X and Y

[2002] FamCA 767

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT ADELAIDE  NO. AD 3433 of 2002

IN THE MATTER OF:               X and
  Y
  [by their Next Friend MS B]
  (Applicants)
  and

MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS

(Respondent)

MR B

(First Proposed Intervener)

MS B

(Second Proposed Intervener)

CORAM:  THE HONOURABLE JUSTICE DAWE

DATE(S) OF HEARING:       6 SEPTEMBER 2002

DATE OF JUDGMENT:        6 SEPTEMBER 2002

EX-TEMPORE JUDGMENT

APPEARANCES:  MR HAINES, QC (instructed by JEREMY MOORE & ASSOCIATES) appeared on behalf of the APPLICANTS

MR KENNETT (instructed by AUSTRALIAN GOVERNMENT SOLICITOR) appeared on behalf of the RESPONDENT

MS MACDONALD (instructed by BOYLAN & CO) appeared on behalf of the FIRST PROPOSED INTERVENER

MRS WEST (instructed by DENISE RIENIETS & ASSOCIATES) appeared on behalf of the SECOND PROPOSED INTERVENER

1. I have before me the application on behalf of the Minister for Immigration and Multicultural and Indigenous Affairs to state a case in relation to the legal issues that have arisen in the early stages of this matter.  Originally the children, the applicants, through their next friend, opposed the stating of a case, but by an early stage this morning their counsel indicated that they did not now oppose the application.

1. When the matter came on before Justice Burr, the father was given leave to intervene in these proceedings, but has not done so.  He was, however, represented by counsel who indicated that the father did not oppose the Case Stated.  Similarly, the mother is represented before me and has indicated an intention to file proceedings not yet filed.  Counsel for the mother also indicated that they did not oppose the Case Stated. 

1. The provisions of the Family Law Act that are relevant are set out in Section 94A which reads:

   If in proceedings in a Court being proceedings in which a decree or decision, to which section 94(1) and (1AA) applies, could be made, a question of law arises which the Judge and at least one of the parties wish to have determined by a Full Court of the Family Court before the proceedings are further dealt with, the Judge shall state the facts and question in the form of a special case for the opinion of a Full Court, and a Full Court shall hear and determine the question.

1. Before me today I have the Draft Case Stated of the Minister and the Draft Case Stated of the counsel for the children.  When the children's counsel indicated they did not oppose the application of the Minister I was given an agreed Draft Case Stated.

1. The emphasis in Section 94A is that the Judge wishes that the case be stated on the question of law. That clearly indicates that the Case Stated must be one which is made with the approval of the Judge, not simply because all of the parties consent or because the parties raise the issue of a Case Stated.

1. I accept that this is a matter which falls within the definition of Section 94A as one which could be the basis of a Case Stated to the Full Court. Clearly, however, it is at the Judge's discretion (as the emphasis in the words of Section 94A already indicated direct), namely that “the Judge wishes”. I accept the submissions of the counsel for the Minister, that the exercise of a discretion such as this and in this particular case must be reasonable.

1. Mr Kennett, counsel for the Minister, submits that the issue to be the subject of the Case Stated is a confined issue of law.  I agree that the issue is so confined.  The basic question is one of jurisdiction and if that is determined, then of power.  Mr Kennett seeks an early decision, not at first instance, but an early decision on the law at the Full Court level.

1. Mr Kennett referred to the case of Bass and Anor v the Permanent Trustee Co Ltd (1999) 198 CLR 334. This decision of the High Court says in the headnote:

   “Observations of Gleeson CJ, Gaudron McHugh Gummow Hayne and Callinan JJ about the circumstances in which it would be appropriate for a Court to give a declaratory judgment and to state or answer preliminary questions of the inconsistency with a judicial process of a Court giving a declaratory judgment or answering preliminary questions not based on facts found or agreed of distinctions between declaratory judgments and hypothetical or advisory opinions and of the nature and circumstances appropriate to the use of demurrers.”

1. These are important questions.  The Minister's counsel submitted that the dangers highlighted in the case of Bass v the Permant Trustee Co Ltd (Supra) were not present in the case before me.

1. Apart from the headnote, the other quotations of interest in this case also appear at page 357.

1. Paragraph 357 refers to the difficulties in that case where the facts were not clear, not stated, and not determined.  At the bottom of page 357 the High Court majority judgment said:

   “It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue.  However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process. 

   Preliminary questions may be questions of law, questions of mixed law and fact, or questions of fact.  Some questions of law can be decided without any reference to the facts, others may be perceived by reference to assumed facts as on demurrer or some other challenge to the pleadings.  In those cases the judicial process is brought to bear to give a final answer on the question of law involved.  Findings of fact are made later, if that is necessary.”

1. This calls into question the issues and how they are planned to be determined in the case before me.  I refer to the Draft Case Stated which is now submitted as one agreed between the counsel for the children and counsel for the Minister.  Paragraph 4 of that Draft Case Stated says:

   “[In mid] 2000 the applicants' father [Mr B], who is also not a citizen of Australia, was granted a temporary protection subclass 785 visa.  This visa is valid until [mid]2003.  The applicants' father lives in Sydney.”

1. In the submissions from counsel for the Minister before me this morning, my attention was drawn to the fact that a notice of intention to cancel the father's visa has now been given.  This is one factual matter which is one that is likely to change and may well impact upon the Case Stated (albeit that any Case Stated would have to go forward on the basis of the Draft Case Stated once it was finalised by the Court).

1. More significantly, however, paragraph 18 of the Draft Case Stated says:

   “A copy of the applicants' application and the affidavits in support thereof is annexed hereto and marked A.”

1. There has been some confusion before the Court as to what the affidavits in support thereof are, but at the very least there is an affidavit of a psychologist Ms C before the Court and an affidavit of Mr Moore, the solicitor for the next friend of the children.  There has been some confusion because there is an issue as to whether the affidavits of the children themselves are before the Court.

1. What concerns me about this Case Stated is that there is no suggestion before me that the facts in those affidavits are agreed; simply, the fact is without doubt, some affidavits have been filed.  I believe that the risks inherent on stating a case referring to affidavits which have been filed and not clarifying whether the facts set out in those affidavits and the opinions drawn by the psychologist are, indeed, unchallenged.  In my view, this starkly emphasises the real risk of the Case Stated not achieving the goals which would otherwise be sought.  There is, in my view, a real and major risk that the Case Stated would be the sort of material that was before the Court and was heavily criticised in the case of Bass v Perpetual Trustee (Supra).

1. There is limited authority in the Family Law cases on the question of a Case Stated. The case of Mullane v Mullane (1980) FLC 90‑826 was a case before the Full Court. In that case, Evatt CJ as she then was, and Butler J as he then was, said by way of introductory remarks:

   “Before considering the actual issues which arise in the present matter, some observations should be made about section 94A.  The use of this section can sometimes be an unsatisfactory way of resolving issues between parties to a matrimonial cause.  Those issues are determined by the Full Court on the basis of a statement of facts agreed to by the parties or settled by the Judge.  Those facts may differ in some ways from those which are ultimately established by the evidence.  Alternatively, there may be factual information omitted from the case which the Full Court may consider important to its decision.  There must of necessity be additional delay and cost involved in stating a case to the Full Court.”

1. It was submitted that this is an unusual case.  Mr Kennett for the Minister agreed with the submission of counsel for the children that it was an unusual case.  A Case Stated is not necessarily stated just because the matter is unusual, nor indeed because it might be politically controversial.  Decisions often have to be made about jurisdiction and the power of the Court, and most of those decisions are made at first instance, and best made at first instance, on the particular facts.

1. If a case is novel, once again novelty is not a basis upon which to found a Case Stated.  Indeed, novelty may mean that the case is so unusual as to be unsustainable.  Sometimes novelty or unusual circumstances may in fact be a good reason to avoid the artificial arena of a Case Stated. 

1. The process of stating a case should not be a method of sidestepping a decision by a Judge at first instance; neither is it a means for the Judge at first instance to avoid making a decision on questions of jurisdiction, power or statutory interpretation.  When considering whether to state a case, I believe it is the obligation of the Court to explore all the options and weigh all the advantages and disadvantages in a particular case.  It is necessary then to determine whether the stating of the case would be reasonable, and make a decision based on that outcome.

1. The main advantage in my view is that a Case Stated avoids the unnecessary cost of and inconvenience of preparing factual material if it transpires that that cost and preparation was not in any event necessary.  The main disadvantages in my view are the possible delay in waiting for the time to have the Case Stated heard before the Full Court and determined by the Full Court and the inherent risk (and, in this case, the real risk) of an inappropriate case being stated to the Full Court.

1. In my view it is necessary to explore other options. In the original authorities submitted by counsel for the children, the case of X (A Minor) v the Bedfordshire County Council (1995) 2 AC 633 was referred to. That is a decision of the House of Lords. The reference to which I draw attention is the reference which actually appears in one of the joinder cases - namely, E (A Minor) v the Dorset County Council and appears at p.693 of the reports.

