MW v Director-General of the Department of Community Services

[2007] HCATrans 490

[2007] HCATrans 490

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S241 of 2007

B e t w e e n -

MW

Applicant

and

DIRECTOR‑GENERAL OF THE DEPARTMENT OF COMMUNITY SERVICES

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 3.50 PM

Copyright in the High Court of Australia

MR P.Q.V. LE:   May it please the Court, I appear for the applicant, with MR C.G. VACCARO.  (instructed by Le Vaccaro Lawyers)

MR T. TOCKAR:   May it please the Court, I appear for the respondent.  (instructed by Department of Community Services)

GUMMOW J:   The Director-General is in the position of the authority, is it not, under the regulations in the Hague case?

MR TOCKAR:   Yes.

GUMMOW J:   I have forgotten what the actual terminology is.  How is your client described?  Are you the State Central Authority?

MR TOCKAR:   That is correct, as the State Central Authority.

GUMMOW J:   Yes, thank you.  Yes, Mr Tockar, we will be assisted by hearing from you first.

MR TOCKAR:   Yes, thank you.  The submission from the respondent basically, your Honours, is that this is not a matter for special leave, that a decision was made by the trial judge which was followed by the majority of the Appeal Court that the father of the child and the mother lived together in a de facto relationship at the time that the child was born.  That in itself is a factual finding.  Generally, any finding of parties living together in a de facto relationship will depend upon the facts of the individual matter.  Clearly, in determining whether there was a de facto relationship at the time that the child was born regard had to be had to the legal principles.  The submission is that the court, the majority, Justices Thackray and May, were quite correct in looking at the Interpretation Act (NZ).

GUMMOW J:   We would be assisted if you would just take us through the relevant legislation, which I think is set out in Justice Finn’s judgment starting at page 33, and explain how it works in this case.

MR TOCKAR:   In this case, your Honours, it is important and vital in order for a return order to be made that the father in this case of the child had rights of custody.

GUMMOW J:   Now, in terms of the statutory text, where do we see that?

MR TOCKAR:   That you will find in the respondent’s list of authority ‑ ‑ ‑

GUMMOW J:   No, no, in the statutory text at page 33 of the application book.

HEYDON J:   Does it not work this way?  Regulation 16(1A) says that the child’s removal is wrongful if (c) the person seeking the child’s return had rights of custody.  That is the father.  So what is a right of custody?  The father relies on guardianship, does he not, joint guardianship?

MR TOCKAR:   He relied on some other factors as well, but for the purposes of this hearing, yes, it is the question of guardianship in terms of the Care of Children Act (NZ) and according section 17 of that Act ‑ ‑ ‑

HEYDON J:   Which we find on page 84:

(1)The father and the mother of a child are guardians jointly of the child unless the child’s mother is the sole guardian of the child because of subsection (2) or subsection (3) . . . 

(3)If a child is conceived before the commencement of this Act –

which this one was –

the child’s mother is the sole guardian of the child if the mother was neither . . .

(b)living with the father of the child as a de facto partner at the time the child was born . . .

There was very little direct evidence of living as a de facto partner.  Justice Finn found is unsatisfactorily weak.  The majority of the Full Court, going over to page 88, relied on a paragraph of the mother’s affidavit which was intended to advance her interests but they found it to be adverse to her interests.  They inferred from it that:

the parties were having a sexual relationship; had a child together; and were living together in a residence which the mother described as “our house” –

in the sixth line of that indented passage –

was looking to the father for financial support –

because she kept complaining about the phone being disconnected and the power being shut off and there being no food, and considered she was entitled to know about his financial affairs which were clouded because people kept coming to the house and demanding money.  Now, some minds might think that is too feeble or too imaginative an approach to that evidence.  The applicant says it is not permissible to have so low a standard, as it were, of factual determination of de facto relationships. 

You rely on a provision in the Interpretation Act (NZ), I think. You say that the purpose of the Care of Children Act is to benefit children and children are benefited the more guardians they have.  So if you can come to a conclusion by which a father is a joint guardian as well as the mother you are benefiting the child.  Are not all these rather interesting questions of construction which would merit the grant of special leave?

