CDJ v VAJ S113/1997 [1998] HCATrans 65 (13 March 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S113 of 1997

B e t w e e n -

CDJ

Applicant

and

VAJ

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 MARCH 1998, AT 2.29 PM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC: If the Court pleases, I appear with my learned friend, MR T. HODGSON, for the applicant. (instructed by Barwick Boitano)

MS R.S. McCOLL, SC: If the Court pleases, I appear with my learned friend, MS V.M. HEATH, for the respondent. (instructed by Mark Phillip Symonds)

McHUGH J: Yes, Mr Bennett.

MR BENNETT: If the Court pleases. Your Honours, this case involves the relationship between a substantive rule and rules of procedure. Do your Honours have the Family Law Act?

McHUGH J: No, I do not think so.

MR BENNETT: Section 65E of the Family Law Act is the familiar section which provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. One then has section 68D and F which set out what that means and they list a long list of matters which must be considered by the court, the effect on the child of various matters and so on; matters not concerned with procedure but concerned with substance. The issue in this case is whether the familiar rule in Wollongong Council v Cowan is in some way overridden by that principle.

What happened here was there was an application to adduce fresh evidence on appeal. The court held that, in relation to other aspects of the appeal, that the judge's discretion had not miscarried in the orders that were made. The court made no findings suggesting that either limb of Wollongong Council v Cowan was established. Indeed, the judgment rather suggests that neither limb was established.

McHUGH J: I am not sure about the opposite result point. They must surely have implicitly come to that view.

MR BENNETT: Your Honour, they sent it back, of course, which rather suggests rather than deciding it themselves.

McHUGH J: But they always must in that circumstance.

MR BENNETT: But, your Honour, they do not make - they refer to Wollongong Council v Cowan. They refer to cases which set out the principle on pages 65 and 66 but nowhere do they actually apply it or purport to apply it. The whole page containing the ratio, the whole ratio is really summarised on page 92. If one looks at the elements there the court says this. It starts by saying there is no appealable error on the House test. They then say the:

discretion.....needs however to be exercised in the shadow of the various unsatisfactory elements.....:

1. The very late delivery of the husband's material.

That is dealt with at 71 to 2, where they point out that counsel for - - -

McHUGH J: He was two months late, was he not? Was it supposed to be delivered in January, 10 January, and was not delivered until 6 March.

MR BENNETT: Yes. It was late.

McHUGH J: And the trial commenced when? On 10 March?

MR BENNETT: On 10 March, and on the first day the judge says to counsel for the wife, top of page 72:

if you want to have an opportunity to do the same -

to put on a reply to deal with it -

then you can do it.

So, in effect, an adjournment is offered. The wife's counsel did not seek to have the matter adjourned or to call any further evidence. He called his client in-chief and made no attempt to answer the affidavit, which he had had for four days, including a weekend. So the late delivery of the husband's material, it is hardly a case of surprise or significant unfairness and a remedy is offered. Certainly there is an unsatisfactory aspect remaining, but we would submit not an enormous one.

The second matter that is put is the admission into evidence - - -

McHUGH J: What do you mean by that, an unsatisfactory matter remaining? What do you mean by that?

MR BENNETT: What I mean is there is obviously some disadvantage to a litigant who gets affidavits late.

McHUGH J: Oh yes.

MR BENNETT: And four days before the hearing, but it is not of the type of level that would be involved here. The second matter was the admission into evidence of the daughter Kylie and the witnesses Williams and Dickman. That is dealt with at pages 87 to 88 where the court holds that those are not matter which justify an exercise of discretion the other way, that the judge was not asked to exercise the particular discretion he would have had, and at page 88 they go on to say that those matters, in any event, were not decisive because there was sufficient other material on which the judge could have reached all the conclusions he reached.

GUMMOW J: What remedy would you seek here if you got special leave? What would we do?

MR BENNETT: Simply, so far as that aspect of the case is concerned, refuse leave to admit the fresh evidence - or allow the appeal to this Court and dismiss the appeal from the trial judge on that aspect.

GUMMOW J: On that aspect?

MR BENNETT: Yes.

GUMMOW J: And it would still go back on the other issues?

MR BENNETT: I think his Honour indicated what he would do on the other issues.

McHUGH J: It has to go back on - - -

MR BENNETT: So one would simply make the orders his Honour indicated he would make on the other issues, which are adverse to my client.

