KN & SD & Secretary, Department of Immigration and Multicultural and Indigenous Affairs - [2003] FamCA 610

[2003] FamCA 610

JFKNSDSE

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY Appeal No. EA101 of 2002
File No. SYF5281 of 2002

IN THE MATTER OF:

Appellant/Mother

- and -

First-Named Respondent/Father

- and -

SECRETARY, DEPARTMENT OF IMMIGRATION & INDIGENOUS & MULTICULTURAL AFFAIRS

Second-Named Respondent

REASONS FOR JUDGMENT

CORAM:Nicholson CJ, Ellis and O’Ryan JJ

DATE OF HEARING: 17th day of December 2002

DATE OF JUDGMENT: 29th day of July 2003

APPEARANCES: Mr Killalea of counsel, instructed by AAT Legal, Suite 1408/370 Pitt Street, Sydney NSW 2000, appeared on behalf of the appellant mother.

Mr Ladopoulos of counsel, instructed by Marsdens, Solicitors, PO Box 291, Campbelltown NSW 2560, appeared on behalf of the first-named respondent father.
Mr Kennett of counsel, instructed by the Australian Government Solicitor, Level 23/133 Castlereagh Street, Sydney NSW 2000, appeared on behalf of the second-named respondent.

KN and SD and Secretary, Department of Immigration & Multicultural & Indigenous Affairs - EA 101 of 2002

Coram: Nicholson CJ, Ellis & O’Ryan JJ

Date of hearing: 17 December 2002

Date of judgment: 29 July 2003

Catchwords: FAMILY LAW – APPEALS – Interaction between Family Law Act 1975 (Cth) and Migration Act 1958 (Cth) – whether the meaning of “reasonably practicable” in s.198(6) of the Migration Act 1958 is to be construed having regard to the objects expressed in s.60B of the Family Law Act 1975 – whether the Family Court of Australia can restrain the Secretary, Department of Immigration & Multicultural & Indigenous Affairs from deporting an unlawful non-citizen parent on the basis of the principles expressed in s.60B of the Family Law Act – whether s.60B of the Family Law Act 1975 and/or the United Nations Convention on the Rights of the Child confer fundamental rights upon children to have contact with their parents and that fundamental rights in this sense are to be found in international instruments as well as the common law.

Appeal dismissed.

No order as to costs of and incidental to the appeal.

Reportable.

NICHOLSON CJ AND O’RYAN J

INTRODUCTION

This is an appeal by the mother against orders made by Chisholm J on 10 October 2002. The mother is a citizen of the Russian Federation who arrived in Australia using a false passport.

She subsequently formed a relationship with the first respondent and their child, whom the trial Judge named “Mark” for purposes of anonymity, was born 14 December 2001.

It is common ground that the mother’s status under the Migration Act 1958 (Cth) (“the Migration Act”) is that of an unlawful non-citizen (s.14 Migration Act). Section 189 of the Migration Act requires her placement in immigration detention and she can only be released upon the grant of a visa or for the purpose of her removal from Australia. Section 198(6) of the Migration Act provides:

“An officer must remove as soon as reasonably practicable an unlawful non-citizen if:
(a)     the non-citizen is a detainee; and
(b)     the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and
(c)     one of the following applies:
(i)the grant of the visa has been refused and the application has been finally determined;
(iii) the visa cannot be granted; and

(d) the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.”

Mark has lived with the father since the end of May 2002, at which time the mother was taken into detention at the Villawood Immigration Detention Centre (“Villawood”). The father, who is unemployed and has the care of his two other children, takes him to visit her there.

The mother’s proceedings before Chisholm J were commenced by an application filed on 9 September 2002. The father and the Minister, Department of Immigration & Multicultural & Indigenous Affairs (“the Minister”) were the respondents to the application. In the result, his Honour determined that the Secretary, Department of Immigration & Multicultural & Indigenous Affairs (“the Secretary”) was the appropriate respondent.

THE APPLICATION

In addition to seeking both final and interim residence and contact orders in respect of the child, the mother sought orders for the child to be permitted to reside with her at Villawood. She also sought orders in the following terms:
“…
3.pending further order of the Court that no party to these proceedings and or by their agents, cntractors (sic) or employees make any decision, make any arrangements or take any step which may, will or does result in the Child […] being separated from his Mother or his Father […] with the effect or result that either Contact or Residence cannot take place or have effect within Australia.

…

6.That no decision, arrangements or step be taken by any party to the proceedings for the removal of the Mother […] from Australia pending further order of the Court.”

His Honour rephrased the wording of the orders sought in the application (which he described in the course of his judgment as “the restraining order”) in the following way:

“That pending determination of the substantive proceedings, the Respondents or their agents be restrained from removing the Applicant from Australia.”

The application was opposed by the Secretary. Also, although not relevant to the matters before us, we would note that the father made a cross application in respect of residence and contact orders.

His Honour declined to make the orders sought by the mother. He did, however make the following interim orders:

“1.That until further order the child live with the father.

2.That child (sic) have such contact with the mother as the parties may agree; and in the absence of other agreement contact from 9 a.m. to 5 p.m. at the Villawood Detention centre (or other place where the mother might be residing) three days each week, unless the father reasonably believes on medical advice that the child is not well enough to have such contact.

3.That the father cause the child to be delivered at the start of such contact periods and to be collected at the end of such contact periods.

4.That the mother’s application for interim and final orders be otherwise dismissed but that the mother have leave to apply within 28 days to vary or set aside this order in so far as it dismisses her application for final relief against the Secretary for Immigration & Multicultural & Indigenous Affairs.

5.That the proceedings be amended to substitute the Secretary of the Department as the second respondent in place of the Minister.

6.That a Family Report be prepared in relation to section 62G(2).”

BACKGROUND

The mother stated that she fled Vladivostok, fearing for her life. She described events that Chisholm J said were “frightening and terrible”. These include her witnessing a murder in a nightclub and enduring rape on a number of occasions by casino security guards and local police.

According to his Honour’s judgment, the mother arrived in Australia in 1997. The submissions on her behalf state that her arrival was in July 1998, as does the decision of the Refugee Review Tribunal in evidence before us. Nothing turns on this difference.

Following her detection and detention in Australia on 28 April 1999 according to the decision of the Refugee Review Tribunal, she applied for a protection visa on the basis that she was a refugee. On 5 May 1999, the application was refused by a delegate of the Minister. Thereafter, the Refugee Tribunal refused her application for review and confirmed the decision. She then appealed to the Federal Court without success and applied unsuccessfully to the Minister to exercise his discretion in her favour. There were no proceedings on foot in relation to the mother’s status under the Migration Act at the time of trial before Chisholm J, other than that she stated she was contemplating an application to the High Court.

THE TRIAL JUDGMENT

His Honour recorded the submission of Mr Killalea, counsel for the mother, that the “restraining order” she was seeking was a “parenting order” under s.64B(1)(a) or (b) of the Family Law Act 1976 (Cth) (“the Act”). Section 64B(2) states:

“A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)contact between a child and another person or other persons…”

His Honour noted that it was submitted that the restraining order was a parenting order either because it was a “residence” order or a “contact” order, and that the question of the mother’s removal from Australia was relevant both to residence and contact, and that s.65E of the Act applies. Section 65E states:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
His Honour said:

“13.In my view, the last point begs the question; one must first consider the question whether the order is a parenting order before determining what principles apply to it.

14.Whether an order is a parenting order may be ultimately a matter of degree. There is, no doubt, a connection between the child's residence and contact and the mother's possible removal from Australia. However, in my view the connection is not so close as to make the order properly characterised as a “residence order” or a “contact order”. As a matter of ordinary language, I would not say that the order deals with residence or contact; instead, it deals with the mother's removal or non-removal from Australia by immigration authorities.

Does the paramountcy principle apply?
15.In my view, therefore, an order in those terms would not be a parenting order but an injunction under s 68B of the Act. Because it is an injunction, the paramount consideration does not expressly apply to it. Section 65E, which contains that principle, applies only to the making of parenting orders. A finding that the restraining order would promote the child's best interest may well be a necessary condition for an injunction under s 68B, but it is not a sufficient condition. While the matter has not been argued in this case, and I would leave it open for further consideration, my present view is that the child's best interests, while it might often be a matter of the greatest importance, is not, as a matter of law, the paramount consideration in granting injunctions under s 68B. [footnote omitted].

16.It follows that I have doubts about the starting point of the mother's submission, namely that the restraining order she seeks is governed by the paramountcy principle. If it is not, then the exercise of discretion would be at large, although of course to be exercised having regard to the provisions of the Act. In that exercise of discretion, I do not think it can be taken for granted that the balancing exercise that might be involved would result, necessarily, in the Court giving overwhelming weight to the interest of the child and disregarding the matter of the orderly operation of immigration law. However, the submissions did not really canvass the matter in this way, and it is not necessary or appropriate to express views about it. For the purposes of this judgment I will assume, in the mother's favour, that the paramountcy principle does apply to the restraining order that she seeks.”

His Honour commented that counsel for the mother relied on the decision of the High Court in Re LSH; Ex Parte RTF (1987) 164 CLR 91 as authority for the proposition that the Family Court has “power to grant an injunction against a third party as ancillary relief for the purpose of protecting and enforcing a right or claim to custody or access under the Family Law Act” (per Mason CJ at 100). However, counsel also acknowledged that there is a limit to the orders that can be made against third parties. In this regard, his Honour referred to the remarks of Gibbs J (as he then was) in Ascot Investments v Harper (1981) 148 CLR 337 (at 354).

