SCVG v KLD

[2011] HCATrans 285

[2011] HCATrans 285

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S196 of 2011

B e t w e e n -

SCVG

Applicant

and

KLD

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2011, AT 12.10 PM

Copyright in the High Court of Australia

MR B.A.J. COLES, QC:   If your Honours please, I appear with MR I.R. PIKE, SC for the applicant.  (instructed by John de Mestre & Company)

MR J.C. KELLY, SC:   If your Honours please, I appear with my learned friend, MS J.A. REES, SC, for the respondent.  (instructed by Macphillamy’s)

GUMMOW J:   Mr Coles and Mr Kelly, you are not responsible for this, but there has been some anonymisation of your respective clients in the Federal Court proceedings.  How does that come about?

MR COLES:   I cannot completely answer your Honour’s question.  It is certainly the practice of the court to anonymise the – I would expect, your Honour ‑ ‑ ‑

GUMMOW J:   Anonymisation is one thing.  Picking the names of well known race horses is another.  It seems to us to diminish the gravity of this litigation for the parties and so we express our disapprobation of the Federal Family Court practice in this respect.  Yes, Mr Coles.

MR COLES:   May it please the Court.  Your Honours, the first issue raised by the questions identified at page 161 of the application book concerns what the applicant contended before the Full Court of the Family Court was the impermissible use of extraneous material in the nature of evidence.  If your Honours would go please to application book page 16, your Honours will see at paragraph 28, which I was intending to draw to your Honours’ attention ‑ ‑ ‑

GUMMOW J:   I am sorry, Mr Coles, paragraph?

MR COLES:   Paragraph 28 of the learned Federal Court magistrate’s judgment, if your Honours please.

GUMMOW J:   Yes, we see that.  We see the Full Court came to the view that in the end it was not that significant.

MR COLES:   Yes, well, we need to deal with that approach, your Honour, because it underpins the question of importance which we say the case in consequence presents.  Your Honour sees, in effect, the cautionary note being sounded about the application of what the legislation prescribes or declares to be a presumption.  The central reasoning, or the paragraph really, which is paragraph 31, of the learned magistrate’s reasons appears on page 19 of the application book where the learned magistrate says:

All of this research is background material to my judgment. 

He points out unquestionably correctly that –

It is not evidence. 

It could not have been evidence, plainly, and he says –

It is not material in respect of which I take judicial notice –

If we may respectfully observe, your Honours, that if you look at section 144 of the Evidence Act and the limited matters in relation to which it authorises the taking of judicial notice, of course that resort is itself dependant upon considerations of fairness and notice to the parties.  So he was, in a sense, correct.

BELL J:   I think the point that is taken against you is there is no issue about the principles to be applied respecting the use of material of this character.  The Full Court expressed the view that it would have been preferable that the federal magistrate had not adverted to the material, but after a careful review of the magistrate’s findings and reasons found no trace of the material reflected in a reasoned judgment.  What is wrong with that?

MR COLES:   That is our complaint, may it please your Honours.  Could I ask your Honours then to go to page 129 of application book.  The central conclusion of the Full Court of the Federal Court is, of course, in paragraph 56 which I want to take some matters up in relation to it in just a moment.  The first observation, of course, is that their Honours said:

We accept that it would have been preferable for the learned Federal Magistrate to not have referred –

to the matters which he said formed both the background to his judgment and, of course, material which assisted in the understanding of the expert’s report.  We respectfully suggest that an expression of it as being preferable significantly understates the relevant and requisite principle.  The principle, in our respectful submission, conveniently is found in many cases, but in this Court’s decision in Scott v Numurkah Corporation, which had been referred to in the submissions, it said:

It is not permissible, however, for the Judge to gather anything in the nature of extraneous evidence and apply it in the determination of the issues unless the facts are openly ventilated and exposed to the criticism ‑ ‑ ‑

GUMMOW J:   That was a case about a view, was it not?

MR COLES:   A view under demonstration, that is right.  But their Honours are approving an observation which incidentally emerged from some Family Court proceedings in New South Wales, a decision of Justice Davidson.  The observation is that it is not permissible, not that it is not preferable, to gather anything in the nature of evidence.  So whatever this material might have been, it was not evidence, it was not matters of which the learned magistrate could take judicial notice, but it was, very plainly, something or material in the nature of extraneous evidence and to say no more than it would have been preferable not to have done it significantly erodes and understates the prohibition which, in our respectful submission, not only represents the law, but is consistent as a prohibition with other Family Court authority to which the submissions refer.  Their Honours then acknowledge its importance.  They refer to it not having been raised with the parties and acknowledge that it was perhaps:

able to be addressed in the various ways suggested by Senior Counsel for the father.  We also accept the submission of Senior Counsel for the father that reference to materials to which the parties were not privy prior to receipt of the Federal Magistrate’s Reasons for Judgment would cause some disquiet in the mind of the litigant –

