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 & Ors

[2012] HCATrans 125

[2012] HCATrans 125

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 TUESDAY, 22 MAY 2012, AT 2.31 PM

Copyright in the High Court of Australia

__________________

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

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

HER HONOUR:   For the Director?

MR GREEN:   For the Director.  The name, your Honour, I should clarify, is now the Director‑General, Department of Communities (Child Safety and Disability Services).

HER HONOUR:   Thank you.  There is a submitting appearance.  I think Mr Hanson will be ‑ ‑ ‑

MR M. HANSON:   Quite so, your Honour, yes. 

HER HONOUR:   Yes, for the first defendant.

MR HANSON:   Thank you, your Honour.

HER HONOUR:   You are submitting save as to costs and seeking leave to be excused?

MR HANSON:   I am, indeed, your Honour.  Thank you.

HER HONOUR:   That leave is granted.  Thank you, Mr Hanson.

MR HANSON:   I am indebted.  Thank you.

HER HONOUR:   May I inquire whether the third and fourth defendants have been served, the mother and father?

MR MORRIS:   Your Honour, on my instructions they have been.  My instructing solicitors have been contacted by the solicitors for the third defendant, the mother, asking whether we could appear on their behalf for a limited purpose of indicating they consent to the orders.  We have declined to do that, but that is as much as I know about their position.  I know nothing about the fourth defendant’s position.

HER HONOUR:   All right.  Yes.

MR G. PORTA:   If it please the Court, I appear for the fourth defendant.  I just confirm that we have been served.  (of Porta Lawyers)

HER HONOUR:   I am sorry, Mr Porta, I did not realise you were appearing for the fourth defendant.  Thank you.  I have no note of your appearance.

MR PORTA:   Thank you, your Honour.

HER HONOUR:   Before we proceed further, we should perhaps clarify how the parties will be identified for the purposes of these proceedings.  Practice Direction No 2 of 2010 of this Court seems most useful but it is expressed in terms which limit it to applications for special leave or leave to appeal, but it seems to me to be appropriate that the parties be referred to, as is common in this Court, by reference to their initials.  I know that a pseudonym has been used for the purpose of the judgment published in the Family Court, but that would not be efficient because of the number of parties we have here.  So that unless anyone thinks there is some difficulty with identifying the parties by their initials, we should proceed in that vein.

MR MORRIS:   I take it, your Honour, that would extend to the litigation guardian.

HER HONOUR:   It would, but would, of course, exclude the first and second defendants.  So with the exclusion of the first and second defendants, I will order that Practice Direction No 2 of 2010 applies and that the parties shall be identified in these proceedings by reference to their initials.  I take it there is in existence a non‑publication order in any event made in the Family Court or that there is some statutory ‑ ‑ ‑

MR MORRIS:   I am not aware of that, but perhaps ‑ ‑ ‑

MR DEL VILLAR:   We are not aware of that either.

HER HONOUR:   All right.  Yes.  Yes, Mr Morris.

MR MORRIS:   Thank you, your Honour.  Your Honour, my material consists of an application for an order to show cause filed, I believe, on 21 September, a summons filed the same date, two affidavits of my instructing solicitor, Sally Nicholes - one filed yesterday and a further one filed today, and also an outline of submissions which was filed yesterday.

HER HONOUR:   Yes, thank you.  Mr Green has no material?

MR GREEN:   Mr Del Villar will ‑ ‑ ‑

MR DEL VILLAR:   We have no material that we will be seeking to rely upon other than what has already been mentioned.

HER HONOUR:   All right.  The purpose of today’s hearing, in any event, is only to determine the direction that this proceeding should take and to organise a timetable and some directions for its management towards a hearing.

MR MORRIS:   We would also be seeking some comfort, I do not know whether any undertakings are on offer, but some comfort that nothing irrevocable will take place pending the Court’s hearing of this matter.

HER HONOUR:   Well, quite so.  We will need to address each of these matters and I suppose before we talk about when the matter is to be heard, it is the chicken and the egg, I suppose, when the matter might be heard.  We need to determine what arrangements - were there any difficulties with arrangements?  I understand that the children have only been found this morning.  Can you enlighten us, Mr Del Villar?

MR DEL VILLAR:   They were found late last night, your Honour.

HER HONOUR:   I see.  I do not suppose there has been any discussion between the parties as to what arrangements have been made to permit, if necessary, at least the eldest of them to speak to legal representatives?

MR DEL VILLAR:   No, your Honour, there have not been discussions.

HER HONOUR:   All right.  It is probably a little early.  May I ask you, while you are on your feet, Mr Del Villar, is there any question about the standing of the plaintiff in these proceedings to be taken by the second defendant?

