Smoothe and Enmore (No 3) - [2014] FamCA 1194

FAMILY COURT OF AUSTRALIA

SMOOTHE & ENMORE (NO 3)

[2014] FamCA 1194

FAMILY LAW – PROCEDURAL – Where the mother seeks an adjournment of the parenting trial pending the determination of her applications for special leave to appeal to the High Court of Australia in relation to interlocutory matters – application dismissed.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Jennings Construction Limited & Burgundy Royale Investments (1986) 161 CLR 681
LC & TC (1998) FLC 92-803
Marconi’s Wireless Telegraph Co. Ltd. v The Commonwealth [No. 3] (1913) 16 CLR 384
Sullivan & Tyler (No. 2) [2013] FamCAFC 136

APPLICANT:

Mr Smoothe

RESPONDENT:

Ms Enmore

INDEPENDENT CHILDREN’S LAWYER:

Patrick Dooley

FILE NUMBER:

BRC

4709

2012

DATE DELIVERED:

25 November 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

25 November 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Linklater-Steele of Counsel

SOLICITOR FOR THE APPLICANT:

Carroll Fairon Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Merkin of Counsel

SOLICITOR FOR THE RESPONDENT:

Crana Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Frizelle of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Dooley Solicitors

Orders

The applicant mother’s Application in a Case filed 18 November 2014 for an adjournment of the trial is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Smoothe & Enmore (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4709 of 2012

