Stiffle, E.M. and Stiffle, G.T.

[1988] FamCA 2

In the marriage of STIFFLE, E.M. and STIFFLE, G.T.

(1988) FLC ¶91-977

Other publishers' citations: (1988) 12 FamLR 620 (1988) 93 FLR 206

Full Court of the Family Court of Australia at Melbourne.

Judgment delivered 15 June 1988.

Before: Simpson, Fogarty and Joske JJ.

Fogarty and Joske JJ.: In this judgment we will refer to the parties as husband and wife respectively, although the parties were in fact divorced by this Court during 1986.

On 14 August 1987, Treyvaud J. ordered that the wife be the sole guardian and custodian of the child S (born on 13 July 1973 and then aged 14 years) and that the husband be the sole guardian and custodian of the child J (born on 12 November 1976 and then aged almost 11 years). His Honour reserved the question of the husband's access to S and ordered the husband to pay to the wife maintenance for S at the rate of $35 per week. His Honour made detailed orders for access by the wife to J, reserved the question of maintenance in relation to that child and ordered pursuant to sec. 64(5) that these orders be supervised by a counsellor for a period not exceeding 12 months.

By Notice of Appeal dated 11 September 1987 the wife appealed against the order granting to the husband sole guardianship and custody of J. She sought either an order from this Court granting to her sole guardianship and custody of that child or a retrial of that issue. The grounds contained in the Notice of Appeal were amended at trial. They really raised the one issue, namely whether the trial Judge had prejudged the issue of the custody of J and ought to have disqualified himself from completing the hearing. Because the appeal before us was confined to that issue, it is unnecessary to refer to the background facts in great detail. The most significant aspect of the case, however, is the circumstance that J is a Down's syndrome child.

The parties married on 28 October 1972, their ages then being approximately 23 and 22 years respectively. At the trial the husband was aged 38 and was employed as a leading hand on shiftwork. The wife was then aged 37 and was employed full time in home duties looking after the two children S and J.

The parties separated on 9 April 1985 when the husband left the matrimonial home. Since that time the wife and two children continued to live in that home.

In September 1985 the husband instituted proceedings in this Court in which he sought access to the two children. On 15 October 1985 consent orders were made under which the parties would be the joint guardians of the two children and the wife the sole custodian, and orders were made for the husband to have access to them. The husband was also ordered to pay maintenance for two children and various procedural orders were made to deal with outstanding property applications. The access orders were apparently intended to be only interim in nature as they provided that the parties should continue to have counselling about differences between them on this topic and liberty was reserved to apply for a report in relation to that if it became necessary. Otherwise the question of access was adjourned to a date to be fixed.

Shortly after that the financial disputes between the parties were resolved and a sec. 87 agreement was approved by the Court on 16 December 1985.

Those orders continued to govern the situation until the husband's present application was filed on 26 August 1986. In the intervening period, and indeed until the trial in August 1987, the wife and the two children continued to live in the former matrimonial home. The husband continued to have access to J. but S refused to go on access to her father.

In approximately April 1986 the husband commenced to live with a Mrs B. and they married in December 1986. Mrs B has the custody of three children of her prior marriage, all girls and aged 14, 11 and 10.

The husband's present application was issued on 26 August 1986. In that application he sought the custody of both S and J.

The parties' practitioners arranged for a report to be prepared privately through Ms W, who had formerly been a counsellor of this Court. Ms W's report was furnished on 10 April 1987. It appears that she was not available to give evidence in August. Consequently, arrangements were made with the trial Judge for her evidence, additional to her report, to be given on 22 July 1987 and that together with the report formed part of the evidential material at the hearing in August 1987.

