Delay in delivery of judgment

Delay in delivery of judgment

Folett & Langley

Summary – whether 16 month delay between trial and judgment rendered trial judge’s credit findings unsafe – whether delay assists in establishing other errors – relevance of delay in delivering judgment – where trial judge provided specific and satisfactory reasons for accepting or rejecting evidence of witnesses – error not established – nature of discretion involved in determining parenting orders – extent of need to have regard to expert evidence – central findings and mother’s proposed relocation where mother indisputably to remain primary carer – orders for time and communication – determination of order for mother to have sole parental responsibility– need for reasons informed by nature of discretion involved – whether trial judge’s reasons adequate to explain orders made for parental responsibility and time with the father – whether trial judge bound to specifically address the submissions of the Independent Children’s Lawyer – whether errors contended for enliven appellant intervention – no ground of appeal established – appeal dismissed – father wholly unsuccessful on appeal – order for costs made.

22. Common to several of the father’s grounds of appeal (grounds 3 to 5; and 11 to 13) are challenges to the effect that the trial judge’s discretion miscarried. Common to several other grounds (grounds 1 and 2; and 6 to 8) are challenges as to the adequacy of the trial judge’s reasons. Common to grounds 9 and 10 are challenges focused upon the trial judge’s delay in delivering judgment.
23. It is convenient to begin with an outline of the general legal principles engaged by the respective common focal points in these challenges, before dealing with each specific complaint in the grounds of appeal.

(a) Challenges to the exercise of discretion

24. As already noted, common to grounds 3, 4, 5, 11, 12 and 13 is that each contains a challenge that the trial judge erred in the exercise of his discretion in determining the subject parenting orders.
25. First, it bears emphasising the well-known difficulties a challenge to a discretionary judgment confronts (House v The King [1936] HCA 40; (1936) 55 CLR 499; Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 and Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513).
26. In Australian Coal & Shale Employees’ Federation & Anor v Commonwealth & Ors [1953] HCA 25; (1953) 94 CLR 621 Kitto J observed (at p 627):

… I shall not repeat the references I made in Lovell v. Lovell [(1950) HCA 52: [1950] HCA 52; (1950) 81 CLR 513, at pp. 532-534] to cases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King [(1936)[1936] HCA 40; 55 CLR 499, at pp. 504, 505].

27. In the field of discretionary judgments it also is to be acknowledged that there are particular features of the nature of the discretion involved in determining parenting orders. These amplify the width of the discretion and the elements which legitimately may play a part in its exercise. In CDJ v VAJ (1998) 197 CLR 172 the plurality of the High Court (McHugh, Gummow and Callinan JJ) observed of applications for parenting orders and of their determination as follows (at 218-19):

… Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. The views of appellate judges about the proper order to be made will not infrequently conflict with those of the primary judge. Yet, absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge. The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions …

(b) Challenges as to the adequacy of the trial judge’s reasons

28. The nature of the discretion exercised in determining parenting orders just discussed has a consequent effect upon the assessment of the adequacy of reasons given for its exercise. The adequacy of the trial judge’s reasons here are the specific subject of the challenges in grounds 1, 2, 6, 7 and 8 in the father’s notice of appeal.
29. As Kirby J said in CDJ v VAJ (supra) at [186]:

… Every appellate judge knows that the reasons given for a decision can never express the entire range of matters which the decision-maker has taken into account. In matters of evaluation and discretion, this would be impossible to achieve and undesirable to attempt. Judicial reasons, whilst they must be adequate for the purposes of the exercise of any right to appeal cannot possibly catalogue all of the subtle considerations that lie behind a judicial decision. This is true of the decision of the primary judge, expressing the combination of “main considerations” that led to his ultimate conclusion that the children should reside with one parent rather than another …

(footnotes omitted)

30. As noted, the plurality of the High Court in CDJ v VAJ referred to “perceptions, predictions and even intuition and guesswork” informing the exercise of discretion in the making of parenting orders. These features when present in a discretionary exercise also inform the enquiry as to the adequacy of reasons. For example, Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 is authority for the proposition that a judge assessing compensation by reference to the value of land “… is not obliged to explain each step in his reasoning, having regard to the larger scope for intuition, evaluation, judicial impression and guesswork in such decisions.”
31. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Mahoney JA said (at
    p 386):

Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard [case citations omitted] … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear: see Selvanayagam v University of the West Indies [1983] 1 WLR 585, at 587, 588; [1983] 1 All ER 824, at 826.

