Del v Director-General, NSW Department of Community Services

[1996] HCATrans 205

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S40 of 1996

B e t w e e n -

DE L

Applicant

and

DIRECTOR-GENERAL, NEW SOUTH WALES DEPARTMENT OF COMMUNITY SERVICES

First Respondent
(Central Authority)

DE L

Second Respondent
(Husband)

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 5 AUGUST 1996, AT 9.43 AM

Copyright in the High Court of Australia

MR G.C. LINDSAY, QC:   May it please the Court, I appear for the applicant, with MS J.P.H. STEVENSON and MR R.D. WILSON.  (instructed by Stacks - The Law Firm with Goudkamp Mahony)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:  I appear with my learned friend, MR M.G. O’BRIEN, for the respondent.  (instructed by I.V. Knight, Crown Solicitor for the State of New South Wales)

MR LINDSAY:   Your Honours, on two principal questions involved in these proceedings there is a fundamental conflict between the Family Court of Australia and the English Court of Appeal and within the Family Court of Australia itself. Those two questions are these: firstly, the proper construction of the word “objects” in regulation 16(3)(c) of the Family Law (Child Abduction Convention) Regulations which gives effect to Article 13 of the Hague Convention on Child Abduction and, secondly, the question whether a court exercising jurisdiction under the Hague Convention has an obligation, independent of any party, to provide children with a proper opportunity to express their views.

GAUDRON J:   Is that second matter one that really arises out of the convention so much as out of ordinary principles of procedural fairness?

MR LINDSAY:   We would put it on both bases, your Honour.  We would say that it arises in both contexts.  The Chief Justice below, although in the minority, founded it on, essentially, both and also the United Nations Convention on the Rights of Children.  So, we would put it on each of those bases.

GUMMOW J:   This report that was sought and obtained from the counsellor, was that initiated pursuant to section 62(a) of the Act?

MR LINDSAY:   Yes, it was, and in many ways that report lies at the heart of the difficulties we have here because the report was ordered by the trial judge against the background of evidence from the wife involving statements of objection on the part of the children.  So, we have the wife’s statement as to what the children have said.  The trial judge orders a report.  A report, in due course, is produced and the Full Court, ultimately, decides that the report was misdirected in so far as it referred to the wishes of the children as distinct from objections on the part of the children.

GAUDRON J:   Apart from the report, was there any mechanism for ascertaining the objections or otherwise of the children?

MR LINDSAY:   In practical terms, no, because it was held by the trial judge and expressly by the Chief Justice that the views of a parent in a situation like this, standing alone, would be of little weight.  So that in practical terms the court report was likely to be determinative so far as evidence is concerned.  That is the dilemma that we face.

Underlying the difference between the majority and the minority below are really policy differences or at least differences as to the relevance of policy.  The majority in the court below took the view that policy considerations required a narrow construction and operation for the various provisions in regulation 16.  The Chief Justice took the view that although questions of policy were important, those considerations of policy could be accommodated with a less narrow view of the regulation and they could be accommodated consistently with ensuring that the children have a proper opportunity to express their views.

Now, the focus for the differences between members of the Family Court is the decision of the Court of Appeal in S v S and your Honours may see that aspect of the case from the bundle of authorities that was delivered on Friday.  I would ask your Honours to turn, in the bundle, to page 68, and specifically at page 499 of the report between E and G your Honours will see the basic difference on the construction of the regulation.  Justice Bracewell in Re R had expressed the view recorded at point F that:

The word “objects” -

in the Hague Convention -

imports a strength of feeling which goes far beyond the usual ascertainment of the wishes of the child in a custody dispute.

That view was followed by the majority but it was specifically overruled in S v S at G and the Court of Appeal took the view that the proper construction of Article 13, our regulation 16, required that regard be had to its literal construction rather than the addition of a gloss about a strength of feeling which goes far beyond the usual ascertainment of the wishes of a child in a custody dispute.  That is the first issue that arises.

The form of the report obtained from the counsellor, even in the view of the Chief Justice, was misdirected insofar as it went to the question of wishes as distinct from objection.  That is the first issue that arises.

The second issue that arises about the obligation on the part of the court to ensure that children have a proper opportunity to be heard can be illustrated by reference to S v S at page 69 of the bundle and at page 500 of the report.  At page 500, under A, subparagraph (a), there is a reference to the nature of the questions involved with the regulation and then, in subparagraphs (b) and (c) there is a reference to the obligation of a judge to find out why a child objects to being returned.

GUMMOW J:   Now, these regulations were made under power conferred by section 111B, were they?

MR LINDSAY:   Correct.

