A & GS & Others

[2004] FamCA 967

[2004] FamCA 967 FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY  Appeal No. EA 56 of 2004
  File No. PAF 1647 of 2004

IN THE MATTER OF:

“A”
(BY HER NEXT FRIEND)

Appellant Child

- and -

“GS”

First Respondent Father

- and -

“MQ”

Second Respondent Mother

- and -

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Intervener

- and -

THE COMMONWEALTH CENTRAL AUTHORITY

Intervener

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  Finn, May and Carmody JJ 

DATE OF HEARING:  20 July 2004

SUPPLEMENTARY SUBMISSIONS FROM
THE ATTORNEY-GENERAL:  30 July 2004

DATE OF JUDGMENT:  22 October 2004 

APPEAL SUMMARY

MATTER:“A” (BY HER NEXT FRIEND) and “GS” and OTHERS

APPEAL NUMBER:  EA 56 of 2004 (PAF 1647 of 2004)

CORAM:Finn, May and Carmody JJ

DATE OF HEARING:  20 July 2004

DATE OF SUPPLEMENTARY SUBMISSIONS

FROM THE ATTORNEY-GENERAL:  30 July 2004

DATE OF JUDGMENT:  22 October 2004

CATCHWORDS: FAMILY LAW – APPEALS – Interpretation of Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) – Whether a person other than a Central Authority has standing to apply under the Regulations for an order for the return of a child to the country of the child’s residence prior to the child’s removal or retention – Whether the Regulations confer jurisdiction on the Court to make an order in relation to an application for the return of a child when the application is made by a person other than the Central Authority – Meaning of regs 6(1) and (2) and reg 14 considered – Operation of s 69C of the Family Law Act 1975 considered – Whether the reg 16(3)(d) requires the Court to consider the human rights and fundamental freedoms of a child who is not the subject of the application made under the Regulations – Discussion of the scope of reg 16(3)(d).

FAMILY LAW – APPEALS – Whether the Court should over-rule the majority decision in the earlier Full Court decision in Panayotides – Consideration of the principles to be applied in determining whether to over-rule a majority decision from an earlier Full Court.

Caselaw cited:

Panayotides and Panayotides (1997) FLC 92-733

Attorney-General (Qld) v Australian Industrial Relations Commission; Minister for Employment (2002) 213 CLR 485

Golding v Golding (unreported, 3 May 1993, Treyvaud J)

In the Marriage of Barraclough (1987) 11 FamLR 773

Farnell and Farnell (1996) FLC 92-681

Ivanovic and Ivanovic (1996) FLC 92-689

Bryant and Bryant (1996) FLC 92-690

Nguyen and Nguyen (1989-90) 169 CLR 245

DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081

Appeal allowed.

Directions made for the filing of written submissions in relation to the Commonwealth Central Authority’s application to be substituted for the father in proceedings at first instance.

1. This is an appeal against orders made by Coleman J on 10 June 2004. The effect of those orders was that a child, S, should be returned to the United States of America pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

2. The Regulations are made pursuant to s 111B of the Family Law Act 1975 (“the Act”) for the purpose of making “such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit” under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).

3. The essential question raised by this appeal is whether a person other than a Central Authority referred to in the Regulations has the standing to apply under the Regulations for an order for the return of a child (who has been removed from a “convention country” as defined by reg 10 or retained in Australia) to the country in which the child habitually resided immediately before his or her removal or retention.

Background

1. The factual background to this appeal, as it is to be found in Coleman J’s judgment, can be summarised as follows.

2. The mother of the child, S, was born in 1964 in the Philippines.  She migrated to Australia in 1977 and became an Australian citizen in 1983.  On 22 November 2000 the mother married in the United States the father of the child, S.  The father had been born in the United States in 1969.

3. In July 2001 the child, S, was born in the United States where the parents remained living until March 2004.

4. On 16 March 2004 the mother returned to Australia taking with her the child, S, (now aged 3) and also her child from a previous marriage, A, (who had been born in Australia in June 1992 is now aged 12 and whose natural father is an Australian resident).

5. On 2 April 2004 the mother filed an application in the Family Court of Australia seeking residence of S.

6. On 6 April 2004 the father filed an application in the same Court seeking, amongst other orders, an order (purportedly pursuant to the Regulations) for the return of the child, S, to the United States of America.

7. The father’s application was heard by Judicial Registrar Halligan on 5 May 2004.  On 6 May 2004 the Judicial Registrar made an order for the return of the child to the United States. 

8. The Judicial Registrar made it clear at the outset of his reasons for judgment that the mother had not challenged the standing of the father to bring the application for an order under the Regulations for the return of the child.

9. On 26 May 2004 the child, A, (by her next friend, being her maternal grandmother) filed an application seeking leave to intervene in the proceedings between the mother and the father for the purpose of seeking orders that the order of the Judicial Registrar of 6 May 2004 “be stayed” and also that such order “be quashed”.

10. That application by A came before Coleman J for hearing on 27 May 2004.  At the commencement of that hearing the solicitor appearing for the mother made an oral application for a review of the orders of the Judicial Registrar made on 6 May 2004.  His Honour permitted such an oral application to be made subject to the filing of a written application in due course.

11. So far as the application by the child, A, to intervene in the proceedings between the mother and the father in relation to the review of the Judicial Registrar’s decision was concerned, his Honour granted that application, thus enabling A to oppose the making of the order for the return of the child, S, to the United States.

12. As there was no challenge before us to his Honour’s decision to permit the child, A, to intervene in the review proceedings, it is unnecessary that we discuss his Honour’s reasons for so doing, or express any view in relation to his decision.

13. As to the standing of the father to apply for an order for the return of the child, S, to the United States, his Honour recorded in his judgment (paragraph 20) that “consistent with her stance” before the Judicial Registrar, the mother did not challenge the father’s standing to apply for such an order.

14. However, as his Honour also recorded, while Counsel for the child, A, was not prepared to concede that the father had the necessary standing, Counsel was prepared to accept that his Honour, as a single Judge, was bound by the decision of the majority of the Full Court of this Court in Panayotides and Panayotides (1997) FLC 92-733. We will refer again to that decision later in these reasons.

15. Given that it is the child, A, who is the appellant in the present appeal, and given that the issue of the father’s standing is the central issue in this appeal, we will here set out what his Honour said regarding the position taken before him by A’s Counsel in relation to the issue of the father’s standing:

    21.Learned Counsel for [A] did not concede that the father had standing to commence proceedings under the Regulations for an order for [S’s] return. Accepting that, as a single Judge, this Court was bound by a majority decision of the Full Court on that point, learned Counsel for [A] sensibly did no more than place on the Court record his assertion that the proceedings, having not been commenced by the Central Authority, were incompetent and that the order of the learned Judicial Registrar was accordingly invalid. Whilst [A’s] learned Counsel suggested that a Constitutional issue might thus arise, and that notice to the Attorney General pursuant to s 78B would accordingly be appropriate, the Court declined to adjourn the proceedings for that to occur. If there is a Constitutional issue relevant to be determined, that would be a matter for a Full Court. This Court proceeds on the basis that the majority decision of Panayotides & Panayotides (1997) FLC 92-733 is binding unless and until another Full Court suggests otherwise.

