In Re F (Hague Convention: Child's Objections) (Joinder Application)

[2007] FamCA 496

FAMILY COURT OF AUSTRALIA

IN RE F (HAGUE CONVENTION: CHILD’S OBJECTIONS) (JOINDER APPLICATION) [2007] FamCA 496

FAMILY LAW - APPLICATION – FOR JOINDER - Prior Hague Convention proceedings – Appeal filed against trial Judge’s dismissal of application for costs – Whether Secretary, Attorney-General’s Department, Commonwealth of Australia as the Commonwealth Central Authority, the Attorney-General and the Director General, Department of Community Services should be joined as parties to appeal –– Circumstances of delegation by Australian government to Director General as State Central Authority indicate claim applicant sought to pursue before trial Judge was not one which involved the Attorney-General’s Department as the Central Authority – No proper basis to join the Attorney-General’s Department as a party to the appeal - Applicant’s claim does not involve a matter arising under the Constitution or involving its interpretation – Claim subject of appeal is not a general claim for damages for negligence against Australian government – No evidence to justify an order joining the Attorney-General to proceedings - Director General, Department of Community Services already a party to the appeal - Whether appeal should be expedited – Applicant on limited bridging visa – Appropriate for appeal to be expedited.

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Family Law (Child Abduction Convention) Regulations 1986

APPLICANT: A

RESPONDENT: Director General, Department of Community Services

FILE NUMBER: SYF 3228 of 2004

APPEAL NUMBER: EA 26 of 2007

DATE DELIVERED: 31 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Boland J

HEARING DATE: 23 May 2007

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 19 February 2007

REPRESENTATION

ADVOCATE FOR THE APPLICANT: A, in person

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Director, Legal Services Unit, Department of Community Services

COUNSEL FOR THE ATTORNEY-GENERAL AND COMMONWEALTH CENTRAL AUTHORITY: Ms Morgan

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as In Re F (Hague Convention: Child’s Objections) (Joinder Application).

Orders

1. That paragraph 1 of the Application in a Case filed 26 April 2007 is dismissed.

2. That the relief sought in paragraph 2 of the Application in a Case filed 26 April 2007 is stood over to the Full Court hearing the appeal.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 26 of 2007
File Number: SYF 3228 of 2004

A

Applicant

And

Director General, Department of Community Services

Respondent

REASONS FOR JUDGMENT

Introduction  

1. The applicant is the father of a young boy, F, who is now aged almost 13 years.  F was wrongfully retained in Australia in 2003 by his mother, W, and was not returned to the United States of America (“USA”).  An application for F’s return to the USA was made pursuant to the Hague Convention (the Convention on the Civil Aspects of International Child Abduction) in 2004 (“the abduction proceedings”).

2. The abduction proceedings instituted in this Court eventually culminated in an appeal by F’s mother against an order made by Lawrie J in April 2006 for F’s return to the USA. The Full Court (Bryant CJ, Kay and Boland JJ), having admitted further evidence on the appeal about the child’s objection to return to the USA, upheld the mother’s appeal.  During the course of the proceedings the applicant came to Australia to take F back to the USA with him.

3. By an order made by a Judicial Registrar in the abduction proceedings the mother was required to lodge  the amount of $6,000.00 with the Registrar of the Sydney Registry of the Court “for the purposes of providing the Father with a means to return to Australia and the Father and the child to go to the United States of America”. The mother sought to review this order but the review had not been determined at the time of the appeal to the Full Court.   The parties to the review proceedings were the mother, the Director General, Department of Community Services (“the Director General”) and the applicant.

4. After the mother’s appeal against the return order was upheld the applicant commenced proceedings under the Family Law Act 1975 (Cth) (“the Act”) for orders that he spend time with F (“the family law proceedings”). The parties to those proceedings were the applicant and the mother.

5. The family law proceedings were listed before Le Poer Trench J in 2006 and concluded on 12 March 2007.

6. The review application was listed before Le Poer Trench J on 18 September 2006 and ex tempore reasons in respect of that application were delivered on that day. His Honour made orders for release of the lesser of either the amount of an invoice for an economy air travel from Australia to Florida, or $1,500.00 to be paid to the applicant on providing “to the Registrar of the Court an invoice for an economy air travel from Australia to Florida”.   

7. Whilst the family law proceedings were before the trial Judge the father filed, on 23 November 2006, an application which has become the subject of the present appeal.  In that application the applicant sought an order for the “[r]eimbursement to the father of his costs in the amount of $29,200” (“the costs proceedings”). It appears those proceedings were conducted on the basis that the parties to the proceedings were the applicant and the Director General.

