mother said to him, “No, I am not going to stay at home and look after the child.  He is going to be dropped off at school at 8.30 and I will pick him up at 5 o’clock”, instead of saying, “I will be home all the time to look after him”.  Now, I am not too sure if I have jumped ahead – no, I did specify that I did not see the working as the problem, it was misrepresentation.  So Justice Finn should have questioned how he would have reworded that and, more importantly, where it would have been.  If he had had that ‑ ‑ ‑

KIRBY J:   But if you have a change of circumstances, do you not have an entitlement, under the Family Law Act, to approach the Family Court for new orders based upon the changed circumstances?

MMW:   Well, the changed circumstance is somewhat complicated in that she gave quite a detailed undertaking and, by her own admission, was working a month later.  Child support agency documents say she was actually working two weeks prior to the trial. 

KIRBY J:   Well, that might also give rise to some applications in the Family Court, which we cannot deal with, but what you have to do is try to attack the decision of Justice Finn, which essentially, as her Honour said, was exhibiting the caution that an appeal court has to exhibit in reversing the decision of the primary decision‑maker in a case of this kind.

MMW:   Well, she did accept the new evidence, your Honour ‑ ‑ ‑

KIRBY J:   That is true.

MMW:   ‑ ‑ ‑ and was prepared to make consideration on the basis of that.  I feel strongly that she should have looked at the bigger picture and she decided ‑ ‑ ‑

KIRBY J:   Well, as her Honour said herself, there was a question as to whether she should have received the new evidence, but she did receive it and so elaborated the record, and on the basis of the elaborated record at that time she reached the view, including by reference to the restraint which this Court has taught in a number of cases appeal courts have to exhibit and would not interfere with the decision which was made.

MMW:   In paragraph 112 in application book page 68 she says – and I am paraphrasing here – begins by saying that the new evidence would further bias 54a) toward the father.  She accepts that.  What I am asking you to say is that she has made a mistake, because 54a) – 54 says it belongs to the mother.  That is evidence favouring the mother.  I am saying she made a mistake in saying that it could be simply just inflated.  If that is accepted, it can only inflate a little bit before it pops over to the other side and goes from here to here, and now is evidence – arguments favouring the father, myself.  That, your Honour, is the crux of my ground 6.

KIRBY J:   But her Honour says that the fundamental problems remain, notwithstanding the new evidence which she received, and these were the concerns of your attitude to the relationship of the mother and the child ‑ ‑ ‑

MMW:   I plan to cover ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ and the father’s personality and the schooling issue.

MMW:   Yes.

KIRBY J:   Now, on the personality issue, there is a point in the written submissions where you pick up something, that you did not have a masters degree, but an honours degree.  It seems a slightly technical sort of point to pick up.

MMW:   Yes, that is a minor point ‑ ‑ ‑

KIRBY J:   That is the kind of matter that was rather concerning the Magistrate, I think. 

MMW:   Well, the Magistrate did not see that ‑ ‑ ‑

KIRBY J:   No, I know, but it was said to be an indication of a certain strictness of personality that was a factor in the Magistrate’s reasoning.  It is only a trifle in this case, really ‑ ‑ ‑

MMW:   It is only a trifle ‑ ‑ ‑

KIRBY J:   There are big issues here and ‑ ‑ ‑

MMW:   Well, the bigger issue in that point there was that the mother is, according to the Federal Magistrate – and the appeal judges also picked up on this  and carried it forward as background – is that the mother was, according to the Federal Magistrate, at home for almost 12 months looking after the child, whereas her own evidence, my own evidence, said three months, so that there were a number of errors in the background that forms a foundation for the decision.  So that was the crux of my ground 6 of the appeal. 

Ground 7 and ground 3 look at the issue of credibility:  ground 7, the judge further erred in relation to the mother’s resumption of employment in not considering the implications to the value of the mother’s credibility; ground 3, the judge erred by accepting without question the original trial Magistrate’s opinion of the father’s credibility.  Now, I have just asked you to consider how the appeal judge should have considered that the Federal Magistrate may have made his decision had he been told that the mother plans to leave N at school before 8.30, pick him up after school at 5 o’clock.  Now I would like you to consider how she should have ‑ ‑ ‑

KIRBY J:   I think that that evidence was before Justice Finn, was it not?

