MW v Director-General of the Department of Community Services
[2007] HCATrans 795
[2007] HCATrans 795
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S493 of 2007
B e t w e e n -
MW
Applicant
and
DIRECTOR‑GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES
Respondent
GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 13 DECEMBER 2007, AT 10.08 AM
Copyright in the High Court of Australia
MR G.O’L REYNOLDS, SC: May it please the Court, in this matter I appear for the appellant with my learned friend, MR B.R. KREMER. (instructed by Le Vaccaro Lawyers)
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR T. TOCKAR, for the respondent. (instructed by Department of Community Services)
GLEESON CJ: Yes, Mr Walker.
MR WALKER: Your Honours, my friend and I have had some discussions concerning the proposed notice of contention and in particular, and I am grateful to my friend, we have reconsidered the form of it and seek to supplement the draft notice from the form which is with your Honours’ papers. We have prepared that supplemented form to be made available to your Honours. The points that are raised in it are points which are, as it were, noted but not decided by the Full Court.
HEYDON J: Can I get one thing straight, Mr Walker. I have a piece of paper which occupies two full pages and it is dated today’s date. Is that the one that is going to be changed, or is that the one that has been changed?
MR WALKER: That is the current form, the supplemented form. It has nine numbered grounds to support two contentions. Your Honours, leave has yet to be granted for the filing of that. I understand the leave is not opposed. If this were suitable to the Court, we would not expect our learned friends to anticipate any argument on the contentions in‑chief and if it were considered appropriate by our learned friends to seek leave to supplement anything they wanted to say against the contentions in a written submission, we obviously do not oppose that.
GLEESON CJ: We will hear the argument from Mr Reynolds in‑chief and we will return to this question of the notice of contention, Mr Walker, when you commence your address.
MR WALKER: May it please the Court.
GLEESON CJ: Yes, Mr Reynolds.
MR REYNOLDS: Your Honours have heard some written submissions from both parties and in our written submissions, which I would ask your Honours to have to hand, we have set out in some detail the legislative framework of the issues that arise before your Honours today. In particular, we start at paragraphs 18 through to 37 and we attempt to set out the relevant legislative provisions. I assume that your Honours are familiar with that legislative scheme to some extent.
GLEESON CJ: Yes. The Family Court seemed to experience a good deal of difficulty in obtaining information as to the relevant New Zealand legislation but I take it the information in the paragraphs you have just identified is not in contest?
MR REYNOLDS: No.
GLEESON CJ: In particular, I take it that there is now no contest that the definition in section 29A of the Interpretation Act (New Zealand) applies.
MR REYNOLDS: That is correct. So probably, if I may truncate things a little bit, the key issues arise under regulation 16(1A) which we have set out at paragraph 24(c) in particular. The primary issue there is whether the central authority, as I will refer to my friend’s client ‑ ‑ ‑
GUMMOW J: Just before we get there, was any attention paid at any stage to the Evidence and Procedure (New Zealand) Act 1994 in the Family Court? It is meant to facilitate these matters of proof.
MR REYNOLDS: It is.
GUMMOW J: Section 40 in particular.
MR REYNOLDS: There was some regard paid to it both at the trial and in the Full Court but now that this material is in evidentially, then that is the status quo so far as your Honours are concerned.
GUMMOW J: I know there is no trouble here, yes.
MR REYNOLDS: So the question then is whether the central authority have proved that the father had rights of custody in relation to the child under the law of New Zealand. Now, that then relevantly, given the way the case was run, tracks through to section 17(3) of the Care of Children Act 2004 (New Zealand) and the relevant provision is set out in our submissions at the top of page 6. The child in this case was conceived before the commencement of the 2004 New Zealand Act and the relevant issue arose under paragraph (b) about whether the mother was:
living with the father of the child as a de facto partner at the time the child was born.
The third key provision is set out in paragraph 36 of our submissions which is section 29A of the Interpretation Act 1999 (New Zealand). This provides the definition of “de facto relationship” in an enactment and relevantly subsection (1)(a) – this is our submissions paragraph 36 – refers to it being a relationship between two people who live together as a couple in a relationship in the nature of marriage or civil union. Importantly, at the top of page 8, in determining that question the Court must have regard to all the circumstances of the relationship. That is a most important part of the argument in the case.
At paragraph 37 of our submissions we conclude that in the light of these various provisions the key issue for the Full Court was whether the central authority had satisfied the court that at the time the child was born the mother was living with the father as a couple in a relationship in the nature of marriage or civil union under New Zealand law. That was the ultimate question.
GLEESON CJ: What does the court do when it is perfectly obvious that it does not know all the circumstances of the relationship? In other words, what does the court do when it is perfectly obvious that the evidence before it is incomplete?
MR REYNOLDS: If the case proceeds, it is no different, I submit, from any other civil case.
GLEESON CJ: So that expression “all the circumstances of the relationship” means all the circumstances of the relationship to the extent to which they are known to the court?
MR REYNOLDS: What I submit is that the central authority has to prove the existence of a de facto relationship and as part of that must prove – I am sorry – all of the circumstances are relevant to that question and therefore the central authority must prove any facts it wishes to in relation to the relationship. It is then open to the respondent to negative that, but all the facts are relevant. It is simply a matter of whether or not they are proved. As a practical matter, the judge may say, “Well, look, as in any other civil case, I am a little bit unhappy about the state of the evidence and about determining this case on the state of the evidence as has been put to me. Can I suggest that the parties may wish to adduce further evidence on these points”.
Again, that is a matter of case management so far as the judge is concerned, but the bottom line is this, your Honour. It proceeds in the same way as a normal civil case and it is no different, for example, from a personal injuries case where the matter comes before the judge, assuming that there were statements filed, and the judge says, “Well, I don’t think the evidence is really up to scratch.” It is really a question of what he does from there. Traditional view, of course, is it is a question of finding who bears the onus of proof. If a case proceeds and there is no evidence on those matters, then probably the case cannot be made out. We submit that that was the case here.
We have attempted to set out, I hope fairly, at paragraphs 45 to 50 conveniently for your Honours the evidence on this question of whether there was a de facto relationship at the time of the child’s birth. I assume that your Honours have looked at those two pages. Can I just point out two things. The first is that your Honours will see from paragraph 46 that the only evidence, as I recall, from the father on this issue of whether there was a de facto relationship is that he lived together with the mother at the time of the child’s birth.
GLEESON CJ: That is what gives an air of unreality to all this. The father is not even a party to this litigation.
MR REYNOLDS: He is the person ultimately though who is responsible for the proceedings being launched and it is his application originally that led to the proceedings being instituted in Australia. So that, although your Honour the Chief Justice is technically correct, the Central Authority is in effect to some extent bringing the proceedings on his behalf. The second aspect of the evidence that I would ask your Honours to look at is at page 10 at about point 2, the paragraph numbered 5, where my client denies that she lived with the father when the child was born. More importantly, in paragraphs 5 and 6 she deposes to a whole lot of relevant circumstances which we submit would negative the existence of a de facto relationship.
There is a danger to some extent, I would submit, in me over‑finessing the argument, as I am about to do, but the bottom line really is this, that we submit the Full Court should not have found that the Central Authority had established the existence of a de facto relationship at the time of the child’s birth given the state of this evidence. To make good that basic proposition, we ‑ ‑ ‑
GLEESON CJ: Can I ask a question about the forensic circumstances, Mr Reynolds? There are one or two remarks in the reasons of the Full Court of the Federal Court that suggest that it was fairly late in the piece that it became apparent that there was an issue about this. There is some suggestion that an affidavit of your client dealt very perfunctorily with this and then, shortly before the hearing, it firmed up, as it were.