The husband did not proceed with his application for custody of S, because her age and attitude to her father made that application unrealistic. The case in respect of J. commenced on the morning of 12 August and the husband as the applicant proceeded with his case first. Because of the relatively confined nature of the appeal, it is unnecessary to analyse in detail the husband's case. In effect, it proposed that for the future J should live with him, his present wife and three stepdaughters. The fundamental aspect of the husband's case and what really appeared to become a key issue was what might be described as the future educational welfare of J. The husband's case was presented as offering a much more positive approach to the child's welfare and to the disabilities involved in the Down's syndrome condition, and in particular placed great emphasis on the importance of the child's education. The husband's case involved detailed proposals in these areas, and was presented with considerable emphasis upon this aspect. The husband's case was that if these matters were given careful attention the child's long-term future welfare would be significantly advanced. It was also an important part of the husband's case that his approach was to be contrasted with that of the mother. The evidence established that in recent years the child, while attending a special school, was frequently absent from school for upwards of one-third of the school year, and that this suggested that the wife had a generally negative or defeatist attitude towards the child's handicap. It was further alleged that the wife discouraged access between the son and his father. The husband's supporting evidence emphasised the importance of schooling and consistent attendance at school and was strongly supportive of the husband's educational plans for the child.

The husband's case concluded at approximately lunchtime on the second day, 13 August. Counsel for the wife then opened her case, intending to call the wife plus five witnesses who had sworn affidavits in support of the wife's case.

In effect, the case for the wife was that she had had the primary responsibility for the two children throughout the marriage and since separation, and that the issue of custody had been determined by consent orders which were made at the end of 1985. It was submitted that there was a close relationship between the two children and it would be a disadvantage to each of them for them now to be separated. Further, it was put that the child's absences from school, although substantial, were explicable and had improved during 1987. Her case also involved what might be thought to have been appropriate educational proposals for J for the future.

It is clear from the transcript that counsel for the wife anticipated calling her to give evidence in addition to the other witnesses who had sworn affidavits. No doubt leave would have been sought to adduce additional material from each of those witnesses especially directed to the emphasis which in the husband's case had been placed upon education and attendance at school.

The wife's evidence dealt with a number of issues but in particular it was open to the trial Judge to have concluded that the wife had adopted a somewhat negative, almost defeatist, attitude to the prospect of improvement through education for J and that her explanation of his significant absences from school was not really satisfactory.

Counsel for the husband then commenced his cross-examination and immediately took up this issue of education and J's future generally. The cross-examination by counsel was as follows:

``MR ROSEN: Do you really believe that J is going to be able to be independent, Mrs Stiffle? — Yes, he will. Not to that extent but I cannot see him being so bright as what a normal child would be.

Do you think that what your husband, your former husband wants for J is unreal or unrealistic? — Well, that is asking for too much, is it not?

Is it? — I mean, you cannot get past that he is not a — that he is a Down's syndrome kid, he is a Down's syndrome kid no doubt.

You were just about to say that he is a handicapped child, were you not? — Yes.

You regard him as a handicapped child, and that is his place, that is his position in life? — Yes.

And with severe limitations, is that what you say? — Yes.

And really you are not — you do not positively look to the future to what he might achieve? — Well, as I say, if he cannot learn to write his name or you know, he brings work home, and it is all crooked, there is nothing he does — nothing much I do not know what he does at school, but I know the work he brings home, you know, it is nothing much.

It is pretty hopeless? — Yes.

And really I suppose ultimately you do not have much confidence in what the school is giving him anyway from what you say. He is not getting anywhere? — Well, to my opinion, I feel that, I mean, you know,... he is going to school and things, they are trying their best to do things, but I mean for being a child like him, I cannot see, he might do a bit. I mean I do not say he is that useless or cannot do anything for himself.

But the school really is not doing much for you, is that what you say? — Yes.

And he could I suppose, given a little more time, be really in your view a waste of time to continue to send him there apart from keeping him off the street? — Yes, I would like to see him at school, I am not saying that I would like to keep him at home or make him waste his time at home and then when he grows up to become one of those useless children.

But really the school is just a place to keep him and to let him function, but the prospects of the future are really not at all good? — Well, as I say, who knows, is it not, you do not know what is what.''