MR DEL VILLAR:   The plaintiff being the?

HER HONOUR:   The aunt guardian.

MR DEL VILLAR:   We would object to her standing.

HER HONOUR:   All right.  I might hear the outline from Mr Morris about the issues sought to be raised in the proceedings and any practical difficulties that need to be determined in the interim and then return to you.  Yes, Mr Morris, I will hear from you first.

MR MORRIS:   Thank you, your Honour.  Your Honour, the central issue, if I can put it that way, is the issue of natural justice or procedural fairness.  The case is, I was going to say on fours, but it is in fact a stronger case than a case which was considered by the Full Court of this Court in De L v Director‑General of NSW Department of Community Services (1996) 187 CLR 640. There was one majority judgment comprising six Justices of this Court with Justice Kirby dissenting, but not on the aspect which is relevant here. What their Honours materially said is that:

In the present case to date, there has been no separate representation for the children.  Where issues of the kind involved in this case arise, or appear to the Court to arise with respect to a child of the age and degree of maturity spoken of in –

the relevant regulation, and I will come back to that in a moment –

there ordinarily should be separate representation.

Their Honours refer to a recent example in New Zealand on a Convention application concerning:

the objections by two children, aged seven and eleven, to their return to the United States.

The reference to age and degree of maturity is a reference to the provision in the regulations which contemplate, relevantly, that the views of a child will be taken into account if the child is of a sufficient age and degree of maturity to be able, in practical terms, to make a sensible or helpful judgment as to the issues concerned.

HER HONOUR:   Would you remind me what the age of the children ‑ ‑ ‑

MR MORRIS:   Your Honour, there are four children ranging in age from 14 down to nine.

HER HONOUR:   Do you say that separate representation would be appropriate with respect to each of them?

MR MORRIS:   With respect – well, I am not suggesting that each of them should be separately represented from the others, but that ‑ ‑ ‑

HER HONOUR:   But that each of them are of an age where they could give some meaningful ‑ ‑ ‑

MR MORRIS:   Certainly, a ‑ ‑ ‑

HER HONOUR:   Instructions might be too high a word for it, but yes.

MR MORRIS:   Yes.  There could be no doubt that a 14‑year‑old and 13‑year‑old are able to do so, the 11‑year‑old very probably so.  The situation with the nine‑year‑old might be a little more equivocal but, as I noted in the case mentioned by this Court, in 1996 there were objections by two children aged seven and 11.  There is nothing in the material to suggest that they are immature or incapable of expressing their views.  Plainly what weight the Court would give to their views is ultimately another matter, but our complaint, of course, is that their views – that they have not been allowed any representation.  Indeed, they have been specifically denied representation.

HER HONOUR:   Will your case place some emphasis upon regulation 16(3)(c) which has regard specifically to the children’s objection?

MR MORRIS:   Precisely, but there is also another dimension to this. The High Court, in the case that I have just mentioned, had to consider whether the regulation was constitutionally valid and held that it was. If it became necessary to do so, we would contend that the regulation has to be construed consistently with Part 3 of the Constitution to give ‑ ‑ ‑

HER HONOUR:   I noticed that in the outlines of submissions, but I was not sure really what was intended by that.

MR MORRIS:   Yes.  The proposition, in a nutshell, is that the Parliament, and even more so, a regulation‑making power under statute, can only confer on a court a power which is to be exercised judicially and a power to remove Australian citizens from Australia without their consent and without their being heard is a power which we would say exceeds what is properly considered a judicial power.

HER HONOUR: So the argument concerning Part 3 is inextricably linked with the procedural fairness point?

MR MORRIS:   It is.

HER HONOUR:   It does not range beyond that?

MR MORRIS:   It does not range beyond that, no.

HER HONOUR:   Are there any other issues, or that is the argument – the outline of the argument that will be presented?

MR MORRIS:   That is the outline of the argument.  We do not anticipate that this Court would, in any circumstances, descend into the merits of the matter, that is what weight is to be given to the children’s views, simply to ensure that the process is conducted in a proper judicial manner and in accordance with the rules of natural justice.

HER HONOUR:   I notice that the appeal to the Full Court of the Family Court involved questions as to the acceptance or the inference that might be drawn from evidence not called.

MR MORRIS:   Yes.

HER HONOUR:   This Court is not asked to deal with any of those issues?

MR MORRIS:   No, not at all.  Of course, just as my clients were not heard at first instance they were not heard in the Full Court of the Family Court either.

HER HONOUR:   Now, it has been flagged that there will be a challenge to the question of standing.

MR MORRIS:   I do not understand the basis of that challenge.  I mean, plainly the Court’s rules contemplate proceedings with a litigation guardian.  If it is going to be suggested that RCB is an inappropriate person to hold that office, then I will happily get instructions to look for someone else.  But may I say, she has been selected, not only because she is, if I can put it this way, a very respectable and responsible member of the community and the aunt of the children, but also because there is no suggestion of her being involved in any way in any misconduct by way of concealing the children or contempt of the Family Court’s orders.

HER HONOUR:   Yes, I see.  Before I ask Mr Del Villar for his views, timing, the papers that you filed mention the possibility of the Brisbane sittings which is only just over a week or so away, a week and a half away – but unless there was some real urgency now, I would have thought it was more appropriate to have the matter heard in the August sittings.

MR MORRIS:   Your Honour, we are perfectly comfortable with that.  The only urgency today is that the children are presently – on my instructions

and on my material, they were taken into police custody this morning, which is obviously undesirable.

HER HONOUR:   There is nothing before me in relation to the arrangements with respect to the children.  This Court is seized of a question about prohibition and certiorari.

MR MORRIS:   Yes.

HER HONOUR:   I assume that would not prevent the Family Court from making orders concerning the welfare of the children.

MR MORRIS:   That is so, and it may be accepted that in the absence of such orders, the Director‑General, as the second defendant, has statutory powers of a parens patriae nature.

HER HONOUR:   Quite.

MR MORRIS:   Our concern is that some arrangements should be put in place and obviously that they will ensure that the children are not removed from Australia until this Court has considered the matter.

HER HONOUR:   Well, the latter point is an obvious one.

MR MORRIS:   Yes.

HER HONOUR:   It might be a little premature to suggest that there are any real problems that require a court’s intervention in relation to what is happening with the children.

MR MORRIS:   I do not suggest that.  Our concern is that those who instruct us have, on two occasions, written to Crown Law with a view to making some mutually acceptable arrangement, partly so we can get instructions as well as looking after the children’s welfare.

HER HONOUR:   Yes, I understand that.

MR MORRIS:   We have not yet received a response.  I do not say that critically.  It is just the fact of the matter as things presently stand.

HER HONOUR:   Mr Del Villar.

MR DEL VILLAR:   Your Honour, can I deal with the issue of natural justice which lies at the heart of this matter.  My learned friend took your Honour to the case of De L in 1996.  There has been legislation passed, in effect, that overturned the decision in De L and, your Honour, can I hand up a copy of section 68L of the Family Court Act and also a copy of the explanatory memorandum.

HER HONOUR:   When did it come into force, Mr Del Villar?

MR DEL VILLAR:   Your Honour will see under 68L(3):

if the proceedings arise under regulations made for the purposes of section 111B –

and regulations have been made and those deal with these Child Abduction Convention matters –

the court:

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

Your Honour, it has not been suggested in any of the submissions placed before this Court by my learned friend, and it certainly was not suggested at an earlier point of time in any meaningful way, that there have been exceptional circumstances so to the extent that my learned friend’s argument is based on the idea that there was a failure to afford natural justice, the failure to afford natural justice is, as it were, authorised, in fact, required by section 68L(3).  I would not even put it as a failure of natural justice, only there is a limitation on the court granting representation.

HER HONOUR:   As I understand it there was someone – was it an officer of the court or some case worker appointed to interview the children for the purpose of the proceedings below?  I think she is referred to as “Miss E” in the Full Court.

MR DEL VILLAR:   Yes, your Honour, under regulation 26 of the – there was a report provided by a Mr ‑ ‑ ‑

HER HONOUR:   But that just involved an interview with the children.

MR DEL VILLAR:   Sorry, your Honour, that was a Miss Egan.  I am correct.

HER HONOUR:   But what are you saying – we are outlining the issues today.  Are you saying that the application for an order to show cause should not proceed to a Full Court hearing?  Will you be making an application to that effect?

MR DEL VILLAR:   Yes.

HER HONOUR:   All right.

MR DEL VILLAR:   Because it is based on a misconception that somehow a denial of representation at an earlier stage has infected this entire process when, by virtue of a statute, a provision which has never been challenged, that simply – an order for representation could only be made in exceptional circumstances.

HER HONOUR:   But does that suggest that the Court must consider whether there are or are not exceptional circumstances and, at the least, turn its mind to that question?

MR DEL VILLAR:   If the matter is raised.

HER HONOUR:   But since the Court can make an order of its own motion, the Court could raise the question for itself.