MR REYNOLDS: Yes.
GLEESON CJ: Is it clear that by the time it came before Justice Steele it was apparent to everybody that there was an issue in the case about whether there was a de facto relationship?
MR REYNOLDS: Absolutely. The Full Court drew some inferences about that but I am going to deal with that in detail as part of my attempt to make about eight points that I want to make in relation to the reasoning of the Full Court. I will deal with that particular issue in detail, your Honour. The first matter that I would like to raise is something I have already touched on, which is the fact that there was almost no evidence from the father on this issue of de facto relationship. The only evidence really was that paragraph I took your Honours to.
Section 29 of the Interpretation Act makes all the circumstances relevant, so it was incumbent, we submit, on the Central Authority to adduce evidence going to all of the circumstances to try and show that there was a de facto relationship. In our submissions at one point we referred to – this is at paragraph 85, although it is not exhaustive – the sort of things which the Central Authority may have attempted to prove.
KIRBY J: I have a recollection that the Interpretation Act (New Zealand) grew out of a report of the Law Commission of New Zealand. Do we have any explanation of 29A and how it came to be incorporated?
MR REYNOLDS: It is not something that I have looked into. Importantly, that would have needed, because foreign law is a question of fact, to have been placed before the Full Court and any attempt to supplement the evidential position vis-à-vis New Zealand law in this Court would run across constitutional problems by virtue of section 73 of the Constitution, at least arguably, because foreign law – New Zealand law that is – being a question of fact, an attempt to supplement the record in this Court with such material as your Honour has referred to may involve an issue under section 73.
So as things currently stand, there was no such material before the courts below and I do not think my learned friend is going to attempt to supplement the evidential platform in this Court for the reason that I have indicated.
GLEESON CJ: Section 40 of the Act that Justice Gummow referred to earlier, the Evidence and Procedure (New Zealand) Act 1994 says that:
Proof is not required about the provisions –
of New Zealand legislation and that:
(2) A judge . . . may inform himself or herself about those matters in any way that he or she thinks fit.
KIRBY J: I suppose you are going to allege that is constitutionally invalid? I mean, pull the other leg.
MR REYNOLDS: Your Honour asked me about a Law Reform Commission report.
KIRBY J: Anyway, it may be a side hearing, so I withdraw the question.
MR REYNOLDS: If your Honour pleases.
KIRBY J: A red herring or a side issue.
GLEESON CJ: What, if any, is the mental element involved in a de facto relationship?
MR REYNOLDS: Your Honour, the only answer that should be given in this case to that question is that there has not been any evidence adduced by the Central Authority on that question. So far as there is any evidence, there is some evidence from my client which I have briefly alluded to. There is no material – that is evidential material – for example, from a New Zealand court which would give content to the mental element involved in having a de facto relationship.
I know in one sense that that is not an answer to your Honour’s question, but the point that I am trying to make is that it is – given that it is New Zealand law – it is a question of evidence and I am taking the point that that has not been proved.
GLEESON CJ: And you might be right, but when you are looking to see whether there is evidence of something, you need to have some kind of idea of what the something is. Now, I would have thought the question I asked you is one of New Zealand law, and if you look at section 29A of the Interpretation Act, plainly it is not sufficient that two individuals are living together. There is a difference between a de facto wife and a live‑in girlfriend.
MR REYNOLDS: Quite, or a flatmate.
GLEESON CJ: Yes, and what they have to do is:
live together as a couple in a relationship in the nature of marriage or civil union -
So, my question was, is there any mental element involved in living together in a relationship in that nature?
MR REYNOLDS: I say again, all the circumstances are relevant, so the answer to your Honour’s question would be, yes. As to what the test is or what the relevant mental element is, that has not been proved by the ‑ ‑ ‑
GLEESON CJ: For example, is there a mental element as to how long the relationship might be going to last?
MR REYNOLDS: The notion of commitment, if you like. Again, the Central ‑ ‑ ‑
GLEESON CJ: Well, it means something a little more than commitment. Is the definition of marriage in New Zealand the same as it is in Australia?
MR REYNOLDS: Well, this is one of the other issues that we have raised in our submissions – this is our submissions at paragraph 86 – which is that there has not been any evidence as to what New Zealand law is in relation to the incidence and aspects of marriage or a civil union, so that we do not have the ‑ ‑ ‑
GLEESON CJ: But we have an obligation to find that out for ourselves, do we not?
MR REYNOLDS: There was no evidence put before the lower courts about that particular issue which is why it is difficult for me to point your Honour in the direction of the precise mental element. There is no case law, for example, that was put into evidence proving what the mental element should be.
KIRBY J: I know of my own knowledge the case of Quilter v Attorney‑General of New Zealand which was the decision which the New Zealand Court of Appeal by majority rejected the notion that marriage in New Zealand by the common law and under the New Zealand Marriage Act could include a same sex relationship and it may be that that is what led to the inclusion in the New Zealand law, the Interpretation Act, of civil union because the Quilter decision was in the 1990s and this is a post-1999 amendment. So that that seems to be the historical development and I think that is a matter of common judicial knowledge in Australia.
MR REYNOLDS: The difficulty is that New Zealand law is a matter of fact and it is a matter of proof in the courts below, and the difficulty ‑ ‑ ‑
GLEESON CJ: I thought the statutory provision that Justice Gummow referred to indicates that it is not a matter of proof.
KIRBY J: New Zealand is a very particular place and with a very particular relationship to this nation. It was referred to in the preamble to our Constitution. There are many statutory provisions of the Federal Parliament that make New Zealand a particular place for the purpose of Australia and Australian law. Even to this day, I mean, we can go to New Zealand without visas and so on, so I think you are just not going to be able to convince me that New Zealand is in the same position as Australia generally and especially in the light of the statute that Justice Gummow has mentioned.
MR REYNOLDS: My learned friends are the ones we say with the onus of proof on this issue. I understand there is a question about that. They have not put forward any material to your Honours to show the nature of marriage or civil union. I am sorry if I am sounding so pernickety and pedantic about this ‑ ‑ ‑
KIRBY J: You do a bit.
MR REYNOLDS: ‑ ‑ ‑ but it is important because this is a case about proof. It is a case, if you like, like those old cases about getting to the jury.
GLEESON CJ: That is right, but we have to write a judgment some time, so we have to identify that which needed to be proved. Just at the moment I am far from clear in my mind what it was that whoever bore the onus of proof should have been trying to prove. The answer you may make is that the information that the Director‑General put before the court was so scant that at least somebody on that side of the record thought they had to prove practically nothing. One of the things I am interested to know, and it is made relevant by paragraph 6 on page 10 of your written submissions – that is part of paragraph 48 – where your client says:
At no time did I ever regard myself as . . . [C’s] de facto partner.
That is an interesting piece of information, but is it relevant? If it is, to what is it relevant?
MR REYNOLDS: Again, we know that all the circumstances are relevant and we know that the Central Authority has not attempted to prove – and I am repeating myself – any case law about this issue, nor has there been any attempt to prove any statutory material in relation, for example, to civil union. We are emboldened by what your Honour the Chief Justice says. That is, your Honour is having difficulty with this issue, given the state of the evidence, to which we say that is our point, that your Honour is having difficulty and the reason is that the proof of this issue is exiguous and we rely upon that.
