MQ & Director General Department of Community Services (NSW)

[2005] FamCA 916

[2005] FamCA 916

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT SYDNEY

Appeal No. EA 107 of 2005

No. SYF 2421 of 2005

IN THE MATTER OF:

MQ

Appellant

- and -

DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES (NSW)

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:   Bryant CJ, Kay and Boland JJ
DATE OF HEARING:                 26 September 2005
DATE OF JUDGMENT:             26 September 2005

APPEARANCES:  Mr Levet of Counsel, instructed by Grech Partners Solicitors (Suite 41-42 Inglewood BC Baulkham Hills NSW 2153), appeared on behalf the Appellant.

Ms Hartstein of Counsel, instructed by Legal Services Unit, Department of Community Services (4-6 Cavill Avenue Ashfield NSW 2131), appeared on behalf of the Respondent.

MQ and DIRECTOR GENERAL DEPARTMENT OF COMMUNITY SERVICES (NSW)

APPEAL NO.  EA 107 of 2005

CORAM:  Bryant CJ, Kay and Boland JJ

DATE OF HEARING:         26 September 2005

DATE OF JUDGMENT:     26 September 2005

Catchwords:           CHILD ABDUCTION – APPEAL – STAY – Where trial Judge ordered the return of the child from Australia to the United States – where decision of trial Judge upheld by the Full Court – where application for special leave to appeal to the High Court sought – where application made to trial Judge for a stay pending the special leave application – where application for stay dismissed – appeal to Full Court of the Family Court – De Lewinski v Department of Community Services (1996) FLC ¶92-678 applied – appeal dismissed.

Port of Melbourne Authority v Anshun (1981) 147 CLR 589

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681

Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287

De Lewinski v Department of Community Services (1996) FLC ¶92-678

Farley & Lewers Ltd v Attorney-General [1963] SR (NSW) 814

Ling v The Commonwealth (1986) 58 FCR 180

1. BRYANT CJ:  This matter comes before us as an appeal from a decision of Steele J refusing a stay of orders made by him on 8 July 2005 in a matter involving the Convention on the Civil Aspects of International Child Abduction (‘the Hague Convention’).  Following this decision, the present appellant appealed to the Full Court of the Family Court of Australia against these orders.  The Full Court heard and determined the appeal and in reasons for judgment given on 25 August 2005, dismissed the appeal. 

2. The appellant has now filed an application in the High Court seeking special leave to appeal.  There is only one ground in the notice of appeal, namely, that the Central Authority was estopped from bringing the proceedings by virtue of the "rule" in Port of Melbourne Authority v Anshun (1981) 147 CLR 589 (‘Anshun’).  That issue was agitated with others before the Full Court and the trial Judge. 

3. The orders of the Full Court were to dismiss the appeal and thus leave in place the substantive orders made by Steele J.  In De Lewinski v Department of Community Services (1996) FLC ¶92-678, Gummow J dealt with an application for a stay pending the hearing of a special leave application after  the Full Court's refused to grant it.  In the course of judgment he cited the judgment of Brennan J, as he then was, in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681 and said:

   “A stay application was properly made to the Full Court as the court familiar with the matter.” 

4. It seems to me that the appellant could have sought a stay directly from the Full Court, but in the circumstances chose to apply to the trial Judge whose orders were the operative orders and who was also familiar the matter.  As a consequence, this matter comes to us as an appeal and accordingly, the principles relating to an appeal from a discretionary judgment apply.

5. The issue in the matter arises in the following way. There were two sets of proceedings before the Full Court.  In the first proceedings, the Central Authority was not a party to the application, the application having been brought by the father.  The Full Court determined that the Family Law (Child Abduction Convention) Regulations 1986 (‘the Regulations’), as they then were, did not permit the father's application to be validly brought and allowed the appeal. As a consequence, the matter came before Steele J for re-hearing. His judgment was then the subject of appeal to the Full Court, which I have described.

6. In the first proceeding, the Central Authority was not a party to the application when the matter was heard at first instance and only joined the proceedings in the appeal, so that consideration might be given to substituting it as the applicant if the Court held the father’s application to have been invalidly brought.  It ultimately declined to make that application.  The argument agitated by the appellant, both at first instance and on appeal, was that as a consequence of the Central Authority joining the proceedings; it was then estopped from bringing its own application in the proceedings which were conducted before Steele J. 