16. As to the basis of the opposition by the mother and by the child, A, to the return of the child, S, to the United States, his Honour said as follows:

    18.As was the case before the learned Judicial Registrar, the only matter in issue with respect to the mother’s Review Application was whether the evidence established the ground for declining to order [S’s] return to the United States upon which she relied, being that provided by Regulation 16(3)(b) of the Regulations which provides:-

    “(3)A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:

    …

    (b)there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation;”

    19.Should leave be given to intervene, [A’s] opposition to the return of her sibling [S] was, in addition to reliance on Regulation 16(3)(b), reliant upon Regulation 16(3)(d), which provides:-

    “(3)A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:

    … 

    (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.”

17. Ultimately his Honour concluded that neither of the grounds contained in either reg 16(3)(b) or reg 16(3)(d) had been established.  Accordingly, he dismissed the application of the mother and of the child, A, for the review of the Judicial Registrar’s orders, and “to the extent necessary”, he confirmed those orders (including of course the order for the return of the child, S, to the United States).

The appeal by the child, A

1. On 11 June 2004 the child, A, filed (again by her next friend) a notice of appeal against orders 4 and 5 of Coleman J’s orders of 10 June 2004.  Those orders were in the following terms:

   4.That the Review Application of [A] by her next friend, be dismissed. 

   5.That to the extent necessary, the Orders of the Judicial Registrar of 6 May 2004 be and are hereby confirmed.

2. The eight grounds of appeal which we understood to ultimately be pressed on behalf of the appellant are as follows:

   1.That His Honour erred in holding that the first respondent has standing to commence proceedings under the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) for the return of [S] born 23^rd July 2001…to the United States;

   2.That His Honour erred in failing to hold that the orders made by Judicial Registrar Halligan on 6 May 2004 were ultra vires the Regulations;

   3.That His Honour erred in making orders 4 and 5 of the orders made 10^th June 2004, being orders that were ultra vires the Regulations;

   4.That His Honour’s consideration of the Appellant’s Application for Review of the decision of Judicial Registrar Halligan prior to a consideration of the relief sought by the Appellant under Part VII of the Family Law Act was procedurally unfair; alternatively

   5.That His Honour erred in considering the Appellant’s Application for Review discretely from the relief sought by the Appellant under Part VII of the Family Law Act.

   6.That in failing to consider the relief sought by the Appellant under Part VII of the Family Law Act, His Honour erred in failing to have paramount consideration for the best interests of the Appellant as required by section 65E of the Family Law Act;

   7.That His Honour erred in interpreting Regulation 16(3)(d) as referring solely to the human rights of the child to be removed, to the exclusion of the human rights of the Appellant;

   8.That His Honour erred in failing to hold that the return of [S] to the United States in all the circumstances “would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms”.

3. In relation to the appellant child, we mention at this point that at the commencement of the hearing of the appeal, her Counsel sought that she be permitted to be in Court for the hearing of the appeal.  This application was supported by the second respondent mother, but opposed by the first respondent father.  In opposing the application, the father relied on the long standing practice of this Court not to permit children to be in Court thereby protecting them from (amongst other things) exposure to evidence concerning the activities or intentions of their parents or other relatives.

4. We ruled that we would permit the child to remain in Court in the unusual circumstances of this case.  In reaching this decision, we had regard to the fact that the trial Judge had ruled that the child could be present in Court for the proceedings before him although she apparently left the Court after she was cross-examined.  We also took into account that the submissions before us were likely to be directed to questions of law rather than to any factual or evidentiary matters concerning the conduct or intentions of the parties to the proceedings.

The interventions by the Attorney-General and the Central Authority

1. Prior to the hearing of the appeal, the Attorney-General for the Commonwealth gave notice that he proposed to intervene in the appeal pursuant to his right under s 91(1) of the Act to intervene in proceedings under the Act where a matter arises that affects the public interest. In the Attorney-General’s notice of intervention, reference was made to the appellant’s first ground of appeal which asserts that Coleman J erred in holding that the father had standing to commence proceedings under the Regulations. It was then stated in the notice that:

   2.The question whether an individual parent has standing to bring proceedings under the Family Law (Child Abduction Convention) Regulations 1986 is a question that is potentially relevant to every future proceeding to be brought under the Regulations and is therefore a matter that affects the public interest.

2. At the commencement of the hearing of the appeal Senior Counsel appearing for the Attorney-General informed us that he also appeared for the Commonwealth Central Authority established under the Regulations, and that the Central Authority also sought to intervene and be joined as a party to the proceedings. The purpose of such intervention and joinder would be to enable the Central Authority, in the event that this Court was to hold that the father had no standing to commence the proceedings under the Regulations, to be substituted for the father and to have orders made in its favour, effectively retrospectively, for the return of the child.

3. Given that no substantial argument was put on behalf of the appellant child, the respondent father, or the respondent mother, in opposition to the intervention and joinder of the Central Authority (as opposed to the substantive orders that the Authority would seek if the father was found to have no standing), we permitted the Central Authority to intervene and to be joined as a party.

The submissions of the parties in relation to the standing of the father to seek an order under the Regulations for the return of the child

1. The submissions made to us in relation to the threshold question (which effectively arises under the appellant’s first three grounds of appeal) of the father’s standing to seek an order under the Regulations for the return of the child can be summarised as follows.

2. For the appellant child, and also for the mother as second respondent, it was submitted that under the clear and unambiguous wording of reg 14, it is only the Central Authority that can apply for an order for the return of the child; that given that the wording is clear and unambiguous, it is unnecessary to look at the Convention or at other background material; and that the decision of the majority of the Full Court (Fogarty and Baker JJ) in Panayotides (being that the non-abducting parent may bring such an application under the Regulations) should not be followed, but rather that the minority decision of Finn J in that case (being that the non-abducting parent cannot bring such an application) should be followed.

3. Accordingly, it was submitted that in the present case the father had no standing to bring the application for orders under the Regulations for the return of the child, and that the orders made by the Judicial Registrar and by Coleman J for the return of the child were consequently invalid.

4. On behalf of the father as second respondent, it was submitted that he did have standing to bring the application under the Regulations for the return of the child on the basis of the decision of the majority in Panayotides and that that decision should be followed.

5. The father’s contention that he had the necessary standing was supported by the Attorney-General, whose arguments were summarised in written submissions in the following terms:

   2.1.… Panayotides should be regarded as binding authority which this Full Court should follow as it has not been shown to be clearly wrong.

