JLM v Director-General NSW Dept of Com Services

[2001] HCATrans 29

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S291 of 2000

B e t w e e n -

JLM

Applicant

and

DIRECTOR‑GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 FEBRUARY 2001, AT 3.54 PM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC:  If the Court pleases, I appear with my learned friend, MR P.M. FRIEDLANDER, for the applicant.  (instructed by Aubrey F. Cawley & Co)

MR A.L. HILL:   If the Court pleases, I appear for the respondent.  (instructed by I.V. Knight, Crown Solicitor’s Office)

GAUDRON J:   Having kept you almost all day, Mr Jackson, for which we apologise, we should indicate that there is a similar matter to be heard on 21 March, a matter called DP v The Commonwealth Central Authority.  Now, that being so, our inclination would be that if there were merit in what you wanted to put, the most we would do would be to refer this application to be heard concurrently with the other matter and on terms that both matters would be completed within the day.  Now, have you anything to say against that course.

MR JACKSON:   Your Honour, we would be content with that course.  I had thought that other matter was listed for 29 March.

GAUDRON J:   I may be wrong, I am sorry.  You are quite right, it is 29 March, I am sorry.

MR JACKSON:   Your Honour, as far as we are concerned we would be content with that course and would expect ‑ ‑ ‑

KIRBY J:   Is that a day convenient to you, Mr Jackson, 29 March?

MR JACKSON:   Your Honour, I believe so, yes.  I believe so, but in any event, we would be content with the matter coming on that day.

GAUDRON J:   Do you understand the cases to be similar and to raise the ‑ ‑ ‑

MR JACKSON:   Your Honour, certainly one issue is similar.

GAUDRON J:   The construction issue.

KIRBY J:   I sat in the special leave of the other matter and there are some commonalities though the element of suggested suicide I do not think was a factor in the other case.

MR JACKSON:   No, your Honour, the meaning to be attributed, the ambit, really, of Regulation 16(3)(b), a similar question arises.  There is a short additional question in this case whether, assuming we are wrong about the ambit of that, the court below was correct in the view that it took

because it overlooked some of the evidence.  We will, on that, take 10 minutes, I should think.

KIRBY J:   What about Mr Hill?

GAUDRON J:   Yes, perhaps we should ask Mr Hill whether you object to that course.

MR HILL:   Thank you, your Honour.  Well, the first thing I would say is that this case is quite different to the one which you have for 29 March.  The reality of this case is that we do not get to Regulation 16(b) because, you see, the aspect of the case in regards to the suicide, is that what the mother said is that she would threaten to commit suicide if the child was returned to the father.

GAUDRON J:   Yes, but the evidence from the doctor went beyond that and it was said in a particular context.

MR HILL:   Yes, if access - but the mother did say, and this is of great importance, if the child were returned to Mexico then she would go back with the child to Mexico.  So what the Full Court look at, and they said you do not get to Regulation 16 - - -

GAUDRON J:   That is the precise question though, is it not?

MR HILL:   Yes.

GAUDRON J:   They do not appear to have decided it on evidence though, do they?

MR HILL:    Yes, with respect, your Honour, they did, and that was the mother’s evidence.

GAUDRON J:   But that would simply be to find facts differently from the way in which the trial judge had.  I certainly did not read the Full Court decision as turning simply on the evidence in the case.

MR HILL:    Well, if your Honour goes to - and I realise that it is somewhat backwards in that I am opposing the special leave - if one goes to the application book at page 43, and you will see there at paragraph 47 that the Full Court said that, “In her first affidavit, the mother did not refer to any suicidal intention”, and then goes on at paragraph 49 on that same page, “In her second affidavit” - and that was on 28 January 2000 - she said:

If M is to be returned to Mexico I will travel to Mexico with her.  I have thought about this particularly since the Judgment by the Judicial Registrar and I am not prepared to remain in Australia if M is living in Mexico.

Now, her fear, the Full Court looked at ‑ ‑ ‑

KIRBY J:   You have to then go on to paragraph 52:

However, in answer to the question “Are you going to stay there?” She replied “No, I am going to kill myself”.

MR HILL:    Yes, but that was if the child was given to the father, and that is the whole problem.

