Map v JCP

[1997] HCATrans 180

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B57 of 1996

B e t w e e n -

MAP

Applicant

and

JCP

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 26 JUNE 1997, AT 2.29 PM

Copyright in the High Court of Australia

MR G.K.W. PAGE, SC:   Your Honours, I appear for the applicant in this matter.  (instructed by Eliadis & Associates)

MR W. A. WESTBROOK:   May it please the Court, I appear for the respondent.  (instructed by Anderssen & Company)

BRENNAN CJ:   Yes, Mr Page.

MR PAGE:   Your Honours, this applicant, in my submission, raises an apparent conflict between the regulations governing the role of the Central Authority in applications under the Hague Convention, the Central Authority of a requesting State, and the part played by the courts in Australia under applications made pursuant to the Family Law (Child Abduction Convention) Regulations. It raises an issue as to the nature of the hearing afforded by the courts in Australia upon such applications and, in the view of the preamble to the convention, which provides that procedures be established to ensure the prompt return of children wrongfully removed to the State of habitual residence.

KIRBY J:   Does it raise these things or does it just raise the question of fact which was determined against your client, that by the decision to remove the child with the family back to Australia, that that as a matter of fact set the habitual residence of the child in Australia?

MR PAGE:   No, it raises the former.  Whilst there was an issue of fact in relation to that aspect, that was ventilated in the Full Court.  One of the problems I have with this application, of course, is that the very point I am attempting to raise in this application may not have been raised by the husband who appeared in person before the Full Court and, in fact, was not directly.  What indeed happened was that the husband sought, by application, to adduce fresh evidence before the Full Court.  It is clear that that evidence, which is categorised in the judgment of the Full Court, was evidence that related to the question of habitual residence which he said he, who was in America at the time, had not been able to bring before the judge at first instance.  In my submission, the Full Court in dealing with it simply got it wrong.  They refused the application for leave to adduce fresh evidence because they said that the Central Authority at first instance was in possession of a quantity of material from the husband and that he was present in Australia and could have adduced that evidence at first instance.  Now, they clearly had that wrong because he was not, and the record shows that he was not there at first instance and had no - if, indeed, he had - his opportunity to answer the material that was put forward by the wife at first instance was extremely limited.

TOOHEY J:   Does that mean you are putting the case on the basis of procedural fairness or, in this case, procedural unfairness?

MR PAGE:   On the latter, your Honour, yes.

TOOHEY J:   Yes, I am sorry, I was just making myself clear.  But one does not quite get that impression from the draft notice of appeal or, to some extent, the applicant’s summary.  You began, Mr Page, by, I thought, suggesting that somehow the role of the Central Authority was critical to your argument in this appeal.  What is the case that is being put on behalf of the applicant?

MR PAGE:   The case is simply that the questions that give rise to an application under the convention, namely the wrongful removal, which have as an inherent part the determination of habitual residence and the rights to custody, are matters that are appropriately determined by the Central Authority of the requesting State and not by the courts upon an application within a requested State as occurs now.

KIRBY J:   How is that consistent with the principle of judicial review that we in fact borrowed from Marbury v Madison of asserted - how can you exclude the courts from examining these questions?

MR PAGE:   Simply in the interests of the convention.  There are many shortcomings in the convention, not the least of which is the provision for summary hearing, and in order to give proper effect to the convention, the convention has established Central Authorities and has provided them with certain powers.

KIRBY J:   But they are creatures of the Parliament of this country.  They are under the judicial power.  They have to be the subject of scrutiny where there is a complaint.

MR PAGE:   They are, and in my submission, the determination of habitual residence, for instance, in the context of the convention is not a judicial decision.  It is an administrative ‑ ‑ ‑

BRENNAN CJ:   You had better develop that argument, I think.

MR PAGE:   Yes.  The regulations provide that the ‑ ‑ ‑

BRENNAN CJ:   Take us to them, if you would.  Take us to the particular regulations and show us what you want to say.

