RAM v State Central Authority & Anor M86/1994 [1994] HCATrans 143 (6 December 1994)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M86 of 1994

B e t w e e n -

RAM

Applicant

and

STATE CENTRAL AUTHORITY

Respondent

ATTORNEY-GENERAL OF THE

COMMONWEALTH

Intervener

Application for special leave

to appeal

MASON CJ

DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 9.54 AM

Copyright in the High Court of Australia

MR J.L. DWYER, QC: If the Court pleases, I appear with my learned friend, MS P.L. SHIFF, for the applicant. (instructed by Nedovic & Co)

MR R.J. MEEHAN: If the Court pleases, I appear on behalf of the State Central Authority. (instructed by the Victorian Government Solicitor)

MR H.C. BURMESTER: If the Court pleases, I appear on behalf of the Attorney-General of the Commonwealth who is intervening. (instructed by the Australian Government Solicitor)

MASON CJ: Yes, Mr Dwyer.

MR DWYER: The Court will see from the summary of argument that has been filed on our behalf by the Attorney-General that the statement of the special leave questions that we set out in Part One is accepted by the Attorney, and there is no significant quarrel with the statement of facts that we set out in Part Two. It also appears that the Attorney does not advance any significant argument on the question of whether the issues raised by the applicant are issues of general importance. The stand taken by the Attorney is basically that the Full Court got the issue right, and that the prospects of success are such that special leave should not be granted.

The questions, in fact, involved in this application include, as the Court will have seen, the issue called into question by Justices Brennan and Dawson in ZP, that is, the question of whether and in what manner regulation 16 of the regulations can be reconciled with the provisions of section 64(1)(a), and that is raised squarely in these proceedings.

The outline of argument does not set out the statement of the questions in the case stated and the answers that are given to them. They can be conveniently found in the judgment of the Full Court at page 41 of the application book. I should draw the Court's attention to the fact that the particular questions that we raise are questions l, 5, 6 and 8 in the case stated. Question 1 raises the issue of whether regulations 16(3)(a), (b), (c) and (d) are a valid law of the Commonwealth in the light of section 64(1)(a), so that raises the question of inconsistency between regulation 16(3) - - -

MASON CJ: Basically that turns on the construction of section 111B, does it not, and the relationship between 111B and 64(1)(a)?

MR DWYER: In many ways it does, Your Honour, and perhaps it really turns on the question of whether the regulations which have been made pursuant to section 111B are to be described as necessary for the performance of the Convention obligations in that form, or whether the Convention obligations could still be complied with by regulations in a form which still allowed reference to the welfare of the child as the paramount consideration.

TOOHEY J: The regulations, of course, do make some reference to the welfare of the child, not in those particular terms - - -

MR DWYER: Yes, they do, Your Honour.

TOOHEY J: - - - but by reason of any grave risk to the child if it is returned.

MR DWYER: It could be said that the matter raised in subregulation (3)(b) is a matter which clearly relates to the welfare of the child, but there may be many matters which do go to the question of the welfare of the child which fall outside that paragraph.

TOOHEY J: No doubt, but if your argument is right, then any application under the abduction of children regulations becomes virtually a section 64 hearing as to how the welfare of the child is best served.

MR DWYER: All that would be necessary would be a section 64 hearing of the kind that was contemplated in ZP, that is, a hearing directed to the question of whether the child's welfare would be served by returning the child summarily to its country of residence. That, we say, is the way in which the welfare principle ought appropriately be applied in any case where the question of the return of a child is in issue.

TOOHEY J: Could I just take you up on that answer, Mr Dwyer. Are you saying that on your approach, unless the court were satisfied that the welfare of the child would be met by an order for summary return of the child, then no such order should be made?

MR DWYER: Yes.

TOOHEY J: Then how does that differ from a section 64 inquiry?

MR DWYER: It is a particular application of section 64, that is, it is giving section 64(1)(a) the operation that it should have on an application for the return of a child. I put it that way. It is an application of that kind as distinct from the application of section 64(1)(a) to conduct a full hearing into the welfare of the child. That is not appropriate nor required, in our submission.

