PJA v MBCA S12/1998 [1998] HCATrans 278 (7 August 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S12 of 1998

B e t w e e n -

PJA

Applicant

and

MBCA

Respondent

Application for special leave to appeal

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 1998, AT 3.28 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: May it please the Court, I appear for the applicant with my learned friend, MR D.J. LLOYD. (instructed by Coleman and Greig).

MR M.R. ERRINGTON: I appear for the respondent, if the Court pleases. (instructed by Attwaters).

GAUDRON J: Yes Mr Bennett.

MR BENNETT: Your Honour, this is a case in which the court, in our submission, has totally failed to observe the rules in House and Gronow and merely applied different weight - - -

GAUDRON J: That is a large proposition in a context in which the court identified errors.

MR BENNETT: Your Honour, when one looks at the errors, the errors are mere errors of weight and no more. The only - - -

GAUDRON J: - - - of omission.

MR BENNETT: Your Honour, there are only two errors aside, effectively. The first is the use of the word "strong" in one case. Your Honour, so far as that is concerned, may I just show your Honour what appears at pages 23 and 24. At page 23, lines 20 to 25, the quotation from the report is put correctly without the word "strong". At page 24, line 10, that is interpreted by the trial judge as adding the word "strong".

GAUDRON J: Adding the words "a very strong".

MR BENNETT: "A very strong" - but your Honour, that is in the context where the children having obviously set out to be impartial and not to express a preference, a statement such as the one made might well be construed as being strong. That is a matter of interpretation. But more importantly, when his Honour gets to the question of actually applying this, at line 17 on that page, his Honour again gets it right. He says:

While there is evidence from the parties as to wishes expressed by the children I tend to discount those because children very frequently - - -

GAUDRON J: His Honour may well tend to discount them but he is obliged by the Act to take them into account, is he not?

McHUGH J: And what you have just said at 24, is obliterated by what his Honour said at 27, line 16, when he regards the major matter, he says:

the other major matter is that Mr A will.....do more towards promoting the interests -

and at line 19:

and I also have in mind the strongly expressed views of the children that they would like to see more of their father.

Now given that, why was not the Full Court entitled to take the view that the trial judge's exercise of discretion had gone wrong?

MR BENNETT: Because, your Honour, the difference between expressing a view and expressing a view strongly in the context of the case, and in the general context of custody cases, is a trivial difference, and not one capable of amounting, on its own, to error. The judge knows what was said. He has interpreted it by adding the words "a very strong". When he refers to it again in the context lower down page 24, he says he is:

conscious of the fact that children have expressed a wish to see more of their father.

And on page 27, at line 20, he says he has in mind, ie one of the factors he bears in mind, is the views, which he has regarded as much of interpretation as being strongly expressed - - -

McHUGH J: But surely that is not a minor matter. The difference between a view and a strong view in this particular context is, I would have thought, a very critical view. If a judge is faced with strongly expressed views of children that they would like to see more of their father, it must have a large influence on the exercise of his discretion or her discretion if it is a woman judge.

MR BENNETT: But one must weigh that against, first of all the factor I have referred to, that this was a strongly expressed view.

GAUDRON J: Well, it was not a strong - there is nothing to say it was a strongly expressed view and it is put in a context in which the trial judge is saying, on the one hand, he is discounting their wishes, but on the other he is taking them into account. One could not be confident that the trial judge approached this with any sense of what was his proper function under the Family Law Act.

MR BENNETT: Your Honour, the passage at page 24, line 17, is a general one. He starts by saying:

while there is evidence from the parties as to wishes expressed by the children -

that is evidence from the parties as opposed to evidence from the person who gave the report -

I tend to discount those -

that is the statements made to parents and repeated by parents to the courts -

because children very frequently express the wish that they know the parent they are with wishes to hear.

Now that, in my respectful submission - - -

GAUDRON J: And what was the evidence as to their wishes?

MR BENNETT: The relevant evidence, your Honour, which his Honour took into account is at page 23. It is the statement in the report where the person making the report says, the social worker says:

The two girls primarily, have declined to express anything other than fair statements about their parents -

and the results were reference to their being impartial and so on -

but are aware of the tedium of much travelling and would like to see more of their father such as might be more possible if the two households were closer.

GAUDRON J: Well, why did he not order the father to move? That is the import of that statement is, or the mother perhaps, but it is hardly a matter - - -

MR BENNETT: Well, the judge weighed that, your Honour. He weighed all the factors in favour of what would happen. The mother indicated she would move if the father got custody in Newcastle. There were career factors affecting the one and the other. The judge took the view that that on balance was appropriate. The biggest factor in this case was the fact to which the trial judge regarded as the decisive factor, the factor which shifted the balance between the other matters and that was the fact that the mother had been taking steps to sabotage the relationship with the father, and on the judge's findings, would be likely to continue to do so although the father and the person with whom the father had developed a relationship, would be likely to encourage a continued relationship with the mother.