32. The general principles applicable to a challenge as to the adequacy of reasons for a discretionary judgment are well-established and are often repeated by this Court (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247at 279 (McHugh JA); Bennett and Bennett (1991) FLC 92-191 at 78, 266 (“Bennett”)), (see, also, the reference to Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 in Bennett at 78, 266).
33. These principles were recently discussed by the Full Court in Rafferty & Spencer (2016) FLC 93-710 (“Rafferty”) as outlined at some length in the summary of argument of the mother. It follows from the authorities referred to inRafferty that a trial judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue. The duty to give reasons does not exist in respect of every matter, of fact or of law, which was or might have been raised in the proceedings. What is necessary is that the essential ground or grounds upon which the decision rests should be articulated.

(c) Relevance of delay in the provision of reasons for judgment

34. It may be accepted at the outset of discussing this topic that, as was contended by each of counsel for the father and for the ICL, the trial judge did not provide any explanation for his delay in delivering judgment. Whilst in the reasons for judgment delivered on 18 January 2016 dismissing the father’s application in a case the trial judge observed that “[t]he delay in the delivery of … judgment is regretted”, neither those reasons nor the reasons delivered on 8 March 2016 contain any discussion by the trial judge about, or reasons for, the delay in delivering judgment.
35. That noted, it is well settled by authority that delay itself is not a ground of appellate intervention, rather error must be established to warrant such intervention. Delay may assist an appellant in establishing error by demonstrating that delay in giving judgment has contributed to an error or made a decision unsafe.
36. In NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor [2005] HCA 77; (2005) 228 CLR 470 (“NAIS”) Gleeson CJ referred to Monie & Others v Commonwealth of Australia [2005] NSWCA 25;(2005) 63 NSWLR 729 (“Monie”) and at [5] said:

… A Court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe. Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself.

37. In Monie Giles JA at [3] cited Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 where his Honour, with the concurrence of Hodgson JA and Young CJ in Equity, said:

[123] … Delay is of course undesirable, and is contrary to the public interest in the prompt resolution of disputes. But delay, however undesirable, does not itself mean that on appeal a different result is substituted or a new trial ordered … What must be considered is the effect of the passage of time on the quality of the decision-making, including the perception of an effect. The label of delay adds little.

38. In McCrossen and McCrossen [2006] FamCA 868; (2006) FLC 93-283 (“McCrossen”) the Full Court (Bryant CJ, Finn and Coleman JJ) referring to authorities including NAIS said at [94]:

Whilst careful scrutiny is called for by the Appellate Court, subject to that scrutiny … delay is not itself a ground of appeal.

39. In McCrossen the Full Court (at [81] and [82]) quoted extensively from Monie, with apparent approval, including the lengthy summary in Monie of the applicable principles on appeal where delay attends delivery of judgment. We do not propose here to repeat that summary in full as it appears in the judgment of the Full Court, but we will make reference to it where necessary when we address the father’s specific challenges directed to delay.
40. We now turn to addressing each of the grounds, with the above principles in mind where relevant to the particular complaint raised.

