Murray v Director, Family Services Act

[1993] HCATrans 386

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IN THE HIGH COURT OF AUSTRALIA

Registry No Cl9 of 1993

B e t w e e n -

GABRIELLE FORSYTHE MURRAY

Applicant

and

DIRECTOR, FAMILY SERVICES

A.C.T

Respondent

Application for special leave

to appeal

BRENNAN J
DEANE J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

Murray 1 10/12/93

AT SYDNEY ON FRIDAY, 10 DECEMBER 1993, AT 9.34 AM

Copyright in the High Court of Australia

MR P.I. ROSE, QC: If the Court pleases, I appear for the

applicant with my learned friend, MR J.H. BREWSTER.

(instructed by Macphillamy Cummins & Gibson)

MR L.S. KATZ:  If Your Honours please, I appear with my

learned friend, MR R.W. KILLALEA, for the

respondent. (instructed by the ACT Government

Solicitor)

BRENNAN J:	Mr Rose.
MR ROSE:	If the Court pleases.  It is respectfully

submitted that this application for special leave

principal categories, the first being does the welfare jurisdiction of the Family Court of

raises important questions of law and public
interest in relation to welfare of children and

the applicability of international conventions.

Australia, as provided in Part VII of the Family

Law Act, apply to so-called Hague Convention

proceedings for return of children to the country

of previous residence or do different principles

apply, excluding the mandatory requirement in

Part VII that the welfare of the child is the

paramount consideration.

The second principal area of our submissions, with respect, is the question of whether the

discretionary power given in regulation 16(3)(b) of

the relevant regulations to refuse to order the

return of the child is fettered as a matter of

general principle so that it may only be exercised

in relation to the countries which do not afford

suitable protection by dint of court remedies and

enforcement systems.

If the Court pleases, I propose to make brief

submissions in relation to the second matter first

and, in doing so, if I might refer Your Honours to	regulation 16(3)(b) of the Family Law (Child
Abduction Convention) Regulations. Your Honours
will see that the opening two lines set forth the
discretionary power, the words being:

A court may refuse to make an order under sub-

regulation (1) or (2) if it is satisfied

that -

and then there are matters in which evidence might

be led and findings of fact made. The relevant

paragraph for the purpose of these proceedings

before the court below was paragraph (b) that:

there is a grave risk that the child's return

to the applicant would expose the child to

Murray 10/12/93

physical or psychological harm or otherwise

place the child in an intolerable situation;

Our respectful submission is that the Full Court of

the Family Court of Australia made a statement of

general principle which it elevated to a legal

presumption when it held at page 62 of the

application book, line 18:

In our view and in accordance with the views expressed by this Court in Gsponer's case, the circumstances in which Regulation 16(3) comes

into operation should be largely confined to
situations where such protections are not

available.

It is our submission that regulation 16(3) provides

an unfettered discretionary power. Of course, the

substratum of findings of fact must be made before the power is exercised, that that is the extent of

the limitation, and as this Court has held in a

different context, namely in property settlement

proceedings, in Mallet's case, which is not on the

list of authorities but copies have been prepared

and if I may hand them up to Your Honours. The

copies that Your Honours have will have now copies

of the reasons for judgment of the former Chief

Justice Mr Justice Gibbs.

BRENNAN J:  Mr Rose, before you go on, the relevant

applicant in 16(3)(b) is not a parent but a Central

Authority.

MR ROSE: Yes.

BRENNAN J:  What is the proposition, that in a case where

the New Zealand Central Authority makes an
application, that there is a grave risk that the

child's return to the New Zealand Central Authority

will expose it to danger?

MR ROSE:	Your Honour, the answer to that is partly found in
regulation 13 where Your Honours see that:

the Commonwealth Central Authority receives an application in respect of a child removed from

a convention country -

and then takes action for the return, so the

application is made following an application to it

by the parent who remained behind in the previous

country, in the country of residence, and the

danger which we would submit that applies here is

that even though the applicant before the Court is

the Central Authority and not the parent, which is

what Your Honour is referring to, none the less it

is the physical presence in the country which

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follows from an order where, having regard to

evidence that might have been led before the court

below, would demonstrate that there is still a

grave risk.

DEANE J:  Is what you say correct? When you look at the

definition of "applicant" and regulations 11 and
13, it indicates that the applicant is obviously,
in this case, the parent. Whether regulation 24

puts a different aspect on that, I would not know,

because it has been cut out of what I have been

given.

MR ROSE: Regulation 24, Your Honour, is relating to access.

DEANE J: But if you look at 11 and 13 they consistently

refer to the applicant as the person seeking

custody, not to the Central Authority. It is very

hard to work out how 16(3)(b) would work in that

context.