Again, one is conscious, in our respectful submission, of the significance of disputes and forensic contests of the kind with which the learned Federal Court magistrate was dealing, the community significance as well as the immediate significance to the parties, and to belittle that concern by describing it as susceptible to generating disquiet, in our respectful submission, significantly watered down the concerns which should have activated the court’s attention.  But then comes, I suppose, the nub:

However, for the reasons we have recorded above, we are not persuaded that any material finding of fact made by the learned Federal Magistrate, or conclusion reached –

including one of opinion or evaluative judgment, we would suggest –

by him, was reliant upon any of that material.

One immediately asks, how could they know and what were the findings or the reasons recorded above?  Paragraph 55 on the same page says:

Quite apart from the absence of literal reference to the academic materials, the findings of fact recorded in each of these paragraphs were clearly made in reliance upon the evidence before his Honour –

Two things may be observed about that comment.  Firstly, of course, it reflects the approach the Full Court took.  When you come down to about line 50 on the page:

Senior Counsel for the father was unable to refer to any other passage in the learned Federal Magistrate’s Reasons for Judgment which were asserted to have been reliant in any way upon the academic materials to which his Honour referred –

We ask, how could he possibly do so, because here the parties are told the learned magistrate has as background to his reasons, which of them, all of them, some of them, in an unidentified way as well as being of assistance in understanding unspecified evidence of an expert.  How could counsel have demonstrated ever in such a case the extent to which the material said to be background, which may mean foundational, it may mean a platform, it may mean that it underpinned ‑ ‑ ‑

BELL J:   Does that carry with it that no matter how careful the reasoning process exposed by the magistrate respecting the findings of fact and his application of established principle to them, his wrong reference to material in the literature in this field meant that the Full Court had no option but to allow the appeal?

MR COLES:   Yes, that is our submission.  I will say why I make that submission.  The proposition put against the argument in the Full Court of the Family Court, understandably we would suppose, was that to use the words quoted from counsel for the respondent.  I think this comes from paragraph 53:

The fact that they may have been supported by the “research” was not the point – they had an independent and ample basis in the evidence.

The difficulty with the proposition that there was ample and independent basis in the evidence is that the findings on that ample and supposedly independent evidence were findings based on evidence, the review or the evaluation of which was itself underpinned, in our respectful submission, by the impermissible material and, with respect, it was for the magistrate, if he was to avoid infecting with, in effect, an impermissible taint the whole of his findings and his conclusions, to identify with clarity which of the finding he was making.

In short, the onus was, I suppose, or the duty was to say, well, I have taken into account these extraneous matters, but I have ignored them in connection with these findings of fact and I have been assisted by them in relation to these issues, and there might then perhaps arguably be able to be demonstrated no cause for complaint, but, in our respectful submission, when you look further into the conclusion in paragraph 56, their Honours say:

we are not persuaded that any material finding of fact made by the learned Federal Magistrate, or conclusion reached by him, was reliant upon any of that material.

They had, of course, put the onus, as you see back in paragraph 54, upon senior counsel for the complaining party, the applicant, to himself demonstrate which findings of fact he said were reliant upon the permissible material when the judgment makes plain without qualification that, in effect, we would say on a fair reading the reasons as a whole were underpinned or suffused across the board by the application and the evaluative process of that very inadmissible material.

So, in short, your Honours, the errors, firstly, is the understatement of the applicable principle by debasing it to simply a matter of judicial opinion and preference, the supposition that the mere effect of these things is to generate the prospect of disquiet, thirdly, the fact that they put upon the complaining party the burden of demonstrating the impossible of, in effect, advancing a proposition which could never be dealt with because there could never be disbundled from the judgment itself the answer to the question.  We say, in short, illustrations in this Court – Scott v Numurkah is one itself – shows where the court cannot tell what use the judge made of impermissible material, then there is no cure for that.  There has not been a fair trial according to law.

The question is raised fairly specifically, in our respectful submission, in the case to which we have referred your Honours of Stead v State Government Insurance Commission 161 CLR 141, and that I think your Honours have in the bundle of materials. The important passage is perhaps at page 145 where, after observing or commenting upon a submission that where such miscarriages of procedural fairness infect a trial it may be submitted by persons in the position of the respondent that the appellate court is as good at fact finding and the like as the primary court – but their Honours say, particularly in the last six lines of the page:

However, when the Full Court is invited by a respondent to exercise these powers in order to arrive at a conclusion that a new trial, sought to remedy a denial of natural justice relevant to a finding of fact, could make no difference to the result already reached, it should proceed with caution.  It is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact.  And this difficulty is magnified when the issue concerns the acceptance or rejection of the testimony of a witness at the trial.