Ground 9: That the delay in delivery of Reasons for Judgment and making of Orders following the final hearing was manifestly such as to render unsound the Reasons for Judgment; and
Ground 10: That the delay in delivery of Reasons for Judgment and making of Orders following the final hearing was such as to render unreliable the findings of the Trial Judge as to the evidence and as to the credit of the parties

100. Ground 9 as expressed, and as informed by the summary of argument of each of the father and the ICL discernibly in support of it (grounds 9 and 10 are addressed together), can be seen to be no more or less than a complaint to the effect that delay of itself constitutes appellable error. By reference to the principles earlier discussed, that cannot be accepted. There is no merit in ground 9.
101. In argument in support of ground 10 each of counsel for the father and counsel for the ICL focused upon the trial judge’s acceptance of C’s evidence.
102. In particular, counsel for the father contended that the trial judge’s observations as to C’s demeanour, expressed at [38], rendered unsafe the trial judge’s acceptance of her evidence by reason of the operative delay between C giving evidence at trial and the delivery of judgment. C gave evidence at trial in late July 2014 and the father gave evidence in October 2014. In reasons for judgment delivered on 8 March 2016 the trial judge expressed his satisfaction that C’s evidence as to the father’s sexual conduct towards her should be preferred to the father’s denials. Thus the operative delay is between late July 2014 and 8 March 2016, a period of about 19 months.
103. The summary in Monie (at [43]), quoted in full by the Full Court in McCrossen as earlier referred to, includes this:

(5) But the trial judge’s advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay.

(6) If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding.

