DP v Commonwealth Central Authority D5/2000

[2000] HCATrans 707

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D5 of 2000

B e t w e e n -

DP

Applicant

and

COMMONWEALTH CENTRAL AUTHORITY

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 24 NOVEMBER 2000, AT 1.46 PM

Copyright in the High Court of Australia

MR R.K.J. MELDRUM, QC:   If the Court pleases, I appear with my learned friend, MS S.M. GEARIN, on behalf of the applicant.  (instructed by NT Legal Aid Commission)

MR P.J. BASTON:   If the Court pleases, I appear on behalf of the respondent Commonwealth Authority.  (instructed by Diana Elliott)

GUMMOW J:   Yes, Mr Meldrum.

MR MELDRUM:   We desire to be in short compass in our verbal outline.  As the written argument would indicate, we say with great respect to Justice Kirby, the Full Court has preferred Justice Kirby’s view in re De L to what was the view of the majority.

GUMMOW J:   Is that right?

MR MELDRUM:   Is it correct that they did or ‑ ‑ ‑

GUMMOW J:   Yes.

KIRBY J:   Go for your life.  Do not ‑ ‑ ‑

MR MELDRUM:   No, I am not ‑ ‑ ‑

KIRBY J:   I am not sensitive about these things any more.

MR MELDRUM:   Well, not very, perhaps, your Honour.

GUMMOW J:   Now, what happened at paragraph 153 and following.  Where do you say they went wrong there really?

MR MELDRUM:   At one ‑ ‑ ‑

GUMMOW J:   Page 112A.  Perhaps you had better look at the regulation too.

MR MELDRUM:   Yes.  It is the one page that is missing from my copy.  It is a pretty critical page.

GUMMOW J:   Yes, we have got reprinted page, the substituted page.

MR MELDRUM:   One page, but I will have my learned junior find that.  Perhaps the easiest place to find the regulation, given that we did not separately paginate our list of authorities, is in the judgment itself and it is accurately set out in that judgment and I think it is at page 47.  It is at page 47.

GUMMOW J:   It is the right version, is it?

MR MELDRUM:   It is the correct version and it reads:

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

(a)  the person, institution or other body making application for return of a child under regulation 13:

(i)  was not actually exercising rights of custody –

and then relevantly:

(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; or

(c) relates to the re De L question, the consent, and (d) that return would be in breach of “human rights and fundamental freedoms”.  Then 16(4), which we say is relevant in this:

For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

GUMMOW J:   Now, De L was about paragraph (c), was it not, or equivalent thereof?

MR MELDRUM:   It was.

GUMMOW J:   There is no decision of this Court construing paragraph (b), is there?

MR MELDRUM:   There is not.

GUMMOW J:   Is there any issue of construction about (b) that you say arises?

MR MELDRUM:   Yes, there is and we say it is the question of whether (b) needs, as the Full Court of the Family Court said, to be narrowly construed, much the same argument as was being run in re De L, or whether it ought be construed on the ordinary meaning of the words.

KIRBY J:   Unless it is narrowly construed, you undo the whole scheme of the regulation of the Treaty, do you not?

MR MELDRUM:   No.  With great respect, we would say no, your Honour, because, for a start, it requires a grave risk.

KIRBY J:   But it will be alleged in every case, every case.

MR MELDRUM:   It may be alleged but that has, with great respect, absolutely nothing to do with what the outcome of every case will be.

GUMMOW J:   Is there a finding of fact which you would have to accept as to what amounted to grave risk here or could you only make out what you say is the grave risk by upsetting some finding of fact?

MR MELDRUM:   No.  The court started from the proposition that they did not get to the question of grave risk or not because they said, accepting that the child was autistic and all that was said concerning that, nevertheless they were bound to take judicial notice of the fact that Greece would be able to care for its own citizens and that arose out of having entered into the Hague Convention, each party being a signatory to it, and we say that the presumption that arises out of other nations that are signatories to that Convention is a presumption that its legal system will be adequate for the protection of its citizens, but not that its medical system will be appropriate to this child or any other child.

KIRBY J:   But surely you cannot suggest that the Republic of Greece is not going to have people or specialists who can look after an autistic child?