And we would say magnified all the more where it concerns evaluative and impressionistic judgments in the application of statutorily mandated factors.

BELL J:   The magistrate’s determination turned in part upon factual findings that he made respecting the level of parental conflict, is that right?

MR COLES:   Yes, indeed.

BELL J:   And there is no challenge to those?

MR COLES:   The challenge is that because ‑ ‑ ‑

BELL J:   To the findings?

MR COLES:   I do apologise.  There is no challenge, I think, to the findings that there was parental conflict.

GUMMOW J:   And remains.

MR COLES:   And, for all we know, remains.

BELL J:   So where in the judgment does the material to which the magistrate had reference in the academic literature bear on the evaluative judgment in a way that conceivably ‑ ‑ ‑

MR COLES:   I can do no more, your Honours, than give you a list of paragraphs in the judgment, and I will do so, where there is constant – and correctly so – but there is constant reference to the question of parental conflict.

BELL J:   The magistrate would necessarily have had to deal with that prominent issue in any event?

MR COLES:   Of course.  It is one of the statutorily directed matters.  It comes in two places, if I can give your Honours the references.  Your Honours will find that, importantly, in section 60CC(3)(c).  It is one of the additional considerations related to the ascertainment in aid of the task presented to a court by the preceding section which is the paramountcy of the interests of the child to decisions made in the exercise of the relevant jurisdiction.  The other section is 65DAA(5).  Your Honours did not have that section, but we have hopefully handed it up. 

GUMMOW J:   Yes, we have it.  Section 65DAA?

MR COLES:   Yes.  The magistrate necessarily was obliged to address his mind to those matters and thereby, we say, it must have been an exercise of his power in relation to a consideration made essential by the statute.  One can see, in short, that his constant iteration or references to the parental conflict question, relevant, of course, to both statutory provisions, cannot have been otherwise than informed, for all we know, perhaps even driven, by the issues presented and the particular commentary advanced on that topic in the impermissibly referred to academic and research article.

BELL J:   That obliged him to have regard to the question of parental conflict, presumably from that to the determination of whether or not this was a relationship in which there existed parental conflict.

MR COLES:   It is both an additional consideration in relation to the interests of the child and it is specifically referred to as a practicability issue in the equal time or substantial time issues.

BELL J:   Yes.  Where does he deal with that in a way that admits of the concern that he has allowed himself to be influenced by the material that is not in evidence?

MR COLES:   That is, for the reasons I have attempted already to explain, not an easy question to answer because one just does not know the extent of the permeation of the impermissible material on the process.  The best we can do is ‑ ‑ ‑

BELL J:   How might the impermissible material have influenced the process in the context of the findings that this magistrate made in this case in this statutory context?

MR COLES:   If I can take your Honours back – at best I can give your Honours some examples, and, I am sorry, this could be a relatively tedious process and I am conscious of the time, your Honours.  Paragraph 115 at page 59 of the learned magistrates reasons, line 20, for example:

The father believes that only a reasonable level of communication between them is necessary, but a feature again permeating all the evidence is the strained and often dysfunctional communication between the parents.

BELL J:   So it is passages of that character that you say ‑ ‑ ‑

MR COLES:   The permeating feature and obviously, therefore, a very important one is against the significant background he has created for

himself of academic and unidentified research material all saying that, in effect, if you have got situations of parental lack of co‑operation, then do not necessarily do what you might otherwise do.  In other words, it is an encouragement to adopt an attitude to the administration of the provisions of the Act which the Act itself does not justify and at least in one of the journal articles is contrary to a directed statutory presumption.

These are serious matters, in our respectful submission, your Honours, because this Court seemingly over time and certainly at least since Unsted’s Case decided by Justice Davidson and adopted by this Court in Scott v Numurkah, through Way v Way, also referred to in the same case and a series of family law cases which we mention in the submissions, this jurisdiction, and I do not say this critically of the court, but this jurisdiction is seemingly exposed to the risks of the intrusion of impermissible extraneous evidentiary material and the real risk of this judgment being uncorrected is that those who will succumb to that temptation, with the best will in the world doubtless, will now simply regard it as a matter of preference and they will know that they will sustain no correction because counsel will never be able to demonstrate line by line the extent to which reliance was placed on that material for the very reason that the finder of facts concealed or failed at least to expose that outcome.