MR ROSE:	What I was endeavouring to answer was this, Your Honour, that the applicant who appeared
before the Family Court of Australia was, of course, the delegate of the Central Authority, it
having made the application. So that strictly
speaking, it is that entity which, through its
delegate, has appeared before the court. But in
particular for the regulations Your Honour Justice Deane referred to, and that in turn
leading into regulation 13 where a Commonwealth Central Authority received an application, that
comes about because of the regulations that Your Honour has just referred to.

DEANE J: But what I am putting, I would have thought, was

against you, because if you look at 15(1), there

are a variety of orders that the Central Authority

can seek, including under lS(l)(d):

an order for the return of the child to the

applicant -

which the Central Authority has not sought in this

case. I would have thought that meant that

16(3)(b) was simply irrelevant to this case.

MR ROSE:	Your Honour, in our submission, if that would follow it would mean that regulation 16 would
never fall for consideration in circumstances
where the formal application has been made by the
Central Authority.

DEANE J: Yes, it would. It would fall when there was an

application pursuant to lS(l)(d), that the court in this country, instead of remitting the child to the

Murray 10/12/93

proper jurisdiction, itself makes an order, in this

case for the return to the custody of your client.

MR ROSE:	Yes.
DEANE J:	Now, that has not been done here, which means, I

would have thought, 16(3)(b) is simply irrelevant

to this case.

MR ROSE:	Your Honour, in terms of the orders that were
made, the orders made by the trial judge appear at
application book 19 and on page 20, at the top of the page:

the children be returned in the care of the

mother.

Order 1, towards the foot of page 19, refers to:

returned to the Applicant in New Zealand.

DEANE J: But His Honour is using applicant in a different

sense. He is referring in the ordinary sense to

the Director of Family Services which, if you look

at the beginning of his judgment, is described as

the applicant.

MR ROSE: If Your Honour pleases. In our submission - - -

DEANE J:  I am not trying to pull the rug out from you,

Mr Rose, but - - -

MR ROSE:	Your Honour, in our submission, even if those
matters are against me, it still does not overcome the question of law in terms of general principle
stated by the Full Court, namely that this
application is not merely confined to situations where the applicant that appears before it is the parent who remained in the country from whence the children were taken, but Their Honours go further than that and say, in effect, this regulation only
falls for consideration if the country from which
the child was habitually resident does not have appropriate systems of court protection and
enforcement and, in doing so, relied upon its previous decision in a case called Gsponer, which
is on Your Honours' list - - -

BRENNAN J: But if the problem does not arise in this case,

it would not be a suitable vehicle for considering

it, would it?

MR ROSE:	I would appreciate that, Your Honours, and my only
submission about that would be this, that if the reality is that notwithstanding that the applicant
is regarded as being a government authority and
not a particular person, then none the less the
Murray	10/12/93

circumstances in practice would still remain the

same, namely that the children would not be living

in some sort of vacuum and evidence in relation to

possible grave harm would be just as applicable as

if the parent concerned happened to have been the

applicant. Then it would be a question of looking

at the evidence in relation to that particular

matter. So that, in our submission - - -

BRENNAN J:  But if that is the way in which you wish to look

at it, the Full Court's view seems to be that there is not any risk to the child to be apprehended from the male parent, if the child is returned to New

Zealand for the matter of access to be dealt with

there.

MR ROSE: Yes, but, Your Honours, the presumption there

being that there is the Family Court system in New

Zealand and enforcement authorities which will

afford protection and that is the platform upon

which that statement is based. Our submission is

that if one takes that to its logical conclusion,
there would rarely be any situation in which this

regulation could even be considered because the Full Court has stated in a previous decision to

which they made reference that one can assume that

every signatory country has appropriate court

systems to afford protection.

Now, if that was the case, then

regulation 16(3)(b), and regulation 16(3) in

particular, has simply been written out of

existence because otherwise there would have been
no point in having that regulation there in the
first place if that assumption applies to every

signatory country to the convention.

Your Honours, if I might then turn to the

first of the categories to which I made reference,

and that is the welfare jurisdiction, it being our

primary submission in relation to special leave

that Their Honours having left open the question of

whether the proceedings before them were based on

the welfare jurisdiction or not, none the less proceeded to fail to give any attention to the

principles that must apply which flow from that

welfare jurisdiction in Part VII of the Act.

BRENNAN J: But is there any discretion, having regard to

regulation 16(1)?