   2.2.Standing of the parent of a child of a marriage, such as the father, is confirmed by the positive conferral of a right in s 69C [of the Family Law Act]. Not only do the Regulations not demonstrate a contrary intention that detracts from that right, regulation 6(1) expressly anticipates the conferral of standing on a person by Part VII of the Act (which includes s 69[C]).

6. Before considering the content and operation of the various provisions of the Regulations and the Act on which the parties have relied in their submissions, it will be useful to refer briefly to the judgments in Panayotides. 

The decision in Panayotides

1. In Panayotides Jordan J had dismissed an application brought under the Regulations by the State Central Authority for Queensland against the mother of a child for an order for the return of the child to the United States of America. The Central Authority did not file a notice of appeal, but the father as the non-abducting parent purported to do so. It was therefore necessary for the Full Court to determine the issue of whether the father had standing to appeal.

2. In determining that issue, Fogarty and Baker JJ considered it necessary to also determine the question of “who may make an application in Australia for relief under the Hague Convention Regulations” (at 83,879).

3. On this question, their Honours concluded that a non-abducting parent did have the right to bring proceedings in his/her own name for an order under the Regulations for the return of the child to an overseas country. We will here set out the paragraphs from their Honours’ joint judgment where they expressed that conclusion, although we appreciate that the reader may have difficulty understanding the significance of what is being said in advance of our discussion of the existing and former regulations (at 83,883-83,884):

   The right to bring proceedings personally rather than through the relevant Authority seems to be what is clearly anticipated in Article 29 of the Convention previously referred to. The original reg 14 seemed to give effect to that and in the Explanatory Statement to the original regulations in 1987 it was stated that “this provision gives effect to Article 29 of the Convention”. That regulation, however, was repealed by the November 1995 regulations and is now to be found in reg 6. Essentially old reg 14 provided that nothing in the regulations prevented a person from applying directly to a court “whether or not under the Convention” in respect of a child removed to Australia, whereas reg 6 now provides that the regulations “are not to be taken as removing or affecting any power of a court, or the right of any person ... to apply to a court, under Part VII of the Act or under any other law in force in Australia.” (italics added)

   At first sight such a change might suggest some change to the previously existing right to bring proceedings. That is, it might be suggested that there is a relevant difference between the words italicised above. The former appears to make it clear that the potential proceedings can be “under the Convention”; the latter may not be as clear — it depends on whether one reads “any other law” as meaning any law other than Part VII, and thus including the regulations, or as any law other than Part VII and the regulations.

   However, the Explanatory Statement does not suggest that any change of such significance was contemplated. The Explanatory Statement to reg 13 of the 1995 amending regulations simply states that it “omits existing regulation 14 consequential upon the re-arrangement of the regulations into 5 Parts. Provisions in existing regulations 14 and 25 are now relocated in new regulation 6.” Regulation 7 of those amending regulations inserted the new reg 6 in what was described as being “consequential upon the re-arrangement of the Regulations into 5 Parts. Provisions in existing regulations 14 and 25 are now relocated in new regulation 6.”

   Whilst one may be left to wonder why changes of significance were made to the wording of that regulation if only a re-location was desired, particularly when the previous regulation was well understood and had been the subject of interpretation and application in previous cases, it would nevertheless be difficult, we think, to conclude that it changes substantive pre-existing rights and given clear effect to for the past decade. That is, we do not consider that it alters the previously existing position under which the non-abducting parent may commence proceedings himself or herself in Australia under the regulations.

1. While Finn J agreed with the ultimate conclusion of Fogarty and Baker JJ that the husband could institute an appeal against the trial Judge’s order notwithstanding that he had not been a party to the proceedings before the trial Judge, her Honour did not agree with their Honours that the husband had standing to make an application himself for an order under the Regulations for the return of the child. Her Honour’s reasoning was as follows:

   Prior to amendments to the Regulations in 1995, Regulation 14 of the Regulations provided that:

   “Nothing in these Regulations prevents a person, institution or other body from applying directly to a court of competent jurisdiction, whether or not under the Convention, in respect of the breach of rights of custody of, or breach of rights of access to a child removed to Australia.”

   The Explanatory Statement to the original Regulations (SR No 85 of 1986) stated that Regulation 14 “gives effect to Article 29 of the Convention”. Article 29 of the Convention provides as follows:

   “This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of the Convention.”

   …

   It is also relevant to note that prior to the 1995 amendments to the Regulations, Regulation 25 provided that:

   “Nothing in these Regulations should be taken to prevent a court of competent jurisdiction, at any time, from making an order for the return of a child to an applicant otherwise then [sic] under these Regulations.” (Italics added)

   It will be observed that former Regulation 25 was concerned with the making of orders for the return of children other than pursuant to the provisions of the Regulations.

   By amending Regulations (Statutory Rules No 296 of 1995) made on 19 October 1995 former Regulations 14 and 25 were omitted and new Regulations 14 and 25 were substituted. The content of the new Regulations 14 and 25 bear no relation to the content of the original Regulations 14 and 25. However new Regulation 6 provides:

   “6(1) These Regulations are not to be taken as removing or affecting any power of a court, or the right of any person or body to apply to a court, under Part VII of the Act or under any other law in force in Australia.

   (2) These Regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.”

   The only explanation of new Regulation 6 provided by the Explanatory Statement to the amending Regulations of 19 October 1995 is that new Regulation 6 was inserted “consequential upon the re-arrangement of the Regulations with 5 Parts”. It is further explained that provisions in the former Regulations 14 and 25 “are now re-located in new Regulation 6”.

   There is little doubt, in my view, that new Regulation 6(2) has the same effect as former Regulation 25. …

   …

   The drafting of Regulation 6(1) occasions, in my opinion, much greater difficulty. Taken on its face, it would seem to be concerned not only with any application to a court for any type of relief under Part VII of the Family Law Act, but also with any application to any court for any type of relief under any law in force in Australia. It would seem that the words in Regulation 6(2) which describe the nature of the order contemplated (being one “for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention”) need to be implied into any reading of Regulation 6(1) if only to make sense of that sub-regulation.

   Again, however, and as was the case with Regulation 6(2), I have difficulty in accepting that the words “under any other law in force in Australia” in Regulation 6(1) (when read with or without the words which it would seem necessary to imply into the sub-regulation) can be read as including the law constituted by the Regulations. The words in question must, in my view, mean any law other than that constituted by the Regulations and other than Part VII of the Family Law Act. …

   Thus although it may have been intended that new Regulation 6(1) should re-enact former Regulation 14, that intention would not seem to have been achieved. It will be recalled that former Regulation 14 was concerned with applications to a court in respect of the wrongful removal of a child to Australia both under the Convention and under other laws. New Regulation 6(1) is, in my view, limited to applications brought under laws other than under the Regulations made to give effect to the Convention.

   Therefore it would seem that the right of a non-abducting person to apply directly to the Court for an order under the Convention for the return of the child may have been (perhaps inadvertently) removed by the amending Regulations (SR No 296 of 1995).