I cannot really take it any further unless my learned friend tries to put before your Honours some, for example, case law or statutory material which was not before the courts below. I understand that he is quite resolute that he will not be doing that. So, in one sense, that leaves your Honours in the position really where the Central Authority says that it is content to abide by the case which it presented to the courts below. That is where it begins and that is where it ends.
GLEESON CJ: Do you say that the information in that paragraph 6 on page 10 is relevant; that is, that your client did not regard herself as this man’s de facto partner? Is that relevant information and, if so, why?
MR REYNOLDS: It comes under the heading of “all the circumstances”. It is not shown to be irrelevant by the Authority. If necessary, we submit because all the circumstances are relevant and if the Authority has not shown it is irrelevant, then it must be relevant to some extent.
GLEESON CJ: Assuming it is relevant, is it in dispute?
MR REYNOLDS: It was not, and this is important, in dispute, as we understand it, at the trial. There was not any attempt first of all by the Central Authority to adduce any evidence from the father to gainsay this evidence, nor – we say this should have happened – was there any attempt by the Central Authority to say, “We do not accept that evidence and we wish to submit that it isn’t correct and therefore we ask that we be able to cross‑examine the mother on that affidavit material”. There is absolutely no reason why that could not have occurred. That is the usual course that would happen in most civil litigation and it did not happen here.
GLEESON CJ: It may be, for all I know, and I do not know, that you cannot live as a couple in a relationship in the nature of marriage or civil union unless both parties intend to live in a relationship in the nature of marriage or civil union.
MR REYNOLDS: Again, your Honour, we are, in one sense, if I may say so respectfully, delighted to hear your Honour say that your Honour does not know because we rely on that, that is, your Honour does not know what the state of the law is in New Zealand on that precise point because there was no attempt to prove that by the Central Authority, except to the extent that section 29A was before the court and it says all the circumstances are relevant, but I accept that that does not help your Honour give content to the precise nature of what the relevant mental element is.
KIRBY J: But could we not, without having any facts specifically proved, take judicial notice of the fact that New Zealand is a society and country that is very similar to this nation and that therefore de facto or civil union marriage is in New Zealand very similar to that which exists in Australia and is quite prevalent in this country and that therefore, if parties are found to have lived together and one of them has given birth to a child, that that is prima facie evidence of a marriage or de facto marriage (civil union)? I realise you contest some of the premises there, but why is that not an available way of interpreting the New Zealand statute without any resort to factual material?
MR REYNOLDS: What your Honour is doing at one level there, in taking judicial notice of something, is in a general sense arguably enlarging the evidential platform that existed ‑ ‑ ‑
KIRBY J: Not really. It is trying to understand the New Zealand statute and apply them in the facts of this case.
MR REYNOLDS: Once your Honour is taking judicial notice of matters ‑ ‑ ‑
KIRBY J: Look, Mr Reynolds, I have been to New Zealand many, many times, I know it, and most Australians have and do and it is really rather ridiculous to come up here and say we cannot take notice of the fact that New Zealand is a society similar to Australia, strangely and peculiarly similar from the beginnings of the colonies.
MR REYNOLDS: This is a matter which my friend and I are quite cognizant of and your Honour will see that my learned friend has withdrawn portions of his submissions because of this issue. The difficulty here is that there is underlying this a section 73 problem. If your Honour is saying to me, “Mr Reynolds, your obstinate, old‑fashioned, common law approach to this question of proof is hindering me in my judicial determination in this case and I wish to take judicial notice of facts that are outside the record”, then I would suggest that we are arguably in section 73 country and that that is an issue ‑ ‑ ‑
KIRBY J: But section 73 includes judicial notice. It is a well‑established feature of the legal system which the Constitution preserves in Chapter III.
MR REYNOLDS: Your Honour is, with respect, getting the merits of the section 73 issue.
KIRBY J: Not really, no. I am just giving it meaning in the context in which it was enacted and has operated since Federation; a context of a common law country with an independent judiciary which relies on evidence but in certain matters can take into account matters that are within judicial notice. We do that for constitutional purposes and for an ordinary case I do not see why we should not.
MR REYNOLDS: Your Honour, there is a very, very important difference between most constitutional cases and that is that your Honours sit in the original jurisdiction of this Court where, for example, as in the Communist Party Case, as I recall, judicial notice was taken of various matters. The point I am making is this is jurisdiction your Honours are exercising under section 73, and if your Honour is, as I have put it briefly, looking at enlarging the evidential platform as it existed below, then I wish to take the point that there is a constitutional problem with that.
Now, if that is the case I would submit unless my learned friend wishes to say very clearly that he does not wish to rely on that material, then there will be a 78B issue, and I accept that if your Honour were to say, “Well, regardless of what Mr Walker’s stance is on this point I wish to have a look at other material that was not before the courts below ‑ ‑ ‑
KIRBY J: That is a different matter.
MR REYNOLDS: Then I would submit we are also in section 78B country. This is not a matter, with respect, that my learned friend and I are not cognisant of. As I say, it is the reason for the deletion of various paragraphs in the submissions. So, as I understand it, he does not wish to put before your Honours further materials as to New Zealand law. That is his position and therefore there is no 73 problem for his part. If your Honour Justice Kirby is saying to me, “I am not satisfied with that”, then I would submit ‑ ‑ ‑
KIRBY J: I am just looking at the facts. I realise you are contesting some elements of the facts, but what I am saying is, if it be proved that a couple live together and that one, the wife or the female member of the couple, gave birth to a child during that time, prima facie that is a marriage‑like relationship.
MR REYNOLDS: Well, again, we do not have any statutory material about the nature of a civil union or a marriage in New Zealand. We know that all the circumstances are relevant. I would be hard pushed to suggest that that is an irrelevant matter. Of course, it is relevant. As to whether it rises to the level of creating a presumptive de facto relationship, I am sorry, your Honour, to say it again, but that has simply not been proved as part of New Zealand law.
KIRBY J: Well, I just think you are asking us to have a completely unrealistic attitude to statutory interpretation as it is relevant as a fact in this case, and I am not back in the Chancery Division in 1850, I am here sitting in an Australian final court in 2007 on the second‑last day.
MR REYNOLDS: Well, your Honour, I do not wish to take your Honour back to the Chancery Division in 1850, but I do wish to take your Honour back to the common law jurisdiction of the New South Wales Supreme Court in about 1950 because I accept that that is the sort of point that I am taking of the kind that your Honour knows was taken regularly in that jurisdiction, but that is the sort of issue that is raised before your Honours.
Now, I do not know, if I may respectfully say so, where that leaves us, but it may be that your Honour Justice Kirby is content to let that issue lie for the time being, in which case I can proceed. But if your Honour is, as your Honour is entitled to do, determine that your Honour wishes to look at further let us say extrinsic New Zealand legal material ‑ ‑ ‑
KIRBY J: I will not do that at the moment, Mr Reynolds, but I will just use my common sense. I did not leave that outside with the baggage today. They are here in the Court.
MR REYNOLDS: Well, your Honour, we ‑ ‑ ‑
KIRBY J: Anyway, this should not be a dialogue between us. Proceed – I think you should proceed with your submissions to the Court.
MR REYNOLDS: If your Honour pleases. Now, I was on the point about there being almost no evidence from the father, and there is some legal principle that I would like to take your Honours to in that context.