MR MELDRUM:   That was precisely the evidence which we say the court ‑ ‑ ‑

KIRBY J:   What, in the whole of Greece, the whole of Greece, a member of the European Union?

MR MELDRUM:   Yes.  Can I tell your Honour in very brief compass what the evidence was?  The evidence was that this very concerned mother had taken very considerable efforts, right throughout the region where she was, consulting a paediatrician, an orthopaedic surgeon, a speech therapist, a physiotherapist, an ophthalmologist, all of them, seeking advice as to what it was from which her child suffered and being told simply, “You are too concerned.  Don’t worry.  He will grow up okay”.  Then the evidence was that – and Thessaloniki is not a tiny town.

GUMMOW J:   It is a second city of Greece.

MR MELDRUM:   It is, indeed, and she had been searching there and no one suggested, “We can’t handle it but it can be handled in Athens”, and all the evidence from the authorities which was placed before the court said they had no such facility and there was no suggestion any other facility was available.

HAYNE J:   The Full Court resolved that by saying it was for the mother to prove that there were no facilities ‑ ‑ ‑

MR MELDRUM:   In the whole of Greece.

HAYNE J:   ‑ ‑ ‑ in Greece.  What do you say about that?

MR MELDRUM:   We say that ‑ ‑ ‑

HAYNE J:   For does she not bear the burden of demonstrating 16(3)(b)’s application?

MR MELDRUM:   If she does – and for the moment accepting that she does – 16(4) puts an onus ‑ or puts a duty on, not an onus – a duty on the Central Authority to adduce evidence as to the social condition of the individual infant.  They adduced no evidence.  We adduced all that evidence and we say that we had, at the very least, moved the evidentiary burden and sufficiently established the proposition that the grave danger arose out of the absence of any such facility within the entirety of Greece.

KIRBY J:   What precisely are the words that are engaged in the subregulation?  Is it that there is a grave risk that the return of the child to Greece would expose the child to physical harm?

MR MELDRUM:   Physical harm or psychological harm.  The evidence concerning the nature of this child’s autism, the degree of severity of it, the importance of continuing with the treatment which the child was being given here and the horrendous outcome in the event that it was not continued to be given appropriate treatment.

KIRBY J:   It may be that that subparagraph attaches to your case but if you read it in isolation you would think it means grave risk because of the factors that led the mother to leave with the child, or the parent to leave with the child, namely, risks of child abuse or things of that character.

MR MELDRUM:   With the greatest of respect to your Honour, we would say had that been intended, that would have ‑ ‑ ‑

KIRBY J:   It has to be read in the context of a parent who has taken a child from a country in respect of which the Convention posits the normal the principle that you will fight out these sorts of disputes before the courts of that country.

MR MELDRUM:   I accept that without reservation, your Honour, yes, and it does not follow though ‑ ‑ ‑

KIRBY J:   Why do you not fight it out in the courts of Greece?

MR MELDRUM:   Sorry, your Honour?

KIRBY J:   Why do you not fight this case out in the – otherwise your client’s action in simply, in effect, kidnapping the child and bringing the child to Australia is sanctioned.

MR MELDRUM:   Will render nugatory – yes, and as it will every time subparagraph (b) applies.  The proviso and the exception is either there to work or it is there not to work.

KIRBY J:   You say the postulate is that the international action has happened and, therefore, it is no point complaining that it has happened ‑ ‑ ‑

MR MELDRUM:   And it has happened.

KIRBY J:   ‑ ‑ ‑ and that is what the postulate of the subregulation is.

MR MELDRUM:   And that the Full Court’s judgment, in effect, puts a proposition that makes it very difficult to imagine any circumstances in which that subregulation would have any room for operation.

KIRBY J:   Most developed countries in the world have had experience with this.  Is there any authority of any final court on subregulation (b) or its equivalent?

MR MELDRUM:   No, there is not.  Sorry, other than in the context of the violence cases, violence and sexual abuse cases.