BELL J:   A light rebuke in the Full Court’s judgment might address that concern. 

MR COLES:   That is what I wanted to say on that point, your Honours, but there is, we say, a strong public policy indicator in favour of a stern correction of an application of the remaining principles.  I see the time, your Honours.  We rely on our submissions.

GUMMOW J:   Thank you, Mr Coles.  Yes, Mr Kelly.

MR KELLY:   There are two matters that should be drawn to your Honours’ attention which displace the proposition that there was anything impermissible in the question being asked of counsel for the father to identify where it is that it was suggested that the judgment had been, in effect, corrupted by the reference to the extraneous materials.  The first place is, of course, in paragraph 31 of the judgment itself at page 19 where the judge has said:

I make no findings of fact as a result of this material.

That is not something that one simply overlooks or that one simply assumes can be left behind or given no consequence.  The judge is making it clear that there are no findings made as a result of the material.  If a party wishes to make so bold as to impugn the integrity of that statement, it behoves him to identify where it is, even in a sentence or two, that there is any proper basis for it.  It is a very serious allegation.  The federal magistrate has made his position as plain as a pikestaff.  So there is nothing improper in the approach taken by the Full Court seeking to have the person who wishes to impugn the integrity of that statement, identify or at least provide an example of where there is any basis for it. 

BELL J:   There is no suggestion, I think, that it informed the fact finding, rather the evaluative judgment.  That is Mr Cole’s point and that is rather more difficult to discern.

MR KELLY:   But it is to the same effect, because this statement does not distinguish between findings of primary fact or evaluative fact.  What is more, there is an example in the body of the judgment of the way one of these academic writings was dealt with, and that is in paragraph 72 of the federal magistrate’s judgment at page 37 of the application book where your Honours will see ‑ ‑ ‑

GUMMOW J:   The bottom of the page.

MR KELLY:   The bottom of the page, yes.  His Honour finds that:

I do not accept the expert’s conclusion at page 38 about the “father’s propensity for volatile highly conflictual relationships and, ultimately for domestic violence”.  The evidence does not sustain the link drawn by the expert between conflict and domestic violence.  The evidence is quite clear – there was no physical violence.  The evidence is also quite clear that any non‑physical violence was limited to a period of no more than 6 months which occurred five years ago.  This happened in the context of a highly stressful separation.  This does not in any way justify the father’s behaviour at the time, but it does provide a context within which to understand it.  It is the type of violence which Kelly and Johnson categorise as separation instigated violence –

and there is a reference to one of the impugned articles.  All that the learned magistrate is doing is using that item, that example of the impugned academic writings to illustrate his understanding and dealings with the expert’s evidence.  One could not think for one minute that those findings and the findings which follow in the balance of that paragraph were in any way adverse to the father.  There are in fact no findings of fact called into question beyond the evaluative aspects of what in all the circumstances of a conflictual relationship is in the best interests of the children. 

If there is to be rehearing of this matter, it will make absolutely no difference to the outcome of the proceedings.  Indeed, the reality of the

matter is that the test propounded on behalf of the applicant, if it is to be applied, would cause a very large number of judgments to be impugned without any good reason at all.  For example, if the judge had merely had made a reference to an academic writing in a footnote, as judges often do, does that mean that ‑ ‑ ‑

GUMMOW J:   I do not think we need hear you any more, Mr Kelly.  We will see what Mr Coles says in reply.

MR COLES:   Just two matters, your Honour.  Our complaint of course is not simply as to findings of fact as has been observed.  Secondly, your Honour, one may of course be able to tease out individual findings of fact, some of which were favourable to the applicant, which would not rationally be supposed to be suffused by the matter of which we complain, but that is not really the point.  A central issue in the case, perhaps the main issue, was one which – that is the section 65DAA issue – depended significantly and depended by statutory instruction on views, opinions and conclusions which in a significant part by statutory direction required attention to the attitudes of mutual co‑operation and the like of the respective parents. 

Now, it is not possible to say – well, it is at least not possible to say that the conclusions on those matters were not permeated by the undoubtedly impermissible material, which, I might say, it is common ground, reading our learned friend’s submissions, the magistrate is taking to have used.  They are matters which we would ‑ ‑ ‑

GUMMOW J:   Yes, thank you, Mr Coles.

There are insufficient prospects of success in demonstrating error in the outcome reached in the Full Court of the Family Court to warrant a grant of special leave in this case.  Special leave is refused with costs.  The respondent seeks an order for indemnity costs, but we would not make that particular further order.

We will adjourn until 2.00 pm.

AT 12.40 PM THE MATTER WAS CONCLUDED