At that point, the trial Judge intervened. It was this intervention which constitutes the basis for the appeal. It is desirable to set out what his Honour said in full:

``HIS HONOUR: Mr Matthews, I think I have reached a stage in this case in which the longer this case progresses, the stronger the case for the husband becomes, and the more hopeless the case for your client is. I normally would not interrupt in the middle of a cross-examination. I would normally let this case go to its conclusion, but you could work on the basis that you are going to need a miracle to win this case, absolute miracle. Everything is against you so far.

MR MATTHEWS: I understand that, your Honour.

HIS HONOUR: I mean, you are aware of that, no doubt, as well as I am. It just seems to me that I am wasting everybody's time and everybody's money. If we have to go on, well and good, that is all right, but it just seems to me that this is a case where the husband is so far ahead by a mile.

MR MATTHEWS: So the only rider I could add, your Honour, is that —

HIS HONOUR: There might be, as I said, there might be a change in the situation.

MR MATTHEWS: Mr Humphries may enlighten the matter.

HIS HONOUR: Somebody might do something, but, I mean, if there was ever any doubt in my mind and there was little enough having heard the experts, and I hear the last comments that your client has made at the end of evidence-in-chief and the start of cross-examination.

The only hope for this child is, in my view, to be with his father.

MR MATTHEWS: Yes, well, I am sure that the parties can hear what your Honour is saying.

HIS HONOUR: That is why I thought I would tell you now. Now, I do not mind if you want to fight this case out, well and good. As I say something might happen to change my mind but at this — one of the strongest cases for a husband I have ever heard, and it seems to be even getting stronger.

MR MATTHEWS: Well, if your Honour would stand the matter down for five minutes, it may —

HIS HONOUR: That is why I mentioned it to you in case you want to. If your client wants to proceed, that is perfectly all right by me, I will just sit here and go through the motions.

MR MATTHEWS: Well, I would certainly like the opportunity to speak to her, your Honour.

HIS HONOUR: All right. I think that is not a bad idea. I read the books with interest. One matter that struck me was a note on 28 April 1987 by your client, to the teacher:

If possible,... for the children.

I think it was just a little straw in the wind, amongst others. I will stand it down. Let me know when you want me.

MR MATTHEWS: Thank you, your Honour.

HIS HONOUR: And if you find that you want to fight this case, that is perfectly all right by me. If I am not doing that, I will be listening to Mr Rosen in something else.

MR MATTHEWS: If I could have 10 minutes, your Honour, I would appreciate it.

HIS HONOUR: Yes, if you think you need a lesser or a longer time, you can have it.''

As that passage indicates, the matter was then stood down. It was then 3.12 p.m. and what in fact occurred after that was that the matter did not come back on for hearing that day but resumed before the trial Judge the following morning. Both counsels were present but it would appear that the wife was not at Court (although members of her family were). The hearing that morning was constituted by the following passage:

``MR ROSEN: Your Honour, my learned friend and I are grateful for the time. As he is present and I should perhaps say for the transcript, Mrs Stiffle is not present in court but her family are.

HIS HONOUR: Well, her brother and sister-in-law, I take it, are in court.

MR MATTHEWS: Mr and Mrs Mitchell are your Honour.

MR ROSEN: That is correct, your Honour, and as a result of the discussions relating to access we propose minutes of orders which your Honour can make, they are not by consent but should be made in the normal course. Those minutes, I can hand to your Honour's court officer, are orders 1 to 10 inclusive.

HIS HONOUR: I make these orders not by consent, is that correct?

MR ROSEN: Thank you, your Honour.

HIS HONOUR: All right, I make orders in accordance with the minutes which are exhibit D. I would like to make a couple of quick comments, first of all to Mr and Mrs Mitchell. You have been very concerned about this case, that has been established by your attendance throughout the whole of the proceedings. Your sister, I think, is going to need a considerable amount of assistance.

MR MITCHELL: That is correct, your Honour.

MRS MITCHELL: I have already looked into it.

