Jordan v Jordan S107/2000 [2000] HCATrans 775 (15 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S107 of 2000

B e t w e e n -

DEAN BERNARD JORDAN

Applicant

and

VICKI CAROLINE JORDAN

Respondent

Application for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 DECEMBER 2000, AT 12.56 PM

Copyright in the High Court of Australia

MR P. Le G. BRERETON, SC: May it please the Court, I appear for the applicant. (instructed by Barkus Edwards Doolan)

MR M.D. BROUN, QC: I appear for the respondent. (instructed by John R Quinn & Co)

GAUDRON J: Yes, Mr Brereton.

MR BRERETON: May it please the Court, there is no field of judicial decision making which tears more powerfully at the emotion of the parties to proceedings than that which involves the allocation of responsibility between separated parents for their children. Because it is potentially so emotional a field, there is no field in which there is more potential for decisions not properly and adequately reasoned to produce an enduring sense and a rankling sense of injustice in the mind of the unsuccessful party.

In such cases, the beneficial facility of appeal to an intermediate Court of Appeal by way of rehearing of the facts and the law is all the more important than, perhaps, in an ordinary case first, because it enables the unsuccessful litigant to have a complete review by three fresh minds of a decision which might be perceived as being the whim of one. But, perhaps more importantly, because if that appeal fails, it nonetheless enables the correctness of the first instance decision to be demonstrated by close analytical reasoning by the Full Court, showing that it has examined the facts and reached its own conclusion on them, no doubt affording due deference to the advantages of the trial judge but, nonetheless, examining the evidence upon which the trial judge acted.

That beneficial facility is rendered practically nugatory if the intermediate Court of Appeal does not condescend to re-examine the facts, as I say, paying due deference where appropriate, and if it does not demonstrate in its reasons that it has done so and show why the trial judge did not err.

GAUDRON J: But, I must say, Mr Brereton, I do not quite understand that submission. Although it is an appeal by way of rehearing, there has to be some basis for suggesting that the findings were not open, does there not, before you get to a further examination of the facts?

KIRBY J: Or erroneous.

MR BRERETON: Or erroneous.

GAUDRON J: Yes, erroneous.

MR BRERETON: Yes, quite so. But once one gets to that basis, in my submission, it calls for the Full Court not simply to restate the trial judge's findings and to say they were open on the evidence, the Full Court must, at least, descend to show that it has looked at the evidence to see that they were open and show how they were open and that is what did not happen in this case on the critical question.

GAUDRON J: What do you say was the critical question?

MR BRERETON: The important grounds of appeal were grounds 2 and 3 in the appeal to the Full Court. The reason that they were the important grounds is this.

KIRBY J: What page, I am sorry?

MR BRERETON: The grounds of appeal are at 76 and 77. The important grounds upon which this application turns are grounds 2 and 3. Now, let me seek to show why that is so. In the written summary of argument at page 148 there is summarised the conclusions, the findings of secondary fact made by the trial judge. Starting first at line 35 on page 148, the trial judge made a number of findings of secondary fact which were either equivocal as between the parties or even which favoured the husband, so at line 35:

close and loving relationship with both parents, wished to live with both parents and spend equal time with each -

At line 40, "primary attachment was to the wife" in early years, "husband had been the primary carer" more recently. Line 45:

both parents could adequately provide for the physical and educational needs of the child.....same school -

Line 50, "if the child lived with the husband" status quo home preserved, if with the wife she would still have a decent home. Line 57 is important:

the child was "doing well" in the primary care of the husband since -

he had been awarded interim custody 18 months before and, while in the primary care of the husband:

was settled, happy, well-adjusted, doing well at school and having a good relationship with both parents -

That is all taken directly from the judgment -

husband had made efforts during 1998 to involve the wife with the child -

So all of that is equivocal or even positive in favour of the husband. If one then goes back to 148 at line 20 his Honour accepted the court counsellor's evidence, said several times that he accepted the court counsellor's evidence. Importantly the court counsellor:

said that both parties were highly motivated, committed and competent parents who seemed capable of meeting the child's intellectual, physical and social needs -

and she ended up recommending "a shared residency regime" which his Honour rejected only because neither of the parties supported a shared residency regime.