MR ROSE: Yes, in our submission there is, because that

regulation itself comes into being through the the

enabling regulations of which it forms part and

that in turn the power for those regulations is

found in section lllB of the Family Law Act, which

is in Part XIII of the Family Law Act. That

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section is part of Part XIII which is only

concerned with enforcement of decrees. It is our

respectful submission that the enabling provision

to enable these regulations to be promulgated is
such that the force and the powers contained in

those regulations are none the less subject to the

overall scope of the Act itself.

BRENNAN J:  What is the justification for that?

MR ROSE: First of all, lllB merely provides the power for

the enabling regulations to be proclaimed and in

relation to the principle, we would respectfully

rely on Magno v The Minister - - -

BRENNAN J: Before you get to Magno v The Minister, is a

provision such as regulation 16(1) necessary to

enable the performance of the obligations of

Australia under the convention?

MR ROSE: Yes, it is, Your Honour.

BRENNAN J:  So that under the convention it is compulsory

for the receiving country to make an order, except

in certain specified circumstances?

MR ROSE:	Yes, that is correct.
BRENNAN J:	And lllB enacts or creates power to make

regulations for that purpose?

MR ROSE:	Yes.
BRENNAN J:	How can it be that a provision of the Act would

override the convention requirement merely by

implication from the position in the Act of the

regulation-making power?

MR ROSE: For this reason, with respect, Your Honour, that

although the Hague Convention has been

incorporated into domestic law by force of

section lllB, none the less it is our submission

that such proceedings are proceedings in relation to the welfare of the child and the provisions of

the Act that set out the principles to be applied

and those persons who may institute proceedings in

relation to the welfare of a child are all set out in Part VII of the Act and the regulations must be read, in our respectful submission, subject to

Part VII because to do otherwise is to derogate

from the provisions that must be applied in

relation to all matters affecting the welfare of

the child of the marriage.

That submission is based on this proposition,

that this Court has considered the welfare

jurisdiction in Marion's case and concluded that

Murray 10/12/93

that jurisdiction is to be given a very wide

meaning. It is similar to the parens patriae

jurisdiction that is otherwise reposed in other

courts and, indeed, that the court's role of
supervising the exercise of care and control of
infants by parents is a matter which falls within
the description of that welfare jurisdiction and

the court's jurisdiction in that regard is one to

be invoked when any decision by a parent is

challenged by another. That appears, Your Honours,

in Your Honour Justice Brennan's judgment in

Marion's case, (1991-1992) 175 CLR 217, at

page 285, when Your Honour held, towards the foot

of that page:

the reference to "welfare'' in the context of

custody, guardianship and access suggests that

the jurisdiction is to determine disputes in

which a decision (or a failure to make a

decision) as to the welfare of a child by the custodian or guardian or person having access

is challenged by another and the jurisdiction is invoked to hear and determine that dispute.

Indeed, Part VII of the Family Law Act specifically

provides in terms of those who may institute

proceedings through section 63B(l)(e) a provision

which would seem to catch the basis, so to speak,

upon which proceedings such as these could be

instituted, the reason being that section 63B(l)(e)

states that:

Proceedings may be instituted under this Act

in relation to a child -

and then various categories are set forth, and

paragraph (e) says:

it would be in accordance with a treaty or
arrangement in force between Australia and an

overseas jurisdiction, or the common law rules

of private international law, for the court to exercise jurisdiction -

So, in our submission, this application in terms of

who may institute proceedings, is really founded in

terms of that section, and the regulations under
section 111B in a different part of the Act are

there for the purpose of enabling consideration to

be given to that particular international treaty.

As the Court observed in Marion's case that

the Family Court's jurisdiction in relation to all
matters concerning the custody, guardianship,

access or welfare of the child are contained in the

one part of the Act, namely Part VII - - -

Murray	10/12/93
McHUGH J:	You rely on Justice Brennan's judgment, but that

was a dissenting judgment of the Court, was it not?

MR ROSE:  Yes, but in relation to that aspect of the

matter, namely the welfare jurisdiction, the joint

judgment of the Court was in similar terms, and

that is found at page 258 where Your Honours will

see the heading "The nature of the welfare

jurisdiction" and analysis of past decisions which

have the effect of demonstrating that it is very

difficult to prescribe any limits to that

jurisdiction and proceed to hold, in effect, as

His Honour Justice Brennan stated, the top of page

259 that:

is not to assert that the jurisdiction is

essentially supervisory or that the courts are

merely supervising or reviewing parental or

guardian care and control. As already

explained, the parens patriae jurisdiction
springs from the direct responsibility of the

Crown for those who cannot look after themselves; it includes infants as well as

those of unsound mind.