GUMMOW J:   Yes, that is what I ‑ ‑ ‑

MR MELDRUM:   There are a plethora of cases dealing with violence and sexual abuse where, in some cases, some of the superior courts have said, “In this case it would be inappropriate to order a return”, but where the general thrust of the cases is that, given that that deals with the capacity of the legal system in the countries that are party to the Convention, we ought trust the country from which the child was taken to be able to protect the child with appropriate orders, but that is all within a context of, it is in the hands of the law to do something about that.

GUMMOW J:   The Full Court stressed though in paragraph 154 of its reasons that the return would only be for a limited and not necessarily final purpose.  What do you say about that?  I think that is relied on by your opponent for ‑ ‑ ‑

MR MELDRUM:   That has to be so.  Of course, if they are as fast as we are, it may not be all that limited, but ‑ ‑ ‑

KIRBY J:   But the other side of the coin is, if we grant special leave, the reality is that this would not be heard for many months and if then eventually the child is returned to Greece, then the separation and the burden is greater on everyone concerned, which the Convention is designed to discourage.

MR MELDRUM:   Yes, except that this is a question then of whether the child is going to suffer from this irreparable harm and that must, with great respect to your Honour Justice Gummow, be one of the issues that one raises, but they never dealt with the issue, saying, “We accept that there is no such treatment but this, in effect, will be a holiday from treatment for a relatively short period of time and on all the evidence it cannot be damaging”.  There is no such ‑ ‑ ‑

GUMMOW J:   That is what I was wondering.  Did they get to that point?

MR MELDRUM:   No.

GUMMOW J:   At any stage has either court got to that point?

MR MELDRUM:   No.

GUMMOW J:   Were they asked to get to that point?

MR MELDRUM:   They were asked to deal with the issue but because of the nature of the evidence that had been led ‑ which each party assumed, on the father’s side, that the child would go back to the father and, on the mother’s side, that the child would go back to the father, the evidence that was led really related to matters that probably are irrelevant under these regulations, namely, if the child were back with the father, would the child receive any treatment for its autism?  Then a lot of evidence was led about the father’s failure to accept it was autistic, that he would not fund the mother to take the child internationally to seek assistance, that the child would be with its grandmother and that sort of evidence, but ‑ ‑ ‑

HAYNE J:   The case appears to have been fought on a conventional basis that the child would likely return to the Nigrita area.

MR MELDRUM:   Yes, each party assumed that and there would be some very good sociological reasons for that.  The parents of the wife had been 20 kilometres from there, although they were then in Darwin.

GUMMOW J:   Are they still in Darwin?

MR MELDRUM:   Yes.

HAYNE J:   But if that were the conventional basis on which this case was fought, does that fact lie at the feet of the applicant, present applicant, or ‑ ‑ ‑

MR MELDRUM:   Does which fact, your Honour?

HAYNE J:   The fact that the only evidence before the Court concerned treatment facilities in Nigrita and Serres.  Is that a matter of which the applicant can now complain?

MR MELDRUM:   No, we do not complain about it.  We complain of failing to take the effect of that evidence into account in determining the issue.

HAYNE J:   So can you encapsulate in a sentence or two the essence of the error that you say the Full Court committed?  I suspect again rather than for the first time.

MR MELDRUM:   Given what subregulation (4) says in terms of social condition, and that being necessary for the determination of subregulation (3) exceptions, the individual circumstances of the child in question are relevant.  It was not led from the appropriate authority, but there was evidence before the court which we say had shifted the evidentiary burden because it showed that the sum totality of all her researches and all the evidence indicated that there was no such treatment.  We are not talking just in Nigrita or Thessaloniki.  We are talking about in Greece.

It would, with great respect, be extraordinary if someone were to go to a paediatrician in Albury who had no knowledge at all of, or not able to diagnose, autism, or did not suggest that this was the sort of condition that needed to be investigated in Melbourne or Sydney.  Yet she did not just go

to one doctor.  She went to a number of doctors in a number of specialties and they were all appropriate specialities, as events turned out, because all the physical features which she was observing are all features that, as a bundle, give the definition of autism.  Search as she might, she got nothing.