7. In the judgment delivered by Steele J at first instance, in relation to the Anshun principle, his Honour cited from relevant authorities, in particular, Bryant v Commonwealth Bank of Australia (1995) 57 FCR 287 and from the High Court in Anshun at page 602, in a passage in which the Chief Justice and Mason and Aitken JJ said:

   “We would prefer to say there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it.”

His Honour noted that:

“The element of unreasonableness was again the criteria applied in Ling v The Commonwealth (1986) 58 FCR 180 at 195.”

1. His Honour at first instance found, in the exercise of his discretion, that the conduct of the Central Authority, in failing to pursue its application to be substituted, could not in the circumstances be said to be unreasonable.  His Honour indicated that it was at least arguable that the Central Authority was not entitled to pursue the application because it had received no request from anyone in conformity with Regulation 13 asking it to secure the return of the child. 

2. As I have indicated, that argument was again agitated before the Full Court in the appeal from his Honour’s decision.  The Full Court agreed with the trial Judge’s exercise of discretion in relation to the question of unreasonableness and insofar as it was argued that the Central Authority was unreasonable in not pursuing its foreshadowed application to the first Full Court, agreed with the finding of Steele J that absent any request for it to exercise any power, it could not be said to be acting unreasonably by refusing to elect to pursue the application it had foreshadowed. 

3. The Full Court also indicated that the application was fraught with a number of serious problems.  In particular, it was by no means clear under the Family Law Rules 2004 (‘the Rules’) themselves that the Rules would enable the substitution of an applicant at trial, and citing from Farley & Lewers Ltd v Attorney-General [1963] SR (NSW) 814, the Full Court referred to the difficulties associated with substituting a plaintiff in a suit that was a nullity because the original plaintiff lacked authority to bring the suit. The Full Court indicated that the issue of capacity of the Central Authority to bring any application, absent a request made of it, was something that concerned the trial Judge and might well explain the Central Authority's decision not to proceed with its foreshadowed application, and if so, was entirely reasonable.

4. The Full Court went on to indicate that the fact that a valid proceeding would have lain at the suit of the Central Authority, had it been requested to commence proceedings, would not have necessarily given the Full Court an appropriate basis for substituting the Central Authority as the applicant in the proceedings that were before it, at a time when no such request was made.  The Court said:

   “The doubts surrounding the validity of the procedure to be substituted as an applicant is (indistinct) by a person shown to lack standing was sufficient to make it reasonable for the Commonwealth Central Authority to abandon that course and simply bring a fresh action.” (at para 59)

5. Importantly in my view, the Full Court at paragraph 60 said:

   “It is appropriate that the Anshun principle be restrictively applied.”

   The Full Court went on to quote from Wilcox J in Ling v The Commonwealth of Australia (supra) where his Honour said:

   “The principle applied by the High Court of Australia in Port of Melbourne Authority v Anshun PtyLtd (1981) 147 CLR 589 is designed to minimise the burden of litigation. It enables courts to ensure that parties put their whole case forward at one time, thereby eliminating duplication of effort and expense and reducing the opportunity for a party to harass a weaker opponent with repeated suits. However, these benefits come at a price. The result of a court applying the principle is to shut out a claim or defence that a party wishes to pursue, without determination of its intrinsic merit, on the ground that it ought to have been raised in earlier litigation…. If the Anshun principle is too readily applied, there is the possibility of serious injustices.”

6. In my view this comment is particularly apposite in a case like this where one party is seeking to apply a principle to prevent the operation of an international convention ratified by Australia and legislated into domestic law through the Regulations.

7. The trial Judge's decision was an exercise of a discretionary power to grant or not grant a stay to preserve the subject matter of litigation pending appeal.  According to those principles, unless the appellant can demonstrate an error of law which vitiates the exercise of that discretion, then the appeal will not be successful.  The principles governing the exercise of the discretion are set out by the High Court in Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (supra) and followed by Gummow J in De Lewinski v Director General, New South Wales Department of Community Services (supra).

