RCB as Litigation Guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest, One of the Judges of the Family Court of Australia

[2012] HCATrans 178

[2012] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B28 of 2012

B e t w e e n -

RCB AS LITIGATION GUARDIAN OF EKV, CEV, CIV AND LRV

Plaintiff

and

THE HONOURABLE JUSTICE COLIN JAMES FORREST, ONE OF THE JUDGES OF THE FAMILY COURT OF AUSTRALIA

First Defendant

DIRECTOR‑GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY AND DISABILITY SERVICES)

Second Defendant

LKG

Third Defendant

TV

Fourth Defendant

FRENCH CJ
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 AUGUST 2012, AT 10.15 AM

Copyright in the High Court of Australia

____________________

FRENCH CJ:   Before I call the matter for hearing I would like to acknowledge the presence on the Bench with us of Chief Justice Geoffrey Ma, Chief Justice of Hong Kong.  It is a pleasure to have him join us today to observe part of this proceeding.  I would also like to acknowledge the presence in Court of his wife, Madam Justice Maria Yuen, of the Court of Appeal of Hong Kong, and we welcome her here as well.  Please call the matter for hearing.

MR A.J.H. MORRIS, QC:  May it please the Court, I appear for the plaintiffs with my learned friend, MR S.J. WILLIAMS.  (instructed by Nicholes Family Lawyers)

MR W. SOFRONOFF, QC, Solicitor‑General of the State of Queensland:   May it please the Court, I appear with my learned friends, MR G.J.D. del VILLAR and MR M. R. GREEN, for the second defendant, the Director‑General of the Department of Communities (Child Safety and Disability Services).  (instructed by Crown Law (QLD))

MS J. BRASCH:   May it please the Court, I appear with my learned friend, MS R.J. LYONS, for the third defendant.  (instructed by Barry Nilsson Lawyers)

MR P.J. DOHERTY, SC:   May it please the Court, I appear with my learned friend, MR J.P. Lo SCHIAVO, for the fourth defendant in this proceeding.  (instructed by Donnelly Lawyers)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MS R. GRAYCAR and MR B.K. LIM, for the Attorney‑General of the Commonwealth, intervening under section 78A of the Judiciary Act.  (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR M.J. WAIT for the Attorney‑General for South Australia, intervening.  (instructed by Crown Solicitor (SA))

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with MR C.S. BYDDER, for the Attorney‑General for the State of Western Australia, intervening.  (instructed by State Solicitor (WA))

FRENCH CJ:   Thank you.  Yes, Mr Morris.

MR MORRIS:  May it please the Court, I trust the Court has received our brief outline of propositions to be advanced in oral argument?

FRENCH CJ:   Yes.

MR MORRIS:   By way of preface to those submissions, may I observe that there is a certain irony in the fact that these proceedings potentially involve expatriation to Italy, for the issues with which this Court has to be concerned are issues which can be traced back to Roman law, and particularly the concept which our Anglo Australian legal system inherited from Rome, that only the paterfamilias have standing to litigate on behalf of his family, including spouse, children and slaves?  For the concept of natural justice to be given any weight in this context, it has to be accepted that a person is something more than a non‑person as a child, slave or, indeed, a woman was in Roman law.  The person has to have the right of a citizen to litigate in the courts of their country.

FRENCH CJ: Mr Morris, you are dealing, as I understand it, with a specific mechanism set up under section 68L of the Family Law Act for the separate representation of the interests of children, which is qualified in the case of proceedings of this kind under regulations made under section 111B, a requirement for exceptional circumstances.

MR MORRIS:   Yes.

FRENCH CJ:   The Commonwealth points that that is not the only way in which interests of children may be taken into account.

MR MORRIS:   No, indeed, your Honours, and it is not the way in which these children have sought to be represented.  They sought to be represented in the Family Court through a litigation guardian.  That has been refused by Justice Forrest, and more recently again refused by Justice Murphy.  That, in our submission, takes a lot of the force away from the arguments that are advanced by a number of the interveners about the potential cost to the community of providing an independent lawyer at the expense of the public purse.

FRENCH CJ: But you attack the exceptional circumstances condition upon the exercise of the power under section 68L(3).

MR MORRIS:   We do so in this quite limited context, if I may make this clear to your Honours.  When this matter was before your Honour Justice Kiefel on the first occasion, counsel for the second defendant, the Director‑General, resisted our application and, indeed, sought to have it summarily dismissed on the footing that the section operated to deny independent legal representation either in accordance with the statutory scheme or otherwise which would include independent legal representation through a case guardian.

The contention which we responded to in those circumstances was to say if that is the effect of the section, and we acknowledge that the section is somewhat ambiguous, if that is the section, then it is plainly unconstitutional.  We now take it that the Director‑General no longer maintains the position that the section deprives these litigants or these interested parties of the right to independent representation other than in accordance with the unique statutory scheme, but that is the footing on which the matter was resisted before Justice Kiefel and an application to summarily dismiss was foreshadowed.

FRENCH CJ: Can I take it then that you do not maintain an attack on the validity of section 68L(3) as a, as it were, distinct statutory mechanism based upon the exceptional circumstances qualification?

MR MORRIS:   As a distinct statutory mechanism we do not.  As I remarked earlier, there is some potential ambiguity in the section insofar that subsection (3) provides that:

However, if the proceedings arise under regulations made for the purposes of section 111B, the court:

(a)may order that the child’s interests in the proceedings be independently represented by a lawyer only if the court considers there are exceptional circumstances –

The argument, at least implicitly, advanced by the Director General before Justice Kiefel was that that did not only limit the power to appoint an independent lawyer of the sui generis kind contemplated by the section but operated to deprive the children of the right to be represented by an independent lawyer even through a litigation guardian unless there were exceptional circumstances.  To the extent that that argument is abandoned by the Director‑General, the point disappears.

CRENNAN J:   Mr Morris, may I ask you two questions just to clarify matters which might one view – the first may seem very minor.  You are seeking relief in relation to orders described as orders made on 26 June and 27 June 2011 and suggested in the material I apprehend that may be a mistake of some sort and perhaps the correct date of the orders is 23 and 24 June.

MR MORRIS:   No, I think they are the correct orders, but the difficulty is that a number of orders were made on an interlocutory basis, each premised on the initial order that the children be returned to Italy.

CRENNAN J:   Yes, I appreciate that.

MR MORRIS:   Undoubtedly, our attack is focused solely and specifically
on the combined effect of the orders.

CRENNAN J:   Yes.  Particularly, the order of 16 May 2012.

MR MORRIS:   Indeed, your Honour.  Precisely, your Honour.

CRENNAN J:   Yes.  So no need to amend those dates?

MR MORRIS:   We do not think so, your Honour, with respect.

CRENNAN J:   No.  Secondly, I wanted to just check this.  Am I right in the understanding that daughter EKB applied to intervene in the proceeding on 16 May 2012.

MR MORRIS:   Yes.

CRENNAN J:   And not earlier.

MR MORRIS:   And not earlier.

CRENNAN J:   Not earlier.  Therefore – I just want to understand your argument – then looking at page 2 of your argument, paragraph 4(b), in identifying the issues, looking at (b) which goes over the page, roman (i) and (ii) concerns failures:

(i)failed and refused to afford the affected children an opportunity to have separate and independent representation;

(ii)failed and refused to take into account the interests of the affected children –

That argument is raised in relation to all the orders that are specified under (b).

MR MORRIS:   Yes.

CRENNAN J:   Are we getting into the territory of constructive refusal in relation to the orders made on days other than on 16 May 2012?

MR MORRIS:   We certainly are and it is, in a sense, (i) at the top of our third page that is critical in that context, which is the failure specifically to afford the children even the opportunity of representation.  It is common ground the children of course were not served; they were not parties to the proceedings.  It was only through the initiative of the oldest child who is aged 15 – I hope that was not me.

FRENCH CJ:   No.  I think somebody is looking to – all right.  Carry on, Mr Morris.