1. The Court said:

   “The defendants answered that their applications do in fact raise an issue of law for decision by the Court.  If they cannot show the plaintiff's claim to be plainly bad, then their applications must fail.  But if they can show that then it is preferable in the interests of all concerned that the claim should be dismissed now before the costs of a full trial are incurred.  There is a great force in both these arguments. 

   I share the unease many Judges have expressed at deciding questions of legal principle without knowing the full facts, but applications of this kind are fought on ground of a plaintiff's choosing, since he may generally be assumed to plead his best case and there should be no risk of injustice to plaintiffs if orders to strike out are indeed made only in plain and obvious cases. 

   This must mean that where the legal viability of a cause of action is unclear, perhaps because the law is in a state of transition, or in any way sensitive to the facts, an order to strike out should not be made.  But if, after the argument, the Court can be properly persuaded that no matter what, within the reasonable bounds of the pleading, the actual facts of the claim is bound to fail for want of a cause of action, I can see no reason why the parties should be required to prolong the proceedings before that decision is reached. 

   The Court is, of course, bound to approach each pleaded cause of action separately and need not reach the same decision on each.”

1. That of course was a case in relation to questions of statutory duties of various government and semi-government authorities in relation to duties owed to children.  It is not directly in point, but I refer to the decision in that case concerning the wisdom of not prolonging proceedings where a decision on the law can be made on the facts already before the Court. 

1. In my view that is an option which needs to be considered when trying to determine whether it is reasonable to state a case in this matter.  All difficulties will be overcome by hearing the legal issues at first instance on the material already filed (including the missing affidavits of the two children and their father, if they are indeed missing) and determining the legal issues.

1. After that, if it were necessary, namely, if the decision were against the Minister, the parties could be directed to file the material upon which they will rely for an interim decision with an interim hearing to take place a short time thereafter.  This is an option which is clearly available in this case and is far preferable to either a full hearing on the facts, which is clearly not a sensible option and, in my view, far preferable than the risks inherent on stating the case proposed. 

1. In my view therefore it is not reasonable to state a case as suggested by the parties.  I do not wish to state a case as suggested by the parties.  I dismiss the Minister's application for a case to be stated. 

1. I propose to hear and determine the legal issues raised by the parties in their Summary of Argument and to hear those legal issues in the time now set aside in the week of 23 September.  If it is then necessary I will direct the filing of further material in support of any interim application and thereafter make directions for a final hearing. 

1. If the decision is in the Minister's favour, of course, then that would not be necessary.  The options then would be for the children to appeal to the Full Court.  The Full Court would then have the decision at first instance upon which to base their appeal.  Similarly, if the interim application of the children is successful, the Minister would have an opportunity to appeal the decision and, once again, the Full Court would have the decision of the Court at first instance upon which to determine the matter.

1. In my view this overcomes the problems surrounding the preparation of material in advance of the legal decision and does not in any significant way delay the proceedings. 

1. I will make further orders in relation to that matter in the immediate future, but I would like to hear the parties on the question of timing of other material that has to be filed in any event.

1. Another application before me is the application again filed by the solicitors for the children through their next friend.  The form 8 application filed on 29 August 2002 seeks in paragraph 2 an order that “the respondent do all such things as are necessary so as to ensure that the applicants and the next friend are present in Court during the hearing of their proceedings”.  Mr Haines makes that application to apply to the hearing before me commencing 23 September in which I have directed that the legal issues outstanding be determined.

1. It is correct to say that the children are parties to these proceedings. However, it is not as simple as that. The children can only bring these proceedings through their next friend. As such, the whole concept of a next friend needs to be clearly understood. Those parts of the Family Law Act and Rules make it clear that a next friend presumes that there is limited capacity to understand the true nature of the proceedings and give full instructions in the adult sense in relation to the proceedings. If that were not the case, there would be no need for a next friend.

1. These children are, as I understand it, approximately 10 and 12, (although I note that when the information sheet was filed their dates of birth were not completed.  All we have is an insertion somewhere in the material filed by the psychologist or the solicitor that that is their respective ages).  There is no information before me as to how much of the English language they understand.  That should not have any bearing on whether they are present here.  If they have any difficulty with the English language and are entitled to be present, they are entitled to be present with an adequate and proper interpreter. 

1. The issue is raised, however, whether because they are applicants applying through their next friend, either they or their next friend should have the right to attend personally in the Court during the proceedings, and in particular during proceedings which relate only to legal argument. 

1. The right of a person to be present during proceedings is one of some significance. The right of a person to be present and to hear those proceedings, however, does not necessarily apply to all persons. It has become somewhat common, particularly in this Court, for people who are incarcerated either in gaols in a metropolitan area or elsewhere to be present in Court by means of a telephone link or in hearings of any substance to attend by way of video‑link. Obviously if the telephone or video‑link is to apply to a hearing, then there are the provisions of Order 30 Rule 2AAA in relation to making an application to the Court for evidence to be given by technical medium.