Now, one either draws the inference that she had chosen half a dozen incompetent practitioners or the more general proposition that we say emerges from what the health authorities wrote was that there is no such facility.  That, with the greatest respect, is not all that unusual.  In the youth of most of us in this Court autism was not labelled or well known in this country.

KIRBY J:   The father does not accept the diagnosis of autism.

MR MELDRUM:   He does not.

KIRBY J:   What is the relevance of that to your proposition?

MR MELDRUM:   Not of great significance, other than it is relevant to the social condition of the child in that he will not be supportive, if one should have to go outside Greece, if you were to take a stronger case to say, “Well, leave Greece”, and she had asked if the child could go to Britain and the father had said no.

GUMMOW J:   Because there would be a freedom of access to the United Kingdom.

MR MELDRUM:   Be freedom of access outside Greece, yes.

GUMMOW J:   Yes, because they are European Community member.

MR MELDRUM:   Absolutely.

GUMMOW J:   Yes.

MR MELDRUM:   Unless the Court has other questions, I have no desire to attempt to transgress my time.

GUMMOW J:   Thank you, Mr Meldrum.  Yes, Mr Baston.

MR BASTON:   Both before the trial judge and before the Full Court of the Family Court the approach adopted by the applicant for leave was that there was an absence of specialist services in Serres or Nigrita.  It was the position of the Central Authority that that was not an issue that ought to have been traversed, that the applicant needed to establish, if this was relevant, the absence of medical services, that there was an absence of medical services, if the issue was relevant, in Greece because the Convention provides for the return of the child to Greece for the Greece national ‑ ‑ ‑

GUMMOW J:   Yes.  What does that really mean?  It does not mean you take it to Athens airport and leave it there.  It is return of the child to the country in some particular context of what is going to happen when it arrives.

MR BASTON:   Your Honour, taking up on that point, what would happen upon arrival is that the Greek courts would then be seized of the issue to determine what would then happen with the child.  It is not a return ‑ ‑ ‑

HAYNE J:   What would happen as to custody and access ‑ ‑ ‑

GUMMOW J:   Yes, exactly.

HAYNE J:   ‑ ‑ ‑ or what would happen in the sense of take this child to city X and treat it, or would it be simply, “Father has custody”, “Mother has custody”?  Which?

MR BASTON:   It would deal with all of those issues and they would be all issues that the court would have regard to being ‑ ‑ ‑

GUMMOW J:   Is that indicated in the material?

MR BASTON:   In determining the issue of what was the ‑ ‑ ‑

GUMMOW J:   I mean, this is a matter peculiarly on your side of the ledger.

MR BASTON:   And there was evidence before the court as to the nature of the Greek system of family law and it was largely similar to ours, paramount interest to the child, dealing with, whilst using other terms, interim orders and the like, and a system that largely put into effect the same principles and largely the same procedures as applies in our courts.

KIRBY J:   But as Mr Meldrum points out ‑ I mean, De L propounds the proposition that the effect of the Convention must be obeyed and this subregulation must be understood in that context, but it still has to be given work to do and Mr Meldrum points out that the whole assumption of regulation 16(3)(b) is that there has been a breach of the Convention but that in certain extreme circumstances there will not be an order for return, and if you have a situation where the father denies autism and where it is said that there is not a facility for the treatment of the child, why is that not at least a matter that has to be given consideration as to whether there is a grave risk of physical or psychological harm to the child?  Because if you do not admit the condition and if you do not treat it, then is there not then at least a potential grave risk that has to be given some consideration, just to apply the terms of the regulation?

MR BASTON:   With respect, your Honour, is that not a matter for the Greek courts in determining the issue when the matter returns?

KIRBY J:   Is that so, because the subregulation is addressed to our courts, is it not, “a court may refuse to make an order” ‑ that is an Australian court ‑ where “(b) there is a grave risk” of “physical or psychological harm”?

GUMMOW J:   Or “intolerable situation”.

HAYNE J:   And is it to look at the problem at too great a level of abstraction?  We speak of returning the child to Greece.  Yes, that is a short statement of the problem.  The child comes under the authority of the Greek judicial system.  The disposition by that judicial system is primarily a disposition of questions of custody and access, I take it, not exclusively, but primarily.

