GLEESON CJ, GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
DP APPELLANT
AND
COMMONWEALTH CENTRAL AUTHORITY RESPONDENT
DP v Commonwealth Central Authority [2001] HCA 39 27 June 2001 D12/2000
ORDER
1. Appeal allowed with costs.
2. Set aside orders of the Full Court of the Family Court of Australia of 19 May 2000.
3. Remit the matter to the Full Court of the Family Court of Australia for further consideration consistent with the reasons for judgment of this Court.
4. The costs of the original proceedings in the Full Court of the Family Court of Australia and on remitter, and of the trial, be in the discretion of the Full Court.
On appeal from the Family Court of Australia
Representation:
R K J Meldrum QC with S M Gearin for the appellant (instructed by Legal Aid Commission of the Northern Territory)
D Grace QC with P J Baston for the respondent (instructed by Diana Elliott)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
GLEESON CJ, GAUDRON, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
JLM APPLICANT
AND
DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES RESPONDENT
JLM v Director-General NSW Department of Community Services 27 June 2001 S291/2000
ORDER
1. Application for special leave to appeal granted, and appeal treated as instituted and heard instanter and allowed with costs.
2. Set aside orders of the Full Court of the Family Court of Australia of 30 November 2000.
3. Remit the matter to the Full Court of the Family Court of Australia for further consideration consistent with the reasons for judgment of this Court.
4. The costs of the original proceedings in the Full Court of the Family Court of Australia and on remitter, and of the trial, be in the discretion of the Full Court.
On appeal from the Family Court of Australia
Representation:
D F Jackson QC with P M Friedlander for the applicant (instructed by Aubrey F Crawley & Co)
J Basten QC with A L Hill for the respondent (instructed by I V Knight, Crown Solicitor's Office, (New South Wales))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
DP v Commonwealth Central Authority
Family law – Children – Family Law (Child Abduction Convention) Regulations – Orders for return of child to country of habitual residence – Refusal to make such an order – Grave risk of exposure to physical or psychological harm to child – "narrow construction" – Onus of proof of establishing that Greece lacked appropriate facilities for child suffering Autistic Spectrum Disorder – Court erred in accepting finding of trial judge that return of child to Greece would not constitute a grave risk of physical or psychological harm to child – Question of available facilities a question of fact not assumption.
International law – Treaties – Interpretation – Child Abduction Convention – Incorporation…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
DP v Commonwealth Central Authority [2001] HCA 39
Case
[2001] HCA 39
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal concerning the return of a child to Greece under the Family Law (Child Abduction Convention) Regulations. The appellant mother sought to resist the return of her child, EL, to Greece, arguing that such a return would expose the child to a grave risk of physical or psychological harm due to his diagnosed Autistic Spectrum Disorder and the perceived lack of appropriate facilities in Greece for his treatment. The respondent was the Commonwealth Central Authority.
The central legal issue before the High Court was whether the Full Court of the Family Court of Australia had erred in its approach to the application of the exceptions to the child's return under the Convention. Specifically, the Court had to determine if the Full Court had given adequate consideration to the grave risk exception and whether it had correctly assessed the onus of proof regarding the availability of suitable facilities in Greece for a child with EL's condition. The Court also considered the proper approach to the interpretation of the Convention and the Regulations, particularly whether a "narrow construction" of exceptions was required to achieve the Convention's stated purposes.
The High Court allowed the appeal, finding that the Full Court had erred in its assessment. The Court held that the question of available facilities in Greece was a question of fact, not an assumption, and that the trial judge's finding that the child's return would not constitute a grave risk had been accepted by the Full Court without sufficient scrutiny. The Court emphasised that Australian courts must uphold the spirit and letter of the Convention and the Regulations, and that a narrow construction of exceptions was appropriate to ensure the effective operation of the international child abduction scheme.
Consequently, the High Court set aside the orders of the Full Court of the Family Court of Australia and remitted the matter back to the Full Court for further consideration in accordance with the High Court's reasons. The costs of the proceedings were to be determined by the Full Court.
Orders
Orders of the court
1. Appeal allowed with costs.
2. Set aside orders of the Full Court of the Family Court of Australia of 19 May 2000.
3. Remit the matter to the Full Court of the Family Court of Australia for further consideration consistent with the reasons for judgment of this Court.
4. The costs of the original proceedings in the Full Court of the Family Court of Australia and on remitter, and of the trial, be in the discretion of the Full Court.