Mr Smoothe

Applicant

And

Ms Enmore

Respondent

REASONS FOR JUDGMENT

Listed before me at 10 o'clock this morning for a five-day trial are competing applications of the parents of a now five and a half year old girl, R. The competing substantive applications for parenting orders have been pending in the family law courts, being both the Federal Circuit Court of Australia and this Court since, as I understand it, sometime in 2012. Around the middle of 2012 is when the proceedings were first commenced by the applicant father, the parents of this little girl having separated sometime in or around the first quarter, I think February or March, of 2011.
The proceedings have a somewhat unusual history when compared with many of the parenting orders disputes that come before these courts in that they have been before the courts on several occasions in respect of matters pertaining to the interim parenting arrangements that were to apply in respect of the child in the lead-up to the final trial that which is listed before me for hearing today.
As I understand the matters of factual history, the father's Initiating Application was filed in the Federal Circuit Court on 28 May 2012 and was listed into Judge Demack’s docket. It came before her Honour, on the first occasion, on 7 August 2012 and some orders were made that day that provided for the child to live with the mother and to spend unsupervised time with her father; with handovers to take place at the Region B Children's Contact Centre; for the child to have telephone communication with her father on Thursday night of each week; and a number of other orders including that they attend Parenting Orders Programs, and attend family report interviews.
Mr M, a consultant social worker, was engaged to interview the parties and the child and prepare the family report, and that was released by the Court on 21 November 2012.
The matter came back before her Honour on 18 December 2012 and on that day, further orders were made by her Honour and, as I understand it, those orders effectively increased the time that the child was to spend on an unsupervised basis with the father with the matter to be adjourned back to her Honour again on 19 June 2013. The matter was back before her Honour, in accordance with that order, on 19 June 2013. As I understand, at least from the position of the legal representatives for the father, which I have gleaned from a document that I made Exhibit 3 just a few minutes ago, a Legal Aid conference was to be convened and, thus, her Honour further adjourned the matter until 12 August 2013 to allow that to take place.
On 12 August 2013, the matter was again adjourned, as I understand it, administratively, to 23 October 2013. On 15 August, a few days thereafter, the mother filed an Application in a Case, a detailed affidavit in support, and a further Form 4 Notice of Child Abuse and Family Violence, it being the second one that had been filed, and the mother, according to the father's case outline that is Exhibit 3 at least, immediately ceased all visits with the father.
The matter then came back before Judge Demack on 9 September 2013 for the hearing of that Application in a Case that the mother had filed. On that day, the Application in a Case that the mother filed and was asking to have heard sought a variation to the existing parenting order providing for the interim parenting arrangements in respect of the child pending trial, namely, the mother sought a change to supervised time only on the basis of an allegation that the child was at an unacceptable risk of sexual abuse in the unsupervised care of the father.
I do not know exactly how much of a hearing took place on that day of 9 September but it was adjourned until two days later, 11 September, at which some further part of the interim hearing took place at the end of which her Honour reserved her decision. Her Honour delivered her judgment on 13 September. My understanding is that the mother then filed an Appeal to the Full Court of this Court against the orders made by her Honour that, effectively, dismissed the mother's application for the father's time with the child to be supervised, and left it at unsupervised time including overnights on alternate weekends.
Soon thereafter, the mother filed an application, which was listed and heard by Judge Demack, for a stay of the orders that were then in place. She was effectively seeking to stay orders providing for unsupervised time between the child and the father pending the hearing and determination of the appeal against her Honour's interim order of 13 September 2013. The application for a stay was heard and refused, and was dismissed with reasons given by her Honour. That led to the mother filing another Notice of Appeal to the Full Court against her Honour's refusal to stay the unsupervised time orders making it a second extant appeal against orders of her Honour.
As I understand the evidence that is before me, what then happened was, notwithstanding her Honour's refusal to stay the orders, the mother did not make the child available to spend time with the father in accordance with the existing orders that had not been stayed. That led to an application being filed by the father. And I must say, as I understand it, Judge Demack had by then identified that the matter bore elements of complexity because it, by then, had included allegations that the child was at an unacceptable risk of sexual abuse in the unsupervised care of the father, and ordered for it to be transferred to this Court.
The father filed an Application for Contravention in this Court, and that ultimately came before Bell J earlier in this current calendar year. His Honour determined that the mother had, indeed, contravened the orders without a reasonable excuse and placed her on a good behaviour bond, including the provision of a surety of $500, as I understand it, for two years. Following his Honour's decision, the mother lodged another appeal, her third, against his Honour's orders.
