U v U

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S256 of 2001

B e t w e e n -
U
Appellant
and
U
Respondent

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 APRIL 2002, AT 10.23 AM

MR M.D. BROUN, QC: If the Court pleases, I appear for the appellant. (instructed by Russell McLelland Brown)

MR P.L.G. BRERETON, SC: May it please the Court, I appear with my learned friend, MS E.T. BOYLE, for the respondent. (instructed by James Richardson)

KIRBY J: Mr Broun, just before you start, I know a lawyer in India named Mr Anandgrover and I meet him annually in relation to a series of seminars for judges and lawyers. He told me that he was involved in a matter of a dispute between Indian nationals. I do not know if it is this case and I do not want to know if it is this case. He never mentioned anything else about the matter and I do not feel embarrassed and I propose to sit, but I just put it on the record in case he is involved in this case. He did say that he was involved in a case coming to the High Court, but very properly he never mentioned anything about the details of the case.

MR BROUN: Thank you, your Honour.

KIRBY J: So I just mention it to you and to Mr Brereton.

MR BROUN: Your Honours, there are three preliminary matters. First of all, as was noted in one note, I think, in our submissions, there is an error in the appeal book. One page appears twice and a page is omitted. The Court Orderlies now have copies of that replacement page and we have put the number where it goes in. It is a page of the transcript and it deals with one matter to which we referred in the course of the submissions. The second matter is that we filed a motion for leave to amend the grounds of appeal.

GLEESON CJ: Is that opposed, Mr Brereton?

MR BRERETON: No, your Honour.

GLEESON CJ: You have that leave.

MR BROUN: Thank you, your Honour. The third matter, before I go any further, is that in Mr Brereton’s submissions dealing with whether there are any facts in issue that I had set out in mine he raised one factual issue which is very much peripheral, that is whether my client had, in her attempt to leave Australia on 31 August 1998, used the tickets that the husband had provided to her to travel to India or whether she bought fresh tickets. Mr Brereton is right on checking the transcript. In fact she did buy fresh tickets. As I understand the position, the tickets supplied by the husband had at a later time been withdrawn and she therefore used fresh tickets that she purchased. So my statement of the facts is in error in that regard.

KIRBY J: You say “used the tickets”. My understanding is that she presented at the barrier and when she was not allowed to take the child she did not accomplish the journey. Is that correct or not?

MR BROUN: That is so, your Honour, yes, but it was tickets that she had bought afresh rather than the tickets the husband had given her.

KIRBY J: Yes.

MR BROUN: Now, Your Honours, we have set out in our written case outline, our written submissions, substantially what we want to say, but what I would like to do is to try to express our main thrust of our appeal in a slightly different way, perhaps, I hope, clearer, and then to emphasise a few other points. The first question essentially is what we say was the fundamental error of failing to balance and consider the two respective cases and proceeding as if there were three cases to be considered, or three proposals.

Now, can I bring to your Honour’s mind the picture of, I think, the goddess Artemis standing with the scales of justice in one hand, a sword in the other and her eyes bandaged, the traditional symbol of justice. We would like to put to your Honours that that is a correct picture, that the duty of the Court is to consider the proposals of the two parties, to consider them and not, as it were, to try to invent a third proposal.

The proposal of the wife, namely the children with her in India, was her proposal. That was in her scale. It should have been considered with its benefits and its faults, particularly the fault that it would have had an impact on the sort of contact that the father could have had with the child and, on the other hand, the father’s proposal which was that the child should live with him in Australia which would have had the obvious defect of changing the primary carer, the person with whom this young child had been all her life.

KIRBY J: But I understood that your client had a fall‑back position, that if necessary she would not leave the child but would live in Australia and the Full Court said that the primary judge did, in fact, weigh the alternative cases.

MR BROUN: Your Honour, that is, in fact, perhaps, the big point at which we would take issue. We would say that that third proposal, as the trial judge considered it and the Full Court considered it as the third proposal, effectively destroys the scales of justice by putting two pans onto the husband’s side and, of course, when you have two pans on his side he has a great advantage.

In fact, the position was, and I hope our submissions have referred to the respective passages, my client’s position always remained the child with her in India. She did, however, in cross‑examination, concede that if she was refused permission to take the child to India she would remain in Australia, but she put forward no proposal for her to remain in Australia as is shown by the fact, for example, that she put forward no proposal about contact and how the father was to see the child or where she was going to be living or how she was going to be supporting herself if she was in Australia with the child.

In effect, the third proposal, we would respectfully submit, was invented by the trial judge and adopted by the Full Court as, as it were, a synthesis of the wife’s proposal that the child live with her and her evidence that if she was refused permission to go, she would remain in Australia. Now, in effect, creating that third alternative or third possibility is, first of all, contrary to the way courts should approach the adjudication of an issue between parties and, secondly, it savours of something like social engineering, but, most importantly, perhaps, it produces a very considerable unfairness to the wife – perhaps a procedural unfairness, but perhaps an unfairness of method, but it produces an unfairness.

Could I illustrate that with perhaps a trivial example. Last year, I was conducting a case in the Family Court which ultimately went for two full days about whether a child should attend St Joseph’s College as a boarder or attend Scots College as a boarder. In the course of the case, I actually had the surprising experience of cross-examining the principal of Scots College, but it would have been entirely inappropriate for the judge to have said, “For this chid, Sydney Grammar School is the best answer. The child should go there.” That would have been quite wrong. In our submission, what a court can only do is to consider the proposals before it, the respective cases, and decide which one weighs down the most and decide on that issue.

KIRBY J: But that is a little artificial, is it not?

MR BROUN: I am sorry, your Honour?

KIRBY J: Is that not somewhat artificial if, in fact, the case has come to the court and then in the course of cross-examination your client makes the concession that if she has to, she will stay, unhappy though she will be and with the disadvantages of that, to say that the court should then completely ignore that as one of the possible resolutions of the matter is a bit unrealistic? It is requiring not only blindfolds but a bag over the head of the justice.

MR BROUN: Your Honour, I do not go so far as to say that that issue is ignored because it comes up as a separate distinct issue and, in our contention, that is the way it should have been dealt with.

GLEESON CJ: The example you gave does not strike me as so shocking. If you change the name of one of the schools, that is precisely the decision I made when the issue arose in my own family.

MR BROUN: Ah, but your Honour, was not sitting as a judge of a court.

HAYNE J: There was not much procedural fairness being ‑ ‑ ‑

MR BROUN: It is essentially a question of what can a court do, but can I answer Justice Kirby’s question as to how we come to the second issue. Having weighed up – put into the scales the husband’s proposal and the wife’s proposal – and, in our submission, the trial judge never took this first step and the Full Court was untroubled by it – we would say that pretty obviously the answer would have come down, “Well, whatever the consequences, this child, at her age, having been in her mother’s care all her life, having been in the mother’s sole care for more than half her life, the scales obviously come down in favour of the child staying with the mother.”

Then, the court has to, because the law requires it, look at section 65Y of the Act and that brings us to the question of what section 65Y is about. Now, your Honours will find that section attached to both our submissions and Mr Brereton’s submissions. Section 65Y says, in effect, that if it is proposed to take a child out of the country then both parents have to agree or the court may permit it. So, since the husband was not agreeing the court was directed by section 65Y to consider that second question.

Now, we would respectfully submit that having come to a conclusion that of the two cases, the mother’s case and the father’s case, or their proposals, that the child should be with the mother on the basis of her proposal, that probably there would not then be much argument about 65Y but what has happened in this case is that 65Y has been, as it were, moved forward into the initial question of the balancing of the different cases of the parties.

Section 65Y has been taken as if it said something like, the general principle is children in Australia should stay in Australia and a good case has to be made out to take them out of Australia or reasons can be advanced for not taking them out of Australia. In our submission that is not what it is about at all. Section 65Y is essentially a section designed to prevent abduction of children, to prevent a child being taken out the country by the will of only one of the parents without the other parent being given an opportunity to be heard or to consider the matter. In effect, a sort of section predating the Hague Convention on the international aspects of child abduction, but stopping the child leaving rather than bringing the child back after the child has been abducted. We would say that is what is there for and that really all it does.

GUMMOW J: It is a criminal offence.

MR BROUN: It makes it a criminal offence, yes. Indeed, when one looks at the history of it, it has originated in the Passports Act, as Mr Brereton’s submissions very correctly point out, and it came after the sections which dealt with the question of getting a passport for a child required the consent of both parents or both guardians or some court order.

KIRBY J: I see Mr Brereton rather suggests that one infers from section 65Y that the Parliament of Australia has taken a view that, prime facie, children who are resident in Australia should not be sent out of it without consent of a parent and that that is a point against the propositions you are advancing in this Court. In other words, it is a sort of parliamentary starting point. If they in Australia they do not go without consent unless exceptionally a court gives leave.

MR BROUN: We would just put a question mark against that “exceptionally”. We would say that the child can leave on one of two bases, consent of both parents or the leave of the Court. That one does not have priority to the other, that they are both there equally and a court can consider whether there is a proper reason or a sound reason for stopping a parent exercising what is, on the face of it, a right to move where there is a child involved who would be accompanying them.

Now, essentially what the function of the section has been is to prevent abductions and to prevent a child being taken away, as it were, spirited off to a place from which the child cannot be recovered or where there might be expense or difficulty in recovering the child in bad circumstances, most commonly, of course, the father grabbing the child during the access period, going to the airport, getting on a plane back to Afghanistan or the country of his choice, which used to be – very commonly was – a real problem and that was what led to the section going in, but having gone in, of course it has a bigger operation just than the father seizing the child on contact occasions.

We would say it is there to make sure that if there is no consent and it happens very regularly that one of the parents feels bad about the child leaving the country, because that parent wants to stay or sometimes even that parent wants to punish the other party – that sort of problem does arise – we would say that the court then is given an opportunity of saying, “Is there a sound reason for holding the child back? If not, what arrangements are to be made about contact? Is there to be telephone contact? Are there to be orders requiring the child to come back to Australia for contact? Is the father to see the child in the other country? What is going to happen about the child support question when the child disappears out of the child support regime?”, and all those sort of questions, in effect, which need to be addressed if the parties do not address them.

KIRBY J: Mr Broun, is not your difficulty that one might have a different view about what ought to have been done in this case and the figure that I mentioned in AMS, or whatever the name of that case is, indicates that 84 per cent of custodial parents are women and I think even in that case the mother said, “I want to go to Perth but if I have to I will stay with my child”, which would be the normal case, so it weighted against women generally. But in order to get the Full Court or this Court to disturb, you have to show an error of principle.

MR BROUN: Yes.

KIRBY J: And is your error of principle only the suggestion that they did not bifurcate their brains and decide the matter in terms of the alternative primary hypothesis? Is that all you have, because I just find it difficult, myself, to think that you can do that with your intelligence when you are deciding what is in the best interests of a child when there enters a third possibility, which is the possibility that the mother stay in Wollongong and that the father continue what is obviously a very close and loving relationship with his daughter?

MR BROUN: Your Honour, certainly in respect of ground 1, I would like to re‑express it some way from what your Honour puts it in respect of our first ground, that is the main thrust of what we are saying, that the function of courts is not to do so much as what they think is the best thing, but to adjudicate upon the issue between the parties, to look, as it were, at the scales to put the case of each party into those scales to see which one weighs down the most.

KIRBY J: That sounds like the function of an arbitrator as distinct from the function of a Chapter III court. A Chapter III court commanded to perform its functions take into account the best interests of the child.

MR BROUN: But the best interest of the child is considered in that first balance. Is it in the best interests of the child to be with the parent who has been her primary carer throughout her life, to whom she has the closest bond, returning to their native country or at least the mother’s native country – the father’s native country for that matter – even their native city, to return to their native land and be brought up there with a parent who is not stressed and not depressed even perhaps by living in a foreign country as an ethnic minority without support group, without family, alone and isolated, when she had only come to this country for the purposes of the marriage. That is one case to be considered. And to be judged on the basis of the welfare of the child is the paramount consideration.

On the other hand the father’s, which is the child lives with him in Australia, has regular contact with the father as a consequence, and if the mother chooses to stay, regular contact with her. If she chooses to go then contact with her presumably only in Australia, I think was his proposal.

So that that issue, the weighing of the balances between the parties, the weighing of the scales, is still a matter determined by the best interests of the child, but we accept that a judge does not have to cut his mind in half to do it. What he does is deal with the issue in front of him first, deal with the balance between the husband and the wife and then, having dealt with that, considers the next question, 65Y, “Do I permit the child to leave Australia in the face of the husband’s opposition?”

Now, if that question were considered separately and distinctly from the first question of adjudicating upon the respective cases of the parties, we do not know what the result would have been. I would submit that it would be pretty clear, but we do not know for sure what would have happened. What we would submit is the terrible unfairness of it is that in effect we have scales of justice with three proposals in it, which were not there. As a result, there were really two proposals on the husband’s side, though in fact the trial judge and the Full Court seem to have taken the proposal that the mother stay in Australia with the child as a second proposal or alternative proposal to the wife’s, which it never was. She never supported it. We have in fact put in our submissions the references to the pages where in cross‑examination she was asked about it and said, “I would not leave Australia without my child.”

Now that, in our submission, is the core of where this trial ‑ these proceedings have miscarried, at least as to our first ground. They have miscarried because there has been a consideration of scales of justice with three pans ‑ if I can put it perhaps that way to illustrate it – that the court was not doing what a court of law is obliged to do and which is its primary function, of adjudicating on the issues before it.

Now, certainly, a court may, in adjudicating on issues, make an adjustment here or an adjustment there, but this was basically a terrible injustice because it was not really just an adjustment or a tinkering, it was an invention of a third case which should have arisen and been considered as an entirely separate question. Your Honours, that basically puts what I would like to say about our first ground and I hope I have made our position clearer. But could I add this about 65Z, which is a funny one and occurs very strongly in this case, although it does not really affect the appeal so much.

Section 65Z, we would say, in this case, was seriously abused and the husband did not get any criticism of it because it was not relevant to the way the judge was approaching it to criticise the husband’s action, but 65Z, in effect, says, until you have a court order about a residence or contact, just filing the application will do something in the interim and will stop a child leaving, that that is in fact what always happens is that there is an application filed and immediately the child is put on the watch list to the Commonwealth Police by a fairly simple procedure and they have a form, you tell them all the details, give them a picture of the child, and so on, and tell them of your application and it goes onto the watch list.

In this case, the husband did it some months before the wife attempted to leave and did not serve it and, in our submission, it is an abuse of process to commence proceedings for purposes other than having those proceedings dealt with.

KIRBY J: That seems a complete side issue to the issue before this Court.

MR BROUN: It is, your Honour. I would very much like your Honours to say something about it but I have to concede it is a side issue.

GAUDRON J: But what may not be such a side issue, and I did not pick it up exactly from the papers, there was an order made in India some time ago, was there not?

MR BROUN: There was. By consent, ultimately.

GAUDRON J: Yes. Now, what was that order? Does that appear in the papers?

MR BROUN: It does and, indeed, in our submissions I believe I have given your Honours the reference to it. Mr Saunders, who is my eyes in this case, will look it up. It is annexed to the wife’s affidavit. Mr Saunders will find it. My recollection is that that was another problem with the appeal book, the pages got put in the wrong way around. Page 440, I think, your Honour, it is. That actually adds a little extra colour to the case that there was an Indian order made between these parties still in existence, but while I have yielded to, or accepted, Mr Justice Kirby’s suggestion that this is really a side issue, may I point out, however, that it does become relevant this way.

The fact that the wife was criticised in a number of respects for actions of hers but the husband was not criticised at all in respect of actions of his does go to the question of how the court was considering the issues, namely, the court was considering, in effect, the question of, “Can we really trust the wife to be co‑operative about contact once she goes to India?” In respect of that, the court considered various things detrimental to the wife but since the court did not raise an issue about the husband’s conduct or his reliability or his straightforwardness, there was no need to refer, and there was in fact no reference to the respects in which the husband’s conduct may have been criticised. So that, in effect, it tends to point to the way in which the court was focusing on the question of where the mother lived rather than the question of the two proposals which should have been determined first.

GAUDRON J: Now, do I take it from that that the child has dual citizenship?

MR BROUN: Yes, indeed, your Honour. That is certainly my understanding.

GAUDRON J: The other side says, no.

MR BROUN: Mr Brereton thinks it is not, but we will try to clarify that. Certainly, the mother is an Indian national, has always remained so. The father was originally an Indian national, but adopted Australian citizenship, and, as I understand it, under Indian law, he is entitled to retain his Indian birth and nationality, even – I am not sure when he took the oath to become an Australian citizen, whether he renounced all other loyalties. That used to be in the oath for a nationalisation ceremony. I do not think it is any more, but that used to be a problem about retaining two citizenships. Whether the husband renounced his Indian citizenship or not, I cannot immediately tell your Honours. Certainly, when both parents, under Indian law, are Indian citizens, one would have thought that there would be no problem about the child being an Indian citizen, but Mr Brereton may be able to tell your Honour something ‑ ‑ ‑

GAUDRON J: Well, there may be a problem about retaining joint citizenship. It may be that under Australian citizenship law, if the child were to take out Indian citizenship, she would lose her Australian citizenship.

KIRBY J: I think – I have only followed this in the newspapers – it has been loosened up in Australia recently, but only recently, to allow dual citizenship. I would have thought at the time this child was born and was growing up that the strict dichotomy that you mentioned to renouncing other citizenships was enforced.

MR BROUN: Yes. Certainly, your Honour, for some years now – and how many, whether it is two, three, four, I cannot say – cases keep on cropping up where the children have two passports. Yesterday, I was dealing with one in the Family Court in Sydney where the children had Australian passports and US passports. That seems to be quite common. British passports and Australian passports also now seem to be almost commonplace. Going to any part of Europe, people clutch their British passport in their hand; going to other places, they clutch their Australian passport in their hand. But, certainly, people with two passports has become much more common than it was.

KIRBY J: I would like to know where we are in respect of 65Z. Is it relevant or is it not relevant? It did not seem relevant to me, but you seem to have backed back a little.

MR BROUN: No, its relevance only goes as an illustration of the way in which the court approached the issue, by looking primarily, and virtually first and only, at the issue of, “Does she go to India or not?”, namely, that there was no need to criticise or look at the husband’s actions because that was not considered. Accordingly, what we would submit were his very reprehensible actions in regard to section 65Z were not referred to, other than the statement of fact. That is, as we see it, its relevance, but also ‑ ‑ ‑

KIRBY J: You put some emphasis in your written submissions on the fact that the husband gave the tickets to the wife, tickets which, ultimately, she did not use to return, but, as it were, indicating that she could try reconciliation and if it did not work out, go back to India at the end of an interval with a paid ticket permitting her and the child to do that. Now, is that a factor in your argument and was it given proper consideration in the courts below, or not?