8. His Honour, on 19 February 2007, dismissed the applicant’s 23 November 2006 application for costs.  It appears due to an administrative error when first issued one set of orders were produced which dealt with both orders made in the family law proceedings, and the costs proceedings.  Amending orders are to be issued under the “slip rule”.

9. Appeals have been filed by the applicant against interim parenting orders made by Le Poer Trench J in the course of the family law proceedings (Appeal No. EA 113 of 2006).

10. The applicant filed on 26 April 2007 an Application in a Case in Appeal No. EA 26 of 2007 in which he seeks to join as parties to the appeal the Secretary, Attorney-General’s Department, Commonwealth of Australia (“the Department”) as the Commonwealth Central Authority, the Honourable Philip Ruddock, MP (“the Attorney-General”) and the Honourable Neil Shepherd, Director General, Department of Community Services.  I note the Director General is already a party to the appeal. In the same application he seeks orders that he be permitted to cross examine the Attorney-General, Ms L of the Department and two officers of the New South Wales Department of Community Services before the Full Court hearing the appeal.  The applicant also sought orders that the appeal be expedited.

11. The costs appeal is an appeal which was filed by the applicant on 23 February 2007 and amended by Amended Notice of Appeal filed 5 March 2007.  I will return to discuss the costs appeal proceedings later in these reasons.

12. The appeal was listed before me for procedural directions on 19 April 2007.  At that procedural hearing the applicant foreshadowed bringing this application.  On 19 April 2007 I noted at the request of counsel for the Director General  at that date the parties to the appeal were the applicant as appellant and the Director General.

13. The Application in a Case was listed before me on 23 May 2007.  On that occasion the applicant appeared in person, and Ms Christie of counsel appeared on behalf of the Director General.  An appearance, for the purpose of arguing the joinder application, was made by Ms Morgan of counsel on behalf of the Department and the Attorney-General.

14. There are two issues to be determined by me. First, should the Attorney-General and the Department be joined as parties to the appeal, and secondly should the appeal be expedited?  It is not in issue that the question of whether any cross examination of persons should be permitted during the appeal is a proper matter for determination by a Full Court during the hearing of the appeal.

Orders sought in the application

1. In the  application now before me the applicant names as Respondent 1 “(1) Hon. Philip Ruddock, Commonwealth Attorney General; (2) Commonwealth Central Authority/‘Canberra’” and Respondent 2 “(3) Hon. Neil Shepherd, Director General, NSW Dept. of Community Services.”  The respondent’s addresses are shown as “(1) Commonwealth Attorney General, Philip Ruddock, Parliament House, ACT 2600; (2) Commonwealth Central Authority, Robert Garran Offices, National Circuit – Barton ACT (3) Dir. Gen. NSW Dept. Community Services, Hon. Neil Shepherd –DX 21212 – Ashfield”.  However the application has a line through the box in which “Respondent 1” is to be inserted.  “Respondent 2” has been changed to “Respondent 1” and entries in the box in the form for “Respondent’s address” has a line striking through the Attorney-General and the Department’s respective addresses.  I was not advised who had made the alterations to the document.   However, it appears to me little turns on the issue of the parties named on the document given the appearance by Ms Morgan and the clearly identified purpose of the application before me.

2. In the application the applicant seeks the following orders:

   1.   Formally joining as respondents: (1) Commonwealth Attorney General Philip Ruddock; (2) Commonwealth Central Authority/“Canberra”; and (3) Director General of Community Services for New South Wales, Hon. Neil Shepherd.

   2.   Leave to cross-examine Philip Ruddock, [Ms L] (office of Commonwealth Attorney General); [Ms P] and [Ms K] (of NSW DoCS).

   3.   Expedited process requested.

3. Before the trial Judge the applicant relied on his Application in a Case filed on 23 November 2006 in which he named as the respondent “Commonwealth Central Authority c/o [Ms P]”.  The address noted in the application for the respondent was “c/o DoCS – Canberra NSW” and the  telephone number was also noted.