HIS HONOUR: And I would — all I want to say is I would be confident, I think, that you will do all you can to make the task for her as easy as possible.

MR MITCHELL: Certainly will.

HIS HONOUR: And that will be very fine and so far as you are concerned, this child has no future without you and it is a very responsible job you are taking on and I was very impressed with the attitude that both you and your current wife displayed and I hope it works out very well, that is what it is all about. Yes, all right, well thank you very much.

MR ROSEN: As your Honour pleases.

MR MITCHELL: If your Honour pleases.''

The minutes of orders referred to became the orders made by the trial Judge, the details of which we have already referred to. As a consequence of those orders, the husband became the guardian and custodian of J. As we have already indicated on 14 September the wife appealed.

The original Notice of Appeal contained grounds in rather general form and most of those were abandoned at the trial. The relevant one in the original notice was ground 4 which was in the following terms:

``That the appellant was denied natural justice.''

Fortunately, that very brief ground was expanded in the amended notice into the following three grounds which constituted the basis upon which the appeal was argued before us:

``5. THAT the learned trial Judge failed to hear the whole of the wife's case before forming and expressing a concluded opinion in relation to the custody of the child of the marriage J born 12 November 1976.

6. THAT a fair minded observer, or a party to the proceedings hearing the learned trial Judge's remarks hereinbefore referred to would have been justified in thinking that the learned trial Judge's remarks were neither tentative nor exploratory and that the learned trial Judge had formed a settled view on the question of custody of the said child.

7. THAT having made the remarks set out [in full above], the learned trial Judge should have disqualified himself from taking further part in the proceedings.''

Counsel appearing for the appellant wife, submitted that the test to be applied was whether a party or the public would reasonably apprehend that the trial Judge was not bringing an impartial and unprejudiced mind to the resolution of the controversy before him. In this respect he referred us to a number of the well-known authorities, including: Inre Watson; Ex parte Armstrong (1976) FLC ¶90-059 at pp. 75,270-75,273; Re Leckie; Ex parte Felman (1977) 52 A.L.J.R at pp. 155-158; Re Lusink:Ex parte Shaw (1980) FLC ¶90-884; Livesey v. New South Wales Bar Association (1983) 57 A.L.J.R. at p. 420; InRe Simpson; Ex parte M (1984) FLC ¶91-513; Re J.R.L.; Ex parte C.J.L. (1986) FLC ¶91-738; Lonard and Lonard (1976) FLC ¶90-066; and Sealey and Sealey (1986) FLC ¶91-736.

Counsel for the wife submitted that there were a number of issues in addition to the issue of the child's education and which were important aspects of the wife's case, namely that she had always been the primary care-giver of the child, the non-separation of the two children, and the question whether there had been any significant change in circumstances since the 1985 orders. He also submitted that at the time when the trial Judge intervened the wife's cross-examination had only just commenced and her five witnesses were still to be called. He submitted that the trial Judge was obliged to permit the wife to complete her case before he reached any decision on the matter.

However, it seems to us that the position is not quite as clear in that regard as counsel for the wife submitted. The wife's evidence-in-chief had been completed. Her cross-examination is not part of her case but is part of the husband's case. The witnesses were all on affidavit as the trial was, as is the custom with cases of this sort in this Registry, a trial by affidavit. Notices had been given in respect of each witness requiring them to attend for cross-examination, but it was always open to counsel for the husband to abandon that position and not seek to cross-examine any or all of those witnesses. It seems to us that the affidavits of these witnesses were part of the evidential material before the trial Judge, although this position is a little obscure. When the trial commenced the actual affidavits which each party was seeking to rely upon were not specifically identified, nor, consistently with the general practice in Melbourne, were those affidavits read at that point. It is clear that his Honour was conscious of the affidavits filed on behalf of the wife and of their contents and indeed some discussion ensued at the commencement of the wife's case as to those affidavits which were identified and there was some discussion about the order in which those witnesses may be called. So in one sense it might be said that at the time that the Judge intervened the wife's case was, in a technical sense, completed.