GUMMOW J:   And the jurisdiction of the court was something that flowed from section 39, is that right?

MR LINDSAY:   That is right, yes.

GUMMOW J:   Looking at the regulation-making power and the regulations then in the framework of the Act, as one must, does one have to look at 64 - the general provisions of section 64 as to custody proceedings?

MR LINDSAY:   The view taken by the Family Court, and fairly consistently, is that - - -

GUMMOW J:   In particular, (1)(a).

MR LINDSAY:   That raises a question of paramountcy principle and we would contend
, at the very least, the rights of children are a paramount consideration if they are not the paramount consideration.  The view taken by the Family Court, fairly consistently to date, has been that section 64 has no direct application.

BRENNAN CJ:   If that is so, it must be by reason of the regulations and the question then arises as to whether the regulations are within power.

MR LINDSAY:   Yes.  Those questions certainly may arise but even if one accepts the proposition that it is within power, one does not, in our submission, get to the point of totally disregarding the views of the children which, in our submission, is what occurred here.

BRENNAN CJ:   So, that argument is based on a regulation.

MR LINDSAY:   Yes, that is right.

BRENNAN CJ:   But the proposition that it is within power must be on the footing that the regulation-making power has been exercised subject to the Act.

MR LINDSAY:   Yes.  Your Honour, in that case, that merely strengthens, in our submission, the reasons for the grant of special leave.  There are, obviously, fundamental questions about the way this jurisdiction operates and that is one of them. 

Your Honours, in the context of S v S, the express obligation on the part of the Court to ascertain the views of children was taken up by the Chief Justice below by reference to the United Nations Convention on the Right of Children and that is the second question that arises.  Your Honours can see, notwithstanding the decision by majority - - -

BRENNAN CJ:   We need not trouble you any longer, Mr Lindsay.  Mr Solicitor.

MR MASON:   Your Honour, the question of the validity of the regulations is certainly not before the Court in this application.  As my friend has said, the Family Court has consistently taken a view that the welfare of the child is not to be seen in, as it were, a specific context but in the more general context of the purpose of the Hague Convention.

BRENNAN CJ:   That is the problem.

MR MASON:   It is not necessarily the problem.  It is the solution, in my submission, in that the purpose of the Hague Convention is that between countries that are parties to the convention there is what one might call a statutory presumption of equality and that what the convention does - - -

BRENNAN CJ:   Statutory?

MR MASON:   Yes.  Perhaps, statutory, in terms of what the treaty - a treaty presumption of equality between jurisdictions.

BRENNAN CJ:   That is a different matter, is it not?

MR MASON:   It is but I will seek to develop why it carries through into the statute.  The purpose of the convention is to discourage international abduction and to provide that disputes as to custody will be determined in a single forum and that a party, by abducting a child, will not get some presumed advantage including the advantages of delay and tactical and procedural advantages.

The convention seeks to operate by returning almost summarily the child to the forum of usual residence, there for the custody disputes to be litigated.  In one sense, if the convention operates as it is intended to, there is no displacement of the child’s welfare because the child’s welfare will be determined according to the custody rules of the forum of the usual place of residence of the child.

BRENNAN CJ:   That may happen.  If, for example, a child has been abducted from America, lands at Mascot airport, it might be appropriate to send the child and the abducting parent straight back to America and there to have the question of welfare determined.  That is not the present case.

MR MASON:   Your Honour, I do not have the text of the Act here but as was pointed out in argument, the regulations were passed under a specific power.  I think it is 111 - - -

GUMMOW J:   Section 111B.

MR MASON:   Thank you, and that expressly refers to the Hague Convention and would, under ordinary canons of interpretation, bring with it the proper scope of the purposes of that convention.  It is a specific power to pass the regulations and to pass regulations designed to give effect to the purpose of the convention.  So, it is not a question, in my submission, of applying generalia specialibus but the proper maxim is to give effect to the purpose of the specific power that has been engaged.  That purpose is the whole rationale of the Hague Convention which I would be repeating myself to state again.

So, our first point is firmly to say that this point was never raised.  It would, in my submission, be unfair for the matter to be, as it were, picked up.  I know it would not be unprecedented but it would still, in my submission, be unfair for a point that has never been taken to be raised.

GAUDRON J:   Even if the validity is not raised, questions of construction necessarily arise.

MR MASON:   Yes, they do.

GAUDRON J:   In relation to the paramountcy principle.  Assuming validity, there is still a necessity to have regard to - - -

MR MASON:   That almost begs the question, in my submission.

GAUDRON J:   Yes.  You do it one way or the other.

