DP v Commonwealth Central Authority D12/2000 [2001] HCATrans 122 (29 March 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Darwin No D12 of 2000

B e t w e e n -

DP

Appellant

and

COMMONWEALTH CENTRAL AUTHORITY

Respondent

Office of the Registry

Sydney No S291 of 2000

B e t w e e n -

JLM

Applicant

and

DIRECTOR-GENERAL NSW DEPARTMENT OF COMMUNITY SERVICES

Respondent

Application for special leave to appeal

GLEESON CJ

GAUDRON J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 29 MARCH 2001, AT 10.21 AM

Copyright in the High Court of Australia

_______________________

GLEESON CJ: I had those two matters called together on an assumption that it was convenient to the parties that they be dealt with one immediately after the other; I assume that that is agreeable to the parties. Yes, Mr Meldrum.

MR R.K.J. MELDRUM, QC: If the Court pleases, I appear with my learned friend, MS S.M. GEARIN, on behalf of the appellant. (instructed by the Legal Aid Commission of the Northern Territory)

MR D. GRACE, QC: If the Court pleases, I appear with MR P.J. BASTON on behalf of the respondent. (instructed by Diana Elliott)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MR P.M. FRIEDLANDER, for the applicant in JLM. (instructed by Aubrey F. Crawley & Co)

MR J. BASTEN, QC: If the Court pleases, I appear with MR A.L. HILL for the respondent in that matter. (instructed by I.V. Knight, Crown Solicitor's Office, (New South Wales))

GLEESON CJ: Is it convenient that we hear Mr Meldrum and then Mr Grace, then Mr Meldrum in reply, then Mr Jackson, then you, Mr Basten?

MR BASTEN: If your Honours please.

GLEESON CJ: And you in reply. Yes, Mr Meldrum?

MR MELDRUM: If the Court pleases, this appeal arises out of a decision of the Full Court of the Family Court of Australia dealing with an application made under the Hague Convention concerning the taking of a child M from Greece and bringing his to Australia. The circumstances - - -

KIRBY J: How many parties are there to that Convention, do you know?

MR MELDRUM: To the Convention?

KIRBY J: To the Hague Convention.

MR MELDRUM: One hundred, my learned junior - - -

KIRBY J: I think I read somewhere there are 100 parties, and presumably, when did we become - we became quite quickly.

MR MELDRUM: 1997. It was a 1990 Convention. I think we signed up in about September 1997. Sorry, 1987. 1980 Convention; we signed on in 1987 in, I think, September, and I am not sure whether Greece was ahead or behind us, but Greece is certainly a signatory to it.

The circumstances of the child, which we say ought to be determinative of what orders should have been made - - -

GUMMOW J: Is there any representation for the child at any stage?

MR MELDRUM: There was none. No, your Honour.

KIRBY J: I think that was raised, was it not, in one of the proceedings as to whether there ought to be separate representation.

MR MELDRUM: Yes.

GUMMOW J: We talked about that in De L, I thought.

MR MELDRUM: Yes, indeed, but De L, of course, was dealing with a child whose wishes were being considered by the Court and was not separately represented and this Court, on that occasion, gave some strong indication of the impropriety of proceeding without separate representation in those circumstances.

Here, the question of the child related to whether it had special needs, whether those special needs put it in a position where there would be grave risk of physical or emotional damage, psychological damage in the event the child were returned to the country of its habitual residence, which were all matters that the parties advising the wife in question took the view to be adequately dealt with by the wife without separate representation for the child.

GUMMOW J: There seems now to be some addition to the legislation. Section 68L(2) seems to diminish the scope of the making of orders for child representation.

MR MELDRUM: For separate representation, yes.

GUMMOW J: Yes.

MR MELDRUM: Certainly, perhaps not surprisingly from our point of view we do not assert that there ought to have been a different course in terms of the child.

GUMMOW J: Yes.

MR MELDRUM: The circumstances of the child are set out in the appeal book commencing at page 80. The child was born on 13/11/1994 and shortly after his birth it became obvious that he was suffering from a bundle of deficiencies and defects and conditions which were subsequently diagnosed upon the child coming to Australia as being an autistic condition.

We say the significance of the evidence concerning that which involves paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 23, 24, 27, 28, 29, 36, 44, and then 44 sets out the circumstances of the child. We would summarise it in these terms. It was, we say, obvious that there were real developmental defects in the child. That evidence at those pages sets out the steps that the mother had taken to obtain a diagnosis and a treatment for that child. Those steps are described in the respondent's reply to our outline as merely being local inquiries.

We say that misdescribes the evidence. She travelled many hours to go to Salonika from the village in which she was resident, many hours each way, on the evidence, and, of course, Salonika is the second largest city in Greece. She had sought assistance from paediatricians, an orthopaedic surgeon, speech therapists, optometrists, she went to school authorities, as well as medical authorities, and she had attempted to get assistance in a preschool centre.

She had gone with a great deal of regularity, at least monthly, to her paediatrician and she had met everywhere with negative response in terms of an attempt to diagnose what, if anything, was wrong with her child.

GAUDRON J: Where is that evidence?

MR MELDRUM: At the pages to which I have taken the Court now. In page 80 she talks about his condition, 81 is further in the condition.

GAUDRON J: Yes, but the evidence of her attempt to obtain medical treatment in Thessalonica and her travelling to and from - - -

MR MELDRUM: The travel.

GAUDRON J: Salonika - there is a reference at page 82 to her going to Salonika, but is that - - -

MR MELDRUM: Yes, that is Thessalonica.

GAUDRON J: Is it?

KIRBY J: I think Thessalonica is the Turkish description, is it not?

MR MELDRUM: I believe it is and she - - -

KIRBY J: Salonika is what it is now known as.

MR MELDRUM: Certainly, and perhaps we ought to adopt it, given that the Greeks themselves do.

KIRBY J: It might be wise.

MR MELDRUM: There is some point to us giving a name to the town that the nation gives to it.

KIRBY J: It seems pretty hard to convince an Australian court that a mother could not get, or a parent could not get equivalent health care in Salonika that would be available in Darwin.

MR MELDRUM: But the reality was she did not.

KIRBY J: It may be that was a misdiagnosis. That does happen in Australia as well as Greece.

MR MELDRUM: Yes, except, your Honour, that there was - that would put it as misdiagnosis with a very wide range of medical and paramedical specialists.

GLEESON CJ: What was the finding of the Full Court of the Family Court in this matter?

MR MELDRUM: Can I give, in the way of advocates, a slightly longer answer to that? At first instance, the paediatrician called by the wife expressed the view that there would have to be, as his Honour Justice Kirby put to me, in Greece an understanding of and treatment available for autism. The learned trial judge decided that that was the evidence and that our argument that going back to Greece would raise the problem that the child would not be treated flew in the face of that evidence.

In the Full Court they said that was not evidence which the learned trial judge was entitled to accept, because it was an expression of an opinion about the availability of medical evidence by somebody not able to grant or to give that opinion. It said that the mother bore the onus of showing that there was no treatment available anywhere in Greece; she had merely demonstrated that all her inquiries had come to nought.

Her inquiries included evidence being laid before the judge at first instance of correspondence between herself and appropriate medical authorities in the prefecture that included Salonika and her village and areas. That reply had indicated that there were an enumerated list of institutions available at which this condition was treated, but the evidence indicated, without any conflict, that they were all public hospitals or in-patient mental hospitals, and the majority of them being in-patient mental hospitals. The judge at first instance held that all of those institutions were inappropriate.

HAYNE J: Well, the finding is at page 208 paragraph 55, is it not? Does the trial judge's finding go beyond what appears in the first sentence at paragraph 55 page 208?

MR MELDRUM: No, it does not.

HAYNE J: That is a finding about the general area in which the child was born and brought up?

MR MELDRUM: Yes.

GAUDRON J: Why should the mother bare the onus in cases such as this? It seems to me, one ought to be looking at these central authorities as something other than the adversarial party. One would have thought, given the nature of proceedings such as this, the Central Authority would have a duty something analogous to that that is said to belong to independent prosecutors.

MR MELDRUM: There is under the Convention and the regulations matters that deal with the Central Authority and we would say that they certainly give a power to the Central Authority, if not cast an obligation - - -

KIRBY J: Is the reasoning in the Full Court that prima facie the Hague Convention requires, and the regulations in Australia require, that the child be returned and if you do not want that to happen you have to prove why?

MR MELDRUM: Yes, that is in part - - -

KIRBY J: It sounds pretty right to me.

MR MELDRUM: We do not have any difficulty with that.

GAUDRON J: I just wonder why, though, in cases such as this, the Central Authority, presumably, is in a position to make regular contact with the authorities in the other countries and why, where an issue such as this arises, it should not be up to the Central Authority in the face of, at least, prima facie evidence of this kind to establish positively that there are such facilities.

HAYNE J: Even if that is not so, even if the Central Authority does not bear that onus, and at least that is a real and lively question in my mind whether it does, once mother has gone on oath and said, "I've looked in this area. I can't find anything", given the way these trials are conducted, unless in cross-examination the Central Authority raises the issue where you could go and live elsewhere and find what you need, how is the issue raised? Mother has said, "The only place I can go back to is the place where I came from".

MR MELDRUM: That is because her parents have a home there and she - - -

HAYNE J: "And I've looked there and I can't find anything".

MR MELDRUM: It was not just there, with great respect, your Honour. She has gone hours and hours from there and she has gone to the second largest city. But to answer your Honour Justice Gaudron's query, we start with Article 7 in the Convention which deals with central authorities.

GUMMOW J: I thought we start with the regulation.

MR MELDRUM: Yes, I am happy to go to the - I intend to go from the Convention to the regulations. The regulation is contained in regulation 16(4). Perhaps if I start with the regulation.

GLEESON CJ: Just excuse me for a moment, Mr Meldrum. What is the date at which we should have the reprint of the regulations?

GUMMOW J: We had a problem with this before, as I remember.

MR MELDRUM: Yes, we did, but it is not a problem - can I give the non-responsive answer? It is not a problem here. The appropriate regulation, if all the parties are agreed, is at page 231 of the - - -

GUMMOW J: No, we have had that before, too.

MR MELDRUM: I appreciate that and the agreement was wrong.

GUMMOW J: Yes.

MR MELDRUM: The agreement flew in the face of the - - -

GLEESON CJ: The reason I asked the question is that I have been handed a reprint as at 30 September 1996 and I am just seeking some assurance that it is relevant to this case.

MR MELDRUM: We do give that assurance, yes.

GLEESON CJ: Thank you.

MR MELDRUM: That regulation relevantly is in regulation 16(4):

For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

KIRBY J: That does seem to bear out a little what Justice Gaudron was saying, that the central authorities are or can be in communication with each other and that would be a rational, international system.

MR MELDRUM: Indeed. The Convention anticipated that and Article 7 of the Convention relevantly reads:

Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their respective States to secure the prompt return of children and to achieve the other objects of this Convention.

In particular, either directly or through any intermediary, they shall take all appropriate measures -

and then:

d to exchange, where desirable, information relating to the social background of the child - - -

GLEESON CJ: Is the question of fact whether or not there is treatment for autism available in Greece?

MR MELDRUM: In Greece, or perhaps, we would say relevantly, only where the child is likely to back to in Greece.

GLEESON CJ: Let me take the first part of the question.

MR MELDRUM: Certainly.

GLEESON CJ: Are you telling us that in 2001 an Australian court can be left in a state of uncertainty as to whether there is treatment for autism available in Greece?

MR MELDRUM: We say that an Australian court applying Jones v Dunkel, Watts v Rake and the evidence in this case is entitled to say that the wife, the mother, the person resisting the removal, has demonstrated there is an absence of such facilities in Greece.

GAUDRON J: But the Chief Justice's question, I think, goes further. I mean, these are important cases, to my mind. It is incomprehensible that these matters would not be established, incomprehensible that the Central Authority would not have taken it upon itself to ascertain the information and provide it to the court.

MR MELDRUM: Well, it was put on notice, with respect, your Honour, by the affidavit of the mother.

GAUDRON J: Yes, and the Central Authority did what?

MR MELDRUM: Nothing.

KIRBY J: But, Mr Meldrum, you keep referring to the - the mother's evidence was that she had looked and she had looked and she got a few rebuffs and one doctor said that they thought she was a hysterical mother and she was spoiling the child. But that was at a point before diagnosis. I mean, really, it is hubris for Australians to say that we have in Darwin treatment for autism, but that in the Hellenic Republic, which has a history much older than ours and presumably a well-established medical profession, that once the diagnosis is made, you cannot in Salonika or from Salonika get treatment for autism. I just would find that impossible to believe.

MR MELDRUM: Well, your Honour, with great respect, what also occurred was that the evidence on behalf of the mother also led the correspondence between herself and the relevant health authorities and that correspondence is in the context of a child with autism and what are the facilities for the treatment of this child with this condition in this area. The answer was: "Here are seven general hospitals and mental institutions".

GUMMOW J: Now, where do we see that material, Mr Meldrum? Is there a finding about that?

MR MELDRUM: It was undisputed material, but no finding.

GUMMOW J: All right. Where do we find the material?

MR MELDRUM: Sorry, the trial judge at first instance, my learned junior quite properly tells me, found specifically they were inappropriate.

GUMMOW J: Where do we find that?

MR MELDRUM: That finding by the trial judge at first instance?

GUMMOW J: Yes.

MR MELDRUM: Can I return to that in a second, but in - - -

HAYNE J: Paragraph 55, was it not. It is the paragraph to which I took you. If it is not that, where is it?

MR MELDRUM: Precisely. It is the one at 208, paragraph 55:

I find that there is no apparent appropriate institution or qualified person capable of treating and managing the child's autism within the general area -

and that was in response to the translated correspondence.

CALLINAN J: The answer to the Chief Justice's question about Greece generally is in paragraph 56, is it not, on the same page? Of course, there would be areas of Greece that do have the services and facilities to care for children with autism.

MR MELDRUM: Well, that was the paediatrician's evidence and he, like his Honour Justice Kirby, was having intellectual difficulty with accepting the proposition that it was not available.

CALLINAN J: I do not know whether he is saying that.

MR MELDRUM: That Dr D is not saying it, or?

CALLINAN J: I thought Dr D was perhaps going a little bit further than that. He was certainly very confident that there were places where autism could be treated.

The doctor was accepting that they did not exist there and "there", of course, includes Salonika, and "they are not compared to what is available in Australia" and went on to say, merely, "But of course there would be other areas of Greece" not, "I know there are". That was a pure assumption and the Full Court of the Family Court said it was a pure assumption.

CALLINAN J: Where do I find that, Mr Meldrum, what the Full Court said about that - - -

HAYNE J: Page 297, paragraph 157, is it not?

MR MELDRUM: I believe it is, your Honour. Indeed it is:

Dr D's comments about the availability of services and facilities in Greece are not admissible as opinion evidence and were incorrectly relied upon by the trial Judge. However, that error does not assist the appellant.

It was what the court described as "speculation" in every other area:

she bears the onus of demonstrating that appropriate services and facilities are not available in Greece and has failed to do so.

Taking the view that Justice Kirby does that if you show that it is not - I am sorry, not the view that he takes, the argument that is put for me to respond to - that - - -

KIRBY J: If I can just take my reasoning one step further, the whole Convention system is posited on a principle that it is very bad for children to be kidnapped.

MR MELDRUM: Yes, to be abducted.

KIRBY J: And that prima facie they should be returned.

MR MELDRUM: Yes.

KIRBY J: Now, if we in Australia out of the great pride in our medical profession say that we know better, we have the best medical services in the world, we diagnose, we treat and we are the best then you bring down the whole convention system, the whole international arrangement which, as many cases demonstrate, is for the benefit of parents of Australian children overseas who have had the reverse happen to them is completely negatived, because we know best, we have got the best medical treatment in the world. I just find that hard to accept, at least vis-à-vis a European country like Greece.

MR MELDRUM: Your Honour, the good faith that we give to fellow signatories is, we say, good faith that their legal system will appropriately determine issues of custody and access in respect of children who are abducted and it says, with great respect, absolutely no more than that, that their legal system will have that and if the grave risk - - -

KIRBY J: Can I just ask you to pause there, if it says that and if the evidence is that the child cannot get proper autistic treatment in Salonika then why do we not trust the Greek legal system to say, "Well, it is in the best interests of this child to have a parenting order in favour of the mother" and she should be allowed to take the child back to Darwin where he will get treatment which was obviously working well for the child when he was getting it?

MR MELDRUM: Because it gives the exceptions in regulation 16 no work to do because the exceptions in regulation 16 are predicated upon the proposition that we are dealing with an abducted child, that prima facie that abducted child ought go back but that there are good reasons why that child will not go back. When you look at our regulations, there is no filter in the decision-making process to initiate these proceedings before you get to, in this case Australia, and regulation 16. Our regulation 13 follows what the Convention sets out. It sets out the procedure where somebody wishes to initiate proceedings in respect of an abducted child and the relevant Central Authority merely has to determine that the jurisdictional questions in respect of that child and that abduction have been answered.

Upon requesting and establishing that, the proceedings commence, so that the first filter that looks at the issue of, is it appropriate for this child to in fact go back, is contained in regulation 16 and it is a filter that can only be used by the country to which the child - in this case Australia. It is an Australian filter.

GLEESON CJ: May I interrupt you to ask a question about paragraph 168 of the reasons of the Full Court on page 300?

MR MELDRUM: Yes.

GLEESON CJ: How did The Central Authority come to be a party to these proceedings? I mean, is there some statutory provision that made it the appropriate defendant?