Your Honours’ tipstaves will have a copy of the decision of the Court of Appeal in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389. We have only given your Honours one page of that decision but, importantly, at page 418 at about letter E Justice Handley talks about a situation where a party gives evidence but does not give evidence as to relevant facts and what inferences can be drawn and what his Honour there suggests, and over to the following page, is that an inference can be drawn by the tribunal of fact that, as he puts it at letter F, the most natural inference is that the party fears to adduce evidence on those facts.
GLEESON CJ: The party here being the Director‑General.
MR REYNOLDS: Quite, but, in other words, the father could not have contradicted what the mother said at paragraphs 5 and 6. Can I give your Honours also – your Honours have a copy of this ‑ ‑ ‑
KIRBY J: I have a dim recollection that this was cited in a case within the last year and that ‑ ‑ ‑
MR REYNOLDS: Yes, I think it may have been a case called Prentice v Cummins. That tweaks a recollection with me.
KIRBY J: Yes.
MR REYNOLDS: My learned friend, who is in a great many of cases, says that he thinks that may be right as well. There are other cases and we have given your Honours – I will not take you to it – a copy of the Australian edition of Cross on Evidence at paragraph [1215] where the proposition in the paragraph beginning “Ninthly” on page 44, as we have given it to your Honours, also deals with the relevant authorities.
KIRBY J: This is a principle that Justice Handley derived form a line of American authority including the New York Appellate Division of the Supreme Court of New York.
MR REYNOLDS: That is so, your Honour. There is also another relevant principle in this area which we would mention to your Honours. It was discussed by Justice Callinan in an earlier case on these regulations called DP v Commonwealth Central Authority (2001) 206 CLR 401. The relevant passage is at paragraph 187 on page 456 where Justice Callinan in the context of one of these cases under these regulations we are dealing with talked about the rule in Blatch v Archer, namely, that:
all evidence is to be weighed and assessed by courts having regard to the capacities of the parties to adduce it. Its application here would result in the imposition of a very light burden on the appellant –
That is DP. We say one would assume a correspondingly heavy burden, arguably, on the Central Authority in relation to these issues. That is the first matter I wanted to take your Honours to. The second matter is that the court has not taken any account of various key facts deposed to by the mother, negative in the existence of a de facto relationship. Now, your Honours already know what I am going to refer to in that regard because on our submissions on page 10 in the paragraphs numbered 5 and 6 there is various material there from the mother and the court did not take any account of this evidence.
I will not take your Honours through the whole of paragraphs 5 and 6, but if I can whiz through it fairly quickly, first of all she indicates she was not dependent on the father in any way, that the father did not assist her financially, thirdly, that the father did not assist the child financially, fourthly, that the father took no part in the care of K, fifthly, that he took no part in raising K, sixthly, that he did no housework, seventhly, that he did not pay the bills ‑ ‑ ‑
KIRBY J: Especially because the child’s name is unusual, I think it should not have been used. You were careful earlier not to use the name.
MR REYNOLDS: I am sorry, did I mention his name?
KIRBY J: Twice.
MR REYNOLDS: I do apologise, your Honours. I was trying to move quickly. Eighthly, that she did not even have the keys to the house, ninthly, she did not regard herself as a de facto, tenthly, she did not live as a de facto in her opinion, eleventhly, she denies that the father lived in the capacity as a de facto and, twelfthly, that he never assumed any responsibilities as a de facto.
Again, in addition there was not any evidence from the father responding to any of that evidence and we rely on what I will call compendiously call the Ferrcom principle. There was not any evidence from him in‑chief, nor was there any evidence in reply to this, nor was there any cross‑examination of the mother on this question. We would submit that in those circumstances the Full Court should have taken account of that evidence as being a reason why the Central Authority had not made out its case.
The third point I would like to make, and I will not belabour it because I have already mentioned it to your Honours, is that there was not any evidence adduced by the Central Authority of New Zealand law relating to the nature of marriage or civil union. The next matter I would like to raise deals with the reasoning in paragraph 211 of the Full Court’s judgment. If your Honours can keep one thumb at paragraph 211 which is at page 330 of the appeal book, your Honours will see – and I will take your Honours to the detail of it in a moment – that there are about five matters referred to there as being inferences that could be drawn from the mother’s evidence. If your Honours go to paragraph 217, the court says:
we consider the mother’s own evidence in her original affidavit was (just) sufficient to justify a finding –
My learned friend in his submissions – and we would submit he is probably right – treats paragraph 211 as filling out, as it were, the matters derived by the Full Court from the mother’s affidavit.
Your Honours will see briefly at paragraph 211, first of all, that the parties were having a sexual relationship, second of all, that they had a child together, thirdly, that they were living together in a residence which the mother described as “our house” and they add, fourthly, it seems the mother was looking to the father for financial support and, fifthly, she considered she had some entitlement to information about his financial affairs. Our point briefly stated about these two paragraphs is that the relevant paragraph of the mother’s first affidavit, which we have set out at paragraph 50 of our submissions, does not constitute an admission of all five of these matters.
If your Honours go to my submissions at page 10, paragraph 50 and then look at paragraph 211, looking at what the Full Court derives from this paragraph, your Honours will see dealing with the first factor, that is, a sexual relationship which they say “the parties were having a sexual relationship”. We do not accept the accuracy of that, that is, that one can derive that from the paragraph in paragraph 50 of our submissions. What we do accept is that at some stage, seven to nine months beforehand, there was a single act of intercourse leading ultimately to the birth of a child. We accept that. We do not accept, however, that the parties “were having a sexual relationship” at the time of the child’s birth or in and around that time or, for that matter, at any other time. The mother’s submissions ‑ ‑ ‑
KIRBY J: What is your conception of a sexual relationship?
MR REYNOLDS: Perhaps if I may very deliberately leave that to one side, the issue I am looking at is whether or not one can derive from this paragraph the admission that the parties were having a sexual relationship. Now, whatever description ‑ ‑ ‑
KIRBY J: It is not denied that the child is the child of the father?
MR REYNOLDS: No, I am looking at the particular time in and around the birth of the child. If your Honour goes to the paragraph we have set out at paragraph 50 of our submissions, there is nothing in there about any form of sexual relationship. So what I am saying is that it is not necessary to respond in terms to your Honour’s question because there is simply a vacuum on that point, interesting as your Honour’s question may be. The second point that their Honours make ‑ ‑ ‑
KIRBY J: I am just suggesting you may have a different notion of what a sexual relationship is than most people do or than I do.
MR REYNOLDS: Again, I know that I am not in terms responding to what your Honour is putting to me, but that is because I am taking the point that this does not amount to an admission of a sexual relationship and there is nothing in this paragraph that goes, I submit, to that and which could constitute an admission that there was a sexual relationship at that time.
Secondly, they say that they had had a child together. Obviously that did occur, but if your Honours go to our submissions at paragraph 48 in the paragraph we have quoted, number two, this was, according to the mother, conceived in a brief encounter, one assumes some approximately nine months before. So we are dealing here with, as I said, a single act of proved intercourse. Thirdly, they talk about living together in a residence which the mother described as “our house”. I suppose she does refer to it as “our house” in that paragraph but the most important thing are the last two points which their Honours add in, that it seems that the mother was looking to the father for financial support.
I would submit that one cannot get that out of the paragraph recorded at paragraph 50 of our submissions nor can your Honours get the fifth matter, namely, that she considered she had some entitlement to information about his financial affairs, from that paragraph. The most, really, one can get out of this paragraph is possibly – possibly – that the parents were living together at the time of the child’s birth and, secondly, that there was one sexual act, leading to the birth of the child, some seven to nine months before. We would submit in short that, although that paragraph might amount to admissions of some of those matters, certainly not all.