McHUGH J: It would go back for property - - -

MR BENNETT: Yes, in other words, it would go back to the judge at first instance in relation to the property aspect as was ordered, but his Honour indicated what the - the Full Court - - -

GUMMOW J: There could be a fresh application, I suppose, in regards to what used to be called custody.

MR BENNETT: There can always be a fresh application.

McHUGH J: Your complaint, though, would be that that would take place against the background of a finding in your favour and it could only be post-decision evidence.

MR BENNETT: Precisely, your Honour. So the admission into evidence of the statements, in my respectful submission, cannot satisfy the second leg of Wollongong Council v Cowan and, in any event, the findings the Full Court makes in relation to it were insufficient to justify the allowance of an appeal on that ground.

GUMMOW J: Why is that a special leave point? The principles are very clear.

MR BENNETT: What is not clear is this, your Honour. The Full Court has said, in effect, at page 71 line 17, where - - -

GUMMOW J: He talks about "the constant shadow of the paramountcy principle".

MR BENNETT: Yes.

the constant shadow of the paramountcy principle in child welfare cases is such that at the very least, the best interest considerations are powerful matters to be weighed up against a competing principle such as finality.

That is, we submit, not comparing like and like. It is comparing a substantive principle with a procedural principle and one cannot do that. That was the mistake which we submit the court - - -

McHUGH J: I am not sure that that is so because new trials are granted on the basis of fresh evidence because it is necessary to meet some insistent demand of justice and you just cannot ignore the justice aspect in determining whether or not to order a new trial.

MR BENNETT: Your Honour, Wollongong Council v Cowan lays down a rule which has been applied, we would submit, by courts, as a general rule to be applied in cases for the admission of fresh evidence. That rule may not exclude exceptional cases but they would normally be cases where one half of the principle was very very clearly established and the other half was weak; it would be that sort of case. It is rather like setting aside a default judgment and weighing the merits and the delay. If one is very big, the other can be smaller. One understands that. But here, what the court has done is say, well, because of the paramountcy principle, we are not really going to ask the Wollongong Council v Cowan questions at all, and indeed - - -

GUMMOW J: I am not sure they went that far.

MR BENNETT: Well, your Honour, they never asked them expressly. They do not answer them and to the extent that the judgment provides any clues, they seem to be answered in favour of my client.

McHUGH J: At 92, after referring to those three matters, at line 36 they say:

we have concluded that the best interest of these children may not be served by allowing the residence order to stand.

And they conclude:

this is one of the rare and exceptional cases in which the discretion.....should be exercised.

MR BENNETT: But the reason they say it is rare and exceptional is a combination of what they say at 71 about the paramountcy principle, together with what they say in that paragraph about it. What they are saying is that we are not really going to apply a Wollongong Council v Cowan test in this case because we think, on balance, the wrong order was made. That does not justify us under House in doing anything; none of the individual grounds of appeal justify it; Wollongong Council v Cowan does not justify the fresh evidence getting in; but nevertheless, because we are uncomfortable about it and because we think if we had been the trial judge with this evidence we might have gone the other way, we will allow the appeal.

Now, your Honours, that is something which we submit is simply an erroneous approach.

GUMMOW J: But this phrase "rare and exceptional" comes out of Cowan itself, does it not?

MR BENNETT: Yes, it does, your Honour.

GUMMOW J: Which they had set out on page 66, I think.

MR BENNETT: Yes, it does, but the way it is done in this case is to make it, in effect, an application of principle, because of the way it is done with the paramountcy principle. May I just say one other thing about that, your Honour? If your Honours look at pages 63 to 64 and see the sort of new material - - -

McHUGH J: I know, I know. When you analyse the trial judge's evidence, it is difficult to see that this alleged fresh evidence does not deal with matters that he had already dealt with or was in evidence before him or, as in the case of the future depression, was expected anyway. The distress was - - -

MR BENNETT: Precisely, and your Honour, it is stronger than that because one can understand a typical Wollongong Council v Cowan case might be where someone had denied an event occurring involving that person and then, on appeal, there is a single piece of evidence which proves an irrefragable alibi, something like that, where one has a very very clear dramatic piece of evidence that changes the nature of the case. Here one has, without denigrating it or being offensive about it, the sort of evidence which is called in every custody case of a general nature, neighbours who say that one party or the other was a better or worse parent, and this sort of general material, not in any one area but in a whole range of different areas across the custody case, which could and should have been brought at the trial and was not. It is not explained by saying the husband's material was late. Its absence is not justified in that way; it is not sought to be. It is not justified by showing that there is something there which just shows that the trial judge was completely wrong and, as your Honour says, much of the trial judge's reasoning would not be affected by this in any event because if one looks at - - -

McHUGH J: That is the view I took. I took the view that it appeared to be certainly arguable but, on the other hand, the Full Court thought otherwise and it is hard to say that the conclusion was not open to them.

