SCVG v KLD - [2007] HCATrans 799

[2007] HCATrans 799

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S322 of 2007

B e t w e e n -
SCVG
Applicant
and
KLD
Respondent
Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2007, AT 10.50 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR R.P.L. LANCASTER, for the applicant. (instructed by Adrian Twigg & Company)

MR S.J. GAGELER, SC: If the Court pleases, I appear with MS J.A. REES for the respondent. (instructed by Macphillamy’s)

GLEESON CJ: Yes, Mr Walker.

MR WALKER: Your Honours, at the time of the trial of the proceedings concerning the responsibilities to be shared by the parents of these two very young children, there had passed through the Houses, but there had not been assented to, a very important amending legislation by reason of the Family Law Amendment (Shared Parental Responsibility) Act 2006. To remind your Honours of the chronology, the final orders were made eventually in these proceedings some months after the hearing and delivery of reasons on 17 May 2006. Assent to the amending Act was not until some few days later, 22 May 2006. Relevantly, provisions of substantive import on the argument presented on behalf of my client in the Full Court did not commence until 1 July 2006.

GLEESON CJ: When was the hearing of the appeal?

MR WALKER: The hearing of the appeal was on 20 February 2007.

GLEESON CJ: I understand, I believe, the point you seek to make about the nature of a rehearing and the position of the Full Court, but I am just not sure I understand what potential difference it would have made to the outcome on the basis of the reasoning of the Full Court if they had applied the new legislation.

MR WALKER: May I go immediately to the provisions of the new legislation to answer the Chief Justice. We need to bear in mind that under the provisions as they stood before the amendment in what was called Part VII, section 60B contained objects that I do not need to take – I am sorry, under the new Act section 60B contained objects which contained principles underlying the objects which start with the right to know and be cared for by both their parents. Under section 60CC, to be found at page 121 of the print that has been given to your Honours of the amended Act, you will see that the so‑called primary consideration is:

the benefit to the child of having a meaningful relationship with both of the child’s parents –

There are two primary considerations. The second is also relevant. The first is the one that is the beginning of my answer to the Chief Justice.

Most critically, there is then a set of legislative provisions which lead in effect to something in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SCVG v KLD

Details

AGLC: SCVG v KLD [2007] HCATrans 799
Case: [2007] HCATrans 799
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal in *SCVG v KLD*, concerning a dispute between the parties regarding [briefly describe the nature of the dispute, e.g., a contract, a property matter, a family law issue]. The case came before the Court on appeal from [mention the lower court, e.g., the Full Federal Court, the Supreme Court of a particular state].

The central legal issues before the High Court were [state the primary legal questions the court had to decide, e.g., the interpretation of a specific statutory provision, the application of a particular common law principle, the scope of a legal duty]. These issues required the Court to consider [mention any specific areas of law or legal concepts relevant to the issues, e.g., principles of contractual interpretation, the law of negligence, the rules of evidence].

In its reasoning, the High Court [explain the court's approach and the legal principles applied, e.g., analysed the relevant legislation in light of established principles of statutory construction, applied precedent from previous High Court decisions on the topic, considered the factual matrix in determining the application of the law]. The Court ultimately concluded that [state the court's findings on the legal issues].

The High Court ordered that [state the final orders or outcome of the appeal, e.g., the appeal be dismissed, the appeal be allowed, the matter be remitted to the lower court for further consideration].

Orders