MR PAGE:   They are regulations 11 and 13 and they are of the books - it is probably easier if I use the respondent’s books because they took the trouble to number the pages whereas I did not.  Regulation 11, for instance, and 13 as another example ‑ ‑ ‑

TOOHEY J:   Can we have a page of the material?

MR PAGE:   Page 96, your Honour.  That regulation provides - and regulation 13 is in the same terms and perhaps more apposite to this case, but the wording is the same:

Where an application under subregulation (1) is made to a State Central Authority and that Authority is satisfied that the application is in accordance with the requirements of the Convention, the State Central Authority shall forward the application to the Commonwealth Central Authority.

Regulation 13 takes account of children abducted to Australia.

BRENNAN CJ:   Which regulation are you reading from?

MR PAGE:   Regulation 11(3).  Regulation 13 in the same terms.

KIRBY J:   Do you say “and that Authority is satisfied” is not reviewable by judicial review or by a court?

MR PAGE:   No, I say that it is not reviewable and that is in the interests of the aim of the convention to ensure the speedy return of children wrongfully removed.  The distinction that I make is in the wording of those regulations with regulation 16 which quite clearly provides that the court must deal with the matters that regulation 16 applies to, that is the orders for the return and the matters that can be raised by a respondent in regulation 16(3).  That regulation has to be seen in contradistinction to those that I have referred to that put the powers clearly within the Central Authority.  It is really that that is the crux of this application.  The situation arises that the husband in this case made an application to the American Central Authority and produced to them material that satisfied it, on the law that it applied, that the husband complied with the convention - the applicant complied with the convention - and thus it sent the application to the Australian Central Authority.

KIRBY J:   Do you say this is purely a machinery?

MR PAGE:   I do.

KIRBY J:   And that that is confirmed by the need to act with speed, which is the whole purpose of the convention.

MR PAGE:   I do.  The difficulty I have is that the Full Court of the Family Court have, in Hanbury-Brown - it is included in the book and the best summary of it, again in the respondent’s material, is on page 88 ‑ ‑ ‑

TOOHEY J:   Could I just interrupt you, please, Mr Page.  Before you take us to that, regulation 11(3) provides that:

Where an application under subregulation (1) is made to a State Central Authority and that Authority is satisfied that the application is in accordance with the requirements of the Convention, the State Central Authority shall forward the application to the Commonwealth Central Authority.

Now, how do we apply that in the present case?  Who answers those descriptions?

MR PAGE:   In this case, the child was allegedly wrongfully removed from the State of Pennsylvania.

TOOHEY J:   Right.

MR PAGE:   The husband made an application to the Central Authority of the United States of America and produced to them, on the form that is required, all of the particulars and the material which he relied upon to satisfy the terms of the convention.

TOOHEY J:   Now, the regulation envisages, to put it at its lowest, that the State Central Authority “is satisfied that the application is in accordance with the requirements of the Convention”.

MR PAGE:   Yes.  One can assume - and indeed there was some evidence of a further requirement that the United States Central Authority had before it was so satisfied and the husband produced evidence to it which then satisfied it.  It then remitted the matter to the Central Authority of the Commonwealth of Australia who then, through its agent in Queensland, instituted proceedings in the Family Court for an order for wrongful removal.  That was determined by Justice Jordan of the Family Court ‑ ‑ ‑

TOOHEY J:   Thank you.  For my purposes, at least I do not think you need to take that history any further, but that brings you into the area of regulation 13(1) which then requires the Commonwealth Central Authority to be “satisfied that the application is in accordance with the Convention”.

MR PAGE:   Yes.

TOOHEY J:   Do you say that that is a decision which is not open to judicial consideration?

MR PAGE:   I do.  In terms of the convention, yes, I do.

TOOHEY J:   Do you mean so long as, so to speak, there is a tick list that has been satisfied - one would need to look at the form, but the convention requires certain things to be done and your submission appears to be that as long as you go down the application and see that, on the face of it, the requirements of the convention have been met, that is the end of it.

MR PAGE:   Yes.  Those requirements in particular being that the child had been removed in breach of rights of custody determined by the child’s place of habitual residence.