MR BASTON:   Yes, your Honour.

HAYNE J:   If the child is given into the custody of the mother, then one set of circumstances may emerge.  If the child is given into the custody of the father, a father who does not admit of the circumstances of this child, very different circumstances admit.  Now, is the Australian court, considering the application of 16(3)(b), to look at the problem at the first level of abstraction or is it to descend into any of the lower levels, or finer levels, of consideration that I have identified?

MR BASTON:   It depends upon the circumstances of the case.  In this case it was not a matter that would trouble the Court because the orders that were made for return were ones that had undertakings in respect of it and that the ‑ ‑ ‑

GUMMOW J:   Where do we see them?

MR BASTON:   The course of the undertaking ‑ ‑ ‑

GUMMOW J:   Where do we see the undertaking?

KIRBY J:   This is at 138, is it?

HAYNE J:   Or was it the order of Justice Mushin at 36/37?

MR BASTON:   Yes, it is.

HAYNE J:   Yes, or 138.

MR BASTON:   They are included in the order and both judgments of the trial judge and the Full Court and repeated it in the outline at 138.  They provided for, in effect, the mother to return to Greece with the child and for the father to not interfere with the mother’s custody and possession of the child until the matters were determined by the courts in Greece and to provide maintenance as to provide for financial provision for both the mother ‑ ‑ ‑

KIRBY J:   And did the evidence called before the Family Court of Australia indicate that the mother could, in the Family Court in Greece, in Serres, argue that the child has been diagnosed autistic, that the father does not admit to this, that the child has received treatment in Australia, that the child is doing well in Australia and that, therefore, “I should be allowed to take the child to Australia”?

MR BASTON:   That was accepted by the appellant before the trial judge and before the Full Court of ‑ ‑ ‑

KIRBY J:   Was there any reason why we would not have faith that the Hellenic courts would apply neutral and judicial principles to the determination of that issue?

MR BASTON:   No reason to assume otherwise and to assume otherwise would not give full force and effect to the Convention, with respect.

KIRBY J:   It seems to me that the best argument for the applicant to get into this Court is that courts have in this country and elsewhere looked at the issue of physical abuse and sexual abuse of children, that being the purpose for which principally, I would take it, the subregulation is addressed, but never looked at a case like this, which is a physical disability of the child which is denied by the other parent and which may, if the child is returned, lead to grave risk of psychological or physical harm or other intolerable situation.  Now, why is that not a matter, if it has not been looked at elsewhere, which of itself is deserving of examination by this Court?

MR BASTON:   That would, with respect, open up and place at risk the application of the Convention.

KIRBY J:   Yes, but we have to obey the law, unless it is invalid.  You do not suggest that the subregulation is invalid.  The subregulation does address the attention of the Australian court to an exception.  The exception is, in terms, at least arguably, applicable in this case and, therefore, it is no good saying, “Well, that will hold up the operation of the Convention” because the whole Convention is a carefully‑balanced set of principles.  Prima facie you return, but there are exceptions.

MR BASTON:   We accept that this issue has not been determined in this country or elsewhere.  The existing determinations on this regulation are confined to cases such as physical and emotional abuse and the like and do not extend to circumstances where the child presents with some disability.

KIRBY J:   Is the subregulation in terms of the Convention?

MR BASTON:   Yes.

KIRBY J:   So that there is no discordancy between the Convention and the regulation?

MR BASTON:   No.

GUMMOW J:   Do you say, just looking at paragraph (b) of the regulation for a minute, a grave risk would “otherwise place” – is the argument that it would not necessarily “otherwise place” because of the powers that the Greek courts would have and which would be engaged under these orders set out at 138?

MR BASTON:   That is so, your Honour.

KIRBY J:   But that is an argument addressed to the alternative, not to the primary provision of the subregulation which is that there is “a grave risk” of “physical or psychological harm”.

MR BASTON:   Yes.

KIRBY J:   There you do not look to what the Greek courts can do.  You simply look to the harm that might be done to the child.

MR BASTON:   Yes.

KIRBY J:   Do you accept that the father denies that the child is autistic?