So that, Your Honours, in our respectful

submission, therefore the regulations under

section lllB have none the less to be read subject
to the scope of the Act in terms of welfare of
children and, in our submission, given the wide

definition that welfare of children encompasses in

which it is difficult to impose any limits in terms

of definition, and particularly having regard to

the specific provision in section 63B where a

person is seeking to institute proceedings having

regard to an international treaty, it is our

respectful submission that that must include such

an application that is ultimately brought under the

Child Abduction Regulations. If that is the case,

then the other provisions in Part VII must apply.

Indeed, the Full Court of the Family Court

left that question open and that is apparent from

page 60 of the application book at line 10 when

Their Honours the Chief Justice and Justice Fogarty

stated:

If the proceedings are correctly characterised

as being brought in the Court's welfare

jurisdiction, about which we express no

concluded view, they are predicated ..... upon

the basis that the Hague

Convention ..... contemplates it is in the best

interests of the child -

for the child to be returned, subject to the

exceptions that Your Honour Justice Brennan

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reminded me of. Our submission then is that if the

court proceeds on that basis, about which it does

not express an open view but for the purpose of the

judgment considers what the implications are, then

that basis must, as a necessity, include other

principles that are found within the provisions of

that welfare jurisdiction which includes

section 64(l)(a) which makes it mandatory for the

Court to apply the best interests of the child "as

the paramount consideration", and section 64(l)(bb)

makes it mandatory, it is a not a question of

discretion, to consider the evidence in relation to

a host of factors contained in that subsection.

Now, Your Honours, by way of contrast the

Court has held in proceedings where a child is brought from a country that is not a signatory to

the Hague Convention that the paramountcy principle

as referred to in the judgment which flows from

section 64(l)(a) does apply.

BRENNAN J: That is understandable, is it not? There is

nothing to displace it.

MR ROSE:	But what it would mean, then, is that it is a
matter of good fortune or otherwise as to whether a child the subject of proceedings comes before the court so to speak in which different
principles are applied, depending upon which
country that child comes from.
BRENNAN J:	It is a question of whether or not the court is

bound by the direction contained in

regulation 16(1).

MR ROSE:  Yes. Your Honours, we would concede that. Our

respectful submission in answer to that is that if

welfare jurisdiction has the wide meaning that
would seem to be implied as a result of this

Court's judgment in Marion's case, then one cannot

then provide an appropriate qualified pigeon-hole

for a child who happens to come from one country

as opposed to another.

McHUGH J: Why not? The regulation works out the

jurisdiction in those particular circumstances.

MR ROSE:	Our submission in answer to that is that because welfare itself, as considered by this Court, is
one which is so broad that it covers every
situation touching the welfare of the child and
every situation in which, to use His Honour
Justice Brennan's words, "a decision by a parent
is challenged by another".  And that is precisely
what happens in these particular cases.

Murray 10 10/12/93

BRENNAN J: That means that the general provision on which

you would rely overrides the special provision

which governs children covered by the convention

obligations.

MR ROSE:	Yes.
BRENNAN J:	What is the principle of statutory construction

which allows you to override a special provision by

a general provision?

MR ROSE:	Your Honour, our answer to that, with respect, is
only this, that if the regulations which create that special provision are to be seen as none the less subject to the overall extent of the
principal provisions of the Act itself, then those regulations should not be read as reading down the overall scope of the Act and in that regard the
decision of Justice French in Minister v Magno
which restates that principle is one on which we would respectfully rely.

Those are our submissions, if the Court

pleases.

BRENNAN J:  We need not trouble you, Mr Katz.

The appeal in this case would neither require

a consideration of reg. 16(3)(b) of the Family Law

(Child Abduction Convention) Regulations 1986 (Cth)
nor enjoy sufficient prospects of success to
warrant the grant of special leave to appeal.

Accordingly, special leave is refused.

MR KATZ:	We seek an order as to costs, Your Honour.
BRENNAN J:	Have you anything to say about that, Mr Rose?
MR ROSE:	Only this, Your Honours, that we would
respectfully submit that section 117 of the Family Law Act should apply in that the general principle
is that there not be any order for costs. We are
not submitting that a special circumstance is
required to make an order, but in this particular
case we submit there is no justifying circumstance
for an order which would require the general approach in relation to costs not to be applied.

McHUGH J: But these are not proceedings under this Act,

this Act being the Family Law Act. This is in our

jurisdiction.

MR ROSE:  They are our submissions, Your Honours.

Murray 11 10/12/93

BRENNAN J:  The special leave will be refused with costs.

AT 10.07 AM THE MATTER WAS ADJOURNED SINE DIE

Murray 12 10/12/93