However, it is equally clear that addresses had not been delivered and that would normally be part of the hearing and a prerequisite to a determination. Further, it is we think clear that it was the intention of counsel for the wife to call his witnesses, not only for the purposes of making them available for cross-examination, but to adduce from them further material on aspects of evidence which had become more significant during the conduct of the husband's case. This was particularly so of the witness. Mr H, who is an expert in the education of Down's syndrome children. His affidavit supported the wife's case and it is possible that with his long experience in this area he might have been able to throw some qualifying light upon the evidence of the husband's experts as to the importance of regular education of Down's syndrome children. It is also likely that he could have thrown light on the nature of the relationship between the child and his parents and of the interest which those parents had shown in the child's education at an earlier point.

Counsel for the wife submitted that the Judge was obliged to give reasons for his decision. The orders which were made on 14 August were not by consent, but they were not opposed by the wife's counsel. It was counsel's submission that in those circumstances — the orders sought a change in a previous court order and a number of important issues had been raised of which future education was obviously a most significant one — it was necessary for the trial Judge to indicate the reasons why he was satisfied to make orders in the husband's favour and that the views which he had expressed on the previous afternoon were not sufficient for this purpose.

But the major submission by counsel for the wife was that the wife was entitled to conclude, when she heard what the trial Judge said on 13 August, that he had prejudged the issue, that is he had formed a fixed view upon the outcome but before the case for each party had concluded and that it would be impossible to dissuade the trial Judge from that position.

In this regard, counsel for the wife drew our attention to a number of cases. He referred us to the general observations made by Megarry J. in John v. Rees (1969) 2 All E.R. 274 at p. 309 where his Honour said:

``It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. `When something is obvious,' they may say, `why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start.' Those who take this view do not, I think, do themselves justice. As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not: of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.''

Counsel for the wife further pointed out that the observations by Megarry J. in the latter portion of that passage are particularly apposite in family law proceedings. He drew our attention to the circumstance that practically all the modern cases in Australia in this area have been family law cases, the inference being not that the Family Court is any less mindful of the principles to be applied but that human passions run high in this area and it would be undesirable to ``underestimate the feelings of resentment'' of litigants in this jurisdiction, a circumstance which emphasises the caution with which intervention must be approached. See also the somewhat analogous case of Brassington (1961) 3 All E.R. 988.

Counsel for the wife also drew our attention to the judgments of the High Court in Re Lusink (supra). There Murphy J. discussed at some length the difficulties confronting judges, particularly in this jurisdiction, in a very instructive passage at pp. 75,585-75,586:

``There was no suggestion in this case that the trial Judge came to the case biased or prejudiced. The complaint is that, during the course of the case, the Judge expressed views adverse to the husband's case before hearing all the evidence to be presented by the husband. I say all the evidence because documentary material emanating from the husband was before the court, some part of his case had been presented in cross-examination, and his counsel had made an open offer of settlement. Some may think it an ideal that trial Judges (sitting without a jury) should keep completely aloof until they give judgment, express no view about what they consider important or unimportant and not indicate what impression any evidence makes on them, whether they would need further evidence to be satisfied on some point, or what they think are the real points in issue. In practice this would make trials artificial and longer.

Almost all experienced practitioners welcome indications by judges, whether at the first instance or on appeal, of the provisional impressions made upon them by evidence or argument of factual or legal issues.

The judicial process is quite opposed to the idea that a judge forms no impression until the very last word before judgment. On the contrary, one side begins by introducing arguments or evidence intended to create a provisional view in its favour, and often succeeds. The other side seeks to reverse the process by cross-examination and then presenting its case. The extent to which any impression is formed depends upon the strength of the evidence and the conduct of the case up until that point.

