AMS v AIF P35/1997 [1998] HCATrans 227 (19 June 1998)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P35 of 1997

B e t w e e n -

AMS

Applicant

and

AIF

Respondent

Office of the Registry

Perth No P37 of 1997

B e t w e e n -

AIF

Applicant

and

AMS

Respondent

Applications for special leave to appeal

GAUDRON

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 JUNE 1998, AT 11.42 AM

Copyright in the High Court of Australia

__________________________

MR R.S. HOOPER: If it please your Honours, I appear for the appellant, AMS, the father. (instructed by Lewis, Blyth & Hooper)

MS L.C. YOUNG: If it please your Honours, I appear for the respondent mother,AIF. (instructed by Young and Young)

GAUDRON J: And the other way around in the mother's application.

MR HOOPER: Precisely.

GAUDRON J: Yes, thank you. Yes, Mr Hooper.

MR HOOPER: Your Honours, we have before you two applications for special leave, sought on different issues and different grounds by each party. In respect of the application by my client, the father - I will refer to the parties as "father" and "mother" throughout, your Honours, I think it may be more easily understood - the father's case is that he supports the position taken by the trial judge, whom he says, whilst he does not agree with the result of the trial judge, his reasoning process cannot be properly challenged on appeal, save for one small point which I will come to later.

What he says is that the decision of the Supreme Court is wrong in its reversion and overturning of the trial judge's position regarding guardianship on a number of grounds, they being primarily two, namely, that the Supreme Court has elevated the statutory default provision in section 35 of the Family Court Act in this State as it still

stands, pending proclamation of the new legislation, to a provision which requires a litigant to have overturned some form of burden or onus in the exercise of discretion as to the guardianship of children.

GAUDRON J: Was the Full Court made aware of the position in the Northern Territory? Did you appear in the - - -

MR HOOPER: I did not appear in the Full Court, your Honour, and I cannot recall whether the Full Court was made aware. But it is, I think, obvious from reading the transcripts - which are not before your Honours, I concede - but I think it is obvious, from reading the transcripts at least, which were before the Full Court, that the mother only assumed the status of sole guardian and sole custodian upon arrival into this State with the child. You will, of course, appreciate that - - -

GUMMOW J: That assumes that section 63F of the Family Law Act, in its operation in respect of the Northern Territory, under section 60E ceased when she crossed the border, I suppose.

MR HOOPER: Well, it ceases, your Honour, when the child crosses the border.

GUMMOW J: Yes, with the mother.

MR HOOPER: And with the father, for that period when the father was in this State and the mother and child remained in the Northern Territory, the Family Law Act still prevailed. But upon the mother and child entering the State, the child was stripped of the benefit of having his father as guardian and joint custodian at law, pending any decision made by the court. So, as to whether the Full Court was aware of that, I would say, your Honour, that, from the material in the appeal book, it should have been obvious that the status quo throughout the majority of the child's life was, as a matter of law, that the parents were each guardians and joint custodians and that, as a matter of fact, throughout the entire life up until the trial the parties, in fact, jointly exercised decisions in the nature of guardianship.

The second point that we make, your Honours, is that in any event the section relied on, section 35, is unconstitutional, or unlawful, by reason of section 92 of the Constitution. It is difficult, your Honours, to image - - -

GUMMOW J: Now, why is that so?

MR HOOPER: Well, your Honour, the position I put is this; that the freedom conferred under section - - -

GUMMOW J: I mean, if anyone has been restrained here it is the mother. She has an order against her preventing her leaving the State.

MR HOOPER: Yes, your Honours, but that is an order exercised by a court charged with jurisdiction to consider the best interests of a child and form a view. The statute, section 35, without any judicial determination, strips of a child and a father the position of guardianship and custodian upon mere crossing of the border and I can - - -

GAUDRON J: So, what do you say of that?

MR HOOPER: Well, what I say of that, your Honour, is that it is difficult to image a greater impediment to free intercourse between the States than the spectre - - -

GAUDRON J: Do you say it is invalid?

MR HOOPER: Yes, I do, your Honour. I say it cannot be read down. It is impossible, within the words of it, to read it down and it is difficult to - - -

GAUDRON J: Have notices been given under section 78B of the Judiciary Act?