MR BASTON:   We accept that the father denied that the child was autistic when it was first presented to him.  The circumstances are such ‑ ‑ ‑

GUMMOW J:   Is there a finding about that?

MR BASTON:   I believe not.  It was a matter traversed in the affidavit material.  I cannot recall ‑ ‑ ‑

GUMMOW J:   Did the primary judge deal with the point?

MR BASTON:   I will just ‑ ‑ ‑

GUMMOW J:   There are findings at 55 on page 23.

MR BASTON:   Yes.  I do not believe he did.  It was a fact asserted by the applicant mother and I do not believe the trial judge dealt with it.

GUMMOW J:   But the Full Court do.  Maybe it should have.  Maybe that is another problem.

MR BASTON:   I do not believe it did.  The focus of the attention of both the primary judge and the Full Court was on the evidence about the lack of medical facilities and treatment in the area of Nigrita and Serres.

GUMMOW J:   Where does the notion of the father’s attitude come from?  We have seen it in the papers.  Where do we ‑ ‑ ‑

MR BASTON:   We have seen it in the assertions in the applicant’s material and that was lifted from the applicant’s affidavit before the primary judge.

GUMMOW J:   Was she cross‑examined on that?

MR BASTON:   No, there was no ‑ ‑ ‑

GUMMOW J:   Her credit was not impugned?

MR BASTON:   No.

GUMMOW J:   Well, it stands, I suppose, although it was not taken into account.

MR BASTON:   It does not appear to be.

GUMMOW J:   Yes.

MR BASTON:   But the element of the father’s denial or refusal to accept the autism would have to be accepted in light of the factual background in circumstances where that was not diagnosed in Greece, notwithstanding the attendance upon what was appropriate professionally.  It is a long bow that

the applicant attempts to push that the Greek medical authorities ought to have diagnosed autism.  That is a big leap, with respect.

The facts are that the mother was able to take the child to appropriate medical professionals in Greece near where she lived.  They did not diagnose autism and after the abduction to Australia she was given a circumstance where doctors in Darwin diagnosed autism.

GUMMOW J:   Yes, thank you.

MR BASTON:   Thank you, your Honours.

GUMMOW J:   Yes, Mr Meldrum, do you want to say anything in reply?

MR MELDRUM:   Just dealing with the issue of the father’s attitude, we say his affidavit material, which was before the court and discussed by it, was that his plan was that the child attend an ordinary school and be cared for by his grandmother and that those two matters and the further matter that there was no cross‑examination of her at all on the issue that he denied and that she had sought his permission to take the child away are all consistent with it being a proper finding that the father did not accept the child as autistic.

GUMMOW J:   Yes, thank you, Mr Meldrum. 

MR MELDRUM:   If the Court pleases.

GUMMOW J:   We will take a short adjournment

AT 2.20 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.22 PM:

GUMMOW J:   There will be a grant of leave in this matter, gentlemen.  Now, it would be a one‑day case, I take it.  Mr Meldrum and Mr Baston, you should put yourselves in a position to prepare this matter as soon as possible.  We will make such efforts as we can to achieve an early listing date for you, but you will just have to take that on board and the best that can be done will be done.

KIRBY J:   The child has not been separately represented in any of the proceedings, has it?

GUMMOW J:   Now, this is the point that arose in some of the earlier litigation, I think.

KIRBY J:   I mean, in asking that question I do not want to needlessly encourage representation ‑ ‑ ‑

MR MELDRUM:   No, no, we understand that.

KIRBY J:   ‑ ‑ ‑ because it may be all that will be said on behalf of the child will be said from both sides of the Bar table.

MR MELDRUM:   Yes.

KIRBY J:   There is a certain disquiet about dealing with a matter concerning a person, which is a whole human person, without some opportunity to put any separate position.  I do not know.  No doubt you have thought about this.

MR MELDRUM:   In passing.

KIRBY J:   Well, I just raise it.  I say nothing more about it.

MR MELDRUM:   If the Court pleases.

GUMMOW J:   Yes, very well.  Thank you, gentlemen.

AT 2.24 PM THE MATTER WAS CONCLUDED