CALLINAN J: Mr Broun, was that the case or was it that the tickets were for a holiday in India, not necessarily to enable your client to take out or resume permanent residence in India?

MR BROUN: Your Honour is quite right. That was the husband’s purpose perceived by the wife, however, as potentially helpful in another respect. But certainly it was the husband’s purpose to say, “Here are tickets. You can have a holiday in India any time you like”, but, in fact, he took them back later so she did not have them to use on 31 August 1998 and she had to borrow money from a friend. Mr Brereton has correctly referred to the passages that establish that.

KIRBY J: Could I get it clear? She was in India with the child, was she not?

MR BROUN: Yes.

KIRBY J: Then she came back to Australia with the child?

MR BROUN: January 1998, yes.

KIRBY J: As I understood it, she did so pursuant to a representation of some kind that if it did not work out she could go back with the child? Have I mistaken the facts or not?

MR BROUN: The evidence does not go as far as that.

KIRBY J: I see.

MR BROUN: There certainly was a commitment by the husband that she could she go back to India with the child on holidays any time she wished, but on the wife’s evidence her coming to Australia was for two purposes: to attempt a reconciliation and it only took seven months for that to turn out to be hopeless, and also she placed emphasis on her reason for coming back, namely, to give the child opportunity to be closer and in more regular contact with the father and to re‑establish a nuclear family of father, mother and child. So that she had the two purposes ‑ which I think she actually, as I apprehend her evidence, put the interests of the child first in that regard of giving the child an opportunity to live in a household with mother and father but also, of course, that involved an attempt at a reconciliation.

It is correct, however, that the tickets were supplied by the husband on the basis that they were for a trip back to India with the child any time she wished, on holiday, but, in fact, by the time she decided to go they were not available to her any more.

I hope I have made clear, therefore, what we see as the marginal relevance of section 65Z, namely, that illustrates the way in which the court was directing attention to the issue of India or Australia ahead of the issue of determining the matters that the parties had brought before it for determination, namely, the wife’s case and wife’s proposal and the husband’s case and his proposal. The husband’s proposal just never seems to have been dealt with at all which is an illustration of rather compelling evidence that the trial judge and the Full Court just did not direct attention to what, we would submit, is the primary function of a court, namely, determining the issues brought before it by the parties and evaluating the proposals put by each of the parties.

Now, this Court has said in AMS v AIF that that is an important step or, at least, the first step or the primary step is to evaluate the proposals of the parties and that, we would submit, was not done. Now, can I say to your Honours frankly that if my argument succeeds here it is going to make international relocation cases very much easier for mothers. If there is a real evaluation of the two proposals first and we come to 65Y only as the second question to be considered separately and independently, my conception certainly is that it will make the application of a parent, a custodial parent, the residential parent, the parent with whom the child lives to leave the country, certainly a very much easier position, but where you have a ‑ ‑ ‑

KIRBY J: AMS was a national case.

MR BROUN: Indeed.

KIRBY J: And, therefore, this Court has not touched the issue.

MR BROUN: International ones.

KIRBY J: But am I right in my memory in that case that the mother in that case, too, said what most mothers will say, “I want to go to X, but if I have to I, of course, will stay with my child”. Was that the factual situation in that case?

MR BROUN: Your Honour, it was.

KIRBY J: It would be rare that it would not be.

MR BROUN: Your Honour, I can tell your Honour as a practitioner of this area, that in a number of cases I have said to my client, “Don’t say that” or “Consider whether you really want to say that”, but they always do. They always say, “No, if the child has to stay here, I will stay”, no matter what. I have not yet had a case where my client has been brave enough to take the risk of saying, “If you decide against the child leaving Australia I am going anyway and the child will have to live with the father”. It never happens. But, in this case, of course, had my client taken that bold step and run that risk of saying ‑ ‑ ‑

KIRBY J: And been believed that she would leave on her own without the child.

MR BROUN: Yes. She would have, in fact, in this case, have run very little risk, in my perception of the matter, because the case for the child to reside with her was simply overwhelming. There was really no sound case for the father at all.

KIRBY J: So, your argument is unless the courts do keep the two issues separate, because we face the reality demonstrated in AMS, which was a figure taken out of another Full Court case that 84 per cent are with the mother, that the cards are stacked against the mother and she will, in effect, be forced to stay where the husband is.

MR BROUN: Yes, your Honour.

KIRBY J: And that that deprives her of the assessment of the primary question which should be answered before you get to the second‑best solutions.

MR BROUN: Indeed. That is right. That is our contention, that this woman suffered it but every woman in this situation in case after case suffers it. If the court said, “Well, I’ve got three to choose from and I’ll pick one”, the one that, in effect, gives the husband what his primary concern is and gives the wife the residence, there is a great tendency to always go for that one.

KIRBY J: Do the English cases say anything about dealing with it in this way in international situations?

MR BROUN: Your Honours, the English cases, of course, have been considering these international relocations regularly far longer than we have, because they have become very common within the last 10 years and every year there seem to be more of them, but England has been dealing with them regularly for a long time and, indeed, the English cases very rarely deal with relocation cases within Britain because, basically, one can get from one end to the other with a one hour or one and a half hour plane flight so that they do not present big problems.

I am not conscious of any decisions in English courts of any significant cases on relocation within the country but our relocation cases have always, normally, been predominantly relocation within Australia; one reported decision even about Sydney and Canberra, though more often it is Sydney/Adelaide or Sydney/Perth or Perth/Darwin or Sydney/Darwin.

But the English cases have dealt with these international relocation matters very regularly and, if I could use one case as a peroration to my submission, I would say Payne v Payne, which is the most recent case in the English Court of Appeal, where the Bench was a very strong one, Lord Justice Thorpe, who at the Bar was a family law practitioner and is now one of the Lord Justices of the Court of Appeal, and the President of the Family Division, Dame Elizabeth Butler‑Sloss, the President of the Family Division, and both very strongly repeated all of the previous cases from the English Court of Appeal and English single judge decisions which have repeatedly gone the one way. I think there was one, there were exceptional – a very strange case, and two judges of the Court of Appeal went against it and one dissented in favour of the more traditional line.

Now, those cases regularly deal with the proposition that it is bad for a child to be living in a house with a sole parent who is discontent, unhappy, whose life is not what she wants it to be, and who in effect is placed under restraints that she does not want and her life plan is inhibited by restraint from moving. A number of them were quite strong cases of people who wanted to emigrate from England to New Zealand, or in one case England to Canada, never having been in New Zealand or Canada, never having had any relationship with those countries, but simply forming an ambition and a desire to make their life in a new country and they were permitted to do so, though in every case there is the objection from the husband, “But it’s going to interfere with my contact with the child”.

The English authorities repeatedly, time and time again, have said the primary question is, “How do we ensure that the child is properly nurtured in the best home that can be provided? How can we ensure that the mother is content, happy and is where she wants to be, so she can bring up her little chicken in the nest of her choice? How do we do that? Do we impose upon her isolation, unhappiness, even discontent so as to protect the contact of the father?” The accumulated wisdom there, repeatedly emphasised, is that it is damaging to a child to be brought up in a home with a parent who is placed under some discontent and unhappiness. In this case it was a very strong case, because the evidence of the counsellor was that the discontent to the wife was not just discontent, it was something that would be quite debilitating. I have given the references in our submissions to that, that it could be something that really seriously impinged upon her capacity to care and provide for the child in an appropriate way.

Now, those English cases, your Honours, I thumped the table with them in the Full Court more or less. I went through every one of them at some length, but their Honours in the Full Court did not think them worthy of any note.

KIRBY J: Is there any passage in Lord Justice Thorpe’s reasons which sustain your argument, that you have to put aside, in a sense, the fall‑back position which, of course, most custodial parents will take, that they will not separate, and concentrate first on who has the day‑to‑day custody and where that person should be allowed to live? Is there any passage that says that you have to approach it this way?

MR BROUN: No, your Honour, I have not found any passage in any of the English authorities where they really considered three propositions. They were always – and Mr Brereton may be able to correct me – I am sure he has been through them – but my recollection of all of the cases that I have referred to is that in every single one the question is, essentially, “Does the child live with the mother overseas in her place of choice or does the child stay in England with the mother in a situation of unhappiness”, because most of these cases arose where the custody or residency issue had already been determined, so they were considering, in effect in each case, really, just the second question that I have said arose in this one of should the ‑ ‑ ‑

KIRBY J: But do you not have two factual findings that were against you, namely, one, that your client was very self‑absorbed and more concerned with herself than the position of the child and, two, that there was a peculiarly strong, or certainly a very strong emotional dependency link with the father in this case and indeed that was said to tip the balance. These were two important factual findings.

MR BROUN: Those were the findings that were against us but, your Honours, particular in our ground attacking the procedure of the Full Court and what the Full Court did, we would raise the question of the illogicality of that and perhaps if I could pause to deal with that straight away. In effect, the trial judge formed a very bad view of my client essentially because of, first of all, her going to Indian with the child without the husband’s consent in 1995 and remaining thereafter in India for some time and, secondly, her attempt to do the same on 31 August 1988 and failing because of the steps he had taken.

There were some other matters, particularly the way she dealt with the ex parte order he obtained that the child reside with him, an order he obtained without notice to her in proceedings that he had filed some months before and never served on her, so she was also criticised about that. Now, all of those matters point very strongly to her desire to go back to India. However, the trial judge shifted that conclusion over to the consideration of the question of how reliable would she be about contact arrangements and how genuine would she be in maintaining the contact of the father and the child.

GAUDRON J: What does not seem to have been considered in that context, which I would have thought was important, was what steps could be taken within the Indian courts and to what effect they would be observed and how the Indian law would operate. Was there any evidence about that?

MR BROUN: There was the evidence of the ‑ ‑ ‑

GUMMOW J: I mean, the Indian orders were interlocutory, were they not – or expressed to be?

MR BROUN: I think they were or expressed as pending further order but there had never, in the years thereafter, been any attempt to seek any further order. They had been left in a ‑ ‑ ‑

GUMMOW J: They were pending divorce proceedings, were they not?

MR BROUN: Yes. Yes, they were express ‑ ‑ ‑

GAUDRON J: Restitution of conjugal rights, I think, by the husband.

GUMMOW J: Yes.

MR BROUN: Yes. They were, as it were, pending other proceedings but in fact those other proceedings were never taken or never came on so they remained, in effect, as permanent orders, but there certainly was – it was put forward by my client that she had the possibility of any order made in this country being registered and – I am sorry, identical orders being made in India and indeed she offered undertakings to support and ensure that there were identical orders made, whatever they were.

HAYNE J: Did the trial judge consider the effect of refusing orders that would allow relocation? Now, understanding that expressing it in that way may obscure some issues that arise, but did the trial judge consider the effect on the mother’s psychological and emotional stability, et cetera, of refusing her application that would permit her to go to India?

MR BROUN: Certainly, your Honour, in the judgment his Honour does set out some aspects of, indeed, the core material of the counsellor’s evidence of the effect upon the mother of retaining her in Australia without her family, isolated and the like.

McHUGH J: He did more than that, did he not? In paragraph 211 of the judgment he said that he accepted:

that if the wife did not reside in India this would impose pressures upon her and may diminish her capacity to cope and so diminish the quality of the lifestyle in her home.

Then he referred to B and B where the court said “that the long‑term unhappiness of a resident parent is likely” to have a “negative” impact on the child.

MR BROUN: Your Honour is entirely right. What I was intending merely to indicate was that he could, by quoting the evidence more extensively, have put it somewhat stronger than that. He does, in fact, quote other evidence but he comes down to the finding to which your Honour Justice McHugh has just referred, that we would say somewhat understates it but nonetheless it is there, that he accepts that the mother is going to be adversely affected and that the child, therefore, is going to brought up in a home that is less than ideal.

GAUDRON J: What his Honour seems to do, if you go to 212, is say, “Well, look, really it is only about social and personal reasons”.

MR BROUN: It certainly, we would submit, could have been expressed and ought fairly to have been expressed in much stronger terms.

HAYNE J: My question was provoked by what Justice Thorpe said in Payne v Payne [2001] 2 WLR particularly at 1837, paragraph 32. His Lordship said that:

Thus in most relocation cases the most crucial assessment and finding for the judge is likely to be the effect of the refusal of the application on the mother’s future psychological and emotional stability.

MR BROUN: Yes.

HAYNE J: Is that a proposition which you would embrace or qualify?

MR BROUN: Indeed, your Honour – no, I would embrace it, your Honour. We would say that that, even so, comes into what we would call the second issue after the primary question of adjudicating upon the respective cases or proposals of the parties had been dealt with.

HAYNE J: In doing that task which you say should first be undertaken or, perhaps, is the only task that is to be undertaken, if you are choosing between proposal by mother and proposal by father, do you accept that an important consideration, perhaps the important consideration, is whether, if you effectively compel the mother to remain in Australia, that will have detrimental effects on her emotionally, psychologically, perhaps financially, certainly socially and personally, and that you take account of those in considering what the welfare of the child requires?

MR BROUN: Your Honour, in the first issue, we would say, the primary issue of adjudicating on the balance of the two proposals, that question does not directly arise because what arises, if you look at the wife’s proposal, her proposal is the child is living with her, she is happy in India, she has family support. The bad thing in her proposal is that it means that the father sees the child in block periods in India or Australia and has telephone contact but does not see her every second weekend. So that in considering the first propositions and proposals, it does not come in as part of the wife’s proposal, and is not an essential ingredient there, because her proposal is, “I am in India. I am happy.”

It falls, perhaps, into his basket only in so far as he says – going into his side of the scales – “The child going to India means that I will not be able to see the child every second weekend. I will be at some expense to go to India once or twice a year, or there will be some expense bringing the child to Australia to visit me once or twice a year.” It is only, really, when one comes to the second issue of 65Y, that we would then come to what Lord Justice Thorpe, in my submission, very correctly describes as a crucial issue about leaving the country: what will the impact upon the mother be and, therefore, what will the consequential impact be upon the happiness and security and soundness of the home in which the mother will be rearing the child?

So we would say that, in effect, the crucial issue – rightly described as crucial – comes at that second point and it really here got put into the wrong question. It got put into consideration of the balancing of the two proposals.

GUMMOW J: Now, in fairness to the Full Court, Payne was decided later, was it not?

MR BROUN: It was, yes, but the Full Court also refers to a Full Court decision of A v A. Right at the end of their judgment, I think they refer to the fact that they have become aware of a decision of another Full Court of the Family Court in an international relocation case of A v A – one of the cases to which Mr Brereton has referred on his list – in which the Full Court of the Family Court in A v A, in our submission, very correctly said the first thing is to balance and consider the proposals of each of the parties with all their good features and all their bad features. We accept that the wife’s proposal which involved her in India had as a bad feature a detriment, that it would have affected the contact of the father with the child.

GUMMOW J: Are you pointing to some clash between the reasoning in A v A and in this case within the Full Court?

MR BROUN: Your Honour, we would say A v A got it right; that the first thing to do is to evaluate the proposals of the parties and, in this case, neither the trial judge or the Full Court did it, although the Full Court had become aware of it.

McHUGH J: This is the problem with your submissions, I just do not understand. I just do not understand this proposition that the trial judge did not evaluate the cases of the parties. What do you mean by that?

MR BROUN: Well, your Honour, there is nowhere in his Honour’s very extensive reasons a point where he says, “Well, of the wife’s proposal and the husband’s proposal, the wife’s is better or the husband’s is better”. He does not weigh up ‑ ‑ ‑

McHUGH J: No, he does better than that. He looks in 247 and 246 onwards at what are the best interests of the child. This third argument you refer about seems to be introduced by his Honour’s requirement, at 735, that he “must consider any other fact or circumstance” that he thinks is relevant. That seems to me that the wife said if she was unsuccessful in her application, she would have no option but to continue residing in Wollongong. Now, where did the learned trial judge go wrong? I read your submissions and I have heard your argument so far, Mr Broun, but it seems to me you are putting up some sort of straw man.

MR BROUN: It is a straw man with big consequences, your Honour, because if the matter had been approached in what we would submit was the proper way we would say that if he had evaluated those two propositions he must have come to the conclusion, “Look, as between those two propositions it is better for the child to be with the mother in India” and then ‑ ‑ ‑

McHUGH J: But there is no rule of law that a judge has to consider the case with this proposition or that proposition. I know that family law practitioners are like tax practitioners. They think that everything in their law reports is law but it is not. Most of it is just questions of fact.

MR BROUN: A lot of it certainly is, your Honours.

McHUGH J: No. The approach that you take in one case may or may not be a relevant way to look at another matter. It does not mean that a judge is bound to do it just because a Full Court did it in one case.

MR BROUN: No, your Honour, but ‑ I am sorry, I would agree with your Honour on that but there is what we might call an accumulated wisdom that can be acquired over a number of years.

McHUGH J: It does not mean there is an error in the exercise of discretion because you do not follow the accumulated wisdom. There would not be much social progress if that rule had to be followed.

MR BROUN: Your Honour, perhaps I can put it this way. Courts have to avoid what we might call social engineering because they are there to make a decision once. The matter does not come back to them for review. They do not get to sort of see the parties six months a year or two years later and say, “How’s it all going? Did I get it right? Should I fix it up?” They have to make a decision once and essentially, what the function of a court is is to adjudicate on disputes, to decide disputes. They may do justice, hopefully in most cases, but essentially they are there to resolve a dispute.

Now, if there is a dispute, that dispute should be resolved and it should be resolved first but if a court then goes in and says, “Well, I don’t like either of these ideas. I think it would be a better idea to do something different”, it may be ‑ ‑ ‑

McHUGH J: But that is not what the judge says. He said at 248:

In all the circumstances of this case, taking into account all relevant considerations, including, and importantly, the wife’s right to choose where she resides, and her unhappiness and its impact on the child if the wife and the child resided in Australia, I am of the opinion that the preferred option is that the child continue to reside in Australia with the wife. It is a case, which is finally balanced. However, in my view, this is the option that is in the best interests of the child.

Now, what is the matter with that?

MR BROUN: Your Honour, can I say first it was only finally finely balanced because the husband had two scales on his side, otherwise it was not finely balanced at all.

McHUGH J: Well, these metaphors do not help me, talking about scales.

MR BROUN: Your Honour, the injustice of it is that the wife really did not put forward this proposition. She did not, for example, put forward any proposal about contact if she was still in Australia or what was to happen. She did not advance the question of how it was to be managed, where she was going to be living, what her accommodation was to be. All the usual things were not there.

McHUGH J: I know she did not but the judge, in effect, gave her all that. He gave her most of the things that she would have wanted anyway or that she could have got. It came to him rejecting the wife’s case that the best interests of the child were that the child should live in India and the judge rejected it.

