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

Copyright in the High Court of Australia

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 the nature of a presumption.  The first of those is found in the new section 61DA on page 136 of the print of the amended form that your Honours have, where:

the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

That is a concept which does not in itself include the notion which has attracted the jargon of time sharing, which is what my client’s grievance concerns.  That, however, comes on page 155 of the reprint, section 65DAA, which picks up in its opening words of subsection (1) the presumption to which I have just referred.  If that presumption has operated, then:

the court must:

(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child –

et cetera, and includes matters that are obviously cognate with that, such as the practicability of the exercise.

Your Honours, as a result of those provisions explicit consideration was given to what might be called the starting point for the judicial approach to how to determine the often invidious question of the change of location of a child’s overnight residence accommodation when the estranged parents are living relatively distant from each other in the state of affairs presenting itself to the trial court.  In this case it was Sydney, Coogee, and Bungendore, as your Honours have seen from the facts.

In our submission, had the Full Court, and I stress, had the Full Court, proceeding on the basis of an appeal by way of rehearing and upholding, as it should have, the complaint by my client concerning the misunderstanding of Professor Quadrio’s evidence, had the Full Court applied those principles, then orders strikingly different from those which were made by the trial judge would, in our submission, likely have followed, or at least there would require to have been a remitter for the case to be considered afresh in light of those significant matters.

Your Honours, the complaint extends not just to the Full Court on the basis that this is the law that should have been applied if Professor Quadrio’s report and cross‑examination had been properly understood, it also extends in the following way to the position under the unamended law, the former law, which your Honours will find at page 189 of the earlier print with which you have been supplied.  Section 68F(2) is a list of mandatory considerations and paragraph (k) referred to a position of further proceedings being those which in effect might be as a matter of discretion forestalled by the way in which the case is determined and the way in which the orders are to operate.

GLEESON CJ:   Mr Walker, to what extent is your factual complaint about the evidence of Dr Quadrio essential to your first ground of appeal, that is the ground that is the paragraph numbered 2 on page 113?

MR WALKER:   It is essential.

HEYDON J:   You say, do you, that your complaint about the court’s failure to take into account the new legislation cannot get off the ground until there is some independently established appealable error?  If there is, then you say in conducting that part of the rehearing it should have taken into account the new legislation or ‑ ‑ ‑

MR WALKER:   In relation to the Full Court approach to an exercise of discretion, yes.

HEYDON J:   Thank you, but if there were no other error established, do you say that the new legislation does not apply in the Full Court?

MR WALKER:   No, I do not say it as simply as that, but I accept that the first way in which we put the case, which is what the Full Court should have done had it detected the error it should have seen in Professor Quadrio’s evidence, is for that of course error in the treatment of Professor Quadrio’s evidence is essential to our argument.  There is no doubt about that.  It is a re‑exercise of discretion.  In an appeal by way of rehearing you do not get through the gate unless you have shown the error.

GLEESON CJ:   So the Full Court would not have had to consider the amending legislation unless it found some error on the part of the primary judge?

MR WALKER:   No, only on the first way we put the case.  The other way we put the case is based upon 68F(2)(k) of the old Act which required her Honour below, and thus also required the Full Court, absent the Professor Quadrio point, to consider the future.  The future in particular concerned future proceedings which were to the extent possible to be considered as those to be suppressed rather than encouraged.

GLEESON CJ:   That is the ground in paragraph 4 which is your third ground?

MR WALKER:   Yes.

GLEESON CJ:   The grounds in paragraphs 2 and 3 stand or fall together.

MR WALKER:   Yes.  Your Honours, that is a distinct way of putting the point.  It has therefore to do with a misdirection point by the trial judge and I am bound to observe that the point did not reach anything like maturity until the argument in the Full Court, where it was put very clearly on the basis that we urge it here, namely where a trial judge is required in the exercise of such a critical discretion to consider the effect of the determination and order in relation to future proceedings which the Parliament has clearly said are a relevant factor, they should be, as it were, minimised or avoided in relation to the welfare of the children, then legislation having passed both Houses, which fairly clearly shows what the future is going to be at some time, cannot be ignored.

That legislation involved, as I put in my answer to the Chief Justice’s question, extremely significant intrusion of presumptions into an area free of them in the past.  Furthermore, presumptions as to a matter which was absolutely critical to the contest between these parents about the way in which they would respectively share the care for and responsibility for the accommodation of their very young children in two locations quite distant from each other.

