SSS v DG Department of Families

[2003] HCATrans 374

[2003] HCATrans 374

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B106 of 2002

B e t w e e n -

SSS

Applicant

and

DIRECTOR‑GENERAL DEPARTMENT OF FAMILIES

Respondent

Application for expedition

CALLINAN J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 18 SEPTEMBER 2003, AT 3.29 PM

Copyright in the High Court of Australia

SSS appeared in person.

MR K.A. PARROTT:   Your Honour, I appear for the Director‑General of the Department of Families, who is the Central Authority under the Hague Convention.  (instructed by Crown Law Division, Department of Justice)

HIS HONOUR:   Yes, Mr S.

SSS:   Your Honour, this is in regards to a summons supported by an affidavit filed on 7 August 2003.  I seek that an application for special leave to appeal filed on 17 December 2002 be expedited.

HIS HONOUR:   This is an application for expedition, that is correct, is it not?

SSS:   That is so.

HIS HONOUR:   Let me ask Mr Parrott some questions.  Mr Parrott, this application relates to a child, who was abducted from the United States and has been returned to the United States, is that correct?

MR PARROTT:   That is correct, your Honour, yes.

HIS HONOUR:   When did the abduction take place?

MR PARROTT:   I believe 1999, your Honour, and the child was returned to the United States on about 20 August of last year, so the child has been back for some 13 months.

HIS HONOUR:   The child has been back 15 months?

MR PARROTT:   Some 13 months, your Honour.  The Full Court decision was handed down on 25 November and the application for special leave to appeal was filed on 17 December.

HIS HONOUR:   Last year?

MR PARROTT:   Last year.  The exchange of summaries, your Honour, was completed on 28 February this year.

HIS HONOUR:   Thank you, Mr Parrott.  Yes, why should I expedite this case over and above the other 20 or so matters which are pending in the Brisbane Registry?

SSS:   Your Honour, the expedition is necessary in this circumstance, to preserve the subject matter and the integrity of the appeal.  To refuse an application or to refuse this expedition order application would be, firstly, unnecessarily and unfairly affect the chances of the application for special leave to appeal.  Furthermore, to refuse the expedition order will be actually tantamount to destruction of the subject matter.  The destruction of the subject matter has already began by the trial judge’s refusal to grant a stay.

I can cite, although in a different context, in reference to a stay order, in Simsek v MacPhee Stephen J states that there is no doubt that all courts have wide inherent powers to ensure that justice is not denied to those who litigate before them.  Dixon CJ observed in argument in Tait v The Queen at page 623 that he had:

never had any doubt that the incidental powers of the Court can preserve any subject matter, human or not, pending a decision –

and he goes on to say that his unreported decision in Australian Building Construction Employees and Builders Labourers Federation v Victoria v Winneke and the further cases as well as Beck v Value Capital Ltd, they all provide recent instances of other facets of the inherent powers of the Court to ensure that justice may be done between parties as does the making of what have come to be called Anton Piller orders. 

Now, although, your Honour, unlike Anton Piller, there is not a risk of physical destruction of any evidence, there clearly is an extremely strong prima facie case, being that this case is becoming moot with the passage of time, and there is a high potential of damage to my case, damage that has already been instigated by refusal of the trial judge to grant a stay.  Your Honour, in DJL v Central Authority their Honours state in paragraph 27:

The circumstance that a federal court exercises the judicial power of the Commonwealth is significant.  The exercise of that authority has, as incidents arising by necessary implication from Ch III, the power to punish for contempt and the power to preserve the subject matter of a pending application for special leave to appeal.

It would be pointless to supposedly exercise one’s right of appeal regarding the issue of bringing in a child who was allowed to leave the country in error in my opinion back to the jurisdiction of an Australian court and be given the opportunity to argue the case some 18 months or so later at the best, then try to put forward as if the issue at hand is at the premise of original circumstances, or, in the alternative, purport that the case would be approached as if the child had just left the country.

There will be other developments, one would expect, that would and could diminish one’s right of appeal such as, to say the least, the fact that if this case is not given a priority there will be assumption and claims that the child is once again settled in his new environment as he was in Australia when this case was being heard by the trial judge.  Also the fact that this current situation is unknown to me since all contacts have been severed since his departure from Australia as anticipated.

Now, your Honour, I have already been denied due process by the action of the trial judge, resulting in the Full Court’s decision, assuming that the child was no longer in the jurisdiction of an Australian court, my appeal was rendered nugatory, meaning that I could not even argue the merits of my case in the appeals court.  Your Honour, in Conway v Jackson Kirby J granted expedition of the hearing of the application for special leave as unless the application were expedited the applicant might have lost some or all of the points that he had been arguing at the lower court.

In Pinkstone v The Queen Kirby J again ordered the expedition of the hearing of the special leave application stating that, unless otherwise, the utility of the special leave application would have been lost.  In…..in the New Zealand Court of Appeal, your Honour, the appeal judges mentioned the judgment of Cotton LJ in Wilson v Church which is cited…..at paragraph 396 which says, your Honour, when the party who is appealing is exercising his undoubted right of appeal that this court ought to see that the appeal is successful, is not negative.