The three appeals, it would seem, were given some degree of expedition. It seems that they were advanced up the list of appeals to be heard and determined by the Full Court having regard to the serious nature of the issues involved, and they were all listed for hearing before the Full Court on 29 May 2014 before a bench constituted by May, Thackray and Aldridge JJ. Counsel who appeared for the mother on each of those applications that were the subject of decisions that were under appeal, as I understand it, also appeared on the appeal on the hearing of the three Notices of Appeal in the Full Court on 29 May 2014.
At that date, that is, the date of the hearing of the appeals by the Full Court, from my reading of the decision of the Full Court, it is apparent that the matter had already been listed for trial over these five days in front of me, apparently commencing 3 November 2014. Somewhere along the line those dates got changed administratively. But certainly, as at the time of the hearing of the appeal in late May 2014, the parties were all aware that a trial for five days of the substantive competing parenting applications was listed for hearing this month.
The Full Court of this Court handed down its decision dismissing two of the appeals on 23 July 2014. In actual fact, in fairness, it dismissed all three appeals by its Order number (2). The matter then proceeded towards trial this month. As I say, at some point, the trial dates listed for 3 November were changed to five days before me commencing today. I had a compliance check before me a few weeks ago on Tuesday, 4 November, and on that day, each of the solicitors currently representing the parents, being the applicant and the respondent, appeared before me in person and the Independent Children's Lawyer himself, Mr Dooley, also appeared.
I was informed that day that the matter was ready to proceed to trial. I specifically asked the solicitor for the respondent mother quite clearly if the matter was ready to proceed to trial. More specifically, I asked her if she was aware of any further applications that were going to be filed, and that I would be asked to hear and determine before the trial could proceed. She, quite categorically, informed me that to the best of her knowledge, there were no such applications that were going to be filed which I would be asked to hear and determine before the trial. I told her I would make a note of that most particularly in the circumstances of the case.
On 18 November 2014, that is, last Tuesday, a week ago, an Application in a Case was filed by the mother by the same solicitor who was acting for her, and who told me on the 4th that, to the best of her knowledge, no further applications were going to be filed. The application that was filed on 18 November seeks an order that the five-day trial listed for today be adjourned until further order.
An affidavit of the mother, who seeks the adjournment application, was also filed that day. It is an affidavit containing, if one leaves out the last paragraph which is simply the paragraph that says, "All the facts and circumstances…", only five paragraphs, barely a page in length which exhibits to it three documents which purport to be, well, seemingly are because there is an "original" stamp on each of them, Applications for Special Leave to Appeal to the High Court of Australia from the Judgment of the Full Court of the Family Court given on 23 July 2014.
There are three separate such applications annexed to the affidavit. The first is Application for Special Leave to Appeal Number 45 of 2014 being, more specifically and better described as an Application for Special Leave to Appeal from the decision of the Full Court of this Court in Appeal Number 52 of 2013, being the mother's appeal against the interim parenting orders decision made by Judge Demack on 13 September 2013. It sets out two grounds upon which the applicant bases her Application for Special Leave to Appeal to the High Court.
The second one, which I will describe as Application for Special Leave to Appeal Number 46 of 2014, is an Application for Special Leave to Appeal from the Full Court of this Court's decision in Appeal Number 66 of 2013, more appropriately described as the appeal against the refusal to grant the stay. It only sets out one ground upon which the Application for Special Leave to Appeal is based.
The third one is Application for Special Leave to Appeal Number 47 of 2014, and it seeks special leave to appeal against the Full Court's decision in Appeal Number 8 of 2014, more appropriately described as the appeal against Bell J’s decision in the contravention proceedings, and it sets out two grounds upon which special leave to appeal is sought. It also attaches a letter from the Registry of the High Court confirming that these three applications for special leave were actually filed in the Brisbane Registry on 4 November 2014 and what has happened thereafter. It attaches an Affidavit of Service in respect of each of those notices or Applications for Special Leave to Appeal. Interestingly, no other evidence was filed to support the Application in the Case for an adjournment on 18 November 2014.
I determined, when this Application in the Case was brought to my attention last Tuesday, that given the proximity to the trial I would list the hearing of the Application in a Case to 10 o'clock this morning, the time at which the trial was scheduled to commence. When I commenced the trial this morning, and it was made clear to me that counsel for the mother was pressing the Application in a Case for the adjournment of the trial, I particularly asked counsel for the mother's instructing solicitor, that is, the solicitor who appeared before me on the 4th, to answer a couple of questions directed at finding out how it was that I was told, on the morning of 4 November, that no further applications were going to be made to the best of the knowledge of that solicitor when, that same day, three special leave applications were filed in the Registry of the High Court in this building.
The solicitor, Ms Glynn-Field, apologised to the Court and informed the Court that on that morning, whilst she was aware that special leave applications to the High Court were being prepared and likely to be filed in due course, she did not appreciate or consider the need to inform the Court about that at that particular time, notwithstanding my asking her whether any applications were going to be filed in this matter before the trial. At this point in time, I do not consider it necessary to go any further on that particular issue, but I asked the solicitor then when it was that she actually received instructions to file the Application in a Case seeking an adjournment, and I was informed by Ms Glynn-Field that that was not until 14 November 2014.