If that had been taken into account, then in due course, in our submission, regardless of how Professor Quadrio’s evidence had been considered, there would certainly have been a different approach to the weighing‑up exercise which had been followed by the trial judge in relation to it.  Your Honours will recall in an entirely familiar fashion her Honour, as their Honours did in the Full Court, weighed up the matters pro and con the father’s contentions in relation to particularly the conflict between mother and father, which her Honour held was likely to be more pointed at times of contact when the children were changing location.

GLEESON CJ:   Putting to one side the criticism you make in your paragraph numbered 4 of the primary judge’s approach, it seems to be common ground and it seems to have been the approach of the Full Court too, that the amending legislation would only be applied by the Full Court if the Full Court found some error on the part of the primary judge.

MR WALKER:   In the sense of being the law which operated as law, yes.  However, there is this other argument which was put in the Full Court and ‑ ‑ ‑

GLEESON CJ:   About the primary judge.

MR WALKER:    ‑ ‑ ‑which also applies in the Full Court.

GLEESON CJ:   I understand that, but that is why you say your grounds in paragraphs numbered 2 and 3 stand or fall together.

MR WALKER:   That is right, because the first is simply the familiar proposition most obviously encountered in everyday practice in a sentencing appeal where first there needs to be error shown.  It is only then that the re‑exercise of the discretion affected by whatever the law is at that time ‑ ‑ ‑

HEYDON J:   The whole appeal becomes rather banal.  It turns on this factual error.  If the factual error is established, there is nothing particularly exciting.

MR WALKER:   Your Honour will forgive me if we hesitate to accept the epithet.  It is difficult to overstate the catastrophic effect as felt by an individual as father.

HEYDON J:   That is one part of the Judiciary Act, but it is not ‑ ‑ ‑

MR WALKER:   Yes, and we call that in aid.

HEYDON J:   It is not going to be revolutionary in terms of legal analysis, though.

MR WALKER:   Your Honour, no correction of factual error is ever going to answer that description, but this Court has not abandoned the field of correcting critical factual error.

GLEESON CJ:   Where can we most conveniently see the point of error relied on in paragraph numbered 3 ‑ ‑ ‑

MR WALKER:   Could I take your Honours to page 89 of the application book to start with, which conveniently in the Full Court quotes those passages of report and testimony by Dr Quadrio, who was the court‑appointed expert, a child psychiatrist, in relation to the position confronting the court and thus the expert with these remote locations and these very small children.  At the top of page 89 for the case, not for an ideal hypothetical case but for this case, you can see at about line 5 the expert described what she called the “optimal situation”.  That is very different from the orders that resulted.

GLEESON CJ:   Sorry, where is this?

MR WALKER:   About line 5, “An optimal situation”.  The next paragraph, 43, about line 32 on the page, reconsidering the matter in a supplement, your Honours see that there has not been a change in what is regarded as the optimal situation.  When an expert says that about a particular case to a court, that must be regarded as not unrealistic but rather as the one chiefly to be preferred, notwithstanding that there had been consideration of what is called the allegations made by the maternal family.

Then if I can skip over a couple of pages – I am not suggesting they are irrelevant but by reason of pressure of time – to page 92, there was a deal of testimony concerning the implications to be drawn for the children, that is in the children’s interests, about the friction, as I shall call it, between the parents.  The expert opines that the way to deal with that, at about line 12 or 13:

it may be better for her –

that is the mother –

that she minimises her contact with him –

that is the father –

as much as possible, yes.

Then there is the passage at the foot of that page upon which reliance is placed by our opponents in particular in relation to the weighing exercise, and then finally the passage at the top of page 93.  When I say “finally”, for our opponents this was the clincher.  That appears to be the passage which outweighed everything else.  However, it is quite clear that there was rather more to the expert’s opinion than that acceptance of rolled‑up propositions contained in that passage of transcript.

At the foot of page 93 one can see that the emphasis is on the difficulty arising from “frequent contact between the parents”, about line 42 or so, and that the expert was not living in cloud‑cuckoo‑land.  She obviously had experience in ways in which those matters could be alleviated, and that is not considered by the trial judge and the Full Court, in our submission, compounds that error by observing the weight, what they described as the superficial attractiveness of counsel’s submissions about this testimony but doing nothing to correct what, in our submission, turned out to be an extremely serious error having this catastrophic effect on a father’s involvement with his children.