Under section 60B of the Act, one of the primary matters to be looked at in custody cases is the children have a right of contact on a regular basis with both parents, a right to be cared for by both, parents should agree about future parenting, parents should share duties and so on. That is a very important consideration and it is a consideration which was trivialised by the Full Court which said, "Oh, how can one compare that with the fact that the children have thrived while in the custody which they are in?". Now, your Honours, that is simply a matter of attributing different weight and that really is the vice of the Full Court judgment.

McHUGH J: But this Court, even if the case otherwise raised a special leave point, is very much hedged in in this particular case. It seems to be that the trial judge did make a mistake, Mr Bennett. That being so, the Full Court was then entitled to either remit the matter back to the trial judge with the consent of the parties, to decide the matter itself. Your client consented in the Full Court deciding the matter itself on the papers.

MR BENNETT: But, your Honour, the other factor is if one looks at that as being a serious mistake, the difference between expressing a desire and expressing a very strong desire, the mistake made by the Full Court in relation to the findings of the trial judge is far more serious because, at page 68, the Full Court stated, and stated twice, in paragraph 12.5 that the wife had been the "primary caregiver throughout their lives". That was not the evidence. The evidence was that the children had been living with her with access to the father during the previous 18 months. Prior to that the parties were living together and the wife had, at some stages no employment; at some stages part-time; and at some stages full-time employment.

GAUDRON J: What about with respect to J?

MR BENNETT: Yes, that would have applied for the first 18 months of Js' life?

GAUDRON J: What, that she was the primary caregiver?

MR BENNETT: No, your Honour. That was not the finding of the trial judge.

GAUDRON J: No, but I am just asking you what was the evidence with respect to J? That is the young three-year-old who had been living with her for the last 18 months solely, so she must have been the primary caregiver then.

MR BENNETT: Yes, during the previous 18 months, of course she was.

GAUDRON J: And what about the 18 months before that?

MR BENNETT: Your Honour, there was contested evidence on both sides, the usual sort of evidence that one has in these cases, but so far as the trial judge's findings are concerned - - -

GAUDRON J: For part of that time the father was away overseas.

MR BENNETT: Yes.

GAUDRON J: Yes, leaving the child to be cared for solely by the mother. The father was in full-time employment. Was the mother in full-time employment during the first 12 months of the child's life?

MR BENNETT: The finding, your Honour, appears at the beginning of the judgment where it is said - I think it is page 3 - that:

Twelve months after S's birth Mrs A resumed work -

S is the second child -

and has worked in a mixture of full-time and part-time work from that time on. All of the parties' serious effort in this case was devoted to the question of the residence of the three children.

The judgment does not go into detail as to that aspect but the Full Court just makes that statement without - - -

GAUDRON J: One is to take it that, on the basis of that evidence, they found that the mother was the primary caregiver. It would be a reasonable finding if the father was in full-time employment for all of that period and the mother was not.

MR BENNETT: She was not in full-time employment for all of that period, she was for some of it.

GAUDRON J: No, and the husband was in full-time employment for all of that time, including employment that took him overseas from time to time.

MR BENNETT: Yes. But, your Honour, the finding is "all their lives". Your Honour, I am not wishing to be captious about this any more than the Full Court has been. But the point I am making is that this finding, which is not a finding of the trial judge, is at least as significant as the addition of the word "strong". One cannot measure with coffee spoons - - -

GAUDRON J: What was the trial judge's finding? Did he find to the contrary?

MR BENNETT: He did not make any finding, your Honour.

GAUDRON J: No, you would have thought even a finding of that kind might have been a fairly basic step along the road to determining the matter in issue.

MR BENNETT: No, your Honour. The trial judge made a number of findings about important matters and he said at the end of the day that both parents were satisfactory parents, that both would be suitable custodial parents. There was the additional factor in favour of the father that the person who is now his partner was also an excellent caregiver and a person who would encourage relationship with the mother. The trial judge had weighed those factors and said - the ratio is at page 68 in the paragraph we have been looking at, where they disagree. They say the finding that things were approximately equal "was not a finding that was comfortably open". That is a pure matter of weight. "The wife has been the primary caregiver", I have dealt with that:

In respect of J she has been the sole caregiver for almost half his life.

Sole, subject to matters of access, of course. Then they refer to the criticisms:

Each of these matters seems to be an appropriate matter of criticism. However, either individually or collectively, in our view they do not justify the reversal of a successful existing arrangement for the children where the children are said to be thriving in the care of the person who has been their primary caregiver.

Now, your Honour, that is simply saying, "We disagree with the weighing of the factor - - -"

GAUDRON J: No, it is not. It is saying that there were matters not taken into account.

MR BENNETT: Well, your Honour, it is not saying that there. The question of matters not taken into account relates to two things: the strong preference to which I have occurred - - -

GAUDRON J: And that was taking something into account contrary to the evidence.

MR BENNETT: Yes, and the other matter - - -

GAUDRON J: But is not the full purport of paragraph 12.5 that at first instance the judge failed to take account of the fact that the wife had been the primary caregiver and the sole caregiver for J for half of his life and in failing to take account of the impact of any change in their circumstances?