MR TOCKAR: My submission is not, your Honour. First of all, I do state in my written submissions that if one has regard to section 18 of the Care of Children Act (NZ) it actually indicates or it is provided that if simply the father’s name is included on the birth certificate of the child, that, since 2004, would be sufficient to give him rights of guardianship.

HEYDON J:   That does not help in this case.

MR TOCKAR:   Well, I submit that it does.

HEYDON J:   Your point is that it is a dead question?  There is a closed class.

MR TOCKAR:   I submit that, as rare as it would have been in any event, with the introduction of that particular provision the prospects of that matter arising becomes even more remote and particularly in a country outside of New Zealand.  Secondly, I submit that it adds some weight to the proposition that when one looks at the purpose of the Act, that the legislature is trying to cast their net as wide as possible, that we are dealing with a situation where one is looking at the best interests of children and not dealing with the situation, for instance, under the Property Relationship Act where one is looking at a completely different state of affairs when one is trying to determine what property order should be made as a result of a relationship between people.

But even if we go back to the fairly sparse evidence in this matter regarding the de facto relationship, I submit that there is sufficient there, that it is clear that there was a sexual relationship child born et cetera, but your Honour’s point is that there is a point of construction.  The point of construction goes to an Act that is not an Act of the Australian Parliament, that it goes to an Interpretation Act which is fairly clear in what it says and when one looks at the way that it was dealt with by Justices May and Thackray, the submission is they dealt with it clearly in the appropriate way because that Act says, look at the interests of children. If one looks at the context of the matter, looks also at what I have said regarding the attitude of the legislature when one has regard to section 18, then my submission is that the way that the Interpretation Act was applied by Justices May and Thackray was absolutely correct.

So my submission is twofold to this Court.  Firstly, they were correct in applying the Interpretation Act and they applied it correctly.  Secondly, that in any event this is not the kind of matter that should entertain the interest of the High Court of Australia inasmuch as the likelihood of this kind of matter coming again before the Court is very remote and that, in any event, that the way – I excuse me, I will withdraw that.  So those are really my ‑ ‑ ‑

GUMMOW J:   What is the significance, though, of the terms of the New Zealand court orders of 4 December 2000?

MR TOCKAR:   Those were the orders where in terms of, I think the terminology used, then the father had rights of access.  The significance of that perhaps does not relate directly to the question of the de facto ‑ ‑ ‑

GUMMOW J:   Justice Finn said she would not be satisfied that the terms of those orders gave the right to the father to determine the place of residence within the sense necessary to pick up the Australian legislation.

MR TOCKAR:   Yes, that goes to the alternative ground that was argued as to why the father had rights to custody.  It was argued that in terms of the New Zealand law that once he had simply rights of access that would be enough to enliven the convention, but it was found that he had to go to the next step.  In fact, what was interesting though is that regarding the question of the father having rights to determine where the child would live, the argument about a right of veto was raised.  Her Honour Justice Finn found that the respondent had not discharged the onus of showing that the right of veto did reside or reposed in the father.

The other two judges, Justices May and Thackray, together with Justice Finn, found that the right of veto itself would be enough to give the father the right to determine where the child lived and therefore would give rise to the rights of custody, but then just said that if it was established that he had the right of veto, then that would be okay, but they did not go to the next step and determine whether in fact he did have that right to veto.  If the opportunity arose I certainly would argue that it was sufficient before the Court in order to find that the father did have that right to veto, but that was not determined by the Court, and the sole issue then came down to the question of the Guardianship Act or to the question of guardianship and that then comes to the question of whether the parties lived together in a de facto relationship at the relevant time.

The submission simply is that they were right in finding that, it was a factual finding that the High Court of Australia need not then involve itself in those matters of factual finding, and as far as questions of construction are concerned, that it is something so remote to this Court and that in any event in the way in which it was dealt with was properly dealt with.

GUMMOW J:   Thank you.  Yes, Mr Le.

MR LE:   Yes, your Honour.  If I may continue on my learned friend’s comment about the remoteness of the likelihood of this matter being before the attention of this Court?  If I may respectfully submit that regardless of whether it is remote or not, the application for special leave is based on an understanding that Australia is obligated to uphold the spirit and the letter of the Convention because it is rendered as part ‑ ‑ ‑

GUMMOW J:   We know that.  Just get to the heart of it.