MR HOOPER: Notices have been given, and all of the State and Commonwealth Attorneys and the Human Rights Commission, I am instructed, have indicated that if leave is given they may then wish to be heard, but they do not wish to be heard on the special leave point. So, your Honours, if you accept my primary point that the Supreme Court erred as a matter of fact when it found that the status quo - the long standing status quo - was one of - - -

GAUDRON J: Can I take you back to this? Can I just isolate this question? Do you say that section 35 is invalid in so far as it applies to children who enter the State, or do you say that the order made by the Full Court is invalid?

MR HOOPER: Your Honour, I say section 35 is invalid in so far as it applies to children entering the State, firstly, and, secondly, I say that the order of the Full Court, where it overturned the joint guardianship made by the judge at first instance, was wrong in that (a) it was based on a wrong-headed view of the factual matrix and, secondly, it was based upon a view which elevates the statutory position - - -

GUMMOW J: But wrong, or beyond power, the order?

MR HOOPER: Well, your Honour, I suppose it is two headed in the sense that if the section is invalid, well, it makes the decision on the basis of relying upon an invalid law. But even if the section be valid, I say that the decision is wrong, and I say that it is wrong because it takes as its source a factual matrix which is wrong, and that is the assumption that the status quo throughout the child's life had been one of a legal sole guardianship to mother, which is not the case - - -

GUMMOW J: Now, does section 35 - - -

MR HOOPER: - - - and, secondly - - -

GUMMOW J: Sorry. Does section 35 operate upon the presence of the child in the State, or the presence of the child with the mother in the State?

MR HOOPER: Section 35 can only operate upon the child being present in the State.

GUMMOW J: With or without the mother?

MR HOOPER: With or without the mother.

GUMMOW J: So, if the mother had remained in the Northern Territory, would section 35 have worked its operation, simply because the child was in Western Australia?

MR HOOPER: No, it would not, your Honour, because then you would have an action between parents - well, assuming the child and the father are in the State, but the mother was in another State or Territory, then the Family Law Act would prevail because of the provisions concerning actions between parents in different States. It is only when the entire family unit are in the State, and the child present, that the Family Court Act operates.

GAUDRON J: It is not predicated on the acquisition of what used to be called a domicile in the State?

MR HOOPER: It is predicated on presence. The child must be present. There have been other cases, your Honours, which I need not go into but which make it plain that, if the child is present, it is on that basis that the jurisdiction operates. My friend agrees with that proposition, your Honours. So, your Honours, what I come back to is the point that, with the Supreme Court's decision on guardianship, even if the section is valid, is wrong (a) because it is based on a wrong-headed view of the facts throughout the child's life - the legal fact of guardianship - and, secondly, because it elevates what I would say the default provision in the section to some onus, or burden, or hurdle that has to be overcome in the court exercising its discretion, and that is not the case. The court must exercise discretion on the basis of the best interests of the child, without any notion of some evidential burden to be overcome by one party or the other.

Indeed, if you maintain that position, then the Court would have to be convinced, for example, under the Family Law Act, which has similar provisions, that some evidential burden exists before an order is made vesting custody or residence in one parent rather than another. Pure and simple, the position is that the Court must exercise its discretion on the basis of the best interests of the child, without notions of evidential burden or onus. In the Full Court, the Full Court seems to have proceeded on the basis that the father had to discharge some evidential burden before the joint guardianship order could be maintained, as it was by the judge at first instance, and the judge at first instance considered this matter fully and found that the parties had, in effect, worked as joint guardians through the child's life, whether legally compelled to or not, and, therefore, ordered that that situation continue. In effect, what the trial judge did was confirm a fairly long standing status quo.

GAUDRON J: Now, Mr Hooper, we do not need to hear you further on the guardianship point at this stage. Is there anything else - - -

MR HOOPER: The only other thing I would put then, your Honours, is that if leave is to be granted on the guardianship point, then I would say that a stay should follow.

GAUDRON J: A stay of what?

MR HOOPER: A stay of the Supreme Court's guardianship order. There is an application by motion before you for a stay - - -

GUMMOW J: But that has been in place since July 1997, itself.

GAUDRON J: And it will not help you. Unless, somehow, you can invoke the Northern Territory legislation, it gets you nowhere.

MR HOOPER: Well, if a stay of the Supreme Court's order is put in place, then we revert to the Family Court's original order of joint guardianship. The position I have put to your Honours is that the evidential material shows how the mother has since been made sole guardian, we would say, not properly exercised that power.