MR MELDRUM: Regulation 13. There are two ways that these matters are pursued: by The Central Authority, which is the standard way, or, if the Central Authority declines, by the party from whom the child was taken. The Central Authority is, the prima facie litigant.

GLEESON CJ: The question I was going to ask you is this: why did not the Court just tell the Central Authority to find out?

MR MELDRUM: I cannot answer why it did not.

GLEESON CJ: Well, the Central Authority was before the court in its capacity as a party to litigation.

MR MELDRUM: Yes.

GLEESON CJ: If the outcome of this litigation was going to depend upon the resolution of a question of fact as to whether a certain kind of medical treatment is available in the Republic of Greece - - -

MR MELDRUM: Or more relevantly in that area, but I will stick with - - -

GLEESON CJ: Just humour me for the moment by assuming that that was the question.

MR MELDRUM: Of course, your Honour.

GLEESON CJ: If that was the question, one way to resolve it is to read Jones v Dunkel and another way to resolve it is to pick up a telephone.

MR MELDRUM: Absolutely, and the Authority is not restricted necessarily by the laws of admissible evidence that provision under regulation 16 permits it to put hearsay evidence.

KIRBY J: The court is exercising federal judicial power and there are limits on the extent to which the court can tell parties how to present their cases, really.

MR MELDRUM: Tell is different from what I understand the learned Chief Justice is putting to me, and that is a question of ask rather than direct, and they certainly could have asked, your Honour.

GLEESON CJ: No, I was asking a question about directing a party.

MR MELDRUM: We would accept they could have directed the party.

We would not have - - -

GLEESON CJ: It strikes me at the moment as extraordinary that it is a matter that would turn upon the onus of proof.

MR MELDRUM: That question still deals with the issue of whether "return to country" means return back to the village and area where she came from or return to anywhere in the whole of Greece.

GAUDRON J: I am not too sure that that is right. I am looking at regulation 16(3)(b) and certainly that posits that the person opposing the return establishes, that would seem to have some onus of proof, but only that there is a grave risk; not that things will certainly occur. If one were looking at that, one would be looking at the likely outcome to which it would be relevant to know, if it were possible for the people to travel. On this evidence, it would not seem to be a question of travel, because it looks as though the child needs fairly regular care of the kind that is being obtained in the kindergarten, so it would really be a question, is it likely that the child will reside in a place where there is an equivalent facility, because you are only talking about likelihoods; you are not talking about certainties.

MR MELDRUM: We are talking about grave risks.

GAUDRON J: Yes.

MR MELDRUM: Yes, which we would accept as a likelihood, yes.

GAUDRON J: Yes.

KIRBY J: If that is the correct reasoning, then you are looking not at Salonika, which apparently there is some difficulty getting to, there is a rough road and it takes hours, but you are looking at essentially the village and surroundings where there is a school with 60 children in one classroom and you say that that is a grave risk. If that is the state of the evidence, that is a grave risk.

MR MELDRUM: We are prepared to take it as far as Salonika, but we certainly do start with the village where the child would be living, but the mother in search of - - -

KIRBY J: Then I suppose in fairness, autism - I do not know what its incidence is, but if you had a Greek parent - - -

MR MELDRUM: I believe less than .1 per cent.

KIRBY J: Well, a parent in that situation in this village would have to look outside the village to a place like Salonika to get some form of treatment and advice and care.

MR MELDRUM: Yes. The treatment consists, upon the evidence called in this case, principally of first making the diagnosis and then, secondly, giving all those parties who are concerned with the daily care of the child guidance about integrating the child into as normal a life as possible, stimulating it as much possible, alleviating as much as possible the physical problems, some of which are capable of being alleviated physically. For instance, the muscular problems that cause the child to walk on its feet are capable, possibly, of being ameliorated by physiotherapy, certainly of being held stable by physiotherapy.

Some of the speech difficulties may be assisted by appropriate speech therapy, but because the problems are principally in the brain, there is a real risk that a number of deficits are going to be intractable to treatment. But we are not just talking treatment; we are talking the whole question of the social integration into the community. How does such an institution deal with a child that at the time of the hearing could not feed itself and still was not fully toilet-trained.

KIRBY J: I thought the boy was toilet-trained. I thought that was - - -

MR MELDRUM: Improved, was the expression, which does not bespeak of complete training, but not able to feed itself.

KIRBY J: Your theory of the working of these regulations and of the Convention will mean that the number of countries to which children will be returned will not be 100; they will be a dozen and even fewer.

MR MELDRUM: No, with great respect to your Honour. There will be, perhaps, a small number of very special children with very special needs where there might be for such children a small group of countries that can meet those needs maybe. But, with great respect, we are talking about a condition that arises because of the very special needs of this child. To have said, for instance, in respect to a child without special needs the preschool and schooling facilities in Darwin or Canberra are infinitely superior to what they are in the village, could not possibly meet the standards of these regulations. There would not be a grave risk of the serious harm which is contemplated by the regulations.

It is the absence of any filter before the Court to which the child has been taken, in this case Australia, that we say means that to properly exercise the powers and the obligations under that Treaty, the Court in some circumstances must look at what are the special needs of this child, only if they cause a difficulty.

Can I just finish with the question of that hearsay nature of the doctor's evidence. He made that very clear at 138 of the Court book, that he did not know anything about Greek medical education or conditions and any comments from him "would be meaningless". He said in his report that he was induced to speak to the subject in court. That is at page 138 in the last paragraph. I am sorry, Justice Callinan.

CALLINAN J: Mr Meldrum, was the evidence one way that the child would have needed specialist educational facilities and that these were not available?

MR MELDRUM: Yes, we say it was, your Honour.

CALLINAN J: Was a submission made that that would otherwise place the child in an intolerable situation?

MR MELDRUM: Yes, we did so submit.

CALLINAN J: Was there any evidence as to where, if at all, in Greece there were specialist educational services for the child?

MR MELDRUM: No, not at all and the judge at first instance, however, accepted that evidence and said, "Well, there is the evidence". The appeal court said, "No, that isn't evidence but the mother has the burden to show that nowhere in Greece does it exist and she's really shown it isn't where she came from and therefore she hasn't discharged her onus".

CALLINAN J: Does the mother have to traipse all around the Republic, to live in some place that might be quite inconvenient to her and a long way from her own parents? Are they still alive, by the way?

KIRBY J: In fact, they are in Darwin, are they not?

MR MELDRUM: They are still alive, but the evidence is a little worse than that because on the uncontradicted evidence she said there was no social security system in Greece. She is incapable of earning any income in Greece. She has not been paid, other than twice, very small amounts of maintenance by her husband despite court orders in Greece. So that the court was urged that she would have to go back to her parents' home, which was close to where the father lived, so she would not have the means, on the evidence before this Court, to live any great distance away and certainly not, if she chose to do so, have the opportunity of getting the child to the father.

KIRBY J: I wonder why we signed this Convention. There will not be many countries with the social security, the medical facilities, the diagnosis skills and so on that we, in Australia, can boast. No one will be sent back.

MR MELDRUM: We would say, with respect, your Honour, there would be very few children with really special needs.

KIRBY J: Every child is very special to its parent and it must be very, very special for the parent to take that tremendous risk and emotional trauma of kidnapping the child and going to a foreign country.

MR MELDRUM: It is intriguing, when one looks at the academic treaties that my learned friend, Mr Jackson's, researches have discovered, to look at the history, that at the time of the Convention it was mostly separated fathers who were abducting and now it is unhappy cohabitating mothers who are abducting, but the unhappiness arises often because of the relationship with the father of the child, rather than any special need of the child. Here it was a combination of a desperate search because of the special need and the unhappiness.

We say, with great respect to your Honour, that sort of subjective desire by each parent to ensure that the best facilities possible by way of health, wealth and education are available for their child cannot be said, within these regulations, ordinarily, to raise a grave risk of the physical or psychological harm that is the narrowly drawn exception. We are not asking that this exception be read any more widely than the regulations, and they are narrowly drawn.

GAUDRON J: I think the real question that arises with respect to regulation 16(3)(b) is what is the "return of the child" that you are talking about? It appears to me that a lot of these cases are decided on the basis that you are looking only to the immediate return for the forensic purpose of letting that court, the court of the other country, decide what should happen. Another view is that you are looking to what would be the situation if that was the ultimate outcome and you say, if ultimately it would be a "grave risk" in the way that the regulation postulates, why would you send them back to start with? But it seems to me there is a thread running through the decisions of the Family Court that you are only looking to see if there is risk in returning them for the purpose of the hearing.

MR MELDRUM: That is made, we say, peculiarly ironically, that point, in this case in that it appeared to be the opinion of the Full Court of the Family Court that so evident was the proposition that the child would be better treated here, given that they were unhappy about having set the standard that we had to prove the negative of the unavailability of the treatment anywhere in Greece, that the child would be going back to Greece in order to be sent back to Australia. But the - - -

HAYNE J: Something may turn, then, on what is meant by "grave risk" that would expose the child to harm or otherwise place the child in an intolerable situation. I am not quite sure what is meant in this context by "risk" that return would expose to risk. What weight, if any, do we attach to this use of the word "expose"?

MR MELDRUM: We say that is lower than a situation of permanent risk, being exposed to a risk in the case of a child, and if we put it in the context of this case - and I appreciate your Honour is asking me to deal with it somewhat more philosophically - but to start with the context of this case, autism, on the evidence, was a condition where the continued availability of treatment was highly desirable, the need for continuity, the child's very special needs making it susceptible to changes in the way that ordinary children would not be. We would say that within that meaning, just to go back temporarily, even if it would seen as a "boomerang" child, to go back temporarily would still expose the child to that risk.

Now, we cannot, with great respect, answer the question here because the one thing that the Convention anticipates is that custody and access are all decided in the country of habitual residence, and all that our signature to the Convention and that of other countries acknowledges is that that will be done fairly and in a generally civilised way. But we cannot assume what the Greeks will do with this child and - - -

KIRBY J: But we would not start from an assumption that because we think Greece might be a more patriarchal society or because we think the Greek judges might be more sympathetic to a Greek resident national, we have to put those matters out of mind.

MR MELDRUM: Absolutely, and we accept that.

KIRBY J: But your main point is that the regulation does have a let out and the let out addresses, narrowly, the issues of grave harm to the child and that if that is the case, and the particular case, grave risk, then that is enough.

MR MELDRUM: Grave risk of exposing the child. Yes.

HAYNE J: Could we wrestle with this question of construction a bit. Can we do so by reference to the quote from Friedrich v Friedrich that is at 274 of the appeal book, because it seems to me that the competing construction that may be put against you is embodied in the last paragraph on page 274 of the appeal book where there is a citation of Friedrich v Friedrich in the sixth circuit where the equivalent provision is construed as being engaged by only two kinds of circumstance, return to a war zone or equivalent, that is, return to a place where life itself is at risk, whoever you are, or return to a place where the court may be, in the district judge's words:

incapable or unwilling to give the childe adequate protection."

MR MELDRUM: American jurisprudence has moved on from that.

HAYNE J: I am not interested in that, Mr Meldrum. What I want you to do is to wrestle with the construction of the regulations. At some point we have to write a judgment which begins with the regulation and I want to know what you tell me it means.

MR MELDRUM: We say it is not so confined. To so confine it is to read more narrowly than the regulation itself says. This Court in Re De L has already said in respect of 16(c) that it is given its ordinary and natural meaning. That is in accord with the rules for the interpretation, in any event, of international conventions. We say that we, therefore, turn to 16(3)(b). We read it in its ordinary and natural meaning. Its ordinary and natural meaning is that there is a grave risk, which we accept is the equivalent of a probability, that return to the country to which the child habitually resides, which we say ordinarily means that portion of the country in which the child resides. To talk of an American child habitually residing in a country if he be in Hawaii and there be available in New York facilities, is, we say with respect, to stretch the concept of the country - - -

GLEESON CJ: Is a possible point of view that the construction is affected by Article 1 of the Convention which states, "The objects of the present Convention" - - -

MR MELDRUM: Of course it is. Article - - -

GLEESON CJ: The second of the objects is:

to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.

MR MELDRUM: Yes.

GLEESON CJ: That might have given encouragement to an approach that says it is a question of getting the child back to the place from which it was abducted so that the law of that place can operate in relation to the welfare of the child.

MR MELDRUM: One cannot give any greater weight than that than one does to Article 13 and Article 13 embodies what regulation 16 deals with and it embodies it in language that is very close to identical with regulation 16. When one looks at all the discussions about the preparation of this Convention and all the writings on that, at the time that it was being drafted there was a tension between those who wished to have an absolute rule that all children must be sent back and those who wished to preserve to the country to which the child had been taken powers over in what circumstances ought the child go back and the combination led to Article 13 and this Court looked at all that in Re De L at page 649.

HAYNE J: The point that I struggle with at the moment, Mr Meldrum, and it may be a point that Mr Grace has to answer rather than you, is how is this provision, regulation 16(3)(b), engaged, in, for example, the case of the sexually predatory parent or the physically abusive parent, where the courts have at least on some occasions seen 16(3)(b) as engaged, because its return to the country from which it was taken would expose the child to the predatory parent or the abusive parent, but how does that operate if 16(3)(b) is in engaged only by considerations of general application as, for example, general conditions in the country or the State of the curial system within the country?

MR MELDRUM: Well, with the sexually predatory or the physically violent parent in the country from which the child habitually resided, traditionally most common law countries have said, leaving aside the US, "We must respect the rights of New Zealand" or wherever "to protect this child which will mean that the assumption is that curially there can be protection for a child against such abuse". Now that places appropriate weight, we say, upon both Article 1 and Article 13 and the regulations and these cases that talk about putting faith in the country to which the child is to go to care for the welfare of the child, have, without exception, been cases of violence or sexual predation upon the children and almost always they have answered it in that way.

KIRBY J: Could I suggest a textual reason why that answer has been given and this picks up Justice Hayne's point, that we have ultimately got to grapple with the language of 16(3)(b). It says:

there is a grave risk -

and that what is the "grave risk"? The grave risk is:

the return of the child -

Now the "return of the child" is the return that is contemplated by the regulation and the Convention, that the child is returned in order that its disposition will be decided in that country and, in the case of a predatory parent or a violent parent, orders can be made that in the meantime the child should remain in the custody of the custodial parent and then abide in the country of return, the order of the country of return. So that the "risk" is the risk of return alone; not the risk of return and what might then happen. The focus of the language is on the "return", not the disposition.

MR MELDRUM: It is a return, however, your Honour, for a period of time that inevitably must vary and it cannot always be said that it is a terribly short time. Can I just say - - -

HAYNE J: Well, may the key lie in actually not only reading 16(3)(b), but reading the regulations as a whole? The regulations are engaged if and only if there is a removal.

MR MELDRUM: Absolutely.

HAYNE J: There is a removal if, and only if, so far as presently relevant, there is a removal in breach of the rights of custody of someone else.

MR MELDRUM: Yes.

HAYNE J: If that person who would otherwise have rights of custody is the sexual predator, the violent abusive parent, then return, that is return to a country in which, or under the laws of which, there are rights of custody in that other person, may enliven the operation of 16(3)(b) in a way different from the circumstances that confront us here, where the complaint is not concerned with the conduct of someone else who has rights of custody over the child; the complaint is the state of affairs for treatment of the child in the country.

MR MELDRUM: We certainly say it is different from that position, but we say there is a small degree of contribution from the characteristics of the father here, and that is his refusal to accept the condition of autism, which we say lessens the likelihood that the child will be taken further than Salonika for treatment. With that minor exception, your Honour, yes, we would accept that that is so.

Can I say what the American learning is leaning towards is the proposition that because there is the prima facie obligation to return the child, if there be risks of the sort that your Honour Justice Hayne is directing my attention to, American authorities are increasingly seeking undertakings and inquiries in the country to which the child is to return to set up a regime that will lessen the risk so that it is no longer a grave risk, so that the parent with the custody right will give undertakings and inquiries will be made as to enforceability of those undertakings; that there will be until there be further disposition of the case in the habitual residence country, no access by that parent without supervision, et cetera, so that the risk cannot then be categorised as a grave risk.

All that line of authority - and it is much more relevant to my learned friend Mr Jackson's case and it is quoted in their material - is designed to say, "We think there is a grave risk if we return the child, and it is accepting that the mere return is a grave risk, but in these circumstances that grave risk may become less than grave if we are satisfied that upon the return, there will be certain steps taken to reduce that risk". That, we say, accepts the proposition that it is not just simply the return but for at least a period of time the child remains there. The return is not for seconds or days.

KIRBY J: No, but the verb is "expose".

MR MELDRUM: Expose?

KIRBY J: "Expose" at least conjures up in my mind that it is something that happens quickly after the return. It is the fact of return that exposes the child. It is not the fact of return and what happens later may lead to; it is the fact of return exposing the child to the grave risk.

MR MELDRUM: We would, with respect, disagree that "expose" of itself involves a period of time. We would say one uses a short period of time - - -

KIRBY J: I may be wrong about that, but it is the impression I have from the word you have chosen, the verb "exposed".

GAUDRON J: There are other subparagraphs of that regulation or subparagraphs that may bear on the meaning of the word "return":

the child objects to being returned . . .

the return of the child would not be permitted by the fundamental principles of Australia - - -

MR MELDRUM: They each assume a permanence about the return, yes.

KIRBY J: Do you invoke (d)?

MR MELDRUM: No, we do not invoke - - -

GLEESON CJ: Well, plainly we are not talking about the risk of the plane flight.

MR MELDRUM: No.

