MHP & DCS

[2005] FamCA 549

[2005] FamCA 549

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA22 of 2000
AT SYDNEY  File No SYF2011 of 2000

BETWEEN:

MHP
Applicant Husband
- and -

DCS
Respondent

REASONS FOR JUDGMENT

CORAM:  KAY, HOLDEN & MAY JJ
DATE OF HEARING:                 6 June 2005
DATE OF JUDGMENT:             30 June 2005

APPEARANCES:  The Applicant Husband in person.

Mr Hill of Counsel, instructed by Department of Community Services, 164-174 Liverpool Road, Ashfield NSW 2131, appeared on behalf of the Respondent.

MHP & DCS
EA22 of 2000
CORAM:  KAY, HOLDEN & MAY JJ
DATE OF HEARING:         6 JUNE 2005
DATE OF JUDGMENT:     30 JUNE 2005

Catchwords:           APPEAL - HIGH COURT -  S 95 (b) CERTIFICATE – Order for return of child abducted child to UK - whether made on incorrect evidence -  no useful purpose to be served by the proposed appeal as the order for the return of the child had been wholly executed many years ago – not clear that the further evidence would have made a difference to the outcome of the proceedings - no important question of law or public interest involved .

1. On 26 May 2000 the Full Court (Ellis, Coleman and Flohm JJ) dismissed an appeal against orders made by Chisholm J on 21 March 2000 that a child be returned to the United Kingdom in accordance with the provisions of the Family Law (Child Abduction Convention) Regulations 1986.

1. On 11 October 2002 the High Court dismissed an application seeking an extension of time to bring an application for special leave to appeal against the Full Court’s judgment.  In the very short reasons for judgment delivered by Gaudron J on behalf of herself and McHugh J, her Honour said:

“We have carefully considered the summary of argument and reply filed by the applicant for special leave in this matter.  The applicant is unrepresented.  He seeks special leave to appeal from a decision of the Full Court of the Family Court dismissing his appeal against an order for the return of his daughter to the United Kingdom.  We have been informed by [Ms H] that the child has now returned to that country and accordingly, no useful purpose can be served by the proposed appeal.

Further, we of the view that the arguments which the applicant wishes to raise are without sufficient merit to justify the grant of special leave.”

1. In April 2005 the unsuccessful applicant filed a further application in this Court seeking the grant of a certificate pursuant to the provision of s 95(b) of the Family Law Act that an important question of law or public interest had arisen which would make it appropriate for the High Court to entertain an appeal from the decision of the Full Court rendered in May 2000.  At the conclusion of the oral argument before us we indicated that we would be dismissing the application and orders were made accordingly.  These are our reasons for dismissing the application.

1. The applicant is the father of a child born in April 1997.  In August 1999 the mother brought the child to Australia and commenced a relationship with one Mr W.  The father commenced proceedings in Australia for the return of the child to the United Kingdom and the mother gave an undertaking that she would return the child.  Orders were subsequently made in the English High Court of Justice for the child to reside with the mother and for the father to have contact.  In December 1999 the father brought the child to Australia without the mother’s permission.

1. In January 2000 application was made to the Family Court of Australia pursuant to the provisions of the Child Abduction Convention Regulations for an order for the return of the child to the United Kingdom.  The father was arrested and placed in detention by the immigration authorities and the child was returned to the mother.

1. The return application was heard before Chisholm J in March 2000.  Central to the father’s defence to the application for the return of the child to the United Kingdom was an assertion by him that the return of the child would expose the child to a grave risk of physical or psychological harm because of the mother’s association with Mr W. 

1. The initial trial had run for several days.  Much evidence was led about Mr W and his relationship with his own children, including significant allegations of violent behaviour.  The trial Judge concluded that:

“…It is true that in many ways he [Mr W] was not a very impressive witness.  It is also true that he gave blanket denials of any misconduct in relation to the children, whereas there is substantial independent evidence that suggests that he had engaged in at least some violent behaviour towards the children.  To that extent I do not accept his evidence, and his denials of those matters is a matter which it is necessary to take into account in determining the extent of any risk that might flow from him to [the child whose return was being sought].”