Now, on all of those findings up to that point one would have thought that one had a finely balanced case with two competent and capable parents with either of whom the child could have been safely placed. Then his Honour made two extraordinarily strong and adverse conclusions and they are the ones which are summarised at 149 lines 20 and 24, namely:

that the husband was not able adequately to provide for the emotional needs of the child -

and that:

the husband had displayed an inappropriate attitude to the child and to the responsibilities of parenthood -

and, as we show at line 35 onwards, those "dual conclusions" underpinned the decision to place the child with the wife rather than the husband.

GAUDRON J: Now, the emotional needs matter, that really is just a matter of judgment, is it not? It is a conclusion based on prior events, is it not, a sort of subjective judgment?

MR BRERETON: It is, largely, yes, but what it boiled down to was this, his Honour thought that the husband had a negative attitude towards the wife and the matters upon which his Honour founded we have summarised at 149, 50 through to 150, line 40. For each of those matters there was a strong argument as to why separately - - -

GAUDRON J: Look at (c) on page 150.

MR BRERETON: Yes.

GAUDRON J: Was that not a matter that was to be taken into account with respect to - - -

MR BRERETON: I do not suggest for a moment that it could not be taken into account, your Honour, but the point was this: his Honour made or drew a conclusion of fact that "the husband had irrational fears and obsessions". That was based on matters set out at lines 15 through to 20 which, in our argument before the Full Court, we contended simply did not justify such a conclusion of fact.

GAUDRON J: Which conclusion of fact, the "irrational fears - - -

MR BRERETON: That "the husband had irrational fears and obsessions" and then the ultimate conclusion built on it that he had an inappropriate attitude to the responsibilities of parenthood in the face of all the good reports. Now, what we were entitled to - can I take your Honours to paragraph 7 because paragraph 7 at page 150 summarises the argument that we put to the Full Court, as does paragraph 8 and paragraph 9. That argument challenged the trial judge's findings of fact and it did so in a cogent and - - -

GAUDRON J: Yes, but what do you say was wrong with the trial judge's finding of facts? What was the error involved in them? It is not sufficient to say that another judge would not have come to those conclusions.

MR BRERETON: Absolutely, your Honour, but the two errors of secondary fact were that the husband was unable to satisfy the emotional needs of the child and that the husband did not demonstrate an appropriate attitude to the responsibilities of parenthood.

GAUDRON J: Where is the error?

MR BRERETON: The error is that in the evidence which his Honour accepted, including, in particular, the counsellor's reports, his findings as to the child's attitude to both parents, that all of that material which his Honour accepted was flatly inconsistent with that ultimate secondary conclusion.

GAUDRON J: I do not see why. The children may love their parents even though they are not good parents, and frequently do.

MR BRERETON: His Honour finds that the child is doing well in the husband's primary care, that she had developed during that 18 month period, post separation, in his care, that she was having a good relationship with both parents.

GAUDRON J: Yes, we have been through that but I do not see the inconsistency for myself.

MR BRERETON: In my submission, there is at least such an apparent inconsistency between those findings and a conclusion that he had not demonstrated an appropriate responsibility to the attitudes of parenthood when he had effectively given up a job as a senior solicitor to focus on being a parent while he had interim - - -

GAUDRON J: Or to focus on the case, perhaps.

MR BRERETON: My learned friend says that in his submissions, your Honour. Not even the trial judge accepted that. The Full Court certainly did not. With respect, that is a - - -

GAUDRON J: But, in a sense, focussing on the case or spending some of his time on the case would only be a manifestation of his love for his child.

MR BRERETON: Exactly, your Honour. Now, the point is in essence this, in paragraphs 7 through to 9 we summarise a cogent argument addressed to the Full Court as to why the trial judge's findings of fact were wrong. That argument was put to the Full Court. In the Full Court the wife argued not specifically that grounds 2 and 3, or that the findings challenged in grounds 2 and 3 were correct, but that attacking them did not much matter if it did not have the result that the ultimate exercise of discretion on the best interests of the child was shown to be wrong.

Now, that, of course is quite wrong. If the secondary findings of fact which underlie the ultimate conclusion are wrong, then that vitiates the ultimate exercise of discretion.

GAUDRON J: But, in the end you come to this, do you not, Mr Brereton? Where the best interests of the child lay was a very finely balanced thing.

MR BRERETON: Ought to have been, yes, your Honour.

GAUDRON J: Well, it was. Now, ultimately, that was a matter of discretionary judgment based on conclusions which again were not primary fact-finding matters but were open, at least, as matters of a judgment, in a jurisdiction where it really does all depend on judgment. I mean, for my part, I would be very reluctant to submit myself to the jurisdiction of people who were going to make this sort of judgment, but, ultimately, that is the business of that court and it is going to happen no matter how unfortunate it is.

