Re JDP and Anor; Ex parte The Attorney General for New South Wales

[1993] HCATrans 317

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No Sl40 of 1993
In the matter of -

The Judiciary Act 1903

And in the matter of -

Proceedings No SY 4034 of

1989 in the Family Court of

Australia at Sydney

JDP

First Respondent

GOP

Second Respondent

Ex parte:

THE ATTORNEY-GENERAL FOR NEW

· SOUTH WALES

Applicant

Application for removal of

TOOHEY J 1 26/10/93

cause pursuant to section 40(1)

of the Judiciary Act, 1903

MASON CJ
DAWSON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 26 OCTOBER 1993, AT 9.30 AM

Copyright in the High Court of Australia

MR K. MASON, OC, Solicitor-General for New South Wales: If

the Court pleases, I appear with my learned friend,

MR L.S. KATZ, for the applicant. (instructed by

H.K. Roberts, Crown Solicitor for the State of New

South Wales)

MR D.F JACKSON, QC: If the Court pleases, I appear with my

learned friend, MR R.I. MAURICE, for the first

respondent. (instructed by Fox O'Brien)

MASON CJ: Yes. Mr Solicitor.

MR MASON:	Your Honour, the second respondent, the father of the child, has been served, and may I tender an
affidavit of service?

MASON CJ: Yes.

MR MASON:  Service was effected on the 21st of this month.

Mr P has, in effect, indicated that he wishes to

attend at the hearing - that is assuming the matter

is removed into this Court - and to argue the

position personally.

On the question of parties, I should also draw

to the Court's attention that the application

pending below seeks an order, at page 12 of the

application book, that a separate representative be

appointed to represent the child.	The order that
is sought on the application is an order for

removal. Subject to the order being made, I can

tell the Court that we have prepared and supplied

to my learned friend a draft case stated. It is

anticipated that agreement on the terms of that

could be reached fairly shortly and a summons would

be filed for that to be settled. At that stage,

perhaps, it would be the appropriate time to

consider whether something should be done about the

pending application for separate representation for

the child.

MASON CJ: Yes.

MR MASON:  Does Your Honour wish me to outline the details

of the issue that are set out?

26/10/93

MASON CJ:  No, there is no occasion to do that, but I was

concerned to ask you some questions about the

application. Is there any question as to the

validity of the Commonwealth legislation?

MR MASON:  To the extent that it is said to provide

authority to enable the Family Court to do this,

and we say it does not, but to the extent that it

does -

MASON CJ:  What about the decision in Marion?

MR MASON: Well, the judgment of the four Justices in Marion

state -

MASON CJ: Three of them are here.

MR MASON:  Yes - state that it is supported by the marriage

power to the extent that it does that. That point

was not argued in the court, and being a territory matter, there was a reason for it not being argued

in the court. It would certainly be intended to

agitate that, subject to any ruling of the Court to

the contrary. It would also be argued, of course,

that the New South Wales situation is different to

that address there, because here there is a

positive prohibition in the State law. In Marion's

case the Family Court's welfare jurisdiction, as it

were, meshed in with the local law in that the

court provided permission, as it were, to the

parents, to do that which was, according to the

Criminal Law of the Northern Territory, not an

assault.

MASON CJ: Yes, I had that in mind, but I also had in mind

the last two pages of the joint judgment, in which
there is a reference to section 60(h) of the Family

Law Act and its interaction with the then

New South Wales statute, which I think has been

retitled in the meantime.

MR MASON:	Yes, but without, I think, any substantial
MASON CJ:	- - - without any substantive change. And there,
as I recall it, in the joint judgment, the
question is rather treated as one of interaction
between two statutes and how section 60(h) of the
Family Law Act would operate in relation to the
New South Wales statute.
MR MASON:	The statute that was addressed in those passages

of the joint judgment was a different statute.

MASON CJ:	Was it?
MR MASON:	It was the one that dealt with children under 16.

3   26/10/93

MASON CJ: Whereas this deals with children over 16.

MR MASON: Children over 16, yes.

MASON CJ: But does it raise any substantial difference?

MR MASON:  Well, yes. The statute addressed in the joint

judgment empowered the Supreme Court to give

consent and there was obviously a cross-vested

jurisdiction in the Family Court. There is no

similar provision as regards the powers of the

Guardianship Board. I can remind the Court that

the Court was taken by me in my intervention to the

impact upon the Guardianship Act.

MASON CJ: Yes, that ·is precisely why I have raised the

matter, because I recall that quite distinctly, but

I do not recall the details of what you put to the

Court at the time, Mr Solicitor.

