Laing v Central Authority

[1998] HCATrans 267

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S39 of 1998

B e t w e e n -

DEBORAH JOY LAING

Applicant

and

THE CENTRAL AUTHORITY

Respondent

Application for an extension of time and an application for special leave to appeal

GLEESON CJ
McHUGH  J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 AUGUST 1998, AT 12.12 PM

Copyright in the High Court of Australia

MR G. GRIFFITH, QC:   If the Court pleases, I appear with MS J.F. MERKEL and MS K.L. EASTMAN for the applicant.  (instructed by Bruce A. Swane & Co)

MR J. BASTEN, QC:   I appear with MR M.W. ANDERSON for the respondent.  (instructed by the Office of the Crown Solicitor (New South Wales))

GLEESON CJ:   Yes, Dr Griffith.

MR GRIFFITH:   Your Honours, unfortunately I have to announce my appearance as mea culpa.  I sometimes become inspired under the shower in the morning before appearing before this Court but in this case it was at about 11 o’clock last night.

GLEESON CJ:   We would prefer you to continue the practice of showering.

MR GRIFFITH:   If your Honour pleases.  Your Honours, during the course of preparation yesterday, two matters became apparent during the course of the day.  The first was - and I think it is common ground with my learned friend - that both the primary judge and the Full Court below proceeded contrary to the determination of this Court in De L to apply the regulations which were in existence at the time of consideration of the matters, both before the primary justice, rather than the regulations which were in existence at the time of application.  De L, at page 654, makes it clear that the relevant regulations are those at the time of the application.

GLEESON CJ:   I suppose the Court did that because that was the way it was argued by counsel.

MR GRIFFITH:   Yes, it was, your Honour, so it is really the course of - and this is where the apology mea culpa comes in, your Honour, the final preparations for this hearing, that, firstly, the error became apparent.  The second consequence was that on further reflection, while superficially it seemed that Article 13 whilst in different form had the same effect of raising the issue of habitual residence, there were material differences between regulations 13, 16 and 20 in that the former regulations required the return to be ordered to the applicant.  In our submission, the applicant for that purpose is the other spouse, in this case the husband in Georgia, whereas the present regulations reflect the preamble to the Hague Convention itself requiring merely orders for return to the country with no reference to any destination by reference to applicant put there.

GLEESON CJ:   Is that a material difference in this case?

MR GRIFFITH:   It is very material, your Honour, because we say that firstly it is our argument that the regulations - and this is where it does come in from left field - then in force were beyond the regulation-making power of section 111B.  An issue of power was raised down below by reference to judicial power but on reflection, your Honours, when we consider the regulations which truly applied, we would wish to submit to the Court - and at the moment I have instructions, as appropriate, that a separate writ in the original jurisdiction of this Court could be issued if the matter were not to be raised by way of an amended ground of special leave to raise a ground not argued before your Honours - that the regulations which applied at the time were, ultra vires, the regulation-making power, notwithstanding the fact that in De L the Court held that it is a power, because the matter is external to Australia, to make - -  -

McHUGH J:   You are well out of time for making a special leave application and, having regard to the circumstances why you are out of time, I would need convincing why you should be granted an extension of time.

MR GRIFFITH:   Your Honours, can I deal with this principal point and then come to the extension because, as your Honour said in the Gallo Case, it is a question of injustice, amongst other considerations.  Our submission, your Honours, is that the true subject matter of this application is not the mother but the child.  The order was made in respect to the child who is not a party to these proceedings.

McHUGH J:   Yes, and it is not in the interests of children for parents to take off when adverse orders are made, take the child into hiding and then think that they can come to this Court more than 12 months out of time and ask for a special leave application or for an extension after they have been apprehended.

MR GRIFFITH:   That is admitted but, in our submission, just as in Teoh, your Honours - Teoh himself was a drug dealer - it was by reference to the considerations relevant to the child that the Court engaged in the consideration of the matters which ultimately in Teoh were successful.  We appreciate that is a different situation and not flouting the jurisdiction of the Court.

McHUGH J:   It is a question of the interests of the child.

MR GRIFFITH:   Yes, your Honour.

McHUGH J:   There is an order of the court in accordance with an international convention that the child be returned to the United States.  The mother then takes off with the child; goes into hiding and remains in hiding for a very long period of time.  Then when she is apprehended by the authorities a special leave application is filed.  That is not in the best interests of the child.

MR GRIFFITH:   In our submission, your Honour, the best interests of the child should enable the issues we have identified, the three issues of general importance which we say are independent of the particular facts here - now, your Honours, we have identified a point that there is admitted error in that both courts applied the wrong regulations - - -

GLEESON CJ:   An error into which the courts were led by counsel representing your client.