GAUDRON J: Mr Hooper, I can tell you one thing of which you can be absolutely confident; this Court is not going to embark upon any consideration of disputed factual matters, either in relation to the stay or in relation to the special leave. Now, at the moment you are ahead in so far as you raise a question of law.

GUMMOW J: Now, why go into reverse?

MR HOOPER: I will try not to snatch defeat from the jaws of victory, your Honour. The position, I would say briefly, in respect of the application by the mother regarding the relocation point is that, if the mother's position now is that two and a half years after the event, that the evidence she gave at trial upon which the judge relied is such that she cannot any longer suborn her unhappiness at remaining in this State and she, therefore, must leave, then this is a matter that should go back for retrial before a judge at first instance, who can then hear the evidence and review all of the material and the witnesses on the position as it now stands, rather than on what it did stand some two and a half years ago. Now, other than that, your Honours, I do not think I can take the matter much further.

GAUDRON J: Mr Hooper, your application was out of time.

MR HOOPER: Both parties, I think, seek leave - - -

GAUDRON J: Now, is there some explanation for that? It does not appear in the papers.

MR HOOPER: Your Honour, from my side, my client was unrepresented, and I think he was one day late. The position for the respondent mother is I think she was something like a month late, but we do not challenge her application to have her matter considered on its merits.

GAUDRON J: Yes, thank you.

MR HOOPER: Unless you have any questions of me, your Honours, thank you.

GAUDRON J: Thank you, Mr Hooper. Ms Young.

MS YOUNG: Do your Honours wish to hear me on the point of guardianship?

GAUDRON J: If you wish to reply to it, yes.

MS YOUNG: There are only a few points I would like to make, your Honours. Firstly, my friend has made it clear in his papers, and he did mention it in his address, that section 35 is about to be repealed; in fact, is simply awaiting assent, as I understand it, and I understand will come into effect at the end of this month, so we would argue that the question of the constitutional validity, if there is in fact such a question, is one that should not take the time of the High Court, given that this section is about to be repealed, given that a special leave - - -

GAUDRON J: But the repeal of the section is not going to alter the order.

MS YOUNG: That is correct, your Honour, it will not affect the father's case. However, your Honour, the father, as my friend suggested, is in the same position as the mother, to an extent, in that he has the opportunity to make a fresh application in relation to guardianship, should he wish to, on the basis of the repeal of section 35. I will make some argument later as to why that course which has been suggested in the papers is not appropriate for the mother, but certainly that avenue is available to him. In addition to the question of the repeal of section 35, is the question of whether or not section 35 is, in fact, constitutionally invalid, and the basis of the argument, as I understand it, is section 92 of the Constitution and I am not sure - - -

GAUDRON J: Yes. Well, that is a provision which I imagine you, to some extent, call in aid in your application, is it?

MS YOUNG: No, it is not, your Honours, with due respect.

GAUDRON J: Why not?

MS YOUNG: In respect of the relocation issue, your Honour?

GAUDRON J: Yes. The order operates directly to prevent the movement of your client and child between Western Australia and the Northern Territory.

GUMMOW J: She is given sole custody and, then, is restrained from changing the child's place of residence from Perth.

MS YOUNG: That is correct, your Honours, but it is not the effect of the - - -

GUMMOW J: Well, that is a restraint on her freedom of movement through the Commonwealth, or, at least, from a State to a Territory.

MS YOUNG: That is correct, your Honours, but we would not submit that it is outside the power of the Court to make such an order, and we would submit that the Family Law Act clearly provides the power for the Court to make such an order.

GAUDRON J: Well, I do not know that I would be making such a concession if I were in your position, Ms Young.

MS YOUNG: Well, it is a position that has a long history to it and has been well recognised in - - -

GAUDRON J: So has the Constitution.

MS YOUNG: In any event, your Honour, in relation to section 35 and its operation in relation to section 92, we would submit that there is nothing in the case law in relation to section 92 that would suggest that section 35 is unconstitutional, and I am not clear on whether your Honours want me to address you further on that, as my friend has not addressed you particularly on that point.

GAUDRON J: Well, Ms Young, our indication that we did not require to hear from Mr Hooper further was an indication that, on that issue, he had prima facie, and subject to what you might have to say in reply, made out a case for the grant of special leave. It is a question, though, of your persuading us otherwise, and it is a matter for you whether you wish to spend time on that or on your application for special leave.

MS YOUNG: Yes, your Honours. In that case, then, I will make further submissions. Firstly, I would say - can I refer to the point of the question of the status quo? I would like to make submissions on that point first; the supposed approach of the Supreme Court that there was some status quo applied by them. Nowhere, in fact, does my friend suggest in the papers where the question of status quo is found in the judgment of the Supreme Court and, in fact, what the Supreme Court does is to refer, in two places - on pages 68 and 69 of the appeal book - to preserving the status quo regarding guardianship of the child in question.

Now, in that regard, it is clear that what the Supreme Court was referring to was simply to not change the legal status quo. There are simply two references to those words and the court had considered in detail, before the evidence of the parties and the decision of the trial judge, and simply found at the end that there was no good reason to change what they called the status quo. But what they mean by those words is, clearly, the status quo, as my friend called it, the default position, the starting position provided by the statute, which my friend acknowledges was the legal position at the time that the parties were in Western Australia and that, therefore, your Honours - - -

GUMMOW J: No, he does not say that. He says it was an invalid legal position. That is his point, and that is what we are inviting you to reply on.

MS YOUNG: With respect, your Honours, I thought he said two things.

GUMMOW J: All right.

MS YOUNG: Yes, your Honours, but I just wanted to address the issue of the status quo as to whether or not, in fact, there was a procedural error and to deal with that before returning to the question of the infringement of section 92 of the Constitution.

GUMMOW J: Now, you also complain, do you not, about the orders made restraining the activity of your client with the child?

MS YOUNG: That is correct, your Honours. Would you like me to address you on that issue now?

GUMMOW J: Just do not lose sight of it, that is all.

MS YOUNG: With respect, your Honours, I have not, except that I see that the two cases here are essential very different. The father in this case is arguing that section 35 is invalid and, even if it is not invalid, that the orders made pursuant to it were wrong. Our case, your Honours, is very different. They are separate appeals and our case, in fact, relates to the exercise of the discretion by the trial judge in relation to the question of relocation, and my submissions in relation to that are entirely separate and, in fact, quite different from the matters raised by my friend, who seems to, in his submissions, have misconceived my client's case. He seems to be under the impression it depends upon her happiness.

GAUDRON J: Ms Young, in case there is any mistake, we are only giving you 20 minutes, so you had better make good use of your time.

MS YOUNG: Yes, I realise that, although - yes, your Honour, I had understood, in fact, from the Court, that these matters would be heard consecutively and we would have time on both issues. But as that is not the case, your Honours, in relation to section 92, I would submit, your Honours, that the cases supplied by the father's counsel in this case do not - his authorities do not, in any way, support that this section - a section which simply makes the law different in relation to children in Western Australia from other States - amounts to an infringement of section 92. In no way does this section, as the father suggests, strip the father of any rights, or impede him from moving into this State.

There are many examples of differences in State legislation that may make it less or more desirable for a party to move in to or out of a State, just as, in fact, the Northern Territory has very different laws in relation, say, to de facto property disputes and what have you. It does not mean that the father in this case was impeded from moving into this State because of this law. Obviously this does not depend upon the trade or commerce sections of section 92; rather, it depends upon the question of freedom of intercourse. And as I submitted, your Honour, while my friend has provided you with some authorities, none of those support the idea that this section that simply changes the legal relationship between the parties - and only in certain circumstances, in the absence of an order - in fact impedes the applicant from moving into this State.

I wonder whether the argument might be something like, in relation to trade or commerce, sort of a protectionist approach, that no one dare come to Western Australia for fear of having their relationship changed with their child. While it does change the default position, when the parties appear in court, your Honour, it is the case, as the trial judge has shown in this case, and I would submit that the Supreme Court has shown, that that is simply a starting position and that both parties then depend upon the court's determination on the best interests of the child, regardless of whether the child is an ex nuptial child or a nuptial child.

As I have only one lot of 20 minutes to talk about these two issues, I fear I ought to move on to the question of the relocation issue, which obviously is my client's concern in this case. Your Honours, in relation to the relocation issue, when these parties were living together in the Northern Territory, the father made a decision at some point, and that was that he wished to relocate to Perth. On relocating to Perth, the mother in this case, or course, made no application to restrain him. Had she made an application to the Family Court, she would not have been heard on this issue, in the sense that the Family Court has made it abundantly clear, in the most recent Full Court authority of B and B that, while a court technically has a power to restrain a non-custodial parent from moving, that it will not exercise that power.

GAUDRON J: That must be open to question.

MS YOUNG: I would suggest that the practice is open to question, but that that is what the Full Court has said.

GUMMOW J: No, no.

GAUDRON J: If that is as the law was stated in B and B - and I am not entirely familiar with that case - that must be open to question.

MS YOUNG: That, your Honour, is, we would submit, the crux of this case; that the Full Court has said, and the practice of the Family Court is, that it will not restrain non-custodial parents from relocating. Now, the basis that the Full Court agrees to restrain custodial parents from relocating is the best interests of the child, and the sections in the Act - in particular, a new section, section 60B - but, regardless of those, it has always been the case before those new sections were inserted.

The reason for the restraint of a mother, or a custodial parent, in these circumstances is based on the reduction in contact that necessarily follows between the non-custodial parent and the child; that is, it is in the best interests of the child to restrain the parent from moving.

GUMMOW J: Now, what is your specific complaint about these orders in the Full Court?

MS YOUNG: Our specific complaint, your Honour, is, firstly - it is twofold.

GUMMOW J: Because that is what we have to get down to.

MS YOUNG: Firstly, your Honours, it is that the decision making in these cases is based on the reasons for which the mother is entitled to move, and that there is clear authority from other jurisdictions - and I have referred you, in our submissions, to Gordon v Goertz - that the reasons for a move should only be relevant to the extent that they impact on the welfare of the child. The Family Court has said in many other areas - in relation to religion, in relation to homosexual parents - that the only circumstances in which it will hear evidence on these issues is when it is relevant - - -

GUMMOW J: We understand all of that. Just listen to me. What is wrong with these orders in relation to your client in principle? Where was the principle got wrong? You may be quite right about it, but just tell us what it is.

MS YOUNG: Your Honours, in our case it is very clear that the trial judge considered one main factor in relation to our client's case and that was her reasons for moving, and he effectively disqualified her from moving because she could not put forward a good reason. He spends three of his four pages on considering her case - - -

GUMMOW J: Yes, but just forget how many pages. Now, why was that wrong?

MS YOUNG: Because we would submit, your Honour, that reasons are only relevant to the extent that they impact on the welfare of the child. As Madam Justice McLachlin has said, and the Full Court, in fact, affirmed - - -

GUMMOW J: Well, that is the point. You have just got to be specific.

MS YOUNG: Yes, your Honour. As I say, I thought I had a little longer in relation to this particular issue.

GAUDRON J: Well, what you say is that the trial judge took an irrelevant consideration into account in exercising his discretion.

MS YOUNG: That is correct, your Honour, the reasons, and - - -

GAUDRON J: But do you go further and say that, in any event, having regard to section 92, the circumstances which would permit of an order of this kind, assuming even that they would permit of it, must be exceptional? I mean, section 92 does guarantee, as one of the few constitutional guarantees, the right of interstate trade, commerce and intercourse, and here you have an order which actually prevents interstate intercourse.

MS YOUNG: Yes, your Honour. In addition, we would submit that it is an abrogation of the fundamental human right that section 92, in effect, protects, and it has been part of our case that the abrogation of that fundamental human right, as protected by section 92, although it was not part of our case, but the - - -

GAUDRON J: What about a constitutional right? Why worry about a fundamental human right when there is a constitutional right there in black and white?

MS YOUNG: I would suggest that the Court would have an ability to avoid that argument by simply not making an order that restrained the mother, and by restraining the movement of - in fact, possibly changing the custody of the child. I am concerned that to explore that route leaves the argument open, your Honours, that the mothers in these cases are free to move. It is an argument my friend has made in the papers, that the mother, in these circumstances, is, in fact, free to move, she is simply not free to take the child with her. But I would accept, your Honours - and it is not pleaded on our papers, I admit - that there is - - -

GAUDRON J: Well, the child has got some rights under section 92, too. If anyone has got rights, they do not depend on your age.

MS YOUNG: Yes, your Honours, I would accept that there is an issue under section 92 and that we have not argued that issue. I would like to make one further point, though, in relation to the operation of this section, and that is the discriminatory nature in which it operates by reason of the Full Court decision in B and B, which makes it clear that these restrictions, whether a breach of fundamental human rights or section 92, will not be imposed upon non-custodial fathers and we would submit, your Honours, that there is no logical justification for that.

If the reason for restraining the move of a mother is based on the consequent reduction in contact between the child and a non-custodial parent, then the move of the non-custodial parent in this case has exactly the same effect. When the father, in this case, moved from the Northern Territory to Western Australia and would not have been restrained - and my client would not have made an application to restrain him - he was treated substantially differently from the way custodial parents are treated, and there is no logical justification for this difference in treatment.

In relation to the issue of the reasons, your Honours, we would submit that taking account of the reasons for a move should only happen in the Family Court when the impact of those moves affects the best interests of the child. If they do not, then they are an irrelevant consideration and, in fact, the practice is now that custodial parents are restrained from moving in the absence of a good reason, and we would submit, your Honours, that that is to restrain a move based on what may be essentially - and was, in my client's case - irrelevant material.

We would like to submit that the reason that this case is such a good vehicle to discuss this is that this is a case - unlike, say, B and B - where my client does not have one of the very limited and acknowledged good reasons provided by the Family Court. Those usually relate to employment and re-partnering and what have you. In B and B, the mother had no incentive to argue that position because, of course, she had a good reason. This case, I would submit, your Honours, is the perfect vehicle because the issue of the reasons of the applicant were central to the decision and was the determining factor of this decision, and the reason that she was denied her application to relocate was the absence of any good reason. May it please the Court.

GAUDRON J: Yes, thank you, Ms Young. Now, you have a limited right of reply, Mr Hooper.

MR HOOPER: Thank you, your Honours, I will be brief. What the trial judge said in respect to the mother's case at first instance was that fresh air and sunshine were not a good enough reason to unsettle a settled status quo for a child. We would say that the mother's application should be opposed and refused because the mother was not restrained. The child has been restrained from moving. No application has been made on behalf of the child in this case. If the Court wishes to - - -

GAUDRON J: That is sophistry. One hopes you have a better reply than that.

MR HOOPER: If the Court wishes to use this case as a vehicle to comment on the provisions of the Family Court Act as it now stands, the Family Court Act as it will stand, and the Family Law Act as it does stand in respect of the general principle of parents' rights to move within this country, with or without their children, then I do not oppose that course. My client is not particularly concerned with the policy considerations; he is concerned for his position vis-a-vis his guardianship of his child. But if the Court wishes to use this case as a vehicle for the wider considerations, the appropriate notices have been given and the matter can proceed on that basis and we do not oppose it. Thank you.

GAUDRON J: Thank you, Mr Hooper.

The application by the father in this matter raises a question whether the Full Court correctly approached the question of joint guardianship. The application by the mother raises a question as to the approach to be adopted when a custodial parent wishes to relocate to another State or Territory. They are both questions of importance appropriate to attract the grant of special leave. The question with respect to relocation may, however, necessitate further consideration of custody. There will, thus, be an unrestricted grant of special leave in both matters. In both matters there will be an extension of time.

It is not intended, however, that the unrestricted grant of special leave should permit of agitation of custody issues in this Court. Rather, it is intended, if that issue should require reconsideration, it will be remitted either to the Full Court or to the Family Court of Western Australia.

We emphasise that special leave is granted because of the general importance of the two issues identified: namely, joint guardianship and the relocation of a custodial parent to another State or Territory. We note from the papers that the parties may have had some difficulty in securing legal representation. It is most important that they be properly represented at the hearing of the Appeals. If either party is unable to arrange for his or her proper representation, we urge him or her to contact the Australian Bar Association or the Law Council of Australia to see if either Association can assist. We direct the Registrar to forward a copy of the transcript to these bodies and, also, to the Attorneys-General for the Commonwealth and the State of Western Australia.

There is nothing further, I take it? Could I ask Mr Hooper and Ms Young if you are able to give any indication of the time that might be taken on the hearing of these appeals.

MR HOOPER: I would not wish to do so, your Honours, until we know which of the States, the Commonwealth and the Human Rights Commission wish to intervene.

GAUDRON J: They will not take long. Let us hear the estimate of your case.

MR HOOPER: Half a day.

GAUDRON J: Ms Young?

MS YOUNG: Your Honours will understand that it is very difficult for me, as I am appearing pro bono and do not normally appear in Court, to estimate the time that this matter would take. But I was wondering if my friend, who was involved with the previous decisions, might have a thought on the relocation matter. But I would have thought it would take at least a day, your Honours.

GAUDRON J: Maybe a bit less. We do not involve ourselves with factual issues so it may take less. But thank you for that.

The Court will adjourn now to reconstitute.

AT 12.23 PM THE MATTER WAS CONCLUDED