MR MASON:  No. Certainly, Your Honour, one of the arguments

we would seek to put would be to argue that which,

in our submission, really passed without detailed

address in the submission, simply because it was a

territory matter, namely whether the marriage power

does support the Court having been empowered to

give this permission, in the light of Marion's case itself, where the Court held that it was outside of the common law power of parents, whether married or

unmarried, to give effective consent to this type

of operation.

TOOHEY J:  Does the affidavit of Mr McDonnell in

paragraph 9, Mr Solicitor, identify the issues that

the Court would be asked to determine?

MR MASON:  The issues have been slightly recast. If it is

of assistance to the Court, I can show you the

draft case stated I have shown to my friend. He

has not had time yet to consider it, but they do

set out the issues as we now see them, but are

slightly broader and slightly differently recast to

as stated in Mr McDonnell's affidavit.

TOOHEY J: And in the form of questions to be answered

before the Court.

MR MASON:  And to the form of questions to be asked. Would

it be of assistance to show that to the Court at

this stage?

MASON CJ: Yes, there is no reason why you should not show

that to us now.

MR MASON:  The questions are on page 3.

26/10/93

MASON CJ: Well, there is no occasion for us to go into the

detail of these questions. I must say they raise

certain doubts in my mind, not as to the removal of

these proceedings into this Court at this time, but

just as to the form of the questions, but that is a

matter that can be attended to at some later stage.

MR MASON:  Yes, subject to removal and discussion with my

friend, I would anticipate that a summons would be

filed within a week or so for the settling of the

case stated.

TOOHEY J: Could I just ask you one question, Mr Solicitor,

in regard to question 3 on page 4? It speaks of "a

common law or the enacted law of the relevant

State", which I take to mean something other than

New South Wales.

MR MASON:  No.

TOOHEY J: Well, it is only that New South Wales is referred

to in the other paragraphs. I thought it might be

intended to, as it were, bring in, in some way or

other, the legisl~tion of other States.

MR MASON:  No. It may need redrafting, but it is intended

really to express the constitutional proposition in

terms of generality and that in some States there

may be enacted law, in others there may not. The

territorial reach of the respective State laws may

vary in their application to different facts or

persons, and the word "relevance" really trying to

grasp all of those contingencies.

MASON CJ: You only have it in mind, of course, that the

Court would deal with these questions, that is,

constitutional questions and other questions that
are incidental to the determination of a

constitutional question?

MR MASON:  Most certainly, yes.

MASON CJ: And what is the-urgency of this case?

MR MASON:  Could my learned friend inform Your Honours of

that?

MASON CJ: Yes, and I would also be interested in knowing

how long is it expected that argument would take in

this Court?

MR MASON:  Yes. I would anticipate from some discussions I

have had there would be a number of interventions

on the issue of the marriage power. I think it

would be under two days, certainly; I think it

would be a bit risky to think it would finish in

one day.

p 5 26/10/93

MASON CJ: Yes, thank you. Mr Jackson.

MR JACKSON:  Your Honours, may I say two things? First, as

a machinery matter, assuming removal, we would seek

a direction that the two respondents and the child

be referred to at any future proceedings by

initials only, that is the first thing; the second

thing, in relation to urgency, is that,

Your Honours, various incidents have occurred, the nature of which I would prefer not to state

publicly, except on an application for expedition,

which make it desirable that the issue be

determined at an early point; incidents not, of

course, for the benefit of the child.

MASON CJ: Yes. Mr Solicitor, you have no objection to the

Court giving a direction in the terms requested by

Mr Jackson?

MR MASON:	No, certainly not.
MASON CJ:	The Court will give a direction in those terms.

Mr Jackson, I should say that, if your courteously couched request is to be understood as a request

for a date before the end of this year, I think it

would be extremely difficult for the Court to give

such a date.

MR JACKSON:  No, Your Honour. We understand the position to

be that if the matter is removed and the matter

otherwise dealt with by ourselves expeditiously,

there is a possibility it may be heard in the first

week in the Court's year next year.

MASON CJ: Yes, I think that is the best we could do.

MR JACKSON:  Yes. Your Honour, the point I would seek to

make is simply this, that if anything should happen

that would make that date unavailable, we would

seek to bring an application to the Court for

expedition of the matter.

MASON CJ:  Yes, very well. The Court will remove this

proceeding and there will be an order in terms of

paragraph 1 in the notice of motion.

AT 9.43 AM THE MATTER WAS ADJOURNED SINE DIE

6   26/10/93