GAUDRON J:   Well, that is the whole construction point though, is it not, that emerges in cases like this?  Do you look, as the Full Court seem to think, to the initial point of where the court of the foreign country determines the matter or do you look to the end situation?  You see, for example, let us take a different case from this.  Let us assume, to take a somewhat dramatic case I suppose, a child with AIDS, brought to Australia from South Africa, and the evidence is that the child simply would not be able to get adequate treatment in South Africa.  Do you look to that ultimate result of being returned to South Africa or do you simply look to the intermediate decision of going back to Africa to have the case heard?  That seems to be the construction point that these cases raise, does it not?

MR HILL:    That is certainly the case raised in the other matter but not in this matter.

GAUDRON J:   Sorry, I would have read it otherwise because that is what the court seems to say.

MR HILL:    But if I could take you to application book, page 46, paragraph 62, and that is the essence of it.  That is where the Full Court said, “The grave risk”, and they go on to say:

There was no evidence that the mother would commit suicide rather than return with M to Mexico or that she would not return to Mexico with the child, indeed her evidence was to the contrary.  The risk referred to in the Regulation is not the risk which would flow from the child being returned to the father -

because that is not what the court does, of course.

GAUDRON J:   No, I know, but that is to split hairs, is it not, Mr Hill?

MR HILL:    Well, not really.

GAUDRON J:   It seems like splitting hairs to me.  The evidence is she will take the child back to Mexico and if it stays in Mexico, presumably with the father, she will commit suicide.

MR HILL:    Yes, but then if the court adopts that attitude, you then get into the domestic realm of the Convention country.

GAUDRON J:   I am not too sure that you do.  That is certainly what the Full Court in this case seemed to say, we are getting into the domestic realm.  The only question is, how long your vision is, is it not, for the purposes of Regulation 16(3)(b)?

MR HILL:    That may well be, but what the court has said, and what the Full Court has said, is that the risk that you look at is the risk of the child going back to the country.

GAUDRON J:   Well, you do not look at that in isolation though, do you?  You have to take into account what is likely to happen in that country.

MR HILL:    Only to a certain extent, your Honour.

GAUDRON J:   That is the question, how certain is the extent?  You see, the Full Court looks to the point where the matter is determined in the Mexican courts.  That is the point it looks to and it looks no further.

MR HILL:    Yes, that is correct.

GAUDRON J:   Then it says, in paragraph 68:

it was not open to the trial Judge to find that the very serious risk or high risk of suicide by the mother in the event of an order being made requiring M to be returned to Mexico is such as to create a grave risk -

but it says all that almost as though it were a question of construction.

MR HILL:    But it says it because there was no evidence, and that is the whole point.  The only evidence we have ‑ ‑ ‑

GAUDRON J:   No, what it says - look at paragraph 67:

Dr Waters does not appear to have considered that the child’s return to Mexico may only be temporary for the purpose of enabling the father and the mother to litigate the question of the child’s future residence.

MR HILL:    That is right.

GAUDRON J:   Yes.

MR HILL:    But the whole point is, your Honour, what the Full Court said was the reason that the judge was wrong in that, the primary judge, was because the only evidence about the child being returned to Mexico was that the mother would go with the child.  It is only if the child were given to the father.  That was the whole point that the Full Court were making.

GAUDRON J:   Well, the whole premise on which this case was conducted is that in Mexico - well, the question is, what is meant by “if returned to the country”?  Are you looking in the short term or the long term, because the whole premise of this case was if returned to Mexico, it would be returned to the father.

MR HILL:    No, with respect, your Honour ‑ ‑ ‑

GAUDRON J:   Well, I know, that was her premise.

MR HILL:    That was her premise, yes, and the safeguards that the court gave in the orders ‑ ‑ ‑

GAUDRON J:   Then the question is - it really is a simple construction question, is it not, when you look to the short term, to the point where there was a court case in Mexico, or do you look beyond it?

MR HILL:    If your Honour sees it that way but, with respect, my submission is that that is not how the Full Court looked at it.  The Full Court looked at it as a matter of evidence and it simply said ‑ ‑ ‑

GAUDRON J:   It certainly looked at the evidence but all they are doing then seems to be saying that the judge was wrong to find that she would commit suicide if an order was made requiring M to be returned to Mexico.

MR HILL:    That is right.

GAUDRON J:   But then it says “it was not open to the trial Judge to find that”, but that the serious risk of the mother doing so “is such as to create a grave risk of psychological harm”.