4. The applicant, who has been self represented since the determination of the appeal to the Full Court, noted in Part C of the application “About the orders you [the applicant] are seeking”:

   1.   Costs Applications re proceedings before Lawrie, J. dated 28 April 2006.

   2.   Costs re proceedings before O’Ryan, J., 8 May 06.

   3.   Leave to file costs application out-of-time. [sic]

   4.   Costs re proceedings before Trench, J., [sic] 18/9/06. [original emphasis]

5. In his affidavit in support of the application the applicant noted he had been legally aided in the proceedings before Lawrie J in respect of legal costs but “of course, not as to his other costs”, and said his “other costs” should be paid by the “Respondent, Director General of Community Services”. He particularised the “other costs” as:

   ·legal costs before Lawrie J;

   ·ongoing enforcement applications concerning the appointment of an independent children’s lawyer and the “single court expert”;

   ·the stay proceedings before O’Ryan J (his Honour heard and determined a stay application in Lawrie J’s absence); and

   ·the applicant’s costs of attending Australia from the USA.

6. Whilst paragraph 2 of the applicant’s affidavit appears to be directed to seeking payment of monetary sums from the Director General, in paragraphs 3, 9 and 10 in his affidavit (which paragraphs are not consecutively numbered) the applicant appears to be submitting that the Department should be liable for the payment of “costs”.  In paragraph 13 of his affidavit the applicant particularises in general terms, not supported by receipts, sums incurred by him or to be incurred by him for airfares, living expenses and a computer.  He also claims costs incurred for maintaining his USA rented accommodation, car and expenses for F’s dog whilst the applicant is in Australia.

7. In a document described as further submissions concerning the applicant’s costs, the applicant asserts that the “Central Authority” and the “Commonwealth Government of Australia” by failing to ensure F’s return have become the “abductors” and should pay his financial expenses including future expenses including lost wages, future airfares, and medical expenses for psychiatric treatment for the child because of their negligence.

8. I do not have the benefit of the transcript to know what oral submissions, if any, were made to his Honour, including any submissions about the persons or departments against whom relief was sought.

Evidence in this application

1. The applicant relied on

   ·his application filed 26 April 2007;

   ·his affidavit affirmed 26 April 2007;

   ·various emails forwarded to him by Ms P, an employee of the Director General;

   ·a Power of Attorney executed by him on 9 April 2004; and

   ·a letter from the Australian Government Department of Immigration and Citizenship dated 12 April 2007.

2. No response was filed by the Director General, but Ms Christie of counsel orally opposed the application to join the Attorney-General and the Department.  She did not oppose expedition of the appeal.

3. Ms Morgan who appeared for the Attorney-General and the Department also opposed the application insofar as it sought joinder of the Attorney-General and the Department.

4. Following directions made by me, Ms Christie provided to my associate an updating gazettal notice signed by the then Attorney-General, the Honourable Michael Lavarch dated 6 July 1995. I have regarded that document as part of Exhibit 1 being an earlier notice tendered in the proceedings. In summary, in the notices pursuant to the Family Law (Child Abduction Convention) Regulations 1986, former Attorneys-General appointed in 1986 the Department of Youth and Community Services New South Wales and in 1995 the Director General, Department of Community Services, New South Wales to perform the function of the State Central Authority, subject to limitation as follows:

   (c)... shall have effect only in circumstances where the appointee is called upon to perform the functions of the State Central Authority in the specified State or Territory; an appointment in paragraph (b) shall not have effect in relation to the function of receiving applications under the Convention from outside Australia or the function of transmitting applications under the Convention from Australia.

Proposed joinder of the Attorney-General

1. It appears to me that there are two bases on which the applicant seeks the joinder of the Attorney-General.  First he submits that his application raises a constitutional issue.

2. In his affidavit the applicant says:

   2.The named respondents are all necessary parties because, among other reasons to be submitted at hearing, they were at all times indispensable parties who directly failed in their duty under Australia’s Constitution to properly and expedictiously [sic] carry out the court order for the return of the applicant-father’s son to America.

   3.This negligence and intentional failure to perform their duty under the Constitution and Hague (child abduction) Convention Australia Regulations caused and/or contributed not only to the father’s costs and expenses to date, but also represents a continuing “wrongful retention” by inaction/action of these parties; and at the same time these parties participated in the subsequent child abduction proceeding which effectively continued the “wrongful retention” at issue.. [sic]

   4.Respondents Commonwealth Attorney General and Commonwealth Central Authority can not hide or be veiled from responsibility and liability in relation to the subject costs application, simply because of an alleged “delegated authority” of responsibility from the Attorney General to the NSW DoCS.in [sic] relation to international parental abduction matters.

   5.The DoCS attorney, addressing the Full Court at the hearing of In Re F, stated that it was under “directions from ‘Canberra’” to: (a) not object to the subject 18-month out of time review application; and (b) to “step aside” from what would be considered representing the father’s interests of the United States of America regarding the abduction and/or wrongful retention of children whose habitual residence is the United States.

   ...