104. At [38] the trial judge recorded this with respect to C:
     38. In the witness box she gave the impression of being nervy and nervous and without any disrespect intended to her at all, she seemed somewhat immature. All of those are factors which would reasonably contribute to her decision to withdraw the charges, or perhaps more accurately to seek that the prosecution not continue and to indicate that she did not want to cooperate.
105. However, to focus only upon that paragraph of the reasons in isolation, as counsel for the father sought in argument to do, is to invest it, and the finding as to demeanour, with a significance it does not have in the trial judge’s overall assessment of credit when [38] is read in the context of the findings leading to it.
106. Commencing at about [24], the trial judge sets out a series of findings in discussing the evidence which plainly informed his credit findings. For example, at [24] are findings concerning the father’s own history of involvement in incestuous relationships. At [25] is the finding of the father’s retained interest in incestuous sexual relationships and that this topic formed part of his pornography collection, which he shared with C (at [27]).
     At [26] is the finding as to the father suggesting to C that she was attracted to her brother; and the father’s concession in evidence that he had suggested to his son (C’s brother) that C was attracted to him.
107. At [28] are the findings as to the father’s inconsistent versions to police and the single expert as to his reasons for retaining his pornography collection. At [29] is a further finding as to the father’s interest in incestuous sexual relationships.
108. At [30] is recorded the trial judge’s acceptance of the single expert’s evidence that the father was interested in immediately post-pubescent young women. At [31] and [32] are the findings as to the father installing a camera in C’s bedroom being done by the father to satisfy his “prurient” interest in C.
109. At [34] the trial judge summarises C’s evidence and refers to corroborative detail within C’s version which the trial judge found to be supportive of it. At [35] is recorded the trial judge’s finding that the father’s evidence was unconvincing.
110. At [36] and [37] the trial judge discusses, and records findings about, C’s cooperation in the father’s behaviour towards her and the context in which, at one stage of the police prosecution, C had withdrawn her allegations.
111. Importantly, we confirmed with counsel for the father during argument that it was not contended that the trial judge made any factual error in the observations he made or the findings he made in accepting C’s evidence.
112. We note in passing that footnotes to the transcript of the trial appear amongst the paragraphs of the reasons we have referred to. It is clear that the trial judge reviewed the transcript (and other footnoted written evidence) in formulating his reasons.
113. To adopt descriptions of the quoted paragraphs used by Austin J during the course of counsel’s argument, it can be seen that there was a “linear process of reasoning” and an “aggregation of factual findings” (none of which are challenged) of which the finding at [38] is only one, supporting the trial judge’s conclusion to accept C’s evidence and reject that of the father.
114. Expressed in terms of the Monie summary, it is clear that the trial judge did “give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made”; and the trial judge “has given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance”.
115. Neither counsel for the father nor counsel for the ICL contended that evidence relevant to the trial judge’s acceptance of C’s evidence was not considered or was overlooked by the trial judge.
116. As is clear from the paragraphs of the reasons referred to, the trial judge specified in some detail his reasons for rejecting the father’s evidence and did not in that process rely upon demeanour. We find no substance in the complaint that the trial judge’s credit findings were rendered unsafe by delay in delivering judgment or that such delay infected the trial judge’s acceptance of C’s evidence and the findings he made in accordance with that evidence.
117. Counsel for the father argued, by reference to ground 10, that with respect to C’s evidence the trial judge chose to make a positive finding, based upon the acceptance of her evidence, that the abuse C alleged had occurred where, as counsel put it, “that was not necessary”. Reference was made by counsel to the trial judge’s task being to make an assessment of unacceptable risk (to the subject children) and it was in this context that counsel referred to it being “not necessary” for the trial judge to make a positive finding.
118. We clarified with counsel during his argument as to the link he sought to draw between this contention and delay on the part of the trial judge. We interpret counsel’s references to [38] and to “Briginshaw” (Briginshaw v Briginshaw[1938] HCA 34; (1938) 60 CLR 336 per Dixon J) in that context to mean that, given the seriousness of the positive finding, the trial judge’s assessment of C’s demeanour, given the delay between her evidence and judgment, rendered that finding unsafe.
119. However, as we have sought to demonstrate, when the reasons are read as a whole and [38] is read in context, the trial judge’s acceptance of C’s evidence cannot be characterised as relying wholly, or even substantially, upon the demeanour finding in [38]. The trial judge explained his acceptance of C’s evidence and also its corollary, the rejection of the father’s denials, by reference to a number of matters rather than simply relying upon an assessment of demeanour.
120. In circumstances where a then 19 year old C gave direct evidence of sexual abuse of her by the father when she was a minor, and the father gave evidence denying that conduct, it was not incumbent upon the trial judge to shirk from making a positive finding in resolving that contest in evidence if he felt impelled to so do (M v M (1988) 166 CLR 69).
121. The trial judge was plainly aware of the standard of proof in the circumstances referring as he did in the reasons (at [12], [13] and [14]) to each of Briginshaw; M v M (supra) and s 140(1) of the Evidence Act 1995 (Cth).
122. Otherwise, the contention in support of this ground is, in summary, that because of the delay in delivering judgment there was a need to update the evidence of the parties’ respective circumstances, including their financial circumstances, and to obtain updated expert evidence as to the current views of the children, before judgment was delivered.
123. However, as already referred to, in advance of delivering judgment the trial judge afforded the parties the opportunity to apply to reopen the evidence. The father filed an application and a supporting affidavit. So too did the mother file an affidavit.
124. Whilst the trial judge formally dismissed the father’s application, it is clear from the reasons for judgment (at [71]) that the trial judge took into account the affidavit evidence at least to the extent of allowing for the fact that N was expressing strong views to the effect that he wanted to live with the father and might “run away” from his mother if she moved to live in Newcastle.
125. However, given the trial judge’s findings as to unacceptable risk, to give effect to N’s views (assuming them to be as asserted by the father) would be to expose him to that unacceptable risk. The trial judge accounted for the prospect that N was expressing the views the father ascribed to N but nevertheless, in the face of the findings referred to, made the orders that he did. In context there was no error on the part of the trial judge in not obtaining an updated family report which, even if it had reflected that N’s views were as ascribed to him by the father, could not have impacted upon the overall determination given the findings as to unacceptable risk.
126. Notably, the father did not seek to reopen the evidence to update his evidence otherwise, including as to his current financial circumstances, notwithstanding the invitation of the trial judge. There is no appeal from the trial judge’s dismissal of the application the father made on the basis it was advanced for the purpose of seeking interim orders. It is not open to the father, on this appeal, to now complain about evidence he might have offered if the case was reopened when an invitation was made by the trial judge to so do, and the father elected not to avail himself of that opportunity in this respect.
127. We find no merit in these grounds.