1. The trial Judge heard evidence from two of Mr W’s children and concluded:

“…that the Ws were a conflict-ridden family whose problems brought it to the notice of the authorities from time to time…”

1. His Honour further concluded that the material:

“…does provide some cause for concern, and as I have said it is inconsistent with [Mr W’s] flat denial of any physical abuse of the children.  On the other hand the pattern seems to be of loss of temper and some rough behaviour rather than systematic abuse.”

1. The trial Judge ultimately concluded:

“…the matters raised by the father do suggest a degree of concern but fall far short of the grave risk required by regulation 16.”

1. The Full Court carefully examined the findings of the trial Judge and concluded it would be inappropriate for the Full Court to interfere with the exercise of discretion by the trial Judge. 

1. The basis upon which the father now seeks to have this Court grant a certificate that an important question of law or public interest is involved such as would make it appropriate for the High Court to entertain an appeal against the order for the return of the child to the United Kingdom some five years after the child has been returned to the United Kingdom is that the father asserts that he has now obtained documents that would indicate that some of the material that was relied upon by the trial Judge was incorrect.  In particular he seeks to rely upon a document which purports to emanate from the Queensland police and provides a criminal history of Mr W that detail five appearances at various courts between 1972 and 1986, including a conviction in August 1982 for willful exposure and a conviction in December 1986 for the possession of a silencer.  The applicant said that the evidence before the trial Judge was that the Queensland police had certified that there were no “disclosable court outcomes” recorded against the name of Mr W in the records of police services in Australia.  It was submitted that had the correct information been provided by the Queensland police service before the trial Judge the outcome of the case would have been different.

1. Further the applicant sought to place into evidence 1988 records of interview with Mr W’s former wife P and his daughter S (then aged 10).  Those records of interview appear to have been prepared for the purposes of an application to the Children’s Court for an order for admission to care and protection of the Director of the children S and L both of whom, according to their mother’s statement, were then living with Mr W.

1. We should say that it is apparent from the reading of the Full Court judgment that the files of the Queensland Department of Youth and Community Childcare were before the trial Judge and the issue of Mr W’s violent behaviour was found to be a matter of concern.

1. Whilst s 95(b) of the Family Law Act makes provision for the grant of a certificate, it is clear that such certificates have in the past only rarely been granted.  In the majority judgment in Re Z (No 2) (1996) FLC 92-708 Nicholson CJ and Frederico J said:

“…For us to grant a certificate is a serious step which effectively usurps [the] High Court’s discretion and detracts from its capacity to determine for itself, the matters which it considers significant for the function and development of the law as seen from the position of the highest court in the land.”

1. More recently in Moussalli v Mousalli the Full Court (Finn, Warnick and Le Poer Trench JJ) examined the cases involving the grant of certificates and agreed with the conservative and restrictive view expressed in Re Z that it was for the High Court to decide what matters it would determine.  In any event, in light of the comments of the High Court in DGL v Central Authority (2000) 201 CLR 226, (2000) FLC 93-015, any certificate granted by this Court would need to specify the terms of the important question of law or public interest that was involved. The applicant was unable to identify with precision exactly what important question was raised by the fresh material or what matter of public interest was involved.

1. There are a number of reasons why no such question of law or matter of public interest arises in this case.

1. Firstly, as already commented upon by Gaudron J, there is no useful purpose that can be served by the proposed appeal that the order for the return of the child has been wholly executed many years ago.  There is no order that could now be made that would reverse that situation.

1. Secondly, even accepting that the trial Judge had been misled as to whether or not Mr W had any criminal convictions, it is far from clear that the disclosure of that which the husband now asserts is the correct position would have made the slightest difference to the outcome of the proceedings.  There were serious flaws in Mr W’s behaviour towards his own family that were extensively examined at the trial and by the Full Court.  There is nothing about the further evidence that would have suggested that it would have been so decisive to the outcome of the proceedings that the subsequent discovery makes it appropriate that the propriety of the original return order should now be the subject of any re-examination by the High Court.

I certify that the 19 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate