RDF V LJB M66/2000 [2000] HCATrans 780 (15 December 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M66 of 2000

B e t w e e n -

RDF

Applicant

and

LJB

Respondent

Application for special leave to appeal

McHUGH J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 10.27 AM

Copyright in the High Court of Australia

RDF appeared in person.

McHUGH J: Yes. Before you proceed, I would just note that the Deputy Registrar has given me a certificate stating that she has been informed by the respondent in this matter that the respondent will submit to any order of the Court, save as to costs. You may proceed with your submissions, doctor. I take it you are aware of the process under which you have 20 minutes to put your oral argument and then the light will come on, I think, three minutes before the end of your time.

MR F: Yes, your Honour. I have just got one - before my time starts - one thing. Can I check - one of the application books have page 151 missing. I just want to check that they are not from the ones before your Honours.

McHUGH J: I have 151 in my book.

GUMMOW J: Yes.

MR F: The other thing I might, not being naïve, or perhaps I am - but I can take it that your Honours have read the summaries of arguments?

McHUGH J: Yes, not only read the summaries of argument but I have read the trial judge's judgment, I have read the Full Court's judgment and I have read various parts, but not all, of the oral arguments and discussions between yourself and her Honour and Mr Skerlj and his Honour, but I have not read every line of the arguments as such, that is the arguments before the learned trial judge at first instance, so you can proceed on that basis.

MR F: May I comment in regard to my first ground of appeal, that in regards to judicial notice, we argued before the Full Court that the finding by her Honour in regards to contact not being extended to Monday because in the balance the child's best interests require that she go to school from home, that this was made without evidence.

McHUGH J: Well, doctor, can I just put to you what the difficulty about this is. If you were here for the first case you would probably have gathered that this Court does not interfere generally with findings of fact, it is only a very exceptional case. The judge at first instance took the view that the first year at school was a particularly difficult year. The Full Court upheld that. Now, there was no evidence but both seemed to take the view that it was a matter of judicial notice. Now, they may be right or wrong about that but it does not seem a special leave point.

MR F: I could not hear the first part of your sentence, I am sorry.

McHUGH J: Well, they may be right or they may be wrong but it is only a question of fact; it is not a matter of special leave for this Court.

MR F: I would argue that the approach to judicial notice was wrong in both the first instance and the Full Court, so, irrespective of the finding of fact the approach used to deal with that or to use that fact was wrong and, as I have stated, that judicial notice should not have been used at all.

McHUGH J: I appreciate that, but that only means that the trial judge made a wrong finding of fact. That is not a special leave ground.

MR F: In regards to without that judicial notice, then I should also point out in regards to this point, then there is no reason before the - that we have no reason from her Honour why contact was for the two days weekend at all. It also impinges on my ground No (3) that we have no reasons about why the amount of contact decided was decided.

McHUGH J: Yes, I know, but I think your submissions seem to proceed on some misunderstanding of the basis of reasons. Reasons are to point out what the reasons of the judge are. Now, if a judge fails to deal with a matter, that may provide a ground of appeal but, provided the judge shows his or her reasoning process, no matter how bad it may be, you cannot attack on the basis that the judge has not given proper reasons. There seems to be growing up some misconception that the judge has to deal with every argument. That is certainly not the law. Judges nowadays are required to show their reasons, right or wrong, but that is all.

Now, your complaint here is that some of your arguments were not dealt with. That may provide a ground of appeal for you but it is not the ground that the judge did not give proper reasons, for example, that the judge failed to take a matter into account when he or she should have taken it into account. Do you follow what I am putting? If you argue point A and the judge says, "I decide this case on ground B", the judge has given his or her reasons for deciding the case. You can go to an appeal court and say, "Look, the reasons show the judge did not consider ground A, therefore that is an error of law", but it is not because the reasons are wrong; it is because the judge failed to consider a matter that he or she should have considered.

MR F: I would suggest that the Full Court in supporting that was wrong because it used the wrong approach within law. It permitted judicial notice, and in my grounds I have stated that there have been various approaches by Full Courts as to judicial notice, some to permit it under circumstances, some not to. Under the Evidence Act, it is not permitted, so, in a sense, the Full Court used the wrong approach in law to support the first instance decision.

McHUGH J: Yes, but a judge is always entitled to take judicial notice of facts. The question is whether or not a fact is capable of judicial notice. Now, these experienced judges in this specialist jurisdiction held that this was a fact of which judicial notice could be taken. They may be right or they may be wrong about it, but they are unanimous that it can be taken judicial notice of. It is not a special leave question.