If your Honours go to paragraph 217 the court found that those five matters were just sufficient to justify a finding – just sufficient. My point is if you knock out at least two or three of those factors, even on the Full Court’s own reasoning, relying on a relevantly low threshold, which I will come to in a moment, then the case was not made out by way of admission.
The next point I would like to go to is the question of the finding of concoction and, we submit, that that should not have been made. This finding is made at paragraphs 212 to 213 where your Honours will see that on the issue of whether the mother was living with the father when the child was born, their Honours find that that evidence was concocted. That is at the top of paragraph 213.
GUMMOW J: There was no cross‑examination of the witness who is said to have been misconducting herself, deceiving the Court.
MR REYNOLDS: That is one of the matters that we raise, that this is a very serious finding.
HEYDON J: Another matter is this, is there not a contradiction between 212 and 213? If you say that someone’s recollection has altered, that is inconsistent with saying that the second lot of evidence was concocted. To alter one’s recollection does not mean you made up.
MR REYNOLDS: Your Honour, I accept that. I have to say I did not notice that but that must be right.
HEYDON J: Do you know if any notice was given before the evidence closed of this submission about concoction?
MR REYNOLDS: It certainly was not in the written submissions that were put in before the case. My recollection is, and we have made some checks of these things, that from the transcript this was certainly not a live issue before the close of evidence. We submit that there should have been cross‑examination on this point. My learned friend will be taking your Honours, I suspect, to a decision of the Full Court of the Family Court in Gazi v Gazi (1993) FLC 93-341, which I am not going to take your Honours to in terms at the moment, but is there a suggestion that cross‑examination may not be necessary in every case? Our point is that in a case where you are going to suggest that there has been perjured evidence, it will be necessary as a matter of fairness and their Honours do in this case at page 79,623 talk about a proper hearing. We would submit that this was a case where it was appropriate to allow cross‑examination.
GUMMOW J: This in a way is the problem involved, is it not? It comes back to what the Chief Justice was saying, I think. If you go to 79,623 in the second column, this is an attitude that has grown up. You see about the third sentence:
Accordingly, whilst there may be cases . . . such cases would be rare. The majority of proceedings for the return of children . . . should be dealt with in a summary manner –
The question is why? I think that is an attitude taken in the Family Court and it is reflected in the way the parties prepare these cases.
MR REYNOLDS: With respect, this is a ‑ ‑ ‑
GUMMOW J: It is treated as like a forum non conveniens debate which we are always told should be dealt with in a summary way and then cases come up here eventually.
GLEESON CJ: Part of the practical problem is, is it not, that the father is not a party to these proceedings and he is probably not in Australia and that presumably influences the way these cases are prepared and conducted. The assumptions that are made to sustain adversarial litigation as a way of achieving a just result seem to be difficult in practice to relate to this kind of a proceeding. This kind of a proceeding happens when somebody has taken off from one country with a child and left the husband or father or whatever in another country. The other country might be New Zealand or it might be Russia. Wherever it is, you are not going to have proceedings in which, from the point of view of the conduct of adversarial litigation, there is what is sometimes called equality of arms.
MR REYNOLDS: Your Honour raises, with respect, a matter which those drafting the regulations under section 111B of the Family Law Act might very well want to take into consideration if they want to look at reformulating the regime that operates under these regulations.
There is provision in section 111B(1A) of the Family Law Act for the regulations making provision “relating to the onus of establishing” various matters, “establishing rebuttable presumptions” et cetera. In other words, if there is evidence, picking up what your Honour said, from the parent overseas of an arguable wrongful abduction, then a presumption ‑ ‑ ‑
GUMMOW J: Has that power in (1A) been exercised?
MR REYNOLDS: No, and that is my point, is that it may very well be that the regulatory authorities may wish to pick up what your Honour the Chief Justice has said as an appropriate way of dealing with the enactment of this Convention as part of municipal law in accordance with what might be called the spirit of the Convention but my point is that that is not the way these regulations have been enacted as part of the statutory scheme which creates the way this case is to be litigated.
One has to go back first of all, and we have said this in our submissions, to section 39(5)(d) of the Family Law Act which we have set out at paragraph 19 of our submissions and that is important. It is the bedrock.
GUMMOW J: It is section 39?
MR REYNOLDS: Section 39(5)(d) of the Family Law Act which is in paragraph 19 of our submissions:
matters arising under this Act in respect of which . . .
(d)proceedings are instituted under regulations made for the purposes of section . . . 111B –
The Evidence Act we have said applies. In the decision of this Court in DP v Commonwealth Central Authority I took your Honours to earlier. Your Honours dealt with the issue of proof and how the case is to be made out except for one small allusion by Justice Callinan as if this was a normal civil case where matters of proof and such like were to be conducted in the usual way.
GLEESON CJ: A great deal of litigation in the Family Law Court may fit into that category quite easily but here we are dealing – and this seems to be fairly fundamental to the problem we have to come to grips with – with a situation where you are inviting us – ultimately it may turn out correctly – to apply the conventions and assumptions of ordinary adversarial civil litigation to proceedings of this nature and I cannot think of a more clear cut example of a convention or assumption of ordinary adversarial litigation than the rule in Browne v Dunn which is what you have just been invoking.
MR REYNOLDS: Quite.
GLEESON CJ: Yet we have proceedings in which the father is not even a party, and the proceedings are apparently dealt with urgently and in what the Family Court in that passage you showed us to describes as a summary fashion, being treated as urgent proceedings for the return of an abducted child and that is the context.
MR REYNOLDS: We start, as I said, with section 39(5)(d). The Evidence Act is made applicable, including section 140, which is about proof and incorporates within it notions of the standard of proof generally associated with Briginshaw v Briginshaw, remembering of course that this is a case where the key allegation is one of wrongful abduction of a child and where the Central Authority is asking the court to make a finding of that very serious allegation – not that there is a prima facie case of a wrongful abduction but an actual finding by a court of this country that there has been a wrongful abduction of a child – we submit a most serious allegation – where we submit there is no supplantation of the ordinary rules of proof in the regulatory regime set up under the regulations.
There is provision – and I will get your Honours the reference in due course, if I may, to the fact that the father’s evidence is admissible even though I think he was not made available for cross‑examination. But I think that is about the only matter that is touched on. It does not deal with the issue of weight and of course he can be cross‑examined either by video link or otherwise. We accept, picking up what your Honour the Chief Justice said to me, that when one looks at the Convention, that in its terms and in its spirit it is about getting a prompt return of a child that has been wrongfully abducted.
GLEESON CJ: On the assumption that the proper place to fight out questions about custody, access and the like is the place where the child was abducted from.
MR REYNOLDS: There are certainly statements to that effect in the cases interpreting the Convention. I accept that.
GLEESON CJ: The object, as I understand it, has been said to be to restore the status quo, which has been interfered with by the allegedly unlawful or wrongful abduction, and then once the status quo has been restored, the courts of the place from which the child was abducted, allegedly, will work out issues of access, et cetera.
MR REYNOLDS: Your Honour, there are certainly, as I say, statements in the cases interpreting the Convention to that effect.