TOOHEY J: But it would virtually preclude an order for summary return, would it not, on your approach?

MR DWYER: It is submitted not, Your Honour. Indeed, ZP clearly contemplates that one might in many of these international removal cases best serve the child's welfare by a return to the country of residence. That is the approach clearly enunciated by the Court in ZP, and we say that a similar approach is appropriate in Convention cases.

MASON CJ: Do you accept that regulations 15 and 16 give effect to the Convention? There is no issue arising in terms of those regulations being valid implementations of section 51(xxix)?

MR DWYER: I think there is an issue - - -

MASON CJ: Has that issue ever been identified clearly?

MR DWYER: The issue is in the way in which it has been done, I think, Your Honour, that is, because the Convention has been given effect to by subordinate legislation. The subordinate legislative power is contained in section 125 which requires that regulations not be inconsistent with the Act.

MASON CJ: Leave the question of inconsistency with the Act aside - one puts that to one side. Do you accept that otherwise Regulations 15 and 16 are a valid implementation of the power conferred by section 51(xxix) of the Constitution?

MR DWYER: I think so, Your Honour.

MASON CJ: Yes.

MR DWYER: But we do say it was not necessary to cast the regulations in that form. That is the qualification that we put on that, that is, we say that the regulations were not required as a matter of necessity to take the form that they did, and on one reading of section 111B what the section contemplates is regulations such as are necessary to give effect to Australia's Convention obligation.

What I have said to the Court leaves open the question of what is the standing of regulations which do not satisfy that test of necessity? That is a question as to which I am not confident of the answer. I think our primary submission would really be that what is required by section 111B is regulations necessary to give effect to the Convention.

MASON CJ: You are drawing a distinction between "necessary" and "desirable" or "convenient"?

MR DWYER: Yes.

DAWSON J: But do you say they do give effect to the Convention?

MR DWYER: We say they do give effect to the Convention yes, but we say - - -

DAWSON J: But they could be differently worded?

MR DWYER: - - - it could have been done differently, and we say it was not necessary to do it in the way that it has been done.

DAWSON J: Namely that it could have been done consistently with section 64.

MR DWYER: Yes, Your Honour. Indeed, we would say that the proper interpretation of section 111B is really to treat it as if it contains the words "to the extent that it is not inconsistent with the Act to do so".

DAWSON J: But it does not contain those words and section 125 does.

MR DWYER: 125 does and that is the source of the regulation-making power.

DAWSON J: Is it? Why is section 111B not the source of regulation-making power?

MR DWYER: Because section 111B assumes that there is a regulation-making power elsewhere in the Act and says what may be provided in those regulations, but it does not purport to give power to make the regulations. We say it picks up the power that is given by section 125.

TOOHEY J: I just have difficulty in seeing why you say that regulation 16(3) gives effect to the Convention, that is the Convention read in the context of the Act.

MR DWYER: The reason why it may be seen as endeavouring at any rate to give effect to the Convention is because the language of the provisions that are contained in regulation 16(3) is the language picked up from the Convention. The draftsman was clearly endeavouring to give effect to the Convention, and it is difficult to see because of what the mechanism has been to take provisions out of the Convention and import them into the regulations. I find it difficult to argue that they do not give effect to the Convention.

TOOHEY J: Yes, I understand that. Then your argument, in essence, comes down to a challenge to the regulations on the basis that they do not give sufficient effect to section 64(1)(a) and the principles that appear in that provision?

MR DWYER: Yes, Your Honour, and we say that they could have and still complied with Australia's treaty obligation.

DAWSON J: It does not really matter much, does it? I mean, either section 111B gives the power to make regulations which are inconsistent with the Act, or it does not. If it does that is the end of the question. If it does not, then you say that section 64 is inconsistent with regulation 16. That is what it amounts to.

MR DWYER: Yes, Your Honour.

DAWSON J: So that if you decide that 111B does give the power to make regulations inconsistent with the rest of the Act, that is the end of the power.