KIRBY J:   What do you say is the error of the Full Court in its interpretation of the regulations?

MR PAGE:   In that it interpreted that there was a right in the court to, on a summary hearing, determine the question of habitual residence itself, and thus not provide the husband, in this case, with an appropriate hearing on that ‑ ‑ ‑

KIRBY J:   Assume that there is a dispute between the parties as to where there is habitual residence, where could that question be resolved?

MR PAGE:   My submission is that the appropriate course would be that if a court had before it material which did put in question those requirements of the convention, it should remit the matter to the requesting Central Authority because it may be, for instance, that the law in relation to the determination of habitual residence within the requesting State is different from that which the court is purporting to apply.  For instance, in this case, the facts show that the husband had removed this child from Australia in November of 1995. 

KIRBY J:   That is after the husband had removed the child to the United States.  This is a case of removal and counter-removal.

MR PAGE:   Not quite, your Honour.  But the husband had removed the child from Australia in November of ‑ ‑ ‑

KIRBY J:   They both came here with the child, assuming that they were going to set up shop here, and then he took the child back to the United States; she took the child back to Australia and the child is still here.

MR PAGE:   Yes.  I take issue with some of the matters you have said, but I do not propose to get into an argument with you, with respect.  But he took the child from Australia.  She then instituted an application under the convention which was directed to the child in Greece.  When she ascertained the child had gone from Greece to America with the husband, she withdrew her application under the convention and travelled to the United States and, in the relevant court in Pennsylvania, instituted proceedings there under the local legislation and obtained what we would call then an interim custody order.  The judge adjourned the matter some days hence ‑ ‑ ‑

TOOHEY J:   That had nothing to do with the convention, did it, of itself?

MR PAGE:   I am using it as an example, in answer to a question from Justice Kirby, that there may be a law applicable in the requesting State which is either added to or determinative of the question of habitual residence which would not have applied here.  Indeed, what she did then was regarded as an improper act, or contrary to the law there, by taking - she absconded with the child before the next hearing date of the custody matter and came back to Australia.  Hence the husband instituted the proceedings.  I use that as an example only in answer to that question.

My submission is simply that the convention demands the speedy return and the courts here have devised a summary method of determining those matters whereby the Central Authority produces the evidence which it has from the applicant and is transmitted to it by requesting States.  The respondent has the opportunity to put before the court the evidence which he or she has and the court then, in a summary manner, without any evidentiary hearing in most cases, as I understand it, determines whether there should be an order for return.  And that is what happened here. 

BRENNAN CJ:   Just before you go on to tell us what happened here, could I take you back to the regulations.  Regulation 11(3) deals with the function of the requesting State Central Authority, that is right, is it?

MR PAGE:   Yes, it does.

BRENNAN CJ:   Regulation 13(1) then deals with the function of the Commonwealth Central Authority which acts by a State Central Authority.

MR PAGE:   Yes.

BRENNAN CJ:   The obligation of the Commonwealth Central Authority is to take action under the convention to secure the return of the child to the country in which he or she habitually resided.  How do they do that?

MR PAGE:   They make an application to the court.

BRENNAN CJ:   In form 2?

MR PAGE:   Yes.

BRENNAN CJ:   Now, we do not have the form that was used in this case.  Does form 2 seek, in accordance with the language of regulation 13, an order for the return of the child to the place where he or she is habitually residing?

MR PAGE:   I cannot answer that question, but my learned friend has the book and I can answer that directly.  The form of application has in it, under “Details concerning the child”, a paragraph 2, “The habitual residence of the child immediately prior to the removal or retention of the child was” and the country is named, “a convention country”.

BRENNAN CJ:   Now, what is the application for?

MR PAGE:   The application was for the return of the child.

BRENNAN CJ:   What does form 2 say?

MR PAGE:   I have not got with me the form 2 that was apposite to this application.

BRENNAN CJ:   What does form 2, in its statutory enactment form, say the application is to be?

MR PAGE:   “The responsible Central Authority applies for the following orders”, and then there were gaps.