MR BENNETT: Your Honour, we would submit it is not. One has rules such as House v The King and one has rules such as Wollongong Council v Cowan and if those rules are not observed one has a serious breach of the finality rule which, in a sense, is of course something of - - -

GUMMOW J: The finality rule itself is different here; it has to be.

MR BENNETT: Yes, your Honour.

GUMMOW J: It is quite different to the context in which Cowan was pronounced.

MR BENNETT: Oh yes, because there is a right to a fresh application and so - - -

GUMMOW J: We were talking about jury verdicts basically. That is not what custody is all about.

MR BENNETT: The principle has been applied far beyond jury verdicts. There are many cases applying it in the Court of Appeal and so on which are not jury cases.

GUMMOW J: Of course. It talked about the adjudication of common law rights, that is what I am trying to put to you, on a final basis. This is not about the adjudication of common law rights on a final basis.

MR BENNETT: No, your Honour, but the effect on the administration of justice in the family law area, if the Full Court is to be permitted to say the paramountcy principle overrides Wollongong Council v Cowan, and where we form a view about a custody case we can ignore Wollongong Council v Cowan, there would be no reason for saying we should be able to ignore House because we think the trial judge reached a wrong result, therefore the welfare of the children is not promoted by the order, therefore we allow the appeal.

GUMMOW J: If one is applying House, is not the so-called paramountcy principle a relevant matter?

MR BENNETT: I would submit not, your Honour. I would submit that the - when one looks at the Act, the Act does go - I am sorry your Honours do not have it.

GUMMOW J: We do now.

MR BENNETT: If your Honours go to section 68D, your Honours will see that provides:

This Division deals with:

(a) determining what is in a child's best interests -

and then it says, under 68F, in determining what is in the child's best interests:

the court must consider the matters set out in subsection (2) -

and every one of those is substantive. Not one of those is concerned with a procedural matter and, in my respectful submission, the paramountcy principle is not intended to be a procedural provision. It does not mean that the trial judge can say, "Look, I think that the welfare of the children is so clearly with one parent that I should not give the other parent an opportunity to address me or call witnesses" or to say "I am not going to apply House." if I am the Full Court or, as was said in one case which we would submit was wrong, where this Court refused leave because it was not a convenient vehicle, Monticelli v McTiernan, where the court said that in deciding whether the more convenient jurisdiction is Australia or the United States, we look at the paramountcy principle instead of looking at the issue as to which court is the more appropriate court.

GUMMOW J: The Full Court has referred at page 79 to a case of Re Z in which there has been a grant. Do you know anything about that?

MR BENNETT: Yes. We cannot find what has happened to it, your Honour. It must have resolved or - - -

GUMMOW J: That is what I thought.

MR BENNETT: We have tried to trace that, we have not been able to. So, your Honours, it is important, in my submission, to determine how far the paramountcy principle goes into this sort of procedural area. This is a good test case for it because it is a clear case where the court did not apply any of Wollongong Council v Cowan, except to say because of the paramountcy principle and a number of very weak considerations, primarily that it formed a view that it is an exceptional case. In my respectful submission, that calls for leave from this Court. May it please the Court.

McHUGH J: Yes, Ms McColl.

MS McCOLL: May it please the Court. We submit that special leave should be refused in this case for two reasons. The first is that no question of law arises and this case is no more than one of the application of settled principle to the particular facts in the exercise of a discretion in a matter involving practice and procedure. The second is that the decision of the Full Court is not sufficiently attended by doubt.