MMW:   It was.

KIRBY J:   She received that evidence.

MMW:   Yes.

KIRBY J:   So when she came to consider what the appeal court should do, she knew the matter that you are complaining about, and what you are essentially saying is that the High Court of Australia should take the matter on for itself to re‑evaluate the factual evidence in the case.  That is not something that this Court does, really, because we have got to be concerned with issues of general principle.  In particular cases of injustice, we will sometimes take matters up, but very rarely where they involve evaluative and discretionary decisions, because those decisions are extremely difficult and one person’s opinion is often going to be different to another person’s. 

MMW:   Well, the principle here that we need to be looking at is, how narrowly can we look at the implications of a piece of evidence?  It has been accepted by the judge.  I feel that she should have looked at that evidence and looked at how it affected the Federal Magistrate’s decisions about issues of credibility.

KIRBY J:   Well, no doubt you pressed that upon Justice Finn.  No doubt you urged that on the judge. 

MMW:   I feel it was.  I had representation at that time.  So I feel that fresh evidence should have caused the judge to deeply consider the Federal Magistrate’s assessment of both parents’ credibility.  The Federal Magistrate had certainly stated a preference for the mother’s evidence.  He gives that in paragraph 11 in the application book 4 – that says “generally” – and then specifically in paragraph 18, which has implications to his assessment of my personality.  So credibility had become a key issue. 

KIRBY J:   Yes.  Would you just - yes, go on, you complete your submissions.

MMW:   Yes.  So looking at the decision tree again, the issue of my personality derives from down here, in paragraphs 16, 17 and 18, where there are four events and two versions of each event.

KIRBY J:   Yes.

MMW:   The Federal Magistrate has accepted the mother’s version and the appeal judge has accepted it.  In deciding that, yes, my personality was an issue in deciding the residence of my child.  I feel that the appeal judge should have considered how enthusiastic the Federal Magistrate would have been to accept the mother’s version, if he had known the truth of her work claims.  This person is sitting in front of him giving evidence, that he is accepting, saying that she is not going to look for work, has actually got a job. 

KIRBY J:   Well, you placed all of this before Justice Finn and she had that all before her and she reached her view.  Essentially, you are just saying that the High Court of Australia, with its important constitutional and other duties, should deal with the matter and rehear the facts and reconsider the facts.

MMW:   I do, your Honour.  I consider my son very important ‑ ‑ ‑

KIRBY J:   Of course, you are, and I consider you important too.  You are a citizen and you are entitled to every right that a citizen has, but we can only hear so many cases ‑ ‑ ‑

MMW:   I appreciate that ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ and normally they have to have some issue of general principle.  Could you just wait a moment and I will stop the clock for a moment, because there is something I want to raise with Justice Hayne.  We will start the clock again.  I interrupted your submission because of a concern that I had about something that is said by Justice Finn in 113, which relates to her Honour’s statement that she had considered the new evidence, but was:

not satisfied that the further evidence would have produced a different result if it had been available at trial.

The question is whether that was the correct approach that her Honour should have taken, or whether she should then, as an appeal court, have gone on to consider the case with the new evidence, instead of considering what the Magistrate would have done with that evidence.  Her Honour then goes on to say, in paragraph 114, that she had considered the new evidence with a view to deciding whether the evidence:

should be allowed on the basis of new evidence, when the consequence of allowing an appeal would be –

so that it would appear that that would lead to the rejection of the new evidence as anything that was new and, therefore, that you would not be any better off than you were with the evidence that you had before the Magistrate.  Do you understand the matter I have raised?