MR MORRIS:   It was only through the initiative of the oldest child who is aged 15 and who approached her aunt to become litigation guardian that the children had any form of representation before the court.  Until that time the court was proceeding, as courts generally do, on the assumption that the matter would be disposed of as a fight between the parents with the children having no opportunity to be heard in the true sense of that word.

BELL J:   When you say “in the true sense of that word”, you are contending for the recognition of a right on the part of the children to advance a case as distinct from the role that might be taken were the exceptional circumstances test to have been satisfied in the event that attention had been directed to representation by an independent children’s lawyer, that independent children’s lawyer would have had a role quite distinct, as your reply acknowledges, from advancing the interests of the child in accordance with the child’s instructions.

MR MORRIS:   Indeed, your Honour.  We are on that point in fierce agreement with our learned friend, the Solicitor for the Commonwealth, that an ICJ is simply irrelevant to the question of whether or not children are being heard in the traditional natural justice sense.  The ICJ’s function is not to act as the children’s advocate.  It is to act as an independent authority, somewhat like the official solicitor in the United Kingdom, to assist the Court rather in the nature of amicus curiae.

HAYNE J:   Then is it clear that a necessary premise for your argument is that the interests of children in proceedings of this kind can sufficiently be reflected only by separate legal representation if that is sought?

MR MORRIS:   With respect, no, your Honour.  We would say it is the very reverse of that.  We would say that the basic position at common law and under the decisions of this Court is that a person, any person regardless of age or other incapacity, who is going to be affected by a decision of a court exercising federal jurisdiction has the right to be heard, as I put it earlier, in the full sense, that is, the right to advance a case and to oppose the case put against that person, any person.

HAYNE J:   Now, does that proposition not assume the answer to the very question which is posed by Regulation 16(3), namely, whether the child has a view and whether the child is of sufficient maturity, et cetera, to express the view?  Does not your proposition assume the answer?

MR MORRIS:   Again, with respect, no, because we would say, with the deepest respect, that the way your Honour puts the proposition puts the cart before the horse.  It is not a question of first asking, has this child formed a view and is the child of a sufficient age and maturity to have an intelligent or acceptable view.  It is the other way around that the prima facie ‑ ‑ ‑

FRENCH CJ:   This is a phenomenon we have encountered once before, Mr Morris, where, by some quirk of transmission, a press report gets picked up by the PA.  I think what we should do is adjourn briefly until we are sure that the problem is not going to recur.

MR MORRIS:   I am most indebted to your Honours.

FRENCH CJ:   The Court will adjourn briefly.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.38 AM:

FRENCH CJ:   Mr Morris, you can proceed, hopefully without commentary.

MR MORRIS:   I am most grateful to the ‑ ‑ ‑

HAYNE J:   I would not trust it, Mr Morris; there might be commentary from other points.

MR MORRIS:   I am grateful to the technical glitch for saving me at a stage where I had the temerity to suggest that a member of the Court had put the cart before the horse, but that really does reflect our position that there is, as it were, a prima facie right to be heard in the full sense.

HAYNE J:   Let me just understand that better.  Does that mean that the six‑year‑old has a right to be separately represented?

MR MORRIS:   Rather it means this, your Honour, that the question of whether the six‑year‑old has a right to be represented is to be approached from the viewpoint of there is a right unless there is some good reason to take it away rather than there is no right unless one somehow makes it out.  May I say this.  This could well be a side issue because there seems to be no suggestion that there are included amongst the plaintiffs, and perhaps all of the plaintiffs, children of sufficient age and maturity to have an intelligent and reasonable and rational view as to what is in their best interests. 

Whether that extends to a six‑year‑old or a five‑year‑old or a three‑year‑old may be a matter which arises in other cases, but this case includes, for a starting point, a 15‑year‑old who is being told that she has no alternative but to return to Italy – it could well prove to be the most critical decision in her life – without her being given any opportunity to answer the case that is put for her expatriation or to advance her own case against expatriation.  That is what this case is and though I acknowledge the Court’s difficulty in reflecting on the possibility that it will create difficulties in other cases involving children of different age and different capacity, this case concerns a child who plainly is in a position to form such a view.

BELL J:   Justice Forrest was mindful that the eldest of the children had expressed a wish not to return, was he not?

MR MORRIS:   His Honour was certainly mindful of that.

BELL J:   A few moments ago you spoke of the capacity of these children to be able to articulate a view respecting what was in their best interests, but the question in the proceedings to which these children were not a party, albeit their interests were affected, was a very narrow one, was it not?

MR MORRIS:   It was a very narrow one, and so far as concerned them it really came down to the question of whether their view was just one likely entertained or one of sufficient seriousness to warrant being given effect by the decision of the Court.  The specific words of the regulation ‑ ‑ ‑

BELL J:  

the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes –

MR MORRIS:   Yes.

BELL J:   Well, now there was material addressing that consideration before Justice Forrest, that material having been the subject of the request by the respondent, the central authority, in light of the contents of the mother’s cross‑application indicating an objection.

MR MORRIS:   Yes.  I would have to concede immediately that if one has the situation of a person who is an Australian citizen who happens to be a child who is going to potentially be the subject of the orders which may have a very serious impact on their life, if the Court is satisfied that the requirements of natural justice are sufficiently met because by any means whatsoever the Family Court is informed of that child’s state of mind, then that is the end of this proceeding.

What we would say is that in those circumstances where the child concerned is not only the subject of the order going to be made and the person most directly affected by the order that is going to be made but also the person whose very state of mind is a fact which the court has to consider in making that order, then unless there is powerful reason to the contrary, such as the child being an infant of such tender years as to be unable to do so, natural justice requires that that person be able to articulate through their legal representatives what their case is about that, why their feelings are so strong, to persuade the court that the feelings are legitimate and genuine ones, not simply influenced by a child’s natural affection for a mother or by proximity to the parent with which the child has been living for the period leading up to the hearing, but an intelligent, a reasoned, a sensible point of view which the court ought take into account.

BELL J:   These submissions tend to assume that proceedings relating to the custody of children in the context of the return of children to the place of their habitual residence are like any other form of proceeding and might be thought to overlook the long line of authority and considerations of the need to take a more nuanced approach when looking at the role that children might play in legal proceedings.  Here, for example, you speak of the children in block.  As I understand it, you are not suggesting each child was to advance a separate case through a separate legal representative before Justice Forrest?

MR MORRIS:   We do not suggest that and although we note that one of the interveners has suggested that is the logical consequence, we can see no reason why one lawyer or one team of lawyers would have any conflict in advancing the interests of the girls collectively, even though there may subtle differences between those interests.

CRENNAN J:   Well, more than subtle in relation to the difference between the views of the youngest and the views of the eldest.

MR MORRIS:   Your Honours, perhaps it will be suggested that I am again confusing it with ordinary litigation, but we would submit it is no different from the usual case where a number of defendants are represented by the same team of lawyers even though the defendants may have different agendas in the proceedings but none so contradictory as to give rise to a conflict on the part of the lawyers acting for all of them.  So we do not, with respect, see any difficulty in representation by one team of lawyers, but our case is sufficiently made out, for the purposes of this proceeding, if the Court was satisfied that just one of the children has been denied natural justice.

KIEFEL J:   Mr Morris, in what respects do you say that the family report ordered by Justice Forrest and provided to the Court was insufficient to convey the wishes and the strength of wishes of the children?

MR MORRIS:   We make no criticism of the family report as a family report.  What we attack is the process by which the court abdicates its function of hearing the parties to a court official who is in no position to challenge the case put in favour of the making of a particular or to advance a case for the making of a contrary order.  It is simply a means of placing before the court a piece of evidence rather than giving a party an opportunity to be heard.

KIEFEL J:   You cannot put to one side, when you talk of the requirements of procedural fairness, what the issues before the Court are, and the issues before the Court under the Hague Convention and the regulations involve the question of whether the children object and whether or not the objection carries with it some sense of maturity and knowledge, ability to formulate a well‑considered objection.  They are the issues before the Court, not a custody case as such.