Often during the course of a trial, a judge is required to give formal rulings which indicate a provisional, or even concluded, view on some aspect of the case. Sometimes, an impression may be created, even before an oral hearing, by documentary material containing the opposing legal or factual contentions. This occurs daily in the ordinary conduct of civil trials without a jury (different considerations apply in criminal matters and in jury trials). In family law cases, judges often have to make an order tailored to meet the realities of the financial or custodial situation of a broken family; it is very often important for them to direct parties' attention to the kind of order contemplated if the judge were to arrive at a conclusion warranted by the evidence that had emerged thus far. In this way, a party has the opportunity to dispel any adverse impression by evidence or show that such an order would not be appropriate.''

Similarly, reference might be made to comments of Aickin J. at p. 75,587, where his Honour, referring to the rather different set of circumstances, said:

``That statement in its context may reasonably be taken to indicate a firm decision irrespective of whatever arguments might be addressed to her.''

Similarly, counsel for the wife drew our attention to the well-known judgment of the High Court in Armstrong's case (supra), where the Court said (at p. 75,270):

``A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it.''

Counsel for the wife further submitted that the failure of counsel then appearing for the wife to object to the comments of the trial Judge or to make an application to the trial Judge to discharge himself from the further hearing was not critical in this case. He submitted that, although that course was clearly the preferable course to have been adopted, it was nevertheless open to the wife and those acting for her to in effect withdraw from further participation in the proceeding and appeal against the orders which were made. Counsel further submitted that in the circumstances of this case the trial Judge should have disqualified himself from the further hearing without the necessity of any application being made. Counsel in this regard referred us to the judgment of the Full Court in Lonard (1976) FLC ¶90-066, where this issue and analogous issues were discussed, especially at pp. 75,336-75,337. After discussing the various options open to a litigant, placed as the appellant was in Lonard's case, the Full Court said this:

``His Honour made it plain that further evidence or submissions were most unlikely to affect his view. The father and his counsel were entitled to take the view that there was no further point in addressing the judge even though his Honour did not insist on a settlement or preclude any further argument or evidence.''

See also Brassington's case for a somewhat similar set of circumstances.

Counsel for the wife also referred us to Taylor's case (1979) FLC ¶90-674 at p. 78,592, and to the more general discussion contained in the case of N. and N. (1981) FLC ¶91-111, especially at pp. 76,824-76,825.

Counsel, for the the husband, submitted that the wife's case had closed as her other witnesses may not have been cross-examined and that in any event the comments of the trial Judge had to be seen in the context of a trial which had taken several days and in which the trial Judge had had the opportunity of seeing the various witnesses and particularly both parents in the witness box, and had had the opportunity of reading all the affidavit material. He further submitted that the wife was not deprived of the opportunity of completing her case and could have continued to do so if she had chosen. In reality he argued she abandoned her case with the result that the only appropriate course for the trial Judge to adopt was to grant custody of the child to the father, and in these circumstances there was no necessity for him to give formal reasons for that order. Counsel for the husband further submitted that the educational issue had emerged as the primary issue in the case and the trial Judge was entitled to be influenced by seeing both parties and by what counsel described as the ``disastrous admissions'' made by the wife. Counsel further submitted that the trial Judge was under no obligation to disqualify himself and that if any such submission had been made for the appellant, he ought to have refused it. Counsel submitted that the trial Judge was really giving effect to sec. 97(3) of the Family Law Act, which imposes on the Court the responsibility to ``... proceed without undue formality and... endeavour to ensure that the proceedings are not protracted''.

Finally, counsel for the husband submitted that any intervention by this Court of Appeal was a matter of discretion and that it ought to exercise its discretion against so acting because of the time factor since the original orders (during which the child has been with the father) and the high likelihood that the same result would occur at any retrial.

It appears to us that the trial Judge had, by the passage [set out in full above], clearly formed a judgment on the issues between the parties. It was no mere expression of tentative or exploratory views. It demonstrated a clear conclusion about the fundamental issues in the case and we think made it clear that he was not open to be persuaded by further evidence or argument.