GAUDRON J: Well, I do not see why in some respects you do not invoke (d). I would have thought your case might well be a case that comes within (b) and (d). I should have thought a child had a fundamental right to the medical treatment and to education adapted to his or her needs.

KIRBY J: But did you rely on that at - - -

MR MELDRUM: We did not seek - why I say in answer to the Chief Justice that we do not, is that we did not seek, up to this point at all, to argue that ground. What your Honour Justice Gaudron has put to me is contained in the Convention on the Rights of the Child, which is what is really envisaged, we say, when you are looking at (d), and that Convention, Article 23:

State parties recognise that a mentally or physically disabled child should enjoy a full and decent life in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community.

GAUDRON J: The difficulty with that, of course, is that (d) does not - it requires proof of a fact, presumably on the balance of probabilities, whilst (b), of course, only requires proof of a risk.

MR MELDRUM: A risk, yes. We have not litigated this case on (d) but there is, we say, Justice Gaudron, a respectable argument that Articles 23(1) and (2) recognise that Greece is obliged, as is Australia, to take all the steps to ensure that children with autism - - -

GLEESON CJ: Are you making out a case that Greece is in breach of its international obligations?

MR MELDRUM: No, we do not.

KIRBY J: Anyway, (d) is about the fundamental principles of Australia - - -

MR MELDRUM: Yes.

KIRBY J: - - - so it does not seem - it is a curious language. It does not seem to be a factual matter, it seems to be a legal or at least a mixed legal - - -

MR MELDRUM: The drafting history indicated that Australia had sought to have that tied in with these conventions, the international conventions, and the breach of an international convention in respect of the return. The discussion in the learned texts concerning this is that, before this form of language, there had been a clearer form which had a majority but of one in the drafting of it, and the parties redrafted it seeking to get a greater degree of consensus and came up with this answer - - -

GLEESON CJ: But once you accept that paragraph (b) is not limited to the risk involved in the plane flight - - -

MR MELDRUM: Yes.

GLEESON CJ: - - - then it must follow that it is directing attention to the circumstances in which the child will find itself upon return.

MR MELDRUM: Which is corroborated by 16(4) which requires or permits the court to take into account the social circumstances by determining anything under (3).

GLEESON CJ: But then a problem arises, because you cannot ignore the fact that one of the circumstances in which the child will find itself upon return is that it will be the centre of a battle for custody or access, which will be resolved by the legal system of the country to which the child is being returned. What significance attaches to that?

MR MELDRUM: The courts have thus far said, and we would not really disagree, that that is an inevitable consequence of the taking of the child, and is not a grave risk, unless there would be something peculiar about this child.

GLEESON CJ: But the question which then arises is whether the Australian court that is ordering the return of the child should, as it were, intervene in that dispute, or should simply leave it up to the legal system of the country to which the child is being returned, subject to exceptional circumstances of the kind mentioned earlier.

MR MELDRUM: The philosophy behind the Convention and the regulations is that, prima facie, a child ought be returned and these decisions made in the country in which the child habitually resided and the role of Australia would then cease. We would not have standing in Greece, we would expect, to be heard on any issue concerning how this child is to be disposed of. Can I just develop what we are saying about the meaning of 16(4) in terms of what does "return to the country" mean? Regulation 16(4) permits the Court to take into account "the social background of the child" which, clearly, is the circumstances in which the child was living and that relates to the child's health, the facilities available for the child - - -

GLEESON CJ: But let me give you a practical example to illustrate the problem I have, Mr Meldrum. Suppose a child has been abducted by a father and the country of habitual residence is shown by evidence to have a legal system which operates on the basis that, save in very exceptional circumstances, a court will lean towards a conclusion that a child of tender years should be in the custody of its mother. It is not an inflexible rule but it is the strong tendency of the law of that country.

Suppose a father abducts a child of tender years and then the father seeks to resist an order for the return of the child by saying the mother is violent. The courts of that country operating in accordance with the principles they follow will have a strong inclination to put that child of tender years in the custody of its mother but I say the mother is violent. Now, does the Australian court say, "We will determine the issue of fact about the mother's violence" or does the Australian court say, "We will leave it to the country of habitual residence to make that decision"?

MR MELDRUM: The Australian courts have said the latter, and we say appropriately said the latter because this Convention reserves to the country in which - ordinarily reserves to the country in which the child is habitually a resident, issues of custody and access.

GAUDRON J: But that depends on the meaning of the word "return".

MR MELDRUM: Yes.

GAUDRON J: It depends on what, if we are looking just to the return for the purposes of the subsequent custody case or whether you are looking to ultimate return and saying, "Look, if ultimate return would bring about these consequences we won't even bother with the intermediate step because the intermediate step advantages no one except the lawyers and the international air carriers".

MR MELDRUM: That has been the effect of some cases, yes.

GAUDRON J: But, I mean that is the question, is it not, when you are looking to return. Do you say, "For the purposes of regulation 16, we are looking to what would be the situation if that were the ultimate position", or are we looking just to see what is the position between the time the people step off the plane and the courts of the other country determine the matter?

GLEESON CJ: Now, is the answer to that question not partially affected by the hypothesis on which you are approaching the question, which is that you are dealing with an abducted child?

MR MELDRUM: Yes, except that the hypothesis also has - that this regulation creates this exception only for abducted children. It is only when the child has been abducted that these proceedings are commenced and it is in the context of that that this exception must be fleshed out and given meaning.

KIRBY J: That is a fair point, but it is also surely a fair point that it is to be given meaning in a convention and regulation whose governing hypothesis is return to the courts of the country of habitual residence.

MR MELDRUM: But the same Convention has Article 13, which is as strong as Article 1 and as important as Article 1, because it was not a convention that says they shall all be returned. The Convention itself accepted that they should not all be or may not all be returned and Article 13, which is the intellectual source for and probably the legislative power for, ultimately, depending upon where one looks at it, regulation 16. It could not be stronger. It starts with:

Notwithstanding the provisions of the preceding Article - - -

KIRBY J: That is true, but this is a convention for return.

MR MELDRUM: Yes.

KIRBY J: Therefore, when it talks of the "grave risk" that his or her return involves, one would think at least that it is focusing on the very fact of sending the child back.

MR MELDRUM: With the greatest respect, your Honour, 16(4) would then have no work to do because what would be the point of concerning yourself with whether the child would be in a one star hotel or a palatial residence, whether the parent would be in religious conflict with the community in which she lived and the child, therefore, disadvantaged or any other aspect of it under regulation 16(4). Regulation 16(4) envisages that, as does the - - -

KIRBY J: I do not know, because at least one possible construction of 16(4) is that if the child has a particular social background, they will not get a fair go in the courts of the country to which they are returned and that, therefore, the return is itself undermined.

GUMMOW J: The notion of return is really linked to habitual residence, that is what you are talking about.

MR MELDRUM: Yes we do - - -

GUMMOW J: If you look at regulation 13(1) - I hope it arises in Mr Jackson's case actually - what you have to find out in the first place is what was the habitual residence of this child. That is what is being referred to, its return to continue that state of habitual residence.

MR MELDRUM: Yes.

GLEESON CJ: But what will typically have happened is that in the course of a dispute about access or custody that is being or is capable of being resolved by the courts of the country of habitual residence, one party to the dispute removes the subject matter of the dispute from the jurisdiction of that court. The purpose of this Convention is to return the subject matter of the dispute to allow the court to get on with its business.

MR MELDRUM: And to stop forum shopping.

GLEESON CJ: Is it common ground in the present case that a dispute between your client and the father of the child in Greece about custody or access would be of such a nature that the availability of proper treatment for the child's condition would be a fact relevant to the outcome of the dispute?

MR MELDRUM: No, that would overstate the common ground, your Honour.

GLEESON CJ: What is the common ground, if any?

MR MELDRUM: Simply that in terms of what had occurred we know nothing and there was no evidence before the Court concerning what weight would Greek courts give to the special needs of this child.

GAUDRON J: But it was the case, was it not, that at least the mother had a temporary residence order in her favour, did she not?

MR MELDRUM: She had what she believed was custody but it had not displaced the entitlement to the husband, pursuant to the Code, to access and it made this child an abducted child within the meaning of the - - -

GAUDRON J: Yes.

KIRBY J: And he got an order just before she abducted the child, did he not, forbidding her from doing so?

MR MELDRUM: Yes. Not to her knowledge, but he had, and he subsequently got an order for custody, given that she had gone, but whilst they were both there and whilst they were both in court she had won a custody battle but she had not eliminated - - -

KIRBY J: Yes, but she was not prepared to accept the jurisdiction of the country of habitual residence which is the whole point of the Convention to require her to do.

MR MELDRUM: We accept that and she fled with her child and she had concerns about the child and the concerns were abated when she came to Darwin.

CALLINAN J: Mr Meldrum, was there any challenge to the trial judge's finding as to the effect of Greek law at paragraph 31 on page 197, or is that common ground? Had:

the power to determine the child's place of residence had not been vested in the mother -

at the date of her departure to Australia?

MR MELDRUM: We argued to the contrary because the first argument my learned junior had advanced before the trial judge was, this was not a child who has been abducted, in the relevant sense.

CALLINAN J: But, in any event, that is not an issue now?

MR MELDRUM: That is not an issue, now. We lost that issue.

CALLINAN J: Yes, thank you.

GAUDRON J: No, I was raising it for a different purpose, Mr Meldrum, and it was this: if you take what I will call the long range view rather than the short range view, then it would be relevant to the risk, I should have thought, to take into account that the mother had already obtained custody in Greece and would be likely to obtain it again on return, if she went there - it was a distinct possibility - and you would be looking at the risk - assessing whether there was a risk - by reference, then, to the mother's situation in Greece.

MR MELDRUM: With great respect, your Honour, to guess what your Honour would be doing here about the disposition given that other - - -

GAUDRON J: I know it is always difficult but when you look at risk that is what you are looking at.

MR MELDRUM: Yes.

GAUDRON J: You are not looking at any matter of certainty, not probably that it matters in this case whether it be the husband or the wife who has custody, except to the extent that there is evidence that the husband does not believe the child has this condition, or seems to be evidence to that.

KIRBY J: That is disputed.

GAUDRON J: Yes.

MR MELDRUM: And borne out, we say, by the proposition that when he received the medical material concerning the child's condition, he said at that time if so satisfied he would not persist with this application.

GAUDRON J: Well, is that in evidence?

MR MELDRUM: Yes. That is the final paragraph of the mother's affidavit, I think it is page 93 at paragraph 61:

At approximately 2 pm on Tuesday 5 October while I was attending my solicitor, Ms Orwin, I received a telephone call from my husband. He said he did not believe what I had told him about "M" however he would like to see the Doctor's reports so he could have them translated and read them, perhaps obtain an opinion. The husband said that if he then believed about the diagnosis of "M"'s condition, he would withdraw his application and that "M" be returned to Greece.

And then paragraph 62:

I understand from my solicitor and verily believe that both reports by Dr Diplock and a Community Health Paediatric Team report and a report from the Nightcliff school were faxed to the husband at around 4 pm Darwin time -

and copies of those are annexed and they are the material that was adduced before the judge at first instance concerning the condition which led that judge to unequivocally find that there was a condition of autism.

I had not finished putting the proposition that the obligation under the Convention vested in central authorities to exchange information concerning social background. The entitlement in the regulation to place before the court and the entitlement of the court to take account of social background must then be read in terms of: what does 16(3) deal with? Regulation 16(3) deals with in the first case in paragraph (a), in effect, a finding that the jurisdiction of the court was not called into effect under the Convention, because the child is not truly an abducted child. (a)(i) goes directly to the definition of "an abducted child" within the Convention and the regulations; (a)(ii) deals with the position of consent and therefore taking the view that you cannot abduct without consent; (b) deals with "grave risk upon return"; (c) deals with "objects" where the social condition of the child would be irrelevant; (d) deals with "not be permitted by the fundamental principles of Australia relating to the protection" to be returned. Then (4) brings in the "social background". So the social background can only be relevant to 16(3)(b) and (d) and in each case it must surely be relevant to what your Honour Justice Gaudron is talking about, "the long term".

GLEESON CJ: Mr Meldrum, where do we find the Full Court making the error upon which you rely in this appeal?

MR MELDRUM: In terms of the narrow reading of this - - -

GLEESON CJ: Can you just point us to the passage or passages in the reasons of the Full Court which you say reveal what you contend to be in error?

MR MELDRUM: It is at paragraph 104 which is in 276. It is the summary there:

Those observations concerning the then form of reg 16 -

the court is there referring to another case -

were distinguished by the majority judgment from the long line of foreign cases concerning the narrow application of the other reg 16 defences which concerned the enactment of Article 13. The Article requires the party seeking to rely on one of the other defences to establish the existence of such a defence, whilst the "child objection" defence carried with it no such onus. As the defences relied upon in this case require the establishment their existence by "the person opposing return", the broader approach adopted by the majority judgment in De L does not impinge upon the strong line of authority both within and out of Australia, that the reg 16(3)(b) and (d) exceptions are to be narrowly construed.

GAUDRON J: Why are they not to be given their ordinary meaning?

MR MELDRUM: We say they are.

GAUDRON J: I am fascinated by this notion that ordinary words are to be either read broadly or narrowly or subject to exceptions that are to be discerned. I mean, whatever happened to the rule that words have their ordinary meaning? I mean, mind you, there is an ambiguity in this.

MR MELDRUM: Yes, but we say it is to have its ordinary meaning and then, to answer his Honour the learned Chief Justice, at 298 it commences at 162, so that set the statutory basis:

The difficulty in this case is that the reality of the mother's circumstances should she return to Greece was never fully explored. She complained of circumstances in Nigrita, and indicated that when she left the marriage she had moved to Serres to be with her parents -

which, on the evidence, was a short distance away, I think 10 kilometres or thereabouts -

Her parents have since left Serres and come to Darwin. Much of the evidence proceeded on an assumption that if she returned to Greece the child would live with his father in Nigrita. The wife did not assert the inability of herself and her parents to live in a part of Greece where there were appropriate facilities for E.L. pending the outcome of any proceedings in Greece.

163. It must be remembered that the return under the Hague Convention is a return for limited purposes - - -

GLEESON CJ: Well now, that is the point, is it not? Is not paragraph 163 the paragraph that addresses the point that we have been discussing?

MR MELDRUM: It gets to that point, yes.

GLEESON CJ: And where is the error?

MR MELDRUM: The error is to say it is not the return as they say at 299:

It is not the return of the child to Greece in the circumstances outlined in this case . . . Rather it would be an action by a Greek court which denied the child the opportunity to receive the care, nurture and therapy that the evidence before us indicates the child so desperately needs.

So they are saying the return is, in effect, dropping the child off at the Athens airport.

GLEESON CJ: No. Submitting the child - let me be blunt about it, restoring the status quo. The return is putting the child back within the jurisdiction of the Greek courts that were dealing with disputes as to its custody.

MR MELDRUM: Every exercise of a power under 16(3) will deny the status quo, will always leave the child in the country to which it has been abducted, in Australia. Of course, your Honour's bluntness is appropriate, but the regulation must have some work to do.

GLEESON CJ: But whether they were right or wrong and whatever they meant by this expression "narrow" as distinct from something else, the point is in that paragraph that you have just been reading, is it not, paragraph 163 on the bottom of 298 and 299?

MR MELDRUM: Yes, they go on to express their discomfort.

GUMMOW J: Wait a minute. One starts at 156, does one not? There were two errors they said they found. The first one is at 157, and then the second ones starts at 158 and then seems to reach its statement at 163. Is that what they did? Is that the structure of the Full Court decision?

MR MELDRUM: Yes, it is.

GLEESON CJ: They actually upheld the decision of the trial judge, did they?

MR MELDRUM: Yes.

GLEESON CJ: But they criticised it in a couple of respects.

MR MELDRUM: Because they said he had relied upon the paediatrician's evidence to establish that there was such medical assistance available.

GUMMOW J: At 164 they say the judge propounded the wrong test.

MR MELDRUM: They arrived at the same conclusion, and they do so because the onus was on the mother and she had not established the onus.

CALLINAN J: Mr Meldrum, can I take you back to page 207 in the trial judge's judgment. You will see in paragraph 53 there is, in effect, a claim to the availability of treatment facilities for autism. Do you see that?

MR MELDRUM: Yes.

CALLINAN J: Then the next paragraph on the next page seems to be a finding that that claim, in effect, is not made out.

MR MELDRUM: Yes, it is precisely that, we say, your Honour, yes.

CALLINAN J: So that who claimed to be treating specialists in autism were really psychiatrists?

MR MELDRUM: Yes.

CALLINAN J: And that is a finding in paragraph 54.

MR MELDRUM: Yes, your Honour. Then by the time the Full Court got to the area where we were, they are saying, in effect, that "`Return to country' means anywhere in the country and we haven't discharged the onus of showing that somewhere in the country there is such a facility, and, therefore, our concern of any serious risk we haven't established". That is, we say, the error.

CALLINAN J: Well, I think countries can vary in size and communications, and there would be some very big countries in the world where it would be an enormous hardship to somebody to say you could travel to X, which might be a thousand miles away, to gain treatment. You cannot surely be obliged just to look at the country itself.

MR MELDRUM: Not as a whole, and, indeed, this Court said so. This Court said that if the child were to go to Hawaii and there is evidence that the available treatment was in New York, New York, that would not be appropriate return but, despite having said that, they make the ruling that they did here. They chose that as an example to show what was meant by - that is at page 298, paragraph 161.

CALLINAN J: To take up what the Chief Justice was suggesting much earlier, it does seem that there ought to have been evidence about these matters. Why should not the case go back to the Family Court in order for this matter to be properly explored?

