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 126

Replacement Transcript

[2012] HCATrans 126

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

Plaintiffs

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

Application for an order to show cause

KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 25 MAY 2012, AT 10.16 AM

Copyright in the High Court of Australia

__________________

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

MR M.R. GREEN:   May it please the Court, I appear with my learned friend, MR G.J.D. DEL VILLAR, on behalf of the second defendant.  (instructed by Crown Law (Qld))

MR K.N. WILSON, SC:   May it please the Court, I appear for the third defendant.  (instructed by King Legal)

MR M.F. WILSON:   If it please the Court, I appear for the fourth defendant.  (instructed by Porta Lawyers)

HER HONOUR:   Thank you.  Mr Del Villar, I understand that a decision has been made by the Director‑General as to whether to attempt to summarily dismiss the matter?

MR DEL VILLAR:   That is correct, your Honour.  We are not going ahead with the summary dismissal.  That does not necessarily mean that we do not have objections to the litigation guardian proposed to be appointed.

HER HONOUR:   There has been no order and I do not understand that the rules comprehend that an order is required in every case, but if there is a dispute, perhaps it is a matter I ought to take up with Mr Morris.  In any event, we will need to discuss today just what is being referred in and have a discussion about the grounds, I think, Mr Morris.

MR MORRIS:   Yes.

HER HONOUR:   Thank you, Mr Del Villar.  Firstly, the question of representation.

MR MORRIS:   Yes.  Your Honour, the situation is this.  We have received correspondence from those who instruct our learned friend.  I think it would be overstating to say it objects to the litigation guardian but it draws attention to a passage in evidence in the Family Court when my clients were not present or represented where a witness, who we do not know, expressed concern that the aunt may know about the children being concealed.  

We frankly do not think that there is anything that could be regarded as admissible evidence to suggest that she is not a proper person, but we are not going to take that point.  If there is some legitimate concern, we will address it.  The difficulty is that that is the only matter that has been raised.  There seems to be no suggestion that she lacks the proper confidence of the children.  There seems to be no suggestion that she is not a fit and proper person in a financial or some other sense. 

As we understand the rules, there is no requirement for an application for the appointment, but, again, we do not want to take any technical points if our learned friends wish either now or at some stage to raise an objection to her continuance.  Our real difficulty, as your Honour will understand, is that taking on responsibility as litigation guardian is an onerous role, particularly given the potential cost consequences of that position. 

We have not been able to identify another person who (a) has the confidence of the girls, (b) is prepared to take on the risks and responsibilities and (c) would be better placed than the aunt.  I expect that the mother or the grandmother or the great grandmother would be happy to do so, but there would be obvious concerns about appointing one of them as litigation guardian.  So if there is a genuine concern other than someone expressing an off‑the‑cuff opinion, then we will deal with that, but at the moment we do not see any need either to bring an application or to resist one.

HER HONOUR:   Yes.  I think you are right.  The proceedings can be commenced by a litigation guardian without the requirement of an order, but one can be made under rule 21.08.6 if so required.

MR MORRIS:   Yes.

HER HONOUR:   If there is an issue, a real issue about this, an application could be made.  I could hear it on Monday or Tuesday of next week if there is a real issue about this before I travel to Canberra for the next sittings, but I will leave it in the parties’ hands.

MR MORRIS:   Thank you, your Honour.

HER HONOUR:   For the moment, if no application is made, I will take it that the Director‑General does not continue to contest the appropriateness of the guardian.

MR MORRIS:   Thank you, your Honour.

HER HONOUR:   Now, could we discuss what is to be referred in the grounds.  Are you proposing any amendments to the grounds given for the orders to show cause?

MR MORRIS:   I am not sure whether your Honour has seen our notice of constitutional matter.

HER HONOUR:   I have, yes.

MR MORRIS:   I do not think any formal amendment to the grounds is necessary, but it will certainly incorporate the constitutional argument foreshadowed.

HER HONOUR: I wondered whether ground 2(a), which is the central ground raising the question of the requirement that the Family Court ought to have ordered separate representation. It would probably encompass the issue about section 68L of the Family Law Act, would it not?

MR MORRIS:   That is what I thought, yes.

HER HONOUR:   Yes.  Ground 3, I am not really sure whether this ground really hits the mark.  I was not really clear about the power that was referred to that the regulations give which is said to be contrary to Chapter III.  Is it a power to deport without hearing from the parties?

MR MORRIS:   Your Honour, it is probably a question of expression.  The power to order that the girls be deported is conferred by the regulation but, of course, the provision restricting their right to legal representation is contained in the Act.

HER HONOUR:   Yes, that is right.  I mean, in a way you are relying upon the regulations for giving the discretion which is relevant to the question, so I really wonder whether there truly is a challenge to the regulations.

MR MORRIS:   The answer is no, so long as the regulations are not governed by the section 68 limitation on representation.  So I guess in a sense I am accepting what your Honour says, that ground 3 should be amended to make that clear.

HER HONOUR:   All right.  Is ground 3 really required given ground 2, in any event?

MR MORRIS:   The answer is no.

HER HONOUR:   Ground 4, is that pursued?

MR MORRIS:   Again, to the extent that it is, it would only be repetitive of what is in ground 2, so I do not wish to pursue it as a separate head.

HER HONOUR:   All right.  We have narrowed it down to ground 2 which is coming very close to almost a reservation of the question under section 18 of the Judiciary Act.

MR MORRIS:   Precisely, yes.

HER HONOUR:   I wonder whether it might be more appropriate to actually pose a question for determination which might overcome potential difficulties with facts.

MR MORRIS:   Yes.

HER HONOUR:   In relation to facts, what facts are necessary for the determination of this question - the fact of the children’s opposition?