MR GRIFFITH:   That is so, your Honour, it has only been seen yesterday.  But, in our submission, there is an absolute entitlement, certainly if so advised, of the daughter, and we would submit, your Honours, the mother could issue a writ in the original jurisdiction of the High Court this afternoon claiming a declaration that these regulations are invalid.  The constitutional point could be raised and, in our submission, most certainly with respect to the child.  It is an issue which the child, if so advised, would be entitled to pursue in the original jurisdiction of this Court.  Your Honours, we have prepared a summary - - -

McHUGH J:   The result of this delay is it makes it more and more difficult for the courts in the United States to make the appropriate order because the child has continued to be with the mother for longer and longer.

MR GRIFFITH:   Your Honours, that is entirely accepted but in this case it was eight months between the original application and the first determination by the trial judge.  The provisions of the Rules provide that these matters should be dealt with in a seven-day period.

GLEESON CJ:   You have to begin with an application for an order that compliance with Order 69A rule 3(1) be dispensed with.

MR GRIFFITH:   I do.

GLEESON CJ:   Unless you can persuade us to make that order, you do not get to first base.

MR GRIFFITH:   Your Honours, I wish to make that application in the context of this new matter where we say we have identified error which removes the support for both judgments down below, one which was not a matter before the courts because it was not brought to the attention of the courts and the courts applied the regulations, as happened in the case of De L until it reached the level of this Court.  Your Honours, as a matter of description, the decision of the Full Court in this matter was on the same day of the Court’s judgment in De L.  May I hand the Court the submissions which make the point that we make as to the misapplication of the regulations and the consequent invalidity.

GLEESON CJ:   Yes.

MR GRIFFITH:   Your Honours, I do have the new regulations which we refer to there which are the ones which are recited in the judgments.  The Court has filed copies of the applicable regulation which arise from statutory rule 1986 in the reprint that has been separately filed in the Court.

Your Honours, may I quickly go through this new point which we refer to as being relevant to the issue of whether or not there should be leave granted because we demonstrate that the judgment we seek leave to appeal out of time, admitting the circumstances that the mother applicant is - - -

GLEESON CJ:   How much out of time was she?

MR GRIFFITH:   I think 18 months at least, your Honour, and then another few months while she sought assistance because she was not able to get any legal aid.  But we accept absolutely the mother’s default for an 18 month period - 14 months, I am told, your Honours, but I am told that there is an affidavit indicating beyond that.  There was time occupied in discovering that legal aid was not available and obtaining other legal assistance.

Your Honours, if I could briefly run through this submission.  By reference to the judgments at application book at pages 10 to 15, and 56 to 59, one sees recited the current regulations.  We submit that is inconsistent with the decision of the Court in De L, particularly at page 653 in the reference in footnote (29) to section 50 of the Acts Interpretation Act.  The husband made the application on 6 May in the United States.  The Central Authority made the application on 28 June.  At the time of hearing in February 1996 - so, already there were some eight months delay - the trial judge applied the new regulations that were promulgated in October 1995.  Those are the regulations I handed to your Honours.  We give the references to that examination, both at first instance and in paragraph 5 of the Full Court.  We say, your Honours, that there are material differences because of the aspect in the relevant operative parts to reference to the return to the applicant which we say, on the proper construction, is the husband. 

Your Honours, there is a decision of Gsponer in the Full Family Court in 1988 where it was held that the applicant should be regarded as the Central Authority.  In our submission, your Honours, that cannot be the case on the proper construction of the regulations.  In any event, the Hague Convention itself provides by way of the operative part, which one derives from the preamble, that the order to return is to be made to the country, which is what is provided in the present form of the regulations.

In our submission, your Honours, when one examines the primary judgment and also the judgment on appeal, the examination is entirely by reference to the issues of return to the country, not by reference to what we say the regulation then required, order of return to the applicant personally.  This is particularly relevant in this case where at both levels there was an issue of whether or not there was a grave risk of physical or psychological harm which the court dealt with by making the point that it was not return to the husband absolutely, notwithstanding the fact that there was a final order for custody in his favour, but merely a return to the jurisdiction of Georgia where there was every confidence that Georgian law would consider matters relevant to the best interests of the child.

GLEESON CJ:   There was no affidavit of your client in support of her application for an extension of time?

MR GRIFFITH:   Yes, your Honour, there is an affidavit as to the circumstances by the instructing solicitor.

GLEESON CJ:   I said there is no affidavit of your client in support of her application?

MR GRIFFITH:   The solicitor, your Honour, accepts that the client was fully to blame and that is made on behalf of the client.  Your Honour, no excuse is given on behalf of the applicant.  Our answer to that is by reference to the issue that it is the third person, the child, who is affected by her mother’s misguided actions and, in our submission, having demonstrated as we have by reference to this issue what must be an issue of common ground of the courts down below proceeding by reference to the law which did not apply.  Your Honours, our submission further is that those regulations which did apply, in our submission, are invalid, and that is a matter, your Honours, whether or not the Court does permit an adjournment, which is my application today to enable the application for special leave to be recast to deal with these issues covered by this notice or not - - -

GLEESON CJ:   We are dealing with your application for an extension of time.