MR MELDRUM: I was going to seek the Court's leave from my learned junior to deal with the issue of how the appeal ought to be disposed of, and if I could steal her thunder to the extent to say that she will argue that this Court on this evidence ought to uphold this appeal and leave the child here.

KIRBY J: But every time that somebody in a federal court does not prove their case, whoever has the onus, they can come up here and say, "Oh, well, we will give them another chance." That is not the way litigation in this country normally operates in federal causes.

CALLINAN J: But you said you have proved everything you possibly could.

MR MELDRUM: That is precisely - yes. I am going to seek leave, as I say, to have that part of the argument advanced by my learned junior, but, if the appeal be upheld, there are two options.

HAYNE J: In the course of that she will, no doubt, address whether the wife was cross-examined and whether in the course of that cross-examination it was put to her that she could travel elsewhere in Greece.

MR MELDRUM: Yes. But there are the two options.

CALLINAN J: Well, there was evidence, was there not, that she did not have the means to travel? She had not funds and she could not enforce the order for maintenance.

MR MELDRUM: Yes.

CALLINAN J: And that she could not get a job in Greece. That was all uncontradicted, was it?

MR MELDRUM: All uncontradicted.

KIRBY J: The difficulty of this is that it all attacks the hypothesis of the Convention.

MR MELDRUM: No, with great respect, your Honour, because this is not dealing with the question of placing food in the belly of, or clothing on the back of, a child - - -

KIRBY J: It depends on what the word "return" means.

MR MELDRUM: - - - this deals with very special needs, and if the very special needs can be thought to be available somewhere else, that will require money and for that purpose - - -

KIRBY J: If we do not accord respect to the courts of Greece we cannot expect the courts of Greece to accord respect to our courts to dispose of the position of Australian children.

MR MELDRUM: We accept that without any reservation at all, your Honour, but we say that this Full Court, in this case, has assumed that that extends to matters over which the courts in Greece have no control other than to decide the issue in a certain way.

KIRBY J: That is the posited assumption of the Convention.

MR MELDRUM: No, your Honour. The posited assumption of the Convention, with great respect, is short of that. It is that they will have a fair system in which the interests of the child will be given some weight, and that it is appropriate that the country of habitual residence ordinarily deal with this issue. But it is accepted that we all deal with it differently, and we cannot say the mere difference is a reason to keep the child here. The way that we would dispose of such an issue - let us assume, for instance, it was a question about whether the child had any right to be heard independently in Greece, where a child in similar circumstances would have a right to be independently heard here. That could not be taken into account.

KIRBY J: It does not seem to be the grave risk type of problem.

MR MELDRUM: It is not a grave risk. Your Honour, with great respect, keeps coming back to the proposition that we must respect their legal system, and we say yes, but that does not say that there is not a grave risk in exposing this child to that system in that country, given this child's specific needs for treatment for his peculiar condition, which treatment is and has been available in this country from within weeks of his arrival here. He got here on 5 December 1998 and by January 1999 he was in a diagnosis and treatment stream. And nothing had deteriorated about his condition. All that had happened was that he found a part of the world in which there was recognition for and facilities for the treatment of his condition, which he had searched valiantly for and not found it before.

GLEESON CJ: Yes?

MR MELDRUM: Unless the Court had other questions, I was going to say we relied upon the arguments in our outline, and call upon my learned junior to deal with the issue of a disposition in the event that we were to succeed in our appeal.

GLEESON CJ: Yes, thank you. Yes?

MS GEARIN: Thank you, your Honours. As Mr Meldrum indicated, I was dealing with the question of if the Court found that there was such a grave risk, we then move to the next point of the exercise of discretion and if it ought be exercised in this particular case.

GLEESON CJ: If the appeal were allowed, it would be - consistently with the way Mr Meldrum has argued the case - allowed on the basis that the Full Court asked itself the wrong question, would it not?

MS GEARIN: No, your Honour, what we would say is that it is not that the Court asked itself the wrong question. With the greatest respect to the Full Court of the Family Court, they actually ducked the question and they did that in paragraph 163 at page 298 where they said:

It must be remembered that the return under the Hague Convention is a return for limited purposes, namely to allow the State where the child is returned to (normally the State of habitual residence of the child) to determine issues relating to its future welfare. It is not the return of the child to Greece in the circumstances outlined in this case which might cause the child significant harm. Rather it would be an action by a Greek court which denied the child the opportunity to receive the care, nurture and therapy that the evidence before us indicates the child so desperately needs.

No matter what the courts in Greece do in relation to custody and access, they cannot provide this child with the "care, nurture and therapy" that the child so desperately needs.

KIRBY J: If that is so, one would assume that the Greek courts, being just and lawful courts that we have accorded respect under this Convention to, will say, "The child will be in the custody of the mother and if that child cannot have proper treatment in Greece because we, like every other civilised country apply the rule that it must be in the best interests of the child, then the mother should be allowed to go back to Australia and take the child with her". Now, why should we assume that a Greek court would not do that? An Australian court would do it if the situation were reversed.

MS GEARIN: Because, firstly, we are making an assumption that the Greek courts are going to do that and, secondly, we are looking at the question - - -

KIRBY J: But that is the assumption of the Convention. I really must keep insisting that the assumption of the Convention, with exceptions, including the exception in 16 - - -

MS GEARIN: If you take your Honour's argument to its logical conclusion, the child would therefore be going back so that it could then come back to Darwin and be - - -

KIRBY J: That may be so but that is to uphold a very important international principle which is itself very much in the interests of children, that they should not be lassoed and taken out of the jurisdiction in which they are living in order to be brought to another place and that this is what the civilised international community requires. We are part of that system.

MS GEARIN: Yes, your Honour, but as Mr Meldrum has already indicated, and I do not wish to revisit that, the exceptions have to be given work to do because otherwise all children would be returned and then the issues argued before the courts of the Convention country and then they would go back to that situation.

KIRBY J: You assume that the father does not love his child enough, that given that it is demonstrated that the child is autistic, something which was not earlier proved but that I read in one of the submissions it is now accepted, that the father would not want in Greece to find the very best of care and attention for the child if that is available and if it is available in Salonika and if it is reasonably available, then that may well lead to requirements that the child be in joint custody.

MS GEARIN: The difficulty with that, your Honour, is that the evidence in the mother's affidavit is that she sought assistance, financial assistance, from the father to go to England to attempt to have a proper diagnosis to find out what was wrong with the child and he refused.

KIRBY J: That was before diagnosis. There is now diagnosis and going to England may not be necessary. Salonika is a very big city. I have driven through it. It is a big place.

MS GEARIN: I am not saying it is not a big place but I have not been there, your Honour. What I am saying is that the evidence is that this woman was not able to find treatment. Once the child was diagnosed, the father was advised of this.

GUMMOW J: I thought he had refused to accept the diagnosis?

MS GEARIN: On his material - that the only affidavit material which was filed by him, and that is contained at pages 75 to 77 of the appeal book - this is prior to his knowledge of diagnosis - but there was no material put on after that. What he proposed for the child on return was that the child live with him, attend the local kindergarten and be cared for by his mother. Once the diagnosis was made, he was notified of the medical condition. He then put on no further material.

KIRBY J: I thought I read in some of the submissions in this Court that it was accepted that the father accepted now the diagnosis. I may have misunderstood the - - -

MS GEARIN: There is no evidence of that, your Honour.

KIRBY J: It might have been put in terms that his position ought not to be judged harshly against him because it was at a time when, on the material available to him in Greece, it was a reasonable position to adopt, but now in the events that have occurred, the water having flown under the bridge in Darwin, it should not be assumed that he would adhere to that position in Greece.

MS GEARIN: Well, certainly he has not put on any material which he resiled from his earlier position.

KIRBY J: We could not receive evidence in an appeal.

MS GEARIN: Beg pardon, your Honour?

KIRBY J: We cannot receive evidence in this Court.

MS GEARIN: No, your Honour, but all I am saying is that if you go to the mother's affidavit and the dates when that material was provided to the father, and then the hearing proceeded some months later, he had the opportunity to put on further material at trial and he did not.

GUMMOW J: In the Full Court too, it would have been a changed circumstance. There is no further material put on by the father in the Full Court, is there?

MS GEARIN: No, your Honour, there is no further material.

GAUDRON J: But, Ms Gearin, do you not have this problem? Let it be assumed that Mr Meldrum convinces us that the Full Court erred, there is still a question to be determined then properly whether there is a grave risk and, two, if there is, whether the discretion will nonetheless not be exercised in your client's favour. Now, do I understand that you are inviting this Court to determine those issues?

MS GEARIN: Yes, your Honour. First of all, your Honours have to determine if there - - -

GAUDRON J: Well, I know, but, I mean, that would almost be without precedent and I do not think we are a Court well equipped to determine matters relating to children, particularly when it comes to discretion. If I do not speak for others, I certainly speak for myself in that regard.

GLEESON CJ: Or nor would we be a Court that would be in a hurry to expose ourselves to the observation that we had made a judgment about a matter of this kind by applying Jones v Dunkel principles to resolve the question of whether you can get treatment for autism in Greece. That is not a highly sophisticated way to go about determining that kind of issue of fact.

MS GEARIN: Well, all we can say, your Honour, is that all of our inquiries indicated that there was no acknowledgment or acceptance - - -

GUMMOW J: I realise that, but you are not facing up to the questions that Justice Gaudron and the Chief Justice are putting to you.

MS GEARIN: Sorry, your Honour.

GUMMOW J: The questions they are putting to you relate to the nature of an appeal process and the position of this Court in that appeal process. You are not in the Full Court of the Family Court, you are here. It is different.

MS GEARIN: Well, the reason we say that the discretion ought be exercised by this Court if you find that there is a grave risk of return on the material, is that there is an obligation under the Convention for these matters to be dealt with expeditiously. If we now go back and have another trial, which is what would be proposed - - -

GAUDRON J: Well, the first problem is this, why would one determine there was a grave risk in the absence of material that somebody could quite easily, albeit perhaps not your side - but could quite easily be provided and could be provided if the matter were returned to the Full Family Court?

MS GEARIN: Your Honour, the only issue that we would say in relation to that is that the Central Authority had the opportunity to put on evidence, they did not do so; if they now say they have that evidence, that is a different question, but certainly they have never indicated that there is such evidence available.

KIRBY J: Well, this is tit for tat. They say you had the opportunity and you bore the onus and you failed to do so and, I mean, then we are back to Jones v Dunkel.

MS GEARIN: We say we went as far as we possibly could, your Honour.

GUMMOW J: I am worried about this child that has had no independent representation and what we are getting to now rather makes the point. It comes locked in this tit-for-tat battle of procedural nature between parents, all about Jones v Dunkel of who is going to put on fresh evidence and who might not and so on and so forth, but anyhow, there you are. Now the status quo at the moment, we should be apprised of. Is the status quo at the moment that order 3, that appears at the bottom of page 301, which stayed the orders of the primary judge, still remains in force?

MS GEARIN: Yes, your Honour.

GLEESON CJ: Ms Gearin, on page 300, the first of the orders is that a certain application be refused. Could you just remind us what that application was? Page 300 line 25, under the heading "Orders":

170. The orders we would make are -

Do you see that? Followed by the number 1.

MR GRACE: I can assist, your Honour. That was an application for fresh evidence.

GLEESON CJ: That is what I wanted to know.

MR GRACE: Yes, on the part of the Authority to - - -

GLEESON CJ: I knew that the Authority had won the appeal. I just wanted to know what application it was that was dismissed.

MS GEARIN: Yes, your Honour.

GLEESON CJ: Thank you.

GUMMOW J: Why was it refused?

MR GRACE: The court determined it was not fresh.

CALLINAN J: Are there any reasons for judgment on that?

MR GRACE: No.

GLEESON CJ: What was the evidence about?

MR GRACE: The evidence concerned the existence of facilities in the area of Greece that we are concerned with.

MS GEARIN: Your Honour, in fact the evidence was not quite what my learned friend said.

KIRBY J: You are telling us now a little bit of evidence from the Bar table. I do not think we can receive that.

GLEESON CJ: I did not want to go further, Ms Gearin. I just wanted to understand what that order 1 was all about and I think we now understand.

MS GEARIN: Yes, there was an application for fresh evidence but it did not relate to what my learned friend - - -

GUMMOW J: But is there any reasoning for that order? Is that what appears in the appeal book. What did the Full Court say in support of making order 1 in these reasons or do they say nothing?

MS GEARIN: I do not think they said anything, your Honour, that I can recall from that judgment as to their reasons.

GUMMOW J: Perhaps that might be checked in the course of the day. I would be surprised if that was so.

GLEESON CJ: Do we have in these appeal books the record of the proceedings before the Full Court?

MS GEARIN: No, your Honour, only the judgment. There is no transcript.

GLEESON CJ: Well, order 1 is what is sometimes called a "non-sticking order".

KIRBY J: There may have been a tender of evidence and a very short ruling about it.

MS GEARIN: There was. That was the situation.

KIRBY J: Maybe you can get us that page of the official record so that we know what their Honours were considering.

MS GEARIN: Yes. That was the situation, your Honour.

KIRBY J: Yes, and one assumes that if it was fresh evidence they having power under their Act to admit fresh evidence on an appeal by way of rehearing of it - - -

MS GEARIN: They did, your Honour.

KIRBY J: - - - that they took the view that this was a matter that if it was to be admitted ought to have been admitted before Justice Mushin in the first instance.

MS GEARIN: Yes, your Honour.

CALLINAN J: But if you look at paragraph 46 on page 250 there is a reference to "reasons delivered in the course of the appeal hearing". Now that seems to have been on an application by the mother, by your client.

MS GEARIN: There was no application for further evidence by us, your Honour.

CALLINAN J: Well have a look at page 250, paragraph 46. It might be a mistake.

KIRBY J: They say "for reasons delivered . . . we declined", so it must be some short oral statement at the refusal of the evidence.

MS GEARIN: Counsel for the Central Authority it was, your Honour. We made no application.

GUMMOW J: Well, it is a mistake.

MS GEARIN: It is a mistake, your Honour.

CALLINAN J: But there must have been reasons. They say "for reasons delivered".

KIRBY J: I think we will just have to get the transcript of that part of the record.

MS GEARIN: I think so. Certainly, I can indicate that we made no application on appeal to put in any evidence and the Central Authority did.

HAYNE J: And there is another application floating around. See the top of 251:

on 16 March 2000, we received an application from the CCA seeking that the hearing of the appeal be re-opened and that the CCA be at liberty to rely -

et cetera. Now, I do not know whether anything turns on any of that but that is at the date mentioned in order 1 at page 300 so I think it would help if we could be told what happened.

KIRBY J: There is a time limit under the regulations, is there not, for the bringing of these - you cannot, as it were, just go back and start a new proceeding on different evidence.

MS GEARIN: No, your Honour.

GLEESON CJ: These proceedings were commenced by the Central Authority, were they?

MS GEARIN: Yes, your Honour, they were. That was the application for return of the child.

CALLINAN J: And that was treated by an application or a request by the father to the Central Authority, was it not?

MS GEARIN: Yes, your Honour, and that is the filter system that Mr Meldrum was talking about that if an application is made to the Greek authorities then pursuant to the regulations that procedure follows its normal course.

GLEESON CJ: All right. Your submission to us is that we should ourselves consider the "grave risk" issue, resolve that in your favour and make an order not only allowing the appeal but also dismissing the Central Authority's application?

MS GEARIN: Yes, your Honour.

GLEESON CJ: We understand that.

MS GEARIN: Thank you, your Honour.

GLEESON CJ: Yes, Mr Grace.

MR GRACE: If the Court pleases. Could I commence by indicating that there have been some amendments to the legislation, the Family Law Act 2000 , since the date of the grant of special leave in this matter, by the Family Law Amendment Act, which commence on 27 December 2000, there were amendments to the following sections: 68L which is the separate representation section which has already been the subject - - -

GUMMOW J: It is a fairly remarkable piece of legislation.

MR GRACE: Yes. It overcomes the decision in De L.

GUMMOW J: You might say it overcomes it. It did not seem to me the decision necessarily - - -

MR GRACE: The - - -

GUMMOW J: Just listen to me for a minute. It did not seem to me that the decision is one in which one speaks about overcoming it. It was designed to promote welfare of children. This is designed to restrict the welfare of children.

MR GRACE: Yes, your Honour. Section 111B(1)(1A) provides that:

the regulations may make provision:

(a) relating to the onus of establishing that a child should not be returned under the Convention - - -

GUMMOW J: Just a minute, 111- - - ?

MR GRACE: - - - B(1)(1A).

KIRBY J: But this in futuro, presumably?

MR GRACE: Yes, no regulations have been promulgated, as of this date.

GAUDRON J: When did these amendments come into force?

MR GRACE: On 27 December 2000.

KIRBY J: Does that alter the onus of proof from what has been assumed?

MR GRACE: No, we would submit not.

GLEESON CJ: It might depend on what is in the regulations, might it not?

MR GRACE: Yes, the regulations have not been promulgated.

KIRBY J: Did the Minister explain what the purpose of the Carr Government was in proposing this amendment?

MR GRACE: Not as I understand it, your Honour.

GLEESON CJ: Does this mean that Parliament has left it up to the Executive Government to decide who should bear the onus of proof?

MR GRACE: Yes.

GLEESON CJ: Very well.

GUMMOW J: There may be a problem about that.

GAUDRON J: Yes.

MR GRACE: There is a new subsection 111B.

GAUDRON J: The time might be coming when one has really got to consider whether what goes on in this jurisdiction is an appropriate exercise of the judicial power of the Commonwealth.

