MRR v GR

[2009] HCATrans 248

[2009] HCATrans 248

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B20 of 2009

B e t w e e n -

MRR

Applicant

and

GR

Respondent

Application for special leave to appeal

HAYNE J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 2 OCTOBER 2009, AT 12.24 PM

Copyright in the High Court of Australia

MS L.A.R. GOODCHILD:   If the Court pleases, I appear for the applicant.  (instructed by Neisha Shepherd Solicitor)

MR G.K.W. PAGE, SC:   May it please the Court, I appear for the respondent.  (instructed by Rod Madsen Solicitor)

HAYNE J:   Ms Goodchild, among the matters you would seek to agitate here is, as I would understand it, whether the federal magistrate took account of all of the relevant provisions of the Act.  Is that right?

MS GOODCHILD:   Yes, your Honour, that is right.

HAYNE J:   In particular, whether the federal magistrate took account of the issues of reasonable practicability presented by section 65DAA(5).  Is that right?

MS GOODCHILD:   That is exactly right, your Honour.

HAYNE J:   There are then some related issues about what might be called the process of assessment, namely whether best interests is a matter to be considered separately from reasonable practicability, whether best interests are matters that fall within section 60CC(3)(m), any other fact or circumstance, but the central issue that you would seek to tender is this issue concerning the application of reasonable practicability.  Is that right?

MS GOODCHILD:   Yes, and if I can just simply add that whether or not by addressing matters in section 60CC and then referencing them in a sense to the matters to be raised under section 65DAA(5), that that is sufficient for the purposes of the work that section 65DAA(5) is required to do.

HAYNE J:   Perhaps we might be assisted by hearing at this point from Mr Page.

MR PAGE:   Your Honours, I agree that these are the two aspects of this matter that we have to address.  Can I just say this at the outset.  Nothing in the legislation requires a judge to present a judgment in a formulaic manner that details each of the sections that are mandatory to be taken into account both in section 60CC and section 65DAA, but in this case, the questions under section 65DAA clearly arose, and the trial magistrate dealt with them and the Full Court on appeal found – and that is at page 72 of the book – that he had dealt with each of the matters that he was required to deal with, both under section 60CC and section 65DAA.

HAYNE J:   Where do we most conveniently find first, the Full Court’s treatment of that issue, and then second the federal magistrate’s treatment of that issue?

MR PAGE:   I will direct you firstly, your Honours, to page 72 and to paragraph 99 particularly where the Full Court says:

We are satisfied that the four specific factual matters which are referred to in Grounds 15 to 21 –

and those are the matters under section 65DAA to which my learned friend refers –

and which are asserted on behalf of the mother not to have been adequately considered by his Honour, were considered by him in the course either of his consideration of the s 60CC matters or of his extensive review of the evidence at the commencement of his reasons, to a sufficient ‑ ‑ ‑

HAYNE J:   Correct me if I am wrong, but is not paragraph 99 concerned with the matters last identified in the paragraph, namely capacity to communicate, lack of respect, approaches to parenting, and role as primary caregiver.  What I am presently concerned about is where the Full Court and then where the federal magistrate gives specific attention to this issue, to this issue of reasonable practicability.

MR PAGE:   He did not, and the Full Court did not in those terms.  At paragraph 96 on page 71, the Full Court says:

It is true that in these paragraphs, his Honour did not expressly address the issue of whether an equal time arrangement would be “reasonably practicable”, nor can he be seen as addressing the matters which s 65DAA(5) requires should be addressed in determining the matter of “reasonably practicable”.

HAYNE J:   Does that tender a question of general application in family law in this country, a question about the construction of the Act, in particular relocation cases, but perhaps not even confined to relocation cases?

MR PAGE:   Yes, it does.

HAYNE J:   If that is so, why should we not grant leave?

MR PAGE:   Simply because the meaning of “reasonably practical” is not made clear by the legislation in the terms of ‑ ‑ ‑

HAYNE J:   Exactly so, and that may be the very reason why we have to take the case.