MR MORRIS:   No.  We accept entirely what your Honour says and we accept that for that purpose the report that was obtained is a proper professional report, and was admissible in evidence, as evidence relevant to that question.  We then take it one step further; well, there is some evidence going to that question.  Is that question then to be determined on the basis that the Court, having that piece of evidence, will not hear the party most affected by that piece of evidence, if it is accepted?

HAYNE J:   That elevates the child, does it not, within the regulations’ terms, to being a person opposing return?

MR MORRIS:   We would accept that that is so, yes.

HAYNE J:   Your argument is that a child, in respect of whom there is a question about opposition to return, falls into the position of a person opposing return, do you?

MR MORRIS:   We accept that such a child would meet that terminology.  We do not necessarily accept that everything expressed in the regulations as flowing from that characterisation would ‑ ‑ ‑

HAYNE J:   Regardless of that, does not your argument seek to portray the child or have the child put into a box in which the child is an active litigant against one or other of his or her parents?

MR MORRIS:   We would rather put the child into the box where he or she has a right to be an active litigant, not a compulsion or an obligation, but a right to stand up for his or her own interests, and we make no apology for putting the children in that box.

HAYNE J:   Does that not pre‑suppose that the child is of an age and maturity where the child can adopt such a stance in a fashion that should find reflection in curial proceedings?  That is to say, does not your argument beg the question that is at issue under Regulation 16(3)?

MR MORRIS:   Well, I do not think I think can give your Honour a different answer than that which I gave earlier, which is that we see it the other way around; we see the absence of such a characterisation as a potential reason for limiting the right to natural justice rather than a presupposition that no child, no one who has yet attained the age of 18 years, someone who is 17 years and 11 months, is not to be afforded natural justice unless he or she takes the initiative of applying to the Court and satisfying the Court of the test set out in the regulation.  We say that that, with the deepest respect, would be an erroneous approach.  The correct approach is to assume that the citizen has a right to natural justice unless there are grounds to take that right away in the circumstances of a particular case.

HAYNE J:   The regulations apply, of course, only to children who have not attained the age of 16.

MR MORRIS:   I am sorry, your Honour, yes, and in this context that is so; that is one of the important difficulties of this case, that we have here a girl who is now 15, and no one could sensibly suggest that a girl of 15 is incapable of forming an informed judgment as to what is in her own interests.  Your Honours, let me make it clear that we are perfectly conscious of the sensitivities involved in proceedings of this nature ‑ the difficulties likely to arise, the psychiatric and other problems to which a child may be exposed if that child finds himself or herself in a position of being an active litigant against one or other, or conceivably both parents – but we would urge that those difficulties are no less than the problems for a child who is left, as at least the eldest of these children is, with the plain impression that their future is going to be decided without hearing from them otherwise than by the circuitous method of a public functionary speaking to them and reporting the public functionary’s views as to the strength or seriousness or appropriateness of the views expressed by the child.

Our legal system, for better or for worse, has always presumed that the most effective way for a person’s voice to be heard is through a legal representative whose function ‑ and may I say, whose professional duty is to do his or her best job subject to obligations to the Court and to justice generally to further that client’s interests ‑ and to say that anyone aged 16 or 18 has those rights but children do not is to put children into that Latin category of non‑persons, of people to whom the principles of natural justice simply do not apply.

BELL J: You speak as though the informing principles are to pay no regard to the peculiar and historic nature of this jurisdiction. The reason that the lawyer appointed under section 68L of the Family Law Act is called the independent children’s lawyer, in part, is to avoid the risk that the child might misapprehend that the function of the lawyer is to advance the case that the child wants to advance.  All of this against a background that the court is concerned generally in the exercise of its jurisdiction to make orders having regard to the best interests of the child, not something that will necessarily coincide with the child’s perception of its best interests.  It seems to me that all your submissions fail to come to terms with the nature of this jurisdiction and the fact that we are dealing with children.

MR MORRIS:   If your Honour pleases, I naturally take the force of what your Honour puts to me, but, with respect, one can go too far the other way and one can say that the present structure is not informed by the history and traditions of what is ultimately an adversarial legal system and a constitution which has been held to oblige every court exercising federal judicial power to act in a judicial manner.  We accept that starting with that presumption that courts are to act judicially, some adjustment may be justified in the case of a court exercising a very sensitive jurisdiction like this one.  We would say, again with the deepest respect, it is erroneous to start with the presumption that Family Court proceedings or, more particularly, proceedings involving custody of children or, even more particularly, proceedings involving expatriation of children are in a class by themselves and none of the other rules apply to them.

FRENCH CJ:   Mr Morris, in your further amended application you say in paragraph 2(a)(i) that the first defendant, that is Justice Forrest:

failed and refused to afford the affected children an opportunity to have separate and independent representation. 

I just want to make sure I understand what that ground encompasses because looking at page 3 of your outline of oral argument which you handed up this morning, you say:

It is no part of the Plaintiff’s case that Forrest J. should have made an order for the appointment of an ICL; nor do the Plaintiffs contend that they should have been independently represented at the public expense –

Reading that and the balance of that bolded part of your outline, am I correct in assuming that the focus of your ground (a)(i) is the dismissal of the application for intervention by the litigation guardian, that is to say, the plaintiff, on 16 May?

MR MORRIS:   It is that, yes.  It is precisely that.

FRENCH CJ:   That you say constitutes a failure of natural justice?

MR MORRIS:   We would put it slightly differently, again with deep respect.  We would say that was the refusal.  The failure occurred in earlier stages of the proceedings where the matter was not even considered, where there was no consideration given to whether these children ought to be – or any of them including the eldest – ought to be given the opportunity to present their own case.

FRENCH CJ:   That is to say that an intervention should have been invited or proposed?

MR MORRIS:   That they should have been given the opportunity by notice ‑ ‑ ‑

FRENCH CJ:   How else than by intervention?

MR MORRIS:   No, we accept that intervention would be the appropriate process.

FRENCH CJ:   So at some earlier stage in the proceedings, you say, Justice Forrest, before making the return order, should have given some directions not under 68L(3) but to allow for representation of the children by a litigation guardian in the proceedings?

MR MORRIS:   What we would say is just very slightly different from that.  His Honour should have turned his mind to the question.  His Honour may have been satisfied that an order under 68L(3) sufficiently met the need for natural justice, but his Honour might also have considered that given a child is aged 15, that child should be informed of the right and opportunity to apply to be represented by a litigation guardian.

CRENNAN J:   One difficulty a judge will have in terms of appointing a separate representative for a child is to address his or her mind to directions or orders which will need to be made in order to make that happen.

MR MORRIS:   Yes.

CRENNAN J:   In the absence of there being any request in those earlier proceedings, there would be no material before his Honour which would put him in the position of inviting, if you like, some application that had not yet been made which would be an application of a kind which would certainly require attention to practical matters.

MR MORRIS:   Your Honours, we would suggest, with respect, that the concern just articulated is rather more apparent than real.  Courts of ordinary, general jurisdiction on a daily basis have to address their minds to whether or not a person who is not presently a party to the proceedings may be adversely affected, for example by the grant of an injunction or an order for specific performance or some other sort of mandatory order of that nature, and whether or not that person should be given an opportunity either to join as a party in the proceedings or to intervene in the proceedings.  It is something that happens on a daily basis.

Now, if this case involved an adult who was facing extradition to meet criminal charges or an adult who was facing deportation as an illegal immigrant, was a people smuggler, no one would doubt for a moment that a court looking at the matter would say, well, we cannot make this order without giving that person an opportunity to be heard, because that is the person who will be most directly affected by the order which is proposed to be made.  So we would suggest that the ‑ ‑ ‑

CRENNAN J:   That is often the moment at which Legal Aid, for example, and Legal Aid instrumentality may step in.  These situations are quite distinct from those you are referring to, I would apprehend.

MR MORRIS:   Well, yes and no, if I can be forgiven for saying that.  They are quite distinct in a societal sense, but in a legal sense they have the same consequence that a person is obliged to quit Australia and live somewhere else contrary to their will.  We would say that the position of the child is actually a far stronger one because in the other cases I have mentioned we are talking about a person who is going to be expatriated, to use a neutral term, for some form of wrongdoing, either actual or alleged, whereas these children are going to be compelled to quit Australia for no other reason than that, as between a sparring mother and father, they have different views as to what is in the child’s best interest.

CRENNAN J:   I am not ignoring your point that the Regulation 26 report is a piece of evidence, the point you made in that respect, but do you identify some practical injustice arising in relation to the Regulation 26 report and the way in which it functions in the context of these proceedings?

MR MORRIS:   We would say two things.  The first is that if we are right and it is a component of natural justice, we do not have to identify practical injustice, but we would also say that the role of the report writer is so far removed from that of an advocate on behalf of the child that he or she cannot be treated as anything other than a witness who provides evidence; admittedly, a relevant piece of evidence and admittedly a piece of evidence to which the court may, in an appropriate case, give considerable weight, but nonetheless a witness who is testifying as to a matter of fact which is in issue rather than an advocate presenting the wishes of the children as their representative and challenging the case that is put against them.  That is in the context where the very issue to be determined or relevantly the very issue to be determined turns precisely on what those children’s state of mind is.  Whether they have formed a view to which the court ought to give effect having regard to the terms of the convention and the legislation.

BELL J:   Just looking at the criticisms that you advance to the conduct of the proceedings by his Honour, to use your language, at some point on the hearing of this application his Honour abdicated his responsibility to afford natural justice to children affected, or potentially affected, by a removal order by failing to set up a mechanism for the children to apply to be made parties to the proceedings and to be represented so that they could advance a case in opposition to the order that the central authority sought.  That is so?

MR MORRIS:   Yes, although I should make it very clear when your Honour uses the word “criticism”, none of this, of course, is intended as criticism of his Honour for whom certainly we have the very deepest respect and we acknowledge that these issues were not raised before his Honour and it is extraordinarily difficult for a judge to contemplate issues like this when no one is before the court to raise them.  So when I say criticisms, I mean criticisms of the process rather than of the judge.

BELL J:   Let us just look at the process for a minute.  In the way these proceedings developed at the moment, as I understand it, that it became clear that there was to be an objection to the making of the order –and I think it is the case that the mother in her cross‑application signified a view that the children did not wish to be returned to Italy, their place of habitual residence – at that point the family consultant’s report was ordered with a view to ascertaining the attitude of the children.  Now, amongst other things, in paragraph 27 at supplementary application book 36 one sees an expression of what might be described as concern conveyed to the author of that report by one of the children of concern that her father not learn of the nature of her objection for the reason that her father would not love her any more.  Should the judge at that point have initiated a mechanism for the children to advance a case as parties?

MR MORRIS:   A mechanism for an opportunity to advance a case as parties, not to compel them to do so.  No one is suggesting that any child should ever be obliged to do so, but that they should be informed of their right to do so.  Just as a Supreme Court judge who is asked to grant an injunction will say, well, this injunction will have effect on consequences for A, B, and C.  Those people should be given an opportunity to be heard should they wish to do so.  No one is going to force them to come into the courtroom, but they are going to be given that opportunity. 

To emphasise that none of this criticism is directed as his Honour personally, let me make it clear that under the statutory regime as it exists in the processes of the Family Court as they have been developed, we could not suggest that his Honour stepped an inch outside what was accepted as being the appropriate way of proceeding.  Our submission is that what has been accepted in the past as the appropriate way of proceeding simply does not give sufficient weight to the rights of the children as people who have the benefit, along with all other Australians, to natural justice.

HAYNE J:   What is the judge to do?  Is the judge to bring the children into either open court or into chambers and say, “You can get separate representation to represent your views.  Goodbye”?

MR MORRIS:   That would be a start, your Honour.

HAYNE J:   It is hardly a practical outcome, is it?  What do you do?  Natural justice and procedural fairness is an intensely practical set of issues.  As a matter of practice, what is the judge to do?

MR MORRIS:   We would suggest as a practical outcome that where a court functionary such as the report writer in this case is under the control of the Court, is a person with specialist expertise in dealing with children, is alive to the sensitivities involved in this sort of case, that is the ideal person to say to the children, my function is not to speak as your representative and to advocate your views, my function is to interview you and provide the Court with my conclusions as to your position.  If you are not happy with that, if you do not want me merely to convey to the Court my impressions, if you want to advance your own views to the Court as to why the Court should give weight to your perceptions as to what is in your interest, then you have the right, if you choose, through an appropriate adult to apply to intervene in the proceedings.

BELL J:   What if that specialist with the training that one assumes he or she would have considers that it would be contrary to the interests of the child who has expressed the concerns of the sort that are indicated in the report to have that opportunity?

MR MORRIS:   Your Honour, may I say how thankful I am for that question because in a sense it embraces what I have been trying to articulate from the beginning, that the approach should be an initial one of assuming that the children have the right to be heard but watering down that right where appropriate in the interests of the children, and we would entirely accept that if the report writer were to conclude and provide evidence to the judge that it would be deleterious to the interests of the children even to inform them of their right to independent representation let alone to encourage them to take that course, then that is something which could well affect the practical application of the rules of natural justice.

FRENCH CJ:   This is all outside the statutory function of the family consultant under Regulation 26 which authorises a direction by the judge to the:

consultant to report to the court on such matters that are relevant –

Then that takes us back to the criteria for the exercise of the non‑return discretion under Regulation 16, and in particular, Regulation 16(3)(c).

MR MORRIS:   I accept that as the legislation presently stands no such mechanism is provided for ‑ for a trained person under the Court’s control to exercise those powers ‑ I merely raised it as a possibility in response to

the inquiry as to whether or not it would be appropriate for a judge to call the children into open court or the judge’s chambers and to tell them of their rights in that way.  We would suggest that considering the intensely practical nature of considerations of procedural fairness the most sensitive way of giving the children the benefit of natural justice would be for that to be communicated to them through an officer of the Court who is particularly trained in dealing with children in such difficult situations.  I put it no higher than that.  I am not suggesting for a moment that the legislation, as it presently stands, would even contemplate such a role on the part of the consultant.

If it is said against us that what we are arguing in favour of is impractical because there is no way in which it can be done, that is at least one way in which it can be done, and I am sure there are minds far greater than mine that could come up with equally or more attractive ways.  But anything would be better than a situation where children who do not have the same degree of initiative and sense and, frankly, intelligence as the 15 year old in this case, it does not even occur to them that they would have the opportunity to intervene, to approach a close relative who is not involved in the bitter dispute between the parents, to ask that person to make the arrangements, and by that mechanism to put themselves in a position to articulate their views in the Court with a view to persuading the Court of one thing only, and that is that their views warrant the Court’s consideration as views which meet the test in the regulation as views which are not skittish or childish or juvenile, but views with are sufficiently weighty and of sufficient significance to attract the Court’s consideration.  We put it no higher than that.  Your Honours, unless there is something else I am not sure that I can be of any further assistance.

FRENCH CJ:   Thank you, Mr Morris.

MR MORRIS:   Thank you, your Honours.

FRENCH CJ:   Yes, Ms Brasch.

MS BRASCH:   Your Honours, we adopt the submissions made by my learned friend, Mr Morris, and have nothing further to add.  May it please the Court.

FRENCH CJ:   Thank you, Ms Brasch.  The Court will adjourn briefly to consider what course it should take in this matter.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

FRENCH CJ:   Solicitor‑General for Queensland.

MR SOFRONOFF:   Your Honours, in our respectful submission, at the heart of the disposition of this matter is this consideration, that the position of children involved in litigation in which their parents are the two contending parties cannot be equated to that of capable adults who might find themselves in a position where a court order in proceedings to which the adult is not a party is affected.  As we say in paragraph 2 of our oral outline, that is so for reasons that are so obvious that it goes without saying, but could I say them. 

There are broadly two reasons.  The first is that children are not presumed to have capacity as adults are.  They lack capacity, that is to say, legal capacity, but, more significantly, children may lack the necessary development and thinking to be able meaningfully to take part in litigation and, indeed, their development may be such that it would be abhorrent to consider them as persons who would naturally become parties to litigation between their parents with the requirement to give evidence and be cross‑examined and so on.  The second large reason why their position cannot be equated to that of capable adults is that children are almost invariably the subject of control by others who owe them legal duties and are likely to be vulnerable to those others.  As a consequence, it is not easy to equate the position of such a person, a child, taking steps in litigation with the position of an adult acting free and seen to be acting free of all influence.

In our respectful submission, the Family Law Act addresses these particular characteristics of children involved in litigation in the Family Court by making provision to ensure that in the most appropriate manner for a given case the views of the children are taken into account by a judge making an order affecting the children and taken into account only to the degree that experience and the evidence in the particular case warrants.  We have set out in paragraph 3 of our outline some provisions of the Act which bear upon this.  Could I take your Honours to those.  If your Honours would go first to section 60CD.  It is contained in Part VII which deals with children and custody of children.  Subparagraph (1), the last sentence ‑ ‑ ‑

HAYNE J:   Why is it engaged in a case of this kind?

MR SOFRONOFF:   It is not engaged in this proceeding, but similar analogous provisions relating to the obtaining of reports and so on are.  But more importantly, your Honour, the submissions that have been made by the plaintiff in respect of this case of course have implications for all cases in the Family Court in which orders might be made affecting a child because the perfectly general submission is made that it is the duty of a judge hearing a matter in which an order might be made that will affect the child by ordering the child to be sent to another country or, in our submission, any order which could seriously affect the position of a child, such a judge would be obliged, if the plaintiff’s argument is accepted, to consider from time to time separate representation not under the statute, but in general and consequently it is material for this Court to consider how, in general and also specifically with respect to convention cases, the Family Law Act makes provision to ensure that where appropriate the views of the child are placed before the court. 

Section 60CD is the first general provision and your Honours can see it makes reference to three things.  The first, a report prepared by a family consultant, to which I will come.  Secondly, the possibility of the appointment of an independent children’s lawyer and, thirdly, “by such other means as the court thinks appropriate”, that is to say, no provision of the Act would tend to imply that the rules of procedural fairness, insofar as they affect children, have been abrogated.  If your Honours would look at the preceding section, section 60CC, in cases under Part VII one of the matters that the court must have regard to is in subsection (3):

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views –

which is a reinforcement of the submission I made earlier.  If your Honours would then go to section 60CE:

Nothing in this Part permits the court or any person to require the child to express his or her views in relation to any matter.

That is one of the central provisions in this part, in our submission, relevantly for this matter because it is an unstated proposition – well, it is stated here, if one looks at it that way – that the notion of children getting into the witness box to give evidence in a case in which their parents are the contending parties is abhorrent.  If your Honours would then go to section 62G.  Section 62G makes provision for the ordering of a report by what is called a family consultant.  If your Honours would look at section 11A.  Section 11A describes the functions of family consultants.  Section 11A(b):

assisting and advising courts, and giving evidence, in relation to the proceedings –

Who are family consultants is dealt with in 11B:

A family consultant is a person who is:

(a)appointed as a family consultant under section 38N –

Could I ask your Honours to go to that.  By 38N family consultants are appointed and they are officers of the court, subsection (2).  The provision in 62G relating to applications under Part VII are mirrored in the convention regulations, to which I will come, and indeed, as your Honours no doubt are aware, the judge made an order in this case for the provision of such a report.  But your Honours will notice section 62G(3A), family consultant is obliged to ascertain the views of the child in relation to that matter and report upon those views, subject to the exception in subsection (3B).  If your Honours would then go to section 68 ‑ ‑ ‑

HAYNE J:   Before you do that, does not 62G(3A) demonstrate a more fundamental point?  No doubt litigation under the Family Law Act can include litigation that will affect the interests of a child; so much is self‑evident.  One cannot proceed from the observation that the interests of the child are affected to a conclusion about the application of procedural fairness.

MR SOFRONOFF:   That is right.

HAYNE J:   One cannot because the intermediate step that is assumed is that the child, firstly, has a view, second, that the view is one which bears upon the question of interest.  So much is made evident by 62G(3A) expressly providing, as a statutory qualification to that, here is a case where views, if known, are to be recorded and expressed.

MR SOFRONOFF:   Your Honour will have noticed in that respect in 60CC(3) that the views expressed by a child obtained in that way and others are to be taken into account subject to the child’s maturity or level of understanding and to the degree that the court thinks it relevant to accord them weight; that is to say, one does not start with the proposition that a child should always be separately represented by his or her own team of lawyers unless special circumstances negate that.  Rather, one starts, as the Family Law Act does, with the position that in general they ought not be parties but can become parties.  If your Honours would then go to section 92.  Section 92(1) makes provision for a person to apply for leave to intervene.  In relation to cases where a child is at risk, 92A makes provision for a category of persons who are entitled to intervene.

HAYNE J:   It is interesting that the persons entitled under 92A do not, I think, include the child.

MR SOFRONOFF:   Yes, that is right.

HAYNE J:   A whole raft of people except.

MR SOFRONOFF:   That is right.  In respect of section 92 and seeking leave to intervene, if the person seeks leave to intervene as a case guardian for the child, Rule 6.08 of the Family Law Rules make provision for the appointment of a case guardian and such a person must apply to be appointed as a case guardian; relevantly, your Honours, 6.08(1).  Rule 6.08(2) would permit a child who is capable of conducting the case to do so herself or himself.  Rule 6.09 qualifies the persons who may be case guardians.  Rule 6.10 makes provision for a person to seek appointment as a case guardian.  No case guardian has been appointed in this case.

Then, relevantly, in the High Court Rules – because we are here not in a proceeding under the Family Law Act – rule 21.08 provides in the first sub‑rule that:

A person under disability shall commence or defend a proceeding by litigation guardian.

The next two sub‑rules deal with agency, and then the next three sub‑rules deal with the possible appointment of such a person under State or Territory legislation.  The one after that deals with post‑proceeding disabilities – that is to say, disabilities that arise:

after a proceeding has commenced . . . the Court or a Justice may appoint a person to be litigation guardian.

And 21.08.6 provides for the general power to “appoint or remove a litigation guardian”.  No person has been appointed in this Court under that rule.

Then finally in this catalogue, in the convention regulations, Regulation 26 is the analogue of 62G.  Regulation 26 makes provision for the Court to direct the family consultant who, as your Honours have seen, is an officer of the Court, to prepare a report, and there are ancillary powers conferred upon the Court which permits the Court to compel the attendance of persons upon the family consultant so that that can be done.  Those are, therefore, the means by which the legislature has enacted in the special case of children the means by which their views can be obtained where those views are relevant to be taken into account, and indeed, to consider the anterior question, whether those views would be relevant to be taken into account by reason of factors such as immaturity.

Could I take your Honours then to the proceedings in this case in order to try to illuminate how all of that worked in this case?  The second defendant made an application for an order for the return of the children to Italy, and upon that happening the mother filed pleadings alleging a number of defences, relevantly that the children objected to returning.  As a consequence of that, if your Honours would go to the supplementary book at page 16?  Page 16 is the application by the second defendant for an order under Regulation 26 that a report from a family consultant be obtained.  The terms of the report are identified – your Honours will see subclause (a) – whether the children object to being returned.  If they do object, the reasons and whether the reasons:

are appropriate and based on the child’s own view.

The degree of maturity of the children and as to whether it would be appropriate to take account of their views.

What is the subject matter of the inquiry is not whether the children object to a permanent return to Italy but whether the children object to return to Italy with a view to their future custody being determined in that country.  That is the subject matter of the inquiry for the family consultant.  She, Ms Egan, prepared a report.  Her curriculum vitae is at page 39.  As one would expect of a person appointed an officer of the court under the Family Law Act, she has considerable experience in the field, as we can see.

She then gave her report.  Relevantly, she had interviewed, of course, the parents – we can pass over that – and then turned her attention to the children at the foot of page 33.  She described the older two children.  In paragraph 16 your Honours will notice that at the date of this report, at the date of the proceedings which are supposed to be prompt, the oldest child was not 15; she was 13.  She then described the younger two children at paragraph 18.

At paragraph 20 she records that she informed the girls about the nature of the decision that was going to be made – that is to say, not as to permanent custody but as to going back in order to have custody determined – and then she expressed their views at paragraph 21 and following.  She then, having recorded what each of them had said about the prospect of return, at paragraph 30 and paragraph 31 on page 37 dealt with the cognitive ability of the four girls to give meaningful thought and to express meaningful opinions, and I invite your Honours to read 30 and 31.

For her part, the mother also engaged in the process, as one would naturally expect, and she obtained a psychologist’s report upon the same issue, which your Honours can see beginning at page 43.  This psychologist had the advantage of being fluent in Italian.  He had qualified in Italy and had relevant experience over there.  The purpose of his report might be a little irrelevant.  That will not engage your Honours today, but we can see from the first paragraph, the last four lines, that perhaps he was not adequately instructed, but nothing turns on that because ultimately ‑ although in paragraph 3 of his report he appears to be addressing a permanent return rather than the particular return under the convention ‑ his report, if I have read it correctly, is not greatly different from the report of Ms Egan.

If your Honours would go to page 46, at about line 37, in about the eighth line of that paragraph beginning with the words “It seems also”, if your Honours would read that.  Then the psychologist reported their views about their preferences and the reasons for them.  You can see an example in the fourth paragraph of page 47.

Because the mother had raised as a defence the defence that the children objected to returning and therefore sought to engage that provision of the statute, his Honour Justice Forrest had to consider these matters.  Your Honours will see his consideration at supplementary appeal book page 101 and following.  For convenience could I tell your Honours that there were two other defences raised; one was that the father consented, which is a complete defence, the mother was not accepted on that, and the second is that the father acquiesced in their staying here and the mother was not accepted on that.  So there remained the question of the children’s attitude and as to that, the judge first had to determine whether their views should be taken into account given their maturity.

He then, from paragraph 112, began his analysis of the report of Ms Egan and recorded them, in our respectful submission, accurately and concluded, for reasons which he explained in 119 and 120, that he did not find that the girls had reached the relevant age or degree of maturity which would make it appropriate to take account of their views.  Now, he might be wrong about that, but that would be a House v The King appeal arising from a failure to exercise a discretion because of an error of fact.  We would not be here.

Then at page 103, paragraphs 125 to 127, he concluded that even if he was wrong about that, he would still have exercised his discretion in favour of a return to Italy for reasons that he expressed there.  He then, at paragraph 128, made his order for the return conditional upon the father making financial provision for the mother in the sum of $8,000 for her immediate support because one of her concerns was her inability to support herself in Italy if she went back with the result that the order was made. 

The orders that were relevant to this proceeding your Honours will find firstly at page 72 of the supplementary book.  That is the first order that Justice Forrest made on 23rd June.  So the date in the application is incorrect.  Then that was amended but not in any way material to this case and your Honours will see the amendment at page 193.  So that is the order of 24 June, and those are the orders that are part of the subject matter of this case.

So what your Honours have seen is that nobody suggested to the judge when he was first hearing the matter over a year ago now that the children’s views could only be ascertained validly by having lawyers appointed for that purpose.  He instead proceeded in a conventional way for the Family Court and obtained the relevant reports and then acted upon them.  Nobody suggested that that was an inadequate way in which to proceed and even today no complaint is made about the substance of those reports.  Both experts had interviewed all four children in order precisely to ascertain their views so that they could be put before the court.

The mother then appealed to the Full Court which dismissed her appeal on 5 September 2011.  That is in supplementary book 109 and following.  It is not necessary for your Honours to dwell on the court’s reasons.  Her appeal was a narrow and technical one relating to a complaint that she had not been able to lead evidence relevant to proof of the husband’s acquiescence to the trip to Australia and the Full Court dismissed the appeal on that ground.

Then on 16 May the mother sought to be heard on an application to discharge the order to return the children.  That application was made under Regulation 19A of the convention regulations.  Could I ask your Honours to look at that?  Regulation 19A permits a party, the applicant or the respondent, to the proceeding to apply for the discharge of the order.  So in that sense these orders are interlocutory.  Subsection (2) provides the grounds upon which that can be done.  Your Honours will notice (2)(d):

the day on which the application for the discharge of the return order was made is more than 1 year after the return order was made or any appeal in relation to the return order was determined.

So we are reaching that stage – I think we have reached that stage now – where at least one of the grounds will now have been triggered.  That raises a discretion.  It does not answer what ought to be done but because of the time, that will now have been triggered.  In any event, on 16 May the mother made an application and the plaintiff sought leave to intervene in the mother’s application on that day.  The learned trial judge declined to hear the mother because she was then in the position of having failed to obey a court order that she produce the children so that they could be returned to Italy and his Honour gave reasons for his refusal to hear the mother on that day.

If your Honours would go to supplementary book page 67 at paragraph 13.  His Honour observes that he had been informed at that morning’s hearing that the children had not been delivered pursuant to the order of 4 May.  The mother’s counsel informed the court that the mother did not know where they were and the plaintiff’s counsel also appeared on that day, as I said, seeking leave to intervene in the mother’s application for discharge.  The judge then at page 69 between lines 10 and 20 dealt with the position when a court is being asked for relief by a person who is in contempt of an order and at paragraph 27 he therefore declined to hear the mother’s application for discharge.  The plaintiff herself did not have an application for discharge.  She rode on the back of the mother’s application and that application not being heard, there was nothing more to hear.

BELL J:   Under Regulation 19A the only mechanism was to intervene in the application brought by the mother, is that right?

MR SOFRONOFF:   Yes.  So we are here today as a result of his Honour’s refusal to hear the mother and as a consequence, the plaintiff on that day.

FRENCH CJ:   Just to tie up one loose end.  At 182 and 183 of the supplementary appeal book there is reference to Mr Page was representing the mother, is that right?

MR SOFRONOFF:   Yes.

FRENCH CJ:   He asked for the application to be dismissed and his Honour said, yes, so be it, so that application was dismissed.

MR SOFRONOFF:   Yes.

FRENCH CJ:   But the application which Mr North was bringing on behalf of the plaintiff was simply not heard?

MR SOFRONOFF:   Your Honour, I am not sure whether it was not heard or also dismissed as what your Honour put to me is correct.  His Honour declined to hear the primary application and therefore there was nothing to hear from the plaintiff.  What his Honour ought to have done, with respect, was adjourn the mother’s application to a date to be fixed for a time when she will have produced the children.

FRENCH CJ:   There is no formal order representing the disposition of those two applications?

MR SOFRONOFF:   I think there is one, your Honour, somewhere dismissing those two applications.

FRENCH CJ:   Dismissing both of them?

MR SOFRONOFF:   But that was done on the application of counsel for those two litigants and technically, because it was apprehended, there would be no order to appeal if they wanted to appeal.  Of course, there would be an order.  The order adjourning the matter would be the order that would be the subject of appeal.  So technically it has been dismissed.  They are interlocutory so nothing turns on that.  They are not barred and for the purposes of this Court determining the matter, in our submission, nothing turns on that.

Then, most recently, the police recovered the children on 21 May and on the same day this proceeding was commenced.  If your Honours would go to the primary book at pages 17 and 18, if your Honours would read paragraphs 13, 14 and 15.  Paragraphs 13 and 14 relate matters that were the subject of evidence before Justice Forrest.  Paragraph 15 is evidently a statement of the reasons why this proceeding has been brought – this is the oldest girl speaking – and your Honours will see in paragraphs 15(c) and (d) that there is a sense that her voice has not been heard, but in no relevant respect is there any suggestion that she has not been heard.  All of the matters of substance have been put forward and the judge was obliged, as a matter of statute, to consider all of them.

So the mother then brought an application again for discharge of Justice Forrest’s orders under 19A and in the alternative, discharge of so much of his Honour’s order that required the children to live with foster parents.  His Honour also entertained on that day an application by the plaintiff for two things.  One was an application by her to intervene in the discharge proceedings and the second is a separate application of her own to be heard as a person who, in lieu of the mother, if his Honour was minded that way, could have the care of the children pending the resolution of the litigation. 

In the result, his Honour ordered that the children stay with the mother.  He removed them from foster care and the mother has custody of them.  Consequently, it was not necessary to deal with the plaintiff’s application of her own for custody, that was a fallback position, but there remained the two applications for discharge of the orders.  I am told – and I cannot find this in the reasons – that his Honour intended to adjourn the

hearing of the applications for discharge until after this proceeding has been dealt with so that it could be dealt with if it had to be, but that the order that was actually taken out by a slip dismissed those applications.  Again, nothing turns on that, in our submission, because they can be re‑enlivened by fresh applications or if it is common ground that that was a slip, the order can be amended. 

Could I take your Honours to Justice Murphy’s reasons then which bear upon today’s proceedings.  I think we annexed them to our oral outline.  If your Honours would go to paragraph 28:

The maternal aunt, independent of the application for her to be made a case guardian as earlier referred to, seeks orders which mirror those orders sought by the mother.

If your Honours would go to paragraphs 8 to 17.  Could I invite your Honours to read those two pages where his Honour deals with the question of the position of the plaintiff seeking leave to intervene in a case which the judge apprehended was one where all of the material was already before him?

FRENCH CJ:   Now, what do you use that for?

MR SOFRONOFF:   Well, your Honours, two things; partly to show that the notion that the children have been denied procedural fairness cannot be substantiated because all of the material concerning their adverse wishes relating to return have been placed before the court and there is nothing that is been said today or in any evidence – and today is the day to say it, if it exists – nothing has been said to suggest that anything more would have been said or said differently. 

The second matter is that this whole proceeding here lacks utility, in our submission, because successive applications for discharge have been made.  The complaint here is that Justice Forrest should have entertained a third party, namely, the children by their own lawyer, yet an application to that very effect has been made and dealt with and refused on the merits.  As of yesterday it is the subject of appeal, so we are not finished, but what this Court is being asked to decide is something that has really been overtaken by events, namely, by the fresh applications that have been made and determined by Justice Murphy.  Those are our submissions, your Honours.

FRENCH CJ:   Thank you, Mr Sofronoff.  Mr Doherty.

MR DOHERTY:   Your Honours, could I firstly apologise for not having an oral outline.  We adopt the submissions of my learned friend, Mr Sofronoff, in relation to all the matters that he addressed your Honours

on.  Could I briefly add some practical considerations that apply to this particular case?  It is instructive to read paragraph 23 of the family report of Ms Egan that was passed over, that is, at page 35:

They stated –

that is, the children stated –

that if the Court ordered they return to Italy for a decision about the parenting issues to be made in the Italian jurisdiction they did not want to live with their father in the paternal family villa.  They said that they would accept returning if their mother accompanied them.  They identified a family friend with whom they and their mother could live.

It makes one wonder whether they are objecting to being separated from their mother or whether they are objecting to returning to Italy.  I would submit the former.  They will never have their right to be heard taken from them.  This is really a venue issue under the convention.  They are not denied a voice in Italian proceedings.  No doubt there are Australian children in Italy who are subjected to the same type of convention applications as is happening here.

The mother had never sought to bring any application in Italy prior to coming to Australia to vary the custody orders that she entered consensually in November 2008.  The children had lived all their lives in Italy until May 2010.  The father, my client, has done nothing wrong.  He has complied with all the orders that have been made and he is entitled to have his interests protected in the correct venue.  They are our submissions, your Honour.

FRENCH CJ:   Thank you, Mr Doherty.  Yes, Mr Solicitor.

MR GAGELER: Your Honours, the Attorney‑General’s intervention was strictly limited to defending the validity of section 68L(3). That issue having fallen away, I have nothing to add to our written submissions. May I give your Honours just one additional reference within the Act to relevant provisions – additional, that is, to those mentioned by Mr Sofronoff? Your Honours should have regard to section 100B(2). If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Solicitor‑General for South Australia.

MR HINTON:   If the Court pleases, we make no oral submissions.  We are content to rely upon our written submissions.

FRENCH CJ:   Thank you.  Solicitor‑General for Western Australia.

MR DONALDSON:   Your Honour, we are in the same position as the Commonwealth in the sense that we intervened on an apprehension that the issue being advanced by the plaintiff was as to the validity of 68L of the Act.  Can I say, however, your Honours, in light of the submissions which the plaintiff has made this morning which are of a broader nature and which have implications for the State, may I make one or two further submissions?

Your Honour, this matter essentially involves Regulation 16.  The submissions which have been advanced by the plaintiff this morning, in my respectful submission, do not pay sufficient regard to a centrality of the inquiry that was before the Court and is necessarily before the Court in an application of this nature.  In this particular matter, your Honours, there was satisfaction of subregulation (1) and having regard to (1A) of Regulation 16.

FRENCH CJ:   How does this impact on the interests of the State?

MR DONALDSON:   Your Honour, if the broad proposition which has been advanced by the plaintiff, which is, as we have understood it, in any circumstance where the – and it could go as far as any circumstance in which the interest of a child in a custody dispute arises – that a child has a right to be separately and independently represented; that is a broad proposition, your Honour.

Can I say it is a proposition which, in our submission, does not arise in any event having regard to Regulation 3, which I was going to take your Honours to; that is, if I might, without wishing to avoid your Honour’s question, simply say if one has regard to (c) of Regulation 3, it can be seen there that that, your Honour, was the issue in relation to which the independent consultant’s report was ordered.  The particular order here, which is in the supplementary bundle, your Honours, at page 23 addresses the family consultant specifically to that matter.  The commissioning of that report was a matter peculiarly within the power of the court to order, it was controlled by the court, received by the court, and so the question really in this matter, your Honour, was whether there was any further obligation imposed upon the court by reason of principles of natural justice.

FRENCH CJ:   This is a matter of federal law, is not it?

MR DONALDSON:   In our submission, your Honour, when one has regard to subsection (3) there is no further obligation.  May it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Morris.

MR MORRIS:   Thank you, your Honours.  There are two matters addressed by our learned friend, Mr Sofronoff, which we should like particularly to deal with.  The first was the proposition that, as he put it, children cannot be equated with capable adults.  The legislation, by which I include the regulations, contemplate that there is a class of children who satisfy three criteria; firstly, of having a view, secondly, of having an age and a degree of maturity at which it is appropriate to take into account that view, and thirdly, of having that view in such a way as to involve a strength of feeling beyond the mere expression of a preference or an ordinary wish.

The legislation not only contemplates the existence of such children, but specifically enables the views of those children to be taken into account as a basis for refusing expatriation.  What our learned friend, Mr Sofronoff, and indeed the various interveners do not address is how legislation which contemplates the existence of such a class of persons can afford them natural justice if the only mechanism is that their views are communicated to the court by someone who has no interest in advancing their position, and indeed, is prevented by the legislative regime from acting merely as their advocate to convey their views.

We have said, and we certainly do not resile from saying, that the report that was made in this case is an entirely proper report, having regard to the legislative scheme under which it was made.  Mr Sofronoff has taken you to what the report says and the court is given the benefit of the report writer’s opinion, sifted through the filter of a functionary’s judgment as to the weight or the strength or the reliability of the opinions which have been conveyed.  One sees that particularly, without asking your Honours to read it again, in paragraph 21 of the report on page 35 of the supplementary application book.