Background
Background to the litigation
Special leave was not granted in JLM v Director‑General NSW Department of Community Services. The hearing of the application in that matter was referred to the Court constituted to hear the appeal in DP v Commonwealth Central Authority. Submissions were nonetheless heard from the parties in the application as on the hearing of an appeal. It is helpful to test the general propositions involved in both proceedings by reference to the differing factual situations in the two cases. It is therefore convenient to consider the second case as if it were the return of an appeal. Doing so permits this Court to ask whether, in ordering the return of each child from Australia to its country of habitual residence, the Full Court erred in the approach that it took, as for example by giving excessive weight to the primary rule and misunderstanding, or giving inadequate attention to, the exception.The facts DP v Commonwealth Central Authority: The child in this case was born in November 1994 in Greece. His father derives from the village of Nigrita. This is about 20 kilometres from Serres and 100 kilometres from Salonika, known as the second capital of Greece. The mother was born in Serres but emigrated to Australia with her parents and sister when she was aged one. When she was fourteen, the family returned to Greece. However, four years later, the mother returned to Australia. She lived in this country for a further five years, acquiring Australian citizenship during that time. In 1989, she returned to Greece, where she married the father in 1993. The couple made their home in Nigrita. Soon after the birth of their child, the relationship between the parents deteriorated. At first they lived separately under the same roof. Subsequently, in July 1998, the mother moved with the child to her parents' home in another village close by. From an early age, the child manifested distressing symptoms. He would vomit and choke during and after feeding. At eighteen months he was still unable to walk properly and had developed a habit of walking on his toes. The mother sought medical treatment for him in Nigrita, Serres and Salonika. She consulted orthopaedic, paediatric, physiotherapy, optometrical and speech therapy specialists. None of these was able to diagnose what was wrong with the child or to propose useful treatment. She was told the child would grow out of his symptoms, and that she was spoiling him. One specialist even suggested that she was "an hysterical mother". Being concerned that the community in which she lived lacked understanding, or facilities for the treatment, of her child, the mother asked the father for money to seek specialist treatment outside Greece. The father declined to provide it. After the separation of the couple, the mother, in October 1998, obtained from a court in Serres an order authorising her custody of the child and ordering the father to pay maintenance for the child and herself. In November 1998, the mother obtained an Australian passport for the child, who is a citizen by descent. Later in the same month, the father obtained an ex parte order from a court in Serres, prohibiting the mother from leaving Greece with the child. It seems that this order was not brought to the mother's notice before she departed Greece, with the child and her parents, for Darwin in the Northern Territory of Australia.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
(dissent)
GAUDRON, GUMMOW AND HAYNE JJ
KIRBY J
CALLINAN J
For these reasons, there was no error in the reasoning of the Full Court. I would therefore confirm its judgment.Conclusion and orders Unless Australian courts, including this Court, uphold the spirit and the letter of the Convention as it is rendered part of Australian law by the Regulations, a large international enterprise of great importance for the welfare of children generally will be frustrated in the case of this country. Because Australia, more than most other countries, is a land with many immigrants, derived from virtually every country on earth, well served by international air transport, it is a major user of the Convention scheme. Many mothers, fathers and children are dependent upon the effective implementation of the Convention for protection when children are the victims of international child abduction and retention. To the extent that Australian courts, including this Court, do not fulfil the expectations expressed in the rigorous language of the Convention and the Regulations, but effectively reserve custody (and residence) decisions to themselves, we should not be surprised if other countries, noting what we do, decline to extend to our courts the kind of reciprocity and mutual respect which the Convention scheme puts in place. And that, most definitely, would not, in aggregate, be in the best interests of children generally and of Australian children in particular. Of themselves, these general considerations do not decide an individual application which enlivens the exercise of the power provided by the Regulations, subject to the exceptions there stated. But they do afford the context in which that power, and those exceptions, are to be given meaning. And they explain why the "narrow construction" to the exception invoked, as favoured by each Full Court, was correct and why, in each case, it justified the conclusion reached and the orders made. This Court should not disturb those conclusions and orders. In the appeal of DP v Commonwealth Central Authority, I would order that the appeal be dismissed. In JLM v Director‑General NSW Department of Community Services, because of the importance of the matter, I would grant special leave. However, the appeal should be dismissed. In neither matter did the Central Authority seek costs[142].[142]See the Regulations, reg 7; the Convention, Art 26; cf De L v Director‑General, NSW Department of Community Services [No 2] (1997) 190 CLR 207. DP v Commonwealth Central Authority The facts Nigrita is a village in Greece of about 2500 people. There are no medical specialists in the village. It is about 20 kilometres from the nearest town of Serres and several hours by road from the nearest regional centre of Salonika. Both the father and the mother of a child, EL, were born in Greece, at Nigrita in 1962, and Serres in 1966 respectively. In 1967, the mother, the appellant, emigrated to Australia with her parents and sister. She spent the next 13 years in Australia before her family and she returned to Greece. In 1984, the appellant came back to live in Australia and remained here until 1989 when she again returned to Greece. She is an Australian citizen.
Ratio Decidendi
Legal Principle Established
Established by:
GAUDRON, GUMMOW AND HAYNE JJ,
KIRBY J,
CALLINAN J