KIRBY J: It is self‑evident. It is the purpose of the international convention. It is to prevent or discourage the trauma to the child that is involved in sudden removal from the status quo ante, it is to ensure that disputes are dealt with in that country at minimum of inconvenience and cost; it is to deprive those parties who are involved in child abduction of the fruits of their actions; and it is to recognise the fact that, shocking though it may be to a person in this country, the Cour de Cassation in France has never heard of the rule in Browne v Dunn and that places of other jurisdictions simply do not understand or necessarily follow or accept the way we deal with matters. But in order that our children will not be taken, we recognise their rights to deal with matters according to their law. That is the whole philosophy of the international convention.
MR REYNOLDS: There are various assumptions, as your Honours well know, in the notion of investment of federal jurisdiction in a matter. That assumes a particular form of judicial process. We know that the Evidence Act is made applicable to these proceedings and, as I said, particularly section 140. Then we have various common law principles which may be simply the result of the common law and other possibilities that section 80 of the Judiciary Act may make those principles applicable to these proceedings because they are in federal jurisdiction and these principles I am mentioning are part of the common law.
Now, accepting, as I do provisionally, what your Honours, the Chief Justice and Justice Kirby, have put to me about the spirit of this Convention, the important point I submit is this, as your Honour Justice Gummow said along with I think Justices Gaudron and one other justice in DP. When this Court is dealing with Convention issues one must interpret these regulations and I submit that there is no relevant supplantation of these principles about the normal process of civil proof of issues ‑ ‑ ‑
GUMMOW J: There is nothing in the regulations, is there, that uses this word “summary”?
MR REYNOLDS: No, and could I just deal with that issue ‑ ‑ ‑
GUMMOW J: I am not saying for a minute that that would not be constitutionally admissible. Standards of proof can be reversed and all sorts of things can happen consistently with Chapter III, but anyhow.
MR REYNOLDS: There is, of course, a basal assumption in the notion of a matter about the way a civil case will proceed, so there would be some limits on the ability of the regulatory body making the regulations to do that. But on the issue of summary, what I submit is envisaged and, as a practical matter, can I try and ‑ ‑ ‑
GUMMOW J: Is the word “summary” used in the Convention?
MR REYNOLDS: I do not believe so. The relevant words I think are “prompt return”, if I can answer your Honour Justice Gummow.
GUMMOW J: I think that is right.
MR REYNOLDS: Your Honour the Chief Justice, with respect, is concerned about the practical ramifications of the way these matters are dealt with in the Family Court. Can I make these concessions in one sense, that to get a prompt return one needs a measure of summary justice. What do I mean by that? I mean that the pre-trial process should be quick, that there should be an early hearing date, that the hearing should occur in as quick a time as possible without, for example, unnecessary adjournments and what have you and then a judgment should be handed down quickly.
I accept all of that as being the clear spirit and intendment of the Convention and matters which would properly be taken into account by the Family Court in exercising its jurisdiction in cases of this kind. Look, where I jibe, with respect, is on this question of whether there has been any subversion of the usual civil process of proof otherwise established in relation to this case.
I say it has not been subverted as to proof by these regulations and, put at its highest, I would submit that there is no reason why your Honours should not determine this case on the relevant issue.
GLEESON CJ: It may be that you are ultimately correct about this, but questions of evidence and fact finding and appellate review of fact finding need to be considered in a context that is somewhat different from the context of a fully blown common law action or equity suit.
MR REYNOLDS: Maybe, but the difficulty, accepting provisionally what your Honour the Chief Justice says to me, is to do so in a way that does not conflict with Chapter III of the Evidence Act, in particular section 140, and with section 80 of the Judiciary Act.
GLEESON CJ: You may be right but maybe if there is a procedure – and I am not suggesting for a moment that this is a good analogy – but it may be that proceedings of this kind in terms of evidence and fact finding are more analogous to an urgent application for an interlocutory injunction than they are to an equity suit.
MR REYNOLDS: Again, it may be that in enacting the Convention as part of the municipal law, the regulations can pick up your Honour’s suggestion and, for example, say that if there is a serious question to be tried on the question of whether there is a wrongful abduction, then the court is empowered in its discretion to make a rendition order in relation to the child. Certainly that is a possible way for the authorities to proceed in the regulations. I am sorry to be so obstinate about it, but it is very much part of my client’s case that there is no proof and that means that I need to hang on for grim life to the established principles which we say – and I am repeating myself – have not been supplanted.
There is on the notion of the basal assumptions in a matter a discussion – I think it is in 193 CLR in a case called Nicholas v The Queen by Justice Gaudron – about there being certain essential and basic fact‑finding measures and natural justice and the like.
I think the point of departure where we have been considering this issue of summary jurisdiction was when I was dealing with the issue of concoction. I am conscious of the time and can I try and summarise down my remaining submissions fairly briefly. Your Honour Justice Gummow mentioned no cross‑examination. Secondly, there is other material – this is on the finding of concoction – corroborating the mother’s evidence, at least arguably, first of all, the evidence of Ms Grygoruk and, second of all, the evidence of the name tag which we will come to briefly in a moment.
Next, as we have said in our submissions at paragraphs 62 to 66, the first and second affidavits, at least arguably, are reconcilable, that is, they are not inconsistent and my learned friend has not taken issue with that in his submissions.
We would submit that the mere failure directly to deny the statement in the father’s first affidavit that he was living with the mother at the time of the child’s birth, her failure to deal with that directly in her first affidavit we would submit is neither here nor there because if one looks particularly at that affidavit at appeal book pages 41 to 42 there is not even any reference to her having seen the affidavit by the father and in particular that does not reveal any knowledge on her part that she had even seen that affidavit earlier on.
The next issue I would like to deal with is the question of “relatively low threshold” which picks up an expression used in paragraph 219 of the judgment. This is at page 332. We have submitted in our submissions that that has not been established, not been proved to be the relevant New Zealand law on the issue of de facto relationship. Now, I submit it is not altogether clear what “relatively low threshold” is talking about. It could mean, I submit, a couple of things.
One is that it could be suggesting that only a small number of factors may be sufficient in order to establish a de facto relationship. The problem we would suggest with that is that that just has not been proved to be the law of New Zealand, but more importantly if one looks at section 29A of the Interpretation Act, which I took your Honours to earlier, it makes it abundantly clear that all the circumstances of the relationship are relevant.
GLEESON CJ: There are Australian statutes dealing with de facto relationships, are there not?
MR REYNOLDS: I believe so, your Honour.
GLEESON CJ: Yes. There is, presumably, at least Australian law on what constitutes a de facto relationship?
MR REYNOLDS: I assume that, your Honour.
GLEESON CJ: Can I ask you this question? Can you be in more than one de facto relationship at the same time?
MR REYNOLDS: I confess to never having thought about it, your Honour.
GLEESON CJ: You cannot be in two marriages at the same time and I presume you cannot be in two civil unions at the same time. Can you be, for example, in a marriage and a de facto relationship at the same time?
KIRBY J: I think that certainly exists.
GLEESON CJ: Mr Reynolds?
MR REYNOLDS: Your Honour is really putting me on the spot.
GLEESON CJ: I am just trying to work out, there must be some Australian law, at least, on what a de facto relationship is and the most obvious question about that is can you have two of them at the same time?
MR REYNOLDS: The only answer I can give to that, your Honour, really is that it is not a question that I have looked at under Australian law or, for that matter, under New Zealand law, but so far as New Zealand law is concerned we come back, and I am sorry to be so insistent about this, to the issue of proof.