MR PAGE:   Your Honour, I cannot help you because none of the decisions that have had to deal with this section have addressed that question, and the legislation ‑ ‑ ‑

HAYNE J:   But a complaint made in this matter is that the Act required consideration of reasonable practicability in circumstances where the parents of the child, putting it as neutrally as I can, appeared likely to be living at a distance, and reasonable practicability then injects questions about, does that mean somebody has to move, or does it mean nobody has to move?  Where does all that take us?  It seems at least at first blush to present issues of a kind that this Court should look at, but if that is not so, now is the chance to tell us why it is not so.

MR PAGE:   I will endeavour to show why it is not so by looking firstly at the legislation.  Section 65DAA(1)(b) is the first time in which the word is used, and it directs the court to consider whether the child spending equal time with each of the parents is “reasonably practicable”.  The terms of section 65DAA(5) then direct the court as to how it ought to do so, and it

must have regard to:

(a)how far apart the parents live from each other; and

(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time . . . 

(c)the parents’ current and future capacity to communicate with each other and resolve difficulties . . . 

(d)the impact that an arrangement of that kind would have on the child; and

(e)such other matters as the court considers relevant.

Now, it is my submission that in this case, taking that definition, that the federal magistrate did exactly those things.  Firstly, he knew how far the parents lived from each other.  There were three options given to him, one the mother live in Sydney, and the father in [name].  The second was that the mother and father both live in [name] and they were the only two that were termed to be practical having heard the evidence of the father that he would not move from [name].  So the federal magistrate considered that factor. 

The future capacity to implement an arrangement for the child spending equal time or substantial and significant time with each of the parents was addressed by the federal magistrate in terms of section 60CC when he came to look at the ability of each of the parents to promote the relationship between the child and the other parent.  It is true to say that he did not turn his mind to look at how the child might move from one house to another, if that is what is meant, but it is the future capacity to implement an arrangement of the child spending equal time or substantial or significant time with each of the parents.

In this case, he accepted the evidence of a court counsellor that proximity was important for the future relationship of this child with each of the parents.  He accepted that the mother would not promote the relationship between the child and the father, and he considered each of the two competing proposals of the parties, concluding that there was a better capacity in the implementation of the arrangement for the child spending equal time if the child went to the parties week in, week out, and that that occur in [name] so that ‑ ‑ ‑

HAYNE J:   Which would entail what consequences for the mother?

MR PAGE:   It would entail a consequence that she would live in [name].

HAYNE J:   Yes, but that is the end description of the consequence rather than the intermediate steps.  It meant, did it not, that she would have no practical chance of employment?

MR PAGE:   That was not clear.  I think that is a fair statement although it was not clear on the evidence.

HAYNE J:   That she would therefore live on welfare?

MR PAGE:   Yes, but those are not the factors which are relevant to the matters under practicality.  They are the future capacity to implement and arrangement for the child spending equal time.  Those factors and the effect upon the mother are quite clearly not what the legislation intends as relevant.

HAYNE J:   I suspect, but do not know, that that comes close to a central part of the argument that is advanced against you, that practicability does encompass such issues and that it is that kind of issue which is presented by the legislation.  How all that plays out if leave were to be granted is a matter for later argument, but can I just understand where we may have got to so far, Mr Page.  First, as I understand it, you accept that there is a question about construction of the statute, second that that question of construction is one of general application, and the third point to which I would like to direct your attention at the moment, is there anything about the particular course of proceedings here, the particular facts of this case, that make this an inappropriate vehicle in which to consider those questions of general application?

MR PAGE:   Yes, there are, and they are these.  There were significant findings made by the trial magistrate in relation to the ability of the mother to promote the relationship between the child and the father.  There was evidence given by the mother, there was evidence given by her mother and her family, which quite clearly led the magistrate to conclude that left with the mother, this child’s relationship with the father would be in jeopardy.  There was evidence from a court counsellor which was accepted by the federal magistrate and not challenged, that proximity of this child to both parents was important for the maintenance of its relationship with each of the parents, and those factors were significant factors relating to the determination of what was in the best interests of this child.