If I were you - you only have 20 minutes, and I have read your arguments. The two most important points, it seems to me, that you have are the question of limiting cross-examination and perhaps the question of instructions to non-represented litigants. You proceed how you want to, but they are the two best points, it seems to me, that you have to argue. You take your own course, but you only have 20 minutes.

MR F: Okay. In regards to the second point, I feel my written summary is fairly conclusive in the - - -

GUMMOW J: That is the limits on cross-examination?

MR F: Yes, so I am just wondering whether you would want to ask me some - I can comment on it further, but, first, is there any questions you would put to me now?

McHUGH J: The point is that every court has implied power to control its procedures and parties or their counsel just cannot get up and ask questions for as long as they want to ask. They are to be given a fair opportunity to present their case, but these days, natural justice often is complied with even though parties are not entitled to cross-examine. But you say this was an arbitrary imposition. How much longer did you have, what, 46 minutes or so after the imposition, did you?

MR F: Without checking the transcript, it was about 35 or 40 minutes. But there is no means that I had gone through all the issues relevant to the case I wish to cross-examine and there was no objection at any stage by opposing counsel that I was cross-examining on remote areas. There was no objection made at all by opposing counsel. There was no question by her Honour whilst did I have the relevant material on which I wished to cross-examine - - -

McHUGH J: Yes, but one of your problems is that you did not protest at the time.

MR F: Your Honour, as I said in the written judgment, I did not know I had a right to protest. My understanding was, and I have been told many times that if a judge makes a decision in the court, you do what the judge says. The judge said, "I am making a ruling that this court is going to finish today by 4.30 and your cross-examination will be limited". I accepted that. If I had known that I could object, I would have objected. I also state that it is fair to say that the judge had a duty, as I have said in my summary, to actually ask me and put it to me, did I want to make a submission in regards to that decision.

McHUGH J: I do not see that the judge had any duty. Unfortunate as it is these days, lack of legal representation is a misfortune, it is not a privilege, and unrepresented litigants are not entitled to any greater rights than litigants who are represented. The Full Court of the Family Court has gone a long way in extending information to litigants in person, no doubt because there are so many in that particular court, but they do it as a matter of discretion, not of duty.

MR F: Your Honour, in these circumstances, the imposition of time limit was arbitrary. I do not think that is contested. It was not in relation to the evidence. In that sense it does, I would submit, go against the rules of natural justice, under both the Evidence Act and the common law and, subsequent to reading last night, I would also suggest it is a Chapter III right, your Honours. I have a right under Chapter III to be dealt with according to judicial process and that was not given in this regard.

McHUGH J: Yes, but that does not mean that you have an unlimited right of cross-examination. You had 66 minutes of cross-examination of the counsellor on 30 March and then, according to the Full Court at page 117 of the book, you had 43 minutes after the luncheon adjournment. So you have had over an hour and 49 minutes.

MR F: I would submit, your Honour, there was - at no stage I was after unlimited cross-examination time. I was only after time to cross-examine on relevant matters. As I have said in my summary, there were relevant matters I had already foreshadowed that I would be cross-examining on and I had no time to do that. I had mentioned - I had given out and distributed the day before an article on bias in Family Court counsellors which I wanted to put to the court counsellor and - - -

McHUGH J: I am sorry, on bias, did you say?

MR F: In Family Court counsellors, an Australian article that is referenced - actually the full reference is in the extract of my summary of arguments to the Full Court. That was only one, your Honour. That was well known and the - - -

McHUGH J: Yes, but how long is that going to take? I mean, you cannot put the article as such in cross-examination, it is not the witness's document. You can ask her some questions, indicating that she was biased.

MR F: Well, that was my intention, your Honour, and I had no time to do that.

McHUGH J: That does not take very long.

MR F: I agree, your Honour. That is what I mean, I was not after unlimited cross-examination, I was only after time to complete cross-examination on the relevant matters. I also had set up in the court the video to show to Anne Marie Campbell, the court counsellor, to show an example of my parenting to put to her that her evidence in her report and her oral evidence was wrong. I did not get a chance to do that. They are just the ones which I can prove because they were foreshadowed the day before. There are other matters - - -

McHUGH J: Yes, but you see, in this day and age, cases just cannot be allowed to go on for ever and ever. You put material - the video was in evidence, was it not?