There being no other evidence contrary to that or anything upon which I can base any alternate finding of fact, based on that evidence, I am satisfied that on the morning of 4 November, in respect of that particular issue, Ms Glynn-Field did not knowingly or intentionally mislead the Court, which would be a serious breach of her professional duty to this Court if she had. In any event, I move on now to the determination of the application for the adjournment.
An application to adjourn a trial of substantive parenting orders applications is, in my view, in substance or practical effect, no different at all from an application to stay the proceedings. I have to just backtrack a little and say an application to adjourn a trial of competing substantive parenting orders applications on the basis of the fact that applications for special leave to appeal decisions in respect of interlocutory matters, have been filed and are currently pending in the High Court is, as I see it at least, in practical effect, no different to an application to stay parenting orders proceedings pending the hearing and determination of applications for special leave to appeal to the High Court.
In respect of the principles that apply to the determination by me of such an application to adjourn a trial because applications for special leave to appeal to the High Court have been filed, I need go, in my view at least, really no further than to refer to the Reasons for Judgment of the Full Court of this Court constituted by Bryant CJ, Ainslie-Wallace and Murphy JJ in their decision in the matter of Sullivan & Tyler (No. 2) [2013] FamCAFC 136 that was delivered on 5 September, just a year ago, 2013, particularly under the heading “Legal Principles”.
In paragraph 77, their Honours say this:
The jurisdiction to grant a stay pending an application for special leave to appeal to the High Court is an extraordinary jurisdiction, and exceptional circumstances must be shown before its exercise is warranted.
They, of course, then, support that statement of principle by reference to the High Court decision of Jennings Construction Limited & Burgundy Royale Investments (1986) 161 CLR 681 and they refer, particularly, to some paragraphs from Brennan J’s decision at page 684 in that judgment. There is one paragraph there where Brennan J referred to an earlier decision of the High Court in Marconi’s Wireless Telegraph Co. Ltd. v The Commonwealth [No. 3] (1913) 16 CLR 384 where he said in that case:
The Court granted an order staying the operation of one of its own orders pending the hearing of an application to the Privy Council for special leave to appeal.
And he said that the High Court said in the Marconi’s Wireless Telegraph Case:
The Court would not ordinarily grant an application of this kind unless very strong and special grounds are shown.
They said in that case:
This is a very peculiar case. The conditions are such that, on the one hand, if the stay is granted without more, the whole benefit of the action may be lost to the plaintiffs while, on the other hand, unless the stay is granted on some fair terms, the defendant’s appeal will be nugatory. It really is a question of the preservation of the rights of the parties without disregard of the balance of convenience.
There does not seem to be any dispute between the parties in this case that what I am being asked to do is to exercise a discretion, and I have to exercise the discretion in circumstances where the Full Court says, and where the High Court indeed says it as well, that it is only to be exercised in exceptional circumstances in what is described as an extraordinary jurisdiction. There is no dispute that in the exercise of that discretion, a number of matters must be considered. Firstly, as we are dealing with parenting proceedings relating to a five year old child, I must always keep to the forefront of my mind, in the process of determining the matter, that the best interests of the child are, indeed, paramount.
It seems to me also that the discretion is one that must be based on determinations of questions of justice. Questions of justice, along with the best interests of the child, direct the exercise of my discretion.
During the course of the morning, all parties conceded that one particular issue is a very relevant consideration in determining the exercise of the discretion. Just as it is when, as a single trial judge, one is hearing and determining an application for a stay of one's own orders pending an appeal to the Full Court of this Court against those orders, some consideration of the merits of the Applications for Special Leave to Appeal must be given and that, albeit the special leave applications being in the High Court from judgement of the Full Court of this Court, falls to me at this juncture. It certainly was not submitted in those circumstances that consideration of the merits of the applications for special leave is something that should not be done in the exercise of my discretion.
For the mother, it was submitted, as I understand essentially, that this trial should not proceed and that it would not be in the interests of justice or in the best interests of the child for it to proceed where the conduct of the trial by the parties, and particularly by the mother, might very well be influenced one way or the other by the outcome of the special leave applications. I have heard that submission and shall return to it. As I have already identified, one of the most striking aspects of what I consider to be fundamental issues to be determined in the exercise of the discretion whether to adjourn this trial pending the outcome of the special leave applications to the High Court is, on the face of the material and the evidence that is before the Court, the assessment by me of the prospects of those applications for special leave to appeal.