There are ways of avoiding matters and, in our submission, that was, after all the evidence was in, a crucially relevant factor which can be seen to have been a pivot point in the weighing up by the judge of the discretionary factors so as to have produced an outcome which, in accordance with the policy shown in the unamended and amended form of the Acts, is not likely to be lightly or frequently disturbed.  These orders are not final.

GLEESON CJ:   The Full Court did not deny, did they, that if they had found error on the part of the primary judge, they would have to, in re‑exercising a discretion, apply the amending legislation?

MR WALKER:   No, I think that is correct, your Honours.  One sees it in a number of places but it culminates in paragraph 103 on page 103.

GLEESON CJ:   Then there never was any issue and still is not any dispute about that.

MR WALKER:   There is I think very much a dispute about the way in which we put it under 68F(2)(k) of the original Act.

GLEESON CJ:   About the trial judge?

MR WALKER:   Yes.

GLEESON CJ:   I understand that.

MR WALKER:   Very much a dispute about that, yes.

GLEESON CJ:   But that is the only legal issue?

MR WALKER:   Yes.  Your Honours, I am bound, however, to observe on page 102 it is not clear what their Honours intend to convey by the first part of that sentence:

Whilst logic and commonsense militate against acceptance of the contention of Senior Counsel for the father –

which, as we read the reasons, is indistinguishable from what I have been putting and from what the Chief Justice has just asked me about as being common ground.  We accept of course that special leave and appeals a fortiori special leave is not granted against infelicities of language.  However, in our submission, it is difficult to understand what that means, particularly bearing in mind what appears to follow from it in paragraph 101.

GLEESON CJ:   This decision does not stand as authority for any misleading proposition of law about the nature of a rehearing?

MR WALKER:   No, that is not possible to put.  What this decision stands as authority for is that the recourse to predicting a litigious future is a matter where ‑ ‑ ‑

GLEESON CJ:   That is about the trial judge.

MR WALKER:   ‑ ‑ ‑ the law on the books could not be taken into account, although it was the single factor relevant to that matter.  May it please your Honours.

GLEESON CJ:   Thank you.  Yes, Mr Gageler.

MR GAGELER:   Your Honours, can I deal with what is really the only point of law, which is the proposed ground 4 of the appeal, the argument being that the trial judge, Justice Moore, failed correctly to apply the discretion reposed in her by section 68F of the Act as it then existed and in particular misapplied section 68F(2)(k).  I do not know if your Honours have easily to hand the material that we have provided, which is the relevant provisions of the Act at the time of Justice Moore’s decision.  That is in Reprint No 6.

GLEESON CJ:   Yes.

MR GAGELER:   We have also given your Honours the amending Act in 2006.  At page 190 of Reprint No 6 your Honours find section 68F(2)(k) and it is one of the list of considerations to be taken into account in making a parenting order.  The argument, as we apprehend it, is that section 68F(2)(k) in some quite unarticulated way required Justice Moore to take into account the pending legislative amendment.  Just how she was supposed to take that into account and what she was supposed to do with it is unexplained. 

The argument which is sought to be put at the forefront now of our learned friend’s submissions in support of special leave to appeal is an argument as to what was encompassed within now repealed legislation.  Section 68F(2)(k) no longer exists.  It is an argument that was not put to the Full Court of the Family Court and one sees that there was no argument based on any error in her Honour’s discretion put to the Full Court of the Family Court.  One sees that in the application book at page 98, line 20.

In our submission, the argument, which, as I said, is really unarticulated, is unsustainable.  There is nothing in the language of section 68F(2)(k) that equates to the need to take into account future legislation.  If one goes to the amending Act itself and looks at the last two pages of the extracts that we have provided to your Honours, this is within

Schedule 1, Part 2, containing transitional provisions, the very last item, item 44 says this:

The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.

What the legislature seems to be clearly saying, not only in the terms of item 43, which is to the effect that this legislation is only to apply prospectively, but in item 44 that the prospective application of this law is not to be taken as a reason for varying an order that already exists.  None of that, in our respectful submission, provides any support for the notion that before that amendment came into force her Honour’s discretion should have been somehow affected in the exercise of the powers conferred by section 68F.

Your Honours, beyond that, there is simply no issue of principle raised in the way in which our learned friend seeks to put the case as to the way in which the Full Court went about exercising its jurisdiction on appeal by way of rehearing and there is no issue of construction that is raised as to the application of the amending provisions.

GLEESON CJ:   What do you say about the Dr Quadrio point?