Your Honours, my friend's primary submission is that the court failed to apply Wollongong Corporation. In fact, it is clear from the judgment, we would submit, first, that it took into account the late service and the substantially late service of the material from the husband and, secondly, whether or not the fresh evidence which it was sought to bring forward would have produced an opposite result. The Court has been taken to the point and the passages about the late service of the material. May I take you to the portions in the judgment which deal with the effect which the fresh evidence may have had, had it been available. That commences in the course of the treatment or the examination of the decision of the trial judge. Page 58 point 21, where the court is setting out passages of the trial judge's conclusions as to why there should be an alteration in the existing arrangement which, at the time of the trial, was that the younger children were resident with the wife. The court sets out a passage of that judgment and then, at 59 point 21 points out:

It is perhaps convenient to interpose that fresh evidence sought to be led from Christine Blood, a neighbour of the parties and a grief and bereavement counsellor, if accepted, could well lead to the opposite conclusion being reached about the wife's appreciation of the need for counselling.

Then the next page at line 40 their Honours pointed out:

The gravamen of fresh evidence sought to be introduced before us is that it would bring - - -

McHUGH J: Could I just stop you there. When you refer to that passage at 59, the summary of Ms Blood's evidence at 64, she said:

Wife responded appropriately. Husband did not respond and was referred for further counselling.

MS McCOLL: Yes, your Honour.

McHUGH J: There seems to be some inconsistency, does there not, between what appears at 59 and what appears at 64?

MS McCOLL: The court was referring to a conclusion of the trial judge that the wife had not responded to the necessity to deal with - have counselling following the suicide of the young girl, Melissa, and at line 15 on page 59, your Honour, you will see the quote from the passage in the trial judge's judgment:

Melissa's death was undoubtedly a traumatic event for the whole family, yet neither parent appears to have appreciated the need for ongoing family counselling -

The effect of Ms Blood's evidence was that, in fact, the wife did have that appreciation and that is why the court says, at 59 point 21, that that could have led to an opposite conclusion.

McHUGH J: What I was putting to you, though, is that at 64 one gets the impression from the summary of the evidence that the wife was counselled and responded; the husband did not respond and was referred to further counselling. That is quite different from saying - contradicting that neither parent had:

appreciated the need for ongoing family counselling and therapy in order that the family as a whole can come to terms with what has occurred.

MS McCOLL: Your Honour, that is a summary set out at page 64.

McHUGH J: I know it is.

MS McCOLL: It would appear to have been sufficient in what the court saw to lead it to conclude that that could have led to an opposite conclusion. Maybe the summary is too brief.

McHUGH J: But when you look at the evidence that you have to rely on to say that the result could have been changed, it is summarised at pages 63 to 64, and let me take you through it. Start with Dr D'Souza. It said that:

the mother always brought the children to the surgery prior to the custody case and the father never came until April 1997.

How could that possibly affect it? The mother was the full-time carer. Look at the next one, describes the "mother/wife as devoted to her children". That was the effect of Dr Bell's evidence. The next one - - -

MS McCOLL: But, your Honour, may I make one point. When the court has regard to the conclusion of the Full Court at page 92 that there was an undue emphasis in the trial judge's judgment on events subsequent to the daughter's death and the lack of emphasis on the quality of care provided by the wife towards her children prior to the death, all of this evidence was intended to go to the issue of her - - -

McHUGH J: That may raise an issue as to whether or not the Full Court's judgment is open to criticism on this stage. This family was turned around as a result of Melissa's death and, arguably, the history of the parties beforehand bore very little relationship as to what was likely to happen in the future. They had to come to terms with what had happened to Melissa and that is why the judgment naturally concentrates on events subsequent to Melissa's death.

MS McCOLL: But the significance of the evidence which was sought to be adduced, and which the Full Court accepted, was to show that what had happened after Melissa's death was an aberration and this evidence went to that issue and to establish that in those 18 years prior to that tragic event there had been a very different attitude or different behaviour than that which his Honour appeared to have relied upon so heavily in changing the residency.

McHUGH J: That may well be the case, Ms McColl, but the judge was being asked to make an order there and now and having regard to the condition of the parties there and then. If the wife's psychological condition and her anxiety state was overcome and other problems were cured, well, it would be open to her to make a fresh application. But what was wrong about the trial judge concentrating on what was going on at the relevant time, that is the time that he was hearing the case?

MS McCOLL: What was wrong with it, your Honour, was, firstly, certainly in the Full Court's view and the Full Court is composed of experienced judges in this area, his Honour's approach was unbalanced in that respect. It has to be borne in mind that his Honour's conclusion was contrary to that which had been brought forward by three psychiatrists called in the proceedings, all of whom recommended that the younger children stay with the mother, and the children's representative - - -

McHUGH J: Subject to one very important qualification, and that is that if the wife continued to attempt to alienate the two children from the father, then it would be better that they all went to the father.