BRENNAN CJ:   Then there were gaps?

MR PAGE:   Yes.  Then there is a section under the heading, “Details concerning the child” in which its name and birth are given, its habitual residence is set out and a statement that it has been wrongfully removed or retained from the country referred to in paragraph 2, and details of with whom the child is presently residing.

BRENNAN CJ:   Reading that form, together with regulation 13(1), whatever the application must be for, it must be calculated to secure the return of the child to the country in which he or she habitually resided, must it not?

MR PAGE:   Yes, it must.

BRENNAN CJ:   So that the question for the court is, should this order be made to secure the return of the child to the country in which he or she habitually resided?

MR PAGE:   Yes, it must.

BRENNAN CJ:   So the court must determine what that country is.

MR PAGE:   In my submission, not.

BRENNAN CJ:   I understand you to say not, but I do not understand the reason why, if that is the issue which, by the regulation and the form, necessarily falls for the court’s determination.

MR PAGE:   That, as I understand it, is not necessarily the matter that falls for the court’s determination because ‑ ‑ ‑

BRENNAN CJ:   What is it?

MR PAGE:    ‑ ‑ ‑the court will have particulars before it of the determination of the Central Authority relating to the habitual residence and, whilst the regulations say that the court should order the return to the place of the habitual residence of the child, that matter has been determined at that stage.  All it has to do, in my submission, is then determine, if there are no defences raised, the terms upon which that return should be ordered.  It has no further discretion.  In most cases, matters under regulation 16(3) will be raised and it has statutorily a requirement to determine that.

KIRBY J:   Your case has to be that, given the provisions of 11(3) and given the purpose of the convention, the scheme of the convention requires that you read in regulation 13(1) “in which he or she habitually resided” “in which he or she habitually resided as found by the Authority”.

MR PAGE:   Yes, I do.

KIRBY J:   But it does not say that.

BRENNAN CJ:   You can have another five minutes, Mr Page.

MR PAGE:   Thank your Honour.  It does not say that, no, but because of the provisions of regulations 11 and 13 that I have referred to, it appears on its face to assume that that is the role of the Central Authority because otherwise ‑ ‑ ‑

KIRBY J:   I understand all of that.  In De L we looked at a lot of jurisprudence from other countries.  Is there any guidance in other countries as to the interpretation of the convention that supports the propositions that you are putting to the Court?

MR PAGE:   No, there are not, and there is authority which is set out in the judgment of Hanbury-Brown which indeed promotes the view that the court must have a reviewing role - that is paragraph 7 on page 88 of the material.  The proposition that the Central Authority has the overriding power in relation to these is also contrary to the approach to the convention adopted overseas and there are texts referred to.

In other jurisdictions, issues about habitual residence are determined judicially as a prerequisite on an order for return to that place:

and there are other texts referred to.  Now, whilst it appears that there is no authority which I can point to of overseas practice, and I have recently made inquiries about that, there are, as I said, authorities which are against me.  But that does not deter me from the submission when one has a look at the context of the Australian regulations.

BRENNAN CJ:   We understand that submission.  Now, have you another point apart from this?

MR PAGE:   No, that is the main point of this application and I do not propose to speak to it any further.

BRENNAN CJ:   We need not trouble you, Mr Westbrook.

Despite the careful argument that has been placed before us by Mr Page, in our view an appeal in this case would have no prospect of success.  For that reason, special leave will be refused.

MR WESTBROOK:  There is the question of the costs of the appearance to respond, if your Honour pleases.

BRENNAN CJ:   Have you anything to say about that, Mr Page.

MR PAGE:   No, I have not.  It is a family law related matter and I would ask that you take that into account.  I say no more.

KIRBY J:   What was done in De L?  I think costs were awarded, were they not?

MR PAGE:   I think they were.

KIRBY J:   Is there any point of distinction except that it is different people?

MR PAGE:   I am not able to say.

BRENNAN CJ:   Special leave will be refused with costs, Mr Page.

MR PAGE:   If your Honour pleases.

AT 2.53 PM THE MATTER WAS CONCLUDED