MMW:   I think so, that ‑ ‑ ‑

KIRBY J:   It is just a question of whether Justice Finn went about the matter in the right way, but even if she did not, whether her failure to do so matters, given that she says:

However, it is an observation which, in my opinion, also has application when determining whether an appeal should be allowed on the basis of new evidence –

This Court, in the case of CDJ, which her Honour quotes at paragraph 113, really indicated that it would rarely – seldom, if ever, be in the interests of justice to accept new evidence, as distinct from allowing people on new evidence to go back and say the circumstances have changed and apply on a completely fresh basis to the Family Court, on the basis of new developments.

MMW:   Well, the development, at best, was only a month after the trial, before the reasons had been published and, at worst, it actually happened before the trial. 

KIRBY J:   Yes.  Well, is there anything else that you wish to say?  I see the warning light is on, but you still have got a few minutes, if you want to use them.

MMW:   Yes, I would.  As regards ground 8 – and this relates to ground 7 of the appeal – both parents submitted a plan for N’s education, the beginning of his education.  Both of them were good plans and both were within the normal guidelines applied by New South Wales educational authorities.  They were different.  I was baffled in court by the strong reaction by J’s counsel and the Federal Magistrate, and the appeal judge found that I may have been misrepresented by the Federal Magistrate in paragraph 94, application book 62. 

I feel that the Federal Magistrate was considering ACT starting ages, rather than New South Wales starting ages, and it was difficult to conduct the appeal on that issue, because the Federal Magistrate only said he was concerned.  He did not specify ‑ ‑ ‑

KIRBY J:   What was the point of difference between you and the mother on this issue?

MMW:   Well, if I can ‑ ‑ ‑

KIRBY J:   Did you want the child to start earlier, or later?

MMW:   Well, I submitted plans for both possibilities.  This was maybe six months before starting school, and I submitted there is a bright child and we needed to consider whether we have a 2002 start.  I also planned for the 2003 start.  On paragraph 95, application book 62, the appeal judge quotes one paragraph of my submission regarding starting school ‑ ‑ ‑

KIRBY J:   Yes.

MMW:   ‑ ‑ ‑ paragraph 71 of mine, but neglects paragraph 72, which was brought to her attention where I consider a 2003 start.  The mother wanted a 2003 start.

KIRBY J:   But is this not water under the bridge now?  Here we are, in 2004 ‑ ‑ ‑

MMW:   It is, but the decision is not.

KIRBY J:   Well, it may not be, but we would not engage the attention of the High Court of Australia to something which is really in the past.  We have enough to do with things that are in the present and the future.

MMW:   I submit the Federal Magistrate made a mistake ‑ ‑ ‑

KIRBY J:   Well, I understand that, but that is not enough to get into this Court.

MMW:   Yes.  The appeal judge looked at – and, yes, she did look at the issue and I think she was as baffled as I was as to what the concern was, because she did look very closely at it.

KIRBY J:   I think you are wasting your time on this point.  Your time, in any case, is up.  Is there any last matter that you wanted to say, briefly?  We do understand that this is a very important matter for you.  You are having contact with your son, I assume?

MMW:   I am having some problems with it, yes.

KIRBY J:   Yes, but that is something you can take up with the Family Court, if you say there are problems.

MMW:   I have taken it up and ‑ ‑ ‑

KIRBY J:   Well, that is a different matter, anyway.

MMW:   Yes.

KIRBY J:   Maybe I should not have asked you the question.  Thank you very much.  Justice Hayne will pronounce the order and give the reasons of the Court.

HAYNE J:   The applicant seeks special leave to appeal against the orders of Justice Finn of the Family Court of Australia dismissing his appeal against orders made by Federal Magistrate Brewster concerning the residence of, and contact with, the child of the parties to the application.  The application to this Court raises no point of general principle and the matters that the applicant seeks to agitate are directed entirely to factual issues. 

We are not persuaded that the interests of justice, either generally or in the particular case, warrant a grant of special leave to appeal to this Court.  Accordingly, special leave to appeal is refused.

KIRBY J:   Adjourn the Court now until 2 o’clock on Tuesday, 16 March in Sydney.

AT 1.45 PM THE MATTER WAS CONCLUDED