MS McCOLL: But that was a qualification if that occurred, but the overriding recommendations of those psychiatrists was that the younger children should remain with the wife.

McHUGH J: That is true, but it has to be weighed against the fact that Dr Bell accepted that apart from some distress to the two children, that a transfer of their residency to the father was acceptable. It was not his preferred view. Is it a he or a she, Dr Bell? It does not matter.

MS McCOLL: He. His preferred view was contrary to that conclusion.

McHUGH J: The mother should have them, yes.

MS McCOLL: Your Honour, I am dealing with a proposition that the Wollongong Corporation principle was not applied. It is clear that the court did apply that principle, your Honours, and did look at the issue of whether a different result would have been achieved.

McHUGH J: They certainly did not apply that limb of it which says that an appeal based on the availability of new evidence will not succeed unless the party seeking to rely on that evidence has exercised reasonable diligence before and during the trial to produce it.

MS McCOLL: They do not spell it out in those words but it is clear, in our submission, that that is the effect - - -

McHUGH J: They could not. They really could not, could they, in the circumstances of this case? The evidence was all there. They had four days and they could have applied for an adjournment.

MS McCOLL: One of the bases on which the matter was placed before the Full Court was on the basis of the conduct of the counsel below, your Honour, and the court appears to have accepted that. They dealt, indeed, with a substantial part of the affidavit which was tendered by - brought forward at the last moment by the husband which was the brief of evidence before the coroner and, indeed, concluded that that had been wrongly admitted and said they could not, in effect, decide what prejudicial effect that would have had on the outcome of the case. But nevertheless concluded his Honour ought to have exercised a discretion to exclude it. That, of course - - -

McHUGH J: But he was not asked to do that. The judge was not asked to exercise it.

MS McCOLL: And that is why we come back to the point that the Full Court did decide the matter on the basis of the insistent demands of justice. That was the way Mr Broun, who appeared below, put the case about the admission of the fresh evidence before the Full Court at page 72 where the court summarises Mr Broun's submissions and that final submission, in essence, was that:

the residence orders made did not necessarily advance the welfare of the children and thus there may have been a miscarriage of justice.

Now, the court clearly is responding there and referring to what his Honour Justice Dixon says in Wollongong Corporation, that the verdict regularly obtained must not be disturbed without some insistent demand of justice. The court had all the matters before it and was clearly of the view that the late service of the affidavit, the circumstances of the trial and its conclusions - and I would like to complete taking the court to the other parts where it applies the second limb of Wollongong Corporation - was that a different result could have been achieved.

GUMMOW J: Can I ask you this. Mr Bennett complains that the Full Court asserted this so-called paramountcy principle in an impermissible fashion. You say it did not. If leave were granted, would you be submitting that, as a secondary position, the paramountcy principle in any way does prevail here?

MS McCOLL: There are certainly suggestions in this Court's judgment in ZS v PS that that may be appropriate, that there is a suggestion - - -

GUMMOW J: There is some authority of the Family Court, is there not, suggesting this?

MS McCOLL: There is some authority in some of the judgments which the court considered in that section of their judgment dealing with the paramountcy principle and, as my learned friend has indicated, the Monticelli Case - - -

GUMMOW J: What I am trying to find out is would you be supporting them at any stage in your submissions?

MS McCOLL: We would, as a second limb, but our primary submission is that the court did not err in that respect and that when at page 71 of the judgment the court says:

in our view, the constant shadow of the paramountcy principle.....is such that at the very least, the best interest considerations are powerful matters to be weighed -

all the court is doing there is looking at an element in the discretion but not saying that that principle in any way overrides principles as - - -

GUMMOW J: Mr Bennett says it is not even an element in the discretion, you see, because this is just a matter of procedure - - -

MS McCOLL: I understand that, your Honour.

GUMMOW J: Do you controvert that?

MS McCOLL: Well, yes, we would say it is part of the discretion, it is part of the matters to be taken into account in considering the court's discretion on the admission of fresh evidence.

McHUGH J: Does that not raise an important question of special leave?

MS McCOLL: We would submit not, because it is just part of the insistent demand of justice which the Court has already recognised in Wollongong Corporation and which has just been applied in accordance with the established principles. It does not raise a point of law, we would submit, or any question of public and general importance. All it is is part of the application of established principles.

GUMMOW J: There was to be a retrial in February 1998; what happened with that?