GLEESON CJ: It is related to the question of intent that is raised by that paragraph that we have noticed before when your client said she did not intend to be a de facto partner. An aspect of the intent relevant to the legal status of marriage is exclusivity, legal exclusivity. Is there anything exclusive about a de facto relationship?
MR REYNOLDS: Again, we start with a relationship in the nature of a marriage or a civil union. That is the test under New Zealand law. To answer your Honour’s question we need to know what the New Zealand law is on a marriage or civil union. It may be, for example, that New Zealand legislation – it would be unlikely – may say that a marriage may allow for having a de facto relationship in addition to marriage.
GLEESON CJ: I was really wondering if there is any Australian law on this subject.
CRENNAN J: It is defined at section 4 of the Family Law Act. A de facto relationship is defined there as:
the relationship between a man and a woman who live with each other as spouses on a genuine domestic basis although not legally married to each other.
MR REYNOLDS: That no doubt picks up various phrases that are used in various sections of the Family Law Act.
GLEESON CJ: Yes, but it picks up the word “spouse”. You can go to gaol for trying to have two spouses at the one time. Can you have two de facto relationships at the one time?
MR REYNOLDS: I did have a look at some of the law relating to de facto relationships in this country. If your Honours go to our submissions at paragraph 85, on a, I have to submit, fairly cursory run through the relevant factors that are taken into account, they were the factors which I took from the discussion in some case law and a couple of text books. So far as Australian law is concerned, your Honours, it is not an issue that I have looked at and I cannot on Australian law take it any further, but I would submit that the question of what Australian law is is not directly relevant.
GLEESON CJ: I am wondering is what would you put in what I might call a standard form of affidavit if you wanted a New Zealand father to establish a prima facie case that he was living in a de facto relationship with a particular woman at a particular time? If you were in the position of the Director‑General and you wanted to run off a standard form of claim to be a de facto partner, what would you put in it and, in particular, would you have to put something in it in relation to the matter of intent?
MR REYNOLDS: My answer to that is that one would take certainly living together and any children into account and then the factors I have set out at paragraphs 85(a) to (p) in our submission. I would submit that the factors which are set out there are part of all of the circumstances and if the Central Authority wants a checklist, then I would submit these are the sorts of issues which would be part of “all of the circumstances” in section 29A. It would be difficult, I submit, given that all of the circumstances are relevant, to exclude these matters here.
On the question of mental element, there is in paragraph 85(i) of our submissions reference to the degree and nature of mutual commitment and mutual support that goes to both quality and duration and, through that aperture, one imagines some evidence as to the longevity of the relationship and the nature of the feeling of each party for the other and the mental state of each party to the other would have to be to some extent relevant to that.
KIRBY J: Actually, there is a check list or a sort of list that Justice Tipping in New Zealand has proposed in a case called Excell v Department of Social Welfare [1991] NZFLR 241. It is a list of 10 factors for considering whether there is a married‑like relationship or a relationship in the nature of marriage which is not dissimilar to the question of whether there is a de facto married relationship. It includes whether they live together in a house, whether they had a sexual relationship, whether they give emotional support and companionship, whether they socialise together, whether they have children, whether they share domestic tasks, et cetera, whether they go on holidays together, whether they are known by others and treated as a married couple by friends. He gives this list. Justice Tipping is now a very senior judge in New Zealand.
Now, there is a very tentative decision of the Full Court against me on that point which I need to draw to your Honours’ attention, which is this case of Resina v Resina. Your Honours will see about three or four pages in we get reference to “JUDGE1” and in the paragraph numbered 4 about halfway down the page beginning “It is unnecessary”, et cetera, that is what sets out the order which includes at the end of the paragraph an injunction:
restraining each of the parties from removing either of the children from the State of Western Australia and the Commonwealth of Australia.
Now, there is no rider saying “without consent”. What their Honours did in this case and they were in some difficulty because it was a decision that was ex parte, was they went through, at paragraph 18, which is a couple of pages further on – there is a rather long discussion from paragraphs 18 through to 22 of a case called C v C. Their Honours, referring to their Lordships in C v C, come to a conclusion at paragraph 23 that in that case – that is in C v C - an injunction of the same type as was granted here amounted to a right of custody.
In my submission, that statement is erroneous because in C v C, as your Honours will see if your Honours look at it, there was a consent provision expressly in the order and their Honours have missed that point. Their Honours then go on to say, or the judge goes on:
I say “as at presently advised” ‑
because it was an uncontested appeal with argument only on one side, notwithstanding the able assistance of counsel - there are two reasons why we think we should follow the Court of Appeal. So, although that is in one sense against me, I would submit that there are obvious difficulties with it.
Can I finish off then just by drawing your Honours’ attention to two final matters. The first is that on the question of proof in regulation 16, I do not think your Honours’ attention has been drawn – this is in regulation 16(1) in the Family Law (Child Abduction Convention)
Regulations - there is an important word in there and it is the word “satisfies”, which we would submit imports notions of proof.
In that regard, your Honours’ tipstaves should now have a copy of an extract from Williams v The Minister Aboriginal Land Rights Act (2000) Aust Torts Reports 81‑578, where your Honour Justice Heydon, at page 64,149 in the first column about halfway down, talked about this notion of proof and satisfaction and, importantly, said this:
But discharge of the burden of proof depends on experience by the trial judge of an actual persuasion of the existence of the matter to be proved -
which statement we would respectfully adopt.
There is only one other matter that I would like to raise with your Honours, and it relates to a question that – would your Honours pardon me for a moment? Your Honour the Chief Justice raised the question with my learned friend about what the findings were as to the duration of these parties living together, and my learned friend correctly said that there were no findings, but there was some direct evidence by the mother, and that is to be found conveniently in paragraph 48 of our submissions, relevantly at paragraph 5 where she talks about joining the father about six weeks after the birth and then staying for around six weeks.
GLEESON CJ: Now, I was wondering what I might call the pre-birth history of cohabitation was.
MR REYNOLDS: No, your Honour, there is just no suggestion of that in the evidence.
GLEESON CJ: Well, the evidence seems to be totally silent on their living arrangements, their respective living arrangements, before the birth of the child.
MR REYNOLDS: Quite. On the question of the mother’s knowledge of the order, I took your Honours to the form of the order which said “by consent”, but I should also draw your Honours’ attention in that regard to pages 186 and 187 of the appeal book where in her affidavit at paragraphs 8 and 11 there are references to consent being given. If your Honours please, those are my submissions.
GLEESON CJ: Thank you, Mr Reynolds. Yes, Mr Walker.
MR WALKER: Your Honours, there are some brief matters in reply on the contentions that I could do now so as not to reserve them for a document. On that last point the passage at appeal book 187, paragraph 11, put paid to any doubts in relation to the section 80 Care of Children Act (New Zealand) point. As to the knowledge of the mother concerning the making of that order, she recalls the order being made, in relevant terms, granting what she calls limited access as indicated by the court’s order in that paragraph. The annexure D is found at page 202. It is the same document as is found at page 33.
GLEESON CJ: Is it right, Mr Walker, that there is just no evidence at all as to whether the couple cohabited before the birth of the child?
MR WALKER: There is certainly no explicit evidence, your Honour. There is, at best, the first sentence of the paragraph 3 of the first affidavit:
Abuse from [the father] started during my pregnancy.
HEYDON J: What about paragraph 5 on page 186, “I did not live with ‑ ‑ ‑
MR WALKER: No, she denied living at all - at the time of the birth.