GUMMOW J: The Convention does not require these things to be submitted to courts but Australia has chosen to do so. It then takes the courts with Chapter III.

MR GRACE: Yes.

GUMMOW J: If it wants to set up and wear the odium of some purely administrative procedure, so be it, but you cannot yoke the courts and cloak the Court's authority over these procedures necessarily. Anyhow, what else do you want to show us?

MR GRACE: Subsection 111B(1B) provides that regulations may ensure that:

an objection by a child to return under the Convention -

is not -

to be taken into account in proceedings unless the objection imports a strength of feeling beyond the mere expression of a preference or of ordinary wishes.

That, again, is related to the decision of this Court in De L.

Subsections 111B(1C) and (1D) deal with issues of child welfare upon return to the country of habitual residence and they reinforce the power of the central authorities to place a child who has been returned to Australia under the Convention into care to secure that child's welfare pending the making of an order under the Family Law Act. The intent that we submit is reflected in that change is that it gives a powerful legislative emphasis to the principle that a return of a child to Australia is a return to the jurisdiction rather than to the applicant parent.

Section 111B(1E) deals with access applications and section 111B(4) deals with the meaning of the rights of custody and it - - -

GAUDRON J: A question might arise, at least in relation to subsection 111B(4) - well, I suppose it does not really arise - whether it is any longer implementing the Convention, in which event one wonders to what extent the Convention can be had regard to for the purposes of construction. There are already a number of departures from the Convention in these regulations.

MR GRACE: Yes.

KIRBY J: We are not giving advisory opinions here. We are just very fascinated by this little piece of legislation you have handed up. But what is the point? Why have you given it? I mean, it is correct that we know about it, but do you make any forensic use of it?

MR GRACE: No, I do not make any point, other than to inform the Court of the developments in this area that are occurring as we speak.

GUMMOW J: It is not said to apply to pending proceedings, is it?

MR GRACE: No, it is not.

GUMMOW J: Why would it not? It is a procedural law.

MR GRACE: Firstly, it may apply to separate representation issues, which is not germane to this case, but the - - -

GLEESON CJ: Would it have a bearing on Ms Gearin's submissions?

MR GRACE: Yes, perhaps, but - - -

GUMMOW J: If the matter were to be sent back to the Full Court, just assume, would it have any bearing then?

MR GRACE: Well, certainly if new regulations have been promulgated by that time, it may well.

KIRBY J: Subject to their validity.

MR GRACE: Yes. Your Honours, if I could commence my submissions by observing that Australia, as a Convention signatory, is to be taken to presume that a court of competent jurisdiction in Greece, a Convention signatory, would be able to assess and consider all the developmental problems the child has, consider what is in the best interests of the child in terms of custodian, residence and the like and ultimately make the appropriate orders.

GUMMOW J: Yes, I understand all of that, Mr Grace, but why does one not look at Article 7 of the Convention dealing with central authorities? One of their tasks given them by the Convention is to co-operate with one another and exchange information. Look at 7e. Now, why is the question in this case as to the state of medical treatment in various parts of Greece left, inadequately really, to be resolved by Jones v Dunkel?

MR GRACE: We would submit that it ought not to be resolved by Jones v Dunkel. But - - -

GUMMOW J: Why does not the Central Authority turn up at the hearing of this application and give the court some evidence on the matter?

MR GRACE: Could I take your Honours to - - -

CALLINAN J: And might I just add to that that the Central Authority was also criticised by the Full Court for not providing better evidence of Greek law, at page 264, paragraph 68.

MR GRACE: Yes, I am aware of that.

CALLINAN J: I mean, really, the Central Authority did not assist, perhaps, the court nearly as much as it might have.

MR GRACE: The problem that the Central Authority has is that it sounds large in name but in fact it is small in number, and it has not been - - -

GUMMOW J: That is the responsibility of the Executive Government.

MR GRACE: Yes, it is. But what needs to be understood is this, that - - -

GUMMOW J: It signs these conventions, and it should be prepared to implement them adequately.

MR GRACE: There are two issues that are involved with that and that is, firstly, that if one wanted to transform this type of hearing that is before the trial judge in this case into a full-blown custody dispute - - -

GUMMOW J: That is not the question.

GAUDRON J: The provisions of the regulations exist. Regulation 16(3)(b) is there. It is not a full-blown custody application, but if it is invoked, it is invoked.

MR GRACE: But the problems may - - -

GAUDRON J: It is not only the Central Authority that has forensic rights in this area, you know.

MR GRACE: Yes, I appreciate that, your Honour, but the Central Authority's position is that it has not been provided by the Executive Government with unlimited funds - - -

GAUDRON J: That may be its position, but let us consider, as a matter of law, why should the Family Court and now this Court be asked to decide matters in the absence of relevant information? It should not be. It makes a mockery of notions of considering the welfare of the children. Albeit that I know that is not relevant in this, but we are nonetheless dealing with children who cannot look after themselves, particularly in this case. At least someone, if they are accepting the responsibility of instituting these proceedings, should accept the responsibility of paying some slight regard to the interests of the children, particularly in circumstances where now it appears the child cannot be separately represented. Children do have rights, or at least in theory they do. Certainly, I should think they have the right at least to have the information fully explored.

MR GRACE: Attempts were made to obtain the necessary information, your Honours, and that appears in the appeal book. Your Honours will see at pages 96, 97, 98, 99, 100, 101, 102, 103, 104 and 105 - - -

HAYNE J: Does all of that relate to the Nigrita Serres area?

MR GRACE: Yes.

HAYNE J: Does any of it relate to any other part of Greece?

MR GRACE: Yes. At pages 99, 100 and 101, your Honours will see information there provided to the solicitors for the wife, as to the existence and - if I take you to page 99 at line 30:

These Institutes are special institutes that meet the needs of persons suffering from autistic disorders.

And that they were all listed there.

HAYNE J: And those are institutes in Salonika, being the closest city to Nigrita and Serres.

MR GRACE: Yes. The closest major city. And those were the institutes that were the subject of the comment by the learned trial judge - - -

HAYNE J: The finding of fact that they were unsatisfactory.

MR GRACE: Yes. That in turn was the subject of cross-examination, which was granted on a very limited basis by leave of the trial judge, of the wife, during the course of the proceedings. That does not appear in the appeal book - sorry, I am told it is. Sorry, yes, 170. Yes, I am in error there. 170, 171 through to 174. There were questions asked in cross-examination of the wife, and at page 172, this is examination-in-chief, she is asked questions about the various clinics by counsel, Ms Gearin.

KIRBY J: This is the present appellant?

MR GRACE: Yes, present appellant giving evidence. She says at line 29 in answer to a question:

Were you ever referred to any facility?

The answer was "no." Then in cross-examination, which commences at the bottom of page 173, on page 174 - - -

GLEESON CJ: Just before you leave 173, line 10 of 173, this is the trial judge talking to counsel for your client?

MR GRACE: No. Sorry, yes, counsel for my client, yes.

GLEESON CJ: And the trial judge says:

leave has been given on a limited basis.

That is leave to cross-examine, is that right?

MR GRACE: Yes.

GLEESON CJ: Where do we find the limited basis of that leave? Before you answer that question, then he goes on to say, and I presume this is addressed to Ms Elliott, but correct me if I am wrong:

if you're going to go much further I'm going to need to consider whether I require you to put this on affidavit.

What does "this" mean?

MR GRACE: It was an application, as I understand it, to lead fresh oral evidence.

GLEESON CJ: About what?

MR GRACE: About the attendance and efforts by the wife, the appellant, to attempt to find proper treatment centres in Greece.

KIRBY J: Is that what was referred to in the Full Court's decision first when they said that the wife tried to bring in fresh evidence and that later you tried to bring in fresh evidence? Was it fresh oral evidence by the wife?

MR GRACE: Well, certainly, fresh oral evidence before the trial judge was sought to be adduced. The trial judge says at line 4 on page 173:

You would need to seek further leave.

The issue then arose that, well, his Honour was not going to allow further oral evidence on the subject; he may want, if it is going to go any further, to ensure that it is placed on affidavit.

GLEESON CJ: Yes, I am not sure that you are right when you say that remark was addressed to Ms Elliott because it is Ms Gearin who responds, and says, "Yes, your Honour." It looks to me as though the judge is addressing the concluding portion of that paragraph to Ms Gearin. In effect, telling her that if there is going to be any further consideration of this factual matter, he is considering requiring her to put on an affidavit about it.

MR GRACE: Yes, your Honour is quite right.

HAYNE J: So it is a question of whether the present appellant, respondent below, should have had leave to supplement her affidavit material. Is that the way it worked out?

MR GRACE: It appears so, your Honour, yes. The key appears at probably line 13 where Ms Gearin says:

Yes, your Honour. The only point that I want to make, your Honour, here is firstly these institutions as far as we are aware are inappropriate for the treatment of autistic children and, secondly---

HIS HONOUR: It was that I gave you leave on.

GLEESON CJ: So the subject matter that the judge was contemplating he might require Ms Gearin to deal with by way of a further affidavit was the subject of the availability of treatment for the condition of autism.

MR GRACE: Yes.

KIRBY J: And was any affidavit ever read, any further affidavit read before the primary judge on that question?

MR GRACE: As I understand, no.

GUMMOW J: How long did this application last, do you know, Mr Grace?

MR GRACE: Yes, two days and I want to take your Honours to the chronology of that.

CALLINAN J: Was it all video link, or part of it video link or not?

MR GRACE: Part of it was on 18 November, the submissions which were on a date about six weeks after the trial. The trial was, I believe, on 7 and 8 October 1999 and the date is significant. There was a suggestion in my learned friend's submissions - I am not sure which one - that the father had been provided with the medical reports immediately the child had been diagnosed. In fact, that is not true at all. The father had first been provided with the medical reports on Tuesday, 5 October as he was about to leave Australia and the trial commenced on 7 October.

GUMMOW J: He made one affidavit at Mascot, I see.

MR GRACE: Yes. He made the affidavit at Mascot. Now, the child was diagnosed with autism in June 1999, so between June 1999 and October 1999 there had been no provision of those medical reports so that the Central Authority would have been in a position to obtain proper instructions from the father and seek the material, which your Honours speak about, which ought to have been presented to the court. Now, Article 2 of the Convention speaks of these matters being determined as expeditiously as possible.

GUMMOW J: That is right, but once they are submitted to the judicial power of the Commonwealth they have to be decided according to law.

MR GRACE: Yes, they do.

GUMMOW J: And all cases emerge and everyone realises that, but they have to be done properly. That is the way we do things here.

MR GRACE: However, there is a tension, your Honour, between the provisions of the Convention - - -

GAUDRON J: Well, for my part, I am proceeding by reference to the regulations, not the Convention and I am not even entirely sure that one should have regard to the Convention for the purposes of construing the regulation. It may be that one should up until now but thereafter I am not too sure. What is there in the regulations that brings about the result for which you contend?

MR GRACE: Is your Honour talking about the expedition point?

GAUDRON J: Yes.

MR GRACE: There is nothing in the present regulations - - -

GAUDRON J: Exactly, and the regulations are the law, are they not? To what extent is the - the Convention - - -

MR GRACE: Is incorporated as Schedule 1.

GAUDRON J: Yes, what does it say? Convention, so we apply the Convention. There are now significant differences between the regulations and the Convention.

KIRBY J: It does refer to Australia being a Convention country and annexes the Convention to the regulations. Presumably the Convention has some relevance to the standing and carrying into effect of the regulations.

MR GRACE: And one, of course, has to go back to section 111B of the Act, which refers to the Convention also.

GAUDRON J: Yes. Well, there is nothing in the regulations that talks about - - -

MR GRACE: About expedition?

GAUDRON J: No.

MR GRACE: No, there is not.

GAUDRON J: No. Well, that is what the courts - - -

HAYNE J: Even if it were a question of speed, one phone call to any of the numerous diplomatic posts that Greece has in this country, it might be expected to have elicited some useful information.

MR GRACE: That did occur, your Honour, and the response from - attempts were made by both sides to get this information from the appropriate authorities, but the response was less than forthcoming in terms of detail, so attempts were made.

KIRBY J: Is your point that the case was set down for a date in October and not until very shortly before that that you had the information of what had been happening to the child in Darwin? Is that the position?

MR GRACE: That is correct. The application was made in August and various reports were then commissioned by the wife and your Honours will see, throughout the course of the appeal book, various reports which are dated on various dates. There was one, page 115 for instance, which is dated 29 April 1999. Well, the first time that the Central Authority received this information was shortly before the hearing. Then we have page 123, the report dated 4 October 1999. We have reports from Dr Diplock dated 13 September 1999 and then in October 1999. So these proceedings were being expedited in a way which has caused the result of the paucity of material that your Honours speak of.

Attempts were made before the Full Family Court to have admitted into evidence before that court further material. Now, without going into what that evidence was, it obviously became unnecessary for the Full Family Court to have resort to that material, which it has indicated in those brief reasons which the Court has been referred to earlier.

KIRBY J: They are no use to us because they simply say "for reasons given at the time" or words to that effect, and we do not have the transcript of what was said at the time.

CALLINAN J: The court said they did not have recourse to it by reason of the - I mean, it must have been because of the view of the construction that they would put upon the regulations which Mr Meldrum submits was far too narrow and that properly construing the regulations perhaps that evidence may or may not have been admissible. First you have to construe the regulations.

MR GRACE: Yes, well, the court did not regard that material as being necessary for its decision.

GLEESON CJ: But can I ask you, on page 300, they make an order that your client's application filed. That obviously refers to a document of record, your application:

filed 16 March 2000 be refused -

Where can we find the application that was there filed?

MR GRACE: It is not in the record of the court. This was subsequent to the appeal hearing. As I understand, there was an application made in writing that the hearing of the appeal be reopened and this is referred to at paragraph 47 and on pages 250 and 251.

GLEESON CJ: Look, just a moment. Am I right in inferring from the use of the word "filed" that the application that was the subject of order No 1 was a formal application commenced by notice of motion?

MR GRACE: Yes.

GLEESON CJ: Now, the notice of motion and any supporting material is not reproduced in the appeal book before us.

MR GRACE: No, it is not.

GLEESON CJ: But, is there any reason why we should not have access to it just so that we can understand order No 1?

MR GRACE: From the Authority's viewpoint, certainly there is no reason. We have that material here and we could provide it to the Court. It comprises an affidavit by the relevant officer.

GLEESON CJ: It is part of the record of the proceedings before the Full Court of the Family Court, is it not?

MR GRACE: Yes, it is.

GLEESON CJ: Is it referred to in the index to the appeal book as not reproduced?

MR GRACE: I do not believe so.

KIRBY J: I think there is a differentiation here that I would like to keep clear in my mind. One is the formal notice of motion to enlarge the record, and the other is the affidavit that was tendered to support that motion. I think we ought to have the first because it is referred to in the orders that are now the subject of appeal to this Court. But as to the second, I feel a little anxiety about receiving it because this Court's authority says we are not in our appellate function to receive evidence that was not used below.

GLEESON CJ: That should make a further distinction between an affidavit in support of a notice of motion and evidence that would be filed, presumably by affidavit, if the notice of motion were successful. Presumably the notice of motion was an application to adduce fresh evidence.

MR GRACE: Yes, your Honour.

GLEESON CJ: The affidavit in support of the notice of motion would be an affidavit in support of an order giving leave to adduce fresh evidence. It would not be fresh evidence.

MR GRACE: In fact it was the latter. It comprised both.

GLEESON CJ: You mean it indicated what the evidence would be?

MR GRACE: Yes, and it attached annexures.

GLEESON CJ: In support of an application to lead the evidence.

MR GRACE: Yes.

GLEESON CJ: The application was refused.

MR GRACE: The application was refused.

GLEESON CJ: But for some reason the appeal book does not list it in the index but we are here trying to speculate about the meaning of an order that appears on page 300 of the appeal book. Why should we have to speculate about it?

MR GRACE: Certainly, your Honour, the respondent can give undertakings to file the relevant material with the Court immediately.

GUMMOW J: The record should already be here, surely. It should have been sent to you by the Full Court, surely.

MR GRACE: I am instructed that the respondent sought to have that material included but the Registrar declined.

GLEESON CJ: Included in the appeal book?

MR GRACE: Yes. The affidavit was filed, and that is referred to at page 251 in the judgment at line 3.

KIRBY J: Are we going to get today the transcript where this was tendered and there was some oral statement rejecting its tender?

MR GRACE: Yes, we will - - -

KIRBY J: Because paragraphs 46 and 47 do not really tell you very much as to what was the content and what was the reason for the refusal. Presumably it was on the basis that that was material available at the trial and it ought to have been adduced before the primary judge.

MR GRACE: I think your Honour may be at cross-purposes. At 46, what their Honours are talking about is the wife's application to adduce further material. We do have a transcript of that particular application.

GLEESON CJ: Mr Grace, it is taking us a long time to get the reasons, but if we look at page 251 the nature of the application is identified. It is an application for leave to reopen the hearing of the appeal and to rely on a certain affidavit. That appears from page 251, lines 1 to 5. Then on line 6 of page 251, it says:

Having regard to our conclusions as set out below we will not grant the application.

What are the "conclusions as set out below" that are there referred to?

MR GRACE: That his Honour had not erred in law in the ways in which the appellant had alleged.

GLEESON CJ: So the application to reopen the hearing of the appeal and to rely upon an affidavit was refused on the ground that for other reasons the appeal must fail.

MR GRACE: It appears so, your Honour.

Could I remind your Honours of the provisions to regulation 15(4), which does give a time limit for the commencement of applications and determination by a court, and that says that the Court must determine the matter "within the period of 42 days commencing on the day on which the application is made".