MR LE:   Yes, the heart of it is that, your Honour, the mother’s position is that there is clearly an error of law.  To rely on the Acts Interpretation Act, that section was introduced years after the child’s birth.  It cannot be applied retrospectively.  I note that in the book my learned colleague makes reference to a matter of Commonwealth v Orr at page 117.  If I could respectfully submit that that forms part of Australian real property law.

HEYDON J:   There is nothing retrospective about this, is there?  The Care of Children Act was enacted in 2004.

MR LE:   Yes, your Honour.

HEYDON J:   In this case it, as it were, looks back to some events in 1996.

MR LE:   Yes, your Honour.

HEYDON:   In 2004 section 29A of the Interpretation Act was in force.  Where is there any retrospective disturbance of vested rights or anything of that kind?

MR LE:   The Care of Children Act was enacted in 2004 and that concerned the issues in relation to the Hague Convention.  Section 16(1A) clearly states that the rights of custody must be determined in accordance with the law of the country at the time the child departed New Zealand.  So, therefore, by that very regulation it made the Care of Children Act an applicable Act in a sense that the Care of Children Act dealt directly with the question of whether the father was a guardian of the child.  It was upon reflection of sections 15 and 16 of the Care of Children Act that it was conceded by the mother that rights of guardianship is equivalent to rights of custody for the purposes of the Hague Convention.  However, if you look into the relevant section concerning ‑ ‑ ‑

GUMMOW J:   But the mother and child came to Australia in 2006, right?

MR LE:   Yes, your Honour.

GUMMOW J:   What is this point about retrospectivity and the non‑application of the Interpretation Act?

MR LE:   The Interpretation Act provided a definition of what ‑ ‑ ‑

GUMMOW J:   What is the answer to what Justice Heydon put to you?

MR LE:   I apologise, your Honours?

GUMMOW J:   What is the answer to what Justice Heydon put to you as to the absence of retrospectivity in your complaint about the Interpretation Act?

MR LE:   Yes, in the absence of the Interpretation Act I would respectfully submit that the onus remained on the central authority to provide the court with relevant law in order to assist the court to determine whether the father had rights of custody by virtue of him being a de facto partner at the time of the child’s birth.  There was nothing that assisted the court in that sense and the error of law occurred here in that, with respect, the Full Court adopted the Interpretations Act anyway without any legislative ‑ ‑ ‑

GUMMOW J:   Why is that an error of law?

MR LE:   Your Honour, the error of law is that there must be – it can be traced back to section 16(1A) of the regulations where it says that rights of custody must be determined in accordance with the laws of the country at the time that the child was removed.

GUMMOW J:   Yes, that is 2006.

MR LE:   Yes, your Honour, in 2006 the only law available was the Care of Children Act, and the Care of Children Act, particularly section 17(3), states that for the father to be a guardian it must be shown in this set of circumstances that the father was living with the mother as a de facto partner “at the time the child was born”.  Because of those wordings saying “at the time the child was born”, then it is necessary to go back to at that particular time and look at the law at that particular time, not the law when the Interpretation Act was introduced but, rather, at the time when the child was born and at that time the Interpretation Act was not introduced then.  That is where the error of law is, that the Interpretation Act should not have been used by virtue of the operation of section 17(3)(b).

GUMMOW J:   What you are saying is that when you look at the statute you just read to us, that manifests a contrary intention to displace what otherwise might be the operation of the Interpretation Act.  You may be right or wrong but that seems to be the legal way to put it.

MR LE:   Your Honour, I would see along those lines, but ‑ ‑ ‑

GUMMOW J:   What is the relevant provision of the Interpretation Act?  Where do we see that?

MR LE:   The relevant provision in the Interpretation Act is in the application book.  I believe it is on ‑ ‑ ‑

HEYDON J:   Page 87.

MR LE:   Yes, your Honour.  If I may refer your Honours to the authorities book where the Acts Interpretation Act – your Honours are fully aware of the commencement dates of the Acts Interpretation Act so there is no need for me to refer there.  The Interpretation Act clearly ‑ ‑ ‑

GUMMOW J:   When was section 29A added to the Interpretation Act, do you know?

MR LE:   Your Honour, I am not certain, but in any event, the fact that it was enacted way after the time the child was born, some nine years after, the child was born – I mean, it was certainly some four years after – the child was born in 1996 and this was enacted in 1999, some three years after, your Honour.

