Masson v Parsons & Ors

[2018] HCATrans 265

[2018] HCATrans 265

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S197 of 2018

B e t w e e n -

MASSON

Applicant

and

PARSONS

First Respondent

PARSONS

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

Third Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2018, AT 11.18 AM

Copyright in the High Court of Australia

MR C.L. LENEHAN:   May it please the Court, I appear with my learned friends, MS E.A. LAWSON and MR D.P. HUME, for the applicant.  (instructed by Steiner Legal)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS M. McMAHON, for the first two respondents.  (instructed by McDonald Johnson Lawyers)

MR J.K. KIRK, SC:   May it please the Court, I appear with my learned friends, MS S.M. CHRISTIE, SC and MR P.D. HERZFELD, for the third respondent.  (instructed by Legal Aid NSW)

KIEFEL CJ:   Yes, Mr Lenehan.

MR LENEHAN:   Your Honours, the special leave question identified in the book at 132 – or the two special leave questions identified there – essentially concern the proper construction of the word “parent” in the relevant provisions of the Family Law Act.  That construction is important because it affects, in a number of fundamental ways, the manner in which a court making a parenting order under Part VII of the Family Law Act approaches that task.

Your Honours will have seen from the reasons of the Full Family Court that there are a number of divergent opinions in the Family Court at first instance regarding that issue and your Honours will have also seen, of course, that this matter raises an interesting aspect of the operation of your Honours’ decision in Rizeq.

Turning straight to that matter, the submission made by my client is that the Full Family Court erred by holding that the matter was to be resolved by reference to the irrebuttable presumption in section 14 of the State Act and your Honours will have seen that it essentially did that because that State law was said to be picked up by operation of section 79.

That approach is wrong.  We say it is at odds with Rizeq, to which the Court referred but misunderstood.  As your Honours know, section 79, as was made clear in Rizeq is addressed to the gap in State legislative power to effect the exercise by any court of federal jurisdiction.

GORDON J:   Your short point is there was no gap?

MR LENEHAN:   Correct.  Section 14 is not a law of the nature that your Honours identified in Rizeq.  It has an operation and an application independently of anything that is done by a court.  When it is engaged what it does is it effectively declares the status of parents and children and it effectively declares that certain persons are to be either the mother or the father of a child or not.  That in turn, of course, affects things like the registration of that child under the Births, Deaths and Marriages Act.  It has consequences in terms of the Education Act (NSW).  But what it is not is a law which, in the language of section 79, is made binding upon courts exercising federal jurisdiction.

KIEFEL CJ:   The respondent raises questions about whether section 60H applies.

MR LENEHAN:   Yes.

KIEFEL CJ:   I mean that is most relevant to the question about whether there is a gap.

MR LENEHAN:   Yes, that is correct, your Honour.  We, I think, are in agreement that it does not apply.  We then say that then leaves your Honours with the question of how does one approach the term “parent” in Part VII and we say that it is essentially to be approached using the ordinary meaning of that term.  That, we say, means that the primary judge essentially made no error. 

Addressing the strands in her Honour’s reasoning, we say if one is applying the ordinary meaning of the word “parent”, biology is plainly one relevant matter, connection to the child would be a further relevant matter.  It may also be relevant to consider whether a person is, at the time of conception, intending or believing that they will take on responsibilities of parenthood and her Honour the primary judge correctly applied all of those factors and we say her reasons in that regard display no error.

The contrary approach that you see in some of the authorities canvassed by the Full Family Court, you perhaps most clearly see the conflict by comparing an excerpt from Re Mark, which is at application book 120, paragraph 70.  In that decision, as is correctly summarised there, the court did not accept that the term “parent” in the Family Law Act was to be read in light of State law and that was in response to a suggestion to the contrary that your Honours see in Re Patrick, to which the Full Family Court refers at 81, AB 121 to 122, where it was said that the Family Law Act can and should be read in light of the presumptions in State law.

So our point is if you put aside section 79 of the Judiciary Act, which is a red herring, the real question is how do those State provisions bear, if at all, on the term “parent” in the Family Law Act.  Our point, our simple point is that they do not, for a fairly simple reason.  The federal law, as your Honours have seen, makes provision with some specificity as to the extent to which the provisions of those State laws give content to the word “parent” under the Family Law Act.