GLEESON CJ: Now, can I come back to Ms Gearin's application. If Mr Meldrum had succeeded in persuading us that the Full Court was wrong in its conclusion, that for other reasons the appeal must fail, there may be a question of revisiting the ruling that appears on the top of page 251, but you have no cross-appeal.

MR GRACE: No.

KIRBY J: Would it be more a matter of notice of contention that you would say you are entitled to sustain the orders on the basis that there is an alternative way, namely, that had the evidence been received and considered, it would have supported what the primary judge did on a different footing.

MR GRACE: Yes.

GLEESON CJ: And you could not possibly succeed in that argument, could you, because we do not know what the material was in the affidavit and therefore we do not know whether or not, if that affidavit had been received, it would sustain the order of the Full Court of the Federal Court?

MR GRACE: That is true, your Honour.

GLEESON CJ: How can we dismiss the present appeal on the basis of what is in the affidavit referred to on the top of page 251 if we do not even know what is in the affidavit?

MR GRACE: Yes, I accept there are difficulties and, as I indicated, we are quite prepared to provide that material to the Court.

GLEESON CJ: But you would need to have a cross-appeal running, would you not, if you wanted us to overrule the decision refusing your application to reopen the hearing of the appeal and lead evidence?

MR GRACE: Yes, I can see the force of that, your Honour, and in those circumstances we would seek leave to file an application for special leave and - - -

GLEESON CJ: You had better have a think about this over the luncheon adjournment. We are going to sit until 1 o'clock, Mr Grace, and resume at 2.

GUMMOW J: If you have to come back with something, you have to come back with a draft document.

MR GRACE: Yes, your Honour. Now, the orders that his Honour the trial judge made and which were endorsed by the Full Court facilitate the return of the child to Greece. They do so in circumstances where the appellant wife continues to exercise custody of the child and will receive maintenance from the husband until a court of competent jurisdiction in Greece determines further orders in relation to the child.

GAUDRON J: Where does the jurisdiction to make those orders come from? I know they are commonly made, but where does it come from? First of all, let us go to the regulations and then tell me, just in case the Convention does bear on it, where in the Convention that says so?

MR GRACE: Regulation 15.

GAUDRON J: Regulation 15, yes:

any other order that the court considers to be appropriate to give effect to the Convention - - -

MR GRACE: Yes.

GAUDRON J: That is where it is. So the Convention is then brought in. Now, what is it there in the Convention that brings this about?

MR GRACE: I am not aware of anything in the Convention which assists.

GAUDRON J: No, but I was thinking earlier as the argument was advancing earlier with reference to what the United States does to minimise the risk. It does not seem to me that if there is a risk that it is any part of the court's function to minimise it. Its function is to determine what the risk is.

MR GRACE: Could I remind your Honours what your Honour Justice Gaudron and the other members of the majority had to say in De L v Director General, NSW Department of Community Services (1996) 187 CLR 640.

GAUDRON J: The point I am putting to you is: if it is established that there is not a grave risk, there may nonetheless be pointing orders to facilitate return, the order to return, but if you are putting it on the basis that a court can by its orders minimise the risk, which is the way the Americans apparently, according to Mr Meldrum, approach it, then it seems to me there is a real difficulty.

MR GRACE: The issue at large is what is in the best interests of the child.

GAUDRON J: I do not find that in the regulations either.

MR GRACE: Your Honours will find it at pages 661 and 662 in the judgment of De L, as being the basis for the imposition of conditions or acceptance of undertakings - - -

GAUDRON J: Yes. Once one has decided either there is not a grave risk or that the discretion will be exercised against the mother. What I am concerned about is the notion that if there is a grave risk, you do something to minimise the risk so that you do not have to find that there is a risk, or you do not have to turn your mind to the exercise of the discretion. And the way I understood you to be putting your argument was: look at all these lovely conditions - there is no risk.

MR GRACE: No, I was not putting it in that way, your Honour. I was putting it in the way described in De L - - -

GAUDRON J: What is the relevance of that?

MR GRACE: The relevance is that, in making orders for the return of the child, it is important that the court impose such conditions for the removal of the child that would be in accordance with the intention behind the Convention and to give effect to the Convention.

GAUDRON J: All right, that is established. But what is its relevance to this case? Orders have been made. The question in this appeal is whether the Full Court erred in dismissing the appeal.

MR GRACE: The assumption - - -

GAUDRON J: If it did, it does not seem to me that the orders have got anything to do with it. And if it did not err, then the orders are just ancillary.

MR GRACE: Well, one has to start from the proposition as to whether the word "return" in 16(3)(b) is contemplating a permanency about it or whether it is of a temporary nature. Now, we would submit that the return contemplated in 16(3)(b) is of a temporary nature.

GLEESON CJ: You seem to get some support for that submission from the judgment of Justice La Forest in the Supreme Court of Canada, cited in De L at 661 over to 662 at the concluding part of that passage, where he is dealing with the subject of undertakings. He talks about:

the long-term best interests of the child are left for the determination by the court of the child's habitual residence, and any short-term harm to the child is ameliorated.

That, as I understand it, fits in with your concept of the meaning of "return".

MR GRACE: Yes, and it accords with what Justice Kirby has had to say today in discussions and also with his judgment in that same case.

KIRBY J: Yes, I see that I am described at dissenting, but I agreed with the orders of the Court there. It is a long time since I have written - - -

MR GRACE: Your Honour only dissented as to the issue of whether 16(3)(c) should have a narrow construction attached to it or whether it should have a literal meaning. Your Honour found that it should have a narrow construction.

KIRBY J: But you do not dissent unless you disagree with orders, at least that is how I was taught it at law school. That is how you find out whether a judge is dissenting or not.

MR GRACE: Yes, I would not agree with the proposition that your Honour dissented, certainly. But could I perhaps move on to the issue of construction and go to the regulation 16(3)(b) and focus firstly on the words "otherwise . . . intolerable". Now, it is submitted that those words, "otherwise . . . intolerable", colour the interpretation of the phrase "physical or psychological harm".

GAUDRON J: Why?

MR GRACE: Because the "physical or psychological harm" that is referred to in 16(3)(b) could not be any physical or psychological harm.

GAUDRON J: Why not?

GUMMOW J: Why not?

MR GRACE: Well, in our submission - - -

GAUDRON J: I mean, I would have thought harm is harm, "physical or psychological harm", harm is harm when you are talking about children.

HAYNE J: The proposition that you can expose a child to some physical harm is a fairly bold proposition, is it not?

MR GRACE: It has got to be of an exceptional or special nature, in our submission.

GAUDRON J: No. Why? One hit - one hit to a child has been known to kill a child.

MR GRACE: Yes. Well, could I - - -

GAUDRON J: Harm is harm.

KIRBY J: It may mean that physical harm could be having to work hard on the farm back in Greece. I mean, psychological harm could be having to put up with ranting relatives.

HAYNE J: Or six or seven of them.

MR GRACE: The point we seek to make, your Honours, is this, if one looks at the intent behind the Convention and the relief that is sought to send kidnapped children back to their country there must be very strong reasons for refusing to make the order.

GAUDRON J: No, there has to be satisfaction of one of the conditions in regulation 16(3). It does not help to say there have to be strong reasons. One has got the regulation. The regulation tells you what they are. To the extent that (3)(b) does not depart from the terms of the Convention - and it does not seem to - there does not seem to be any reason why you just do not read it in its natural and ordinary meaning.

MR GRACE: To think of an example, where a young child who was kidnapped by, let us say, a mother, and taken to Australia out of a Convention country, and that child was forced to return from the arms of the mother to another country, absent the mother, would not suffer some psychological harm, and if that was to be the intent ascribed to section 16(3)(b), then there will unlikely to ever be a case where an order would be made for the return of a child. So one has to give the words, we submit, "otherwise intolerable" some work to do within the sub-regulation, and that is why, we submit - and we say we are supported by authority in this regard - that in the interpretation of "physical or psychological harm" something more than physical or psychological simpliciter must be shown and, as I understand the arguments by my learned friends, they do not suggest otherwise.

GAUDRON J: Well, I am forever intrigued at the notion that you read things in or read things out of that which is written by the law-makers. It has to be a "grave risk" and that may colour it.

MR GRACE: Well, "grave" attaches to the "risk" - - -

GAUDRON J: I know.

MR GRACE: - - - not to the circumstance of the "harm".

GLEESON CJ: Mr Grace, I notice the introductory words of regulation 16(3). Is there any room for doubt about who bears the onus?

MR GRACE: We would submit not; we would submit that the person opposing return has to bear the onus.

GLEESON CJ: Well, now, what happened in the present case was that the person opposing return failed to establish something to the satisfaction of the judge at first instance and the Full Court, on reviewing the decision of the judge at first instance, said that the judge at first instance was in error in certain respects, but once again, the person opposing return failed to establish that matter to the satisfaction of the Full Court.

MR GRACE: Yes.

GLEESON CJ: But Mr Meldrum says that the Full Court was under a misapprehension as to exactly what had to be established. That is the point we would get to if we accepted Mr Meldrum's submission.

MR GRACE: Yes.

GLEESON CJ: I am just thinking of the implications of that for Ms Gearin's submission.

MR GRACE: Well, as I understand the implications of that, it would be that if the appeal were successful it would be returned to the trial judge for a retrial.

CALLINAN J: Or to the Full Court, perhaps, for the possible reception of further evidence.

KIRBY J: But they have said they will not receive further evidence because it, theoretically, I assume, should have been adduced at the trial.

MR GRACE: Yes.

GLEESON CJ: I thought the reason they gave for not receiving the evidence was that because the appeal was bound to fail on other grounds they would not receive it. At least that is what they said on page 251.

MR GRACE: Yes, that appears to be the reason.

KIRBY J: I thought you had told us that they refused it, or maybe Mr Meldrum did, because it was not fresh.

MR GRACE: It may have been me. If I did, I was in error in saying that.

GLEESON CJ: The only reason they gave for not receiving the fresh evidence, as I understand it, is on page 251, line 7.

MR GRACE: Yes, that appears to be the only reason.

CALLINAN J: And there is certainly a strong argument that the evidence does not have to be fresh, in the conventional sense, for the Full Court of the Family Court or, indeed, perhaps the Full Court of the Federal Court, to receive it. This Court has certainly implied that, if it has not said that.

MR GRACE: Yes.

GUMMOW J: We dealt with this in a case called CDJ v VAJ.

MR GRACE: Yes, your Honour. Could I take your Honours to a decision of the Full Family Court in Gsponer (1988) 12 Fam LR 755. At page 766, at point 9 on the page, the last paragraph, talking about the words "physical harm", "psychological harm" and "intolerable situation" in 16(3)(b), their Honours said:

In our view the three categories are to be read separately and to that extent we agree with the submissions of Mr Guest. However, it needs to be emphasised that there must be a "grave risk" of the occurrence of one or more of such events. Further, it is impossible to ignore the existence of the words "or otherwise". The consequence of those words is to link the quality which each of the first two categories must have to the emphatic words which describe the third category ("an intolerable situation"). That is, it is not the grave risk of any physical or psychological harm which would satisfy the first two aspects of this paragraph. The physical or psychological harm in question must be of a substantial or weighty kind.

This accords with the views of the Court of Appeal in Re A where Nourse LJ said this (at 372):

"I agree with Mr Singer, who appears for the father, that not only must the risk be a weighty one, but it must be one of substantial, and not trivial psychological harm. That, as it seems to me, is the effect of the words "or otherwise place the child in an intolerable situation". It is unnecessary to speculate whether the ejusdem generis rule ought to be applied to the wording of an international convention having the force of law in this country. Assuming that it ought not, I nevertheless think that the force of those strong words cannot be ignored in deciding the degree of psychological harm which is in view."

CALLINAN J: I must say I find it extremely difficult to take a narrow quantitative view of what would be tolerable to a child.

MR GRACE: One has to go back and, perhaps I am overemphasising this point - your Honours no doubt have got the point - that one has to go back to the Convention itself and understand the reasons for the Convention coming into existence in the first place and the reason for Australia becoming a signatory party in the second and these were - - -

GUMMOW J: The fact is, though, there was a great debate when the Convention was being framed. What happened was a compromise, as often happens with these things.

MR GRACE: Yes.

GUMMOW J: And that compromise is reflected in an article which, to some extent, is reproduced in regulation 13, so it solves nothing.

MR GRACE: Except that when interpreting the provisions of the regulations, which are based in turn on the Convention, one has to take into account what the purpose of the Convention is, the primary purpose.

GUMMOW J: No, no. If you look at the text of the Convention itself, it is the product of a compromise. That is why the article is in there that is now reproduced at 13. You can look to the opening words, if you like. They do not say, "By the way, we've had a hard fought out compromise, and if you look at Articles 5 or 7 you'll see what that is". That is not the way these things are done overtly. I am talking about what goes on behind the scenes.

MR GRACE: Yes, your Honour, I appreciate that this Convention is the result of a compromise, but one must not lose sight of what is specified in Article 1.

CALLINAN J: Different cultures, even within the signatory countries, might take very different views of what would be tolerable to a child. How do we deal with that?

GAUDRON J: Or even what would constitute harm.

GUMMOW J: I do not know what the social attitudes are in Turkmenistan to disciplining children. I suspect they are rather different to what they are here.

MR GRACE: Yes, your Honour. The point is we have to in interpreting the Convention and in our case - - -

GUMMOW J: Many of these Convention countries probably have child labor.

MR GRACE: Yes, there would no doubt be some.

CALLINAN J: And, perhaps, female circumcision for young children. There might be all sorts of things done to children that we, frankly, would not tolerate.

MR GRACE: Nevertheless, we do receive benefit from the decisions of courts of other countries which have interpreted the provisions of the Convention.

GAUDRON J: Do they have regulations like we do? Do they apply the Convention direct or do they do something like we do?

MR GRACE: The answer is varied. Some merely apply the Convention direct and - - -

GAUDRON J: Well, for my part I would think you construe the regulations to the extent to which reference is made in the regulations. For example, to say for the purposes of the Convention, then you look at the Convention to see what those purposes are. If there are ambiguities, you might look at the Convention to see what the Convention is. But once you have the Convention, you read it according to its ordinary and natural meaning as well, I should have thought.

KIRBY J: That is what the Vienna Treaty on Interpretation of Treaties requires. As I understand it, all you are saying is if you get to an ambiguity, as, for example, the word "return" then it is both conventional - to use that word - and appropriate to look to what it is that the regulations are seeking to do, namely, in general terms, including for constitutional reasons, to implement the international convention.

GLEESON CJ: A convention about children who, by hypothesis, have been abducted.

MR GRACE: Yes.

GLEESON CJ: Is that a convenient time?

MR GRACE: Yes, it is, your Honour.

GLEESON CJ: We will resume at 2 pm. How long do you think you will require for the remainder of your submissions?

MR GRACE: I would expect another half hour.

GLEESON CJ: All right. Do you still think you can finish your application within an hour, Mr Jackson, both sides?

MR JACKSON: Yes, your Honour. I suspect I will be a little shorter than that.

GLEESON CJ: All right. We will adjourn until 2 pm.

AT 1.03 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.05 PM:

GLEESON CJ: Yes, Mr Grace.

MR GRACE: Thank you, your Honours. Can I indicate that the respondent makes no application to file a cross-application for special leave to appeal. If the appeal is allowed and the matter is remitted back to either the trial judge or the Full Family Court, the respondent will seek to adduce the evidence that was sought to be adduced in the Full Family Court and rely upon the principles and enunciated by your Honour Justice Gummow, Justice McHugh and Justice Callinan in CDJ at paragraph 115.

Could I perhaps just indicate one matter in answer to your Honour Justice Gaudron to a question that was posed earlier today. In fact Article 11 does mention a time period for expedition of six weeks and that corresponds with - - -

KIRBY J: Which provision is that, I am sorry?

MR GRACE: Article 11 of the Convention corresponds with the time period in regulation 15. One mentioned six weeks and the other 42 days.

Could I take your Honours to the case of De L which I referred to before lunch and specifically to page 648.

At the bottom of page 648, six members of the Court at point 9 on the page after referring to the preamble to the Convention, in the interests of children said this:

Thus, it may be said that the Convention is concerned with reserving to the jurisdiction of the habitual residence of the child in a Contracting State the determination of rights of custody and of access. This entails preparedness on the part of each Contracting State to exercise a degree of self-denial with respect to "its natural inclination to make its own assessment about the interests of children who are currently in its jurisdiction by investigating the facts of each individual case".

A decision under the Convention concerning the return of a child is not to be taken as a determination on the merits of any custody issue (Art 19).

Now, at page 658, in the same judgment, point 2 on the page, their Honours went on to say this, about seven lines down from the top:

The Regulations reflect the object of the Convention to settle issues of jurisdiction between the Contracting States by favouring that forum which has been the habitual residence of the child. The underlying premise is that, once the forum is located in this way, each Contracting State has faith in the domestic law of the other Contracting States to deal in a proper fashion with matters relating to the custody of children under the age of sixteen. Necessarily, proceedings under the Regulations are to be seen as standing apart from proceedings to which s 64(1)(a) is directed. It follows that they are not subject to the paramountcy principle.