MR HILL:    Yes, because the evidence was, if the child were returned to the father, then there was the grave risk of suicide.  But the evidence was from the mother, if the child were returned to Mexico, then the mother would return with the child to Mexico, and it was on that point ‑ ‑ ‑

GAUDRON J:   Then she would commit suicide.

MR HILL:    No, with respect, your Honour.

GAUDRON J:   Was that not in paragraph 53:

if I was to return to Mexico and was unable to properly support myself and/or the child M that I would commit suicide.

MR HILL:    That is a different question again, your Honour.

GAUDRON J:   Well, the question is whether you look at that, is it not?

MR HILL:    No, your Honour.  The question was, the court did look at that and gave the safeguard of that by issuing the orders that would have to be complied with before the child would be allowed, with the mother, to go to Mexico, and that was the full support of the mother.  Not only did it do that, it went further and said to the mother and her legal representatives, “If you have any additional orders, you may bring them in and tell us about that”, because they saw their duty, correctly, as returning the child to Mexico, the Convention country, and not to a parent, and putting in the proper safeguards of that because to go any further you then embark upon what is rightfully the province of the other country.

That is all they have done.  It is a matter that comes down to the evidence and the mother has said, quite clearly, she would go back with the child to Mexico, and what she has said, equally as clearly, is if the child were handed over to the father.  That is the difference in this case, and that is how ‑ ‑ ‑

McHUGH J:   Presumably, she will commit suicide if the child is handed over to the father in Australia, in a custody case in Australia.

MR HILL:    Well, that may well be the problem with the case, that she is going to do this if the father even has contact.

GAUDRON J:   I do not know that she said that.

MR HILL:    Well, I can take you to that.  It was in the report of Dr Waters at application book 46, at about line 20:

There is also a risk that Ms Brand may attempt suicide prior to a final residence and contact hearing in Mexico if she has to hand M to the father for the purposes of contact and she forms the view that the father is not going to return M - - -

GAUDRON J:   Yes, now that is not what you said, and that is said in a context in which the evidence is not substantially disputed, that she would have no chance of supporting herself and she would be dependent upon spousal support from her husband, presumably even if she had the child, and he would be under no legal liability to pay it.

MR HILL:    That was taken into account ‑ ‑ ‑

GAUDRON J:   Yes, I know it was taken into account, so you are taking that out of context, are you not?

MR HILL:    With respect, no, your Honour.  Your Honour asked me ‑ ‑ ‑

GAUDRON J:   Well, she says, “and she forms the view” that he is not going to - there is a conjunctive - “or she is unable to contest a case in the Mexican Family Law jurisdiction”.  You see, there is a conjunctive and a disjunctive.  It is not that she said that she would do this, the doctor said there was a risk if two things happened.

MR HILL:    Yes, and the Full Court ensured that orders would be in place that have to be complied with in order that those items would be ‑ ‑ ‑

GAUDRON J:   In that event, it is irrelevant for you to take us to that.  I am just saying you have taken it out of context.

MR HILL:    Well, with respect, your Honour, if your Honour sees it that way, then I apologise.  I certainly did not mean to do that.  But the reality still remains that what the Full Court did was look at that issue and the issue was that she would return to Mexico under ‑ ‑ ‑

GAUDRON J:   When it comes to paragraph 68, the words, “it was not open to the trial Judge” - why was it not open, because of a construction placed on subsubregulation (b), is it?

MR HILL:   No, your Honour.  Why it was not open for Judge Rose to come to that conclusion, because the mother has never said she would not take the child back to Mexico.  She has said she would take it back ‑ ‑ ‑

GAUDRON J:   But that is not the question that is posed, is it?

MR HILL:    Well, your Honour just asked me why the Full Court said that ‑ ‑ ‑

GAUDRON J:   Yes, very well.

MR HILL:    Because they saw that their situation was their duty to take the child back, or send the child back, to the jurisdiction of the Convention country.  That is the first  ‑ ‑ ‑

GAUDRON J:   Because Regulation 16(3)(b) did not apply.

MR HILL:    Yes.

GAUDRON J:   Am I correct in saying because Regulation 16(3)(b) did not apply?

MR HILL:    That is right.

GAUDRON J:   Because on no view could it be said - that is how I read it - that there was a grave risk of psychological harm to M if an order were made requiring him to be returned to Mexico, or her.

MR HILL:    Can I go back to your Honour’s question ‑ ‑ ‑

GAUDRON J:   But is that what they said, or not?  No.