MR BROUN: Your Honour, in our respectful submission, that was done the wrong way. The way it was done produced not a level playing field. It put the wife, and it puts all mothers, in an absolutely untenable position where they are bound to lose every time.

McHUGH J: Well, they are not bound to lose.

MR BROUN: Well, they do ‑ ‑ ‑

McHUGH J: It all depends on the circumstances of the case. This case is of no precedent value whatever.

MR BROUN: I regret to hear your Honour say so, because this case has about it the features that crop up day after day.

McHUGH J: That does not make it a precedent.

KIRBY J: As I understand it, the strength of your case is that you say if this approach is permitted, then the cards are always going to be stacked against mothers, who are 84 per cent, or 50 per cent, or 70 per cent, or whatever it is, of custodial parents, because they will virtually always have the custody and they will virtually always say, “We won’t leave without the child”, and therefore they are in a sense chained or linked to the husband’s whereabouts, because it is a good thing that the husband should be available, especially with this husband who said that the birth of the child was the greatest thing that ever happened to him. He is obviously a very closely bonded father to the child. I do not take your submissions to deny that.

MR BROUN: No, your Honour, we totally agree.

KIRBY J: But you say that unless the courts look at the issue uncontaminated by this thing that mothers will always say, then the mother does not get a fair assessment of her entitlement to change her residence in this case, not just on whim going to New Zealand, but going back to the place where she lives, where both grandparents live, where she has lots of cultural and social and personal links, and she just did not get that case properly considered because in cross‑examination it came out, as it always comes out, “I will not leave without the child, ie, I will stay in Australia, if the worst comes to the worst”, and judges will always say, “Well, it’s better that you do just that.”

McHUGH J: Now, is it your submission – I take it you accept that.

MR BROUN: Totally, your Honour, with thanks.

McHUGH J: Yes, of course.

KIRBY J: I am just trying to help.

McHUGH J: Is it your submission then that the judge should ignore altogether the answer in cross‑examination?

MR BROUN: No, because we say it crops up then when we come to the second question, the second individual question under 65Y, “Does the court make an order” – and the court’s jurisdiction is enlivened and the court is asked to make an order, “Does the court make an order permitting the child to be taken out of Australia?” It crops up at that second point. If the first point had been fairly and soundly considered, then we start miles ahead on the second point, whereas the way it was in fact done we did not have a chance.

McHUGH J: So what you do is you eliminate altogether one aspect of the case in determining the question of custody, one important aspect?

MR BROUN: No, you do not, because the judgment at the end is going to deal with both issues. The question is, how are those issues to be dealt with? We say the fair way you deal with the first one, the proposals, come to a conclusion on that, then you look at the second question, the 65Y, where the court is asked to look at it by the wife. Indeed, as your Honours will see in our originating application, the court was specifically asked for that leave. The court has to consider it separately and it may be that at that point the court would say, “Well, although of the proposals of the parties the wife’s was obviously to be preferred, nonetheless there are such factors that we should prevent the wife from leaving Australia for a year, two years, five years, forever.”

McHUGH J: What is your answer to this, then, that 65Y only applies when a residence order is made, so you have got to make the order first before you can make an order under 65Y?

MR BROUN: Yes. Well, in the way it is just a matter – as one sets them out in the judgment, the residence order comes first, that is all.

GAUDRON J: I must say I find that a little artificial, Mr Broun, but what I do not find artificial is the notion that the judge should first consider which is the better in the interests of the child, namely, whether it should live with its mother in India or with its father in Australia and that if only it having decided that it would be better for the child to live with its father in Australia would it them become necessary to determine whether as between that the child’s better interests lie with living with the mother in Australia or the father in Australia.

That does involve some risk, I suppose, to a mother because she may lose out altogether. It may be said, “No, it is better for the child to live with the father in Australia”, full stop, but I can see a certain logic in that course and I can see that unless that course is taken the mother is almost inevitably denied an opportunity to get on with her own life. That is not the course you propose, is it?

MR BROUN: It certainly differs, but I think, ultimately, it comes to the same conclusion or the same result, namely, that there is a direct consideration of the two proposals first.

McHUGH J: Mr Broun, I disagree with Justice Gaudron on this aspect, naturally with some trepidation.

MR BROUN: I am sure she will forgive your Honour.

GAUDRON J: Oh, I would not make that assumption.

McHUGH J: It is a “winner take all” situation, on that basis. You say, we determine it is best for the child with the mother in India or with the father in Australia but what about the middle ground? Why does not – so, you might say, “Well, it is best for the child to live with the father in Australia rather than the mother in India”.

KIRBY J: The middle ground is Bali. It is not Wollongong.

McHUGH J: No, the middle ground is living with the mother in Australia, and, after all, it is the best interests. The interests of the parents are subsidiary. It is the best interests of the child that you have to look at, not the best interests of the father or the mother.

MR BROUN: Certainly, your Honour, one needs to review that question of moving to India or not. When one comes to 65Y it has to be considered. The Court must direct attention to it.

McHUGH J: Yes, but only after you have made a residence order. Why is not a judge entitled to say, “Well, I think it would be better for the child to be with the mother in India than to be with the father in Australia, but, all round, I think it is better for the child to be with the mother in Australia where there is contact with the father than it is for the child to be with the mother in India with little contact with the father”. Now, why can a judge not say that? That is what this judge seems to be saying.

MR BROUN: Your Honour, I think it may be a question of when he says it. I sort of bring to mind a case of some similarities where towards the end the judge sort of, in fact, said to the wife, “Had you not better consider the possibility or put forward as an alternative as staying in Australia with the child?”, in effect, inviting the wife to put forward the alternative proposal and flagging that there is a real risk that she might otherwise lose.

McHUGH J: I can understand that. In fact, I would have thought in this particular case if the judge had not taken into account “the mother in Australia” option, and she lost, you would be up here complaining.

Supposing the father had pressed his custody application and the judge had awarded custody because he thought it was better that there should be custody with the father in Australia than with the mother in India, you would have a legitimate cause for complaint that there was a case that stood out a mile and the judge had not considered it.

MR BROUN: Your Honour, with respect, no, because the judge would never have made a decision on the father having the residence of the child in Australia just on the basis of the relocation issue. The judge would have had to have decided residence with the father in Australia on the basis of the whole range of matters he is required to consider under section 68F. He would have had to have gone from A to L through that list and said, “Overall, looking at the lot of those factors this child should be with the father in Australia”. So, there would never be a case where a father, in effect, won residence solely on a determination of where the child was living. It could not happen. That would be, certainly, a clear breach of law because he would be required to consider the factors under section 68F.

What your Honour puts to me is a hypothesis, in my submission, that could not happen. It would have had to have been on the basis that considering all of the factors that the father should have the residence and in a case like this it does not seem very likely that would have happened. The judge took an adverse view of my client enough but still it was perfectly clear from the judgment that he attached – well, he never really examines the father’s application. It seems to just be dismissed out of hand.

McHUGH J: I thought the father abandoned it once he had heard the wife’s view, or am I wrong in that?

MR BROUN: He never abandoned his application that the child live with him in Australia. If, before the end of the case ‑ ‑ ‑

McHUGH J: Did he not abandon it, or am I mistaken?

MR BROUN: The Full Court referred to the fact that the submissions made by Mr Trench on behalf of the husband at the end of the case had largely given up much hope on the residence issue and were directed primarily to the relocation issue but, certainly, the husband never abandoned his case, his application that the child should live with him in Australia.

Your Honour, can I perhaps go back to my original illustration by saying if, at the end of the case or at some stage during the case he said, “All right, my application now is changed. My application is that the child remain with the mother but in Australia”, then that becomes the two cases to be balanced.

CALLINAN J: Mr Broun, I must say I find this artificial too because the arrangements in a case of this kind must necessarily be evolving arrangements. When the parties come to court they do not have final positions on these matters. Their positions change under cross‑examination and as a result of submissions and, indeed, as a result, perhaps, of intimations given by the judge and nobody should necessarily be stuck finally with the positions that they start with and, indeed, that would be contrary to the interests of the child.

MR BROUN: Your Honour, I totally agree with your Honour and can I tell your Honour that almost invariably, typically in the property case, at the end of the case the applications of each of the parties are very different from what they were at the very beginning but even so the practice is, and I would have thought simple justice requires, that they say what their final application is and, indeed, it is regular.

CALLINAN J: But they all must have backup positions because they do not know what the trial judge is going to decide. They must know that no matter what they put up there are likely to be qualifications to it in the final orders.

MR BROUN: Undoubtedly.

KIRBY J: And, indeed, that these will emerge from evidence that is given and that is unpredictable in its certainty to any party. For example, here, the judge apparently came to a conclusion that if the child did go back to India to live with the mother in India, that the mother would not afford access or might not afford access to the father.

MR BROUN: I think he put it that he was not satisfied that she would, rather than that he felt that she would not.

KIRBY J: Well, that rather suggests that he was looking at the matter as a multi‑factorial case and that he did consider the option of going back to and living in India. What you really have to suggest to us is that the error of principle is that he did not do so in the correct way or giving the correct analysis to that question in the first place because otherwise, if he goes to the so‑called middle ground, it is not at all inconvenient to the father.

He gets on with his life. He is living in Wollongong. He has his home. He can go and see his daughter every second weekend. It is no skin off his nose. It is perfect. It is the mother who has her own career, and I gather it is a career in international shipping or something. She is just lumbered there in Wollongong sitting waiting for the two‑weekly visits of the father, living in a culture or a society that is not her own, that she does not want to live in. She wants to have her mother and her father and her family and her support and she just does not get that properly considered. That has to be your case.

MR BROUN: That is it, your Honour.

HAYNE J: And do you go so far as to say that the question in cross‑examination, in effect, “If you had to remain in Australia as the price for obtaining custody” was irrelevant?

MR BROUN: No, your Honour, because it is certainly a relevant question.

HAYNE J: If that is so, if it is a relevant question to ask, does it not follow inevitably that the judge has to consider all of the possibilities revealed on the evidence?

MR BROUN: Its primary relevance, I suppose, your Honour, is, first of all, to the question of what is the mother’s real attachment to the child? It is a great test ‑ ‑ ‑

GAUDRON J: Well, no mother is ever going to say, when the question is asked, “My life is more important than the child’s”, except perhaps me.

HAYNE J: Just so.

MR BROUN: There may be one in 100 who would, your Honour. Unfortunately, I have never had that client.

KIRBY J: Joan Crawford took that view.

GAUDRON J: Yes.

HAYNE J: Have you not to go so far as to say that the question is irrelevant to the issues joined?

MR BROUN: No.

GAUDRON J: Or irrelevant until a determination has been made on the issues.

HAYNE J: Just so. So that if all that is on the table for determination is the issue about custody ‑ ‑ ‑

MR BROUN: No, because there is also on the table for determination her specific application for leave to take the child out of Australia.

HAYNE J: I understand that. Shear that off from this case. I understand the ease with which that represents the back door through which you step, but your proposition, if it is right, is one which has to be tested against the case where the sole issue for the court is, “Who has custody of this child?”

MR BROUN: Yes, your Honour.

HAYNE J: And in that case, is the question to the mother, “What would you do as the price for obtaining custody of your child?”, is that a relevant question to the issue as joined?

MR BROUN: Your Honour, I would submit that in fact its relevance was so marginal that it ought to have been disallowed because all it could go to, in my submission, would be the strength of the mother’s attachment to the child, as a test of that, but that it would be objectionable if it was put as a question going to the proposals before the court that the court was being asked to adjudicate upon. Perhaps if I could come back to your Honour Justice Callinan’s question and the proposition put to me. I would submit that even though one gets changes in the course of a case, inevitably, one would expect that at least before the case concludes there is clear from each party what they are asking for, so that the party may then perhaps apply to reopen their case, or to present further evidence, or at least make submissions. But where, in effect, the judge is considering a proposition which neither of the parties is putting forward as their position, then at least they ought to be warned about it. At least there ought to have been, as indeed, a judge I have appearing before this week has required, “Right. Well, now, I want details as to a proposition of the wife staying in Australia with the child, if I refuse leave to go.”

CALLINAN J: I would have thought it was an obvious possibility and it was a possibility that must have been in the parties’ minds at the close of the evidence, or before the close of the evidence.

MR BROUN: Your Honour, I suppose so, but in fact it was not addressed, and one would have thought, in that sort of situation, if it was in the judge’s mind, he ought to have at least said during submissions, “Hey, what about?” But he did not. One illustration of that is that he in fact ended up making the contact orders the husband had asked for because there was no alternative proposition put forward by the wife. She had not, in effect, addressed that issue. So the great merit of saying there ought to be a clear statement of what you are asking for and what the issues are, is that then they cannot afterwards sort of say, “Well, I did not know the gun was loaded.”

McHUGH J: Yes, but, Mr Broun, you have been at the Bar for 40 years.

MR BROUN: For 43 almost, your Honour.

McHUGH J: You know what happens in cases. There becomes almost an acceptance by parties. People do not have to spell it out. Then they come up in appellate court and they say, “Look at this, this point was not taken” et cetera, et cetera, or, “This objection was not taken. It has all been done by tacit consent.”

MR BROUN: Your Honour, certainly as to objections to evidence or points taken or untaken, I would certainly agree with your Honour but there is something pretty basic in what are you asking for and what is it that one side wants and what is it the other side wants. Now, if the husband had said ‑ ‑ ‑

McHUGH J: No, but all that I am putting to you is that it was understood by the parties that if the wife failed in her objection, then the orders that would be made would be a residence order in favour of the wife with contact with the husband. The wife spoke highly about the husband as a father.

MR BROUN: Yes.

McHUGH J: One gets the impression that she did not have any great objections to the arrangements that are ultimately made.

MR BROUN: Well, your Honour, that is one of the problems in this case is that the trial judge says, “I am not confident that she would adhere to contact arrangements in India” in effect, as if she had some onus on that regard, but one looks at the factual matters. While she was India for half of the child’s life, the husband had been there five times. He had stayed in the mother’s own home, was made welcome, treated with respect and courtesy. He spent the other three trips living at a near relative’s home quite close and was able to see the child on a daily basis, again treated with respect and courtesy. In Australia the father had had a regular contact and everything had gone well. There had been, I think, a very minor incident, a problem, when the contact regime was just beginning after she had first moved to Wollongong but that was never really investigated in the evidence.

So, there was all that evidence of the contact, of the wife supporting it, having been solidly in favour of it, and the judge, on the other hand, saying, “I am not satisfied that she would really support it and that that is really what her intentions are.” She did not get any credit for the fact that the child’s relationship with the father was good. Ordinary experience shows regularly if the mother is dead against the father, it tends to have an impact upon the child’s relationship with the father, and the fact that the child has a good relationship with the father is itself testimonial to the mother’s support of it otherwise it would not have happened. But, nonetheless, she seems to have lost on a credit issue that we would say logically had nothing to do with it.

GAUDRON J: I want to raise that credit issue. Now, there was evidence, I take it, that orders could be made in India, that the mother would consent to them.

MR BROUN: Yes.

GAUDRON J: Was there any challenge to the effectiveness of Indian court orders?

MR BROUN: No, your Honour, there was not and, in fact, the Indian orders had been obtained by the husband.

GAUDRON J: Was there any aspect of the decision in which the judge considered the making of orders in India and their effectiveness?

MR BROUN: Other than the fact that he made a reference to the fact that they had been made there was no further reference to them.

GAUDRON J: Now the next question I wish to ask you is this: did the wife’s primary case, at any time, depart from the matters set out at paragraphs 1, 2, 3 and 4 at page 3?

MR BROUN: From her originating application?

GAUDRON J: Yes.

MR BROUN: Your Honour, I did not conduct the trial, but certainly my belief is that she never departed from it. May I just check. Your Honour, the belief of both of us is that she never departed from that and that was always her position throughout the whole case.

GAUDRON J: My next question is this: was there any investigation as to what access the husband could or would enjoy in India pursuant to those proposals?

MR BROUN: The wife gave detailed affidavit evidence as to what had happened the previous time and indicated that any time he was in India he was going to be welcome to spend time with the child.

GAUDRON J: Did the husband give any evidence to the effect that, “Well, that would be of no value to me because I could never get to India”?

MR BROUN: No, he did not.

GAUDRON J: Or “I could only get to India on a few times a year”?

MR BROUN: That reminds me, I think he said that he could only get there twice a year or get leave twice a year or have two trips, but the wife had also proposed, of course, that the child could come back to Australia to spend time with him.

GAUDRON J: Yes, she is proposing for two months every year.

MR BROUN: Yes.

GAUDRON J: And that she would come back with the child.

MR BROUN: Yes.

GAUDRON J: Now, was there any consideration as to the workability of that proposal other than the judge’s expressed unwillingness to assume she would be co‑operative?

MR BROUN: No, there was no other investigation or criticism.

GAUDRON J: Was there any consideration as to the benefit on the development of the relationship between the husband and the child if there were contact of the kind proposed by the wife as distinct from weekend‑type contact?

MR BROUN: Yes, there was, your Honour, because the counsellor’s evidence turned very much on the question of what was referred to as age‑appropriate contact.

GAUDRON J: Exactly.

MR BROUN: For a young child, contact at more frequent intervals is more valuable than for an older child and that is, indeed, the point we raise in the second ground.

GAUDRON J: Was there any consideration, therefore, even if it be appropriate to deal with the matter in the way in which it was, as to reconsideration when the child was somewhat older?

MR BROUN: No, it was not touched on and, indeed, that is the thrust of our second ground of appeal. Ultimately, the case turned on what was solely a short‑term question and that the long‑term welfare of the child was not considered and the long‑term impact on the child of the mother’s discontent, to use as near to a neutral term as we can, with residence in Australia, would have upon the child and the long term, and the long‑term impact upon the mother of being held here for further years, was not considered at all whereas what the case turned upon was the desirability in the short term while the child was young – the counsellor never said how young or when that would stop – of age appropriate contact of fortnightly rather than three or four times a year.

CALLINAN J: Mr Broun, these proceedings are a little different from most legal proceedings in the sense that the parties do not define in an ultimate way the issues as they might in conventional litigation. The issues are defined by the act itself, and the welfare of the child is the issue.

MR BROUN: No, your Honour, it is the paramount issue.

CALLINAN J: The paramount issue, exactly.

MR BROUN: That does not exclude other issues.

CALLINAN J: All right. It is the paramount issue, and it is to that issue that the parties’ minds should be directed from the inception of the case right until its end, and all sorts of possibilities will emerge as the case develops.

MR BROUN: Certainly, your Honour, but being paramount and not the sole consideration still means that the wife’s rights are entitled to be looked at.

CALLINAN J: Exactly, and all those matters are there. They are in the legislation and the parties can direct their attention to them and their submissions to them.

MR BROUN: Yes.