HEYDON J: Yes, and then living thereafter, living ‑ ‑ ‑
MR WALKER: Her case was, did not live with him at time of birth.
HEYDON J: But stayed – six weeks later came along and “stayed three (3) nights per week” for another six weeks.
MR WALKER: That is right. That was her evidence. He said he was living with her at the time of birth. Indeed, that was, your Honours will recall, all he said to give himself custody rights, apart from the access order.
GLEESON CJ: On these evidentiary matters, is this sudden death? I mean by that, is the position in relation to the return of this child to New Zealand forever going to turn on the evidence that is in this record?
MR WALKER: Your Honour, I do not know. I have had inquiries made ‑ ‑ ‑
GLEESON CJ: I mean by that, particularly without any Australian court ever being told by anybody whether or not these parties cohabited before the child was born.
MR WALKER: Yes, quite. Your Honour, I do not know the answer to that question. I have had inquiries made. I have not got an answer to them. May I put that in my note?
GLEESON CJ: Thank you.
GUMMOW J: We would be assisted to know from both of you as to whether this outcome in this case if Mr Reynolds is successful creates an estoppel ‑ ‑ ‑
MR WALKER: Does it conclude it? Yes.
GUMMOW J: ‑ ‑ ‑so that there can be no fresh application under these regulations.
MR WALKER: Yes. I should not try to answer the question because although I have thought of the question I have not come up with the answer. We have given consideration to whether in the event the appeal should be upheld, whether there should be relief other than what should have been done below, namely, upholding the appeal there, with the effect that the order that should have been made at first instance would be made, namely, that the application be dismissed. The alternative we have considered is, for example, whether there could be something in the nature of remitter for a restart. I am unable to point to anything in any statute, regulation or authority that would justify that, alas.
GLEESON CJ: I realise that there are problems about judges intervening in the way parties conduct their cases, but sometimes it is appropriate for a judge to ask for some further information, and this might have been a case where it might have been thought appropriate to say to somebody, would you mind telling us by evidence whether or not these parties were cohabiting before the child was born?
MR WALKER: Yes, your Honours, particularly bearing in mind that it was clearly appreciated that what section 17 of the New Zealand statute talked of was living at the time of birth, which clearly cannot be taken with too much precision or literally given that most births ‑ ‑ ‑
GLEESON CJ: Unless you are in hospital, I presume, at the time of the birth.
MR WALKER: Quite. We are not talking about home births only, so one would normally expect as a matter of ordinary English that living with someone at the time of the child’s birth certainly means immediately before the birth, apart from necessary trips to mothers in hospitals. Ditto afterwards. “At the time of birth” is a social reality, not a point in time. Now, all I can say is yes to your Honour’s ‑ ‑ ‑
GLEESON CJ: But I think we are interested to know whether it is too late now.
MR WALKER: Only one shot in the locker. I am bound to say, as a matter of policy, one possibility is that on any view of it this is a relatively drastic decision that has to be made.
GUMMOW J: Yes, but the other side of the coin is with sufficiently resourced parties, vexatious sets of consecutive proceedings.
MR WALKER: That is what I was about to say, your Honour. This is pretty drastic and so there are policy reasons as to why there should just be the one.
KIRBY J: Yes, but there are also other policy reasons that may not suggest that and may not even suggest that there is an estoppel because of the fact that this is a public law matter in its character. It involves an international Convention. Above all, it involves the welfare of a child.
MR WALKER: Quite so. In relation to “prompt return” ‑ ‑ ‑
GUMMOW J: That is the clue, I think.
MR WALKER: Yes. Now, it is not like an order for possession where facts may change as to the right to possession so that you can bring a sequence of actions in ejectment in the sense that all the facts are in existence in relation to the right of return. That is not true of the grave risk one, but it is true of return, whether there has been a breach of a right of custody.
GUMMOW J: There is the one‑year stipulation as well, is there not?
MR WALKER: There is the one-year stipulation that differentiates between those which are what I will call prima facie mandatory and those which are not always discretionary. The grave risk makes the prima facie mandatory return discretionary. Grave risk may well alter with time but that might be a reason to have only one application but, on the other hand, it might be a good reason to have another application. Certainly in relation to wrongful removal in breach of a right of custody, that does lend itself to a once and for all. I submit as a matter of principle it is going to be susceptible of investigation and adjudication once, which is obviously from some parties’ point of view a great pity.
May I correct what I said in answer to Justice Heydon just now. Yes, there was the evidence of the mother, for example, in paragraph 5 at page 186. I had understood the Chief Justice’s question to be on the side of the person who gave virtually no assistance on the point, namely the father, and the furthest it went was through my client’s counsel’s reliance on the mother’s admission which might be thought to give rise to the idea that they were living together. That is on this perhaps cynical view that abuse from the father is characteristic of their living together relationship. I cannot find anything else, I much regret to say, apart from the assertion I stress by the father that he was living with her at the time of the birth. He does say that and that is all he says about it and it must mean immediately before the birth obviously.
Your Honours, in relation to the matter of the access order and its use to attribute a right of custody either to the New Zealand court or to the father, may I note that it is not a question of that order being breached. It is a breach of the rights of custody which Article 3 requires in order for a removal to be considered wrongful.
Article 3 is directly reproduced in regulation 3(2) as the definition of when the “removal or retention of a child is wrongful”. I stress it is whether it is in breach of rights of custody. Our argument simply is that it is in breach of the right of custody, being here the right to determine the place of residence of the child, namely, New Zealand, which was breached by removal without consent.
Now, if it matters we would go on and say, yes, she was in contempt of the New Zealand court order, but that is not necessary. All we need say is, his right to determine by being able to withhold consent to removal from New Zealand was breached, to use the Convention language, by removal without his consent. It is obviously a breach of a right to withhold consent for something to be done without consent being sought or given. That is that point on our second contention argument.
Your Honours, in relation to the way in which the case law around the world has been dealt with and my learned friend touched on, I should draw to attention that in paragraph 35 of Baroness Hale’s speech in In re D [2007] 1 AC 634 there is the reference to two New Zealand cases which are then – well, the main one of those returned to then in paragraph 42 of her Ladyship’s reasons at page 637, and paragraphs 42 and 43, where those New Zealand decisions are disapproved. I should draw that to attention.
However, in answer to reliance by my learned friend on paragraph 38 in that speech at [2007] 1 AC 635 ‑ ‑ ‑
KIRBY J: They are called opinions now.
MR WALKER: I am sorry, your Honour. In our submission, may I make it clear that we are not putting that what is there called a “potential right of
veto” being that which is no more than the right to go to Court to seek an order, we are not putting that that would give the father a right of custody. If your Honours were to conclude that is all he had, then he would not have the right to veto, that is, the right to determine the place of residence within the meaning of regulation 4(2). So we are not inviting your Honours to reason differently from what appears in paragraph 38 of re D.
I am simply saying he had more than that. Without going to court at all, he had the capacity withhold consent to her conduct which would otherwise be in breach of that order or in breach of section 80 of the Care of Children Act, because the order was certainly caught by section 80. He did not have to go to court, for there and then him have the right to say, “Well, I am not going to agree. If you go ahead and do what you are doing, without me lifting a finger, you will be in breach of the order and you will be committing an offence under section 80.” That is what rendered it wrongful. May it please the Court.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Sydney and 9.30 tomorrow in Melbourne.
AT 3.59 PM THE MATTER WAS ADJOURNED
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