MR MASON:   Not necessarily.  If one looks at the regulations as containing within their four corners the scope of the judicial power to engage the return order and to have a discretion to disengage it, they cover the field; they are capable of interpretation by reference to the international jurisprudence relating to this convention and to the purpose of the convention. 

I am not arguing that the position of the children gets excluded but I do submit that the regulation is the way in which the court views the position of the children, firstly, by saying, in effect, there is an evidentiary onus for the abducting parent to adduce evidence as to an objection and, secondly, by conferring on the court a discretion - not a duty - a discretion in the light of a section 16(3) factor being made out to refuse return.

In the present case, the court was unanimous in the view that the evidence did not rise to engage the discretion and one of the judges - - -

GUMMOW J:   That was because section 62A had miscarried to the prejudice of Mr Lindsay’s client.

MR MASON:   No, I do not agree with that, with respect, your Honour.  At page 38 is recorded the order that was made by the court for the obtaining of the family counsellor’s report.  That was the order sought by Mr Lindsay’s client and that was the order made without any objection.  Not only was the order made without objection but the report was then tendered and that was the evidence upon which the matter proceeded at first instance.  At page 41 where the regulation is set out your Honours see regulation 16(3):

A court may refuse to make an order.....if a person opposing return establishes that -

(a), (b) and (c).  Clearly, these regulations operate in the context of an adversary system; not an absolute adversary system but that is the context in which they function.

GAUDRON J:   But, nonetheless, the mother’s evidence was sufficient to raise an objection.  The report became significant simply because the mother’s evidence was thought, standing alone, not to be of great persuasive weight but if anything - I mean, her evidence went to an objection.

MR MASON:   But her evidence did not establish - it may be granted that she invoked 16(3)(c) but the question was did she establish - - -

GAUDRON J:   Unless rejected, her evidence was though that the children objected.

MR MASON:   Not according to the interpretation that the Full Court unanimously put upon it, that the children’s evidence never rose beyond a statement of a wish that they wanted to stay with their mother.

BRENNAN CJ:   Mr Solicitor, either 64(1)(a) is consistent with the discretion contained in the convention regulations or it is not.  If it is not, then there is one important question for this Court to determine.  If it is, then the question of what is meant by objection must be looked at in the light of consistency with 64(1)(a) and that is an important question, is it not?

MR MASON:   If it is - yes, the second proposition would follow from the first and it is the first that I am primarily denying is engaged.

BRENNAN CJ:   The dilemma is complete, is it not?

MR MASON:   Yes, but I do also say that on the facts of this case the court was unanimously of the view that the evidence did not rise to 16(3).  Now, I perceive your Honour is saying to me if the welfare principle, in form 16(3), maybe things are looked at differently but I certainly would challenge that.

BRENNAN CJ:   Must they not be looked at in the light of the question that Justice Gaudron first posed, namely, apart altogether from the convention and the regulations, is there not a natural justice requirement that the views of the children should be entertained?

MR MASON:   The views of the children were sought and were put before the court.  What we disagree about is whether the children should have been asked leading questions by the counsellor or whether the order that was made by the court with the concurrence of all parties that their wishes be ascertained was the appropriate way to put it.  Indeed, I put it higher than that.  The real issue is whether the Full Court’s discretion miscarried.  Two of the three justices said, the court being unanimous, that the evidence did not make out an objection.  They then said, “Well, should we do - - -”

GAUDRON J:   If you put it in that way the order dependent on visas and so forth is a nonsense.  If you put it that way, the children have to go back regardless of any visa, whether it was granted or not.

MR MASON:   No, the visa system did not intrude at that point of the exercise.

GAUDRON J:   No, but the order is made dependent on the - and the order was that it would go back for further consideration if a visa could not be obtained.

MR MASON:   And a visa was not obtained because the mother applied for the wrong visa.

GAUDRON J:   Yes, but the point I am putting to you is if you start looking at the discretion which you are now inviting the Court to do, you do run immediately into problems about the exercise of the discretion being dependent on a visa because the order was that it would go back for further consideration if a visa was not forthcoming.

MR MASON:   We are talking, with respect, of different discretions.  I am talking about the discretion as to whether or not 16(3)(a) would be applied, assuming there was evidence of the child’s objection.  The way the convention operates is that it is not dependent upon an accompanying parent.

GAUDRON J:   Exactly, and the point I am making to you is if you say that the evidence was not sufficient then that in itself is one proposition but to say it is made good by the absence of a visa is a non sequitur.

MR MASON:   I am not saying it is made good by the absence - - -

GAUDRON J:   No, but that is what has happened in this case.

MR MASON:   With respect, I do not agree that is a proper interpretation of the judgment.

GAUDRON J:   Of the order.