MR GAGELER:   The Dr Quadrio point, your Honours, is a messy issue of fact which was so recognised by the Full Court of the Family Court and in our submission fully and properly dealt with, particularly in the passage that one sees at the end of the discussion that my learned friend was taking the Court to - the end of that discussion is at pages 96 and 97 of the application book really beginning at paragraph 77 and going through to paragraph 81.  It is by no means clear cut.  It is a sort of messy factual issue appropriate for an intermediate Court of Appeal, not appropriate to be taken to the High Court, in our respectful submission.

It raises no issue of principle and the way in which the Full Court dealt with the issue, particularly in paragraph 78 through to 80 is, in our respectful submission, entirely appropriate.  When they are referring to the earlier exchange quoted in paragraph 80 they are referring back to paragraph 56, the paragraph to which our learned friend took the Court.  So, your Honours, simply, no issue of principle raised by that proposed ground and the ground was fully, and in our respectful submission, properly dealt with by the Full Court.

GLEESON CJ:   Thank you.  Mr Walker.

MR WALKER:   Your Honours, on the last point, in our submission the passages that my learned friend understandably goes to, pages 96 and 97, paragraphs 78 to 81, contain recognition by the Full Court of the force that they had earlier recognised in the submissions put to them on behalf of my client.  It would be, in our submission, a travesty of Dr Quadrio’s evidence, to which I have drawn attention, to suggest that the court‑appointed expert was suggesting that contact between the children and the father should be reduced or minimised on account of the problems that had been drawn to attention.  She had taken that into account and come to the conclusion that there were ways in which that could be dealt with.  That is the first point.

The second point is that of course it is relevant for the Court to take into account what my learned friend colourfully calls messy characteristics of a factual dispute but, in our submission, it would be to defeat the ends of the administration of justice if messy aspects, not due to the conduct of the parties but due to the way in which judges below have dealt with the matter, were to deny a party, applicant for special leave, the possibility of persuading this Court that there has been an injustice by reason of a critical and egregious error of fact.

But messy in this case – we can go further.  It certainly does not betoken what ordinarily is brandished before your Honours in terrorem, namely, as it were, serried ranks of volumes of transcript and exhibits.  There is nothing like that here.  The material is well and truly canvassed in the reasons.

HEYDON J:   Your primary point was that the Full Court failed to take into account the evidence recorded at the bottom of page 93, the capacity to minimise difficulties of changeovers.

MR WALKER:   Yes.  I am bound to say so, yes, your Honour.

HEYDON J:   At the top of page 94 the witness is led to discount that.  “It’s more difficult” “if the parents are unable to have a civil interaction”.

MR WALKER:   “It’s more difficult”, then in the next sentence it is clear – I am so sorry, your Honour.

HEYDON J:   Yes.  We see the next sentence.  My point is that those – we seem to have had a sort of adjective morning – those adjectives you were just using about “egregious” and “gross factual errors” that is certainly a very good passport to favour on a special leave application.  I am just not sure they apply to this case.

MR WALKER:   Your Honours, benefits to the children – to the “children of their parents coming into contact less frequently” has been transformed

into benefit to the children of the children coming into less frequent contact with one of the parents.  That is the travesty I referred to of Dr Quadrio’s position and she is no mere witness.  That is the first point.

The second point is that bearing in mind that the expert was addressing herself to a benefit to the children and had concluded that much more frequent and intimate contact with the father was appropriate than was eventually ordered, in our submission, it does become a pivotal error for the judge to have decided that this expert was not, as it were, opposing dealing with what I will call the problem by reducing contact between children and one of the parents as opposed to what the expert had several times suggested, namely, there are ways of facilitating it.  Yes, it is more difficult, of course.  That is in the nature of things.  That is my answer to that aspect.

Your Honours, it is not the case that this is just an argument about a repeal provision.  Exactly the same words appear in the new section 60CC(3)(l).  I suppose this is a submission that looks forwards to yet another iteration of amendments of the Family Law Act in relation to children, nonetheless, those words are still there.  This is not a dead letter, the provision which is at the heart of our argument on that point.  May it please your Honours.

GLEESON CJ:   In relation to the only question of law that arises in this matter, which is that identified in the paragraph numbered 4 on pages 113 and 114 of the application book, we think there are insufficient prospects of success of an appeal to warrant a grant of special leave.

In relation to the other matters relied upon we think that no issue suitable to a grant of special leave is raised and we are not persuaded that the interests of justice require such a grant.  The application is dismissed with costs.

AT 11.22 AM THE MATTER WAS CONCLUDED