The question then is whether there was a prejudgment of the issues. It appears to us difficult to avoid the conclusion that there was. We do not agree with counsel for the husband's submission that evidence had for practical purposes been concluded, and certainly addresses had not taken place. Section 97(3) is not intended to provide for a summary form of trial. It is intended to ensure, consistently with the well-established rights of litigants in the adversarial system, that the case is not unduly protracted. In particular, in custody cases it may be usefully employed to ensure that marginal or peripheral issues are not pursued at length and cross-examination is contained within appropriate limits. Baines and Baines (No. 2) (1981) FLC ¶91-063 is a good example of the usefulness of that subsection in those cases.

In our view the wife was justified in concluding that the issue had been determined against her and there was no purpose in proceeding further.

The Judge clearly acted as he did with the best possible motives, namely that in a difficult and emotive case he had formed a view on issues which he regarded as critical and after seeing both parties in the witness box felt that neither the parties themselves nor the community would be advantaged by allowing the case to run forward for the additional amount of time which would be involved in calling the balance of the wife's witnesses. It may well be that had the case been completed in that way the same result may well have occurred, but it is impossible to predict that with absolute certainty because there was an absence from the arena of evidence which was significant. Further, it might be said that that question is largely irrelevant: the right of the litigant is to call all relevant evidence and the denial of that would normally amount to a mistrial. One would, of course, need to exclude from that general statement cases where the proffered evidence was no longer relevant to a ``live'' issue, or would not have any influence upon an issue upon which that party would fail in any event. But none of those qualifications really apply here. (See generally Bray v. Ford (1896) All E.R. at pp. 1,010-1,011.)

In ordinary circumstances the failure of counsel acting for a party faced with that event either to seek the disqualification of the trial Judge or to insist upon the right to complete the litigant's case would be fatal to an appeal based on that ground (see e.g. Re McCory; Ex parte Rivett (1895) 21 V.L.R. 3 at p. 273; Nolan and lngram (1984) FLC ¶91-585 at pp. 79,723-79,724); Murphy and Armstrong (1979) FLC ¶90-623 at p. 78,219. This is because in ordinary circumstances a party is not entitled to let such a matter go unchallenged, complete his or her case, and then, if the final result is adverse, challenge those orders on appeal.

This case, however, is somewhat different. The wife effectively withdrew from any further participation in the proceeding after the trial Judge's intervention. None the less it is unfortunate that such an application was not made to the trial Judge as it appears he was acting only in what he felt to be the best interests of both parties and the child. We are of the view that had such an application been made, it is likely that the trial Judge would, on reflection, have concluded that these comments went beyond what was appropriate.

This Court has general supervisory jurisdiction, the ultimate determinant being whether a miscarriage of justice has occurred in the particular proceeding (see generally N. and N. (1981) FLC ¶91-111 at p. 76,823; Wollongong Corporation v. Cohen (1985) 93 C.L.R. 435 at p. 444; Wilkes and Wilkes (1981) FLC ¶91-060).

The failure of counsel to make an application to the trial Judge to disqualify himself is an important consideration in the exercise of that power but we do not consider that it is necessarily fatal in every case particularly when the trial did not proceed further after a judge's intervention which gave rise to the complaint.

We also take into account the argument by counsel for the husband that any retrial may produce the same result and in that event it would not be to the advantage of the litigants, the child or the community. We further take into account that these events did not arise as a result of any actions or submissions by or on behalf of the husband.

Accordingly, whilst the arguments against this Court exercising its power to direct a retrial have force and in some cases would be decisive, nevertheless we conclude that given the unusual circumstances of this case the larger interests of justice require this Court to intervene and direct a retrial. There can be little doubt that the wife harbours a strong feeling of injustice knowing that she did not complete the presentation of her evidence. It was a difficult and highly sensitive case involving the change of custody of this child from the mother and sister, with whom he had lived for some years, to the father. The intervention of the trial Judge was expressed in strong terms and was of a nature which would rarely, if ever, be justified even though clearly down for the most proper motives.

