Minister for Immigration & Multicultural & Indigenous Affairs & B & B - [2003] FamCA 591

[2003] FamCA 591

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA Appeal No. SA82 of 2002

File No. AD3433 of 2002

AT SYDNEY

BETWEEN:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Applicant

- and -

B (INFANTS)

Respondent Infants

- and -

B (INTERVENER)

Respondent Father

REASONS FOR JUDGMENT

CORAM:Nicholson CJ, Ellis and O’Ryan JJ.

DATE OF HEARING: 26 June 2003

DATE OF JUDGMENT: 8 July 2003

APPEARANCES:

Mr Bennett QC with Mr Kennett of counsel, instructed by the Australian Government Solicitor, Level 20, 25 Grenfell Street, Adelaide SA   5000, appeared on behalf of the Applicant.
Mr Tilmouth QC with Mr Ower of counsel, instructed by Jeremy Moore & Associates, 10 Albyn Terrace, Strathalbyn   SA   5255, appeared on behalf of the Respondent Infants.
Mr McQuade of counsel (instructed by Boylan & Co, 138 Florence Street, Port Pirie   SA   5540, appeared on behalf of the Respondent Father.

Catchwords: FAMILY LAW – Children – Immigration detention – Application by Minister for s.95(b) certificate – Important questions of law and of public interest involved.

Application by Minister for a stay of operation of orders pending appeal to the High Court – Applicable principles.
s.95(b) certificate granted.
Application for stay dismissed.

Introduction

This is an application filed on 23 June 2003 by the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) in which the following orders are sought:-
“1.That the Full Court issue a certificate, in the form of Attachment A hereto or as otherwise directed, that an important question of law or of public interest is involved in this matter for the purposes of section 95(b) of the Family Law Act 1975.
2.That the execution of the Court’s judgment of 19 June 2003 be stayed pending determination of an appeal in the High Court of Australia against the said judgment.
3.Or alternatively, that the execution of the Court’s judgment of 19 June 2003 be stayed pending determination of an application for Special Leave to Appeal in the High Court of Australia against the said judgment, and if Special Leave be granted pending determination of the appeal.
4. Such other or further orders as the Court deems fit.
5. Costs of the application.”
The application arises out of an appeal heard by the Court on 17 and 18 December 2002. On
19 June 2003, the Court delivered its reasons for judgment and made the following order:-
“1. That the appeal of the appellant infants and of the appellant intervener be allowed.
2.That paragraphs 1, 2, and 3 of the order made on 9 October 2002 be set aside and in lieu thereof, it be ordered that the application of the appellant infants filed on 31 July 2002 and the applications of the appellant intervener filed on 18 September 2002 and on 19 September 2002 be remitted for rehearing as a matter of urgency before a Judge other than the Honourable Justice Dawe.”
In addition, the Court gave directions in relation to certain costs.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FamCA 591
Decision Date: 8 July 2003

CaseChat Overview and Summary

The Minister for Immigration & Multicultural & Indigenous Affairs applied to the Full Court of the Family Court of Australia for a certificate under section 95(b) of the Family Law Act 1975, and for a stay of the Court's judgment of 19 June 2003 pending an appeal to the High Court. The underlying dispute concerned applications by two boys, A and M, for orders that the Minister release them from immigration detention due to harm to their welfare. Their father also intervened, seeking orders for residence or contact and protection for the children. The trial judge had previously found that the Family Court lacked jurisdiction to make orders concerning children in immigration detention, but this decision was overturned on appeal by the Full Court.

The primary legal issues before the Full Court were whether to grant a certificate under section 95(b) of the Family Law Act 1975, certifying that an important question of law or public interest was involved in the matter, and whether to grant a stay of the Court's judgment pending an appeal to the High Court. The Court was required to consider the principles governing the exercise of its discretion to grant a section 95(b) certificate, particularly in light of the High Court's ultimate authority to grant special leave to appeal, and the principles applicable to granting a stay of execution of its orders.

The Court reasoned that the issues raised regarding the scope of the Family Court's welfare jurisdiction, its application to children in immigration detention, and the interpretation of the Migration Act 1958 in relation to indefinite detention, constituted important questions of law and public interest. The Court noted that while the High Court generally controls its own appellate jurisdiction, section 95(b) provides a unique mechanism for this Court to certify matters of significance. The Court found that the previous restrictive approach to granting certificates was too narrow and that the present case met the criteria for certification. The Court also considered the Minister's application for a stay, acknowledging that while no specific statutory provision enabled such a stay, the Court possessed the inherent jurisdiction to grant one pending a High Court appeal.

The Court granted the certificate under section 95(b) of the Family Law Act 1975, identifying specific important questions of law and public interest concerning the Family Court's welfare jurisdiction and the validity of child detention under the Migration Act. The Court also granted the Minister's application for a stay of the operation of its judgment of 19 June 2003, pending the determination of the appeal to the High Court, subject to the Minister agreeing to pay the reasonable legal costs of the applicants and intervener for the High Court appeal, irrespective of the outcome.

Orders