His Honour observed that Gibbs J’s remarks had been expressly applied to the interaction of the Act and the Migration Act in the Federal Court of Australia decision in Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516 per Drummond J.

Drummond J held that ss.68B and 114 of the Act did not confer power on the Court to restrain immigration officers from performing mandatory duties cast upon them by the provisions of ss.189 and 198(5) of the Migration Act, including the obligation to remove from Australia “as soon as reasonably practicable”.

Before Chisholm J, counsel for the mother made two important concessions:
1.That the Court could not make the restraining order if the order would impose on departmental officers a duty that they would not otherwise be liable to perform; and
2.That an order compelling departmental officers to provide residence or contact for the child in Villawood would impose such a duty and should not be made.
He submitted, however, that the restraining order concerned would not impose such a duty and that the Court could and should make it.

It was submitted on behalf of the mother that the relevant words in s.198(6) should be taken to mean that it would not be reasonably practicable to remove the mother where to do so would be contrary to the best interests of the child. Reliance was placed on s.65E of the Act and/or the United Nations Convention on the Rights of the Child (“UNCROC”) to support this interpretation.

Chisholm J said that the argument for the mother came down to the following proposition: “that where the removal of a parent under s 198 of the Migration Act would be contrary to the best interests of a child in Australia, such a removal is not “reasonably practicable” within the meaning of that section.”

His Honour did not accept the argument. He held that as a matter of ordinary language, the proposition advanced for the mother was not a plausible interpretation of the opening words. He said the matters that would fall within that phrase would include such things as lack of travel documents, unavailability of transport and the like. He said there were no such difficulties in this case and that:

“29.… the phrasing of the opening words of the sub-section suggest that they are addressed not so much to the question whether the person should be removed, but to the question how soon he or she should be removed.

30.The removal of a parent in circumstances such as the present could be characterised in many ways. It might be seen as contrary to the child's interests, or sad, or tragic. But there are no practical difficulties in removing the mother. However regrettable it might be from the point of view of the mother or the child, I do not think it can be said that her removal is “not reasonably practicable”. As Mr Williams said, the phrase does not include reference to whether it is desirable for the person to be removed, or invite or allow consideration of discretionary issues.

31.I have read the immigration authorities to which I was referred. There is no authority directly in point. The mother sought to rely on a passage in Nadn and Nado v The Minister, a decision of Lindgren J. The passage relied on is this:

In relation to the depression ground, no medical evidence was presented and I am not persuaded that the mere reference to depression and treatment for it raises a serious question to be tried as to whether it is reasonably practicable for the Applicant Nadn to be removed.

32.That is a fragile basis indeed, since the Court was merely indicating that because of lack of evidence it was not necessary to consider the matter. Other cases to which I was referred do not assist the mother’s case. It may well be that where removal would endanger the health of the detainee, while that risk exists the person’s removal would not be “as soon as reasonably practicable”.

33.But there seems no authority in which the interests of a child or any other person's interest have been held to make the removable impracticable. This is not surprising. As Mr Williams pointed out, the thrust of the relevant provisions is emphatically to exclude the weighing up of such matters or to permit or require officials to do so.” [footnotes omitted].

The trial Judge next dealt with the submission for the mother that any ambiguity about the meaning of the term “reasonably practicable” ought to be resolved in favour of a meaning consonant with s.65E of the Act. Chisholm J took the view that the words “reasonably practicable” have their ordinary meaning, saying:

“34.In his additional written submissions, Mr Killalea said that if there is any doubt about the meaning of the term "reasonably practicable", that ambiguity ought to be resolved in favour of a meaning consonant with s 65E of the Family Law Act for reason of the manifest beneficial nature of that provision.

35.I think there are two difficulties with this argument. Firstly, I do not think there is any such ambiguity in s 198(6). That is, I do not think that there are two plausible meanings, one of which would be the interpretation advanced by the mother. Secondly, I see no logical reason why, if there were such an ambiguity, it should be resolved by reference to s 65E of the Family Law Act 1975. A much more obvious approach and one that seems more consistent with general principles of statutory interpretation, would be to interpret the phrase in the context of the Migration Act with a view to giving effect to that Act read as a whole.

36.As for the Convention on the Rights of the Child, it would in my view be appropriate to turn to it as an aid to the construction of s 198 only if there remained an ambiguity when s 198 was considered in the context of the Migration Act. Ordinary principles of construction, in my view, would mean that one must first look at s 198 in the context of the Migration Act. Only if it were ambiguous when read in that context could it possibly be argued that the Convention would provide proper guidance.”

Chisholm J found his conclusions were supported by two further considerations. He said:
“39.The conclusion I have reached on the basis of the ordinary meaning of the words in s 198 is supported by two other considerations. The first is a consideration of the practical implications of the construction the mother urges. There is some suggestion in the submissions for the mother that the argument is specifically about interim proceedings and might not apply at the final hearing. I am not sure that the submissions consistently said this. At one point, I believe that Mr Killalea indicated that he thought that the interpretation would continue to apply at the final hearing.
40.However, the suggestion, if it was made, that the Court could make the restraining order as an interim order but not as a final order, raises a problem of its own. There is no suggestion that the Minister's position is likely to change. Thus, if there is no power to make the restraining order as a final order, the end result would appear inevitably to be that the mother will be removed from Australia. If so, it would be difficult to see that the Court should make such an order on an interim basis, even if it had power to do so, since the interim order would be essentially futile.”

Chisholm J then explained how an interpretation which permitted a final order under the Act to prevent removal of a parent would consistently prevent such actions and “would significantly undermine the operation of the Migration Act.” His Honour continued:

“43.This leads me to the second consideration. The construction advanced by the mother would, as Mr Williams puts it in his supplementary submissions, authorise orders which would defeat the clear intention of specific provisions in the Migration Act which provide a detailed code dealing with, relevantly, removal from Australia. I know of no authorities in Australia or elsewhere that would support such an interpretation of the Family Law Act. Certainly, none has been cited.

44.On the contrary, there is a line of cases in England from the 1960s that consistently refuse to allow applications for orders in proceedings governed by the paramount consideration principle to defeat the operation of immigration laws. It is unnecessary to examine the detail of those authorities; they are not precisely in point, but the conclusion that I have reached is consistent with them.” (footnotes omitted)

His Honour made reference to the following authorities: In re Mohamed Arif (An Infant) [1968] 1 Ch 643; In re F (A Minor) (Wardship: Immigration) [1990] Fam 125; Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427; Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427; Crown v Secretary of State; Ex Parte T (1995) 1 Fam LR 293; Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516 and B and B and Minister for Immigration & Multicultural & Indigenous Affairs (Dawe J, unreported, No. AD3433/02, delivered 9 October 2002)).

Chisholm J concluded this section of his judgment [at 45] with the following sensitive passage:

“For these reasons, while I feel great sympathy for the mother and the child, I am driven to the conclusion that the law does not permit me to make the order sought by the mother. The mother's submissions depend entirely on a construction that, in the end, I cannot accept as representing the law. Firstly, it is contrary to the ordinary meaning of the words, especially when read in context. Secondly, the construction proposed by the mother would tend to undermine the operation of the Migration Act and would be contrary to the approach of other Courts in the reported and unreported authorities that have considered the operation of family law in relation to persons affected by immigration laws.”

Chisholm J then proceeded to deal with the application for interim parenting orders. Although the mother’s Notice of Appeal purports to appeal from the whole of his Honour’s orders, it is her application as it relates to the Secretary which was the substance of argument before us. For the sake of completeness, we would also summarise his Honour’s conclusions as to parenting orders as follows:

·No orders should be made that would lead to the child returning to Russia with the mother. The mother’s evidence about her fears for her life in Russia made this an obvious conclusion and the contrary was not proposed.
·It is important for the child to have as much contact as possible while the mother remains in Australia.
·As a matter of law it is open to the Minister or to the Secretary to detain the mother somewhere other than Villawood, however, there was no evidence that this was likely.
·On balance his Honour was not persuaded that it was appropriate to depart from the existing situation, in light of the likelihood of deportation in the near future and the mother’s state of health.
·The course most likely to promote the child’s best interest was to preserve the existing situation, with contact as frequent as possible
·It would not be reasonable to order the father to provide the child for contact more than three times a week.

THE APPEAL

The mother’s appeal was heard during the same special sittings as the case of B and B and Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451. In addition to the written submissions filed prior to the hearing, reliance was placed by the Secretary upon submissions as to the relationship and interpretation of the Migration Act and the Act made on behalf of the Minister in that case.

Mr Killalea for the mother subsequently provided additional submissions on such matters to which Mr Kennett of Counsel for the Secretary responded. The father entered an appearance at the appeal hearing but did not seek to be heard save as to the question of costs.

The appeal of the mother raised three grounds:

“1.His Honour erred (para 43) in holding, essentially, that s. 198 of the Migration Act evinced a clear intention, by the Parliament, that s. 198 provided a detailed code dealing with removal of unlawful non-citizens from Australia.

2.His Honour should have held that s. 198 of the Migration Act 1958 was not cast in terms which were sufficiently clear to override the principle, in para.60B(2)(a) of the Family Law Act, that children have the right to know and be cared for by both their parents …”.

3.His Honour erred in relying on, in total or in part at para 44 the decisions of Re Mohamed Arif (1968) 23643, and as otherwise noted at Footnote number 8 of his Judgment.”

The Notice of Appeal of the mother stated that she sought the following interim orders:

“1.Pending further Order, that the Secretary, D.I.M.I.A. be restrained from taking any step or making any arrangement which will or would result in the removal of the Mother […] from Australia pending final determination of this matter by the Family Court.

2.That interim residence, daily care and control of the child […] D.O.B. 14 December 2001 be granted to the Mother, […].

3.Concurrently or in the alternative that no party to these proceedings and or by their agents, contractors or employees make any decision, make any arrangements or take any step which may, will or does result in the child […] being separated from his Mother or his Father […] with the effect or result that either contact or residence cannot take place or have effect in Australia.

4.That the father […] have contact with the child […] as may be agreed between the Mother and Father from time to time.”

In the Notice of Appeal the mother sought the following final orders:

“1.Concurrently or in the alternative that no party to these proceedings and or by their agents, contractors or employees make any decision, make any arrangements or take any step which may, will or does result in the child […] being separated from his Mother or his Father […] with the effect or result that either contact or residence cannot take place or have effect in Australia.

2.That the Father […] have contact with the child […] as may be agreed between the Mother and Father from time to time.

3.That Residence, daily care and control of the child […] be granted to the Mother […].

4.That the child […] be permitted and allowed to be located at or within the Villawood Immigration Detention Centre or any other facility for the purposes of these orders and that necessary consequent arrangements are made in relation thereto.”

During the hearing before us, we canvassed with Mr Killalea the general disinclination of appellate courts to make detailed orders of the type that he was seeking. In such circumstances, he said that the mother would seek an order restraining the Secretary but otherwise for the matter to be remitted for re-hearing.

At the conclusion of the hearing of the appeal we decided to reserve our decision. Counsel for Secretary was asked to obtain instructions as to whether the Secretary would enter into an undertaking through counsel that the mother would not be removed from Sydney pending our decision. We were advised that no such undertaking would be provided. We therefore determined to make the following order:

“That the second respondent be restrained from removing the appellant from Sydney pending the decision of this Court in Appeal No. 101/2002.”

We also granted liberty to all parties to apply on reasonable notice to a single judge of this Court.

THE ISSUES

The appellant concedes that Chisholm J’s finding that the paramountcy principle does not apply in relation to injunctions sought under s.68(1) of the Act is consistent with the majority judgment of the High Court in CDJ v VAJ (1998) FLC 92-282.

The remaining issues therefore are:

1. Whether the meaning of “reasonably practicable” in s.198(6) of the Migration Act is to be construed with regard to the objects provision of Part VII of the Act (s.60B) such that a Court can find that the statutory duty to remove a parent from Australia pursuant to the Migration Act does not apply.

2. Whether the trial judge was correct in his view that s.198 of the Migration Act constitutes a detailed code dealing with removal from Australia. This conclusion appears to have been based upon his Honour’s interpretation of that Act coupled with the views expressed in a number of English cases relating to deportation, namely In re Mohamed Arif (An Infant) (supra); In re F (A Minor) (Wardship: Immigration) (supra); Re A (A Minor)(Wardship: Immigration) (supra) and Re K and S (Minors) (Wardship: Immigration) (supra).

Submissions of the Parties

The Appellant

The appellant submitted that the best interests of the child are inextricably bound up in the principals contained in s.60B(2)(a) and (b) of the Act to the effect that unless it would be contrary to the child’s best interests, a child has the right to know and be cared for by both parents and to have contact with both parents on a regular basis. It was submitted that the objects and principles stated in s.60B are derived from UNCROC. Reference was made to Re Z (1996) FLC 92-694 at 83,229. The argument advanced by the appellant was that the principles stated in s.60B of the Act may only be overridden by express and unambiguous legislation to the contrary and in this regard Mr Killalea referred to Coco v The Queen (1994) 179 CLR 427 at 437 and in particular to a statement that the Court should not impute to the legislature an intention to interfere with fundamental rights and that any such intention must be clearly manifested by unmistakable and unambiguous language. He also referred to similar statements appearing in Federal Commissioner of Taxation v Citibank (1989) 85 ALR 588 at 614 and Brown v Classification Review Board (1997) 145 ALR 464 at 476. In a further written submission Mr Killalea referred to the endorsement of the principals stated in Coco v The Queen (supra) by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 per Gleeson CJ. at [30] and Daniels Corporation International Pty Ltd & Another v Australian Competition and Consumer Commission (2002) 192 ALR 561 at 565, per McHugh J. at 573, Kirby J. at 584, 588 and 590 and Callinan J. at 592.

The primary submission of Mr Killalea was that because s.198 of the Migration Act did not contain any reference to overriding the jurisdiction of the Court conferred by Part VII of the Act then what he described as a fundamental right conferred by s.60B of the Act should not be taken to have been removed by the operation of s.198 of the Migration Act.

He referred to the fact that the Parliament must be taken to be cognisant with the interaction of the Migration Act and the Act. He referred in particular to s.65Y and s.65Z of the Act which reproduce sections that originally appeared as s.62 of the Migration Act. Section 62 was repealed by the Migration Amendment (Emigration of Certain Children) Act 1983 (Cth) but was essentially reproduced as s.70A of the Act. These sections provide in essence that a child is not to be removed from Australia without the relevant consent of the other parent or the order of a court made under the Act when proceedings in relation to residency or contact are pending in relation to a child. It was accordingly argued that whether or not s.60B of the Act is seen as recognising a new principle arising under UNCROC or recognising an extant common law principle (as acknowledged in Re W (A Minor) (Contact) [1994] 2 FCR 1216 at 1222 and raised in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304 and 305) it was for the Parliament in enacting s.60B to set this out. If the Parliament intended s.198 of the Migration Act to override s.60B of the Act then he said that it was for the Parliament to so legislate.

In relation to the effect of the English decisions based on Arif’s case, Mr Killalea submitted that the essence of those decisions was that the removal/deportation provisions of the relevant United Kingdom Act laid down a code for the control of immigrants and entrusted its administration to the Immigration Authorities. He pointed out that the relevant power in Arif’s case turned upon the exercise of a discretion, namely the satisfaction of the Immigration Officer as to the immigrant’s age; that in Re F it turned upon the exercise of the discretion of the Secretary of State; that in Re A it turned upon the decision of the Home Secretary and that in Re K it turned upon the discretion to be exercised by the Secretary of State.

Mr Killalea pointed out that in the present case no such discretion was extant and that in these circumstances he said that these authorities had no relevance. He relied upon Counsel for the Secretary’s acknowledgment that s.198 of the Migration Act involved the exercise of a duty rather than the making of a decision.

Mr Killalea did not criticise the decision of Drummond J in Molisi v Minister of Immigration and Multicultural Affairs (supra) but sought to rely upon it. He simply pointed out that the reference in s.198 of the Migration Act to removal being effected “as soon as it is reasonably practicable” raised an ambiguity which allowed for an application of the principles set out in s.60B of the Act.

The Submissions of the Secretary

The argument for the Secretary, both before the trial Judge and before us, was that the restraining orders sought in the application were beyond the jurisdiction of the Court and that the making of such orders would be directly inconsistent with the express conferral of powers and duties on the Minister and officers under the Migration Act in relation to persons in immigration detention.

It was further argued that even if there were power to make such orders upon an interim basis they should not be made.

Counsel pointed out that the separate welfare jurisdiction under s.67ZC of the Act to make orders for the welfare of children was not invoked.

He further submitted that because this child is not the child of a marriage, no such jurisdiction arises. (Although not relevant for the purposes of this case, the submission was inconsistent with the subsequent views expressed by the majority of the Full Court in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra)).

It was submitted on behalf of the Secretary that what is really sought in these proceedings are parenting orders and the injunction sought is associated with those orders. It was put that while a parenting order may include an order that the resident parent not move the child to another part of Australia or overseas it cannot extend to ordering a parent to obtain psychiatric treatment: see L v T (1999) FLC 92-875. It was also pointed out that the Court’s power would not extend to directing a prison superintendent to release a lawfully incarcerated prisoner for contact purposes: see T v F (1999) FLC 92-855.

It was submitted that the making of a parenting order is not the occasion to take control of matters which would be beyond the control of either parent and that therefore a parenting order could not extend to ordering the Minister not to remove someone from Australia on the footing that he or she is a parent in respect of whom the court has made, or wishes to make, or may wish to make, a residence order. It was argued that the parenting orders that the court makes must mould themselves to the circumstances in which it finds the parents.

It was further submitted that an order preventing the mother’s removal from Australia is unnecessary to protect the court’s exercise of its jurisdiction in that the mother would not be prevented from making or pursuing an application if she were overseas, so long as the child and/or father remained in Australia.

It was submitted that any order preventing the removal of the mother from Australia in the present circumstances would violate the mandatory provisions of s.198 of the Migration Act and would prevent officers from performing their duty under that provision.

In reliance on Molisi v Minister for Immigration and Multicultural Affairs (supra) it was submitted that the court’s powers under part VII of the Act do not extend to preventing the performance of statutory duties by persons who are strangers to any dispute about custody, guardianship or maintenance.

It was submitted that the subject matter of litigation in this court is not the applicant’s right to remain in Australia per se. It was submitted that the Migration Act expressly provides that that right is to depend wholly on whether a person holds a valid visa.

It was put that the grant and cancellation of visas are executive acts, controlled by detailed provisions of the Migration Act and Regulations, which a court cannot perform or direct (or circumvent, by granting an injunction which had the effect of permitting a person to remain in Australia). It was further submitted that the court does not have jurisdiction to review a decision not to grant a visa.

It was therefore submitted that in those circumstances the general power to grant injunctions with respect to children in s.68B(1) of the Act cannot be read as having been intended to override the specific terms of s.198 of the Migration Act.