   It might be possible to argue that notwithstanding the repeal of former Regulation 14, Article 29 of the Convention still has application in Australia and permits an individual to make an application under the Convention for the return of the child. …

   The difficulty, however, that this argument would encounter is that under the present Regulations there is apparently no conferral of the necessary jurisdiction on an Australian Court to make an order for the return pursuant to the provisions of the Convention of an abducted child other than on the application of a Central Authority.

   Present Regulation 14 provides that a “responsible Central Authority” may apply to a Court for an order for the return of a child “to the country in which he or she habitually resided immediately before his or her removal or retention” or for various other orders. There is no provision in Regulation 14 or in any other regulation for a person or body other than a Central Authority to apply to a Court for an order for the return of a child from Australia.

   Regulation 15 then confers power on a court to make orders in relation to an application made under Regulation 14, but it should be noted that no other type of application is mentioned. Regulation 16 then provides the circumstances in which a court either must make or must refuse to make an order for the return of a child, but again Regulation 16 is restricted to applications made under Regulation 14.

   Thus it would seem that the jurisdiction conferred on the Family Court under the Regulations (see in this regard s 39(5)(d) of the Family Law Act) is limited to the entertaining of only these applications for an order pursuant to the Convention for the return abroad of an abducted child, which are brought by a Central Authority and to the making of orders on such applications. (This of course is not to say that the Family Court does not have jurisdiction to order the return abroad of an abducted child under Part VII of the Family Law Act.)

   In my view Article 29 of the Convention cannot assist in determining whether the necessary jurisdiction exists in Australian courts to entertain applications under the Convention for the return of a child from Australia brought by a person other than a Central Authority. This is because Article 29 operates only to ensure that the provisions of the Convention are not interpreted as preventing a person from applying directly to a judicial authority under the provisions of the Convention. It cannot, in my view, operate to confer jurisdiction on an Australian court to entertain an application under the Convention by any person or authority.

   It may well be that this problem of an apparent lack of a conferral of jurisdiction on the Court to entertain applications for the return from Australia of an abducted child other than applications brought by a Central Authority, or to make such orders other than on the application of a Central Authority, existed under the earlier regulations. But that is not a matter on which it is here necessary to comment.

   As I said at the outset, the matters which I have raised do not need to be decided in order to determine this appeal. The resolution of these matters should, in my view, await a case in which their resolution is necessary for the determination of that particular case, and where the Court has the benefit of legal argument from both sides (which we did not have in this case).

Regulation 14

1. The first of the existing regulations required to be considered in this case is reg 14.  Relevantly for present purposes, reg 14 has, since 1995, been in the following terms:

   (1)In relation to a child who is removed from a convention country to, or retained in, Australia, the responsible Central Authority may apply to a court in accordance with Form 2 for:

   (a)an order for the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention;

   …

2. In our view the language of reg 14(1) is clear and unambiguous in its provision that it is a Central Authority which may apply to a Court, in accordance with Form 2, for an order for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention. Nothing in the language of reg 14 could give rise to the suggestion that a person or body other than a Central Authority could make an application for an order under reg 14(1) for the return of a child to an overseas country. Moreover, Form 2 which is referred to in reg 14 and which is found in Schedule 3 to the Regulations, is clearly drafted on the basis that it is a Central Authority who will be the applicant for an order for the return of the child.

3. Thus, so far as reg 14(1) is concerned, it would be unnecessary, in our view, to resort to extrinsic material as an aid to its interpretation. (See in this regard the comments in Attorney-General (Qld) v Australian Industrial Relations Commission; Minister for Employment (2002) 213 CLR 485 by Gleeson CJ at paragraphs 6-14 and by Kirby J at paragraphs 113-114.)

Regulation 6

1. However, the conclusion that reg 14(1) is in clear and unambiguous terms is not the end of the matter, because both the father and the Attorney-General relied on reg 6 in support of the father’s contention that he has standing to apply under the Regulations for an order for the return of the child.

2. Regulation 6 is in the following terms:

   (1)These regulations are not to be taken as removing or affecting any power of a court, or the right of any person or body to apply to a court, under Part VII of the Act or under any other law in force in Australia.

   (2) These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.

3. It has to be acknowledged having regard particularly to the submissions on behalf of the Attorney-General and also to the judgments in Panayotides that the meaning of reg 6 could not be said to be clear and unambiguous.

4. Before considering the submissions of the Attorney-General, it will be useful to consider the history of the provisions now found in reg 6.

5. Prior to the substantial amendments made to the Regulations in 1995, regs 14 and 25 provided as follows:

   14.Nothing in these Regulations prevents a person, institution or other body from applying directly to a court of competent jurisdiction, whether or not under the Convention, in respect of the breach of rights of custody of, or breach of rights of access to, a child removed to Australia.

   …

   25.Nothing in these Regulations shall be taken to prevent a court of competent jurisdiction, at any time, from making an order for the return of a child to an applicant otherwise than under these Regulations.

6. It should be noted in passing that the language of former reg 14 is similar to the language of Article 29 of the Convention which is in the following terms:

   This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention

7. It should also be noted in passing that prior to the 1995 amendments the provision authorising the Central Authority to apply to a Court for an order for the return of the child was to be found in reg 15(1) which was in the following terms:

   15.(1) The responsible Central Authority may, in relation to a child removed to Australia, apply to a court having jurisdiction under the Act for –

   …

   (d)an order for the return of the child to the applicant.

8. In 1995 the amending Regulations (SR 1995 No. 296) inserted reg 6 in its present form (see above) and omitted or repealed the then existing regs 14 and 25 (as well as placing much of the essential content of former reg 15(1) in new reg 14(1).

9. The only explanations provided for these changes to former regs 14 and 15 in the Explanatory Statement to the amending regulations are as follows (emphasis added):

   Regulation 7 also inserts a new regulation 6 consequential upon the re-arrangement of the Regulation into 5 Parts.  Provisions in existing regulations 14 and 25 are now relocated in new regulation 6.

   …

   Regulation 13 omits existing regulation 14 consequential upon the re-arrangement of the regulations into 5 Parts.  Provisions in existing regulations 14 and 25 are now relocated in new regulation 6.

   …

   Regulation 25 repeals existing regulation 25 consequential upon the re-arrangement of the Regulations into 5 Parts. New regulation 6 replaces existing regulations 14 and 25.

10. It will be seen that it is twice said in the Explanatory Statement that then existing regulations 14 and 25 are “relocated” in the new reg 6, but then later it is said that new reg 6 “replaces” then existing regulations 14 and 25.  Whatever the word “relocated” was intended to mean, it certainly could not have meant that the same language used in the former regs 14 and 25 was now to be found in the two sub-regulations of the new reg 6.  The language of those former regulations and the language of the new reg 6 is markedly different.  The statement that reg 6 “replaces” the former regs 14 and 25 would seem to be more accurate. 