MR BRERETON: But if, as we all accept, that is its business and if the Full Court is to entertain Warren v Coombes appeals on matters of fact, then the least that the husband was entitled to were reasons which exposed why his arguments were wrong and that - - -

KIRBY J: We do not normally, at least, grant special leave to review reasons. We are here to review, as the Constitution says, the judgment, that is to say, the order, and the Full Court said that they had reviewed all of the facts. They referred to the complaints that you made and they concluded that it was open to the primary judge to reach the view that was reached. So, it is a bit hard to ask us, now, to intervene for ourselves and simply because you say some less than completely persuasive reasons were given. We are not here to mark reasons, though reasons are often the clue as to an error in the order of the Court, or the judgment.

MR BRERETON: If one goes to page 125, at paragraph 50 the Full Court notes the existence of grounds 2 to 6. It then notes a submission that those findings flowed from something and said:

there was ample evidence from which his Honour could conclude that in the past the husband had demonstrated an inappropriate attitude towards the wife.

That is not an inappropriate attitude towards the responsibilities of parenthood, mind you. Then, the Court goes on simply to say:

it was open to him on the evidence to conclude that.....may have a less than satisfactory attitude towards the wife.

Then their Honours quote the trial judge and say that his Honour heard evidence and saw the parties, in a routine sort of way, and go on to conclude at the top of page 127:

when we have regard to the totality o the evidence, we are satisfied that it was open to his Honour to arrive at the findings and conclusions that he did.

GAUDRON J: Did - - -

MR BRERETON: Now, nowhere there - I am sorry, your Honour, but nowhere there does a solitary one of the arguments which we advanced to the Full Court get addressed in any form of detail and nowhere there is there a reference to a solitary bit of the evidence to support the findings which the trial judge made which is what, in my submission, the Full Court was bound to do when there was a closely reasoned attack on the trial judge's findings of fact. It is just not good enough to say, "These are his Honour's conclusions. We are satisfied on the totality of the evidence that they were open".

KIRBY J: I can understand the complaint. Different people have different views about how judgments should be written and how much of the arguments of counsel they have to respond to, but the essence of it is at the passage that you have referred to on 126 where the Full Court says his Honour heard the evidence over a period of six days, had the advantage of hearing extensively from each of the parties and the opportunity to observing them for six days and his conclusions are thus.

MR BRERETON: That is the problem, your Honour, that has got nothing to do with the relevant conclusions.

KIRBY J: I realise you say you wanted them to take apart every little piece of the evidence that you relied upon and to go through, in a sense, the trial again, and your complaints about the inadequacy of it.

GAUDRON J: Is not the trial judge's conclusion, though, founded in something else? The husband had minimised, in his Honour's view, the role of the wife in the earlier stages.

MR BRERETON: His Honour thought so.

GAUDRON J: Yes, he found that and that was a conclusion that he could reach.

MR BRERETON: Yes.

GAUDRON J: His parents had an antagonistic attitude towards her. He found that and there was evidence to support that.

MR BRERETON: Yes.

GAUDRON J: The husband, at times, had an antagonistic attitude towards her.

MR BRERETON: And his Honour so found, but it has to be said that in circumstances where - - -

GAUDRON J: Yes, but then he says the child has been exposed to the bitterness and that is what - and he is apprehensive that if left with the father that bitterness will intrude. He does not say he is positively satisfied that the father cannot satisfy this child's emotional needs, he is not satisfied that he can. He has this fear that because of the past antagonism and because of his failure to accept the role that the mother did play, something is going to happen.

MR BRERETON: That cogently summarises the essence of his Honour's reasoning, with respect, your Honour, and I accept that, but the flaw in it is that his Honour went a step further and said, "I find that the husband cannot provide adequately for the emotional needs of the child".

GAUDRON J: I did not think he did.

MR BRERETON: I think I can take your Honour to the - - -

GAUDRON J: He says quite differently. I am looking at page 125:

I am not satisfied that the husband is able -

Not that he is satisfied that the husband cannot, but, "I am not satisfied that he can in this finely balanced situation". It is just there his Honour is just not satisfied.

KIRBY J: It is the quotation from page 125, 327.

GAUDRON J: Again, he is not satisfied that the husband has displayed - he does not say he has displayed an inappropriate attitude, he is just not satisfied. It seems to me that they are hardly findings of facts so much as failure to be satisfied about things in the light of the whole of the evidence and they just tip the balance.

MR BRERETON: Well, again, looking at paragraph 335:

I am not satisfied that the husband has displayed an appropriate attitude to the child and to the responsibilities of parenthood.

GAUDRON J: Yes. He does not say I am satisfied that he has not displayed.

MR BRERETON: I think it may have been Justice Handley in another place who reminded me, but a finding of the absence of a fact has to be treated as a finding that the fact does not exist.

GAUDRON J: I am not too sure that that is right when you have got - what you are doing is weighing a finely balanced situation.

KIRBY J: And, where the criterion is what is in the best interests of the child.

MR BRERETON: I see that the light had gone red, but can I seek to answer that this way. If his Honour had said, "Both of these parties have provided for the emotional needs of this child but I think that the wife might be able to do so just a little better and both of these parties are fine parents and have demonstrated an appropriate attitude to the child and the responsibilities of parenthood but I am a bit more comfortable with the wife, in that respect, than the husband.", that would have been practically unappealable, but that is not what his Honour did.

It is in the failure to make that sort of finding and instead make an adverse finding against the husband rather than comparatively good findings that shows that the judicial process here miscarried and that something went wrong in jumping from such a litany of equivalence between the parties to this powerful imbalance on those two points. Now, that is what called for exposition from the Full Court when it was challenged and that is what the two pages of reasons on this topic did not give.

KIRBY J: Yes, thank you. Could I ask you, Mr Broun, in relation to what used to be called joint custody - it has got some other name, now - there was an obstacle to that being provided. Is it open to a party to apply again to the Family Court for orders of that kind, or - - -

MR BROUN: In fact, they are commonly made, your Honour. They are called residence/residence orders now. That is to say, the order specifies a child will reside with one parent for specified periods and with the other parent for specified periods.

KIRBY J: But that is not foreclosed. That is reviewed from time to time in respect of applications in terms of the evidence as it stands at the time?

MR BROUN: I am sorry, your Honour?

KIRBY J: That is foreclosed by these orders but it is not, as it were, forever, it is a matter that can be reviewed and often is.

MR BROUN: No. It is always a matter - in fact, that is one of the worst aspects, in a sense, of these cases, that they are frequently reopened afterwards and indeed - - -

KIRBY J: Well, it is love which is the motivation, that is why.

MR BROUN: That is so.

KIRBY J: Yes, thank you.

MR BROUN: Yes, thank you, your Honours.

GAUDRON J: Yes, I do not - - -

MR BRERETON: Simply, on that question, if I am responding to it, residence, like custody, in the past, is never final in the sense that an application for a new order can always be made, but there is a hurdle to overcome and that is, one must show a change of circumstances.

KIRBY J: I understand that, but that is a hurdle that is presented by the lack of agreement. I mean, one would think with two such excellent parents that that was the obvious solution to the problem, because it is hurtful to either parent to have an order made, and especially, perhaps, with misunderstood words turning a "not satisfied" into "I am satisfied not". There is a very important difference. But, any way, that is the past or the future.

GAUDRON J: Thank you, gentlemen. We are of the view that the proposed appeal does not enjoy sufficient prospects of success to justify the grant of special leave. Accordingly, special leave is refused.

MR BROUN: I would ask for costs, your Honour.

GAUDRON J: The normal course is, in this Court, to refuse with costs but I know in matrimonial matters we have sometimes said otherwise.

KIRBY J: Can you resist costs, Mr Brereton?

MR BRERETON: In my submission, yes, your Honour. These cases are rather like the dissolution of partnerships and windings up.

KIRBY J: Not really, they are not about mercantile things.

MR BRERETON: No, but in this sense, the cost of resolving a dispute is part of the sequelae of a failed relation for which, under our system, we attribute blame to no one.

KIRBY J: Both parties are professional people but it is your client who brought the other party to the Court.

MR BRERETON: That is, no doubt, so. Prima facie, these are proceedings, in my submission, under the Family Law Act because it is that Act which authorises the appeal by special leave to this Court. The prime facie decision is that each party should bear their own costs.

GAUDRON J: The application will be dismissed with costs. We think there is nothing to take it out of the ordinary course.

The Court will now adjourn until 2.15.

AT 1.21 PM THE MATTER WAS CONCLUDED