In this regard it was argued that the detention provisions of the Migration Act contain a detailed mandatory regime for the treatment of unlawful non citizens, whereas s.68B of the Act is part of a flexible and discretionary regime, designed to deal with a wide range of circumstances and applicable children. It was submitted that the maxim that general laws do not override specific ones is therefore apposite. Reference was made to Pearce DC and Geddes RS, Statutory Interpretation in Australia 5^th ed Butterworths, Sydney, 2001 and McLean v Kowald [1974] 9 SASR 384.

The Minister also sought to rely upon the line of authorities beginning with Arif’s case and the decision of Dawe J in B and B and Minister for Immigration & Multicultural & Indigenous Affairs delivered 9 October 2002. (It is to be noted that the decision was reversed on appeal by majority in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra)).

Conclusions

We regard the first issue as the real one to be determined, that is whether the reference in s.198 of the Migration Act to “removal as soon as is reasonably practical”, creates an ambiguity which enables the application of the principles contained in s.60B of the Act to operate to prevent the removal of the applicant. If it does not then we think that it follows that the specific power to deport a person contained in the Migration Act overrides any rights that may be conferred on the child of such a person by the Act or UNCROC.

In order to determine this issue, we must first consider s.60B of the Act and determine whether it confers a fundamental right, freedom or immunity which may only be overridden in an Act such as the Migration Act by express and unambiguous language to the contrary. No other exception to the mandatory language of s.198(6) is submitted to apply in this case.

SECTION 60B FAMILY LAW ACT

Section 60B of the Act is in the following terms:

“(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children.”

It was inserted into the Act by the Family Law Reform Act 1995 (Cth) (“the Reform Act”) which introduced significant amendments to Part VII of the Act. The Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 made extensive reference to the legislative history of the Reform Act. After discussing the relationship between the Act and UNCROC the court commented that the Act employed a new form of drafting, s.60B(1) providing an object and s.60B(2) setting out the principles underlying that object. It commented that the Reform Act constituted a major re-statement of the law relating to children. It remarked, in a way that might be thought to have some contemporary relevance (at 9.2) that
“It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”

The Court then set out s.60B and continued (at 9.6):
“Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim, namely, that children receive “adequate and proper parenting to help them achieve their full potential” and that parents “fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”. ”

In an important comment in the context of the present case, the court pointed out (at 9.8) that the principles set out in s.60B(2) should be read as directed to effecting the object set out in s.60B(1). After commenting that it is expressly made subject to the children’s best interest, the court continued (at 9.8):
“It cannot be regarded as an exhaustive list of principles which underlie the object in s 60B(1) or the child’s best interests. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in sub-s (2), such as the wishes of children and their right to be protected from abuse.”

After discussing the first part of s.60B(2)(a), namely the “right to know” both parents their Honours said (at 9.11):
“… The right to be “cared for” by both parents has to be read in the context that typically the parents of whom the paragraph speaks are separated and that is likely to involve different degrees of care by the individual parents, a matter which is largely addressed by the categories of parenting orders which the Court may make or the parties may agree upon.”

As to s.60B(2)(b) (the right to have contact with both parents) their Honours said:
“9.13The essential aspect of paragraph (b) in this appeal is the right of children to contact with both parents and the impact which a change of location by one parent may have upon the enjoyment by the children of that right.
9.14It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long-term. That principle has been well established in Australia and in comparable overseas countries for many years. For example, in Australia the position is quite clearly summarised by the High Court in 1988 in M and M, supra, in the passage already quoted at FLC 77,080; CLR 76.
9.15But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children's best interests there is nothing in s 60B which suggests or requires any different outcome. During the course of submissions it was accepted for the Attorney-General and we agree that the Reform Act makes no relevant change to the principles to be applied in relation to physical or sexual abuse cases as stated by the High Court in M and M, supra, and acted upon consistently by this Court in the years since.

…

9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub- section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.

…

10.57We agree with the submissions of the Attorney-General that the rights given to children under s 60B are not rights which are legally enforceable. This view appears to suggest a major inconsistency between legislation which provides for and emphasises the rights of children and at the same time the statement that they are not legally enforceable rights. This apparent dilemma between self- determinism by children and veto by parents or courts is discussed by John Eekelaar: The Interests of the Child and the Child's Wishes: The Role of Dynamic Determinism: in the publication The Best Interests of the Child (1994) P Alston. The point made there is that the unenforceability of these rights is fundamentally because of the inherent conflict between the child's best interests on the one side and self-determinism by the child on the other, against a background of age, maturity, vulnerability to pressures. It may also reflect the nature of the practical day-to-day relationship between parents and their children.” (our emphasis).

The influence of UNCROC upon the drafting of s.60B was considered by the Full Court in B and B: Family Law Reform Act 1995 (supra) (see especially paragraph 3.3) and more recently in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra). The question of whether UNCROC was incorporated into Australian domestic law was not directly argued before us in this case. In this regard, we were referred to Re Z (supra) and Coco v The Queen (supra). However, the majority of the Full Court in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra) thought that it was sufficiently incorporated by the Reform Act to provide a source of constitutional power to make orders under s 67ZC of the Act.

It is true, as Mason CJ. and Deane J. observed in Minister for Immigration and Ethnic Affairs v Teoh (supra) at 286 to 287, that international treaty obligations do not form part of the municipal law of Australia unless implemented by legislation that purports to do so. However, UNCROC has been ratified by every nation in the world except the United States and Somalia. It is a basic treaty dealing with the rights of children. It has been recognised in the Human Rights and Equal Opportunity Commission Act 1986 (Cth) and in the Act. We see no reason to deviate from our view, as expressed in B and B and Minister for Immigration and Multicultural and Indigenous Affairs (supra) that UNCROC has been incorporated into Australian law by (inter alia) s.60B of the Act.

The objects set out in s.60B(1) are underpinned by the rights of the child as prescribed by s.60B(2) and by UNCROC. However, that sub-section and that Instrument implicitly recognise that such rights are subject to a consideration of the child’s best interests. Nevertheless, we think that the rights of the child expressed in s.60B(2) are indeed fundamental in the sense employed in Coco v The Queen (supra). See Mabo v Queensland (No.2) (1992) 175 CLR 1 per Brennan J. at 42. We reject the proposition that fundamental rights are limited to those conferred by the common law. We are of the view that the terms of s.60B itself confers fundamental rights on a child. We also think that fundamental rights and freedoms are also grounded in international law and in Instruments such as the International Covenant on Economic, Social and Political Rights (entered into force in Australia 10/3/76), the International Covenant on Civil and Political Rights (entered into force in Australia 13/11/80) and UNCROC (entered into force in Australia 16/1/91).

We therefore think that s.60B and UNCROC confer significant rights upon a child and to this extent we think that the obiter views expressed by the Full Court in B and B: Family Law Reform Act 1995 (supra) are incorrect.

However, we agree with the views expressed by the Full Court in B and B: Family Law Reform Act 1995 (supra) that s.60B and the relevant provisions of UNCROC must be interpreted in the context of the relationship between the parents having broken down, which means that the practicalities of achieving the object of maintaining regular contact have to be taken into account.

Whether or not s.60B and/or UNCROC confers enforceable legal rights upon children or not, counsel for the mother asserts in the present case that the rights so conferred upon the child can be relied upon by the mother to avoid deportation pursuant to s.198(6) of the Migration Act. In our view, such an interpretation clearly extends beyond the intended ambit of s.60B.

The rights contained in s.60B concern those of the children, not parents. We therefore see difficulty in a parent seeking to rely upon them in proceedings relating to themselves and not the child. It is true that in Minister for Immigration and Ethnic Affairs v Teoh (supra), the High Court took the view that in considering the issue of deportation in circumstances where the proposed deportee had children living in Australia, the decision maker was bound to have regard to UNCROC as part of the decision making process. However, this is not to say that the Court thought that UNCROC was decisive to that process. Further, it is clear, as the Full Court in B and B: Family Law Reform Act 1995 (supra) observed, such rights are not absolute rights, being subject to the best interests test and the other limitations to which the Court therein referred.

As the trial Judge pointed out, whilst the mother’s deportation may make the child’s contact with his mother more difficult, it does not necessarily render her right to do so nugatory. Regardless of where the mother resides following her deportation from Australia, subject to the provisions of s.69E of the Act, she retains the right to apply to the Family Court for a residence or contact order in respect of the child.

It must be said however, that the reality of this proposition is dependent upon where the mother may eventually live. For example, it would be extremely difficult for her to enforce such rights if she returns to Russia, but she may well be able to do so from a country like New Zealand. In the case of the latter country, apart from its geographical proximity, there is a legal system similar to that in Australia, an established legal aid system, access to trained family lawyers and video-link facilities. In the case of Russia and many other countries, much of this would be problematical. The reality is that the Migration Act operates in such a way as to negate fundamental rights conferred by Acts such as the Family Law Act and international instruments such as UNCROC. However, it is the role of the Parliament and not the Courts to determine these issues in circumstances where the intention of Parliament is clear, as we think that it is in this case.

We think it clear that this part of the Migration Act is expressed in terms that override Australia’s international obligations (UNCROC) as incorporated in Australian municipal law and also the Act. If this is so then it is apparent that the effect is to override the rights of an Australian child to know and have contact with one of his parents who entered Australia on a false passport. It is nowhere suggested that the mother is anything but a good and loving mother and like the trial Judge we feel great sympathy for the mother and the child.

However, in our view, rights conferred by s.60B and UNCROC cannot be interpreted as interfering with the reasonable practicability of removing the mother pursuant to s.198(6) of the Migration Act.

We therefore agree with the conclusion of the trial Judge that, as a matter of ordinary language, the proposition advanced on behalf of the mother is not a plausible interpretation of the words “reasonably practicable” in s.198(6) of the Migration Act.