MR DEL VILLAR:   But there would have to be some circumstances such as to warrant the matter being considered by the Court in my submission and none have been identified.

HER HONOUR:   Well, if you are going to bring an application that I should hear that would prevent the matter going to a Full Court you would need to put on all the evidence relevant to what the children did express, and their circumstances.

MR DEL VILLAR:   Yes, your Honour.  There is another objection, however, which goes to standing.  Can I deal with that briefly?

HER HONOUR:   Yes.

MR DEL VILLAR:   The plaintiff has not been appointed a litigation guardian.  We concede that the children would have standing to bring proceedings in this Court.  We make no such concession with regard to the plaintiff who has not been appointed a litigation guardian.

HER HONOUR:   What is the issue then is since the children have standing is that they have not indicated that they wish the aunt to appear for them.

MR DEL VILLAR:   Precisely.  There should be ‑ ‑ ‑

HER HONOUR:   They need access to her to be able to do that.

MR DEL VILLAR:   That is so, but can I say in relation to access the orders in the Family Court are that the children are to live with someone nominated by the Department pending their removal to Italy and, on my instructions, that is exactly what is occurring now that they have been found.

HER HONOUR:   But there can be no difficulty with them having access to their aunt – to speak with their aunt and to provide instructions, surely - if that is their wish?

MR DEL VILLAR:   Only subject to this qualification, your Honour.  There is a question mark about the aunt’s involvement in the disappearance of the children.

HER HONOUR:   Well, as Mr Morris has indicated, if there is any issue seeking to avoid that – if there is any such issue then someone else should be appointed.  But if the children, as you concede, have standing to bring a proceeding, these matters, subject to your legal arguments about whether there is any merit to them, they at least need to be tested.  Some process or accommodation as between you and Mr Morris’ instructing solicitors will need to be made to ensure that that occurs.

MR DEL VILLAR:   Yes, your Honour, that is correct. 

HER HONOUR:   Before we come back to the practicalities about it – and I assume I do not need to make orders about how this is going to occur; it simply will – what about the question of undertakings not to remove the children until this Court determines what course is to be taken in these proceedings and until the determination of the application?

MR DEL VILLAR:   My instructions, your Honour, are that my client cannot give that undertaking.

HER HONOUR:   Why?

MR DEL VILLAR:   Because my client is under an obligation pursuant to the regulations to ‑ ‑ ‑

HER HONOUR:   I am sorry – pursuant to?

MR DEL VILLAR:   Pursuant to The Hague Convention Regulations, specifically regulation 20 ‑ ‑ ‑

HER HONOUR:   It talks about co‑ordinating the making of arrangements necessary to give effect to the order.

MR DEL VILLAR:   Yes, your Honour.  The order has been made.  The father is here waiting.  There has been a process whereby the mother has sought to appeal the matter and special leave in relation to that proceeding was discontinued.  Your Honour, my instructions are simply that it is just not appropriate to give an undertaking in this circumstance where the children have actually, as it were, disappeared despite a court order being made that they be presented at a certain date.

HER HONOUR:   There is now a proceedings brought in this Court which calls into question the proceedings in the Family Court.

MR DEL VILLAR:   Yes, your Honour.

HER HONOUR:   At the very least, this Court must look at the allegations made and determine whether, in the first place, you are correct and there is a legal threshold which the plaintiff cannot get beyond, in which case the application fails.  If it does not, then a Full Court of this Court determines the matter in a full hearing, but this Court simply cannot accept that it cannot proceed to hearing.  You are not suggesting that, but what you are inviting is the making of an order to restrain the Director until I can at least hear your argument – your legal argument – about whether or not the application has any merit.

MR DEL VILLAR:   Could I just obtain instructions in relation to this matter, your Honour?  It might be that my client has a somewhat different view.  Your Honour, I have new instructions.  My client is willing to give an undertaking not to remove the children pending the dealing with this matter ‑ ‑ ‑

HER HONOUR:   Pending the determination of this matter.

MR DEL VILLAR:   Yes, your Honour.

HER HONOUR:   The matter being the application for orders to show cause.  Yes, thank you, Mr Del Villar.  What do you say then about – you are proposing to bring the application seeking orders from me that the application be dismissed instanter and not referred to a Full Court.  When do you propose to bring that application?

MR DEL VILLAR:   As soon as possible within the coming week, your Honour.

HER HONOUR:   I think it might have to be a little sooner than that.  You may not have had a great deal of time to consider how much material in the argument you need to put on.  How much time do you think you would need to consider that question?

MR DEL VILLAR:   By the end of the week would be sufficient, your Honour.