11. So far as reg 6(2) is concerned, it was contended on behalf of the Attorney-General that:

    26.1Regulation 6(2) re-enacts former regulation 25, and concerns the power of the court to make orders otherwise than under the Regulations (ie under Part VII or any other law). This would include, for example, the power of the Court to make a recovery order under s 67U of the [Act]. (Emphasis added)

12. When the terms of former reg 25 and of new reg 6(2), which we repeat here for the sake of convenience, are compared, the interpretation contended for by the Attorney-General appears to be correct:

    25.Nothing in these Regulations shall be taken to prevent a court of competent jurisdiction, at any time, from making an order for the return of a child to an applicant otherwise than under these Regulations.

    6. (2) These regulations are not to be taken as preventing a court from making an order at any time under Part VII of the Act or under any other law in force in Australia for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention.

13. We turn then to consider the interpretation of reg 6(1) which, again for the sake of convenience, we here set out:

    6.(1) These regulations are not to be taken as removing or affecting any power of a court, or the right of any person or body to apply to a court, under Part VII of the Act or under any other law in force in Australia.

14. The written submissions on behalf of the Attorney-General in support of the contention that it is reg 6(1) (alone or in conjunction with certain provisions in Part VII of the Act) which gives the father standing to seek an order under the Regulations for the return of the child to the United States, commence with a reference to former reg 14 which we here repeat:

    14.Nothing in these Regulations prevents a person, institution or other body from applying directly to a court of competent jurisdiction, whether or not under the Convention, in respect of the breach of rights of custody of, or breach of rights of access to, a child removed to Australia.

15. It was then submitted on behalf of the Attorney-General that former reg 14 implemented Article 29 of the Convention.  We accept that submission.

16. It was then further submitted on behalf of the Attorney-General that it was accepted in various decisions of this Court (Golding v Golding (unreported, 3 May 1993, Treyvaud J) at 8; In the Marriage of Barraclough (1987) 11 Fam LR 773 at 778-779 (Kay J); Panayotides at 453, 456 (Fogarty and Baker JJ)) that reg 14 conferred standing on a non-abducting parent to institute proceedings under the Regulations. We think it important, however, to point out in connection with this submission that in Barraclough Kay J pointed out the need for amendments to make the intention in then existing reg 14 clear and capable of operation (at 76,316-76,317):

    To give proper effect to reg. 14 (the regulation allowing a person to directly bring proceedings under the Family Law (Child Abduction Convention) Regulations rather than proceedings brought by the central authorities), there ought to be consequential amendments to the Regulations and the Forms so as to give sense to much of what appears in the Regulations. For instance, the mandatory nature of the Regulations is encapsulated in reg. 16(1), namely:

    “Subject to subregulation (3), a Court shall order the return of a child pursuant to an application made under subregulation 15(1) if the day on which that application was filed is a date less than one year after the date of the removal of the child to Australia.”

    Subregulation 15(1) refers only to the responsible Central Authority making the application. To give meaning to subreg. 16(1) in the light of reg. 14, I have ignored the limited reference only to “an application made under subregulation 15(1)” and implied into the subreg. the words “or otherwise” immediately thereafter. There ought to be other consequential amendments made to the regulations of a similar nature.

17. But returning to the submissions to us on behalf of the Attorney-General, reliance was next placed on the majority decision of Fogarty and Baker JJ in Panayotides to submit that no change of “any significance was intended by the re-ordering and re-wording” of the provision (which had been reg 14) and that “the change in wording did not change substantive pre-existing rights of a non-abducting parent to apply under the Regulations.”

18. It was then further submitted that the interpretation placed on reg 6(1) by Fogarty and Bakery JJ accords not only with Article 29 of the Convention, but also “accords with the intention at the time not to alter the previous position.”  In support of that last proposition reference is made to the statement in the Explanatory Statement to the Amending Regulations  (SR1995 No. 296) that “previous regulation 14 was simply relocated in new reg 6.”

19. However, as we have earlier pointed out, the Explanatory Statement used somewhat inconsistent expressions, referring not only to “relocation” but also to “replacement” when seeking to explain the new reg 6 and the repeal of former regs 14 and 25.  We mention also at this point, with respect, that Fogarty and Baker JJ do not appear in their judgment in Panayotides to have adverted to this inconsistency in expression in the Explanatory Statement.  Finn J also did not advert to it in her judgment.

1. Later in the submissions on behalf of the Attorney-General, attention is drawn to the use of the word “right” in reg 6(1), with it being submitted that:

   … the regulation clearly anticipates that a person or body may have a right to apply (ie standing) under Part VII of the Act or under any other law in force in Australia. (Paragraph 11)

2. It is then explained (in footnote no. 11 to the written submissions) that given the history of reg 6(1) as former reg 14, the right to apply is clearly for an order under the regulations.  Thus it is submitted that:

   The effect of the regulation 6(1) is that any such right is not removed or affected by any other provision of the regulations (such as regulation 14).

3. The right to apply under Part VII for an order under the Regulations is, according to the submissions on behalf of the Attorney-General, to be found in s 69C(2)(a) of the Act. Section 69C is as follows:

   (1)Sections 65C, 66F, 67F, 67K and 67T and subsection 68T(4) are express provisions dealing with who may institute particular kinds of proceedings in relation to children.

   (2) Any other kind of proceedings under this Act in relation to a child may, unless a contrary intention appears, be instituted by:

   (a)       either or both of the child's parents; or

   (b)       the child; or

   (c)       a grandparent of the child; or

   (d) any other person concerned with the care, welfare or development of the child. (Emphasis added)

4. We agree with the submissions which then follow on behalf of the Attorney-General, being that the expression “proceedings under the Act” in s 69C(2) includes proceedings under the regulations (see s 4(1)) and that proceedings instituted by a parent seeking relief under the Regulations would be proceedings “in relation to a child” for the purposes of s.69C(2).

5. We also have no difficulty with the reliance placed on s 69ZH and s 69E of the Act by the Attorney-General to establish that, subject to no contrary intention appearing in the regulations, there would be standing in the father to make an application under the Regulations in the circumstances of the present case. Accordingly, we see no necessity to further discuss s 69ZH and s 69E.

6. As to the reference in s 69C(2) to “a contrary intention” appearing, it was submitted on behalf of the Attorney-General that not only was there no contrary intention disclosed by the Regulations, but rather “to the contrary regulation 6(1) expressly provides for standing to be conferred on a person by Part VII of the Act.”

7. It seems to us that those last-mentioned submissions concerning the alleged inter-relationship between reg 6(1) and s 69C(2) may have a somewhat circular quality. But more significantly, we are of the view that a contrary intention is disclosed by the Regulations as a whole, as we will shortly explain.

8. Finally, the submissions on behalf of the Attorney-General concerning the proper interpretation of reg 6(1) sought to rebut the interpretation placed on that sub-regulation by Finn J in Panayotides (being that reg 6(1) refers to an application for relief under Part VII of the Act or under any other law in force in Australia but not including the regulations, and that therefore reg 6(1) did not protect the right of an individual, other than a Central Authority, to apply for relief under the Regulations).

9. It was submitted that the construction advanced by the Attorney-General should be preferred to that adopted by Finn J for the reasons that:

   ·     it is consistent with the natural reading of regulation 6(1);

   ·     it is consistent with the stated intention that regulation 6(1) re-enact former regulation 14; and

   ·     if regulation 6(1) is not construed in the manner submitted by the Attorney-General, regulation 6(2) would appear to be redundant.

10. In summary therefore the Attorney-General’s position, as we understand it, is that whereas reg 6(2) is concerned to preserve the rights of courts to make orders under laws other than the regulations for the return of children to overseas countries (which is a proposition we accept), reg 6(1) is concerned with a right, conferred by Part VII (or any other law) as to standing in relation to an application under the Regulations (and also the powers of the Court in relation to such an application).

Conclusion in relation to reg 6(1)

1. We indicated earlier that we did not accept the submission made on behalf of the Attorney-General that for the purposes of s 69C(2) “no contrary intention appears” in the Regulations such as would negate the proposition that a person (other than a Central Authority) has standing to apply for an order for the return of a child to a foreign country and that a court may make such an order on the application of such an order.

2. We consider that it can equally well be argued that a contrary intention does exist because there is nothing in the Regulations which expressly confers on any person other than a Central Authority the right to apply for an order for the return of a child to a foreign country and, even more importantly, that there is no express conferral of jurisdiction on a court to make such an order on the application of any person other than a Central Authority.

3. While we recognise that any construction of the regulations must endeavour to give effect to the terms of the Convention including Article 29 (which seeks to preserve the rights of individuals to apply for relief under the Convention), we are nevertheless of the view that given the grave implications of any order for the return of a child to an overseas country, that any conferral of jurisdiction on a court to make such an order on the application of a person other than a Central Authority would need to be clearly spelt out in the Regulations. This has not been done.

4. Moreover the provisions in the Regulations which confer jurisdiction on the Court to make orders for the return of a child to an overseas country (being regs 15 and 16) refer only to orders being made on an application made under reg 14, which in turn provides only for applications by a Central Authority.

5. Moreover, the fact that reg 20 casts obligations on the Central Authority to make the necessary arrangements for the return of the child following the making of an order for return under reg 16 is a further indication, in our view, that the Regulations only envisage applications for such orders being made by a Central Authority and not by an individual.

6. The lack of an express conferral of jurisdiction on the Court to make orders under the Regulations for the return of a child on the application of a person (other than a Central Authority) would seem to be adverted to in the following footnote (No. 18) appearing in the written submission on behalf of the Attorney-General:

   19. [An application by a person other than a Central Authority] would, it is submitted, also be made under regulation 14. This would be generally consistent with the drafting of the balance of the Regulations – for example, regulations 15 and 16 provide for a court to make certain orders in relation to an application made under regulation 14. As with the Regulations prior to their 1995 amendment (see paragraph 4 above), however, to give full effect to regulation 6(1) and s.69C of the Act it may be necessary to read some other provisions in the Regulations (in addition to regulation 14) as referring to an application by the Central Authority or otherwise (see eg regulations 15(4), 28 and 30).

7. As we have already indicated above, we do not consider that a conferral of jurisdiction on a court to make an order for the return of a child to an overseas country on the application of a person other than a Central Authority can simply be implied or read in, as the Attorney-General’s submissions appear to suggest. Accordingly, we do not regard reg 6(1) as operating to give an individual (other that a Central Authority) standing to apply under the Regulations for an order for the return of a child to an overseas country whatever may have been the intention of its drafter.

Should the majority decision in Panayotides be binding on this Court?

1. It was submitted on behalf of the appellant child and the second respondent mother that what was said by Fogarty and Baker JJ in Panayotides concerning an individual’s right to apply for an order under the regulations for the return of the child was obiter only.  As minds may differ on whether or not that is so, we think that the better course is for us to assume that this is not so, and to proceed to determine whether we should over-rule the majority in Panayotides on this question of an individual’s right to apply under the Regulations for an order for the return of a child to an overseas country.

2. The position in relation to this Full Court over-ruling a decision of an earlier Full Court was explained by Fogarty J in Farnell and Farnell (1996) FLC 92-681 at 83,071:

   … the question arises as to the appropriateness of this Court overruling a prior decision. This issue was extensively discussed by the High Court in Nguyen and Nguyen (1989-90) 169 CLR 245, esp. at 268-269. The Court pointed out that the extent to which an intermediate Court of Appeal “regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself”. In my view, there is no doubt that the Full Court of this Court may in an appropriate case overrule a previous decision. Having regard to the nature of the jurisdiction, it would be undesirable if that were not the case. As early in the Court's history as Nowland and Nowland (1977) FLC ¶90-236 Asche J at 76,276 considered that the Court should be “allowed at least for the present, the occasional locus poenitentiae” and there have been occasions since that time when the Court has done so. Nevertheless, as the High Court pointed out in Nguyen's case, departure from an earlier decision by the intermediate Court of Appeal should be done “cautiously and only when compelled to the conclusion that the earlier decision is wrong” and where it posed “no real threat to the doctrine of precedent and the predictability of the law”. Where the previous decision relates to a matter of practice which has been uniformly acted upon in the intervening period so as to develop expectations that that will continue to be the case, it may be unsettling to do so.

3. See also the decisions of the Full Court in Ivanovic and Ivanovic (1996) FLC 92-689 and Bryant and Bryant (1996) FLC 92-690 where the above statement by Fogarty J was relied on.

4. In seeking to persuade us that we should not over-rule the majority decision in Panayotides, Senior Counsel for the Attorney-General has drawn our attention to the following factors as factors to which the High Court has regard when determining whether to reconsider one of its own previous decisions being:

   7.1Has the earlier decision achieved a useful result, or has it led to considerable inconvenience?

   …

   7.2Has the earlier decision been independently acted on in a matter which militated against reconsideration?

5. In response to these considerations, it was submitted on behalf of the Attorney-General:

   7.1…

   In the present case the decision of the majority in Panayotides achieved a very useful result. The decision confirmed that the Regulations applied as they were intended to apply, in a manner consistent with the judicially-endorsed approach of the pre-amendment Regulations, and so as to give effect to Article 29 of the Convention. It has not led to any inconvenience.