Of course, in some cases, there may be real impediments to the removal of the person concerned as considered by the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 and by this Court in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra).

We note, however, that this case falls into a different category to B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra). That case involved an application under s.67ZC of the Act seeking that the Court exercise its welfare jurisdiction. No such application was made here. Secondly, that was a case involving the detention of child asylum seekers which clearly distinguishes it from the instant case.

For the reasons given, we are of the view that Grounds 1 or 2 of the mother’s appeal have not been made out.

Whilst it does not affect our conclusion, for the sake of completeness, we would add that it is unnecessary to consider the line of English authority beginning with In re Mohamed Arif (An Infant) (supra) referred to by the trial Judge. The majority expressed some criticism of that line of authorities in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra) in the context of their applicability to the detention provisions of the Migration Act. The majority in that case also pointed to the fact, as did counsel for the appellant in that case, that those decisions involved the exercise of a discretion and for that reason are distinguishable from the present case. It may therefore be that Chisholm J’s reliance, if he did so, upon those authorities in support of a principle that the Court should not interfere with decisions of the executive in relation to migration issues is open to question.

However, we do not think that a discussion of those authorities is instructive in the present case, as counsel’s submissions were not directed to the exercise of a discretion but rather to the proper interpretation of s.198(6) of the Migration Act. It was implicit in the submissions on behalf of the mother that in the event that she was unsuccessful on the first issue identified at paragraph 3 hereof, it would be unnecessary for us to consider the second issue.

We do not find it necessary to consider the other submissions of the Secretary.

CONCLUSION

For the above reasons, we would dismiss the appeal.

COSTS OF THE APPEAL

At the completion of the hearing of the appeal, we heard submissions as to the costs of the appeal. We agree with Ellis J. that the circumstances do not justify an order as to costs.

ORDER

We would order:-

1. That the appeal be dismissed.

2. That there be no order as to costs of and incidental to the appeal.

ELLIS J.

INTRODUCTION

This is an appeal by the mother against an order made by Chisholm J. on 10 October 2002 in the following terms:-

“1.That until further order the child live with the father.

2.That child (sic) have such contact with the mother as the parties may agree; and in the absence of other agreement contact from 9 a.m. to 5 p.m. at the Villawood Detention centre (or other place where the mother might be residing) three days each week, unless the father reasonably believes on medical advice that the child is not well enough to have such contact.

3.That the father cause the child to be delivered at the start of such contact periods and to be collected at the end of such contact periods.

4.That the mother’s application for interim and final orders be otherwise dismissed but that the mother have leave to apply within 28 days to vary or set aside this order in so far as it dismisses her application for final relief against the Secretary for Immigration & Multicultural & Indigenous Affairs.

5.That the proceedings be amended to substitute the Secretary of the Department as the second respondent in place of the Minister.

6.That a Family Report be prepared in relation to section 62G(2).”

For practical purposes, however, the appeal is against the refusal of the trial Judge to make the order sought by the mother, pending the determination of the substantive proceedings, that the Secretary be restrained from removing her from Australia.
BACKGROUND

The relevant background, as it emerges from the judgment of Chisholm J, may be summarised as follows:-

His Honour recorded that the application before him raised two distinct but related issues. The first was whether the Court could or should make an order preventing immigration authorities removing the mother from Australia, and the second was whether a parenting order of an interim nature should be made in relation to the child Mark (not the correct name of the child).

After referring to the two issues, his Honour said:-

“5.… The mother is from Russia. She has described frightening and terrible events in Vladivostok. She says she witnessed a murder in a nightclub there and subsequently was raped on a number of occasions by the casino security guards and by the local police. She says that she fled, fearing for her life, and left Russia on a false passport, arriving in Australia in 1997.

6.In Australia she had a relationship with the father, who is a party to these proceedings, and she gave birth to Mark, the child who is the subject of these proceedings.”

At the date of the hearing before the trial Judge, Mark was aged nine months and was living with the father.

Subsequent to her arrival in Australia, the mother was detained as a prohibited non-citizen under the Migration Act 1958 (Cth) (“the Migration Act”) and, in April 1999, she applied for a protection visa on the basis that she was a refugee. Her application was refused. She sought a review of that decision, however, the Refugee Tribunal refused her application and affirmed the decision not to grant her a protection visa.

Chisholm J. then recorded that he had been informed that the mother appealed unsuccessfully to the Federal Court and then applied, also unsuccessfully, to the Minister to exercise his discretion in her favour. His Honour also recorded that, at the date of the hearing, there were no proceedings on foot in relation to the mother’s status under the Migration Act.

His Honour further recorded that, at the date of the hearing, the mother was in the Villawood Detention Centre (“Villawood”) and her status under the Migration Act was such that she should be removed from Australia as soon as possible.

Mark was regularly taken by the father to visit the mother at Villawood.

THE APPLICATION

In addition to seeking both final and interim residence and contact orders in respect of the child, the mother sought orders that the child be permitted to reside with her at Villawood. She also sought an order in the following terms:-

“…
3.pending further order of the Court that no party to these proceedings and or by their agents, cntractors (sic) or employees make any decision, make any arrangements or take any step which may, will or does result in the Child […] being separated from his Mother or his Father […] with the effect or result that either Contact or Residence cannot take place or have effect within Australia.

…

6.That no decision, arrangements or step be taken by any party to the proceedings for the removal of the Mother […] from Australia pending further order of the Court.”

Chisholm J. rephrased the wording of paragraph 6 of the order sought by the mother in her application as follows:-

“That pending determination of the substantive proceedings, the Respondents or their agents be restrained from removing the Applicant from Australia.”

That application was opposed by the Secretary. Although not relevant to the matters before this Court, I note that the father made a cross-application in respect of residence and contact orders. His Honour declined to make the restraining order sought by the mother.

THE JUDGMENT OF THE TRIAL JUDGE

At the hearing before Chisholm J, counsel for the mother submitted that the “restraining order” sought by the mother was a “parenting order” within the meaning of ss.64B(1)(a) or (b) of the Family Law Act 1975 (Cth) (“the Act”), subsection (2) of which provides:-

“A parenting order may deal with one or more the following:

(a) the person or persons with whom a child is to live;

(b) contact between a child and another person or other persons;

(c) maintenance of a child;

(d) any other aspect of parental responsibility for a child”

Counsel submitted that the restraining order was a parenting order either because it was a “residence order” or a “contact order”. He further submitted that the question of the mother’s removal from Australia was relevant both to residence and contact and that s.65E of the Act was applicable. That section provides:-

“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

In relation to those submissions, his Honour recorded:-

“13.In my view, the last point begs the question; one must first consider the question whether the order is a parenting order before determining what principles apply to it.

14.Whether an order is a parenting order may be ultimately a matter of degree. There is, no doubt, a connection between the child's residence and contact and the mother's possible removal from Australia. However, in my view the connection is not so close as to make the order properly characterised as a “residence order” or a “contact order”. As a matter of ordinary language, I would not say that the order deals with residence or contact; instead, it deals with the mother's removal or non-removal from Australia by immigration authorities.

Does the paramountcy principle apply?
15.In my view, therefore, an order in those terms would not be a parenting order but an injunction under s 68B of the Act. Because it is an injunction, the paramount consideration does not expressly apply to it. Section 65E, which contains that principle, applies only to the making of parenting orders. A finding that the restraining order would promote the child's best interest may well be a necessary condition for an injunction under s 68B, but it is not a sufficient condition. While the matter has not been argued in this case, and I would leave it open for further consideration, my present view is that the child's best interests, while it might often be a matter of the greatest importance, is not, as a matter of law, the paramount consideration in granting injunctions under s 68B. [footnote omitted].

16.It follows that I have doubts about the starting point of the mother's submission, namely that the restraining order she seeks is governed by the paramountcy principle. If it is not, then the exercise of discretion would be at large, although of course to be exercised having regard to the provisions of the Act. In that exercise of discretion, I do not think it can be taken for granted that the balancing exercise that might be involved would result, necessarily, in the Court giving overwhelming weight to the interest of the child and disregarding the matter of the orderly operation of immigration law. However, the submissions did not really canvass the matter in this way, and it is not necessary or appropriate to express views about it. For the purposes of this judgment I will assume, in the mother's favour, that the paramountcy principle does apply to the restraining order that she seeks.”

His Honour then considered the position of the mother under immigration law and recorded:-

“17.The mother's position under the immigration law is not in question. It is accepted that she falls within s 198(6) of the Migration Act 1958. This is because, omitting some details and technicalities, she is an unlawful non-citizen and a detainee, and she has made a valid application for a substantive visa, but the granting of a visa has been refused and her application has been finally determined. The result is that by virtue of s 198(6), an officer must remove her “as soon as reasonably practicable”. It follows that at the time of the hearing, officers were required by law to remove the mother from Australia as soon as reasonably practicable.”

His Honour then considered whether the Court has power to restrain immigration officers from performing mandatory duties under the Migration Act. He recorded that counsel for the mother had relied upon Re LSH; Ex parte RTF (1987) 164 CLR 91 as authority for the proposition that the Court has “power to grant an injunction against a third party by way of ancillary relief for the purpose of protecting and enforcing a right or claim to custody or access under the Family Law Act” (per Mason CJ. at 100). Counsel, however, acknowledged, by reference to Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 per Gibbs J. at 354, that there is a limit to the orders that can be made against third parties.