The failure of the wife to proceed with her case is understandable, although the failure of her counsel to make any application to the trial Judge was regrettable. The fact is that the wife did not have her day in Court when an issue which was fundamental to her was determined against her interests. Accordingly, it is our view that the proper exercise of this Court's supervisory jurisdiction is to intervene to rectify the matter.

We should refer to one other circumstance. There was, as we have indicated, some confusion about the affidavit material which was proferred by each side at the trial. That seems undesirable. It is necessary when a trial commences for the affidavits which are to be relied upon by each party to be clearly identified, although it would not ordinarily be necessary for them to be formally read.

In our view therefore, this appeal should be allowed and there should be a retrial. That retrial should take place in the Melbourne Registry as soon as practicable so that there can be some finality in the life of this young boy. However, in order to avoid the unnecessary complications which might arise were the child to be returned for a short time to the mother's custody pending the retrial, we think it more orderly that the child remain with his father until the retrial takes place. No doubt he has commenced at his new school. If the result of the retrial is to confirm the present situation, then no disruption will occur. If the effect is to re-establish the wife's custody of J, then it will mean only one change.

The other orders made by the trial Judge, namely orders dealing with custody, maintenance and access in respect of S, and access and maintenance in respect of J and the supervisory order, we think ought not to be disturbed.

Accordingly, we order as follows:

(1) the appeal is allowed;
(2) paragraphs 3 and 5 of the orders made on 14 August 1987 are discharged;
(3) we direct a retrial of the issues of guardianship, custody and access of J, such issues to be determined in the Melbourne Registry as soon as practicable;
(4) until further order, the husband is to be the sole guardian and custodian of the said child;
(5) until further order, the wife is to have access to J in accordance with para. 5 of the orders of 14 August 1987;
(6) we reserve liberty to apply to a single Judge at the Melbourne Registry in relation to any orders which may be necessary to ensure the prompt retrial of the proceeding.

Simpson J.: I have had the advantage of reading the reasons for judgment of Fogarty and Joske JJ.

With respect I am unable to agree with their conclusion that there should be a retrial.

The majority judgment sets out the relevant factual material and I need not repeat it. Nor is it necessary for me to reiterate the references to the relevant authorities.

I accept that the intervention by the trial Judge was expressed in very strong terms and that the appellant wife would have been justified in coming to the conclusion that she had no real prospect of success in the proceedings.

However, I consider that the subsequent course of the proceedings before the trial Judge is of critical importance.

In essence the appellant — who was legally represented throughout the proceedings — allowed judgment to go against her by default.

There may have been many reasons why the wife was not prepared to consent to the orders. She may not have wished to have been put in the position where it might be said that she had agreed to the respondent having custody of the child J; nor to have placed any impediment in her path if she later thought it necessary to apply for custody of the child. The wife may not have accepted the correctness of the view taken by the trial Judge but conceded that her son should be given the opportunity that the husband said he could provide.

But that is all speculation. In my view the nub of the matter is to be found in the attitude taken by counsel for the wife on the final day of the hearing. Not one word was said by the wife's counsel to indicate that the wife objected to the trial Judge completing the proceedings. If counsel for the wife had informed the trial Judge that his client wished to pursue her claim his Honour, on his own initiative, may have raised the question of his disqualification. In any event if counsel for the wife had also submitted — which in my opinion it was his duty to do — that the trial Judge should disqualify himself I have no reason to doubt that his Honour would have done so. However, if his Honour had not disqualified himself from completing the proceedings then it seems that an appeal would have bound to have been successful.

In my view the wife, by her counsel, having stood by and allowed the trial Judge to make the orders in accordance with the minutes, should not now be permitted to complain about those orders.

I would dismiss the appeal.

Before leaving this matter I wish to record my concern about one aspect of the hearing relating to an apparent practice in the Melbourne Registry.

It seems that, at the commencement of a hearing, it is not usual for each party to indicate to the trial Judge the affidavit material on which he or she intends to rely. Accordingly, I find it difficult to understand how a trial Judge would be able to identify and read the relevant material and how the parties would be able to properly conduct their case.