Then at page 684, dealing with the issue of construction - and it must be remembered that the other members of the Court did not deal with this issue of construction concerning anything else except regulation 16(3)(c), but at page 684 your Honour Justice Kirby dealt with it in a general sense. At point 5 of that page, your Honour said this:

The exceptions provided for by the Convention (and reflected in the Regulations) are narrowly drawn. They should be narrowly construed. Any other approach would be completely inconsistent with the language, objectives and history of the Convention as I have explained them. It would undermine the attainment of those objectives if, in the guise of deciding whether a child objected to being returned, a court were to enlarge its inquiry into the kinds of considerations which are normal to custody and access decisions (and their equivalents) - exploring to the full an assessment of the best interests of the child. That is not how the Convention is expressed. It is not how it is intended to operate. Nor is it the intended operation of the Regulations. It is not the way in which the Convention, and the domestic law incorporating it, has been construed by the courts of the United Kingdom, the Republic of Ireland, New Zealand, Germany, Argentina or other Convention States.

To the extent that this conclusion implies some modification of the "paramountcy principle", or even adaptation of the ordinary expectations of procedural fairness under Australian law, this is what the Convention, and the Regulations incorporating it, clearly require. Any other construction would amount to a defiance of the clear intention of the Australian Parliament, reflected in the Regulations, whose constitutional validity has not been challenged. It would undermine the reciprocity upon which the Convention rests. And it would run the risk of returning this country to the unsatisfactory state of the law before the Convention was negotiated and came into force. Putting it quite bluntly, Australia cannot expect other Contracting States to trust its courts to determine lawfully and fairly the best interests of abducted children, where such children are returned to Australia, if our courts do not accord a similar reciprocal respect to the courts of the other Contracting States, exceptional cases aside.

GUMMOW J: You might have read to us what appears at the bottom of page 654, Mr Grace, the paragraph beginning "As we have indicated", and then the paragraph in the middle of 655.

MR GRACE: The compromise, yes. Your Honour Justice Gummow is referring to the compromise that the subscribing to the Convention entailed.

GUMMOW J: And the paragraph in the middle of the next page, which is what Justice Gaudron has put to you several times. Anyhow, I suppose it is a waste of time now - - -

KIRBY J: I suppose it is fair to say that every international convention is a compromise of some kind.

MR GRACE: It must be.

KIRBY J: It may be all legislation that goes through a democratic Parliament is a compromise.

MR GRACE: In similar fashion. What we submit is this, that in making its decision in this matter, the trial judge of the Family Court could not speculate as to what may befall the child if an order was made, ultimately, in a Greek court for the father to have the child's day-to-day care or custody. No one can speculate whether the Greek court would grant custody to the father or to the mother.

GAUDRON J: That depends on what meaning you give the words. When it comes to the exceptions they have to be given some work to do. What work do you say they have to do?

MR GRACE: The work approaches the work that is described in the United States decisions, Friedrich being - - -

GAUDRON J: A war zone or the courts are no good, but we are to operate on the assumption that the courts are good, therefore we can ignore the second, so unless we are talking about returning the child to somewhere perhaps where there is a war zone or perhaps there is some terrible epidemic or something of that nature at the time when the return is to take place, you say that is the only purpose it serves, do you?

MR GRACE: No, with respect, your Honour. If one goes to Friedrich one will see that the exceptions have a wider ground than what your Honour postulated. Could I take your Honours to Friedrich v Friedrich [1996] USCA6 311; 78 F 3d 1060 (6th Cir) (1996). At page 1069 in paragraph 15 the court said this:

For all of these reasons, we hold that he district court did not err by holding that "the record in the instant case does not demonstrate by clear and convincing evidence that Thomas will be exposed to a grave risk of harm." Although it is not necessary to resolve the present appeal, we believe that a grave risk of harm for the purposes of the Convention can exist in only two situations. First, there is a grave risk of harm when the return of the child puts the child in imminent danger prior to the resolution of the custody dispute - eg, returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

GAUDRON J: But are we not to assume that it will?

MR GRACE: In my submission, yes.

GAUDRON J: Yes.

GUMMOW J: Why do you embrace Friedrich?

MR GRACE: To outline what the parameters for the exceptions - - -

GUMMOW J: You reject the parameters as to incompetence of the foreign court. You have to assume it is competent, ready, willing and able.

MR GRACE: We do not reject those parameters because we say that the consistency - - -

GUMMOW J: I thought you said it was a postulate of the Convention that the courts did have this good character in the other place.

MR GRACE: Yes.

GUMMOW J: This case seems to assume the contrary.

GAUDRON J: Or allows for proof to the contrary.

MR GRACE: Perhaps we are at cross-purposes. I was seeking to establish what the parameters are that have been established in other jurisdictions. In Friedrich v Friedrich there are narrow parameters.

GAUDRON J: What do you say they are under regulation 16(3)(b)?

MR GRACE: We would argue for a consistent approach to that adopted in Friedrich and in the English cases that have been referred to.

GUMMOW J: What do you mean by "consistent approach" apart from a slogan?

MR GRACE: Could I take your Honours to the more recent decision, the 2001 decision, of the United States Court of Appeals for the Second Circuit, a decision delivered on 4 January 2001 in the case of Blondin v Dubois [2001] USCA2 9; 238 F 3d 153 and also at US App LEXIS 77.

GLEESON CJ: I am sorry, I have been given a 1998 - - -

MR GRACE: No, there is a subsequent appeal. This matter has gone back and forwards in the appeal system. There was a retrial, as I understand it. On page 6 of the report there is a footnote to the explanatory report of Perez-Vera, which have been provided to your Honours, the Explanatory Report: Hague Conference on Private International Law. On page 7 at about point 3 in the left-hand column the court says this, after quoting from a United States Department of State legal analysis:

In other words, at one end of the spectrum are those situations where repatriation might cause inconvenience or hardship, eliminate certain educational or economic opportunities or not comport with the child's preferences; at the other end of the spectrum are those situations in which the child faces a real risk of being hurt, physically or psychologically, as a result of repatriation. The former do not constitute a grave risk of harm under Article 13(b); the latter do.

GAUDRON J: What is meant by "repatriation"?

MR GRACE: Return to the country of habitual residence.

GAUDRON J: Long term or short term?

MR GRACE: Well, in our submission, short term, but in this case it - - -

GAUDRON J: Is there anything in the judgment to support that?

MR GRACE: No, there is not, but in this case it did not matter because what the court found - - -

GAUDRON J: It does not actually help us to know what matters and does not matter in the US Appeals Courts. We need to know what you say are the parameters of regulation 16(3)(b) and why.

MR GRACE: Well, we submit that one is talking about an intermediate position until a court in the habitual residence country has determined the issue of custody unless there is material before the court that that court in the country of habitual residence would not be in a position to give the type of protection that the child requires or the type of needs the child requires.

GLEESON CJ: Could I ask about note 11 on page 7 of this report. Is that this court saying it rejected the extremely narrow interpretation in Friedrich?

MR GRACE: No, it is talking about the court at first instance in Blondin rejecting what it describes as:

the Sixth Circuit's "extremely narrow" interpretation of Article 13(b) in Friedrich - - -

GLEESON CJ: And they go onto say:

The District Court seem to have misunderstood our statement - - -

MR GRACE: Yes. It is explained on page 8, your Honour, at about point 5 with the commencement of the sentence "Although":

Although the wording in Fredrich might seem somewhat narrow, we believe the facts in the case at bar fall within the second standard set forth in that opinion (noting that grave risk of harm exists "in cases of serious abuse or neglect or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection") -

and that was the case in Blondin, where it was proved by evidence that - and this appears in the second column on page 7 at about point 4 of the page:

The District Court also found, with respect to this harm, that the authorities in France--for reasons entirely beyond their control--cannot provide the children with the necessary protection.

So that was established - - -

GAUDRON J: In what respect?

MR GRACE: They were not able to protect the children - - -

GAUDRON J: Against what?

MR GRACE: Of ensuring that a return to France would not trigger a recurrence of traumatic stress disorder in the children.

GAUDRON J: Well that looks as though they are looking to the long-term situation rather than, what I have called, the short-term situation.

MR GRACE: Only in that instance.

GAUDRON J: Well why do you distinguish? The word is "return"; there does not seem to be any basis for that distinction in the words of the regulation.

MR GRACE: Well, in our submission, must be qualified by the circumstances of the case before the court. Now, certainly, if there was no court of competent jurisdiction in a Convention country to deal with the issues of custody, then that would be a matter properly to be taken into account under 16(3)(b).

GLEESON CJ: Mr Grace, I am not doubting the correctness of this, I just have not checked the regulations with sufficient care, but all the statements about this, and, for that matter, all the arguments that we have heard so far, have assumed, and perhaps correctly assumed, that this is going on in a litigious context. I mean by that, everybody seems to assume that following return there will very shortly be some kind of curial consideration of the position of the child. Now, I am just wondering why that assumption is made? It seems to assume that we are always dealing with extremely law-abiding citizens here. Is that assumption made because this process will only be put in motion by some person who has solicited the assistance of a body corresponding to the Central Authority in some other country? Why does everybody assume that return will be followed shortly by court proceedings?

MR GRACE: Only based upon the undertakings given, in this case, by the husband, by the father, that he will seek to make the necessary declaration under Greek law that he will abide by the undertakings. As I understand it, that declaration has been made. There is an equivalent Central Authority in Greece, of course, that one would expect to take up the obligations that the Australian Central Authority undertook in Australia to pursue the application before the Greek court. In the circumstances of this case, of course, there is the situation where the mother has the custody of the child; it is not the circumstance where the father has.

GLEESON CJ: It just may have a bearing on the meaning of regulation 16(3)(c), if there were room for it to operate in a case in which there was no certainty or even likelihood that the matter would come before a court once it went back to the country of habitual residence. In other words, what I am suggesting to you is that the expression "return" may not necessarily be one that forces you to choose between a short-term and a long-term view, but it may be that where there is a likelihood, or even near certainty, that following the arrival of a child in a country of habitual residence the matter will be taken up by the court system, then you would take one approach to risk. Whereas if, in another case, there was a likelihood or a near certainty that the parent to whom the child was sent back would never go anywhere near a court, you might take a different approach to the question of risk. Is that a possible approach?

MR GRACE: We would concede that is, your Honour.

HAYNE J: Then is it not necessary to have regard to the breadth of the definition of "right of custody" contained in regulation 4(3) which extends beyond rights of custody arising by reason of judicial decision, to rights of custody by administrative decision or by operation of law?

GUMMOW J: Yes, thereby reflecting, if I might add, Article 3 of the Convention.

HAYNE J: Thus, a person who has a right of custody by operation of law of the place of habitual residence may simply assert that right upon return of the child and may have no need or occasion to go anywhere near a court.

MR GRACE: Well, one can understand how that practicality may thwart the operation of the Convention.

GUMMOW J: No, no, no, but does it not throw light on the construction of the regulations in what "return" means? You have been saying "return" means return to permit the resolution of a pending judicial proceeding, and that is just not right.

MR GRACE: Certainly in the circumstances of this case, we would submit - - -

GUMMOW J: It may be some cases, but it will not be all cases and we do not construe the regulations by looking at this case - - -

KIRBY J: I suppose it could perhaps be said that where the relationship has got to such a severe breakdown that one parent has left the country with the child, that the likelihood of some non-curial resolution of ultimate custody is pretty slim.

MR GRACE: Yes.

HAYNE J: That assumes that the defaulting parent, the abducting parent, can return to a court in the country of residence and move that court, for example, in circumstances where that court has already finally determined the issue. That removing parent may well be anathema in that court.

GUMMOW J: And it need not be a court, it may be an administrative procedure exclusively in some of these countries, as the Convention and regulations recognise.

MR GRACE: Yes. That probably reflects the need to - - -

GUMMOW J: We must not look at foreign legal systems just through our own spectacles when we are construing these conventions.

MR GRACE: It reflects a need, in our submission, perhaps to take each case in its own particular circumstances and consider what the factual circumstances concerning the curial system in the relevant country are. Now, in this case, we have orders made by the Greek courts. They are replicated in the appeal book. We have extracts from the articles of the Greek law dealing with the welfare jurisdiction concerning children and family law generally; and there is nothing to suggest in this case - and it has certainly not been suggested by the appellant - that the Greek court would not be competent to exercise jurisdiction in the circumstances of this case.

So, whatever may be the meaning of "return at large", the return contemplated in this case, we would submit, would be the return of a temporary nature until a Greek - - -

GUMMOW J: Contemplated by what?

MR GRACE: The regulations. Return, in this case, we would submit, is one of a temporary nature until determination by the Greek court. Now, could I take your Honours to the more recent decision of the High Court in DJL v Central Authority [2000] HCA 17; (2000) 74 ALJR 706 and in respect of the passage that I read to your Honours at pages 648 and 649 of the decision in De L a little bit earlier this afternoon, could I take your Honours to paragraph 131 of the judgment in the judgment of his Honour Justice Kirby where his Honour said:

As this Court explained in De L, after a wrongful removal to or retention of a child in another country, the Convention and the Regulations have as their principal object that that country's courts should order the return of the child forthwith, without entering, as such, into the merits of any custody dispute between the parties. The exceptions to such an order are to be understood and implemented in the context of that vital policy. Once returned, the parties may contest custody in the courts of the jurisdiction concerned. By the hypothesis of the Convention, that is the place in which such disputes ought to have been resolved without unilateral and unlawful action on the part of one parent. It may be accepted that great difficulties will be faced in practice by some absconding parents (especially women) who may be at a severe disadvantage - physical, emotional and financial - in presenting their case in a foreign court. But this is the policy of the Convention and of the Act. It is designed, amongst other things, to discourage the disruption to the lives of children which international child abduction typically causes.

And in the same case, at paragraph 191 your Honour Justice Callinan said this:

I do not overlook that this is a case in which the future of a child is involved. However, the international arrangements and their adoption by this country provide a, indeed the, code for the way in which the future welfare of a child who has been removed from a subscribing country, is to be determined. In this respect the conduct of the appellant is, in a sense, irrelevant. What is relevant of course is that the arrangements under the Convention are not one-sided. They contemplate and require reciprocity, a matter of obvious importance when an Australian child is abducted to another subscribing country. In this case in any event if the appellant's foreshadowed application were to be granted it would only further delay the settlement of this child's welfare, which itself may be damaging to her.

So both of those statements of Justice Kirby and Justice Callinan, in our submission, support the resort to the intention behind the subscribing to the Convention and the promulgation of the regulations as being legitimate sources of interpretation of the regulations. Furthermore, if I could take your Honours back to De L, at page 675, point 5, in the judgment of Justice Kirby, again, referring to the use of methods of interpretation seeking to "ascertain what the parties really meant in a Convention, at point 5 your Honour Justice Kirby said this:

This approach is now reflected in the Vienna Convention on the Law of Treaties. Those provisions are regularly applied by Australian courts to guide them in a principled and consistent construction of treaties of local significance. This is done as a matter of law and out of comity to ensure that the interpretation of international treaties by Australian courts will, so far as possible, conform to the approach which will be taken by the courts of other countries in relation to the same treaty.

There was nothing in the judgment of the other members of the Court which took away any of the force of those remarks in - - -

KIRBY J: Has this word "return" in the context been construed in other treaties? You have mentioned the American cases but - - -

MR GRACE: Only in terms of that the return is a return to allow the courts of another country to properly consider the issues of access.

GUMMOW J: That just cannot be right. It is not what the Convention says. It assumes a place of habitual residence, it assumes a removal and requires a return. Now, the removal may or may not have been in violation of an administrative or a judicial order in interlocutory proceedings.

MR GRACE: What your Honour has to say, with respect, seems to run counter to what - - -

GUMMOW J: What I am saying just seems to reflect the terms of the Articles in the Convention which may be other courts in other places have had the same problem I am having at the moment. It has not been argued, looking at the text.

MR GRACE: What your Honour has to say, with respect, seems to run counter to the theme of the judgment in De L.

GLEESON CJ: But take the simple example that was mentioned earlier in discussion. Suppose the abduction occurs after a decision of the highest court in the land of the country of habitual residence in favour of one parent, so all avenues of curial intervention in favour of the abducting parent have been exhausted and at that stage - suppose the mother has won all the way along the line in the courts of the country of habitual residence, and after the litigation is all over and it is ordered irrevocably that the mother will have custody of the child, the father abducts the child and then there is an application to send the child back to the mother. Why, in dealing with that application, do you assume that the court of the country of habitual residence is going to get involved in the matter at all?

MR GRACE: It was not in that circumstance, because the termination has been made finally in the country of habitual residence.

KIRBY J: Except that in every country that I know of, questions of custody and access are open to re-examination in the light of changed circumstances.

MR GRACE: Certainly.

GLEESON CJ: But if the only changed circumstance is an abduction of the child by the loser of the litigation, that is not a very promising basis for a further approach to the court.

MR GRACE: No, it is not. Certainly in that circumstance the return would have a permanency connotation attached to it but in other cases, such as this case at Bar, it would not.

KIRBY J: It is not a wholly shocking idea that a person who exhausts the remedies of the country of habitual residence then grabs a child and takes the child to another country must face the consequence that the child will be returned to the place where the child habitually lives and whose courts have jurisdiction over it and have determined the matter.

MR GRACE: Yes, quite, your Honour.

GLEESON CJ: You may be right about the circumstances of a particular case such as this, but it is a little puzzling that all these judicial pronouncements seem to be made upon an assumption that there is some kind of pending litigation or an assumption that parents arguing about the custody of their children regard the courts as the place at which they will find ultimate salvation.

MR GRACE: But it may simply reflect the fact that the overwhelming majority of cases that come before the courts are where there is some issue at large about custody issues.

GLEESON CJ: That in turn may be related to the matter of practicality I mentioned earlier. That is to say, somebody has to invoke the assistance of a central authority and it may be even as a condition of doing that the central authority will require some kind of undertaking.