None of that careful provision would be necessary if State and Territory law simply directly informed the construction of the word “parent” and, indeed, if one was to assume to the contrary that it does so, as in Re Patrick, that will in fact undermine that careful statutory design.  We say you can see that in each of the provisions that your Honours have seen so, in particular, section 60H – 60H specifies conditions and circumstances in which a child is or is not taken to be the – sorry, where a parent is or is not taken to be the parent of a child.

Those conditions include under (b)(ii), 2(b) and (3)(b) that under a prescribed law of the Commonwealth, State or Territory that the child is the child of the relevant person.  So it is only to that extent where the Governor‑General, acting on the advice of the Executive Council, determines to prescribe a State law in the regulations that it will inform the notion of the word “parent”.  We say you can apply a similar analysis to 60HB to the notion of an adopted child under the Act.  All of those things indicate to your Honours that the Full Family Court erred in its approach to the term “parent”. 

I have already indicated what we say as to why special leave should be granted so your Honours will have seen from the reasons of the primary judge that this affects in various and important ways the way in which one approaches the making of a parental order under the Act.

As I have also said it is an important case in terms of the application of your Honours’ decision in Rizeq which we say was wrongly applied by the Full Family Court here.  As your Honours would know there are a number of other Commonwealth and State Acts which include the word “parent” and if the Court were to grant leave then the Court’s guidance on the meaning of that term would be important in those other respects as well.  Those are the submissions that the applicant makes, your Honour.

KIEFEL CJ:   Yes, thank you, Mr Lenehan.  Yes, Mr Kirk.

MR KIRK:   Your Honours, with the agreement of my learned friend, Mr Walker, it makes sense if I go next, I think.

KIEFEL CJ:   Yes, of course.

MR KIRK:   I will seek to be brief because we are in substantial agreement with the applicant that leave should be granted.  Your Honours would appreciate that this is a case of, and always was relevantly, a case of statutory construction about a word used – the word “parent” in a federal law.  It is of course possible first that that word might be defined expressly

or by implication in the statute.  Here it had an inclusive definition of including adoptive parents but otherwise was left at large.

That tends to suggest it was adopting an ordinary meaning.  That is not to deny the possibility that in some instances a federal statute, by using a particular term, may, in some ambulatory fashion, pick up State and Territory law but that is so as a matter of construction of the federal statute.  So to give your Honours perhaps an old‑fashioned but analogous example, if a 1950s Commonwealth law referred to “married persons” prior to the enactment of the Marriage Act, that would naturally pick up references to persons married under State, Territory or indeed foreign law.

That is so as a matter of construing the term within the federal statute.  That has nothing to do with section 79 whatsoever, to pick up what your Honour Justice Gordon said.  There is no gap to be filled.  It is simply a matter of construing what the Federal Parliament meant when it used the word “statute”.  The Family Court - or the Full Court I should say, thus went completely awry in invoking section 79 at the instigation of the first and second respondents.  It had nothing to do with the matter.  It is a matter of statutory construction. 

It is of course still conceivable that the word “parent” might have that kind of ambulatory operation – see my analogy with “marriage”.  For the reasons we have set out in our written application it should not be so construed here.  As my learned friend, Mr Lenehan, has said, to do so would be inconsistent with the careful approach that Parliament has taken reflected in section 60H where it has enabled the Executive to delineate with some care the degree to which such State and Territory laws operate.  Relevantly, the Executive has not sought to do so with respect to the most relevant possible presumption in section 60H(3).

As to how then one construes “parent” that is, with respect, itself a fairly evident special leave question in our respectful submission.  We have made the submissions in writing as to why the approach of the trial judge was eminently defensible and, indeed, correct and I respectfully adopt what my learned friend, Mr Lenehan, said in that respect.  Otherwise, we rely on our written submissions.

KIEFEL CJ:   Yes, Mr Walker.

MR WALKER:   May it please your Honours.  The litigation concerns an application for parenting orders for two children, only one of whom has a biological connection with the applicant.  As orders presently stand, those proceedings are remitted for final disposition.  As we read the disposition in the Full Court of the Family Court, I stress as we read the disposition of the Full Court of the Family Court, with the orders for remitter of all issues, there remains the contention, not before this Court, that our clients will benefit from, and the applicant will have his role of parent determined by subsection (1) of section 60H.