With respect to counsel for the mother, it seems to me that that question is one of the most significant and weighty in the determination of this application for an adjournment. Not only does the mother, in my respectful view, through her counsel and through the evidence that is put before the Court in support of this application, have some obligation to persuade me that there is some arguable merit in her applications for special leave to appeal to the High Court, but also in the circumstances of this case she has some obligation, in evidence and in submissions through her counsel, to persuade me that to proceed with the trial, notwithstanding the existence of the special leave applications and the fact that they have not yet been heard, would cause her substantial injustice.
And another point. The mother has an obligation, in the circumstances of her applications for special leave to the High Court being, and I have not done the exact maths, about three months out of time having regard to the High Court rule that special leave applications need to be filed within 28 days of the judgment against which leave to appeal is being sought, to persuade me, just as she will have in the High Court, that there is some particular reason adequately explaining that delay such that strict application of the rules would work some sort of injustice against her.
Again, my view is that although that is a matter that she will have to face fairly and squarely when her counsel stands up in front of the High Court on the special leave application, it is yet another matter that I am also obliged to turn my mind to at the part of my discretionary exercise when I am considering the likely prospects of success or otherwise in the High Court, it being an uncontroversial, undoubted principle that when one seeks to get the indulgence of any court to extend time limitation periods, particularly in respect of the filing of appeals, that one must, by way of admissible evidence, explain to the court in a satisfactory way the reasons for non-compliance with the strict obligations of the rules in the first instance.
If I can turn to that issue, firstly, when I came into Court this morning, having read the mother's Application in a Case, and the supporting affidavit that was only five paragraphs long that contained the Notices of Appeal, I was immediately taken by the stark absence of any sworn evidence by the mother going to the question of explaining the non-compliance with the rules or, indeed, any evidence going to the merits or, otherwise of her case for special leave to be granted in the Full Court.
However, apparently realising the weakness in that part of the case, counsel for the mother quickly sought leave to file the affidavit that the mother had filed at the same time or in support of her applications for special leave which was required by the rules in which she seeks to explain the reasons for her delay. In the affidavit that was filed and relied upon in this regard, the mother swears to this, starting on page 3 at paragraph 6:
...financially exhausted, and when my solicitor went on maternity leave on 12 May 2014, I decided to try and self-represent because I thought I could save some money to secure representation for trial. When I tried to self-represent, I realised I could not properly do so. I completely underestimated how much time and effort the documents would take, and how difficult it was on my own to write the documents. I did not realise that I would not be able to get them done on my own, and I have not been able to accomplish all the directions by myself. This delayed my compliance with certain trial directions, and this has also impacted my ability to file in time for special leave. I also soon realised that I required legal advice and assistance and so in May 2014, and then from July to August 2014, I contacted about seven different lawyers trying to find representation again. Most of them required a significant retainer that I did not have. I was told by one lawyer that my case was too difficult in complexity to take on and I suspected that this was also the case with other lawyers I approached. Finally, at the beginning of September 2014, I was able to engage the services of my current solicitor. I have approached one QC about special leave but could not afford the services of the QC.
What that paragraph fails to acknowledge though, although she talks about her solicitor going on leave in May, is that at the hearing of the appeal before the Full Court, counsel who appears for her today appeared and argued the appeal instructed by a firm of solicitors known as Henry Family Lawyers, and that was on 29 May 2014. Without reading it out in full, her evidence then goes into her employment situation, her income situation and, really, refers to matters of impecuniosity or inability to finance the special leave application. She then goes on in further paragraphs to say that she has been delayed in filing her application for special leave because of medical problems affecting her family.
She says that her eldest daughter became sick in early June and that continued for weeks. She says that around July, that same daughter began to complain about pains in the stomach, headaches and dizziness. She took her to a doctor and was given no diagnosis, but then the child kept complaining. She took her back in August. There is no real reference, though, in those particular paragraphs to the process that she was going through in considering the special leave applications through those particular months.
She also refers to the fact, a bit further on in paragraphs 10, 11 and 12, that the subject child returned to her sick on 20 July and was sick for a short while, improving towards the end of the week, then getting sick again in the period soon thereafter. She then also says that she became sick in August with high temperatures, coughing and vomiting. As I see it on the evidence there, she is presenting a case that the state of health of herself and her two daughters during the period June/July/August/September as well as her financial situation is the reason why the Court could accept she was unable to comply with the strict requirements of the rules to file the special leave application within 28 days of the handing down of the appeal decision.
However, as I pointed out during argument with counsel for the mother, there is no evidence put before the Court by the mother that deposes to her actual knowledge or otherwise of the 28 day period within which she was to file the application. Properly attacked, if I can use that expression, an application such as this really requires evidence from a party as to their state of knowledge in respect of the rules as to whether or not they knew, or had been told and therefore knew, that there was a 28 day period imposed upon by them by the rules of the High Court in which to file the special leave applications and if they knew that, why it was that it was not complied with or, on the other hand, if they deposed to not knowing of such a rule, when it was that they learned of it and how they then acted in timely circumstances to be able to meet it.