CALLINAN J: And those are the issues. The issues are not simply the respective proposals of the parties.

MR BROUN: Your Honour, what I am focusing on perhaps is that ultimately the husband never said, “Forget my application, put into my pan, on my side of the scales of justice, just the wife staying in Australia.” Accordingly, that issue was, as it were, a bit overbalanced.

CALLINAN J: I understand your submission. I am just surprised to hear you say that that could not have been a possibility that presented itself to everybody in the court right from the beginning of the case.

MR BROUN: Certainly it is a possibility. Of course Mr Millar, who conducted the matter at the first instance, we must assume, he being an experienced practitioner, it would have been present to his mind as a possibility but, in effect, it was never formally put forward by either the wife or the husband. It was adopted by the judge in a way which we say was just inimical to a fair deal.

McHUGH J: This point that you raise in this Court, was not even a ground of appeal in the Full Court.

MR BROUN: It was and, indeed, it was argued in the Full Court. We put it ‑ ‑ ‑

McHUGH J: By you, but counsel, who I assume drew the notice of appeal, did not bother to say he is being denied natural justice.

MR BROUN: Your Honour, what we did was to say in this notice of appeal that they did not apply the principles suggested by this Court in AMS v AIF and one of those was the appropriateness of considering first the two respective claims, and proposals.

GAUDRON J: Now, it is not entirely right to say there are two respective claims and proposals. In fact, it is a bit more bizarre than that. The husband seeks orders, as I understand it, that if the wife resides within Sydney/Wollongong area, which she does not propose, then she will have custody, in effect, and he will have access, and two, that if she does not, then if she resides more than 100 km away from that area, then he will have it. Now, the alternative third case is not the wife’s case. It is a case injected by the husband. It seems to me to be a little odd. The husband is not really putting up a proposal of the child – not putting up a primary proposal. He is putting up a proposal which seems to me, “Keep the wife in Australia. Keep her within a particular geographical area.”

MR BROUN: But, of course, that points up the egregious error ‑ ‑ ‑

GAUDRON J: It may point up what is a sort of practice with respect to these matters of throwing all the balls up in the air, no matter by whose arm they are thrown into the air.

MR BROUN: Your Honour, can I say two things about that. First of all, your Honour will note the very serious error made by the trial judge ‑ your Honour’s point makes it even more obvious an error – of saying that the wife’s alternative proposal was that she stay in Australia. It was not.

GAUDRON J: It is not an alternative. It is the husband’s first proposal, first counter‑proposal.

MR BROUN: The second matter I would say is more, perhaps, a matter of practice and procedural fairness, that courts generally discourage the practice of throwing a lot of balls up in the air and saying, “Well, catch one.” The practice is, generally speaking, to say to people, “Well, what really are you after? Don’t come here to ask us to frame the orders that you want. You tell us what you want and why.” So that, in my submission, that is certainly the better practice than throwing a lot of balls in the air.

McHUGH J: We do not have the transcripts of addresses in this case.

MR BROUN: No, your Honour, they were not before the Full Court either, but somehow or other the Full Court seems to have got access to them and to have referred to them because they refer to Mr Trench’s final submissions. I certainly have not seen them. Mr Brereton may be able to correct me, but my belief is that the appeal books before the Full Court did not contain the transcript of the submissions but, certainly, they would have been presumably in the court file. If the total transcript had been taken out, they would have been available to the members of the Bench but, certainly, it was not something discussed in the course of submissions before the Full Court.

GUMMOW J: The transcript at trial would not ordinarily be taken out, would it?

MR BROUN: No, it is only taken out if one of the parties not only asks for it but pays a not inconsiderable charge – I think it is still $7.50 per page – so it is not ordinarily prepared. For an appeal, certainly, it is taken out but in my experience usually economy suggests just the transcript of the evidence, but sometimes, sometimes not.

GLEESON CJ: Mr Broun, what stage have you reached in your argument?

MR BROUN: I have really said, I think, all I can say about ground 1 and, your Honours, the rest I could, perhaps, deal with fairly shortly and succinctly.

KIRBY J: Just before you go on, concerning a point of evidence. What was the evidence relating to the employment of the respondent and the employment of your client?

MR BROUN: The husband had had a series of employments, in effect, as an accountant. He was, at the time of the trial, employed in a senior accounting position, my recollection is in a private hospital group or something in the health care industry, but certainly he had had in his time in Australia a number of jobs as an accountant in various industries. The wife, the evidence was that she had been living in Mumbai. She had spent some time in the shipping industry in London as a charterer of ships, in effect, a person engaged in arranging the chartering of ships or finding suitable ships for a charterer.

McHUGH J: Shipping broker, was she not?

MR BROUN: Shipping broker, in effect, yes. I think one of the documents called her a shipping clerk, but essentially somebody concerned with the arrangements of freighting and so on, that she had resumed that employment in Mumbai and in Australia she had not been able to find any such employment and, indeed, her care of the child had presented difficulties about her finding any sort of full‑time employment. So at the time of the hearing she had not been in any full‑time or continuous employment and was at the time of the hearing, I think, in receipt of some social services. But certainly one of the matters that she advanced as to return to Mumbai was the possibility of resuming employment in the shipping industry in a way she had previously worked in that very important ‑ ‑ ‑

KIRBY J: Had she acquired Australian nationality, or not?

MR BROUN: No, I do not think she ever did.

McHUGH J: No.

KIRBY J: No.

MR BROUN: No. Mr Saunders and I, both our recollection is that she never acquired Australian citizenship but she did get that sort of visa that allows her to be in long‑term residence, so that she never actually went through the process of becoming an Australian citizen.

HAYNE J: Given that the matters mentioned by the counsellor were particularly related to the age of the child, did either party, at any stage of proceedings at trial or on appeal in the Family Court, seek to mount an argument that the arrangements should be limited in time?

MR BROUN: Your Honour, certainly before the trial judge nobody did and, indeed, there would not have been any evidence to support it because the counsellor never really gave any evidence about how long and there was not any evidence that it would have enabled a Full Court to do it either, the problem being that the counsellor said, “At this age this is appropriate”, but nobody thought to ask, “When does it change? Is it seven? Is it nine? Is it 12?”

GAUDRON J: That was a court counsellor, was it?

MR BROUN: Yes.

GAUDRON J: So, the counsellor was not called by the parties?

MR BROUN: Your Honours, in fact, the Full Court said that the trial judge was wrong about that at page 765, paragraph 30. Indeed, your Honour, that is the thrust of my second ground, that essentially the case turned on what was a short‑term question.

My ground 3 I think I have really essentially dealt with also because all of these grounds overlap and what I am trying to put to your Honours there is that the mother does have rights to be considered over and above or as well as and alongside the welfare of the child, although the welfare of the child is paramount. If the welfare of the child can be properly protected, then the mother’s rights need to be considered and have to be properly taken into account and one basic right of people is to move to a country that is willing to have them and there was no problem about that.

GAUDRON J: It is a bit more important than that, is it not?

MR BROUN: Yes.

KIRBY J: This is not a refugee situation. She is going back to her grandparents and her country of origin and nationality and support ‑ ‑ ‑

GAUDRON J: No, but she is an alien in this country, at this stage. She is a national of another country.

MR BROUN: Yes. At the very least, she is an ethnic minority in this country but she is certainly an alien. Without being a citizen she has a right to reside here.

GAUDRON J: What are her social security rights as an alien? Was that considered? You said she was in receipt of some social security.

MR BROUN: She certainly was and I think she still is. My understanding is that she is, in the circumstances, eligible and that she does not get excluded by being a non‑citizen, as long as she has the right residential rights.

KIRBY J: The child is an Australian citizen.

MR BROUN: Having been born in Australia, yes.

KIRBY J: And she is a carer of an Australian citizen, residing with the child.

MR BROUN: Of an Australian child, yes. I think that is one of the things that get her in but I think there is another one just based on her period of residence and right of residence. Then, your Honours, ground 4 is designed to give me an opportunity – essentially, 3, 4 and 5 – to talk about the English cases, but it is essentially the matter that I have already dealt with of the impact upon the child of, in the long term, of a mother’s discontent, in this case, debilitating discontent, as the counsellor had said, of being compelled to live in an alien country and I perhaps cannot add anything to more to what I have already put in the submissions.

Ground 5 I believe I have covered because that deals with the – related to ground 1, the section 65Y questions. Ground 6 I think I have already covered in dealing with the illogicality of attaching to a conclusion that she had acted discreditably in relation to the going to Indian in 1995 and the attempt to go again on 1 August 1998. The discredit attached to her in that regard had been carried over by the judge to the question of would she be likely to support and assist contact.

Now, this is the sort of problem, of course, that we face in every jurisdiction regularly, a party does something discreditable, does that mean you disbelieve that witness on everything? Does one then use that discreditable action only in relation to related issues or is a court justified in saying, in effect “hated her, loved him” and deciding everything in favour of the party who is not hated.

KIRBY J: I am sorry you have to deal with it often, but so do we.

MR BROUN: Yes.

KIRBY J: There are principles and the principles include respecting the assessment of the primary judge who sees the witness, whereas we do not, and the primary judge did, apparently, come to a conclusion, against this background, that there was a doubt and a risk that your client would permit access. Now, in the case of a father like this father that would certainly be a very relevant consideration because that would be a gross injustice to him if the mother relocated to India and he was denied access to the child and, more importantly, it would be a gross injustice to the child. That is an assessment by the judge.

MR BROUN: Yes. But, your Honours, we would say there are two things wrong with that assessment by the trial judge and therefore we would say, as we said to the Full Court, it is open to review, namely that the assessment was based upon matters that had no logical connection, when, as to contact, the evidence was so strong of her support of it. Family law practitioners experience exceptional support. It is the only case I have ever had where the separated mother has said the father come and stay in my house while you are having contact with a child and that happened twice in India. Now that is almost unique.

KIRBY J: But that is in the past, that is before they came back and then sought to have reconciliation; it broke down and now they have had this ding-dong battle and the judge considering it in the light of the two steps of taking the child away ‑ relevantly the second ‑ came to a view that the welcome mat might not be out next time.

MR BROUN: Your Honour, against that was the evidence that the father agreed and accepted that since the mother had been living in Wollongong, and during the interim period between the separation and the hearing, the contacts had been generally, except for a very minor instance at the beginning, of complete co‑operation from the wife. He, in fact, answered the question ‑ I think I refer to it in the submissions ‑ as to, “Has your wife always been co‑operative since the final separation in August 1998?---Yes, she has.”, and, indeed, the testimonial of the child’s good relationship with the father, which just normally does not happen if the mother is dead against the father or opposed to the contact. If contact is stressful to the child, because the mother opposes it, the child does not appropriate blame as to whether it is mother’s fault or father’s fault; the child just wants to avoid it because it is a pain. But in the situation where the mother is co‑operative, the child can go to the contact and enjoy it and that is what has been happening. The mother should have been given big ticks and sort of acknowledgment that that must be partly her doing.

KIRBY J: Yes, but she was not, and you are asking us to overrule the primary judge’s assessment, which the Full Court would not do. What is our authority to do it?

MR BROUN: Because, we would say, that the Full Court failed in its duties and responsibilities in not looking at it as to whether it was entirely logical to take from her undoubted desire to get back to India. Absolutely unquestioned, everybody said it, and she had acted in accordance with it. To take from that a conclusion that she might not be reliable about contact when there had been consistently such evidence of extraordinary co‑operation about contact. Is it just, we would say, illogical, it does not work, it is shouting Abalos rather than looking at the real basis of a decision. It is not really the review that the Full Court should have given to that finding when the facts were so starkly the other way.

McHUGH J: Yes, but the judge took the view that she was manipulative.

MR BROUN: I suppose, when somebody is trying to achieve an objective that is so dear to them, everybody could be called “manipulative” trying to achieve it. It is a matter of course, I suppose. I think that is really all I can put to your Honours in support of my written submissions and if there are any other matters I can assist your Honours, but if not, those are our submissions.

GLEESON CJ: Thank you, Mr Broun. Yes, Mr Brereton.

MR BRERETON: May it please the Court. May I begin by bringing us back to what the trial judge decided and how the Full Court upheld it.

GUMMOW J: Now, in doing that, Mr Brereton, I would be assisted if you would take me through the rules and provisions of Part VII.

MR BRERETON: Certainly, your Honour.

GUMMOW J: You are deeply familiar with them; I am not. One needs to be to understand the parameters of what was going on.

MR BRERETON: I will certainly do that and perhaps ‑ ‑ ‑

GUMMOW J: I do not know at the moment under what sections what applications were being made.

MR BRERETON: Can I do this by reference to the extract which appears behind tab 2 in the folder containing our submissions. I believe we have extracted there the relevant provisions.

GUMMOW J: Well, you have not, because you have not got section 68F.

MR BRERETON: I am sorry about that and I will ‑ ‑ ‑

GUMMOW J: You stop at Division 10.

MR BRERETON: I will need to come to 68F, obviously. Can I start then with section 60B, which sets out the object of the Act and, importantly, in 60B(2), asserts as an underlying ‑ ‑ ‑

GUMMOW J: Is there not some debate in the Family Court as to the relationship between 60B and 68F?

MR BRERETON: There is or there has been in B v B, Family Law Reform Act but the importance of 60B is that it establishes norms or principles against which the operation of 68F is to be seen. Now, 60B(2) establishes some critical underlying principles as they apply to this case. By paragraph (a) the children:

have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated –

or whatever, and paragraph (b):

children have a right of contact, on a regular basis –

not once a year –

with both their parents and with other people significant to their care, welfare and development ‑ ‑ ‑

GAUDRON J: Where is this child’s right of contact with her Indian relatives that? It could be significant to her welfare and development. I mean, if you are relying on these motherhood statements, they cut both ways.

MR BRERETON: They do, but the one that ‑ ‑ ‑

GAUDRON J: And they are really only motherhood statements, are they not?

MR BRERETON: Well, one would hate to devalue ‑ ‑ ‑

GAUDRON J: Or mother and fatherhood statements.

MR BRERETON: I was going to say, one would be reluctant to devalue motherhood in such a way, but 60B(2)(a) comes first, and to the extent that order is of any importance, that emphasises parents first.

GAUDRON J: Yes. Where is the shared duties and responsibilities when a mother has virtually – well, it is something like 80 per cent of the cases the mother is the primary caregiver and, I suppose, in a goodly percentage of those cases, statistics would disclose, has to forgo her career opportunities, whereas the husband does not, and in a good number of cases has to live on social security, when a husband does not. Now, I do not understand that as shared duties and responsibilities.

MR BRERETON: It can have a great deal to do, your Honour, with shared duties and responsibilities when the father, by pursuing his career, in that 84 per cent of cases if it be that, is providing the financial support for the family albeit a separated one. In any event ‑ ‑ ‑

GAUDRON J: I should have thought it would be – this is why I say these are just motherhood statements. I should have thought if you wanted to look at it properly, it would be a much better situation if both parents could realise their full potential and could deploy the benefits of the realisation of their potential to the benefit of children.

MR BRERETON: And ultimately the judgment which a trial judge has to make is how the benefit of the children is to be best served by where that child is to be placed, both, with which parent and ultimately where geographically.

GAUDRON J: All of that is undoubtedly true, but to the extent you rely on 60B(2) ‑ ‑ ‑

MR BRERETON: 60B ‑ ‑ ‑

GAUDRON J: I just do not see that there is any notion of shared duties and responsibilities in the way in which the matter was worked out.

MR BRERETON: Not for want of the husband having applied to be the principal residential carer, your Honour.

GAUDRON J: His primary application was not to be the principal residential parent.

MR BRERETON: It was, your Honour.

GAUDRON J: His primary application, according to the documents in volume 1, was the mother stay in Wollongong and so forth.

MR BRERETON: But with the husband as the primary residential parent, your Honour. If I can your Honour back to the document which your Honour was looking at page 8 of volume 1, paragraph 1 sought that the wife’s application wherein she sought residence be dismissed. Paragraph 2 sought that the child reside with the wife for certain limited defined periods of time, and 2(b) with the husband for all other periods of time.

GAUDRON J: I see, yes.

MR BRERETON: So the husband’s primary position at trial and until the wife came from an alternative position, was that the child should reside primarily with him.

GAUDRON J: Again, that is not – is that shared?

MR BRERETON: In so far as it might have been inferred from your Honour’s questions that my client was seeking not to take on a full burden of caring for this child, it rebuts any such inference.

GUMMOW J: Do we not then have to look at Division 2?

MR BRERETON: We do, your Honour, and I do not know that we go directly – can we go first before we go to Division 2 to the definition section in section 60B. “Parental responsibility” is defined as having the meaning given by section 61B and “parenting order” the meaning given by 64B(1). We then go to Division 2, as your Honour says, which is concerned with parental responsibility. 61B defines “parental responsibility” as meaning:

All the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

It is my submission that one of such duties, powers, responsibilities and authorities is deciding where physically the children live. In other words, location is an aspect of parental responsibility. Section 61C provides the starting point, that “each parent has parental responsibility for the child”. This is sometimes an incorrectly described as joint parental responsibility. In fact, it gives each parent poll parental responsibility for the child. That is then subject to modification by a court order, and 61D provides that a parenting order which is – I am sorry, I need to find that elsewhere. We need to go to 64 to find what a parenting order is, from recollection, 64B.

GUMMOW J: Yes, we will have to go to Division 5.

MR BRERETON: Section 64B defines a “parenting order” as one dealing with a matter under subsection (2) and that means (a) residence:

(b) contact . . .
(c) maintenance of a child;
(d) any other aspect of parental responsibility ‑ ‑ ‑

GUMMOW J: Now, what was happening here with these applications and cross‑applications in terms of 64B(2)?

MR BRERETON: Two things: the wife was seeking or the mother, the wife was seeking a parenting order, that is an order under 64B(2)(a) that the child live with her most of the time and with the husband some of the time. The husband was seeking a parenting order also under 64B(2)(a).

GUMMOW J: They are then called residence orders.

MR BRERETON: They are called residence orders under another section, under 64B(3). I think, and I will just have Ms Boyle check this, the wife was seeking a residence order in her favour with a contact order in favour of the husband. The husband was seeking a residence order.

GUMMOW J: The other way around, as it were.

MR BRERETON: The distinction though is that the husband was seeking split residence in the sense that the child would reside with him part of the time and the mother less of the time so it was framed as divided residence rather than residence plus contact.

GUMMOW J: Thank you.

MR BRERETON: That is the order which is ‑ ‑ ‑

KIRBY J: Can I just ask: is contact limited where the contact is had at the residence of the primary caregiver whereas here, as I understood it, the daughter went to the husband’s residence for alternative weekends.

MR BRERETON: No, your Honour, it is not so limited and contact is used equivalently to describe the sort of contact which the husband ultimately has in this case but judges sometimes prefer to use the concept of divided residence because it recognises a greater role for the non‑primary residential parent in the child’s life.