MR GRIFFITH:   Yes, your Honour.  With respect to that, what we say is that this issue of validity now being raised is one which may be pursued in the original jurisdiction of this Court without order of this Court.

McHUGH J:   It may but, if your application is refused, you will have an order of the Court on foot.  You can challenge the validity of the regulations but the order of the Court would have to be obeyed and the child returned to the United States.

MR GRIFFITH:   It gets more complicated, your Honour.  The child might then issue proceedings and claim an injunction in the child’s name, with respect.

GLEESON CJ:   You foreshadowed, as I understand it, that if we deal adversely to you with your application for an extension of time, you will then seek an adjournment of the application for special leave.

MR GRIFFITH:   Your Honour, I seek the adjournment before your Honours deal with the issue of leave.

GLEESON CJ:   You seek an adjournment of the application for an extension of time?

MR GRIFFITH:   So we can express as a matter on proper notice to the Court these new grounds.

GLEESON CJ:   Right.  Now, is the application for an adjournment opposed or consented to?

MR BASTEN:   It is opposed, your Honour.

GLEESON CJ:   The application for an adjournment of the application for an extension of time is refused.

MR GRIFFITH:   If your Honour pleases.  Your Honours, with respect to the grounds for the application out of time, we do accept the relevance of your Honour Justice McHugh’s statement in the Gallo Case of matters to which regard might be had but, in our submission, your Honours, when one has regard to those issues, the essential issues here are to weigh on one side the undoubted reprehensible fault of the applicant herself against the circumstance that we have identified in the documents we have handed to your Honours, the issues with respect to what we say invalid regulations - inapplicable regulations being applied by the Court, we say in circumstances where that, on the matter of analysis, destroys the analysis of the Court leading to the making of the order for return.  Your Honours, what we say in the circumstances, the regulations which are now identified as applicable we would wish to argue either by way of amending our grounds for special leave or by way of separate writ in the original jurisdiction of the Court, that in those circumstances those regulations were invalid.

We would submit, your Honours, that having regard to those arguments, there is a general public interest to resolve the issue of validity, notwithstanding the circumstance of the default of the mother.  Your Honour Justice McHugh in the Gallo Case referred to the relevant issues of injustice and what we submit is that if there is a case where we say there is a prima facie argument of error, be it one contributed to by those acting for the parties before the Court, the sort of error which was demonstrated by the Court’s decision in De L, it is appropriate nonetheless for the Court, notwithstanding the applicant’s personal default, to have regard to the situation of the error which is sought to be made out.  Also, your Honours, we say to the fact that the principal party is the child itself.  It is admitted that the structure of the Hague Convention would intend that within a period, under Regulation 18, within seven days of the application the matter will be disposed of.

McHUGH J:   Yes, I know, but supposing last week we had given a decision which was contrary to what this Court had ruled 18 months ago.  You would be coming up here asking for special leave to appeal on that basis.

MR GRIFFITH:   No, your Honour.  We say this is still a live matter in that the order has been made.  There have been variations to the order to attach various conditions which have not yet been complied with, so that even were this application dismissed, there is not a final order where the conditions are complied with down below.

McHUGH J:   This order was made on 10 October 1996, if I remember rightly.

MR GRIFFITH:   Yes, your Honour.

McHUGH J:   And your client did not file a special leave application until when?  In April 1998, was it?

MR GRIFFITH:   Yes, your Honour, and until January this year she was in default, that is admitted.

McHUGH J:   In hiding.

MR GRIFFITH:   In hiding, yes, your Honour.  That is not disguised in any way.  Our answer to that is your Honours should have regard to the fact that it is the child who has been ordered to be removed, not the mother.

McHUGH J:   If the child is returned, why can the wife not make her application to the court in Georgia for some order for custody which would not have the child in the custody of the father, if the mother raises these allegations against the father?

MR GRIFFITH:   Your Honour, the mother has no right to return and live in the United States.  She has applied for a visitor’s visa on the basis that she is not able to work, and the assumption must be that if she returns to the United States it is only for the purpose of delivering the child.  The wife has no right to remain or work in the United States.  So, the inevitable consequence of the order, your Honour, is that the wife may only be in America temporarily and then will have to return to - - -

McHUGH J:   Well, she may or may not.  There is no evidence to suggest that she would not be allowed to stay for the purpose of making an application for the child or defending the legal proceedings.