   7.2…

   In the present case the decision of the majority in Panayotides has been relied upon for eight years. It as been relied on by non-abducting parents in bringing applications under the Regulations and by the courts in recognising the standing of such parents. (See for example Kasilingham v Ramachandra (unreported, No. SY7028 of 1997, Cohen J), Muego v Muego (unreported, No. SY3458 of 1998, O’Ryan J), and the application by the father in the present case.  See also Dickey, Child Abduction in Family Law (1999, CCH Australia Ltd) at [302], [601].) Furthermore the decision did not give rise to any occasion for the Executive Government to consider amending the Regulations to continue to provide for applications by non-abducting parents so as to give effect to Article 29.

6. We do not consider that issues of convenience or previous practice can be relied on to answer the problem which we see posed by the lack of a conferral of jurisdiction on the court to make orders for the return of a child to an overseas county on the application of a person other than a Central Authority (in circumstances where the jurisdiction to make such an order has been expressly conferred where the application for the order is made by a Central Authority).

7. We also observe that in the single Judge decisions to which we have been referred, no issue appears to have been raised regarding the standing of the individual applicant, although in this context we again draw attention to the concerns expressed by Kay J in Barraclough and we would observe that his Honour was there faced only with the former reg 14 which contained a considerably clearer statement of the right of an individual (other than a Central Authority) to seek an order under the Regulations for the return of a child, than is said to exist in present reg 6(1).

8. Unlike the Full Court in Panayotides where the father appeared on his own behalf and there was no intervention by the Attorney-General or even a Central Authority, this Full Court has had the benefit of very comprehensive written and oral submissions from the legal representatives of three private individuals and, importantly, from Senior Counsel for the Commonwealth Attorney-General. 

9. All those submissions have enabled us to give informed consideration to the question of the standing of an individual, other than a Central Authority, to apply for and to obtain under the Regulations an order for the return of a child to an overseas country.

10. With the benefit of those submissions, and paying close attention to the principles in Nguyen, we have concluded that the majority decision in Panayotides should not be followed.

11. Accordingly, we also conclude that in the present case the father had no standing to bring the application for the order for the return of the child to the United States, and that the orders made on his application, both by the Judicial Registrar and Coleman J could not validly be made.  The appeal against those orders should be allowed and the orders set aside. 

Application by the Central Authority in the event the father has no standing

1. As we mentioned earlier the Central Authority sought, in the event that we were to hold that the father had no standing, orders whereby it would be substituted for the father and that all steps previously taken by the father be deemed to have been taken by the Central Authority.  The precise terms of the orders sought by the Central Authority were as follows:

   2.The Commonwealth Central Authority be substituted for the Applicant/Father…in proceedings (P)PAF 1647 of 2004 determined by Judicial Registrar Halligan on 6 May 2004.

   3.All steps previously taken by the Applicant Father…in the proceedings before Judicial Registrar Halligan be deemed to be steps taken by the Commonwealth Central Authority in those proceedings.

   4.The Commonwealth Central Authority be substituted for the First Respondent/Father…in the Review Applications brought by [A] and [the Mother] in proceedings PAF 1647 of 2004 and determined by Coleman J on 10 June 2004.

   5.All steps previously taken by the First Respondent/Father…in the proceedings before Coleman J be deemed to be steps taken by the Commonwealth Central Authority in those proceedings.

2. We understood that it was envisaged that such orders would mean that orders previously made in the favour of the father would now be deemed to be made in favour of the Central Authority.

3. We indicated to Senior Counsel for the Central Authority at the hearing of the appeal that we had considerable reservations about the appropriateness of such orders, and in any event the other parties to the proceedings would have to be given the opportunity to respond to the application.

4. We propose, therefore, to include in our orders directions that within 14 days of the delivery of the judgment, the Central Authority should file with the Eastern Regional Appeals Registrar and serve on the other parties either written submissions in support of the application or written notice that it does not propose to pursue the application.  In the event that the Central Authority proposes to pursue the application then the other parties will have 14 days to respond, with the Central Authority having a further 14 days to reply.

5. We do not purpose to set aside the existing orders pending the receipt of further submissions or notice that the Central Authority does not propose to pursue the application.

The remaining grounds of appeal

1. The application for orders under Part VII

1. On 26 May 2004, when the child, A, filed her application to intervene in the proceedings between the father and the mother concerning the Regulations, the child also filed an application seeking the following final orders (which would be orders made under part VII of the Act):

   1.        That the Applicant child reside with the Wife in these proceedings;

   2.That the Husband and the Wife be restrained from removing the Applicant child from the Commowealth (sic) of Australia without an order of this Honourable Court being first obtained;

   3.That the Applicant child have liberal contact each weekend with and in the immediate presence of her brother [J] born 15th July 1987;

   4.That the Applicant child have liberal contact each day with and in the presence of her sister [S] born 23rd July 2001;

2. Grounds 4, 5 and 6 assert error on the part of Coleman J in considering the application for review of the Judicial Registrar’s orders (made under the Regulations) prior to, and not in conjunction with, his consideration of the application by the appellant child for orders under Part VII of the Act. It is further asserted his Honour “erred in failing to have paramount consideration for the best interests of the appellant as required by section 65E of the Family Law Act.”

3. The difficulty facing the appellant in relation to these grounds is that it is clear from the following exchange in the transcript of proceedings before Judicial Registrar Halligan on 27 May 2004 that he referred to Coleman J’s list on that day only the review application by A, and that he refused to refer the application for orders under Part VII (at Transcript p20):

   J REGISTRAR: So so far as the Part VII aspect of the matter is concerned, are you pressing it?

   MR LEVET [Counsel for A]: No, I would seek that that be reserved to before his Honour this afternoon.

   J REGISTRAR: Well that isn’t going to his Honour this afternoon, unless I make a decision that somebody seeks to have reviewed.  All I am sending to his Honour at the moment is the extant review.

4. As was pointed out in the submissions on behalf of the father, there was no application to review that decision by the Judicial Registrar.

5. When the matter then came before Coleman J on the afternoon of 27 May 2004 the following exchange occurred (Transcript at p1-2):

   MR LEVET [Counsel for A]: Thank you, your Honour.  Your Honour has before you a form 1 application for final orders, a form 2 application ---

   HIS HONOUR: I don’t think I do, actually.  I think all I have is a review.  Don’t I?

   MR LEVET: No, you don’t.  Well, you shouldn’t have.

   HIS HONOUR: All right, well let us assume I do.  There is no suggestion that I deal with anything else until I deal with the review of the Hague Convention application, is there?

   MR LEVET: From my part yes, in as much as we say that they are, as it were, a hybrid creature, and that they are inextricably intertwined.

   HIS HONOUR: I don’t agree with you on that.  It is quite clear we deal with the Hague Convention matter first, and whether we deal with anything else or not depends on the outcome of that application. Unless you can point me to a higher authority to the contrary.  I mean, that is the whole point of Hague Convention applications, as the High Court has made crystal clear.  We decide whether questions should be determined by this Court or a Court in the United States.  If it is a Court in the United States, well then that is the end of it, isn’t it?