Then factual issues such as finances and state of health, etcetera, or evidence about those matters can be viewed and considered in a more contextual set of circumstances in respect of considering the prospects of success or, indeed, the granting of an extension of time. In this particular case, although some weight was placed by counsel for the mother on the fact that the mother apparently was said to be self-representing after the appeal, the Court is left fairly and squarely facing the factual circumstances that counsel who appears for the mother today has appeared for her in the appeal that was unsuccessful, and has appeared for her through the last couple of years of applications before this Court.
There is absolutely no evidence as to whether or not counsel for the mother informed her after the appeal or gave her advice as to her rights to make applications for special leave in the High Court, and anything in respect of time limitations. And that, as I see it, at least in my view, is a glaring deficiency in the evidence that is put before this Court about that matter. In short, I am far from persuaded that the mother has much in the way of prospects at all of convincing the High Court on special leave applications that she should even get the benefit of the indulgence of the Court of extending the period of time within which the special leave applications can be filed.
Added to that, though, is my view that the High Court is likely, at the same time, to be considering the merits of the applications and that, in itself, is a very relevant matter to the other determination I have just been speaking of, that is, whether to grant an extension of time. If the merits of the application are so strong, then one might say, well, there is greater reason to consider that strict enforcement of the rules will, in some circumstances, work an injustice against the person who seeks to have the indulgence. But where, prima facie, applications for special leave have little or no merit whatsoever, it is easier, in my view at least, to consider that there is most unlikely to be an extension of the time granted within which to file those applications.
So that requires, in my view, some prima facie consideration of the merits of these applications. Well, I will jump to the second one, and with the absolute and utmost respect to counsel for the mother, I have to say that I cannot accept the submissions she makes in an endeavour to persuade the court that there is some potential merit in respect of the application for special leave to appeal against the decision of the Full Court of this Court dismissing the appeal against the refusal to grant the stay.
On its face, looking at the grounds, it says:
The Full Court erred in dismissing the appeal against the stay of orders where the principles in Aldridge & Keaton are inappropriate for cases involving child sex abuse allegations, and where it was not an abandoned ground in the appeal, but raised for the purposes of developing the law regarding stay of orders in cases involving risks of child sexual abuse.
With all due respect to the mother's counsel, and whoever it was who drew that ground of appeal, that is just absolutely, on the evidence that is before me, plainly wrong. I have before me in evidence, exhibited to an affidavit of the father's solicitor, a transcript of the hearing of the appeal before the Full Court of this Court on 29 May 2014. And one goes no further than the bottom of page 2, the start of the appeal where May J, who was chairing that Full Court at that hearing, being the senior appellate judge, said, and I will read out the passage:
May J:   All right. Now then, there's what we might call the stay appeal, and that is contained in a further amended Notice of Appeal filed on 7 March.
Mother's Counsel:   Yes, your Honours.
May J: And in that, you asked for a stay of the 17 September orders. Can I just ask you whether you would really wish (it says "with" but it would be "wish") to proceed with that in the sense that if the interim parenting appeals succeed, and either we re‑exercise or remit the matter, or if the appeal fails and is dismissed, what would be the point of the stay appeal?
Mother's Counsel:   Your Honours, you're correct in that respect. And the only matter that I would raise is that clearly if the appeal at the interim is successful, it has impact on the Notice of Appeal for the stay of orders. The only point that I would wish to raise is that there is an important principle of law that I wish to make on the stay or orders, and it may not be the appropriate day to do that but, nevertheless, that was the only thing I could point the Court to. And in light of the amended Notice of Appeal for the interim application, your Honours are correct and I would seek to not pursue the stay because of those very reasons, your Honour.
May J:All right. Well, we had your submissions in which it was complained that the wrong principles were applied.
Ms Merkin:Yes, your Honour.
May J:Yes, all right. But you are not proceeding with the (and she was interrupted).
Mother's Counsel:   No.
May J:   With that. Good. Thank you. That seems quite sensible. Then the third appeal is, if I can describe it that way, the contravention appeal.
Mother's Counsel:   Yes, your Honour.
So clearly and without a doubt, notwithstanding what counsel for the mother submitted to the Court today, and notwithstanding what is written as the grounds for this Application for Special Leave to Appeal about the particular appeal not being abandoned, it was abandoned. There was no doubt about that on the reading of the transcript and the Full Court, in its reasons, quite correctly pointed that out. In paragraph 25 of their judgment they said:
The stay appeal obviously lacked utility unless it was determined prior to the substantive appeal. The appeal was abandoned after we explained this fact to counsel for the mother at the commencement of the hearing.
Indeed, on any reading of that passage in the transcript, it was abandoned. With respect, it seems rather misleading to be telling the High Court, in the grounds set out in an Application for Special Leave to Appeal, that it was not abandoned in those circumstances. Even to submit to this Court today that it was not abandoned, in my respectful view, reflects a serious misunderstanding of that passage from the transcript of the appeal. Certainly, as I pointed out during the course of submissions, I have no qualms in stating that I am satisfied that the Application for Special Leave to Appeal in 46 of 2014 is completely and utterly doomed to fail, regardless of whether it was filed within time or not.