8. The trial Judge identified the relevant principles from Jennings Construction Limited v Burgundy Royale Investments Pty Ltd as enunciated by Brennan J as he then was.  His Honour considered first the question of whether a stay was required to preserve the subject matter of the litigation.  He held that this was such a case.  His Honour then said that whilst the need to preserve the subject matter of the litigation was a strong argument in favour of granting a stay, it is not on its own determinative of the issue.  No issue is taken by the appellant with his Honour’s finding on that matter.

9. His Honour then proceeded to consider whether there was a substantial prospect that special leave would be granted.  His Honour found that there was only one ground of appeal and that the judgment of the Full Court against that ground was unanimous.  He noted that five judicial officers all determined the issue against the appellant, there was no issue of public importance involved and the prospects of success of the appeal were poor.  His Honour found that the hearings on the merits of the matter had determined those merits against the appellant and that serious doubts have been cast on the bona fides of the appeals brought about by the joinder of the intervener, apparently for the purposes of enabling technical arguments of law which have no substance. 

10. Insofar as the last of those is concerned, if his Honour was suggesting that the mother was endeavouring to achieve a result dishonestly or bring about or use a tactic inappropriately to bring about a result, I do not consider that finding was open.  But if his Honour was simply discussing the merits of the case arising from a wrongful removal of a child from another jurisdiction, then his Honour's comment is more easily understood. 

11. I note in addition, that the issue of whether or not the mother was bona fide was raised by his Honour in relation to the joinder of the intervener (the subject child’s sister) which his Honour had to deal with, as did the Full Court but which   is not the subject of the appeal.  Whilst his Honour's finding of the mother's bona fides may in the circumstances have not been open to him, in my view, nothing turns on it in relation to this appeal. 

12. His Honour found that there was no issue that the necessary steps to seek a stay from the court below had been taken by the appellant.  On the question of whether the stay, if granted, would cause loss to the respondent, his Honour found that the respondent would suffer no detriment except as to costs.  He noted that although on the face of it the respondent was in fact the Central Authority, in reality the father was the respondent and there would be some effect on the father’s position because the longer the delay in the child being returned to the United States, the more likely it is that there would be difficulties placed in his way. 

13. When considering the balance of convenience, his Honour found that there was no acceptable evidence of the time likely to be taken in having the application for Special Leave determined.  His Honour noted that if the application for Special Leave was not granted, the child would be returned to the United States so that the courts of that country could determine with which parent and under what circumstances the child should reside, and noted that it would not result in the child being permanently banished from Australia.  His Honour noted that some importance should be placed upon the need for Australia to give effect to or be seen to give effect to its obligations under the Hague Convention. 

14. Having considered those matters, his Honour then dismissed the application for a stay and as a result the matter comes before us on appeal.

15. Counsel for the appellant, in dealing with his Honour's findings as to whether there was any reasonable prospect of success, submitted to us that his Honour erred in finding that there was no issue of public importance involved.  First he submitted that as far as the respondent (the Central Authority) was concerned, there was a public interest in the maintenance of Australia's obligations under the Hague Convention. 

16. That argument can be easily disposed of.  The respondent is quite capable of bringing an application or seeking leave to appeal to the High Court.  In this case, the respondent does not believe that this case raises any matters of public interest.  For the appellant, it was then argued that the matter of public interest was the maintenance of the integrity of the Anshun principle.  However, as his Honour Kay J pointed out to counsel in the course of argument, the integrity of the Anshun principle in this case was not being impugned.  This case was simply about its application to the facts in a particular case, and the exercise of the discretion of the trial Judge in relation to the application of those facts.  I cannot thus find any basis on which his Honour erred in finding that no public interest was involved.

17. It is also in my view important to add that the facts in De Lewinski, where a stay was granted by the High Court, must be distinguished from this case.  In De Lewinski, the Special Leave application was being brought on the basis that there was an issue about the construction of the Regulations and where there were differing decisions of the Full Court about the meaning and construction of the Regulations, and the significance to be placed on decisions concerning the Hague Convention by the English Court of Appeal.

18. In this case, there is no argument about the construction or meaning of the Regulations, and there is importantly in my view, a concession that there are no defences under Regulation 16 available to the appellant. The case before his Honour and now on appeal relies upon an argument about process, namely, the application of the Anshun principle to the facts of this case. 