MR GRIFFITH:   Yes.  Your Honour, the position is that she is not able to stay thereafter.  She has no legal entitlement to stay or work in the United States.

McHUGH J:   She may be able to obtain one.  Can she not get a visa for the purpose of the litigation?

MR GRIFFITH:   For the purpose of - possibly, your Honour, and that has been a matter of conditional orders by the court down below.

Your Honours, the other matter with respect to whether or not leave should be granted, as a matter referred to by Justice McHugh, is to whether or not there is any prospects of success.  Now, your Honours, there are three grounds identified in our special leave application and we add to those what we say is an admitted ground here, namely, that the courts throughout, both at the primary and at the appeal level, applied the wrong regulations; that that permeates their entire consideration of the issues of fact which they were obliged to consider and, in our submission, your Honours, vitiates the order.  The order is for return to the United States.  The applicable regulation said the order to be made under the regulations is “return to the applicant”.  In our submission, that does not comply with the terms of the applicable regulation.  We demonstrate on the documents that the order where leave is sought to be appealed out of time is insupportable by the regulations which properly apply to it. 

Now, your Honours, can I deal with the issue of the three grounds very briefly raised in our application.  On the issue of habitual residence, in our submission, this and the other two grounds we seek to raise are raised as matters of legal principle where the particular facts are only examples of the principle which we seek to expound.  On the issue of habitual residence, your Honours, our submission is that as the Court held in De L with respect to the operation of Regulation 16(3)(d) of the regulations, it is a question of fact rather than to have any gloss put on the expression.  In our submission, the legal error of the court down below and also the appeal court is to place a gloss on the meaning of “habitual residence” and to say that where there are, in effect, marriage lines between the parents and there has been prior joint custody prior to an agreed removal into Australia and then a retention and change of circumstance, as a matter of law, whatever the facts, there cannot be a change of habitual residence unless there has been acquiescence by the husband.

The examination by the primary judge in the appeal court proceeded, we say, erroneously in reliance upon what Lord Donaldson, the Master of the Rolls, said, rather than the view of Lord Brandon which is consistent with this Court’s approach in De L.  It must depend on all the facts.  We say that analysis then meant that the court was in legal error in considering the situation upon the return for the purposes of the reconciliation.

As to the second issue of grave risk, we say there is a point of general importance because what the court has done is conflate the grave adjective qualification not to risk, but to the extent of harm.  And to put it in the context of physical harm, we say the approach of the court is to say if there is only a risk of a broken leg rather than a broken neck, then the harm is not great.  Similarly, with psychological harm, the judge made a finding that there was harm.  In our submission, when one asks is there a grave risk, if one makes a finding that there will be harm, one is saying that there is a 100 per cent certainty there will be harm.  That is sufficient to say that there is a grave risk.  It is even stronger than saying were there a 10 per cent risk

of a plane crashing, would that be grave risk?  We say the finding is that there is 100 per cent risk of psychological harm.  That must constitute grave and one cannot say it may be that it is only severe rather than being desperate psychological harm.  In our submission, that is once more to place an impermissible gloss on what should be an issue of fact.

The third issue, by reference to the issue of conventional obligations, in our submission, that was dismissed in one paragraph by the Full Court by totally failing to consider the obligation of Regulation 16(3)(c) which requires reference by reference to the standards in Australia.  The way the court dealt with it was to say, “We can be sure that the courts of Georgia will have regard to those matters.”  In our submission, the principle is that it must be for the Australian court to have regard to these matters.  So, we say, your Honours, for those reasons there are five grounds of general importance independent of the facts and because of their weight it is appropriate to grant leave.

GLEESON CJ:   Thank you.  Mr Basten, what do you say about the application for an extension of time?

MR BASTEN:   In the circumstances, we oppose the application.

GLEESON CJ:   Is there anything you want to say on that point?

MR BASTEN:   No, your Honour.

GLEESON CJ:   Yes, thank you.  We will adjourn for a couple of moments.

AT 12.34 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.39 PM:

GLEESON CJ:   On 20 February 1996 O’Ryan J in the Family Court gave a decision in this matter which was the subject of an appeal to the Full Court of the Family Court.  On 10 October 1996 the Full Court of the Family Court gave a decision adverse to the applicant, and on 9 April 1998 the applicant brought the present application for special leave to appeal.  It follows that the applicant is obliged to seek an order of this Court that compliance with Order 69A rule 3(1) be dispensed with; in brief, that there be an extension of time for bringing the application for special leave.

The Court is of the view that the explanation that has been offered of the delay in question is not such as to warrant the extension of time and the application for an order that compliance with Order 69A rule 3 be dispensed with is refused.

Is there an application for costs?

MR BASTEN:   No, your Honour.

GLEESON CJ:   Very well.

AT 12.41 PM THE MATTER WAS CONCLUDED