   7.Attorney General Ruddock, in his letter to Applicant, further has admitted to, on behalf of the Commonwealth, “a number of undertakings that were made in the course of negotiating arrangements for your son’s return that were not fulfilled.”

   8.Mr. Ruddock’s letter of 12 April 2007 (attached hereto “A”) further admits “that the difficulties in reaching agreement between the parties on how to return your son contributed significantly to the delay in returning your son and to his eventual non-return.”  The Applicant-father notes he was not a “party” within the timeframe of these statements.

3. The applicant raised the concept of a “constitutional” issue when this matter was mentioned before me on 19 April 2007.  He did not identify in any clear manner what he perceived to be the constitutional issue, but appeared to assert that as the Australian government had ratified the Hague Convention that the government’s obligations under the convention required, in an appropriate case,  for the government to assume broad financial obligations associated with implementation of the Hague Convention, and assuming such obligations existed, then breach of those obligations required monetary compensation to a person who was affected by such breach.  This led to an assertion that the claim required an examination of “constitutional” obligations associated with ratification of international conventions.

4. The applicant was aware of the requirement to give notice to the Attorney-General having regard to the provisions of s 78B of the Judiciary Act 1903 (Cth). There was no dispute before me that all relevant applications and affidavits filed by the applicant had been served on the Department and brought to the notice of the Australian Government Solicitor. Before me on 19 April 2007 Ms Christie tendered a letter dated 18 April 2007 addressed to my associate from the Australian Government Solicitor’s office which became Exhibit A before me. The letter said:

   1.We have today been served with an Appeal Book in the above proceedings which is listed for directions hearing on 19 April 2007 at 11.30am.

   2.We have spoken to Ms [P], solicitor for the Department of Community Services, regarding the nature of the proceedings, which Ms [P] has advised us is an application for costs by the appellant.

   3.Neither the Australian Government Solicitor (“the AGS”), nor any department or agency represented by the AGS, were parties to the proceedings below or are parties to the appeal.  We further understand that the appeal does not involve any Constitutional issue that may require an appearance on our part.

   4.Accordingly, we do not propose to appear at the directions hearing tomorrow.  Should you require further clarification or wish to discuss the matter, please do not hesitate to contact the writer.

5. I am satisfied pursuant to s 78B(3)(a) that notice of the applicant’s constitutional claims have been brought to the attention of the Attorney-General, and that on his behalf the Australian Government Solicitor rejects the applicant’s claim this application involves “a matter arising under the Constitution or involving its interpretation”. I am further satisfied that the relevant issues have been ventilated before me, and that as Ms Morgan has submitted, the claim the subject of the appeal is a claim for costs and expenses for identified applications before particular judicial officers, not a general claim for damages for negligence against the Australian government which claim she submitted would not be justiciable in this Court, and probably has been so found by the trial Judge.

1. In these circumstances, I find no evidence before me which would justify an order joining the Attorney-General to these proceedings.

Proposed joinder of the Secretary, Commonwealth Attorney-General’s Department as the Central Authority

1. There is no doubt some confusion may have arisen by the three sets of proceedings which came before the trial Judge.  As I have already indicated, I do not have the benefit of transcript, so it is impossible to know how the matter proceeded before the trial Judge.  It does appear clear that the Director General was represented, and that the applicant appeared in person.  It is not clear whether any issue was raised by:

   a)the naming of the Central Authority as a party on the application

   b)references in the applicant’s submissions to both the State Central Authority and the Commonwealth Central Authority

2. In his formal application in Part C the applicant particularised the orders sought. As I have set out above, those orders sought related to particular proceedings before named judicial officers which proceedings were proceedings between the mother and the State Central Authority and subsequently between the mother, the State Central Authority and the applicant (as second respondent). The applicant did not seek costs under s 117AA(3) of the Act against the mother.

3. The delegation by the Australian government to the Director General as State Central Authority covers all matters under the Convention other than the receipt of applications from an overseas Central Authority and transmitting applications under the Convention from Australia.  In the circumstances of that delegation it appears to me that the claim the applicant sought to pursue before the trial Judge was not one which involved the Department as the Central Authority.  In that circumstance I am satisfied there is no proper basis to join the Department as a party to the appeal.

Expedition

1. There was no opposition before me to the applicant’s application for expedition.  I have regard to the fact that the applicant is on a limited bridging visa, and is unable to engage in employment as a term and condition of that visa. In those circumstances I indicated at the hearing I was satisfied it was appropriate that the appeal should be expedited and I so ordered.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland

Associate: 

Date:  31 May 2007