MS McCOLL: That was vacated on the application of the applicant, your Honour, and there was a new trial set down for 8 June.

GUMMOW J: Is the order on page 103 still in force, paragraph 4, as to contact with the children? That is still being observed?

MS McCOLL: Yes, it is. Could I just take the Court then to the bottom of page 60 where their Honours set out the gravamen of the fresh evidence and state:

it would bring into better perspective the wife's long term parenting abilities and demonstrate that the events following Melissa's death were an aberration. It is implicit in the immediately preceding passages that his Honour saw few, if any, features of the wife's case, other than the wishes of the children and their attachment to her, that would lead him to order that the younger children reside with her.

On the next page, again having set out a passage concerning the wife's difficulty following the death of the child and the breakup of the marriage, the court pointed out:

Here again, the fresh evidence, if accepted may well lead to different conclusions being reached about these observations.

So, your Honours, far from it being a case, as my learned friend submitted, where Wollongong Corporation was not applied at all, we would submit that this is a case where the Full Court did carefully consider the fresh evidence, considered it in the context of its late service and considered it in the light of its possible effect on any new trial and correctly directed itself, on the exercise of the discretion, to allow a new trial in the interests of justice which appears - - -

GUMMOW J: The question - we are really construing section 93A, are we not?

MS McCOLL: Yes, your Honour.

GUMMOW J: The relation of the power in 93A with these other requirements as to the interests of the children and so on in a way. That is really what is involved, I suppose, in the statutory sense.

MS McCOLL: And as your Honour said in the course of my learned friend's submissions, the principle of finality must have a different application in this context and takes its colour from the Family Law Act from which it is apparent that the issues relating to the welfare of the children are never closed. That is clearly a matter which also concerned the court when it weighed those principles and came to its conclusion on page 92.

McHUGH J: I must say, though, that it what troubles me about the case. There are a number of things that trouble me. One is whether or not this evidence would have made any difference anyway. You have put your submissions powerfully in respect of those matters. But at page 71 their Honours say:

the best interest considerations are powerful matters to be weighed up against a competing principle such as finality.

Then, when you go to 92, you get this statement at line 35:

we have concluded that the best interest of these children may not be served by -

There is no finding in accordance with Cowan's Case that it was probable that the evidence would have produced an opposite result. They say the best interests "may not be served". Sir Owen Dixon was very emphatic in Cowan in the language he used. He said that it must be "reasonably clear that.....there would have been an opposite result" or it would "have been so highly likely as to make it unreasonable to suppose" the contrary.

MS McCOLL: Those are not rules of law and - - -

McHUGH J: They are not, but they have been taken to be an almost universal guide as to the exercise of this discretion.

MS McCOLL: That may be so, your Honour, but the court directed itself correctly on the principles, it refers to that passage in Wollongong Corporation, it considers the issue of whether the evidence would produce an opposite conclusion, it considers the issue of late service of material. It is plain, we would submit, that the court did in fact apply Wollongong Corporation and properly exercised a discretion in the context of coming to its conclusion about the fresh trial, and that it clearly took the view that, as Mr Broun submitted, a miscarriage of justice had occurred and that, in the interests of the children, there should be a reconsideration of the residence issue. And it did so in accordance with the established principles.

May it please the Court.

McHUGH J: Thank you, Ms McColl. Mr Bennett.

MR BENNETT: Your Honour, just two matters. My learned friend referred to two passages suggesting that the court did apply the primary part of Wollongong Corporation. The first was at page 59 point 21 and the second was at 61 point 25. In relation to 59 point 21, first it uses the words "could well lead", a long way short of Sir Owen Dixon's words. Secondly, of course, that was not a key or decisive issue, the extent to which one parent had a view about the need for counselling. In relation to the passage at page 61 - - -

GUMMOW J: You fix on "may well lead"?

MR BENNETT: Yes, again I fix on "may well lead" and, again, if one looks at the itemisation of the fresh evidence on pages 63 to 64, it is hard to see how any of them have very much to do with the issues addressed in the preceding paragraph. But that is, perhaps, a detail matter, rather than a matter of factual analysis.

Ultimately, your Honours, we would submit this is an important question of law and involves reconciliation of the two sections of the Act.

McHUGH J: There will be a grant of special leave in this case.

MR BENNETT: If the Court pleases.

AT 3.05 PM THE MATTER WAS CONCLUDED