MR HILL:    No.  Your Honour’s question was, “Why is it that the Full Court said the judge could not come to that conclusion?”.  It was because the evidence was that the threat of suicide would only come about if the child were returned to the father.  His Honour Justice Rose has elevated that into, “if the child were returned to Mexico”, and there was clearly the evidence that was contrary to that by the mother herself.  You see, if you go back to 62, that is at page 46, and what the Full Court was saying was:

There was no evidence that the mother would commit suicide rather than return with M to Mexico - - -

GAUDRON J:   But that was not the issue.  That was never the issue.

MR HILL:    I am trying to answer your Honour’s question as to why the Full Court said ‑ ‑ ‑

GAUDRON J:   But that was not the issue, was it?

MR HILL:    Yes, it was the issue, your Honour.

GAUDRON J:   No, why?  How did it become the issue under Regulation 16(3)(b)?

MR HILL:    Because this is where the Full Court looked at the facts ‑ ‑ ‑

KIRBY J:   You say because (3)(b) talks of the grave risk of the return of the child to the country ‑ ‑ ‑

MR HILL:    That is right.

KIRBY J:   And it has just been at cross-purposes here.  The mother is saying, “I will commit suicide”, query the extent to which a person can just say that and that that is accepted but I assume Justice Rose must have accepted that and that it would do harm to the child, but the suggestion is there has been cross-purposes.  His Honour was addressing return to the father but there is a step between that which is the step that the Convention upholds, and the Australian law upholds, namely, that the primary court to determine the custody of the child is the court of the country from which the child was abducted.  That is not only law in this country but it has been upheld repeatedly in other countries including, I see, Friedrich v Friedrich. (6th Cic 1996) 78 3rd 1060.

MR HILL:    Yes, there are others as well.

KIRBY J:   Many others.

MR HILL:    That is simply the reality, that what Justice Rose did was, in fact, he ran the two into one - he ran return of the child to Mexico and ‑ ‑ ‑

GAUDRON J:   Yes, well, I could understand that argument.  I could understand it if the court had said he erred in the exercise of the discretion by taking this into account or not.  But what they said was it was not open to him.

MR HILL:    That is right, and the reason that they say that was because they had, on one hand, the evidence of the mother saying she would return to Mexico with the child.  On the other, there was the evidence that if the child were returned to the father, then she threatened to commit suicide, and that is what they looked at.  They said that the error is that Justice Rose has said that if the child is returned to Mexico, the mother will commit suicide - that is the grave risk ‑ ‑ ‑

GAUDRON J:   But is that not exactly the question I was putting to you?  Do you look to, for the purposes of 16(3)(b), the immediate situation on return?  That is, do you look to the making of an order or do you look to the ultimate outcome and say, “If, at the end of the day, it would be intolerable for the child to be in Mexico, why go through this process of prolonging the agony?”, as it were.  What I am trying to get from you is, did not the Family Court say you look just to what happens immediately on return pursuant to the order as distinct from what might happen at the end of the day?

MR HILL:    No.  With respect, your Honour, no, they did not.  They simply said, the evidence is if you return her to the country which you are allowed to do, then the mother will go.

GAUDRON J:   Yes, but how is that an issue except on the basis on which I have analysed it?

MR HILL:    Simply because they do not get to the second point.  They never tackle that point ‑ ‑ ‑

GAUDRON J:   Because it is irrelevant.

MR HILL:    Because it is relevant, because they can see there is no evidence.

GAUDRON J:   Because it is relevant.

MR HILL:    No, because it was irrelevant to them they said that the only evidence you have is that if you return the child to Mexico the mother will go with her, and that is all you do.

KIRBY J:   Can we go back to a question that her Honour asked at the very beginning of these proceedings?  We have a case, DP, which is listed before the Court.  Experience teaches that it is often helpful to have an interplay of factual circumstances even if the cases are not exactly the same and the issues are, to some extent, overlapping.  The Commonwealth Authority is going to be there.  What is the argument for not having you as well so that we can have the benefit of the argument in this case and the other case, and then come to a proper construction of the regulation?

MR HILL:    Your Honour, I can only tell you what my instructions are and they say if this Court is proposing to grant leave we consent to the appeal being heard on 29 March, and I cannot take it any further than that.

KIRBY J:   Well, if we go back to the very beginning, you consent to that course?