GUMMOW J:   What do you say to the submission that is made against you, I think, that at the end of the day what was critical to Justice Finn’s dissent is what she said starting at paragraph 41 on page 44.  She took a different view of the sufficiency of the evidence to the majority and we do not normally get involved in that sort of difference between judges in intermediate courts of appeal.  Would not that really be in the end what we would be doing if we took this case on?

MR LE:   Your Honour, the issue that is really before this Court is to determine whether there was a misapplication of the law or, rather, an application of laws that were not appropriate, namely, the Interpretation Act section 29A. In the event where that particular section was not applied, then you would not have a situation where – and, with respect, a Full Court making a relatively low threshold decision but, in any event, at the end of

the day if the law was applied as intended, then the result would be that the father would not have been deemed to be a de facto partner, therefore would not have rights of custody pursuant to the Convention and the result would be that the child does not have to be returned to New Zealand.

So it is not an issue of determining the facts but, rather, righting an error where, had the error not occurred, the consequence would be a complete opposite.  If the law was applied correctly, then it would not have been necessary to determine issues of fact.  That is the mother’s position in relation to this application for special leave.  Thank you, your Honour.

GUMMOW J:   We will take a short adjournment.

AT 4.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.17 PM:

GUMMOW J:   What is the current status of this child in view of the orders made at first instance, which were for return?  Were they suspended in some way?

MR TOCKAR:   Yes, a stay application was made which was granted and the child is presently still with his mother in Australia.

GUMMOW J:   Do we have the text of that stay?  Was a stay order made?

MR TOCKAR:   Yes.

GUMMOW J:   Do we have that in the book?

MR TOCKAR:   It is not in the book.  That was made before Justice Steele after the application for special leave was lodged.

GUMMOW J:   How long has it continued?  That is what I am worried about, the stay.

MR TOCKAR:   If I recall correctly, the time limit was purely to the effect that the application for special leave was to be expedited and no delay.

GUMMOW J:   So the stay lasts really until today, in effect?

MR TOCKAR:   Yes, yes.

GUMMOW J:   If we were to grant special leave we would have to extend the stay, would we?

HEYDON J:   Until the determination of the appeal.

GUMMOW J:   What date was the stay, do you know that?  We need to be precise about these things.

MR TOCKAR:   To the best of our recollection, your Honour, it was early May.

GUMMOW J:   Who made it?  May this year?

MR TOCKAR:   This year, yes, by his Honour Justice Steele.  I do have in my briefcase, at the back of the Court, files which I can give you the exact date.

GUMMOW J:   Yes, take a minute to find it, if you would.

MR TOCKAR:   Thank you.  The stay application was filed on 10 May and that also appears to be the court date, so 10 May seems to be the relevant date, your Honour.

HEYDON J:   It was filed on that day and granted on that day?

MR TOCKAR:   But it appears - your Honour will see that it was filed on that date but seems to have been filed on the day of the hearing.  Yes, I have the order here, it is 10 May.  I can confirm that.

GUMMOW J:   Very well.  There will be a grant of special leave in this matter but there are two matters I want to put to you, Mr Le.  The first one concerns the draft notice of appeal which appears at page 108 of the application book.

MR LE:   Yes, your Honour.

GUMMOW J:   You will need and you have the necessary leave to supplement those grounds with a ground to the effect that section 29A of the New Zealand interpretation statute was inapplicable to the construction of the relevant provisions of the Care of Children Act 2004 (NZ).  That will have to be added as a ground.  You have the necessary leave to do that.

MR LE:   Thank you, your Honour.

GUMMOW J:   The second thing is, this is, on one view of it, an important case and, without any reflection on your youth, it needs experienced counsel and every effort should be made to achieve that so we get the maximum experienced assistance which we should get in this sort of case at this level.

MR LE:   Thank you, your Honour.

GUMMOW J:   So there will be a grant of special leave with the stay granted by order of Justice Steele in the Family Court of Australia on 10 May 2007 extended until a determination by this Court of the appeal or earlier further order of this Court.  The Court will now adjourn to 11.00 am on Monday, 3 September at Canberra.

AT 4.22 PM THE MATTER WAS CONCLUDED