Those two factors both take up the question of relocation.  They both take up the factors in section 60CC and they go to the crux of what this Court was there to determine, namely what was in the best of interests of this child, and that is required by section 60CA, so that this Court determined this matter.  The federal magistrate had the benefit of seeing the parties and determining those matters without a necessary reference to the questions under section 65DA specifically, and the practicality specifically because they were determinative of what was in the best interest of this child.

My submission is that whilst the Court must take into account those matters, it does not have to enunciate each of the factors which it is required to look into.  As was said in U v U, the court determines this matter as a whole of a parenting issue, and where there are factors upon which it can determine those, and in this case it did, it does not need to turn to those which would not otherwise affect its decision.

The converse of that is, there is nothing which would show that had his Honour specifically turned his mind to the question of practicality in terms of equal shared care, that the result of this case would have been any different.  In other words, even if there was that lacuna, it is impossible to show that this appeal would be successful.

HAYNE J:   Yes.  Is there anything further you wish to add, Mr Page?

MR PAGE:   Not to those questions, your Honour, no.

HAYNE J:   Or at all, Mr Page?

MR PAGE:   No, thank you, your Honour.

HAYNE J:   Yes.  Thank you.  Ms Goodchild, it is said that the case is an inappropriate vehicle because only one outcome could have occurred having regard to the findings made.  What do you say about that point?

MS GOODCHILD:   If the court had properly considered the matters under section 65DAA(5), it is very likely that the order that the court made in terms of an equal time order would not have been made.  So my friend’s proposition that there be absolutely no difference is certainly a proposition that would be strongly opposed.  It is because the court did not turn its mind to the specifics or did not turn its mind to the matters that it is to look at for the purposes of section 65DAA, that the equal time order was made in the manner that it was.

KIEFEL J:   Do you say that the approach that Mr Page has taken to the question of outcome which focuses upon the trial magistrate’s findings in relation to the child’s best interests denies the relevance of the considerations under section 65DAA?

MS GOODCHILD:   Yes.  The trial magistrate and the Full Court considered that because his Honour at first instance considered matters under section 60CC, and some of those matters are what has been termed as “similar considerations” or “similar factual matters”, as what is required under section 65DAA(5), then in a sense the work for section 65DAA(5) has been done, but the position of the mother is that section 65DAA goes to what his Honour indicated earlier; the real nuts and bolts of what is going to happen when you make an equal time order.

HAYNE J:   I would have thought that the relevant start point from your side of the debate is to observe that 65DAA(1)(b) is a consideration that in the old language was a mandatory consideration.

MS GOODCHILD:   Absolutely.

HAYNE J:   It has not been, is as I understand the point that your side of the debate wishes to make, and you say therefore consequences follow.

MS GOODCHILD:   That is exactly the case.

HAYNE J:   Could I take up with you, Ms Goodchild, questions if there were to be a grant of leave about the state of the notice of appeal.  I say this, not intending in the slightest to be critical of the author, but it is a document which is perhaps a little too discursive and a little too obscuring of what is,

at least at the start, a quite confined question of statutory construction.  The answer to the confined question of statutory construction may not be nearly so confined, but if there were to be a grant of leave, it would be necessary, I think, to give the closest attention to the notice of appeal and recast it having regard to what has occurred, but perhaps if you would be good enough to take a seat for a moment.

MS GOODCHILD:   Thank you.

HAYNE J:   There will be a grant of leave in this matter.  It would seem to us, subject to what counsel may say, that this is a one day case, although of course some consideration will have to be given to the factual background of the matter.  The central issues are issues of statutory construction.  It appears to be a matter of general application which may be a matter which legal aid authorities might usefully bear in mind, because this Court will be assisted by argument that reflects the importance of the issues that fall for consideration.  As I say, I hope, subject to anything counsel may say, it is a day case.  Do counsel seek to be heard against that estimate?

MS GOODCHILD:   No, your Honour.

MR PAGE:   No, your Honour.

HAYNE J:   There will be a grant of leave.  The Court will adjourn to 10.15 am on Monday, 12 October in Perth.

AT 12.46 PM THE MATTER WAS CONCLUDED