MR DWYER: I would acknowledge that, Your Honour, and that all turns on that word "necessary", in our submission, because we say it was not necessary and regulations which it was not necessary to make therefore cannot be supported by reference to section 111B.

DAWSON J: Yes.

MR DWYER: I think that sufficiently puts what we have to say on question 1. Questions 5, 6 and 8 all deal in various ways with the nature of the jurisdiction invoked and exercised in this particular case. The Full Court's critical move, we say, was to treat proceedings under the regulations as unconnected with the welfare jurisdiction, as a separate head of jurisdiction, as the court said. We make that point in paragraph 3.2.1. But what was really required to sustain the Full Court's position, we say, was that the head of jurisdiction not only be separate, but that it be exclusive in the sense of excluding the court's parens patriae jurisdiction. We say that section 111B does not in terms do that, and we say that it is not an easy thing to do, that is, we say that parens patriae jurisdiction is not something which a court picks up or puts down as is convenient. Once a child is before a court which exercises parens patriae jurisdiction, that child, we say, is entitled to have its welfare treated as the paramount consideration.

DAWSON J: I do not understand that necessarily. The parens patriae jurisdiction has to be exercised in accordance with the law.

MR DWYER: Yes, Your Honour, it does, but as this Court has said on a number of occasions if it is to be excluded, which is really what the Full Court's decision requires, there must be clear and unambiguous language to exclude it.

DAWSON J: It is not excluding the jurisdiction. It is merely saying that in this instance the jurisdiction of the court must be exercised in a particular manner.

MR DWYER: Yes, that in a sense picks up one of the ways in which the inconsistency can be characterised, that is, we say that what the regulations purport to do is to determine the way in which a court is to deal with a child that is before it to the exclusion of its welfare.

TOOHEY J: But the jurisdiction of the Family Court is not truly in issue, is it?

MR DWYER: We do not challenge the jurisdiction.

TOOHEY J: One of the questions is framed in a way that rather suggests that it might be, but as Justice Dawson just put to you, it is not the jurisdiction of the court that is in issue, it is the principles according to which it should exercise that jurisdiction in respect of an abducted child.

MR DWYER: Yes, or it is perhaps a question of whether in exercising its jurisdiction it is to have regard to the welfare principle. It is a question, I agree, not about whether the court has jurisdiction; it is question about how the court exercises jurisdiction. But what the Full Court said was that the jurisdiction that it is exercising when it deals with a matter under the regulations can exclude the jurisdiction that it has under the parens patriae jurisdiction.

TOOHEY J: I thought there was an argument somewhere along the line that this was not a matter in terms of the Family Law Act, and hence in some way or other the jurisdiction of the Family Court was excluded. But that does not seem to be the argument.

MR DWYER: No, it is not. It is one of the ways in which the matter was put in the Full Court, but that is not contended here, if the Court pleases. The question is rather to say that if there is a matter before the court it is a matter that relates to the custody or welfare of the child.

The other matter to which we draw the Court's attention is the fact that in any event in this case, the custody jurisdiction of the court has been invoked, and it was invoked by the wife's application for custody.

TOOHEY J: But that is a curious argument really, is it not? I mean, are you suggesting that by virtue of some sort of cross application if the Family Court is otherwise exercising its jurisdiction correctly under the Convention and regulations that somehow that becomes converted into a welfare inquiry by reason of the cross application?

MR DWYER: We do contend that, yes. It is a point that the Full Court did not think much of.

TOOHEY J: If you are right about that, the rest of it just goes by the board, does it not?

MR DWYER: Yes, it does. It is not the argument that we put at the forefront of our case. It is, if I could put it this way, our fall-back position. If the Court pleases.

MASON CJ: The Court need not trouble you, Mr Meehan, nor you, Mr Burmester.

The Court is of opinion that the answers given to the questions asked in the stated case are not attended with sufficient doubt to warrant the grant of special leave to appeal. The application is therefore refused.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE DIE