MR BENNETT: But your Honour, taking those two separately, it cannot be said that the trial judge failed to take the first matter into account. He refers to the history of the matter a number of times. There is no doubt that the judgment clearly shows that the judge appreciated where the children had been and who had been there during the relevant periods. He says at page 25 he is required to consider the effects of changes in their circumstances:

including the effect of any separation from a parent or from any other person with whom they have been living.

And he deals with that, and he weighs that and says that at the end of the day the biggest factor is that the one way they get two parents, the other way they may not, and that that is a major factor.

Having regard to section 60B, it cannot be an error of law to take that factor and say that is a factor which swings the balance, if necessary against a parent who, at the moment, has practical custody. Your Honours, it is my respectful submission, if one can, as the Full Court has done here, simply attribute weight differently in that way, that means that so far as custody cases are concerned, decisions such as Gronow will have no effect at all because the difference between "strong" and "very strong" plus the absence of an express reference to what is clearly implicit cannot be characterised as errors of law or errors of fact sufficient to justify a complete reinquiry into the question of the weight to be given to the factors.

Your Honours, we would submit, the ratio of the trial judge appears clearly at page 28, at the top of the page, where he says - and it starts - having referred on the previous page at the top of the page to the problems of the mother's attitude against the promotion of a good relationship between the father and the children, says:

It seems to me that reluctant as one must be to upset a reasonable satisfactory existing arrangement -

so he takes that into account -

that I should view the principal concern as being the promotion of the children's interests with their father as other things seem to be approximately equal. In addition I view JP as an excellent surrogate parent who will not seek to subvert the mother's role and -

I make that order. Now, your Honours, that is a classic, we would submit, judgment weighing factors, coming to a conclusion and a classic judgment which cannot be interfered with on the ground that a Full Court takes the view that the sabotage factor, if I can call it that, can never outweigh the factor of taking children away from a parent who has had custody for some time.

McHUGH J: Yes, I know, but your difficulty, as I see it, Mr Bennett, and I would be with you apart from the "strongly expressed view" point. Once the trial judge made that error then the exercise of his discretion had to be set aside and it was up to the Full Court to exercise the discretion themselves with the consent of the parties and they came to a different view. It was difficult case. The husband's conduct in relation to the children seems to have been exemplary as the Full Court said but the wife had various advantages, notwithstanding a particular deficiency in her conduct, and the Full Court found in favour of the wife.

MR BENNETT: T final thing I will say before I sit down is that in relation to "strongly" there are two things. There is first the factor I have mentioned that the judge was interpreting it in the light of the fact that the children were otherwise being impartial, and where children are trying to be impartial but then come out with something such as that it, in my respectful submission, is something that has much more weight than it might have if the children were otherwise generally partial towards one parent or the other.

The second matter is that if one looks at the actual original statement at page page 23, line 20, the other matter in that paragraph, apart from the fair statements about their parents, is that "the children are aware of the tedium of much travelling". It may be that the statement was regarded as strongly expressed because it was in the face of the fact that there was a lot of tedium of travelling which the children were prepared to endure in order to see their father. That may be another reason why the judge regarded the view as being strongly expressed or a very strong view even though those words do not themselves appear in the report. In my respectful submission, on those two bases, it was a legitimate matter of inference by the trial judge. For those reasons, it is my submission that there should be a grant of special leave.

GAUDRON J: We need not trouble you, Mr Errington.

In this case we are of the view that there was no error of principle on the part of the Full Court of the Family Court. Accordingly, special leave is refused.

MR BENNETT: If the Court pleases.

MR ERRINGTON: I have been instructed to seek an order for costs, your Honours.

MR BENNETT: Your Honour, I say the policy of section 117 is very clear, that subject to certain things:

each party to proceedings under this Act shall bear his or her own costs.

McHUGH J: That only applies in the Full Court.

MR BENNETT: Your Honour, it does not bind this Court but it is something which, in my respectful submission, is very persuasive in this Court as indicating the policy of the legislation.

GAUDRON J: Now, you are the husband, are you, in full-time employment? The wife is not. You have brought the application. You brought an application knowing that the Full Court had indicated an error in the approach of the trial judge. You disputed that but it is an application of a husband in full-time employment as against a wife who has to maintain and look after the three children.

McHUGH J: And we have made orders for costs in the past on, I think, probably every occasion - not every occasion but on most occasions and, in fact, I think we have made them against wives who have failed in special leave applications.

MR BENNETT: There have been occasions both ways in this Court, of course. There should not be a difference as such between a husband and wife. Certainly a factor of employment may make a difference but not a factor of the gender of the particular party.

McHUGH J: No, of course not.

MR BENNETT: In my respectful submission, in a custody case of this nature - these are not wealthy parties. There is a lot of material about the financial background in the evidence. But, in my respectful submission, the appropriate order in a custody appeal of this nature where there is either arguable propositions is that each party pay their own costs.

McHUGH J: Well, like most cases, this case is a tragic case so far as the children are concerned.

GAUDRON J: The application will be refused with costs.

AT 3.50 PM THE MATTER WAS CONCLUDED