HER HONOUR:   Mr Morris.

MR MORRIS:   Sorry, your Honour. I was going to say it raises a further complication, only in this sense. The point that my learned friend has raised about the amendment to the legislation is the reason for our reliance on the Part 3 argument. As our learned friend puts it rather succinctly, it is legislation which has effectively repealed this Court’s decision based on principles of natural justice and, therefore, legislation which either permits or requires the Family Court to act contrary to natural justice. So our point is that if the legislation has that effect, the legislation either permits or compels the Family Court to act otherwise than in accordance with natural justice. That is where the Part 3 contravention comes in. To the extent that that is part of the same argument, I apprehend that notices will have to be given to the Attorneys‑General to intervene.

HER HONOUR: Yes, you are quite right. Yes, I see, now that your Part 3 argument comprehends the legislative question.

MR MORRIS:   Yes, and we think it really is all part of the same argument and we wonder, frankly, whether having reflected on that, our learned friend might see that there is more merit in having the point determined by the Full Bench rather than trying to bring a sort of pre‑emptive strike‑out application.  That is a matter for him, of course.

HER HONOUR:   Yes, of course, because you say you might not have to pass much more than there being an arguable question to go to the Full Court.

MR MORRIS:   Exactly.

HER HONOUR:   What do you say then – there are no directions specifically I can make this afternoon about either the appropriateness of the present plaintiff as litigation guardian or the ability for someone who – either her or someone else taking that position to have access to the children, to speak to them.

MR MORRIS:   Yes.

HER HONOUR:   But if there are any difficulties, this Court being seized of the matter, if there are any difficulties in this process your solicitors can organise to bring the matter back before me, of course.

MR MORRIS:   Could I just say two things?  I think I indicated this before, but it is very firmly my instructions.  The person named as litigation guardian, RCB, is not particularly keen to be involved in the litigation and to expose herself to a personal liability for costs.  She has done so in the interests of the children, but if there is any suggestion that she is an inappropriate person, those who instruct my learned friends can let my instructing solicitors know and we will see if we can line up someone who is beyond question as to their appropriateness and integrity.

The other thing I wanted to say is that the access sought at the moment is more access by the solicitor rather than the litigation guardian personally and I assume that there is no real objection to the solicitor speaking to the four children.

HER HONOUR:   All right.  Well, those considerations are a matter for your instructing solicitors and the present plaintiff to be dealt with in the next few days, I would imagine.  What I was going to suggest, Mr Del Villar, is that you give further consideration to the argument that you would bring which suggests that this application is doomed to failure, on your current view of the arguments that might be presented, but taking cognisance of the counter‑argument which will be presented against that.

MR DEL VILLAR:   Can I just add one matter in relation to the arguments that would have to be canvassed, your Honour.  My learned friend has sought a writ of prohibition against the first defendant preventing the first defendant from hearing and determining the matter, continuing to hear and determine the proceedings unless certain conditions are satisfied. 

HER HONOUR:   Yes.

MR DEL VILLAR:   My understanding is that the first defendant has completed or finished dealing with the proceeding.

HER HONOUR:   Yes, well that is a matter that might require some amendment, but we can come back to that.  I was going to suggest that you give some further, rather urgent, attention to the shape of the arguments in this matter and that the matter come back before me for mention and directions on Friday morning.  The notices can be either sent before or, perhaps more conveniently, after that time at which you might be in a position to advise me whether or not it is intended to proceed with an application to have the application summarily dismissed and once we are all informed of what is going to take – the course then, we will be able to assess the time necessary for notices.  It might be as well to – I will leave it to the parties – think about the notices.  In any event, either way they are going to have to be sent, so the sooner the better, I think. 

But you might keep in mind also that this matter – if there is an argument that the plaintiff can properly present for a Full Court that should be heard – that on present indications a hearing could be accommodated before a Full Court in the August sittings commencing 7 August, but the time available, of course, will go.  It will get later as time is taken up in determining the shape these proceedings are taking.

MR DEL VILLAR:   Thank you, your Honour.

HER HONOUR:   If it is convenient then, I will have the matter listed for mention and further directions on this Friday at 10.15.

MR MORRIS:   Would your Honour formally reserve today’s costs?

HER HONOUR:   Yes, of course.  Mr Porta, I am sorry, I have not involved you in this, but I had assumed that you had not quite so much to say about the application itself and that your brief, as it were, was a watching brief?

MR PORTA:   Yes, your Honour, I am instructed…..

HER HONOUR:   Thank you.  I will hear the matter further on Friday.  Adjourn.

AT 3.06 PM THE MATTER WAS ADJOURNED