Now, that is a factual question about the characterisation of their relationship.  That is a trial issue.  If we are correct about 60H(1) of course, then there will be no need ‑ ‑ ‑

GORDON J:   Just so I am clear about that, unless I misunderstood that, I thought that issue had been resolved against your clients?

MR WALKER:   Yes, but ‑ ‑ ‑

GORDON J:   And is not a live issue having been determined?

MR WALKER:   We think not, bearing in mind the way in which their Honours then said “but it’s better that everything go back”.  Your Honour will recall Justice Thackray refers to the argument, which is a factual characterisation argument and not in itself a special leave point, on page 125 in paragraphs 99 and 100.

GORDON J:   Can I just test that?  At page 106 in Justice Thackray’s judgment, in paragraph 8 his Honour says that he thought that – he was not persuaded there was merit in that part of the complaint dealing with that question.

MR WALKER:   I am not contradicting that.  That culminates in what his Honour then observes in the passage to which I just drew attention.  However, one then goes forward to paragraph 106 which is the reason given for the appellate relief.  Could I draw to attention what you see at line 10 – you see there a reference to the “issue of the de facto relationship”.  Now, that is 60H(1).  Its inception is the criterion for section 60H(1) and his Honour then says in paragraph 107 and the court ordered that what he calls – that given the intertwining of the issues, though not all orders were appealed they will all be set aside on a suspended basis, as your Honours will recall, so as to require a full reconsideration.  It is for those reasons – in other words, his Honour contemplates there will be a new factual record.  If there is a new factual record then ‑ ‑ ‑

GORDON J:   I am being slow, Mr Walker.  What could there be on that issue that would change?

MR WALKER:   Your Honour, I am not in a position by way of, as it were, proleptic advice on evidence to suggest how that could be revisited.

GORDON J:   No.

MR WALKER:   It is paragraph 107 and the orders which lead, as I say, to the notion that first of all the applicant can get his parenting orders without being a parent.  He has standing, notwithstanding he is not a parent.  That must be what he is depending upon in relation to the younger of the daughters who on no view has any biological connection.  That is on no view as we understand it does the applicant say he is a parent of her but he can seek a parenting order.  It will then be on the merits obviously of connection, relationship and other matters going to evaluation and discretion.

I draw to attention, as I say, what we understand, namely that 60H(1) is therefore re‑enlivened at that hearing.  That is the first thing.  It is an argument that goes to whether or not it is necessary in the interests of justice for this Court to take up an issue which I cannot possibly say is not important.  That is conceded.

Now, it is common ground, at least between the applicant and the first two respondents, we think the third respondent as well, that as it stands with the way the regulations have been made, section 60H, that is subsections (1), (2) and (3), do not have application subject only to the question of whether subsection (1) avails us after a retrial. 

That, however, is not the proper way, we submit, to approach what I am going to call the gap question.  One is reminded of warnings on the tube in London and you do have to mind the gap – in other words, what gap are we talking about?  Jurisprudentially, as we understand it from Rizeq you are looking at an area where, by reason of the Constitution, a State Parliament lacks power to regulate the manner in which federal jurisdiction is to be exercised. Section 79 fills that by its well‑known terms.

We note, and I cannot say much without making it sound too interesting, what our learned friend, Mr Lenehan, says, understandably about these provisions, section 14 of the State Act, not being a provision of a kind that is ordinarily regarded as picked up by section 79.  I am bound to say that is contested.  They are provisions about presumptions.  They are provisions about irrebuttable or rebuttable presumptions and the language of “irrebuttable or rebuttable presumption” is a language which does not just operate in the streets.  It specifically and characteristically operates in court and instructs a court, directs a court as to how it must proceed in relation to onus, sufficiency of evidence and conclusion.  That is why section 14 is pre‑eminently the kind of law that can be picked up by section 14.

I remind you, the Family Law Act itself has presumptions, both irrebuttable and rebuttable.  Section 69R played a role, your Honours may have noticed, peripherally in the argument of this case because of the registration of the birth.