KIRBY J: It is symbolic really, I suppose.

MR BRERETON: It is partly symbolic, but, in my submission, it is more than that. It recognises an almost equivalent role or even an equivalent role though less in time to that other parent and it gives greater meaning to the section from which we started, 61C, that “EACH PARENT HAS PARENTAL RESPONSIBILITY (SUBJECT TO COURT ORDERS)”. So, it gives greater weight to the concept of joint parenting which is the starting point. Then I think I need to take your Honours to section 67ZC.

GUMMOW J: Well, wait a minute.

McHUGH J: Section 65D and E.

GUMMOW J: I mean Division 6 is creating jurisdiction, is it not?

MR BRERETON: Division 6 authorises the making of applications for parenting orders other than child maintenance orders and goes on to deal in 65C with the persons who have standing to make such applications and 65D confers the power to “make such parenting order as” the court “thinks proper” and that is, to an extent, reflective of what your Honour Justice Callinan was referring to earlier that in cases concerning the welfare of children, although they are conducted to an extent as adversarial proceedings, there is a non‑adversarial element in which the overwhelming concern is the interests of the child and in that way the court is not constrained by the positions put forward by the two parties as defining the issues.

An illustration of that is this Court’s judgment in CDJ v VAJ, the case which came to this Court on the receipt of fresh evidence, or further evidence, on appeal and this Court held in that case that the paramountcy principle, although it did not apply directly to a decision to receive further evidence on appeal was, nonetheless, very influential in such a decision. That reflects that the normal constraints of positions adopted by the parties at trial in adversarial litigation do not apply with the same rigour in this type of litigation.

CALLINAN J: The court, on its own initiative, can do various things, including appoint separate representation for the child, for example.

MR BRERETON: Absolutely, your Honour.

CALLINAN J: You cannot register a parenting agreement unless the court approves it.

MR BRERETON: Exactly, your Honour.

CALLINAN J: So, there are all sorts of things that the court does that perhaps it would not do in conventional or other litigation.

MR BRERETON: Similarly, if the court is asked to make consent orders concerning residence or contact. It does not make them as of course by filing a consent order. The court is still bound to consider whether those proposed consent orders are in the best interests of the children. Section 65E is the paramountcy principle and it relates to parenting orders. It follows from what I have already put that because location is an aspect of parental responsibility and because an order providing for where physically a child is to reside is an aspect of parent responsibility, and, therefore a parenting order, the paramountcy principle applies to it.

Section 65F deals with counselling and 65G illustrates the point I was just making about the preconditions to making residence orders and specific issue orders in favour of – I will withdraw that, that is not quite right. I think I can then go to ‑ ‑ ‑

GAUDRON J: Does everybody have to go through counselling in this jurisdiction, now, virtually?

MR BRERETON: Yes.

GAUDRON J: My goodness. Do you mean there is so little autonomy that people cannot even work out things between themselves? We have come to such a nanny state as that, have we?

MR BRERETON: Not for consent. That is why I was withdrawing what I was saying about that section to which I was just referring, your Honour. It seems to concern special classes of orders, that is orders in favour of non‑parents.

KIRBY J: It says the “Court may order” so, presumably, it is not compulsory, it is only where the Court considers it is appropriate under 65F(2), and sometimes it would be helpful, one would think. Not everybody is robust.

GAUDRON J: Otherwise than in favour of a parent.

MR BRERETON: Yes.

GAUDRON J: And:

with the consent of all the parties ‑ ‑ ‑

MR BRERETON: The short answer to the question about counselling is that there is a provision which requires that the parties undergo counselling before any contested litigation. May I then turn to Division 8E. Section 67ZC ‑ ‑ ‑

GUMMOW J: Wait a minute. Then you have got to get to 65M, have you not? Because at 65M it then imposes an obligation. True enough, in some circumstances it may turn into a criminal offence but the primary obligation under the Act is created by 65M, is it not:

A person must not . . . remove . . . refuse or fail –

et cetera.

MR BRERETON: Effectively, what 65M and 65N do is to prohibit interference with residence and contact orders.

GUMMOW J: Yes. So, what happens if there is no international convention and the relevant parent is required to live in a particular area, and shifts area? Is that a breach of 65M, then?

MR BRERETON: I am sorry, would your Honour put that again?

GUMMOW J: There is an order which requires one parent to live in a particular place with the child. The parent does not want to live there any more, wants to move to another area inside Australia. That, then, brings down section 65M, does it not? Is that enforced by injunction against this person? What happens?

MR BRERETON: An order that a parent live in a particular place is not a residence order and does not fall within 65M. The residence order is the order that the child live with the parent.

GUMMOW J: In a particular place?

MR BRERETON: In so far as it requires the particular place, that is dealt with separately by an injunction restraining the parent from changing the child’s place of residence.

GUMMOW J: I know, but what is the foundation of the power to make the injunction, other than 65M?

MR BRERETON: I am coming to that, your Honour.

GUMMOW J: Right, because it is a fairly severe constraint on civil liberty, really.

MR BRERETON: Section 67ZC provides for orders relating to welfare of children and by subsection (2) the paramountcy principle applies to such orders. Section 68B is the jurisdictional foundation for the injunction and provides ‑ ‑ ‑

GUMMOW J: First, the protection of the child.

MR BRERETON: But that is not a limiting definition, your Honour. It is:

such order or grant such injunction as it considers appropriate for the welfare of the child, including –

four categories, but not limited to them.

GUMMOW J: Yes.

MR BRERETON: That is the jurisdictional foundation for the injunction granted in – or the Western Australian equivalent was the jurisdictional foundation for the injunction in AMS, and that was the foundation for the injunction granted in this case.

GAUDRON J: Was an injunction sought in this case?

MR BRERETON: It was.

GUMMOW J: Where do we see that?

GAUDRON J: We do we find that?

MR BRERETON: The husband’s application, volume 1 ‑ ‑ ‑

McHUGH J: Was not an order made by the Local Court at one stage, an injunction?

MR BRERETON: There was an order made by a Local Court at one stage, but the injunction was sought in volume 1 ‑ ‑ ‑

GUMMOW J: As Justice Hayne reminds me, page 11.

MR BRERETON: ‑ ‑ ‑ page 11 and page 12. One wonders, frankly, about the injunction at the foot of page 11 and the way it is expressed, but the one at the top of page 12 is clear enough and his Honour ultimately made both of those orders.

GUMMOW J: Where do we see those orders?

MR BRERETON: In volume 4 at page 749, 750 at line ‑ ‑ ‑

GUMMOW J: Yes, I have it, paragraph 11.

MR BRERETON: Yes.

GUMMOW J: That is restrained permanently, is it, forever? It is a final injunction, is it?

MR BRERETON: It is a final injunction but orders made in respect of the welfare of children and injunctions so granted are never final in the sense that applications cannot be made to vary them. If authority be needed for that, there is a decision of the Full Court of the Family Court in a case which, I think, is called Rice and Asplund – and Ms Boyle will find the reference to that. But it is always open to come back to a court at first instance and apply for a variation of a residence order, apply for a variation of a contact order and apply for a variation of an injunction preventing relocation and, indeed, such applications are far from rare, including applications to vary injunctions restraining relocation.

GAUDRON J: Well, the husband is also restrained.

MR BRERETON: Yes.

GAUDRON J: Who applied for that?

McHUGH J: He did.

MR BRERETON: The husband did.

HAYNE J: Statutory warrant for variation of parenting orders, though not, I would have thought, statutory warrant explicitly dealing with variation of injunction, is 65D(2), is it not?

MR BRERETON: Yes, your Honour.

HAYNE J: Is there statutory provision made explicitly for discharging injunctions of the kind with which we are now dealing?

MR BRERETON: I think not, your Honour, we will check that.

HAYNE J: Thank you.

GUMMOW J: Because, on its face, 65D is not dealing with 68B.

MR BRERETON: On its face, that is so, your Honour. I am reminded that a further instance of an application – a more recent case than Rice and Asplund in the Full Court dealing with applications to vary parenting orders is D v Y (1995) 18 FLR 662.

KIRBY J: Presumably you have to show some change in circumstances to alter the order.

MR BRERETON: That exactly is the test originally enunciated in Rice and Asplund, that when one applies for a variation it is necessary to show a change in circumstances but such a change in circumstances may well be that the child is five years older and a different contact regime is now appropriate for a child who is five years older.

HAYNE J: As a matter of sound practice, surely it would be better that injunctions of this kind, if they are to be granted, should be granted pending further order, possibly, in some cases, be granted with specified limit of time, as, for example, during the child’s minority even, but to cast the injunction in absolute terms is, at the least, apt to mislead, is it not?

MR BRERETON: It may well mislead, your Honour. I think it is fair to say that such an order as was made in this case would ordinarily be taken as being limited to the child’s minority, because at the expiration of that the parent would have no right to change the – orders as to parental responsibility would expire and the parent would not be in a position to change the child’s place of residence in contravention of the injunction. The child would be voting with her or his own feet.

GUMMOW J: Now, looking again at page 750, orders 12 to 14, they are a species of mandatory injunction, are they?

MR BRERETON: Yes, your Honour.

GUMMOW J: Again supported by 68B.

MR BRERETON: Yes, but arguably also supported as a – I withdraw that. Yes, supported by 68E.

HAYNE J: Though perhaps are they a species of parenting order in that they deal with an aspect of parental responsibility?

MR BRERETON: That was what I was hiccupping over when I answered Justice Gummow and what I was about to say and then ceased to say, that it might be that they could also be supported as an aspect of parental responsibility.

GUMMOW J: Yes, thank you.

MR BRERETON: May we then turn to Division 10. Subdivision B provides that it:

applies to any proceedings under this Part in which the best interests of a child are the paramount consideration.

And also, by paragraph (2), to certain other proceedings. Section 68F provides how the child’s best interests are to be determined, in the sense that it specifies a list of relevant considerations. Essentially, if one looks at this from an administrative law perspective, these are the relevant considerations which a judge is bound to take into account in considering what the best interests of the child require.

KIRBY J: Which section is that?

MR BRERETON: Section 68F.

GLEESON CJ: This is the kind of checklist that the trial judge went through.

MR BRERETON: Exactly, and your Honour will find that the trial judge’s judgment says, “I am bound to consider a factor”, which his Honour then specifies, “and these are those factors”, and his Honour lists all of them and expresses a conclusion on all of them, including, in some cases, that it is not relevant to the particular case. That commences at ‑ ‑ ‑

GAUDRON J: It was under (l), as I understand it, that the trial judge got the springboard, as it were, to consider the case that the mother would stay in Australia. It was a relevant circumstance, was it, under (l), that the mother had said she would not go back to India without the child?

MR BRERETON: Section 68F is concerned with identifying what the child’s best interests are, or “what is in the child’s best interests”, as the section is expressed. It is not necessary to say that the mother’s concession that she would not go back to India without the child necessarily fits within 68F(2)(l). That may be sufficient, but it is not necessary for the purpose. All that was necessary was for the judge to conclude, having gone through all of these factors, balancing those factors, and looking at the two proposals, “One that the mother puts before me; the alternative that the father puts before me; and the third, which the mother conceded in cross‑examination.”

GAUDRON J: Now, were they not two alternatives that the father put forward?

MR BRERETON: Logically, absolutely, because what the father put forward as his primary position in his application is that the child primarily reside with him but ultimately ‑ ‑ ‑

GAUDRON J: And that the mother stay in Australia?

MR BRERETON: Yes.

CALLINAN J: Well, it was put in cross‑examination at page 58, line 17.

MR BRERETON: And it was in two places in cross‑examination, to which I will take the Court immediately. At volume 1 – may we begin at page 89 of volume 1?

CALLINAN J: What about page 58, line 11, down to line 21?

MR BRERETON: Yes, it certainly starts there:

Why can’t you do the same sort of thing here in Australia?

The answer is:

I would rather we go back to India –

Then at page 89, starting at about line 27:

Have you prepared yourself for the possibility that you’re not going to be able to move back to Bombay?

But what is interesting is that as the cross‑examination flows from that point, the mother in the witness box is obviously contemplating, although it is not put to her distinctly at this point, that in that event she is still going to be in Australia because she is asked at page 90, line 20:

Assume that his Honour says you can go to India any time you like but you can’t take your daughter. Assume that’s the situation. What could you do then to make life as good as it can be for your daughter here in Australia?‑‑‑I have to think about it, sir.

Some further examination about that. At line 30:

I would be doing the things that I’m doing now –

At 35:

ensure she has a good and full activity session at school and out of school?‑‑‑That’s right, but I would rather that she be brought up in a more loving atmosphere in Bombay.

At line 40:

What else could you do apart from building a full life for her? What else could you do make life for her in Australia and in Wollongong as happy as it could possibly be?‑‑‑I think I do a lot already, sir.

Then there is discussion about relatives from overseas visiting Australia from time to time. At page 91 line 35:

If you’re here in Australia with your daughter, you know that she will come and visit you –

that is the grandmother –

don’t you?---She could.

Page 92:

That would make you happy, wouldn’t it? You would be happy having your mother here from time to time to visit, wouldn’t you?---I would be happy for Natasha and me to live in India –

Line 5 and following on the same topic. Line 15:

Ma’am, you’ve said that a hundred times so I’m just assuming that everybody in the court knows that you want to go and live in Mumbai, right? So I’m just asking you about the prospect that you can’t go?---Yes.
Then your version of the facts, if they came to visit you in Australia, your daughter would be happy too, wouldn’t she?---Yes.

And then they move off onto a separate topic. Then at page 151 line 36:

Ma’am, in the event of you not being permitted to take the child to Mumbai with you, is it your intention to remain living in the Wollongong area?---Yes.
So far as possible to locate yourself so the child can continue to attend the same school . . . That’s right.

and so on. Now, any suggestion – and there was certainly not one in the notice of appeal, nor, I suggest, in the written submissions but perhaps one was adopted in oral argument - that this third case came as a surprise is just not open. The so-called third case was clearly there, on the evidence, in the wife’s own cross‑examination from the outset.

KIRBY J: I am not criticising anybody here, but it must be in the handbook of how to handle these matters, but what can a mother say? What would you expect a mother to say? “Oh well, I’d be terribly distressed but I’ll just pack my bags. I’ve lost my job, I’ve lost my parents, I don’t have a husband, I’m in an alien country, I’m not a national. She’s not happy, I’m not happy. I’ll just go home and forget about this awful experience.” What could she say to that?

MR BRERETON: In the natural order of things one may well expect the mother to say, “Yes, in those circumstances I will subordinate my own interests and desires to the best interests of my child and stay in Australia”, thereby complying with the principle, which our Act dictates, is paramount.

GAUDRON J: Because if she does not say, “I will subordinate my interests”, the values of this society will immediately judge her to be a bad mother. We are dealing with notions, male notions, that are going to be imposed on any woman in this situation which are essentially, in my view, unfair, and it puts the mother in an absolutely impossible position to even ask it, because if she says, “No, I will put my interests first”, she will be forever damned as a person who is not fit to have the primary care of a child.

MR BRERETON: Your Honour, it would be my submission that mothers answer that question the way this mother did, not because of any perception that she will be forever damned as an unfit mother for giving a contrary answer, but because the answer is the truth, that it is her honest and honourable position that she would prefer to be with the child, albeit in Australia, than to be separated from the child elsewhere, not as a result of any position into which she is forced by the expectation of others, but because that is the mother’s natural view as to what she would prefer so far as the child is concerned.

GAUDRON J: A view imposed upon her, if it is, by outside social forces, by conventional wisdom and the conventional thinking of the men who dominate our courts and our society.

MR BRERETON: This was a mother who was at liberty to say if she wished that, “This father, who I acknowledge is a very good father and who is capable of caring for the children can assume the care of this child. My shipping career is more important to me and I would rather go to India and leave this child in the care of his very capable father.” She was perfectly ‑ ‑ ‑

GAUDRON J: It says something about our conventional wisdom that such a choice should ever be thought an appropriate one to put to a mother.

MR BRERETON: But, your Honour, with greatest respect ‑ ‑ ‑

GAUDRON J: As matters pan out, it is rarely a choice that fathers are asked or forced to make, but it is thought appropriate to force such a choice on women at every turn, as far as I can see. It may have nothing to do with the law, but it does indicate a pattern of thought which I, for one, resent.

MR BRERETON: Your Honour, may I just seek to deal with that in two ways. First, the statistics of 84 per cent and 16 per cent which have been cited may not necessarily themselves be the choice of the 84 per cent of fathers who are not the custodial parent. That starts from a point in which courts remain prone to award residence in contested cases to mothers rather than fathers. There is no longer an articulated mother principle in favour of that, but there is itself in establishing that initial 84 per cent an aspect of gender bias which might cut in the contrary direction to that which is being articulated at the moment, and that is the starting point for where we get to the 84 per cent.

The second aspect bringing it back to this case is that, however one looks at it, the court ultimately had to consider all the realistic possibilities for this child. One possibility, at the outset, the court always had to consider what was going to happen if the mother was not permitted to relocate to India with the child. The law, section 65Y, imposed on the court a requirement ‑ ‑ ‑

GUMMOW J: I wanted to ask you about that. Is there a separate application under 65Y?

MR BRERETON: Yes, your Honour.

GUMMOW J: That assumes that a residence order has already been made, does it not?

MR BRERETON: Yes, your Honour.

GUMMOW J: It was all going to happen eo instanti, was it?

MR BRERETON: It can be made in the same proceedings ‑ ‑ ‑

GUMMOW J: Yes.

MR BRERETON: ‑ ‑ ‑but it is a separate application under a separate issue.

McHUGH J: It was the second order sought, I think, in the application.

MR BRERETON: Exactly, your Honour. So it is a two‑step approach and the court in this case always had to consider, “What is to happen if we do not make a 65Y order as the wife seeks?”

GLEESON CJ: I see the time, Mr Brereton. How long do you expect your submissions, allowing for encouragement from the Bench, to take?

MR BRERETON: Judging by the amount of encouragement I am receiving, your Honour, I could well be an hour and a half, I think.

GLEESON CJ: We will resume at 2 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.02 PM:

GLEESON CJ: Yes, Mr Brereton.

MR BRERETON: May it please the Court, just to conclude the excursus of relevant sections of the Act, may I refer to these remaining aspects. First of all, section 67ZD, which appears in the subdivision concerning “other orders about children” and provides for an order for delivery up of passports in the event that there is concern that a child may be removed from the jurisdiction and finally, to the sections which, in my submission, loom large in these proceedings, sections 65Y and 65Z, to which I shall return as to their true role in a little while.

The importance of 65Y and 65Z to this case, as distinct from cases like AMS v AIF is that they apply in a case of international relocation and they were, of course, not relevant in a case of intranational relocation such as AMS. They mean that the issues in an international relocation case are quite different. They mean, as your Honour Justice Kirby foreshadowed in your Honour’s judgment in AMS, that the same considerations as apply in intranational location cases do not necessarily extend to these cases.

May I turn then to the appeal as I understand it in this way?

KIRBY J: That was said in a context where I think I was considering what one might call difficult countries, countries where there might be difficulty of access and so on. I know it is not limited to that but I think there have been cases in the Family Court which we looked at in that case.

MR BRERETON: That is so, and your Honour recognised that the Full Court has taken the view that considerations may be different in international cases.

KIRBY J: Yes. Obviously, within Australia, it is one community and therefore many of the problems that arise in some countries overseas do not arise.

MR BRERETON: And more than that. It is not just one community, it is one jurisdiction, for the purposes of this branch of the law, with one federal court exercising federal jurisdiction. The appeal can succeed if, and only if, one or both of two contentions are made out. The first contention, which, essentially, is articulated in ground 1, is that the courts below erred in their approach to the issues tendered for determination. Essentially, as I understand it, it is contended that the court failed to consider and weigh the wife’s primary case, that is, that the child should reside with her in India, against the husband’s case, and that the courts below erroneously considered a fall-back position, extracted from the wife in cross‑examination, of the child residing with her in Australia.

The short answer to that, in my submission, is this. First, the wife’s primary case was fully considered and weighed, in complete distinction to AMS, when the wife’s primary case of going back to Darwin was seen as a very much subsidiary matter which required compelling reasons. Here, the wife’s case of going back to India was fully considered by the trial judge and weighed against what his Honour saw as the ultimate alternative option to that. Secondly, it was inevitable and appropriate that the trial judge would consider the eventuality of what would happen if his Honour did not find for the wife’s primary position, namely, what would happen if she were not permitted to go back to India. That arose for various reasons. It was inevitable because section 65Y required that possibility to be contemplated; it gave rise to a separate issue of itself.

It was appropriate, even in the absence of section 65Y, and even in a case which involves only relocation within Australia because the alternative would be not quite a toss of the dice but a situation that if the child was not to reside with the wife then the child would automatically reside with the husband under the husband’s preferred conditions without regard to any intermediate ground. That just cannot be the correct approach. It was appropriate, also, because even if the child was to reside with the husband in Australia the court needed to know where the wife would be in order to implement an appropriate contract regime with the wife.

So, for all sorts of reasons, the position of what would happen if the wife were not permitted to go back with the child to India had to be considered. The second basis upon which, arguably, the appeal could succeed is articulated in grounds 2 to 5 of the notice of appeal, as amended. Although they are all expressed in different ways they essentially have to amount to the same thing that on the facts of this case the court was bound to grant leave under section 65Y for the wife to relocate with the child to India. Either bound as a matter of law or as a matter of policy, or because the contrary decision would be so manifestly unreasonable as to contravene the House v The King test.

In my submission, it only needs to be stated to be recognised that there is no rule of law which requires that an application for relocation be granted just because the mother has residence and wants to go overseas. To impose a rule of policy to that effect would be impermissibly to fetter the judicial discretion under section 65Y and the exercise undertaken by the trial judge and reviewed by the Full Court shows quite clearly that this was a finely balanced decision on which different judicial minds may have come to different decisions.

GAUDRON J: That is one thing that worries me very considerably. Finely balance, the evidence of the counsellor seemed to be directed to the position of the child at that stage with no provision made in the orders for subsequent consideration, and with no provision in the orders, as far as I can see, for the child even to return to India to visit her family, the mother’s family in Mumbai. It seems to me that whatever might be right in the short term it does not necessarily follow it is right in the long term.

MR BRERETON: There are a number of answers to that. The first is that any case of this sort often involves the balancing of short‑term considerations against long‑term considerations. The weight to be given respectively to short‑term and long‑term considerations is quintessentially a matter for the discretion of the trial judge.

GAUDRON J: I just do not see the long‑term considerations taken into account.

MR BRERETON: Secondly, and may I come directly to that, it is with the greatest respect wrong to see this question of preserving contact at this stage with the father as only a short term consideration. If that relationship is not sustained at this stage and the father is effectively out of sight and out of mind, that can be destructive of the paternal bond, not just on a short‑term but on a long‑term basis.

GAUDRON J: That was not the counsellor’s evidence, was it not?

MR BRERETON: The counsellor’s evidence offered at this stage: frequent shorter contact is appropriate. My point is that preserving that contact at this stage is essential to the long‑term welfare of the child. It is not just essential to the child’s short‑term welfare.

GAUDRON J: That is not what is concerning me. What is concerning me is I might well have understood in the context of the counsellor’s evidence an order that those conditions apply for two, three, four years and the ultimate disposition of the application under 65Y be returned to the court at the end of the three years or something of that nature.

MR BRERETON: The answer to that, with respect, your Honour, is twofold. First, there is nothing stopping the mother going back to the court in three or four years and making such an application in view of the child’s older age at that stage.

GAUDRON J: Well, you say not, but one would have to prove at least something changed. Maybe the age of the child would be sufficient, but I do not know.

MR BRERETON: Whether it was sufficient would be a matter for the discretion of the trial judge to weigh up with the other relevant considerations. The other thing is this, that when one examines the trial judge’s judgment, it was not just the sustaining of contact in the short term that was important. His Honour made a number of very significant findings in favour, so to speak, of the husband under many of the section 68F(2) factors, recognising that the husband offered for this child some things which the mother did not offer, including the ability to foster the child’s emotional development. I will come back to these in a moment. But when one examines those findings of the trial judge it will be seen that his Honour perceived as much more important than usual perhaps the sustenance of a relationship between child and father because of some reservations which his Honour had about the mother’s ability to foster some aspects of the child’s growth, notwithstanding that she had always been the primary parent.

In order to answer at the outset any suggestion that this decision was so manifestly unreasonable as not to satisfy or as to contravene the House v The King test, this can be said. First, the Full Court certainly did not think so. So we are in a position where not just a rogue trial judge has made a House v The King‑type decision, but that three judges of the Full Court have shared a similar view and not found it to be beyond the ambit of legitimate discretion.

Secondly, neither in the Full Court nor before this Court does any ground of appeal precisely articulate the House v The King contention. Thirdly, the reasoning of the trial judge and that of the Full Court is, itself, very eloquent on the point. In volume 4 at page 736, his Honour shows very clearly how this involved a weighing of competing considerations which could have operated in different ways on different minds. At paragraph 247, his Honour begins with the acceptance that whatever happens is going to “be detrimental to the child”, so it is really a question of the least bad alternative.

It would be detrimental to the child if the child lived with an unhappy parent. . . . it would be detrimental . . . if the child . . . did not have regular contact with the husband.

His Honour recognises detriments both ways. His Honour acknowledges, as the counsellor had said “frequent contact is most suitable”. Then, importantly, for some of the questions which Your Honour Justice Gaudron asked my learned friend, about evidence pertaining to the adequacy of the arrangements which the wife proposed for contact in India:

The counsellor said that even if there was block contact, and the wife sent or caused to be sent to the husband cards –

et cetera ‑

the role of the husband would still be significantly diminished. The relationship . . . would become a very different relationship and the husband would not have an impact on a day to day basis.

Then at 248:

taking into account all relevant considerations, including, and importantly, the wife’s right to choose where she resides, and her unhappiness and its impact on the child if the wife and the child resided in Australia, I am of the opinion that the preferred option is that the child continue to reside in Australia –

and what tipped the balance, as the Full Court was ultimately to say, was the strength and importance of the bond with the father coupled with his Honour’s inability to be satisfied that the wife would do anything from India to sustain that bond and the Full Court recognised that in the same volume at page 777 starting at paragraph 50, again starting from the counsellor’s evidence:

that the child will probably lose –

either way. Paragraph 51, it is:

a very difficult one and there is a problem no matter which way you go.”

He is asked, I think by counsel for the wife:

“Would you accept that the principal detriment that flows from refusing the application to allow the child to go to India is the consequences for the mother and the consequential effect upon the child? ‑‑‑ Yes –

directly to the point of Lord Justice Thorpe’s question in Payne v Payne –

Did you not come to the conclusion . . . that that detriment is a very significant one?

The counsellor agrees and then the counsellor adds:

Well, as I said a few minutes ago, I think there – it’s also very significant about the loss of the father’s relationship and that’s why I haven’t come down with a strong recommendation –

Now, with respect, as Justice McHugh said a little earlier, these cases are about facts, not law. In so far as any of these English decisions elevate into a proposition of law or a rule of practice that the maintenance of a relationship with the father or with the non‑residential parent is to be subordinated to the happiness of the residential parent, they are either just plain wrong or they are of no application to our Act which puts at the foreground the paramount interests of the child.

GAUDRON J: I think in the English case they said that was still the primary consideration, the paramount interest of the child.

MR BRERETON: They did, but in so far as Lord Justice Thorpe progresses from that to say the critical consideration will usually be the mother’s happiness, then, in my submission, that is just not so. The paramount consideration ‑ ‑ ‑

McHUGH J: Well, I think in fairness to his Lordship, he was saying, was he not, that the mother’s unhappiness was the critical issue because of its effect on the child?

MR BRERETON: Quite so, your Honour, but that cannot be the end of it. In at least some cases it may well be that the mother’s unhappiness will be of less ultimate importance to the child than the severance of an appropriate relationship with the father and it just cannot be said, as was said in some of the English cases, that if there can be a good contact regime with the father, all the better, but if not, then the mother’s happiness is more important.

KIRBY J: I take the force of that, but it also surely cannot be said that because in every case of the 84 per cent of cases where the woman is custodial parent, or thereabouts, when taxed in cross-examination, she will say, “Of course, I will stay if I have to”, that that can, as it were, distort the attention of the court to the real issue which is before the court, which is: who is the best custodial parent and is it appropriate to stop that custodial parent, if a woman, from going to her native land, where she has lots of support, and so on?

MR BRERETON: I accept that completely, your Honour, but the ‑ ‑ ‑

McHUGH J: Well, I do not know why you do, because I do not think it is the issue as to who is the best custodial parent. The issue is: what is in the best ‑ ‑ ‑

MR BRERETON: Best arrangements.

McHUGH J: ‑ ‑ ‑ the best arrangements for the child?

KIRBY J: Yes, but that is not a mantra. It cannot just be stated over and over again.

McHUGH J: It is what the Act says. It is the object.

KIRBY J: You have to get down to the particular question before the court in this case.

MR BRERETON: What I was seeking to accept from your Honour Justice Kirby was that I readily accept that it is not an answer in every case to say that because the mother is prepared, as a fall-back position – and I should get away from use of the word “mother” – because the residential parent is prepared, as a fall-back position, to remain in Australia, I accept completely that does not mean that in every case, as a result, the court should say, “Well, contact is important. That is therefore the best solution.”

GAUDRON J: Can you envisage a situation in which, notwithstanding such a fall-back position ‑ ‑ ‑

MR BRERETON: Absolutely, your Honour. The husband succeeded in this case because his Honour found that there was a special, particular bond between this child and this father and that he could not be satisfied that the mother would foster that relationship from India. Take away even that second pin and his Honour might well have gone the other way.

McHUGH J: Well, he said it was finely balanced. I would have thought, without that, the wife was home and hosed.

MR BRERETON: So had his Honour been satisfied that the wife would foster that special relationship from India, then this is a case in which, even on that basis, the wife might have succeeded. Had his Honour not come to the conclusion that this was such a special child/father relationship, as his Honour found, then his Honour might have come to a different conclusion. This was a case which, as most of these cases do, turned on its own facts. In those paragraphs at 247 and 248 of the trial judge’s judgment, his Honour eloquently demonstrates just how this was a quintessential exercise of judicial discretion in a discretionary field.

The Full Court, after referring to the counsellor’s evidence in the passage that I was just referring to at page 778, goes on at page 779 to say, in paragraph 55:

What ultimately tipped the balance was that the child “has a very close and important relationship with the husband which should not be curtailed”.
It is apparent from the judgment that his Honour’s concern was not just that he doubted that the wife would promote a meaningful relationship between the father and his daughter, as was submitted by counsel for the wife. His Honour was also concerned about two things, namely:
(i) that N’s best interests would be served by her having frequent liberal contact with both parents; and
(ii) in the event that he allowed the wife to return to India, he had grave doubts as to whether she would carry out the contact regime –

It was the combination of those matters which led the trial judge and the Full Court to the conclusion that weighing a difficult case with considerations pointing in both directions this judge was entitled to come to the conclusion that he did.

KIRBY J: You will remember Mr Broun said, trying to overcome what seems to me to be a strong factor in your favour, that the Full Court would not disturb the conclusion of the primary judge, that he was of the opinion that the present appellant would not facilitate access by your client in India. He said that just does not gel with the uninterrupted history of allowing access and the way in which the whole matter has been conducted, namely, that the wife – the mother does really encourage this access and supports it and it would be contrary to the behaviour of the Indian family of the mother, to whom your client was welcomed when he went back, and that therefore this is a finding of fact that should not be sustained.

MR BRERETON: The first answer to that is that in a case of this sort when the court is involved in assessing how people are going to behave in the future, which lies at the heart of many disputes in children’s cases, the impression which a court forms of the party as witness is necessarily important and that is an advantage which the trial judge plainly has that the Full Court did not have and this Court has even less. So, in forming an impression the personality of the mother of her assertive independence of her ‑ ‑ ‑

GAUDRON J: What is wrong with that?

MR BRERETON: Absolutely nothing, your Honour, but it was in the context of a letter in which the mother had written to her family, “I have made my decision and no one’s opinion is going to influence me”. That was a decision about leaving the husband with the child and heading off to India.

KIRBY J: But people sometimes write emotional things in these cases.

MR BRERETON: They do, your Honour, but his Honour had the benefit of hearing the mother’s evidence, seeing her cross‑examined and had a better opportunity than anyone else to form an impression as to her personality and as to how she would conduct herself in the future. Secondly, in so far as reference can be had to the past as a basis for prognostication to the future, it might be said that actions speak louder than words.

Now, the mother proposed a contact regime from India and offered to consent to orders in the Indian courts about it and his Honour took that into account, and in answer to your Honour Justice Gaudron’s question to my learned friend I will come back to that, but what she also did was in 1995, unannounced, she left the home, took the child to India without the prior knowledge and consent of the husband, she attempted to repeat those actions in 1998.

When she was foiled in that she moved to Wollongong without the knowledge or consent of the husband. When the husband obtained, ex parte, an order that he have interim residence of the child, the child having at that point been abducted by the wife, she went to the Department of Community Services and made allegations about the husband, which the trial judge found to be false, in order to circumvent the operation of the interim residence order. That is all summarised by the Full Court at page 781 and 782 of volume 4. So, she had an ample track record of taking steps calculated to minimise the contact which the child had with the father.

McHUGH J: In addition she asserted, did she not, that the reconciliation had not been made in good faith on the part of the husband and that was why she terminated the marriage?

MR BRERETON: I think that is right, your Honour.

McHUGH J: Yes, at paragraph 88 of the trial judge’s judgment at 708:

The wife said that the husband’s actions indicated to her that there was no trust or love left in the marriage. She said that until this episode she had intended to travel to India only for a holiday . . . she was convinced that the reconciliation was not based on good faith.

MR BRERETON: Yes, and the trial judge found that the husband’s concerns were justified and that she had said things to suggest that she may not return to Australia. Now, true it is that subsequent to that catalogue of events ‑ ‑ ‑

McHUGH J: Just by the way, how does it come about that the New South Wales Department of Community Services can interfere with orders made by courts exercising federal jurisdiction?

MR BRERETON: Because there is a provision in the Family Law Act, which Ms Boyle will remind me of in a moment, which provides that orders under the Family Law Act do not affect a child who is the subject of care under a State welfare law, under the Child (Care and Protection) Act of the States or its equivalents. What the wife did was to go to the Department of Community Services, effectively say, “There is no person capable of caring for this child.” The child thereupon became a temporary ward of the Department, although remaining physically in the care of the wife. That took it beyond the scope of the Family Law Act, but it defeated the order which the husband had obtained from the court.

Now, all of that shows a certain degree of determination to minimise the relationship between child and father and at least a firm basis from which his Honour was entitled to draw the conclusion that he did, that the wife could not be trusted in the future to foster that relationship.

Now, true it may be said from the time that the proceedings had commenced until trial she had been co‑operative, but it also has to be said that that co‑operation took place while the proceedings were pending, while she was wanting to go to India and while there was a very powerful motive for appearing co‑operative, because otherwise there was no chance whatsoever of going to India. In those circumstances this Court, in my submission, could not possibly interfere with the trial judge’s finding of fact that the wife could not be trusted to foster the relationship from India, and no ground of appeal challenges that finding of fact.

Now, against that background if I can come back effectively to ground 1 and against the analysis of the Act ‑ ‑ ‑

GAUDRON J: Was the possibility of the husband moving to India so that he could have regular contact with the child in India canvassed? That seems to me as much a relevant consideration as anything else in a case like this.

MR BRERETON: That was not one of the three proposals which his Honour considered and which – the prospect of him travelling on an intermittent basis to India was certainly canvassed, but the prospect of him moving to India to live was not and, again, perhaps to set ‑ ‑ ‑

HAYNE J: Was he asked the question in cross‑examination? If the mother gets custody of the child what will you do?

MR BRERETON: We will check that, your Honour. We do not think so, your Honour, but we will check. Before the court, the question of relocation arose in three different legally conceptual ways, if I can use that awful phrase. The first was ‑ ‑ ‑

HAYNE J: Just before you leave that question I asked, would you say such a question was relevant?

MR BRERETON: Yes.

McHUGH J: It must be relevant.

HAYNE J: And its answer might be as difficult for the paternal pretension of a father as the answer of the equivalent question to a mother, may it not?

MR BRERETON: Yes, your Honour. The relocation question arose in three different ways in the legal or statutory structure: first there were competing applications for residence orders. So far as that was concerned the court had to consider the proposals of each of the parties. As the mother’s proposal was that the child reside with her and in India, on the residence issue itself the question of relocation arose. Shorn of the international aspect at all, it would have arisen in that way if the mother had been proposing to relocate to Alice Springs, Darwin, Hobart or even Canberra.

Secondly, it arose because a specific injunction was sought under section 68B restraining both parties from changing the place of residence of the child. So it arose in a second way on the injunction application. But, thirdly, and because it was and only because it was an international case, it arose because of section 65Y, and that it was there a separate issue can be tested in this way: if, upon the wife filing her application, the husband had said, “I consent to order 1, I consent to an order that the child reside with the wife”, the court would still have had to determine as a separate issue the question of order 2, whether the wife should then be permitted to depart with the child for India permanently.

That is what completely distinguishes this case from AMS and whereas, at least some members of the Court in AMS thought that it was erroneous for the trial judge there to approach the case as one of an application for permission to relocate, that is not so in an international case, it very much is an application for permission to relocate because of the provisions of section 65Y.

HAYNE J: That, again, highlights the fact, does it not, that there was only three cards on the table, not four? That in many relocation cases the parties start with two cards on the table, a third is played in cross‑examination of the wife, with a card that does not seem to be played as the fourth, namely, that the father might have to consider relocating if he is to persist in retaining a relationship with the child?

MR BRERETON: Yes.

KIRBY J: What was your answer to that question? It appeared to be something you had not ever contemplated and that is part of the problem.

HAYNE J: That is the vice, is it not, that is the vice.

KIRBY J: It is the same in AMS, that he would not have dreamed of leaving the Northern Territory where he was quite happily ensconced and he had a wonderful job. It is the mother, custodial parent, always has to pick and move or sacrifice her life and career and connections.

MR BRERETON: It is the custodial parent, be it mother or father, who has to or who may have to do so. Your Honour puts it in terms, “That is the vice” but the response has to be, “The vice in what?” If the parties ‑ ‑ ‑

HAYNE J: The vice in the way in which reasoning proceeds. The reasoning that was criticised in AMS was that it turned into a “what can the wife do” case. That is, has the wife, the mother, got good reason to do what she is doing?

MR BRERETON: Yes.

HAYNE J: The true inquiry is what is in the interests of the child.

MR BRERETON: Quite so.

HAYNE J: You start from the premise that the best interests of the child would have it with enduring, loving contact with both the child’s parents. Then, if you take out of the consideration one of the possible outcomes, then there is a risk that the reasoning is becoming skewed, that the reasoning is skewing towards again, “Have you who seek to move shown me reason enough why you want to move?”

MR BRERETON: That may be a very powerful observation in a case which is concerned only with relocation in Australia. Even there one is still met with a position where parties have, while married, chosen to make a life together and have children in a particular place. While one does not seek to put too much emphasis on the status quo when that joint endeavour breaks down it is a radical step to pluck the child who has been born in Australia, who is an Australian citizen, who is entitled to the protection of this nation as an Australia citizen from it, and relocate it, as was found in this case principally in order to satisfy the mother’s desires for her emotional happiness, to India when the parties have made, originally, a joint decision to live in this country and to have a child in this country who is to be a national of this country. That argument is less strong, obviously, if the relocation is to be in this country.

That is where section 65Y comes into play. It is not the husband who is seeking permission to remove an Australia citizen from Australia and reside elsewhere. He needs no permission to do or to continue to have a relationship with his child in this country. It is the wife, the mother, who is seeking to depart from that arrangement.

KIRBY J: You make it sound as if that section imposes on the applicant the burden of Atlas. It is surely a burden that is still governed by what is in the best interests of the child.

MR BRERETON: It is, your Honour, and I have accepted in answer to an earlier question that it may have taken very little in this case to make a difference to that outcome. That burden is not an impossible one to discharge, but what I am seeking to do is to answer Justice Hayne’s suggestion that it is important to factor into this consideration the fourth card, the possibility of the husband relocating to India to continue to enjoy a contact relationship.

HAYNE J: It is a card that was never played in this case and, as I say, if your case has strength, it may derive some of that strength from the fact that only three cards were played.

MR BRERETON: Yes. Now, the real vice in AMS, as I understand the judgments, particularly of your Honour Justice Gaudron and Justice Hayne, was that the wife’s primary case was never fully considered, although from time to time in argument and, perhaps, in the reasoning it was expressed on the basis that the Court did not fully examine, on the one hand, the wife’s primary case of relocation to Darwin and, on the other, the husband’s primary case of residence in Perth.

Ultimately the vice was that the wife’s primary case was not fully examined. It does not matter if the husband’s case about Perth was not fully examined, if he does not, on appeal, complain about it. It does not matter in this case if the husband’s claim for residence was not fully examined. He is not complaining about it. The question is whether the wife’s primary case, her claim there to have residence in Darwin, and here to have residence in India, was fully examined, and that case was, on any basis, fully examined by the trial judge and I do not understand my learned friend really to suggest otherwise.

GAUDRON J: I am not entirely sure that that is right, Mr Brereton. I am concerned that there was no examination as to the possibility of orders being made in India, as to the effect they would have in India, as to the way in which the husband might be able to avail himself of the benefit of those orders. Nor was there, it seems to me, any examination of the extent to which, even if not in the short term, in the longer term, block access – I will call it block access – would be beneficial or useful, perhaps even better than the short‑term arrangements as they presently stand.

I mean, it seems to me there just was not a consideration as to the extent to which the husband could, might, would avail himself of access in India or block access in Australia or whether, in the longer term, once the child became involved in education which, at least in my experience – it may well be different in India, but certainly would be the case in Australia where sporting engagements and so on would be eating into weekends and in such a way that one might well have thought that block access would be a better course at a certain time and could, in fact, be properly accommodated within the wife’s proposals. That concerns me. I mean, I well know that children just cannot attend to all their extracurricular and social activities and go visiting the non‑custodial parent every second weekend.

MR BRERETON: And that may well have justified an application for variation ‑ ‑ ‑

GAUDRON J: It may justify an application for variation, but what it suggests is something more: a failure to consider all aspects of the case.

MR BRERETON: So far as Indian orders are concerned, the judgment of the trial judge discloses this much. Page 705, paragraph 69, when the child was taken to India in 1995:

The husband made efforts to try and effect the return of the child to Australia –

He failed in Australia, because India was, and still is, not a signatory to the Hague Convention. So, first of all, the contact orders cannot be enforced under the Hague Convention from Australia; they would only be capable of enforcement through the Indian courts. Secondly, his Honour clearly took into account ‑ ‑ ‑

GAUDRON J: But that is what does not seem to me to have been explored.

MR BRERETON: Well, if it was not – and I am aware that an affidavit was filed, I think, in the Full Court, but the Full Court does not appear to have referred to such an affidavit, concerning Indian law and was filed on behalf of the wife. I am told it was rejected and I wondered what had happened to that. It was presumably an application to adduce further evidence. If the wife did not put before the court ‑ ‑ ‑

GAUDRON J: She did offer court orders ‑ ‑ ‑

MR BRERETON: She did and his Honour ‑ ‑ ‑

GAUDRON J: ‑ ‑ ‑ and one would assume, it being a country the legal system of which is based on the British common law, as is our own, that they were orders which could be enforced and which a person could take the benefit of in a reasonably simple way.

MR BRERETON: His Honour plainly took into account that the wife had offered to consent to such orders in India and referred to that circumstance in his Honour’s judgment. That reference is at page 723. Indeed, 724, paragraph 172, his Honour took into account that the wife would give some security “for performance of her obligations under the contact orders” and said that she would give an undertaking to the court, if sought “to consent to contact orders in similar terms” in the appropriate court in India.

GAUDRON J: But then his Honour dispenses with it, in the next sentence:

I am concerned about future contact between the child and the husband if the child resided in India.

MR BRERETON: And what his Honour was saying is that, “Despite what the wife is now saying and despite her offering of these terms now, her track record, and my impression of her in the witness-box, is that I cannot take this at face value. I am not prepared to trust her to do what she says she is going to do.”

GAUDRON J: But that seems to me to be a very strange way of dealing with it. There were orders in India – I mean, the reason for orders in the bulk of these things is because you do not trust people to keep their word, but the question of the effectiveness of the orders, it seems to me, would render questions of trust, to some extent, irrelevant.

MR BRERETON: No ground of appeal in the Full Court contended that his Honour had failed adequately to take into account the fact that the wife offered to submit to terms in India. No ground of appeal in this Court contains any such contention.

GAUDRON J: No, but it does seem to go the question of whether the wife’s case was fully considered. That was the same issue in AMS v AIF.

MR BRERETON: But in AMS his Honour subordinated the question of relocation completely and said, “I am only going to consider that if there are compelling reasons to permit her to relocate” and there is no such vice in this judgment.

GAUDRON J: No. At some stage his Honour is not too sure that she is serious about going back to India, he said. I read that somewhere.

MR BRERETON: With respect, I do not think that is right, your Honour, because his Honour expressly found that her wish to go back to India was bona fide. Now, it is true, as my learned friend points out, that his Honour concentrated on those aspects of the case which ‑ ‑ ‑

GAUDRON J: No, I am sorry, the sincerity of the wife is in paragraph 181. That seems to be what she would do for future contact.

MR BRERETON: Yes. Exactly, your Honour. That is, again, very much an Abalos assessment.

GAUDRON J: I do not know how you make those judgments. For myself, I just do not know how they can be made.

MR BRERETON: His Honour has there formed an impression, plainly, from the way in which the wife gave her evidence, as to her anxiousness to convince his Honour of a certain matter and ‑ ‑ ‑

KIRBY J: This is because she raised an eyebrow at a certain point or looked a bit uncomfortable at another or her body language gave the game away? I think your better point is that the primary judge sat through it all, listened to it all, did not look at it through the skein that we get in an appellate court. He had all the facts.

MR BRERETON: And all he advantages. Now, it is true, as my learned friend says, that his Honour concentrated on those points that made a difference between residing with the wife in Australia and residing with the wife in India. That is not the vice which occurred in AMS because that, as it turned out, was what the ultimate issue in the case was. Once the wife said, “My fall‑back position is that the child reside with me in Australia” and once the husband effectively conceded in his closing submissions that that was a more attractive proposition, or a better proposition, than him having residence, then that, effectively, marginalised the other issues and the true issue in the case, the ultimate issue in the case became the section 65Y issue: granted that the mother was to have residence, where was it to be? Can I then come to the role and importance of section ‑ ‑ ‑

KIRBY J: Was that explained why the husband, as it were, took that view, or was it just more convenient for him, because he is a working man and his wife can stay at home and forget her career and look after the child?

MR BRERETON: I do not think the evidence deals with that, your Honour, but what is quite clear is that the husband put forward, from the outset, a sustained claim for residence, which commended itself in many of its respects to the trial judge. It would be a very, in my submission, unfair inference to draw at this level, when no one has sought to draw it before, that the husband abandoned his case for reasons of convenience of that sort.

Now, may I come to section 65Y and section 65Z. In my submission, the role of these sections is not limited, and is far greater than that of just preventing so-called international child abduction or child snatching. What those sections amount to is a recognition of the parens patriae role of the Family Court of Australia. They recognise that the court’s jurisdiction, having been attracted or invoked in respect of a child within the jurisdiction, that child’s welfare is, to a greater or lesser extent, in the hands of the Family Court of Australia, and that child is not to be removed from the jurisdiction of that court, except with the consent of the only other person having parental responsibility, namely the other parent or by the leave of the court. So there is much more this concept of territoriality involved in section 65Y or Z than just stopping children being snatched overseas. There is a recognition of the role of the court as having assumed supervision of this child’s welfare. That, again, distinguishes the case from one of relocation within the country.

That is a convenient point to step off and look at the English cases upon which my learned friend so heavily depends. What has to be understood at the outset is that almost all, if not all, of the English cases were not cases in which residence, or custody as it was called, was in issue. Almost all of them were applications under the equivalent of our section 65Y for leave to remove from the United Kingdom a child who was in the uncontested care of one of the parents.

Because the cases are assembled in Payne v Payne [2001] 2 WLR 1826, it is the convenient place to go. At the foot of page 1826 the English equivalent of section 65Y is set out in the footnote and that makes clear that what was at issue in that case was not the question of residents, per se, but whether leave should be granted to remove the child from the United Kingdom.

From that point it is convenient to turn directly to the end of the judgment of Dame Elizabeth Butler‑Sloss at page 1853, perhaps 1852. In paragraph 85 her Ladyship summarises the various considerations which are thought to be relevant. Even in England, at least in her Ladyship’s judgment, what is significant there is, as well as in paragraph (c), referring to:

The reasonable proposals of the parent with a residence order wishing to live abroad carry great weight –

reference is also made in paragraph (f):

The effect upon the child of the denial of contact with the other parent and in some cases his family is very important.

Then paragraph 86:

All the above observations have been made on the premise that the question of residence is not a live issue. If, however, there is a real dispute as to which parent should be granted a residence order, and the decision as to which parent is the more suitable is finely balanced, the future plans of each parent for the child are clearly relevant. If one parent intends to set up home in another country and remove the child from school, surroundings and the other parent and his family, it may in some cases be an important factor to weigh in the balance.

The cases which are summarised in the earlier parts in this judgment and the judgment of Lord Justice Thorpe are again I think all cases in which the issue was, “Should leave to remove be granted?”, not, “Who should have residence?” That, in my submission, is a fundamental distinction. If anything, what paragraph 86 indicates is that if you are the undisputed custodian or residence parent, it may be easier to get an order than if residence is in issue in the first place, in which the change of the status quo and the disruption that will involve is a very significant matter, or may be a very significant matter.

CALLINAN J: Mr Brereton, is there any provision that says what weight, if any, or what regard should be had to the evidence of a counsellor?

MR BRERETON: As I recall it, there is no specific provision. The evidence of the counsellor is admissible. He or she is traditionally a court expert. Sometimes the parties may call their own experts. The counsel is the witness of the court who is cross‑examined by both parties. The court sometimes agrees with the counsellor; occasionally does not.

CALLINAN J: There is no obligation to do so.

MR BRERETON: No, no, your Honour.

CALLINAN J: Or there is no particular weight to be accorded to the counsellor’s evidence.

MR BRERETON: The counsellor’s evidence has no particular weight. There is nothing which affords particular weight to it.

CALLINAN J: Paragraph 29 of the appellant’s submissions seem to imply that the court must accept each and every thing that the counsellor says.

MR BRERETON: That is not so, and I very much doubt that my learned friend would have intended to suggest any such thing.

CALLINAN J: It may be just the way I am reading it.

MR BRERETON: Can I then turn to some of the critical passages in Payne v Payne and as to why it is not appropriately relevant to this case and to the Australian situation. The law as enunciated in that case started at page 1832 with the decision of the Court of Appeal in Poel v Poel [1970] 1 WLR 1469. The passage cited at F to G on page 1832 starts from the proposition that upon breakdown of marriage a child:

instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere –

That judgment has been the fons et origo of everything that has followed ever since in England. It was decided in 1970. It was decided before the concept of joint parenting became well established and it was decided long before the presumption in favour of each party having parental responsibility was introduced into our Family Law Act.

So, it starts from a proposition which just no longer, if it ever did, corresponds with Australian law that the general position is that one will be in the custody of a single parent. We now recognise, much more extensively, the importance of both parents playing a continuing role. At page 1834, paragraph 22, Lord Justice Thorpe cites from Belton v Belton, a 1987 decision, which contains the proposition that:

the long term interests of the child revolve around establishing . . . a sound, secure family unit in which the child should go forward and develop. If that can be supported by contact with the father, that is an immense advantage, but, if it cannot, then that is no reason for diverting one’s concentration from the central and paramount issue in the case.”

Given modern statements as to the importance of the relationship with both parents, the right to know and have contact with both parents as espoused even in our own Act, that just does not reflect the position in the 1990s or the early 21st century in this country. It is not a question of seeing contact with the father as an immense advantage but as an essential part of providing the sound, secure family unit in which the child should go forward and develop.

That reasoning then culminates in the passage to which your Honour Justice Hayne referred at paragraph 32 on page 1837 suggesting that the most crucial assessment is the effect of the refusal of the application on “the mother’s future psychological and emotional stability”. I accept immediately, as I think your Honour Justice McHugh suggested, that that is really a way of saying “and the consequential effect on the child’s welfare residing with that mother”.

What that completely overlooks is that another crucial assessment is the effect of the granting of the application on the relationship between the child and the father and the consequences of the severance of that relationship for the child. Ultimately, in every case it will not be a rule of law or a rule of policy or a rule of practice as to which of those considerations is more important. In each case that will have to be resolved on the evidence. Here, the court counsellor acknowledged that both were serious detriments. Whichever way the court went was a serious detriment. The court counsellor did not see one as more detrimental than the other and the trial judge founding on that made a decision which, in my submission, lay well and truly within the scope permitted by that evidence.

Your Honour Justice Hayne asked, “Did the trial judge consider the effect of refusing the wife’s application?”, the question posed by paragraph 32 of Lord Justice Thorpe’s judgment. The answer is, yes, and more than once, at volume 4, page 730, lines 46 to 54; at page 735, line 43 to 736, line 8; and in the decisive part of the judgment at 737, lines 1 to 5. The Full Court acknowledged the same considerations at 777, line 51 to 778, line 40, citing the counsellor’s evidence.

What follows from all of that, in my submission, is that there can be no principle, presumption or general rule as to whether or not leave should be granted under section 65Y, apart from the facts of the particular case. To adopt your Honour Justice Kirby’s words from AMS:

Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion –

paragraph 143 of the judgment. That is so just as much in respect of 65Y as it is in respect of residence generally.

As to the importance of the paternal bond, we have provided some material from the literature which shows how this has grown – or the recognition of its importance has grown – in recent years. One does not need to go to the literature to start with. Section 60B of the Act, to which I referred early on, is a starting point. The reports of the Family Law Council, with a discussion paper in 1991, at tab 3 of our material, paragraphs 5.25 to 5.27, emphasise the point. The article that is the third article behind tab 3, by Fabricius and Hall, shows that an assessment of 820 college students who had come from divorced families were asked about what they wanted, what they perceived their mothers wanted, and what they perceived their fathers had wanted, and 70 per cent of that sample said that they had wanted equal time with both of their parents. Page 455, at the foot of that page:

Their perspective was clear. They wanted to have spent more time with their fathers as they were growing up, and the living arrangement they believed was best for children was living equal time with each parent.

In so far as long‑term as well as short‑term considerations are concerned – I withdraw that. At 458, at about point 4:

Seventy per cent of them, men and women alike, believe that living equal amounts of time with each parent is the best arrangement for children.

At 459, at point 4:

Young adults who have lived through their parents divorces, and who have gone on to college, do not think living equal time with each parent is necessarily unworkable, and in fact, they believe with remarkable consensus that it is the best arrangement –

and at the foot of the page:

The current results show that for a large section of the population at least, children want more time with their fathers after divorce and they perceive that their fathers do also. Viewed in just one simplistic way, the discrepancy between the amount of parental responsibility perceived to be desired by their fathers and the amount they actually provided represents a significant and untapped source of child care. Viewed in a deeper way, in terms of human relationships, it represents a lost opportunity on the part of both father and child and a potential source of regret and resentment in ongoing relationships.

KIRBY J: I may have misunderstood, but I did not take anything that the appellant said to be undervaluing the importance of the relationship between their daughter and the father. It was just a question of whether an error had been made in the way to deciding where the residence of the mother would be obliged to be so that that relationship would continue on an appropriate basis.

MR BRERETON: Grounds 2 through to 5 can only get anywhere if they amount to persuading this Court that on the facts of this case the trial judge was bound to permit the mother to take the child from Australia and reside in India, and that can only be on the basis articulated in the English cases, that the maintenance of the relationship with the father is to be subordinated to the importance of the mother’s happiness. My point is simply ‑ ‑ ‑

GAUDRON J: Well, you say that. This whole thing proceeds on the basis that one is to be subordinated to the other. There does not seem to have been any attempt to work out whether there were arrangements that did not involve the subordination of one to the other. I would have thought if there were arrangements that were satisfactory that did not involve the subordination of one to the other, then that would undoubtedly have been in the child’s best interests. It does not seem to me that it can be in a child’s best interests that one parent’s legitimate expectations with respect to life should be subordinated to the child’s interests or to the other parent’s interests.

MR BRERETON: That may well be completely correct, your Honour, but the question here was whether that was a least or a less disadvantageous alternative.

GAUDRON J: No, because as Justice Hayne pointed out, there was never any consideration of the extent to which the father might be able to bring about a bond, either immediately or in the longer term, by the subordination of his professional interests or a compromising of them to the extent to which it seems to be assumed the appellant should compromise her interests.

MR BRERETON: That was apparently because neither of the parties put that proposition before the court.

GAUDRON J: Well, I would assume if it was not put, it was because it was not on offer from the person who might have put it. That is what I would assume. If it was not put as a distinct proposition, it was not on offer.

MR BRERETON: Even if that be so, that may well be because the husband’s view was that this child was better off residing in Australia than in India. The husband’s arguments so far as that was concerned was not limited to questions of contact, but extended to differences in education, living conditions and other risks. His Honour did not find those matters of great moment, but the husband’s position was clearly that Australia was a better environment for this child to be brought up in than India.

If I can touch shortly on the way in which his Honour made significant findings in the husband’s favour. At volume 4 page 721 – and this is where his Honour is going through the section 68(2) checklist. At 721, 154 his Honour turns to the wishes of the child and concludes at 159, stronger bonds to the mother:

understandable given the separations from the father . . . close relationship with her mother.

It then goes on, 160:

healthy relationship and strong bond with the husband. In my opinion, the husband has always had a very good relationship with the child –

Conclusion at 161:

obviously attached to both her parents.

His Honour then goes on at 163 to consider the likely ‑ ‑ ‑

KIRBY J: The wife acknowledged that the husband was a great father.

MR BRERETON: Yes.

KIRBY J: That is at 160.

MR BRERETON: Indeed. At 163:

the likely effect of the changes in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child –

His Honour, in considering that, concludes at 165:

a close and loving relationship with both parents and is strongly bonded to both . . . The proposals that the child reside in Australia would allow –

“frequent and liberal contact with both parents”.

I am concerned about the impact on the child and her relationship with the husband if the child resided in India with the wife.

So there is a finding there which favours the husband’s case. At 167, in considering the practical difficulty and expense of contact:

I am satisfied that if the wife and the child resided in Australia then appropriate contact arrangements could be made for contact between the child and the husband –

At 190, having considered at length the wife’s attitude to contact and proposals for contact in India, concludes:

grave doubts about whether or not she would carry it all out once she was in India and further promote the relationship . . . I am not satisfied that the contact regime proposed by the wife will ensure that there is a proper and meaningful relationship between the husband and the child . . . I am not satisfied that the wife would do all that was necessary to ensure that it was maintained.
I am satisfied that if the child resided with the husband then while the wife was in Australia appropriate arrangements could be made for contact between the child and the wife.

At page 731, paragraph 218, his Honour is considering the physical and educational needs of the child and the ability of each party to provide for them. He is satisfied:

that the wife would adequately provide for the physical and education needs of the child –

in Australia or in India. At 219:

satisfied that the husband could, and would, adequately, and equally as well as the wife, provide for the physical and educational needs of the child. He would however, be dependent upon his parents to assist . . . given his employment.

At 231, in dealing with the ability of the parties to provide for the emotional needs of the child concludes at line 54:

some uncertainty about the wife’s ability to provide for the emotional needs of the child. I have no such uncertainty about the husband.

Now, that is a very important finding and it is a very important reason ‑ ‑ ‑

KIRBY J: Where is that? I am sorry, I missed that.

MR BRERETON: At 733, line 55, your Honour. It is a further reason underpinning the importance of sustaining the relationship with the husband because the husband has that found capacity to provide for the emotional needs of the child which the wife does not, a capacity which it will be very difficult to satisfy from Sydney ‑ ‑ ‑

KIRBY J: But that is a little unfair, is it not, because it is saying the husband is not really faced with this problem, he can go on with his life and give his love to his daughter every second weekend but the wife, in order to have her fulfilment with life, needs to go back to India, to her family, to her career, and so on, and so it is not really equally balanced. The husband is not being put to the same test. It is a slightly unfair thing, it seems to me, to say, “I have some uncertainty abut the wife’s ability to provide for the emotional needs of the child”, because she is allowing her need to return to India to override the needs of the child. She can give all the needs she can give to the child in India. It is the warp that comes into these cases because the husband is allowed to just continue where he is and it is the wife as the custodial parent who is supposed to move along, just forget her own life, forget her own career, forget her mother, forget her father, forget her cultural and other links, her friends.

MR BRERETON: What his Honour is there recognising is that the wife has not been able to put the child’s interests first and in doing that his Honour is expressing some concern and some reservation about her ability therefore to satisfy the emotional needs of the child in the future.

KIRBY J: But what I am saying to you, Mr Brereton, is that that is saying put the child’s needs first on a foundation and a dilemma that the husband is not ever asked to face, namely, “Do I go back to India or do I stay here?” It is not an issue as far as the father is concerned. It just seems an unequal equation.

MR BRERETON: There is another way of looking at it, your Honour, and the inequality is this: both these parties came to Australia. They chose to marry, they chose to have children in Australia and grow up in Australia. The husband is content to remain with that status quo. The wife wants to radically change it, sever not just the household but put an ocean between her and where the father and the child were once and in that way tear asunder a relationship which the trial judge has found ought to the contrary be fostered. It is not the husband that is seeking to change anything radically, it is the wife who is seeking ‑ ‑ ‑

KIRBY J: It takes two to make a relationship. The relationship between husband and wife has broken down. Now it is a question of whether this woman, who apparently has a career potential in an international shipping office of some kind, and is there in the house in Wollongong without that career potential, without her family, but with the child and the biggest obligations of the child, is expected to just live there for the rest of the time until the child’s majority.

MR BRERETON: I think the evidence was that the wife had not pursued that occupation for about 10 years.

KIRBY J: That is a long time and it is not an inappropriate or insubstantial occupation, it is her life. But one might add to this, and I hope this is not irrelevant, her entitlement to form a new relationship, to have a new partner, to have new children, other children. That would presumably be easier for her in India than in Wollongong, maybe.

MR BRERETON: Not necessarily so.

KIRBY J: Not necessarily so, but she would have the cultural reinforcement of her family in India.

MR BRERETON: I would readily embrace the prospect that establishing a new relationship maybe a relevant consideration but it was not advanced as one of the relevant considerations in this case.

GAUDRON J: Anyway, there is no finding that the child was suffering in any way emotionally, is there?

MR BRERETON: Far from it, your Honour, but the point is ‑ ‑ ‑

GAUDRON J: Or that she was likely to suffer emotionally? I just do not understand what is there being dealt with in the absence of any evidence that the child is somehow emotionally deprived.

McHUGH J: I think the counsellor took the view that there was a problem for the child, did it not? It is set out at paragraph 229 in the judge’s judgment where the counsellor had said:

For a child this age to feel responsible for their parent’s happiness, and willing to sacrifice her needs to ensure that happiness, is not Age appropriate, and could be detrimental to [N’s] emotional development.”

MR BRERETON: I am indebted to your Honour for reminding us of that.

GAUDRON J: But there was no finding that she was, then, suffering any emotional disadvantage, is there?

MR BRERETON: There is no explicit finding to that effect. There is ‑ ‑ ‑

GAUDRON J: What the counsellor said would, of course, be of no significance if the mother and child relocated to India because it seems to have been said, I think if I read it correctly, in the context of the mother’s inability to return to India.

MR BRERETON: That, with respect, is not necessarily so, your Honour. It certainly appears in that context in paragraph 231, and it certainly appears that the unhappiness of the mother is the foundation for his Honour’s reasoning on that issue, but it illustrates overall a capacity or a difficult which the mother had in subordinating her own happiness and her own interests to that of the child which had led ‑ ‑ ‑

GAUDRON J: It seems to me to proceed on a totally wrong footing. Everybody has been talking about subordinating, expecting that the mother should subordinate it. Really, what one should be looking to establish is a relationship between these parties, whose parents have broken down, and the child, in an environment, if need be, in a country where everybody can get along with their lives and people are not being expected to subordinate their interests either to the children or to the other party. I mean I just do not understand that talk. I am sorry, it is just beyond my understanding that there should be an expectation that a mother, to be a good mother, must subordinate her interests to the child.

MR BRERETON: There is also an expectation that if a father wants to have a child reside with him that he be able to subordinate his interests to those of the child

GAUDRON J: I do not know that it is a question of talking about subordination. It just seems to me to put it all on the wrong footing. You have to work out some mechanism in which people can develop as much potential as they can.

MR BRERETON: Finally, at page 734, 239, on the question of what order would least likely provoke further proceedings, his Honour had fewer concerns about the risk of further proceedings if the child resided with the wife or the husband in Australia than if the child resided in India.

Now, the point of all those references is simply this, that in the checklist of section 68F(2) factors, his Honour found in favour of the wife that she was the figure of primary attachment with whom the child was first and most closely bonded but otherwise the findings were either ambivalent or distinctly in favour of the husband.

So, contrary to what my learned friend put early on, even leaving aside the relocation aspect, this was not a clear‑cut case on residence. This was a case in which the child could easily, apart from questions of relocation, have ended up in the care of the husband pursuant to an order of the court, then following what Dame Elizabeth Butler‑Sloss said in Payne v Payne, taking into account that the wife’s proposal involved a massive relocation and a total change from the status quo, that would have been a very significant matter to take into account.

The fact that the wife had a fall‑back position meant that his Honour was able to recognise the factor which favoured her, the primary attachment factor, and also sustain a relationship which would satisfy the factors which warranted a decision in favour of the husband. That all goes to show how individual a case this was and how it is inappropriately a vehicle to lay down any general principle as to how these cases should be decided.

GAUDRON J: That really is a submission that could be made in every case and which just means that the High Court ought to butt out of these issues, does it not, a view which I know is common in the Family Court in relation to other areas in which this Court has given judgments?

KIRBY J: Can I offer a line on that one?

HAYNE J: Well, Mr Brereton does not dare to.

MR BRERETON: I was thinking of a case I was appearing in before two of your Honours a week or two ago.

KIRBY J: I was going to divert to another point. It is noted that the husband is a member of the Parsi community. Is the wife a member of that community? Was that revealed by the evidence, or not? This is at 232.

MR BRERETON: The evidence certainly revealed that both parties would sustain appropriate cultural links for the child. The mother is a Hindu, but his Honour found that both parties would sustain the appropriate cultural attachments for the child.

It is not a submission, and I would be the last person to make a submission that the High Court should butt out of these matters. I have put to this Court more than once before that an increasing interest by this Court in Family Law matters can only enhance the understanding and application of the Family Law, but that on the other hand is not a reason to depart from well‑established principles about non-interference with discretionary judgments. If it can be said that there is some inherently flawed approach as a matter of law in what the trial judge did, then that would be a reason to interfere, but if it be said simply that the mother’s desire to relocate was very important and ought to have been given very great weight, then the answer to that is his Honour thought it was important and his Honour gave it very grave weight and appropriate weighed it on the scales. In my submission, the case for the appellant simply fails to disclose any such error of principle as would justify appellate intervention at the Full Court level let alone here. Unless there are any other matters in which I could be of assistance, those are my submissions.

GLEESON CJ: Yes, thank you, Mr Brereton. Yes, Mr Broun.

MR BROUN: Your Honours, what perhaps emerges from the discussion today is that the lot of a single parent is difficult and demanding and stressful. It is perhaps underlying our submissions that we say that the effect of this judgment was to make a difficult situation far more difficult rather than to provide the sort of alleviation and assistance to a parent in that situation that might be expected.

KIRBY J: That is one inference. The other inference is that the lot of a single judge is difficult, burdensome, troublesome, and that ultimately in the law, for reasons of principle and policy, you have to, unless there is a mistake, trust the single judges.

MR BROUN: Yes. In a sense, your Honour, I suppose the old maxim that no man is an island totally, but I suppose everybody, each individual person, has their own difficulties, but where social services…..to the legislation recognises the need to assist a single parent and help her, it is perhaps strange that in this case there has been a decision that so obviously seems to go the other way. But perhaps that is not, as your Honour says, a matter going to any legal principle.

Your Honours, to pick up the question of the husband going to India, I did make some submissions about that and the sexual bias inherent in it in my submissions at paragraphs 26 and 27, but I can also give your Honours a reference to where he was asked in cross-examination about going to India for the purposes of contact, where he says, “Yes, well, if I have to, I will.” He did not seem too enthusiastic about it. That is in the appeal book at 350, beginning at line 28, going over the page just to the top of the following page – 350, beginning right at the bottom of the page and going over, he says, he will go, if that is the way he needs to get contact.

One matter that I did not refer to in submissions in-chief and, I suppose, I should have – and your Honours perhaps would want to hear our submissions on that – is what happens to the costs of this appeal, one way or the other. There, of course, there is section 117 of the Act, which says that in proceedings under the Family Law Act, the costs are a matter where ordinarily each party pays their own, but a court can decide to order a party to pay costs. But if considering an order to pay costs, or considering whether there should be an order for costs ‑ ‑ ‑

GUMMOW J: We are not controlled by section 117. We are controlled by the Judiciary Act in relation to costs, and we have said so.

MR BROUN: Yes. I just could not find the authority that said so, your Honours.

GUMMOW J: Well, I cannot offhand either. I know it exists. It is obvious, anyway.

MR BROUN: Yes. If my submissions are not of assistance to your Honour, I will pass on on that.

GUMMOW J: But if you want to say that our general discretion as it exists under the Judiciary Act should be exercised in a particular way, well, do so.

MR BROUN: Yes. Your Honours, as a guide to how that discretion might be exercised, the Family Law Act gives that suggestion, at least. In the Full Court – although my client, of course, won on the Full Court on the property issue – the order effectively adjusted equality on the costs questions by requiring the husband to contribute half the cost of the transcript and half the cost of preparing the appeal books, so it was brought to a situation of equality.

The Family Law Act looks at the question of the means of the parties before making orders for costs and, of course, with my client with the burden and responsibilities of a sole parent, an order for costs against her would be particularly onerous. On the other hand, an order for costs against the husband also would no doubt be onerous to him, but since he is in full employment and she is not, it would presumably be less onerous to him. That is substantially all I can put to your Honours on that issue.

Your Honours, in respect of the English authorities, I would remind your Honours that our new Part VII, that is that we have been working through the Act, which was introduced in 1995, very consciously copied the English Children’s Act 1989, so that in fact the English legislation and the Australian legislation is very close in its content and its form., in this case our legislation having been modelled exactly on the English legislation. In fact, the sections that are quoted in the judgments to which we have referred are in the main in almost identical terms. In fact we adopted the terminology “residence” and “contact” rather than the old ones of “custody” and “access” in following that English legislation. We followed it even down to the language.

Your Honours, in Mr Brereton’s submissions he suggested that my client going to Wollongong was a sort of abduction. Now, your Honours, it would be an extraordinary principle if a wife, when she wants to leave her husband, has to ask his permission as to where she should go to live. Going to Wollongong does not – the suggestion that that is an abduction I would suggest is just not tenable.

The Indian legislation and Indian orders, it was a substantial matter discussed before the Full Court and, as Mr Brereton has informed your Honours, we did make an application for leave to lead fresh evidence, an affidavit in effect as to the availability of such orders as have in fact already been made in this case in India, as set out in the appeal books at 440, but the Full Court in effect, in a separate judgment right at the beginning of the case, said that the position seemed to be clear that there had been Indian orders. There was no need to give any further evidence about that possibility and they rejected the material.

In paragraph 29 of my submissions, your Honours, it had not been intended to suggest that the court was in any way bound by the evidence of the counsellor or that any special weight had to be given to it. I was merely observing or intending to observe that, in fact, in this particular case, the trial judge did accept the counsellor’s evidence, it would seem throughout or in total but nonetheless placed - used the phrases of the counsellor that were “less strong” than the ones that were “more strong” as to the effect on the wife, where the counsellor had said “debilitating” the trial judge had used a somewhat lesser term. I was certainly not intending to suggest that the court was in way bound by the counsellor. The Family Court judgments have repeatedly held in the Full Court that the counsellor is just like any other witness, may be accepted or rejected and has no special status.

I think Mr Brereton did refer to this but the trial judge did, in fact, make a finding that as to physical and educational matters the child would be as well served in India as in Australia. That is in our summary of findings at 12(n), but I think Mr Brereton referred to that a little later in is submissions.

As to Mr Brereton’s submissions that these people chose to come to Australia, that is not quite the balance. The husband had come to Australia some many years before with his family and had established himself in Australia for some years. The wife came to Australia only because of the marriage. It was the marriage that brought her to Australia. She had not been here before that. She came, in fact, after the marriage, some weeks after the marriage. In a situation where a woman comes to a strange and foreign land as a consequence of marriage then the breakdown of the marriage makes her position even harder and even a bigger impact on her because she has not come to Australia as a matter of choice. She has come here for a purpose, a marriage, which has gone or which, in the circumstances of this case, no longer provided a reason for her to be here.

So she was in a country in which she had no desire to be and no reason to be and that makes the position both more difficult for her, but necessarily means that it would have a bigger impact upon her. It would be a bigger emotional impact for her that she is, as it were, trapped in a country to which she had no desire to go, but for a marriage which no longer exists.

As to the question of the religion of the parties: your Honours, the most convenient place to pick that up is in the wife’s affidavit at appeal book 420 beginning at line 40 and going about the first third of the next page. I think those are the points I had noted to assist your Honours in

reply. If there are no other matters I can assist your Honours with, those are our submissions.

GLEESON CJ: Thank you, Mr Broun. Mr Brereton, do you want to say something?

MR BRERETON: Just on the question of costs, since my learned friend has raised it belatedly, the husband would seek no order beyond one which left each party to bear their own costs.

GLEESON CJ: Thank you. We will reserve our decision in this matter.

AT 3.42 PM THE MATTER WAS ADJOURNED

[2002] HCATrans 111

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Costs

Appeal