Now, if I can then turn to the Application for Special Leave to Appeal in 45 of 2014. That is the special leave application to appeal from the interim decision of Judge Demack. Two grounds are listed. I heard submissions from counsel for the mother essentially expanding upon and explaining to me, as best she could, what these significant principles of public importance or otherwise that satisfy the requirements of section 35A of the Judiciary Act 1903 (Cth) are set out in the two grounds that are listed in the application. The first one is that:
The Full Court erred in dismissing the applicant's appeal against the interim decision by the primary judge, and erred in inferring that the applicant's evidence was vague evidence and/or sheer suspicion where the evidence adduced regarding the risk of sexual abuse was not far-fetched, fanciful or remote. And in interim cases involving a risk of child sexual abuse, the best interests of the child is best served by prioritising the safety of the child.
And, secondly that:
The Full Court erred in dismissing the appeal where it was submitted. The principle of the rule in Browne v Dunn was applicable to the primary judge's interim decision against the applicant, and the proper application of the principle in the rule in Browne v Dunn with respect to family law proceedings should be determined by the High Court.
Well, in the judgment of the Full Court the Full Court dealt with, as I read it, both of these matters. Under the heading, “Failure to Act on Evidence That Was Not Farfetched, Fanciful or Remote” the Full Court set out, from paragraphs 34 through to 41, their reason why they ultimately rejected the argument put before them on behalf of the mother. I heard some argument from the mother's counsel today in respect of how she intends to try to articulate her arguments before the High Court to support this ground. And with respect to her, I was certainly not persuaded that there are some prospects of success in the High Court.
In respect of the second ground, what I might call the Browne v Dunn issue, I was even more convinced after hearing all of the arguments that this issue is, again with respect to counsel for the mother, misguided, misunderstood, misrepresented to the Court and unlikely, in any respect, to succeed before the High Court. The issue was dealt with by the Full Court from page 11 onwards, under the heading, “Excessive Weight Placed on Inconsistencies in the Mother's Evidence”. As I understand it, it was asserted in the Full Court that her Honour, in her interim decision, placed excessive weight on the appellant's inconsistency in the presentation of her evidence, rather than on the actual evidence adduced of the child's behaviour in her interim finding, and in circumstances where there was given no opportunity to the mother to respond to the inconsistencies.
They then referred to another submission made by the mother in support of this ground, and it's a submission that has been repeated today by her, notwithstanding the finding of the Full Court in paragraph 62 of its judgment. The submission for the mother made by counsel for the mother, the same counsel that appears today, was that there were interim proceedings where the father was not relying on the inconsistency in the evidence, and the Court had not provided the mother with an opportunity to respond to the adverse imputations. This is what counsel for the mother calls "the Browne v Dunn point".
Effectively, she is saying, and as I pointed out during the course of the hearing, it seems to me that she is confusing the Browne v Dunn point insofar as it relates to the conduct as between adversaries in litigation with the trial judge's process of determining findings upon which she ultimately determines questions related to unacceptability of risk or otherwise. But the Full Court pointed out that that submission simply is not able to be sustained in the face of the record, and certainly they go through and explain that in paragraph 62, and then say, in paragraph 63 that in those circumstances, the judge was perfectly entitled to take account of some of the inconsistencies in the mother's evidence.
Counsel for the mother today asserted to me that, effectively what the Full Court said in paragraph 62 is wrong, as a matter of fact, and that the case outline that was handed up to Judge Demack, that I have now made Exhibit 3, did not, in fact, highlight the inconsistencies. Counsel for the father simply observed that that is an incorrect submission and that the document does highlight the inconsistencies. It became an exhibit. I took it away over lunchtime and had a read through it.
I accept these two things. Firstly, the submission of counsel for the father that it does highlight the inconsistencies in an appropriate manner and, therefore, was well and truly in the mother's hands on the first day of the hearing before her Honour, namely, 9 September. Secondly, I find the reference to the facts and the findings that are referred to by the Full Court in paragraph 62 is correct. I just went through and highlighted on page 9 and page 11 of that document, Exhibit 3, clear matters of inconsistency that were pointed out, and upon which her Honour was perfectly entitled to rely. With all due respect, as I said before, I think there is some confusion on the part of the mother's legal representatives in respect of that point that they are making as part of their grounds, the second ground, for supporting the application for special leave to appeal to the High Court, and that somehow there is a fundamental misunderstanding of this rule in Browne v Dunn and its applicability to the circumstances of this particular case.
The submission made by counsel for the mother that the matter of significant public importance is the question whether or not the principle in Browne v Dunn should apply in this Court, having regard to a 1998 decision of LC & TC (1998) FLC 92-803 and whether that ought to be revisited based on the fact, as she submitted, LC & TC determined that the rule in Browne v Dunn does not apply in the Family Court. Again, with respect to counsel for the mother, that submission is just incorrect. A reading of the decision in LC & TC reveals that the Full Court of this Court did not say that the rule in Browne v Dunn does not apply in the Family Court. It said, “it does not apply in circumstances where…” and then sets out matters such as trials being done on affidavit where the case of each party is known to the other well in advance.