1. This is not a question of evidence to be given by technical medium, but whether the children and the next friend should be present in Court.  I am satisfied that on the balance of these matters that the next friend could hear the proceedings by means of a telephone link and would be available no doubt by separate telephone link to give what necessary instructions there may be by way of last minute instructions during the course of the proceedings.  I agree with Mr Kennett that the very nature of these proceedings so far as the legal issues are concerned makes it unlikely, although not impossible, that instructions at the last minute might need to be obtained.

1. As far as the children being present are concerned, I do not agree with counsel for the next friend Section 100B implies that children who are parties must always be present. I accept that there is a general principle that anybody who is a party should have the right to be present when the proceedings are heard. The proceedings coming before me on 23 September, however, are not the final hearing of the case but merely a hearing on the legal issues, some of which are of a highly technical nature in the context of the understanding of children.

1. Section 100B(2) clearly says a child must not be called as a witness in or be present during proceedings in the Family Court or in another Court when exercising jurisdiction under this act, unless the Court makes an order allowing the child to be called as a witness, or to be present as the case may be. That Section clearly says that the Court must exercise its discretion to permit the child to be present. The principles behind the act are that children generally should not be present during proceedings. That view is reinforced by Order 23 Rule 5 of the rules, which makes it clear that, if children are to give evidence, they should do so by technical medium. Thus even when they are allowed to be witnesses in this Court, unless the Court otherwise orders, they are not meant to be present in the Court. The clear implication is that being present in the Court and giving evidence is something which has to be considered because of the stress and psychological harm that might be caused.

1. I have raised for consideration by counsel that, if the father and mother are going to be applicants seeking orders exactly the same as those which the children are currently seeking, whether there is any useful purpose being served by the children remaining parties to these proceedings, and hope that I will hear from counsel as to what purpose is being served by the children being parties to the proceedings.  If the mother and father were to proceed to seek the same orders, then there might well be an argument that the children's application in itself is entirely unnecessary.

1. In considering the question of the children being present, I am not making any ruling that might indicate whether they should be present or nearby or have some capacity to hear the evidence of any of the future proceedings.  I am currently only ruling in relation to the hearing and decision so far as it relates to legal issues.

1. I will direct that arrangements be made between the Registry and the D Facility for the mother to hear the proceedings by way of telephone link on 23 September.  I do not give leave and refuse to make an order for the children to be brought to the Court for that hearing. 

1. I adjourn the question of the view in paragraph 1 of the application of 29 August 2002 to a date to be fixed after determination of the legal issues.

I certify that this with the preceding 43 paragraphs is a true copy of the reasons for judgment herein of the Honourable Justice Dawe

The 11^th day of September 2002

...............................

Associate

B & B AND MINISTER FOR IMMIGRATION, MULTICULTURAL & INDIGENOUS AFFAIRS   AD 3433/02  6/9/2002

DAWE J  EX-TEMPORE JUDGMENT

CATCHWORDS

JURISDICTION OF THE FAMILY COURT OF AUSTRALIA – Case Stated – application by the respondent Minister to state a case in relation to the legal issues – not opposed by the applicants – decision is at the discretion of the Judge – factual matters likely to change in this case – exploration of risks involved in stating a case to the Full Court – unusual case – Court must weigh advantages and disadvantages of stating a case – whether stating a case reasonable in these proceedings – application dismissed –proposal to hear and determine the question of jurisdiction in a fortnight’s time.

1. PRACTICE AND PROCEDURE – Present during court proceedings - applicants seek orders that their next friend be present in Court during hearing of their proceedings – exploration of concept of “next friend” – presumption in Act and Rules that parties who have a next friend have limited capacity to understand true nature of proceedings – right of a person to be present in their proceedings – usual practice in this Court is provision of telephone link – order that next friend be able to hear the proceedings via telephone link – no presumption that children who are parties must always be present by virtue of section 100B – Court must exercise discretion to permit child to be present – children not permitted to be present on the next occasion where legal issues of a highly technical nature will be heard.

Bass and Anor v the Permanent Trustee Co Ltd (1999) 198 CLR 334
Mullane v Mullane (1980) FLC 90-826
X (A Minor) v the Bedfordshire County Council (1995) 2 AC 633

Family Law Act 1975 (Cth) s94A, s100B
Family Law Rules 1984, Order 23 Rule 5, Order 30 Rule 2AAA