Accepting the potential existence of a child who meets those three criteria, the Court is not given the benefit of advocacy on behalf of that child, but is given the benefit of a non‑judicial officer’s opinion as to whether or not the child has a view which satisfies the statutory criteria.

Our learned friends refer to the possibility that a view may be communicated to the court by a lawyer appointed under the legislation, but it now seems to be common ground right across the Bar table that such a lawyer could not on any view be regarded as an advocate for the child and the appointment of such a lawyer could not be regarded as a way of addressing an absence of natural justice.

Then our learned friend, Mr Sofronoff, says of course the mother was there and the mother’s interests to some extent coincided with the children and therefore the children’s views were being put by the mother as well.  But the counsel appearing for the mother did not hold a brief on behalf of the children, they were appearing for the mother.  It is erroneous to assume that the interests of the children and of the mother are coextensive and, in fact, again, as Mr Sofronoff has drawn attention to, what actually occurred in this case is that at the initial hearing the mother in her final submissions through her counsel did not particularly push the issue of the children’s interests.  Indeed, as Mr Sofronoff identified on page 101 of the supplementary application book, paragraph 113, Justice Forrest noted that:

At the end of the trial, I did not really understand the mother to be relying strongly on this defence.

So one cannot say that the mother through her counsel was there advocating the separate interests of the child and, indeed, again, as Mr Sofronoff has drawn to your attention, at the hearing on 16 May 2011, as we see at page 69 of the supplementary record, paragraphs 25 to 27, the mother had so conducted herself as to be held to be disentitled even to be heard by the court.  That certainly was not conduct engaged in by an advocate representing the child’s interests.  So our submission is that whilst ‑ ‑ ‑

FRENCH CJ:   Just on a matter of fact, the mother was not represented at the substantive hearing before Justice Forrest, was she?

MR MORRIS:   No, she was not legally represented.  No, she had no counsel at that hearing.  There was then an appeal at which she was represented by counsel.

FRENCH CJ:   Yes.  Mr Page represented her.

MR MORRIS:   Yes, that is so.  So when our learned friend talks about it being incorrect to equate a child with a capable adult, we accept that there are differences, but the starting point, we would respectfully submit, is that this is legislation which contemplates the existence of children who have a voice, who have an opinion, whose opinion is given particular weight by the legislation as a ground for refusal and who should, therefore, have an opportunity to convey that opinion to the court in the way that citizens ordinarily are given an opportunity to convey their opinion to the court, unless there are reasons not to. 

If, as our learned friend says, it is abhorrent to do it in a particular case, because the child is vulnerable, the child has been got at by one parent or the other or because it would involve the child in giving evidence, effectively, against one parent or the other and being cross‑examined on that evidence, then that may be a very good reason to reduce the standard of procedural fairness.  But we would urge that this Court should regard procedural fairness, particularly in the case of children, as a gold standard in respect of which one begins at the highest level and works downwards rather than begins with the assumption that there is to be no procedural fairness unless one can somehow get before the court and somehow convince the court that the process which has been adopted does not allow a child who meets each of the three criteria I have mentioned, to allow their voice to be heard.

The other point that Mr Sofronoff canvassed at some length was the potential for the outcome in this case to have implications for all cases affecting children.  If that is the consequence, then it is not one which we resile from or apologise for.  If the need for children to have the opportunity to be legally represented independently of the parents is the only way of affording natural justice in the circumstances of a particular case, then so be it, even if the heavens fall.  But we would urge that this is a particular, possibly and extreme example of why particular attention should be given to the need for procedural fairness. 

Whether a child will live with mother or father is no doubt a tremendously important thing for any child, but doing so in their own community, in their own country with their own friends and family around them is something of an order of magnitude different from being compelled to move to another country and to subject their entire future to the judiciary of that other country to determine in accordance with the substantive law and the processes of that country.  If there is any situation within the contemplation of Family Court proceedings which cries out for the highest degree of procedural fairness, it is the situation which has on the one hand those extreme implications and on the other hand a legislature which has accepted, by adopting the international convention and indeed an international unanimity in making the convention, that a particularly relevant factor in such cases is that if there is a child who has a view and who is sufficiently mature to form that view and whose view is of sufficient strength, that is a factor which should be taken into account. 

We have the legislative framework in which children’s voices have a particular relevance that they may not have in other proceedings under the Family Law Act.  The issue is how those voices should be heard and to say a public functionary can interview the children and report to the court not the words of those children, not what the children said, not a verbatim transcript of the children’s views as expressed to the interviewer, but that person’s impression and sense of whether what the children want and how much weight should be given to those views, that is not, in our submission, in any sense allowing the children to be heard.

HAYNE J:   Mr Morris, do you say anything in answer to paragraph 16 of the oral outline of Mr Sofronoff, which is that the relief claimed in

paragraphs 2(c) and (d) now lacks utility having regard to the subsequent proceedings in the Family Court?

MR MORRIS:   Yes, indeed, your Honours.  The suggestion that it lacks utility is put on the basis that – in a very technical sense.  Mr Sofronoff says the orders made were at all times interlocutory, and we accept that in a very technical use of the word they were interlocutory because one can always apply to have them discharged, just as an order of bankruptcy can be discharged, but to say that because one can go back to the court and ask for an order to be discharged there is no utility in a conclusion that the order should never have been made in the first place is to say that one should – and particularly that these four children – should be left in the position of having to persuade a court to alter its initial view rather than be in the position which, in our submission, they ought be in of approaching the court on a neutral basis where no decision has been made regarding their future and where such a decision will be made for the first time, properly taking into account their views, otherwise than through the filter of a third party functionary reporting those views to the court.

CRENNAN J:   What about the point that as of yesterday, as I understood Mr Sofronoff, there is now a further extant appeal in the matter?

MR MORRIS:   Yes, I must admit, and I blame no one for this, that came as news to me.  I was not aware that that was the case.  But even so, that is an appeal against a refusal of the mother’s application, the mother’s application being an application to reopen proceedings which have already been decided, and the aunt’s application to be joined as an intervener on behalf of the daughters.  That is quite different again, we would say, from the situation which the children should be in of never having had an order made against them lawfully for their expatriation to Italy because they were not heard.  We say there is all the utility in the world in determining that the order which has been made should not have been made rather than leaving them in the situation of having to apply to have that order rescinded or redacted on the basis that there are changed circumstances or more than 12 months has elapsed or any of the other grounds raised in the legislation.  Those are our submissions.  Thank you, your Honours.

FRENCH CJ:   Yes, thank you, Mr Morris.

MR SOFRONOFF:   Your Honours, would it be appropriate for me to hand up a copy of the notice of appeal?  It is the plaintiff’s notice of appeal.

FRENCH CJ:   Yes, I think that would be, thank you.

MR SOFRONOFF:   Your Honours, the other matter I wanted to raise was this, that if this becomes a case in which your Honours come to a prompt

view of its disposition one way or the other, it would no doubt be extremely helpful to the parties for your Honours to make an order even if the reasons are delayed.

FRENCH CJ:   Yes, thank you, Mr Solicitor.

MR SOFRONOFF:   Thank you, your Honour.

FRENCH CJ:   We will adjourn this matter until 2.15 pm.

AT 12:30 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ: In this matter, the second defendant submits that steps taken by the principal parties to the action in this Court in proceedings in the Family Court of Australia have deprived the action in this Court of practical utility. Whether or not that is so, the Court is of the opinion that the plaintiffs have demonstrated no want of procedural fairness in the making of any of the challenged orders of the Family Court of Australia. To the extent to which the plaintiffs maintain to their challenge to the validity of section 68L(3) of the Family Law Act 1975, the Court is of the opinion that the challenge fails. The proceedings are dismissed. The Court orders that RCB as litigation guardian pay the costs of the fourth defendant. The Court will publish its reasons at a later date. The Court will now adjourn until 10.15 tomorrow morning.

AT 2.16 PM THE MATTER WAS ADJOURNED