GAUDRON J:   Your consent would be irrelevant if leave were granted, let me tell you.  We do not fix our lists on the basis of what public authorities do or do not consent to.

KIRBY J:   But I was asking what your instructions were.  You read it out and I did not hear the words.

MR HILL:    I am sorry, your Honour.  I said that if the Court grants leave then, of course, we would be here, or wherever the Court is sitting, on 29 March, and we could see, obviously, great merit in such a thing.

KIRBY J:   I do not know why we have taken so long then.

MR HILL:    Well, because my position still is that there was an initial question and that is what the Family Court did, the Full Court did, and they did not get into the argument with regards whether or not there was a psychological harm to the child.

KIRBY J:   I think we have been through all that.  We understand that.

GAUDRON J:   But I want to know why they did not get into it.  It must be because of a view they took about the regulation.

MR HILL:    After reading and re-reading this, and even after looking at the questions that were posed, and those grounds and those questions are set out at the application book at page 34 ‑ ‑ ‑

GAUDRON J:   It is not a very elucidating judgment, is it?

KIRBY J:   Well, I think that is for us to say, not for you.

MR HILL:    You could say that, your Honour, I could not possibly say anything like that.

KIRBY J:   That is not for you to say but, in terms of the question that is posed, obviously the Full Court focused on the regulation; focused on the return to the country; focused on the deposition of the mother herself that she would go back to the country; and therefore said, “That is all that has to be determined”.  The point that Justice Gaudron has been raising is whether that is a realistic approach given that you have to look globally at what is involved in return to the country and is that a proper approach to the regulation or is it not?  That, it seems to me, is quite an important question.  So the matter would be appropriate, in my humble view, for listing with the case of DP.

MR HILL:    I am told, your Honour, that we no longer oppose the Court granting leave.

GAUDRON J:   We were not even minded to do that, Mr Hill.  We were minded only to refer the application for leave to be heard in conjunction with DP on 29 March.

McHUGH J:   It was not a question of granting leave in the matter, the question is whether this special leave application should not be referred to Canberra to be heard by the Court that hears the other matter.

MR HILL:    I am quite happy to do that.

GAUDRON J:   In that case, that is what will happen.  Does there need to be a stay of - what is the position with respect to the orders, et cetera?

MR HILL:    No, your Honour, the Central Authority would never take any steps as long as the matter is before the Court.  There is no question about that.

GAUDRON J:   Mr Jackson may ‑ ‑ ‑

MR JACKSON:   There is, your Honour, as I understand it, an existing stay pending the determination of proceedings in this Court.

GAUDRON J:   So that is adequate?

MR JACKSON:   Yes.

GAUDRON J:   Well, now, Mr Jackson and Mr Hill, it would be proposed that this matter and the DP matter should together not occupy more than the day allocated.  Do you know who counsel is in the other matter?

MR JACKSON:   Your Honour, I do not, I am afraid.  I saw from the transcript of the special leave that Mr Meldrum and Mr Baston were involved in that application - a different Mr Baston which your Honours perhaps see more often from here.

KIRBY J:   He is a Darwin ‑ ‑ ‑

GAUDRON J:   Well, perhaps you might keep in touch with the Deputy Registrar and see if, through her good officers, some arrangement could be made as to the allocation of time.

MR JACKSON:   Yes, your Honour.  Your Honour, might I inquire whether the Court has in mind that we would put in submissions as if the matter were to be dealt with as an appeal?

GAUDRON J:   If you need any additional matter besides that in the book, you should have it available.  You should be prepared to proceed but, as I understand your case, it is, in the main, a construction point, is it not?

MR JACKSON:   Yes, it is, your Honour.  There is a second question about the interference with the discretion which, in the light of what my learned friend has said, it may be desirable to perhaps have some material before the Court, but we can discuss that with our learned friends.  There is one aspect:  the Full Court said that there was no evidence to show that she would not be able to conduct proceedings in Mexico.  There was, in fact, your Honour - that is paragraph 79 of the first affidavit - that is - want to have that before the Court.

GAUDRON J:   Very well.  If there any difficulties about getting the material ready, in the sense that there is an absence of consent, the matter can be listed at short notice for directions.

Very well, the order is, simply, that the application is referred to a Full Bench to be heard on 29 March 2001 in conjunction with DP v The Commonwealth Central Authority.

AT 4.26 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 29 MARCH 2001