   MR LEVET: Well certainly it is the end of it inter partes, as between the mother and the father.  In my respectful submission it wouldn’t necessarily be the end of it, as in respect of part 7 relief sought by a sibling.

   HIS HONOUR: Well we will come to that if and when we get to it.  But what is your client’s standing, in any event? What, is she making an application, is she?

1. We have not been taken to any other passage in the transcript where his Honour gave any indication that he regarded the application for orders under Part VII as being before him.

2. But even if we are mistaken in this regard, we consider that his Honour was correct in ruling that the application relating to the Hague Convention should be determined ahead of any application under Part VII.  This has been the long-standing approach of this Court in proceedings between the parents of an abducted child.  We do not see that the fact that the half-sibling of the abducted child is a party to the proceedings should make any difference to this long-standing approach. 

1. The operation of reg 16(3)(d)

1. Regulation 16(3)(d) provides that a court may refuse to make an order for the return of a child:

   … if a person opposing return establishes that:

   …

   (d)the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

2. Before Coleman J the appellant child, A, in opposing the making of an order for the return of the child, S, to the United States, relied on reg 16(3)(d).  As his Honour recorded in paragraph 69 of his judgment, it was submitted on behalf of A’s Counsel with respect to reg 16(3)(d) that:

   …such fundamental principles of Australia include the right of children to know and be cared for by both parents, and the right of children to have contact with other people significant to their care, welfare and development. (paragraph 11)

3. His Honour ultimately concluded that A had failed to establish the ground provided in reg 16(3)(d).  In the course of his judgment when dealing with A’s case, his Honour said:

   65.… it must not be forgotten that successfully invoking Regulation 16(3)(d) involves a consideration of [S’s] rights. If [S’s] repatriation to the United States had potentially adverse consequences for [A’s] “rights”, but not for the rights of [S] within the scope of Regulation 16(3)(d), the regulation could not be successfully invoked by [A] in proceedings relating to [S].

4. The challenge before us (as contained in ground 7) was that his Honour had erroneously limited the discretion by “referring solely to the human rights of the child to be removed, to the exclusion of the rights of the appellant.”

5. Little was put to us by way of oral submission in support of this ground.  In these circumstances, we consider that the fairest course to the appellant in the interests of ensuring that her position is understood is to set out what was stated in the written submissions on her behalf:

   16.… With the greatest of respect to His Honour, a plain English reading of the section does not produce the constraint for which His Honour contends; indeed, neither are there, so far as is known, any decided cases which would give comfort to His Honour’s position. Rather, it is submitted that the true construction of the section would embrace any situation where the return of [S] would not be permitted by fundamental principles of Australia relating to the protection of human rights and fundamental freedoms, not merely those rights existing for the benefit of [S].

   17.His Honour in his judgment quoted McCall’s case to the effect that Regulation 16(3)(d) has been intended to be “a provision that could be invoked on the rare occasion that the return of a child would utterly shock the conscience of the court or offend all notions of due process”.  With respect, this is just such a case.  It is not necessarily the return of [S] per se that would so shock or offend, but her return in circumstances where a juvenile sibling who had sought to invoke the parens patriae jurisdiction of the court did not have her best interests given any consideration whatever as part of the process of deciding on [S’s] return. That, with respect, is something which should shock the conscience of the court.  It is something which does offend all notion of due process.

   18.Regulations 16(3)(b) and (c) are quite properly included in the Regulations as providing discretionary remedies which provide a measure of protection for the best interests of a child who is the subject of Convention application. They do not purport to extent to the interests of a juvenile sibling who falls outside the ambit of the application. It is quite proper that a child should not be returned to another jurisdiction if to do so would be to expose him or her to physical or psychological harm or place him or her in an intolerable situation; it is unthinkable however that a court would fail to consider the possibility of a repatriation under the Regulations giving rise to a like risk to another juvenile who had sought the court’s protection. In this case, the Appellant/Intervener has given evidence in her affidavit that she is in effect as a result of the Repatriation order under the Regulations forced to choose between living with her father and brother in Australia on the one hand and her mother and her sister in the United States on the other. Such a choice may well be argued as placing a juvenile in an intolerable situation. That a court would refuse to consider, in ordering [S’s] return, evidence of such an intolerable situation being thereby created for [A] would, it is submitted, be capable of attracting the operation of the discretion envisaged in Regulation 16(3)(d).

   19.It is submitted that whilst the relief envisaged by Regulation 16(3)(d) is discretionary, the failure of His Honour to properly identify the parameters of such discretion led to the purported exercise of the discretion miscarrying. (Footnotes omitted.)

6. The above submissions do not, with respect, assist in determining the scope of reg 16(3)(d) which is the matter to which the present complaint is addressed.  The most authoritative statement available to us concerning the operation of reg 16(3)(d) is that made by Kirby J in DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) FLC 93-081, which Coleman J quoted in his judgment and which is as follows:

   The inclusion of this latter regulation was part of the compromise reflected in the drafting of the Convention designed to avoid broad grounds of exception based on public policy and to confine exceptions to a limited number expressly enumerated. Regulation 16(3)(d) … would apply where the person opposing the order established that, in the country of habitual residence, matters regarded in Australia as fundamental to the protection of human rights and freedoms would not be observed were the child returned. Amongst other things, this would include a case where it was demonstrated that, notwithstanding formal adherence to the Convention, the authorities and officials of the country of habitual residence were corrupt, that due process would be denied to the child or to the custodial parent or that, otherwise, basic human rights would not be respected. (at 88,399)

7. It will be seen that Kirby J regarded reg 16(3)(d) as being concerned with the human rights of the child to be returned, or of his or her custodial parent, in the country to which the child is to be returned.  As presently advised, we would respectfully agree with Kirby J, and thus conclude that Coleman J did not erroneously constrain the discretion in the statement he made in paragraph 65 of his judgment which is the subject of the appellant’s challenge before us.

Orders

1. That the appeal be allowed.

2. That within 14 days of the date of these orders the Commonwealth Central Authority file with the Eastern Regional Appeals Registrar and serve on the appellant child, the first respondent father and the second respondent mother either:

   (a)written submissions in support of the application of the Commonwealth Central Authority filed in Court on 20 July 2004; or

   (b)written notice that the Commonwealth Central Authority is not pursuing that application.

3. That, in the event that the Commonwealth Central Authority files and serves written submissions pursuant to order 2(a) above, within a further 14 days the appellant child, the first respondent father and the second respondent mother be at liberty to file with the Eastern Regional Appeals Registrar and serve upon the Commonwealth Central Authority written submissions in response.

4. That within a further 14 days of the date of service of any written submissions on behalf of the appellant child, or of the first respondent father or of the second respondent mother, the Commonwealth Central Authority be at liberty to file with the Eastern Regional Appeals Registrar and serve upon the appellant child, the first respondent father and the second respondent mother written submissions in reply. 

I certify that the preceding 106 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court

Associate