His Honour noted that the observation of Gibbs J. had been expressly applied to the interaction of the Act and the Migration Act by Drummond J. in Molisi v Minister for Immigration and Multicultural Affairs (2001) 108 FCR 516 where his Honour held that the provisions of ss.68B and 114 of the Act did not confer power on the Court to restrain immigration officers from performing mandatory duties cast upon them by the provisions of ss.189 and 198(5) of the Migration Act. Chisholm J. noted that the relevant words in s.198(5) are the same as those in s.198(6) and that the correctness of the conclusion reached by Drummond J. was not challenged before him.

Section 198(6) of the Migration Act provides:-

“An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

(a) the non-citizen is a detainee; and

(b)the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

(c) one of the following applies:

(i)the grant of the visa has been refused and the application has been finally determined;

(iii) the visa cannot be granted; and

(d)the non-citizen has not made another valid application for a substantive visa than can be granted when the applicant is in the migration zone.”

His Honour then recorded the following concessions made by counsel for the mother:-

1.That the Court could not make the restraining order if the order would impose on departmental officers a duty that they would not otherwise be liable to perform; and

2.That an order compelling departmental officers to provide residence or contact for the child in Villawood would impose such a duty and should not be made.

However, counsel for the mother submitted that the restraining order sought would not impose such a duty and that the Court could and should make that order.

Counsel further submitted that the relevant words in s.198(6) should be taken to mean that it would not be reasonably practicable to remove the mother from Australia where to do so would be contrary to the best interests of the child. Thus, he submitted, departmental officers presently had no duty to remove her.

Chisholm J. recorded that the argument for the mother could be summarised by the following proposition:-

“27.… where the removal of a parent under s 198 of the Migration Act would be contrary to the best interests of a child in Australia, such a removal is not “reasonably practicable” within the meaning of that section.”

His Honour did not accept that argument, finding that, as a matter of ordinary language, the interpretation advanced for the mother was not a plausible interpretation of the opening words of s.198(6) of the Migration Act. His Honour expressed the view that matters that would ordinarily fall within that phrase would include such things as the lack of necessary travel documents, unavailability of transport and the like. His Honour observed there were no such difficulties in the instant case and further that:-

“29.… the phrasing of the opening words of the sub-section suggest that they are addressed not so much to the question whether the person should be removed, but to the question how soon he or she should be removed.

30.The removal of a parent in circumstances such as the present could be characterised in many ways. It might be seen as contrary to the child's interests, or sad, or tragic. But there are no practical difficulties in removing the mother. However regrettable it might be from the point of view of the mother or the child, I do not think it can be said that her removal is “not reasonably practicable”. As Mr Williams said, the phrase does not include reference to whether it is desirable for the person to be removed, or invite or allow consideration of discretionary issues.

31.I have read the immigration authorities to which I was referred. There is no authority directly in point. The mother sought to rely on a passage in Nadn and Nado v The Minister, a decision of Lindgren J. The passage relied on is this:

In relation to the depression ground, no medical evidence was presented and I am not persuaded that the mere reference to depression and treatment for it raises a serious question to be tried as to whether it is reasonably practicable for the Applicant Nadn to be removed.

32.That is a fragile basis indeed, since the Court was merely indicating that because of lack of evidence it was not necessary to consider the matter. Other cases to which I was referred do not assist the mother’s case. It may well be that where removal would endanger the health of the detainee, while that risk exists the person’s removal would not be “as soon as reasonably practicable”.

33.But there seems no authority in which the interests of a child or any other person's interest have been held to make the removable impracticable. This is not surprising. As Mr Williams pointed out, the thrust of the relevant provisions is emphatically to exclude the weighing up of such matters or to permit or require officials to do so.” [footnotes omitted].

His Honour then addressed the submission on behalf of the mother that any ambiguity regarding the meaning of the term “reasonably practicable” ought to be resolved in favour of a meaning consonant with s.65E of the Act. His Honour recorded:-

“34.In his additional written submissions, Mr Killalea said that if there is any doubt about the meaning of the term "reasonably practicable", that ambiguity ought to be resolved in favour of a meaning consonant with s 65E of the Family Law Act for reason of the manifest beneficial nature of that provision.

35.I think there are two difficulties with this argument. Firstly, I do not think there is any such ambiguity in s 198(6). That is, I do not think that there are two plausible meanings, one of which would be the interpretation advanced by the mother. Secondly, I see no logical reason why, if there were such an ambiguity, it should be resolved by reference to s 65E of the Family Law Act 1975. A much more obvious approach and one that seems more consistent with general principles of statutory interpretation, would be to interpret the phrase in the context of the Migration Act with a view to giving effect to that Act read as a whole.

36.As for the Convention on the Rights of the Child, it would in my view be appropriate to turn to it as an aid to the construction of s 198 only if there remained an ambiguity when s 198 was considered in the context of the Migration Act. Ordinary principles of construction, in my view, would mean that one must first look at s 198 in the context of the Migration Act. Only if it were ambiguous when read in that context could it possibly be argued that the Convention would provide proper guidance.

37.However, there was no cogent submission that s 198, when read in its context, was ambiguous in the relevant sense, that is, ambiguous in that the meaning contended for by the mother was a possible interpretation. In these circumstances, I do not think it would be sensible for me to recite provisions of the Migration Act or attempt to summarise it. I will only say that the context of the Migration Act as a whole tends, in my view, to negate any relevant ambiguity that s 198 might be thought to have, when taken out of context.”

His Honour concluded:-

“38.To summarise, in my view, the words in s 198(6) have their ordinary meaning. Applying that meaning, in my view, it cannot be said that it is not reasonably practicable for the Secretary now to remove the mother from Australia.

39.The conclusion I have reached on the basis of the ordinary meaning of the words in s 198 is supported by two other considerations. The first is a consideration of the practical implications of the construction the mother urges. There is some suggestion in the submissions for the mother that the argument is specifically about interim proceedings and might not apply at the final hearing. I am not sure that the submissions consistently said this. At one point, I believe that Mr Killalea indicated that he thought that the interpretation would continue to apply at the final hearing.

40.However, the suggestion, if it was made, that the Court could make the restraining order as an interim order but not as a final order, raises a problem of its own. There is no suggestion that the Minister's position is likely to change. Thus, if there is no power to make the restraining order as a final order, the end result would appear inevitably to be that the mother will be removed from Australia. If so, it would be difficult to see that the Court should make such an order on an interim basis, even if it had power to do so, since the interim order would be essentially futile.”

His Honour then addressed the mother’s application for interim parenting orders. For the sake of completeness, I would summarise his Honour’s conclusions relating to those orders as follows:-

·     No orders should be made that would lead to the child returning to Russia with the mother. The mother’s evidence about her fears for her life in Russia made this an obvious conclusion and the contrary was not proposed.
·     It is important for the child to have as much contact as possible whilst the mother remains in Australia.
·     As a matter of law, it is open to the Minister or to the Secretary to detain the mother somewhere other than Villawood. However, there was no evidence that this was likely.
·     On balance, his Honour was not persuaded that it was appropriate to depart from the existing situation, in light of the likelihood of deportation of the mother in the near future and her state of health.
·     The course most likely to promote the child’s best interest was to preserve the existing situation, with contact as frequently as possible.
·     It would not be reasonable to order the father to provide the child for contact more than three times a week.

THE GROUNDS OF APPEAL

Although the mother’s Notice of Appeal purports to appeal from the whole of Chisholm J’s order, her application, as it relates to the Secretary, was the substance of argument before this Court. In addition to the written submissions filed prior to the hearing, reliance was placed by the Secretary upon submissions as to the relationship and interpretation of the Migration Act and the Act made on behalf of the Minister in B and B and Minister for Immigration & Multicultural & Indigenous Affairs [2003] FamCA 451.

Counsel for the mother, subsequent to the hearing, provided additional written submissions, to which counsel for the Secretary responded.

The father appeared at the hearing of the appeal but did not seek to be heard, save on the question of costs.

The mother’s grounds of appeal are:-

“1.His Honour erred (para 43) in holding, essentially, that s. 198 of the Migration Act evinced a clear intention, by the Parliament, that s. 198 provided a detailed code dealing with removal of unlawful non-citizens from Australia.

2.His Honour should have held that s. 198 of the Migration Act 1958 was not cast in terms which were sufficiently clear to override the principle, in para.60B(2)(a) of the Family Law Act, that children have the right to know and be cared for by both their parents …”.

3.His Honour erred in relying on, in total or in part at para 44 the decisions of Re Mohamed Arif (1968) 23643, and as otherwise noted at Footnote number 8 of his Judgment.”

In the event that the appeal was allowed, the mother sought the following interim order:-

“1.Pending further Order, that the Secretary, D.I.M.I.A. be restrained from taking any step or making any arrangement which will or would result in the removal of the Mother […] from Australia pending final determination of this matter by the Family Court.

2.That interim residence, daily care and control of the child […] D.O.B. 14 December 2001 be granted to the Mother, […].

3.Concurrently or in the alternative that no party to these proceedings and or by their agents, contractors or employees make any decision, make any arrangements or take any step which may, will or does result in the child […] being separated from his Mother or his Father […] with the effect or result that either contact or residence cannot take place or have effect in Australia.

4.That the father […] have contact with the child […] as may be agreed between the Mother and Father from time to time.

In the event that the appeal was allowed, she also sought the following final order:-

“1.Concurrently or in the alternative that no party to these proceedings and or by their agents, contractors or employees make any decision, make any arrangements or take any step which may, will or does result in the child […] being separated from his Mother or his Father […] with the effect or result that either contact or residence cannot take place or have effect in Australia.

2.That the Father […] have contact with the child […] as may be agreed between the Mother and Father from time to time.

3.That Residence, daily care and control of the child […] be granted to the Mother […].

4.That the child […] be permitted and allowed to be located at or within the Villawood Immigration Detention Centre or any other facility for the purposes of these orders and that necessary consequent arrangements are made in relation thereto.”

During the course of the hearing of the appeal, the Court canvassed with counsel for the mother the general disinclination of appellate courts, if the appeal was allowed, to make detailed orders of the type that he was seeking. In the circumstances, he submitted the mother would seek an order restraining the Secretary from taking any steps or making any arrangements which would result in her removal from Australia pending the final determination of the proceedings but otherwise that the matter be remitted for rehearing.

THE ISSUES

In his written submissions, counsel for the mother conceded that Chisholm J’s conclusion in relation to the paramountcy principle, namely that it does not apply in relation to injunctions sought under s.68B of the Act, is consistent with the majority judgment of the High Court in CDJ v VAJ (1998) FLC 92-828.

The remaining issues for consideration are therefore:-

1.Whether the meaning of “reasonably practicable” in s.198(6) of the Migration Act is to be construed with regard to the objects provision of Part VII of the Act (s.60B) such that a Court can find that the statutory duty to remove an unlawful non-citizen parent from Australia pursuant to the relevant provisions of the Migration Act does not apply in the instant case.

2.Whether the trial Judge was correct in his view that s.198 of the Migration constitutes a detailed code dealing with removal of unlawful non-citizens from Australia.

3.Whether the trial Judge erred in his consideration of the effect of the English authorities referred to in paragraph 161 hereof.

THE SUBMISSIONS ON APPEAL

The Mother’s Submissions

The mother submitted that the best interests of the child are inextricably bound up in the principles expressed in s.60B(2)(a) and (b) of the Act to the effect that, unless it were contrary to the child’s best interests, a child has the right to know and be cared for by both parents, and to have contact with both parents on a regular basis. It was submitted that the objects and principles stated in s.60B are derived from the United Nations Convention on the Rights of the Child (“UNCROC”). In support of this submission, counsel referred to Re Z (1996) FLC 92-694 at 83,229. Counsel for the mother submitted that the principles set out in s.60B of the Act may only be overridden by express and unambiguous legislation to the contrary. In support of his submissions, he referred to Coco v The Queen (1994) 179 CLR 427 where the majority (Mason CJ, Brennan, Gaudron and McHugh JJ.) observed at 437:-

“The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.” [footnote omitted].

Counsel also referred in support of his submission to Federal Commissioner of Taxation & Others v Citibank Ltd (1989) 85 ALR 588 at 614, Brown v Classification Review Board (1997) 145 ALR 464 at 476, Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 per Gleeson CJ. at [30] and Daniels Corporation International Pty Ltd & Another v Australian Competition and Consumer Commission (2002) 192 ALR 561 at 565, per McHugh J. at 573, Kirby J. at 584, 588 and 590 and Callinan J. at 592.

As previously noted, counsel for the mother submitted that the principles set out in s.60B of the Act can only be overridden by express, unambiguous legislation to the contrary. Section 198 of the Migration Act, in his submission, does not have the effect of overriding the fundamental right conferred by s.60B.

Counsel further submitted that the Parliament must be taken to be cognisant with the interaction of the Migration Act and the Act. He referred to ss.65Y and 65Z of the Act which reproduce sections originally appearing as s.62 of the Migration Act. That section was repealed by the Migration Amendment (Emigration of Certain Children) Act 1983 (Cth) but was essentially reproduced initially as s.70A of the Act and later as ss.65Y and 65Z. In essence, those sections provide that a child is not to be removed from Australia without the relevant consent of the other parent, or the order of a court made under the Act when proceedings in relation to residency or contact are pending in relation to a child.

It was then submitted that whether or not s.60B of the Act is seen as recognising a new principle arising under UNCROC, or recognising an extant common law principle as acknowledged in Re W (A Minor) [1994] 2 FCR 1216 at 1222 and raised in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 304 and 305, if the Commonwealth Parliament had intended that s.60B should be overridden by s.198 of the Migration Act, then that intention should have been made clear.

The Submissions of the Secretary

The submission on behalf of the Secretary, both before the trial Judge and before this Court, was that the restraining order sought in the application was beyond the jurisdiction of the Court and that the making of such an order would be directly inconsistent with the express conferral of powers and duties on the Minister and officers under the Migration Act in relation to persons in immigration detention.

Submissions made on behalf of the Secretary were on the basis that the Court cannot make the order sought against him.

Counsel for the Secretary submitted that the sole issue in contention was whether, by virtue of a principle that Parliament is presumed not to have interfered with fundamental rights, s.198(6) should be read as not requiring the mother’s removal from Australia where such removal would be contrary to the child’s best interests.

Counsel submitted that the principles in s.60B have not been given direct statutory force and are set out as part of the statement of objectives of the regime of provisions dealing with children in Part VII of the Act.

In relation to the relationship between s.60B and UNCROC, counsel for the Secretary submitted that, whilst Australia’s accession to the Convention may evince an intention to legislate in accordance with the obligations imposed therein, this does not convert aspirations expressed in the Convention into fundamental rights recognised by Australian law.

Counsel for the Secretary further submitted that expressions such as a fundamental right, freedom or immunity referred to by the majority in Coco v The Queen (supra) at 437 were used to refer to rights and freedoms which had some common law recognition rather than rights seen as fundamental in the sense of being important. Similar submissions were made in relation to Federal Commissioner of Taxation & Others v Citibank Ltd (supra) and Brown v Classification Review Board (supra).

Counsel also submitted that reference in those authorities to fundamental rights are effectively strong statements of the ordinary rule of construction that Parliament is presumed not to invade common law rights; that there is no separate rule in relation to fundamental rights; and that whilst the rights of children expressed in s.60B are of paramount importance in the exercise of the Court’s jurisdiction, they are not part of the common law, and do not fall within the scope of any presumption that fundamental rights are not intended to be overridden by legislation, unless a contrary intention is clearly expressed.

Further, counsel submitted that, even if the principles expressed in s.60B(2) were within the scope of a presumption that legislation is not intended to invade fundamental rights, s.198(6) evinces a clear contrary legislative intention. Parliament has expressed a clear intention, it was submitted, that removal of a detainee should be essentially automatic, unless he or she obtains a valid visa pursuant to the provisions of the Migration Act. Counsel submitted that in relation to s.198(6), there is no room for the continued existence of any common law doctrine that might otherwise prevent removal. In support of this submission, he referred to the majority judgment in Coco v The Queen (supra) at 438.

Counsel submitted that the Migration Act comprehensively governs the circumstances in which a non-citizen may remain in Australia, namely where the person in question is the holder of a valid visa. He further submitted that s.153 of that Act specifically provides that only orders made by the High Court, Federal Court or Federal Magistrates Court can interfere with those provisions.

In relation to the mother’s submissions regarding the former s.62 of the Migration Act, counsel submitted that that section concerned removal of a child from Australia by a parent, rather than removal of a parent from Australia. The equivalent provisions, namely ss.65Y and 65Z of the Act, do not, he submitted, therefore imply an intention that the Act overrides powers and duties conferred by the Migration Act.

Counsel for the Secretary further submitted that avoidance of difficulty by the Minister is not the basis of any contention made in the instant case. The reference by the mother to the Minister’s submissions to this Court in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra) is to passages which spell out the conceptual difficulties which would arise in the event that this Court were to regard itself as empowered to grant a form of permission for an unlawful non-citizen to remain in Australia. Prominent among those difficulties is that the Court would be purporting to perform a function expressly allocated by Parliament to an officer of the executive.

DISCUSSION

The primary issue for determination by this Court is whether the reference in s.198 of the Migration Act to “remove as soon as reasonably practicable” creates an ambiguity such that the principles set out in s.60B of the Act operate so as to prevent the removal of the mother from Australia.

However, it is first necessary to consider whether s.60B of the Act confers upon children a fundamental right, freedom or immunity which may only be overridden by express and unambiguous legislative provisions to the contrary. No other exception to the mandatory language of s.198(6) is submitted to apply in this case.

SECTION 60B OF THE FAMILY LAW ACT

Section 60B of the Act provides:-

“(1)The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c)parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children.”

Section 60B was inserted into the Act by the Family Law Reform Act 1995 (“the Reform Act”) which introduced significant amendments to Part VII of the Act. The Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 referred extensively to the legislative history of the Reform Act. After considering the relationship between the Act as amended and certain articles of UNCROC, the Court observed that the Act employed a new form of drafting: s.60B(1) provided an object; and s.60B(2) set out the principles underlying that object. Their Honours recorded:-

“9.2… It is clear that many of the aims of the Reform Act are long-term, educative and normative. That is, they are directed towards changing the ethos where parents separate in the ways in which they think and act in their role as parents, in their approaches to resolving disputes about their children, in the ways in which lawyers act for the parents (and the children), in the approach by the Court in the adjudication of disputes and, more broadly, in the attitudes of society generally.”

Their Honours then set out s.60B and continued:-

“9.6Section 60B(1) provides an optimum set of values for children of separated parents and is the goal to which the parents, society and the courts should aim, namely, that children receive “adequate and proper parenting to help them achieve their full potential” and that parents “fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children”. ”

Relevant to the instant case, their Honours observed that the principles set out in s.60B(2) should be interpreted as directing how the objects set out in s.60B(1) might be achieved. After commenting that such considerations are expressly subject to the child’s best interests, they noted:-

“9.8                In relation to sub-s (2), the following matters may be noted:-
·     It sets out the principles “underlying” the object contained in sub-s (1) and consequently is to be read as directed to effectuating that object.
·     It is expressly made subject to the child's best interests.
·     It cannot be regarded as an exhaustive list of principles which underlie the object in s 60B(1) or the child’s best interests. There are a number of other matters which may in particular cases be equally or more important but which are not expressly contained in sub-s (2), such as the wishes of children and their right to be protected from abuse. Those two matters, together with a number of other important considerations are set out in s 68F(2) as matters which the Court must consider in determining the best interests of the child. It is this circumstance which makes the inter-relationship between s 68F(2) and s 60B difficult to precisely define. The matters in the two sections vary but overlap. Neither purports to be exclusive or exhaustive. We will return to those aspects later.”

After considering paragraph (a) of s.60B(2), namely the right to know and be cared for by both parents, their Honours observed:-

“9.11… The right to be “cared for” by both parents has to be read in the context that typically the parents of whom the paragraph speaks are separated and that is likely to involve different degrees of care by the individual parents, a matter which is largely addressed by the categories of parenting orders which the Court may make or the parties may agree upon.”

As to paragraph (b) of s.60B(2), namely the right of contact on a regular basis with both parents, their Honours observed that:-

“9.13The essential aspect of paragraph (b) in this appeal is the right of children to contact with both parents and the impact which a change of location by one parent may have upon the enjoyment by the children of that right.

9.14It is now well accepted that in most cases meaningful contact by children with both their parents is important to their welfare both in the short and long-term. That principle has been well established in Australia and in comparable overseas countries for many years. For example, in Australia the position is quite clearly summarised by the High Court in 1988 in M and M, supra, in the passage already quoted at FLC 77,080; CLR 76.

9.15But it is equally recognised that there may be cases where the best interests of the children require that contact with one and on some occasions both parents be curtailed or even terminated. If the facts dictate that such an outcome is the appropriate one in the children's best interests there is nothing in s 60B which suggests or requires any different outcome. During the course of submissions it was accepted for the Attorney-General and we agree that the Reform Act makes no relevant change to the principles to be applied in relation to physical or sexual abuse cases as stated by the High Court in M and M, supra, and acted upon consistently by this Court in the years since.

…

9.54Section 60B is important in this exercise as it represents a deliberate statement by the legislature of the object and principles which the Court is to apply in proceedings under Part VII. The section is subject to s 65E. Nor does it purport to define or limit the full scope of what is ordinarily encompassed by the concept of best interests. The object contained in sub- section (1) can be regarded as an optimum outcome but is unlikely to be of great value in the adjudication of individual cases. The principles contained in sub-section (2) are more specific but not exhaustive and their importance will vary from case to case. They provide guidance to the Court's consideration of the matters in s 68F(2) and to the overall requirement of s 65E. The matters in s 68F(2) are to be considered in the context of the matters in s 60B which are relevant in that case. But s 65E defines the essential issue.

…

10.57We agree with the submissions of the Attorney-General that the rights given to children under s 60B are not rights which are legally enforceable. This view appears to suggest a major inconsistency between legislation which provides for and emphasises the rights of children and at the same time the statement that they are not legally enforceable rights. This apparent dilemma between self- determinism by children and veto by parents or courts is discussed by John Eekelaar: The Interests of the Child and the Child's Wishes: The Role of Dynamic Determinism: in the publication The Best Interests of the Child (1994) P Alston. The point made there is that the unenforceability of these rights is fundamentally because of the inherent conflict between the child's best interests on the one side and self-determinism by the child on the other, against a background of age, maturity, vulnerability to pressures. It may also reflect the nature of the practical day-to-day relationship between parents and their children.” (our emphasis).

In the light of the above, it is perhaps unnecessary to discuss at length the submissions of the parties in relation to the majority decision in Coco v The Queen (supra). However, as it is an integral component of the mother’s argument, some discussion is appropriate.

Counsel for the mother referred to Re Z (supra), and to the observations of the majority in Coco v The Queen (supra) at 437, set out in paragraph 123 hereof, in support of his submissions as to the status of s.60B as a fundamental principle derived from UNCROC. The influence of UNCROC upon the drafting of s.60B was considered by the Full Court in B and B: Family Law Reform Act 1995 (supra) (see especially paragraph 3.3) and more recently in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra). The question of whether UNCROC was incorporated into Australian domestic law was not, however, raised by the mother before this Court.

As Mason CJ. and Deane J. observed in Minister for Immigration and Ethnic Affairs v Teoh (supra) at 286 to 287, treaty obligations do not form part of the domestic law of Australia unless implemented by legislation that purports to do so. It may thus be said that whilst the weight of authority supports the ordinary rule of statutory construction that parliament is presumed not to have interfered with common law rights, this imputation cannot be presumed to extend to the objects expressed in s.60B of the Act.

The objects set out in s.60B(1) are underpinned by the rights of the child as prescribed by s.60B(2): that sub-section implicitly recognises such rights are subject to a consideration of the child’s best interests. Whilst the rights of the child expressed in s.60B(2) are indeed fundamental in the ordinary sense of the word, describing them as such does not confer upon them a higher status than that of the objectives a court will attempt to achieve when adjudicating in matters involving children.

International law may influence the development of the common law: see Mabo v Queensland (No.2) (1992) 175 CLR 1 per Brennan J. at 42. However, it does not follow that the existence of an international instrument automatically alters the common law, such that the right of a child to have contact with both parents becomes what may be termed as a fundamental right in the sense employed in Coco v The Queen (supra).

In any event, the rights contained in s.60B concern those of the children, not parents. I therefore see difficulty in a parent seeking to rely upon them in proceedings relating to him or herself and not the child. Further, it is clear, as the Full Court in B and B: Family Law Reform Act 1995 (supra) observed, such rights are not absolute rights, being subject to the best interests test and the other limitations to which the Court therein referred.

I agree with the views expressed by the Full Court in B and B: Family Law Reform Act 1995 (supra) that s.60B must be interpreted in the context of the relationship between the parents having broken down, which means that the practicalities of achieving the object of maintaining regular contact have to be taken into account.

Whether s.60B confers enforceable legal rights upon children or not, counsel for the mother asserts in the present case that the rights so conferred upon the child can be relied upon by the mother to avoid deportation pursuant to s.198(6) of the Migration Act. In my view, such an interpretation clearly extends beyond the ambit of s.60B.

The mother’s deportation may make the child’s contact with her more difficult. However, regardless as to where the mother resides following her deportation, subject to the provisions of s.69E of the Act, she may apply to the Court for a residence or contact order in respect of the child.

I agree with the conclusion of the trial Judge that, as a matter of ordinary language, the proposition advanced on behalf of the mother is not a plausible interpretation of the words “reasonably practicable” in s.198(6) of the Migration Act.

The reference in s.198 of the Migration Act to “remove as soon as reasonably practicable” does not create an ambiguity so that the principles set out in s.60B of the Act operate so as to prevent the removal of the mother from Australia.

Of course, in some cases, there may be real impediments to the removal of the person concerned as considered by the Federal Court in Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 197 ALR 241 and by this Court in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra).

I note that this case falls into a different category to B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra). That case involved an application under s.67ZC of the Family Law Act seeking that the Court exercise its welfare jurisdiction. No such application was made here. Further, that was a case involving the detention of child asylum seekers which clearly distinguishes it from the instant case.

I agree with the conclusion of the trial Judge and the submissions made on behalf of the Minister that the relevant provisions of the Migration Act provide a detailed code dealing with the removal of unlawful non-citizens from Australia.

Whilst it does not affect my conclusion, for the sake of completeness, I would add that it is unnecessary to consider the line of English authority beginning with In re Mohamed Arif (An Infant) [1968] 1 Ch 643 referred to by the trial Judge. His Honour concluded that s.198 of the Migration Act constitutes a detailed code dealing with removal of unlawful non-citizens from Australia, having regard to his interpretation of that Act. He then considered a number of English authorities relating to deportation, referred to in submissions before him, namely In re Mohamed Arif (An Infant) (supra); In re F (A Minor) (Immigration: Wardship) [1990] Fam 125; Re A (A Minor) (Wardship: Immigration) [1992] 1 FLR 427 and Re K and S (Minors) (Wardship: Immigration) [1992] 1 FCR 385. His Honour recorded that, whilst those authorities were not precisely on point, the conclusion which he had reached was consistent with them. The majority in the Full Court expressed some criticism of that line of authorities in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (supra) in the context of their applicability to the detention provisions of the Migration Act. The majority in that case also pointed to the fact, as did counsel for the appellant in that case, that those decisions involved the exercise of a discretion, and for that reason are distinguishable from the present case.

However, I do not think that a discussion of those authorities is instructive in the present case, as counsel’s submissions were not directed to the exercise of a discretion but rather to the proper interpretation of s.198(6) of the Migration Act.

For the reasons given, I am of the view that none of the grounds contained in the mother’s Notice of Appeal have been made out.

CONCLUSION

For the above reasons, I would dismiss the appeal.

COSTS OF THE APPEAL

At the completion of the hearing of the appeal, counsel made submissions as to the costs of the appeal. In the event that the appeal was dismissed, the second-named respondent, namely the Secretary, sought an order that the mother pay his costs of and incidental to the appeal. In that event, the mother submitted that there should be no order as to costs and the father did not seek an order as to costs.

The submissions on behalf of the Secretary did not persuade me that the circumstances justify the making of an order for costs of and incidental to the appeal in his favour against the mother. He did not seek an order for costs against the father.

ORDER

I would order:-

1. That the appeal be dismissed.

2. That there be no order as to costs of and incidental to the appeal.

I certify that the preceding 167 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.

Associate