GORDON J:   The registration of the birth, yes.

MR WALKER:   That is a rebuttable presumption and 69U says some curious things but it is fortunately not part of the spectacle of interesting issues, but 69U says that they can be rebutted on the balance of probabilities.

KIEFEL CJ:   How would you describe the gap that exists that needs to be filled?

MR WALKER:   The self‑evident question how do we allocate parentage, bearing in mind the awful possibility of – I should not say “awful” – bearing in mind the spectacular possibility of three parents or more ‑ ‑ ‑

KIEFEL CJ:   So it is not the meaning of “parent” about which there is a gap.  It is the method by which you determine it.

MR WALKER:   It is the method by – well, it is actually the meaning of “parent” in the case which is raised by latter day artificial procedures which obviously raises on the face of it that we may be talking about a person with three parents which is, as your Honours know, a policy against which all the Parliaments that have looked at this have firmly set their – they have said against that.  You will not have a father who provided the gamete and two mothers who are by, provisions such as 60H(1), the parents. 

Now, I stress it is therefore the meaning of “parent” but in a case where that is not critical to the applicant’s position – he can seek a parenting order without being a parent, he is doing so for one of the other daughters ‑ ‑ ‑

GORDON J:   But it is an important question, is it not, that question – that is how one reconciles 60H(1) with these sorts of circumstances?

MR WALKER:   I cannot possibly say it is not.  Section 60H generally ‑ ‑ ‑

GORDON J:   I meant 60H generally.

MR WALKER:   Again, I do not want to make it too interesting but one looks at 60H and in answer to the Chief Justice’s question it does not deal with all the possibilities.  Now, that is not a relevant gap, using that language of the cases but 60H plainly leaves room for the irrebuttable presumption of section 14 and that is what section 79, supplying the gap in

State power, picks up so as to command in this case the Family Court how to understand and apply to the facts of the case the expression “parent”.  It is for those reasons, in our submission, that the Full Court was not wrong – I do not think I can add anything, bearing in mind my unqualified concession that it is self‑evidently important.

KIEFEL CJ:   Anything in response, Mr Lenehan?

MR LENEHAN:   Your Honours, as Mr Walker accepts, the issue that he has just identified is interesting and lest that be put as some sort of indication that perhaps our prospects are less than suitable for a grant of special leave, we would be putting in the alternative that the exception to 79 applies, that is the exception discussed in GPAO, so it would raise a further interesting aspect of section 79, that is ‑ ‑ ‑

KIEFEL CJ:   But you say it resolves on section 60H?

MR LENEHAN:   Yes, we do.  In terms of the other issue concerning 60H(1) and the question of the de facto relationship, if your Honours grant leave, decide the appeal in my client’s favour, the effect of all of that will be to restore the orders of the primary judge.  That question will not arise is not a reason to refuse leave.

KIEFEL CJ:   There will be a grant of special leave in this matter.  What is your time estimate, Mr Lenehan?

MR LENEHAN:   Your Honours, I think we are agreed that it will be a day.

KIEFEL CJ:   Yes, thank you.

MR WALKER:   Your Honours, may I raise the possibility of attention to the notice of appeal and accompanying 78B notices?  The argument, if I may say so, with great respect, has moved on from the commencement of this application.

KIEFEL CJ:   Yes, thank you.  Will you be giving further attention to the notice of appeal?

MR LENEHAN:   Yes, we will, your Honours.  I wonder whether we might also seek a slight variation of the timetable just to allow for holiday commitments to that end. 

KIEFEL CJ:   You already have a copy of the timetable, have you?

MR LENEHAN:   I do, so I had in mind something in the order of a week in respect of each of those dates.

KIEFEL CJ:   You mean push them all out by a week?

MR LENEHAN:   Yes.  I apologise for asking that indulgence.

KIEFEL CJ:   I am sure that is going to cause no one any difficulty.

MR WALKER:   I do not think I am allowed to oppose that, your Honour.

MR LENEHAN:   May it please the Court.

KIEFEL CJ:   Yes, that will be in order.

MR WALKER:   May it please the Court.

KIEFEL CJ:   Thank you.  The Court will adjourn to reconstitute.

AT 11.42 AM THE MATTER WAS CONCLUDED