So with all due respect, I am simply not persuaded that the Application for Special Leave to Appeal in 45 of 2014, even if it was successful in respect of being given leave for it to be heard well outside of time, is likely to have any prospects of success in the High Court.
In respect of the third application for special leave, that is, namely 47 of 2014, which is the Application for Special Leave to Appeal the Full Court's decision on the contravention proceedings, as I understand it, the mother was really, through her counsel, saying that there were two points of principle of public importance for the High Court to determine here, namely: (1) whether or not there was sufficient evidence upon which the judge could properly determine that there was no reasonable excuse; and (2) whether or not somehow the existence of his findings impacted upon the way in which this trial is to be conducted.
I am not sure that those two points actually coincided squarely with the two grounds set out in the Application for Special Leave to Appeal. Those two grounds, though, set out in there were well and truly dealt with by the Full Court in their decision, and fairly succinctly in respect of one part of it in only just a matter of paragraphs. And I was not persuaded by any argument from counsel for the mother that there was some serious error of principle on the part of the Full Court there that suggested that there was some arguable case in the High Court. Indeed, the Full Court dealt with that at page 15 in three very short paragraphs.
In respect of the other part of her argument that Bell J somehow went back and simply accepted the interim determination of Judge Demack, which was already said to have been erroneous, in any event, and that that somehow taints his decision, the Full Court dealt with that, again quite comprehensively, over a couple of pages, from paragraph 70 through to paragraph 80, in their decision ultimately to determine that there was no merit in the ground. With respect, I was just simply not persuaded by the submissions from counsel for the mother that there is some prospect of success in arguing that point before the High Court.
Ultimately, as Mr Linklater-Steele conceded quite quickly, there is not going to be any suggestion made on the part of the father that because Bell J made findings that the mother did not have a reasonable excuse for contravening the orders back in late 2013 that I am somehow bound by that decision. It seems common ground between all the parties that one of the central issues before me today in this trial will be considering the nature of the mother's belief that the child has been sexually abused by her father, whether that is: (a) genuine; and (b) rationally based.
That will, necessarily, require me to consider afresh all of the evidence about the matter, particularly the evidence about her current state of belief, and all of the factual matters upon which that current state of belief is based. I do not consider myself in any way bound, especially given the fact that counsel for the father has indicated they are not going to be urging that I am bound by Justice Bell’s findings. Ultimately, as has been submitted quite strongly by counsel for the Independent Children's Lawyer supported by counsel for the father, the best interests of this little girl require the immediate hearing and determination of the competing parenting orders applications before the Court, and that there not be an adjournment of this trial that might put the matter back another year in circumstances where, really, there are no arguable prospects of success in the High Court for all of those reasons that I have already outlined and in circumstances where, ultimately, the High Court could do nothing other than remit the matter back to a trial judge for hearing and determination, and factual findings about these matters that seemingly are the basis of the mother's complaints in respect of the interim decisions where evidence was not actually subjected to being tested in the cut and thrust of the trial arena.
I agree with those submissions for all the reasons I have given and I am ultimately persuaded that the best interests of this little girl require the hearing of the trial to proceed and also having regard, as I must, pursuant to the High Court decision in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, to the broader public interests in efficient case management of the Court's limited resources, not just the broader public interests but the interests of those other litigants who sit in the queue waiting for trials and, more importantly in those cases, the interests of all the children involved in those cases. I am persuaded to dismiss the application for the adjournment and to proceed with the trial.

I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 November 2014.

Associate:

Date: 28 January 2015