Your Honour, this was mentioned in the context of the subject matter preservation which was also the context in Wilson v Church.  Their statement is actually in broader term as the English Court of Appeal has already recognised in Ketchum where the emphasis was placed on what the same judge said in a later case of…..  Cotton LJ said in…..that the principle was that where there is an appeal about to be prosecuted the litigation is to be considered as not an end and, that being so, if there is a reasonable ground of appeal and if not making the order to stay the execution of the decree of or the distribution of the fund would make the appeal nugatory, that is to say, it would deprive the appellant, if successful, of the result of the appeal, then it is the duty of the court to interfere and suspend the right of the party who, so far as the litigation has gone, has established his rights.

Your Honour, there is a reasonably arguable point involving the miscarriage of justice as well as an issue of public importance and precedent.  The power of an Australian court to order a child back from a signatory country when and if the child was sent back in error is.....Furthermore, the miscarriage of justice can be.....due to the fact that not only did the trial judge allow the child to be taken out of Australia and then refuse to grant a stay, but also the appeals court of the Family Court, in my submission, was in error in regards to the lack of jurisdictional authority to order the child back.

In addition, your Honour, the trial judge’s refusal to stay the application…..application and subsequent declaration that even if he was wrong in the interpretation of the law, he would have still ordered the child’s return to the United States would give this case, in my opinion, a real chance of obtaining a grant of special leave in the sense that it would be sufficient that this is an arguable case and the prospect of grant of the special leave may not be substantial but not insubstantial.

Your Honour, the question of substantial prospect or not insubstantial prospect is addressed by Gaudron J in Elliott v Seymour.  Her Honour said:

It was argued for the applicants that, given the nature of the case, the only question relevant to the grant of interlocutory relief is whether there is a prospect that special leave will be granted.  That can be taken as correct, particularly in so far as the relief claimed is essential to the preservation of the subject matter of the proposed appeal.  However, something should be said as to the prospect that special leave will be granted.  It was put for the applicants that the case involves the liberty of the subject and that, in accordance with Narain v Director of Public Prosecutions, all that is required is that that prospect should not be insubstantial, rather than that there should be a “substantial prospect” as required in Jennings Construction Ltd v Burgundy Royale Investment Pty Ltd (No 1).

Your Honour, the significance of the points of law involved in relation to the application for special leave to appeal is the significance of the High Court’s power to protect its own process and also the powers exercised by Australian courts.  In a case…..the Texas Court of Appeal ordered the child back to the jurisdiction of the Texas court after he was taken back to Spain under the Hague Convention on civil aspects of international child abduction.  Any chances of the same happening in my case is vanished day by day by making it almost impossible to bring my son, who I have not even seen or spoken to so far for 13 months,  back.

As for the.....of the application where special leave to appeal is concerned, if the expedition of the application is not granted, by the time the application is heard at the best it would be close to three years since my son was allowed to leave Australia.  Your Honour, clearly it would not be possible to exercise one’s right of appeal where by the time the appeal is heard the merits of the case involve the residency of a man or child is rendered nugatory.  By refusing the expedition of the application for special

leave to appeal, my legal rights which are being violated by the action of the trial judge, which means that the child was taken out of Australia before I had the opportunity to lodge an appeal, and the trial judge’s remarks that essentially this child was going back to the US regardless of the law in violation of, to say the least, Article 1 and 12 Australian Bill of Rights…..prejudice my case eventually.  Thank you.

HIS HONOUR:   Thank you.  Yes, Mr Parrott.

MR PARROTT:   Very briefly, your Honour.  Mr S rightly points out that the issue for the special leave application is the question of whether or not the Family Court actually has the power to order the return of a non‑citizen from another country back to this country in circumstances where the only connection that child has had is by being brought here illegally to start with.  That is the issue for the special leave question.

Your Honour, in the submission of the Central Authority, although it is a matter of public importance, it is no more important than any other matter that might be brought before this Court.

HIS HONOUR:   Why would not the Court have jurisdiction anyway of parens patriae jurisdiction?  The child is in the jurisdiction and why would not the Court have jurisdiction to deal with the child?

MR PARROTT:   Well, the Full Court found that now that the child has been removed from the jurisdiction they did not have the power to order that it be returned to the jurisdiction.  That is the issue which the applicant will be asking the High Court to consider in the special leave application.  However, your Honour, insofar as the applicant has referred you to, on a number of occasions, the application becoming more and more moot with the passage of time, I would simply draw your Honour’s attention to the applicant’s affidavit in which he repeats that proposition yet his reply was filed on 28 February and then some period of some six months elapsed from the filing of that to the summons.

HIS HONOUR:   I do not need to hear you any further, thank you.

MR PARROTT:   Thank you.

HIS HONOUR:   In this matter the applicant, who has filed an application for special leave to appeal to this Court, from a judgment of the Full Court of the Family Court seeks expedition of his application.  The applicant has been unable to demonstrate any sufficient reason why his application should be given precedence over a number of other pending applications in this Registry and elsewhere in Australia.  Accordingly, I am not prepared to grant expedition and I dismiss the application for expedition.  Anything further, Mr Parrott?

MR PARROTT:   Nothing further, your Honour, thank you.

HIS HONOUR:   Yes, thank you.

AT 3.44 PM THE MATTER WAS CONCLUDED