19. The appellant argued that his Honour was wrong in finding that there would be some loss to the father and that in the circumstances there could only strictly be a loss to the Central Authority and further that his Honour should not have considered any element of detriment to the father at least at this stage.  In my view, it is not inappropriate to give some weight to it given the wrongful removal of the child, but in any event, as the appellant conceded that this matter could be dealt with by his Honour under a consideration of the balance of convenience, in my view nothing turns on it. 

20. Under his consideration of the balance of convenience, the appellant submitted that his Honour had erred in raising the question of public policy and the need to give effect to the Hague Convention.  The point made by the appellant was a somewhat technical one in the sense that he submitted that it was not public policy that was being given effect to in the legislation and that his Honour's comments, if apposite at all, should have been confined to a question of the legislation itself and not the policy behind it. 

21. In my view, there was no error in his Honour doing so, firstly because the appellant does not raise any matters other than the application of the Anshun principle, and nothing that otherwise relates to the Regulations. But secondly, as Kay J pointed during the course of the argument, section 111B of the Family Law Act 1975 (Cth) specifically states that the Regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia or to obtain for Australia any advantage or benefit under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980. The implementation of the Regulations is directly aimed at giving effect to Australia's obligations under the Convention and its obligations to return children wrongfully removed. In my view his Honour was quite at liberty to consider this as one of the matters upon which his discretion is exercised.

22. The appellant, in seeking to offset the issue of loss to the respondent by the child not being returned, annexed to his affidavit in these proceedings, an Evaluator's recommendation apparently filed in the proceedings in the Circuit Court in the County of Washtenaw, the court in which proceedings are currently on foot in the State of Michigan.  The argument for the relevance of this report submitted by the appellant was that the result of the Evaluator's findings was that the relationship between the child and the father had been fractured, and that given that fracturing it mattered not when the child was returned. 

23. If one was to consider the Evaluator's report at all, then in my view the report supports the father's case, on the issue of delay, as much as the mother's.  However, in my view, to consider the Evaluator's report in this way would be nothing short of considering the merits of the case, and in my view it is irrelevant to the matters before us and in particular to the balance of convenience. 

24. The appellant submitted that his Honour had perhaps by the use of the term "bona fides" inappropriately rejected his arguments or the potential importance of them, in the Special Leave application because they were matters of a technical nature.  There is no reason why the appellant should not raise matters of a technical nature and for myself, I would not regard it as a matter of relevance. 

25. The relevance, however, is whether the ground has any real prospect of success and that is the matter to which the trial Judge addressed himself when he found that it was unlikely to have any prospect of success.  Counsel for the respondent on this point submitted that the Anshun principle argument was so clearly without merit that the High Court would not even get to the public interest issue.  It is sufficient for me to say that no issue of public importance arises as his Honour has identified, and that it has not been demonstrated that his Honour has erred in coming to that conclusion. 

1. In my view, therefore and for those reasons, the appellant has not demonstrated that there is any error which would justify this court interfering with the trial Judge's decision.  I would dismiss the appeal.

2. KAY J:  I agree with the reasons given by the learned Chief Justice.  In Bryant v the Commonwealth Bank of Australia S169/1995 (28 February 1996) Kirby J when dealing with a stay application in a bankruptcy proceeding emphasised the need for the court as a primary consideration to be satisfied that there was a substantial prospect that special leave to appeal will be granted.  In this case Mr Levet described the argument that he wished to run in the High Court as a “speculative” argument, and in his written submissions, he described it as a “novel, unusual or even special proposition which may interest the members of the High Court”.

3. In my view, neither of those descriptions would meet the test emphasised by Kirby J in applying the matters in the Burgundy Royale case. The evaluation of whether there is a substantial prospect of special leave to appeal being granted is always a difficult matter for an intermediate court.  However here it has been conceded that at best the argument is entirely speculative.  In my view, it was quite open to the trial Judge in this case to refuse to grant the stay as sought and if I were asked to re-exercise his Honour’s discretion I too would reject the application.

4. BOLAND J:  I concur with the reasons of the learned Chief Justice and Kay J and I have nothing further to add to their reasons. I too would dismiss the appeal.

5. BRYANT CJ:  The formal order will be the appeal will be dismissed.

I certify that the preceding 37 paragraphs
are a true copy of the reasons
for judgment delivered by
the Honourable Chief Justice Bryant.

 
Associate