MR F: It had not been shown to the court counsellor.

McHUGH J: I know, but it went into evidence - - -

MR F: It was shown in the court, I am not sure whether it was accepted - - -

McHUGH J: - - - and it was very impressive. It showed a very good relationship between you and your daughter. I forget the expression that was used, but it said that, in effect, it was extraordinarily favourable from your point of view.

MR F: My intention was to put to the court counsellor that it showed more than that. One of the central tenets of the court counsellor's evidence was that the parents displayed two different parenting styles, and because of that, one of the styles was preferred and that was the mother's. My intention was to put the evidence to the court counsellor that that was not the case, that we both showed the same parenting styles, and she was in error in that regard. Again, I had no chance to do that.

McHUGH J: But that was not the point that the case ultimately turned on, was it? It was - - -

MR F: It was a matter in the sense that in regards to the reasons, I have said that we do not know why the trial judge decided to not do a shared care regime. We know that she did not like the current existing one prior to the trial, but I was proposing at least two other models and there is no mention anywhere in the reasons that those proposals were considered. I acknowledge that she did not want to continue the pre-existing regime, but there is no evidence that the proposed ones by myself, my central proposals, were considered.

Having decided not to do that, her Honour then had to make a decision in regards to one parent and the things that made her decision in regards to one parent, and I put to your Honours, that was one of the things that were - - -

McHUGH J: Yes, I know, but, doctor, these are factual matters, matters of degree and judgment and they do not raise special leave questions. This Court takes only very few cases from the Family Court and they are matters of very general importance as to powers on appeal and matters of that nature. We just do not interfere in these cases; we cannot. We can only hear 70 or 80 cases a year, including constitutional cases. There are thousands of appeals around Australia each year.

MR F: Your Honours, I would submit that a court deciding it has the powers to arbitrarily limit cross-examination without regard to content, without regard to the relevance of the evidence, that that is an issue of general importance that in this case the court has accepted or given itself a power which under Chapter III it does not have.

GUMMOW J: Now, doctor, you have told us what you say about the judicial notice point, about your complaint about reasons, your complaint about cross-examination limitation, but do you want to say anything about the 68F point?

MR F: Yes, the 68F(2) point, the Family Law Act says - and the statute says the judge "must consider". In the authorities I have given your Honours yesterday, Smith v Smith, Taylor v Taylor, there is a difference in how that is to be considered. In Smith v Smith it says that the 68F factors which, I think, then had a different number, each one that was presented to the court must be listed and comment made on the evidence in regards to them. In Taylor v Taylor they had said that that approach is not mandatory, that a judge can only comment on the issues or the 68F(2) factors which are relevant, and that was also confirmed in B & B. In a case I have given you also, AVA Relocation Approach 2000, a similar comment is made and noted in that case is the Full Court's decision in my case is actually quoted in there.

In regard to the 68F(2) factors, some of these authorities are saying they must be commented on if there is evidence in the case, if they are presented in my case, and others are saying that only if the judge decides they are relevant. I think we have a problem there, your Honours, as that is a judicial decision. If you decide that matters presented by a party are not relevant, then that is a decision and we need a reason for that decision. There is an argument which was similarly said which I found last night in Fleming v The Queen at paragraph 30 which I can - - -

McHUGH J: We are familiar with Fleming.

MR F: Paragraph 30 says two possibilities are presented. One is that the principle was applied. If so, then reasons need to be given. The other is that it was not applied and it should have. Either way, the approach of the Family Court is in error. The second thing is that I actually raise those issues in my closing submission and I asked for a finding on one of those comments, and that is in the transcript. If you want, I can refer you to that. So we have both the statutes saying a Family Court "must consider" these things. I would suggest that any sense of reasons for judgment would include that if there is an issue that occupies 10 pages of a person's affidavit, they give oral evidence on it, the Family Court 68F(2) factors list, there are three specified factors in regards to violence, (g), (i) and (j). These were all evidence before the court.

It is of note in the first instance decision that in her reasons towards the end of it, the section 68F(2) factors, she mentions almost every factor in alphabetical order except these ones, of which I gave substantial evidence. So my submission is that it makes no sense to say that I can present all this evidence and it is missing from the court judgment.

McHUGH J: I appreciate that, but these are debating points to some extent. The critical issue in this case was, it seems to me, and you comment on this, is that the judge said that the evidence satisfied her that you and your former partner could not agree about parenting of the child and, thus, "it would not be in E's best interests that they continue to share her in accordance with the present arrangement". Now, that is the finding and the matters that you are now referring to do not seem to really affect that. I mean, you and your former partner obviously have personality disagreements. She says that you dominate and manipulate and she gives in to you because you are a dominant person. You say you are not. The judge held that you could not agree. The counsellor thought that the relationship was one in which you could not agree. So, these matters are really peripheral.

MR F: I would argue they are not, your Honour, because, as I think was said in AMS v AIF, the central proposal of a party before the court needs to be commented on. My central proposal was a different form of shared care. It is not commented on in her Honour's decision. Having done that, they decided not to do that for reasons which we do not know. Then her Honour needed to make a decision between two competing proposals for sole residency. In doing that, she left out several important 68F(2) factors from mention or even presence in her entire reasons. So, in making that decision, I have no idea of what weight or if any consideration was given, and - - -

McHUGH J: As I said to you earlier, if a relevant matter was left out of account and should have been taken into account, then it might be an argument that the discretion of the trial judge miscarried. The Full Court did not see it that way. It is just a question of fact. It does not raise any point of general importance. This Court is not here to comment on judgments of other courts, so to speak. I mean, we are here to decide issues between parties to deal with rules and principles that are of general application throughout the nation or a significant section of the nation. The mere fact that we think a decision is erroneous is not a reason for the grant of special leave to appeal.

In law and in litigation, almost every argument has a plausible counter-argument. There are seldom right answers to many problems and in this particular field, there usually is not a right answer. Here you have two almost ideal parents, that is what the learned trial judge said, but you could not get on among yourselves, according to the findings, and as a result, the sharing arrangements were varied. Now, it does not seem to me at the moment, doctor, that there is anything about the case that warrants the grant of special leave to appeal.

MR F: I am in this Court not disputing those facts, I am just disputing the way that the court dealt with those facts. I have said that there are certain principles that the statute says must be considered. They were not considered. I have said that this is one of general application, the process of making a decision for every family law - - -

McHUGH J: Yes, but we do not sit here to decide abstract questions and if a question is on the periphery of a case or it is not central to the determination, then, even if it was of quite fundamental importance generally, we would not take the case on. Now, your time has expired for some time. Now, would you like to say anything in conclusion? I understand how distressed you are at these orders being varied and that you are dissatisfied with judgments below, but, having read the matter carefully and as sympathetically as I can from your point of view, there just does not seem to me any special leave grounds in the particular case, doctor.

MR F: All I can say is the grounds, I think, are of general interest to the administration of justice, the court in this decision saying it now has the right to arbitrarily limit cross-examination, irrespective of the material, to make a decision in regards to cross-examination time limits without reviewing the material before making that decision and also in its interpretation of the Family Law Act where it says you "must consider", deciding that if it does consider, it does not need to give the reasons for the decision or even mention that that consideration be given. In such, the issues as regards the administration of justice, beyond just this case, the rules which I have given, the test in the family law in that issue that they are bigger than just any facts that I am presenting, they are issues of how the family law does business and that there - - -

McHUGH J: But, you see, even on the question about what you call the arbitrary time limits, part of the problem is, if you had said, "Look I want to cross-examine her about A, B, C and D" to the judge, and she had refused you after giving you an opportunity to explain in more detail what it was you wanted to put, then we would have something quite concrete. It may be in that situation we might grant special leave to appeal, but that is not this case. Even before the Court of Appeal, you did not seem to be able to identify quite exactly what you wanted to ask about.

MR F: Well, I think that phrase in the Full Court's judgment is ambiguous in the sense that it says I could not identify exactly which. I did list things I was going to cross-examine and what I said was I cannot tell which other ones because things were coming up in the cross-examination. One of the central findings of her Honour occurred in the cross-examination of the court counsellor. She produced evidence that was not in her report and then, within one page, she stopped cross-examination.

McHUGH J: Yes. Doctor, I think you have been given as much time as almost any litigant has ever been given in special leave. I think you are well beyond your time and I will have to ask you to sit down. Thank you for your submissions.

The Court has considered the written and oral submissions of the applicant in this matter but is not persuaded, having regard to the facts and circumstances of the case, that there is any feature which warrants the grants of special leave to appeal. Accordingly, the application for special leave to appeal is dismissed.

AT 10.59 AM THE MATTER WAS CONCLUDED