MR MASON:   Well, of the order or the judgment.  I would submit to your Honour that it is relevant that there was power in the Full Court to receive additional evidence at its discretion.  Now, I realise we a descending into the merits of the issue but I do submit that one has a situation where all relevant parties have had a full opportunity to put their case where the discretion was exercised, having regard to primarily the delay factor and if it was correctly exercised then one does not move back to these further order issues.

Can I say, your Honours, that the question of delay is a very serious one in this case.  The purpose of the Hague Convention operates in an international setting.  As your Honours know, the boot can be very much on the other foot in an international abduction situation.  If the scheme is interpreted in such a way or if the judicial processes operate in such a way that the abducting party ends up getting the benefit of his or her own wrong then the whole scheme will have miscarried and the fundamental purpose of the Hague Convention - - -

GUMMOW J:   Is this a ground for not granting special leave or a ground that would arise if leave were granted?

MR MASON:   It is both.

GUMMOW J:   On construction.

MR MASON:   It is both, because if - - -

GUMMOW J:   Then one would never be able to determine these important questions at ultimate appellate level.

MR MASON:   No, not necessarily, but this is a case where the applicant has so many hurdles to overcome where this case would not be a suitable vehicle, on ordinary principles, and where the frustrating delay, if I can put it that way, bites particularly hard and does so in an international context that it would be appropriate for this Court, if otherwise minded to entertain either the new ground or the older grounds, to pause before doing so.  It would also obviously be a matter, if the Court granted special leave, to grant it in the most extreme urgency in terms of the hearing of any appeal. 

This taking occurred in February of last year in the teeth of a court order made in the American courts and it really emerges that the invocation of the general welfare principle and the invocation of the problem about visas, when properly analysed, amounts to the abducting parent really seeking to take advantage of her own wrong.  Whilst I do not argue that the welfare of the children is an irrelevant factor, I do submit that one has to look at this in a realistic context and that context includes the fact that if the convention works, the mother is in a position to defend her custody rights in the appropriate forum that the convention intends it should be so.

BRENNAN CJ:   That argument might have greater strength if there were not the initial delay, is that not right, Mr Solicitor?  In other words, some of the delay has been due to the processes which led, first, to the application being made to the Family Court .

MR MASON:   Yes, that is correct but not the greater part.  I must correct something I said.  The court order - - -

GUMMOW J:   It was later.

MR MASON:    - - - was later.  The breach of the custody rights occurred because of the joint custody that mother and father had under American or Virginian law.  I misled the Court there.

BRENNAN CJ:   There will be a grant of special leave in this case.  The question arises as to what is to happen to order 5 of the orders made by the Full Court of the Family Court.

MR LINDSAY:   Your Honours, we would seek a continuation of the stay that was ordered by Justice Gummow on 4 April.

BRENNAN CJ:   Do you have anything to say about that, Mr Solicitor?

MR MASON:   We would not oppose the continuation.  We would ask that the appellant be put on terms to amend the notice of appeal if it is to be amended in accordance with what has passed between the Court and the appellant today and that the appellant be put on terms to prepare the appeal books with every dispatch.

BRENNAN CJ:   Yes.  Is that acceptable, Mr Lindsay?

MR LINDSAY:   It is, your Honour.

BRENNAN CJ:   Mr Lindsay, this is a case which, for the reasons that the Solicitor-General has given, is needful of as much expedition as the Court can give it.  Now, attempts will be made to have it put into the September sittings.  It seems impossible to get it in an earlier stage, but that will require, if need be, abbreviations of time for the preparation of appeal books or whatever.  Notification will be given to you as soon as possible, by which I mean within a day or so, as to whether space can be found for it in the September sittings.  Do we have your undertaking that, if need be, your client would consent to any abbreviations of time in order to have it ready for that sittings?

MR LINDSAY:   I do not anticipate any problems with that but given that it is an undertaking, might I just - - -

BRENNAN CJ:   Yes.

MR LINDSAY:   There is no problem with that undertaking.  It is given.

BRENNAN CJ:   Yes, very well.  If it is necessary to make any order in that direction, it can be a matter of discussion between yourself and the Solicitor or the respective solicitors in conjunction with the Deputy Registrar in order to ensure that the documents and written submissions are ready in time.  It would be helpful to have the written submissions, on the part of the applicant, one week beforehand and, on the part of the respondents, at least three days before the commencement of that sittings.

There will be an extension of the stay until the disposition of this matter by the Full Court.

MR MASON:   I am not sure whether you formally granted the application but I assume - - -

BRENNAN CJ:   The application is granted, yes.

AT 10.13 AM THE MATTER WAS CONCLUDED