MR MORRIS:   We would say it is relevant that they are Australian citizens – that may not be determinative but it is a relevant fact – and the fact that they oppose are the only two material facts.

HER HONOUR:   The fact that they oppose appears from the trial judge’s findings.

MR MORRIS:   Yes.

HER HONOUR:   That is all you will be referring to?

MR MORRIS:   That is so, yes.

HER HONOUR:   You will not be seeking to rely upon any evidence relating to the strength of their opposition as relevant to regulation 16?

MR MORRIS:   No.  Not as going to the constitutional question or the application of the regulation, no.

HER HONOUR:   Because the point taken really precedes a consideration of the application of the regulations.

MR MORRIS:   Precisely, yes.

HER HONOUR:   It is a question of whether or not independent representation should have been ordered to answer the questions of fact that would otherwise be raised by regulation 16.

MR MORRIS:   Precisely.  To put it slightly differently, it would be our expectation that if our argument were accepted by this Court, the matter would then go back to the Family Court to determine those points in accordance with this Court’s findings.

HER HONOUR:   All right.  Well, I suppose the matter then comes down to whether or not I simply refer in ground 2 or the parties settle a question which might be reserved for the Full Court.

MR MORRIS:   Your Honour, we would certainly be content if your Honour were to refer in ground 2, but we would only suggest for clarity’s sake that ground 2 be amplified by reference to the constitutional question set out in our notice of constitutional issue.  As your Honour says, it is implicit in ground 2, but for clarity’s sake it would, we think, be useful for it ‑ ‑ ‑

HER HONOUR:   If it is going to be amended, it should be amended sooner rather than later, of course.

MR MORRIS:   Yes.

HER HONOUR:   When could you attend to that?

MR MORRIS:   We could draft a question today incorporating ground 2 plus the constitutional issue.

HER HONOUR:   If you show that to Mr Del Villar and if there is no dispute about it, if it could be sent through and I could deal with it as a consent order if there is no difficulty with the terms of it.

MR MORRIS:   Thank you, your Honour.

HER HONOUR:   All right.  As I mentioned the other day, the matter will be heard in the August sittings of the Court.  With that in mind, the following timetable is proposed.  This takes account of a new rule that has come in to allow interveners a little more time.  I am expecting that the Commonwealth is likely to intervene in these proceedings.

MR MORRIS:   Yes.

HER HONOUR:   The plaintiffs provide their written submissions by 4 pm on Friday, 22 June; application books be finalised by 4 pm on Friday, 29 June; written submissions of the defendant by 4 pm on Friday, 13 July; written submissions of any interveners by 4 pm on Friday, 20 July and written submissions in reply by 4 pm on Friday, 27 July.

MR MORRIS:   Thank you, your Honour.

HER HONOUR:   In accordance with rule 25.03.3, I refer to a Full Court ground 2 of the application for an order to show cause.

MR MORRIS:   Thank you, your Honour. 

HER HONOUR:   And reserve costs of today.

MR MORRIS:   A couple of other minor matters I should mention – learned counsel on behalf of the father has asked me to confirm – and I am happy to confirm – that we have no objection to any application that may be made, pending the hearing of this matter, in the Family Court dealing with the custody and welfare of the children.  We would simply request that we be given a copy of any such application to consider whether or not we wish to be heard on that application.

The second point is that learned counsel for the father has raised with me, and very properly raised with me, the provisions of rule 25.06.1 that an application for certiorari must be made not later than six months after the date of judgment, which pointed out that the initial order of the Family Court occurred more than six months ago.

HER HONOUR:   Yes.

MR MORRIS:   As your Honour would be aware, it has been made clear in a number of decisions of this Court that the six‑month time limit is not finite.

HER HONOUR:   No.

MR MORRIS:   Obviously, this case would be a very clear one for exercising any discretion, given that the children – the situation ‑ ‑ ‑

HER HONOUR:   You are seeking an order extending time.

MR MORRIS:   I do seek such an order.

HER HONOUR:   Is there any objection to that course?

MR M.F. WILSON:   No objection, your Honour.

HER HONOUR:   Mr Del Villar?

MR DEL VILLAR:   Your Honour, my instruction is that we would object on the basis that the Convention is designed to ensure that there is quick process whereby children are returned to the country from which they were taken so that the courts there can decide on the custody issue.  This has gone on now – and it has only been brought right at the death knell, as it were, of this process.  This is more than six months over – well more than six months over and there has been no explanation as to why.

HER HONOUR:   There has been an appeal in the meantime and there have been applications to seek to discharge the initial order.  I am cognisant of your point, but I think the matter is of sufficient importance to warrant consideration by this Court.  Accordingly, I will grant an extension of time for the bringing of an application for certiorari.

MR DEL VILLAR:   As your Honour pleases.

MR MORRIS:   The final matter that I wanted to raise is simply this, your Honour.  I fully appreciate that the High Court’s calendar is never adjusted to suit the convenience of counsel, but the fact of the matter is that things are being done without remuneration at this end of the Bar table.  I have enjoyed enormous assistance from Mr Williams, working without pay, and if it were possible for the matter to be listed in the first week of the August sittings, rather than the second week, that would ensure that he is available.

HER HONOUR:   I will take the matter up with the Registrar and the Justices.

MR MORRIS:   Thank you, your Honour.

MR DEL VILLAR:   Your Honour, if the matter were to be relisted, obviously the timetable would have to change.

HER HONOUR:   I think the timetable is such to allow it to proceed in the first week of the sittings because I was not sure what the calendar would provide, whether it would be the first or second week.  I think the calendar is sufficient in its present form.

MR DEL VILLAR:   Thank you, your Honour.

HER HONOUR:   If there is nothing further, I will adjourn.  Thank you.

AT 10.33 AM THE MATTER WAS CONCLUDED