MR GRACE: Yes. Other than those matters and the matters contained in my written submissions, that completes my submissions.

GLEESON CJ: Thank you, Mr Grace. Yes, Mr Meldrum.

MR MELDRUM: Very briefly. The case continued at least until 18 November. That was the date on which Dr Diplock gave his evidence on video conferencing. So the mother's case was proceeding on 18 November and the Court will recall that my friend said, quite accurately, that it commenced on 7 October, was heard the 7th and 8th, and then 18 November.

In terms of the Central Authority in Greece playing any role in Greece in a domestic dispute between Greek citizens, we understand, at least in this country and from the Convention itself, central authorities are creatures designed only for the purpose of enforcement of the Convention itself for seeking assistance of a country to which the child has been removed. So that there are two Central Authorities playing roles only pursuant to the Convention and the Convention has nothing to do with how domestically Greece or Australia or anybody else determines custody issues, who plays roles and who plays a part.

So the suggestion that my friend made on his feet that the Greek Central Authority would play a role, we say certainly is not likely to be borne out and certainly there is no evidence of it. The current position in Greece in terms of this child, as disclosed at page 75, is that the father has a custody order. That is in his affidavit and that was made on 27 November 1998, giving him custody and prohibiting the removal of the child.

KIRBY J: Was that after your client had taken the child from Greece?

MR MELDRUM: Yes, although he says it was served on the wife and the wife's parents on or about 28 November. So in terms of what has happened curially in Greece, at the moment he has that order. He has then given an undertaking that until the wife goes back to court, he will not seek to take the child from the wife's control. But, of course, having that order prevents her from taking the child out of Greece, so there may simply be a stalemate, that the child remains in Greece and that there is no further proceeding. There is certainly no basis for making one.

With the greatest respect, we agree entirely with what Justice Gummow has had to say concerning the frequent assumptions by courts that this is in the context of a further case in a court. It is not and it goes further than administrative tribunals. There are in many Code countries, as there is in Australia, certain joint rights of custody given by legislation and, no doubt they are not always joint.

GUMMOW J: That is right; certainly in some Muslim countries, perhaps.

MR MELDRUM: Not always, your Honour. We did not put this on our list of authorities, but on the question addressed by Justice Gaudron in terms of reading these regulations in their ordinary and natural meaning, we have referred the Court to Knight v FP Special Assets Ltd 174 CLR 178 at 205, an authority frequently referred to by this Court. Your Honour had to say this:

It is contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant. Save for a qualification which I shall later mention, a grant of power -

and here it is the power to refuse -

should be construed in accordance with ordinary principles and, thus, the words used should be given their full meaning unless there is something to indicate to the contrary. Powers conferred on a court are powers which must be exercised judicially and in accordance with legal principle. This consideration leads to the qualification to which I earlier referred. The necessity for the power to be exercised judicially tends in favour of the most liberal construction, for it denies the validity of considerations which might limit a grant of power to some different body, including, for example, that the power might be exercised arbitrarily or capriciously or to work oppression or abuse.

Now, there is a power granted by the regulation to the court to decline to send the child back and it will be read in accordance with those principles. Unless there are other matters that occur to any member of the Court, there is nothing further we wish to say.

KIRBY J: Is it not usual to have certain conditions laid down for custody? I see at 220 there is a condition that was imposed by the primary judge in this case that the husband would:

not enforce the custody order made by the Single Member . . . until either that Court or another Court of competent jurisdiction in Greece deals with the issue of the said child's custody - - -

MR MELDRUM: I cannot say whether it is usual, but it is not uncommon.

KIRBY J: No, but it was made in this case.

MR MELDRUM: It was made in this case.

KIRBY J: I think the husband gave the undertaking, which was pre-condition to the making of that order.

MR MELDRUM: And he has also given an undertaking to register that in the Greek courts and to have it - - -

GUMMOW J: How could they - possibly be enforced?

MR MELDRUM: It cannot from here. We cannot supervise that at all.

GUMMOW J: Why should courts accept undertakings they cannot put in force.

MR MELDRUM: There is a very good basis for so putting, your Honour, with respect. Undertakings are ordinarily thought to be of protection to orders that are made when some enforcement proceedings can be taken.

GUMMOW J: Yes, there is a decision of this Court called Thomson Publications v The Trade Practices Commission which says exactly that.

KIRBY J: I suppose the logic of this is that there is just nothing that can be done to facilitate the implementation of the regulations and the Convention. I mean, this order that is made on page 220, I have seen in at least the three cases that I have sat in in these Convention cases.

MR MELDRUM: We do not deny that they are done but when your Honour says nothing can be done to facilitate the orders under the Convention the starting order is they go back and then there are exceptions and we say carving out this sort of middle ground - - -

GAUDRON J: That is the question I asked earlier. I mean, I can see why there might be orders for the purposes of the Convention with respect to providing a plane ticket and so forth and so on, but if it goes to the point that the United States courts have gone where you are seeking to minimise the risk, and it seems to me that is exactly what is inherent in this order, then I wonder where the power comes from.

MR MELDRUM: Well, we would submit there is not. We would adopt what your Honour was suggesting tentatively in the course of argument that cannot be found in this regulation to craft some way of minimising a risk by making those inquiries and having those orders made.

Finally, if it goes back, we would respectfully submit that it ought go back to the original trial judge, that being a more convenient tribunal to determine issues of fact than a Full Court.

HAYNE J: It seemed to me, Mr Meldrum, that a way of dealing with it, though not the way adopted here, is to require of the husband as a condition of the order coming into force, that he demonstrate to the Court that he has given an enforceable undertaking, that is, an undertaking to a Greek court, that would be enforceable at the suit of the wife. If that were done, then you might have achieved the result. As at present advised, it seems to me these undertakings are things written in water.

MR MELDRUM: Given that there was evidence that they would be enforceable in Greece, yes, your Honour, that would be so.

KIRBY J: This would be to read into the regulation and the Convention, at least arguably, an impediment placed in the way of the parent who has suffered the great wrong of having their child taken from the place of habitual residence, which the international community has responded to and which our government has also responded to.

MR MELDRUM: The need to protect the child is preserved by regulation 16 and by the Convention itself and there is the tension of which we spoke. Now, if one belongs to the "you send them all back" theory, then there is no point to regulation 16. Once you have accepted that regulation 16 embodies the precise words of the Convention, we say, with the utmost respect to your Honour, that it must then be given its ordinary meaning and it must take its ordinary role, and the only place for that filter is in this country, and that - - -

KIRBY J: Nobody disputes that, Mr Meldrum. The question is, what is the ordinary meaning of "return" in the context of a Convention that is designed to ensure pretty rapid return in all but the most exceptional case?

MR MELDRUM: It means go back, your Honour, "return" means go back, and that does not mean necessarily for a short period of time or for a long period of time, it means to go back. Unless there are any other matters. If the Court pleases.

GLEESON CJ: Yes, thank you, Mr Meldrum. Yes, Mr Jackson.

MR JACKSON: Your Honours, may I deal first with the point that was raised by your Honours in argument with our learned friends, and that is this: that underlying the arguments on behalf of the respondents and, in a sense, the views in the Full Court, in our submission, is an assumption not justified by the words of the regulation, the assumption being that the return contemplated by regulation 16(3)(b) is return, in some fashion, to a court, as it were. But, your Honours, regulation 16(3)(b) is not speaking about the courts of other countries, it does not use the words at all. What it is speaking about is return to a country where some other person has rights of custody as defined in regulation 4. Your Honours, that is what the regulations are about and it is also what the Convention is about.

Your Honours, to treat regulation 16(3)(b) as if it contained within it references to the courts of other countries, is to add something to its words and then to construe the provision as being somehow limited temporarily by the words which have been added to it.

Now, your Honours, certainly it will often happen that the courts of other countries may deal with the rights of custody in relation to the child, but they may not. A person may be prepared to rely on the existing rights they have and the other person or one person may be unable to afford to participate in the curial procedures or simply regard the task as hopeless and, as appears, for example, from Article 13, they may not be courts at all, because the Convention speaks of administrative authorities as well as courts. Now, your Honours, the presence of an effective court system may militate against the gravity of the risk perhaps and, in some cases, may even remove it, but it is a factor not the basis for the relevant test.

Your Honours, could I then move to deal more specifically with the structure of regulation 16 and if I could indicate the course that I would propose is to rely upon what we have set out in our written submissions and there are a number of matters with which I wish to deal particularly, and if I could do so in a somewhat perhaps staccato form. The first matter to which I wish to go was to deal with the structure of the regulations and the way in which they work in connection with applications of the present kind.

Your Honours will see that the starting point is regulation 14, which in subregulation (1) gives the responsible Central Authority the ability to apply to a court for orders of the nature referred to in that provision and, in particular, in (a):

an order for the return of the child to the country in which he or she habitually resided -

Now, your Honours, that comes about in circumstances where regulation 13(1) applies and that is where:

the Commonwealth Central Authority:

(a) receives an application in relation to a child who has been . . . retained in, Australia;

and then the Authority then, your Honours will see:

must take action under the convention to secure the return of the child to the country in which he or she habitually resided - - -

GUMMOW J: Now your case is a case of retained in Australia, is it not?

MR JACKSON: Yes, we are in the retention provision and your Honours will see the retention provision is referred to in regulation 3, the definition of "removal" and "retention", and the relevant provision is 3(2) in this case. Your Honours will see, in effect, the condition of operation of regulation 3(2) is that the retention had been:

in breach of the rights of custody of a person, an institution or another body in relation to the -

child, and your Honours will then see the definition of "rights of custody" in regulation 4. The position which obtains, of course, is that if an order is made pursuant to regulation 16, to which I will come in a moment, what it is is an order that is an order for the return of the child to the place in which those rights of custody exist.

KIRBY J: You do not dispute that this is a case of retention?

MR JACKSON: No, your Honour, no.

KIRBY J: I was just a little curious about some of the facts. The mother came back with the child for a holiday, I think, is that - - -

MR JACKSON: I am sorry. I just did not hear what your Honour - - -

KIRBY J: The mother came back with the child for a holiday, and that was on an assumption she would return with the child to Mexico.

MR JACKSON: Yes, your Honour. There is some doubt about the validity, perhaps, of the assumption, the difference of view on either side.

KIRBY J: That is why I asked the question because I could see a threshold issue if you took one view, but I assume that that has not been litigated or contested.

MR JACKSON: No, your Honour, it has been purely a regulation - purely for relevant purposes, I mean for the purposes of this Court, a regulation 16(3)(b) case.

Your Honours will then see, if one goes to regulation 15(1), that the court has power to make an order of a kind referred to in regulation 14. It is at that point that one comes to regulation 16, and your Honours will see in regulation 16(1) that there is an obligation on the court to make an order for the return of a child - this is regulation 16(1)(a) - if, in effect, the application is filed within a year. But the power so to do or the obligation so to act, I should say, is one which is, as your Honours will see from the opening words of regulation 16(1), expressed to be subject to subregulations (2) and (3).

Your Honours, subregulation (2) deals with particular circumstances in which the court must not make an order, and then one sees in subregulation (3) circumstances in which the court has a discretion whether to make an order or not and, of course, the discretion does not arise unless a fact set out in regulation 16(3)(b) is established. Your Honours will see there is a burden in that regard provided for by the opening words of regulation 16(3). Once that is established, once one of those matters is established, there then is a discretion.

KIRBY J: You accept that your client carried the onus of proof?

MR JACKSON: Your Honour, we accept that she carried the burden of establishing one or more of the matters set out in subregulation (b).

KIRBY J: You do not rely on (d)?

MR JACKSON: No, your Honour. The case was not ever conducted on the basis of paragraph (d); simply paragraph (b). Now, could I just make clear my answer to your Honour because I put it in a relatively exact way, and what I mean by it is that the way in which regulation 16(3)(b) is expressed is such that the burden of establishing that the discretion exists lies on us. However, once the discretion has arisen, then it may well be in the end it is for us to show that the child should not be returned, but it is by no means clear, we would submit with respect, that that is so. In view of the nature of the proceedings - because your Honours will see the opening words of 16(3), "If a person opposing return establishes that", so the burden there is clear, but having done that, there is then a discretion. Now, in the ordinary course of events, no doubt the person seeking the exercise of the discretion would have to carry the day.

GLEESON CJ: Does your case raise a question as to the meaning of the word "expose" and the relationship between the returning and the exposing?

MR JACKSON: In a sense it does, your Honour.

GLEESON CJ: As I understand it, on the facts of your case, the return of the child may be the occasion of conduct on the part of your client that may damage the child psychologically but that may give rise to a question whether in those circumstances it is accurate to say that it is the return of the child that exposes the child to harm.

MR JACKSON: Your Honour, it is only if one adopts a very narrow view, in our submission, of the concepts that are contained within paragraph (b) that one would arrive at the view that the return - and, your Honours, it is a little difficult to identify precisely what one would mean by "return" in that context, and that is a matter to which we refer in our written submissions, what the return does because what one is speaking of is concepts that return to a country of previous residence:

would expose the child to physical harm or psychological harm or otherwise place the child in an intolerable situation.

Now, it would be unusual if the mere crossing of the border or the entry into the geographical limits of the country had that effect. So that inevitably, we would submit, the terms of regulation 16(3)(b) are such that they are speaking of the situation in which the child is likely to find itself upon arrival in that country. Your Honours, that must be something which - - -

GAUDRON J: Upon or following?

MR JACKSON: Well, your Honour, I was using "upon" in the sense of following. Following, I suppose, it is correct to say, your Honour, yes.

KIRBY J: Is it "upon" or "following"? Have you retreated to "following" now?

GAUDRON J: Because I think there is a difference, in this context.

MR JACKSON: Your Honour, I, with respect, did not retreat to it. It was better put by her Honour and I adopt it. "Following" is the - - -

KIRBY J: It sounds like a retreat to me.

MR JACKSON: Your Honour, when I was in the army we used the expression "withdrawal".

KIRBY J: They are so rare on your part, Mr Jackson, that when they come we watch.

CALLINAN J: Mr Jackson, accepting that your client has an onus or a burden under subregulation (3) you do not consider that question, though, without having regard to the powers and duties of the Central Authority under regulation 5, you would weight up the evidence. Take the previous case, on one view, it may be that there was only slight evidence adduced by the mother that may well have been the best that she could do, whereas one might have had an expectation that the Central Authority could have easily displaced that if it were displaceable. I mean, that is one possible view of that case. One can infer that, perhaps, from regulation 5 that the Central Authority should be out there finding out these things and adducing evidence both as a matter of power and obligation.

MR JACKSON: And, your Honour, if the Central Authority wished it had the ability to invite the court to give a direction under regulation 26 and regulation 26 allows the court to direct:

a family and child counsellor or welfare officer to report to the court on such matters that are relevant to the proceedings -

These are proceedings under the regulations. What I was seeking to make about it is that these are not cases where the court is powerless to find out information but it is a case where, assuming the existence of the burden on the person resisting removal, that person can only bring before the court the evidence that in effect is available to it.

If one takes this case without going at the moment to so much of the facts, your Honours will see that the evidence that was adduced was evidence from the present applicant herself, from her mother, from someone with whom she worked and who had experience in the area, and a psychiatrist. Your Honours will see from the judge's reasons at first instance that there was no cross-examination about any of that, even though cross-examination was possible. The invitation was declined. Your Honours will also see that any desire to have a further medical examination of the applicant was not sought. So that one can speak of - - -

KIRBY J: Assuming that the theory is correct that the Central Authority should have done something in the earlier case, they can hardly get into your client's head. They cannot say what your client thinks or what she might do or will do That is just something that your client has to establish. It is not something that the Central Authority can go round getting evidence about.

MR JACKSON: Your Honour, may I say two things about that and deal with two aspects of it. One is what is in her head in a sense, and the other is other evidence. In relation to the first of those matters, there is no doubt at all that there could have been cross-examination of her and perhaps of other witnesses to seek to demonstrate either that the belief that she expressed that she held was one that was not truly held or to demonstrate that it did not have the characteristics that she said it had.

If I could just interpolate, there are many cases one sees, for example, in cases of personal injuries where particular conditions of a psychiatric nature are said to have followed upon various forms of trauma, but one sees in relation to those that there is significant cross-examination designed to show either that there is a fabrication of the symptom or that there has been some magnification of it.

As to the second matter, there was no reason at all why the judge could not have taken an adverse view of the case of the applicant if the applicant had declined to be examined by a psychiatrist, for example, who was selected by the respondent. It is correct to say these are matters in the head, but I think there is the old adage that the state of a person's mind is as much a matter as the state of his digestion, and these are things that can be examined.

KIRBY J: Yes, but if the Central Authority started tackling this and cross-examining your client, I can see that the Central Authority would be criticised for an insensitive approach in a sensitive question. Your client had the burden, your client said what would happen. The Central Authority might have taken the view, as Lord Justice Butler-Sloss said, that you just cannot have people saying that of their own action and by their own independent conduct they will take themselves out of Australia's regulations and an international convention.

MR JACKSON: Your Honour, Lord Justice Butler-Sloss's coach and four was something from which she retreated perhaps a little in the more recent decisions when - not the same issue but rather similar issues came to play. Could I come to that in just a moment. What I was going to say was this, that it is really, in our submission, entirely consonant with the Convention for there to be cases of this kind. I was going to take your Honours to Article 13. If I could invite your Honours to go first to Article 1, it refers to ensuring that rights of custody under the law are effectively respected in the contracting States. The Convention says nothing about respected by the courts. It includes them of course, but it speaks of the laws of the other States.

The way in which it does it then effectuates it, is by going to Chapter III, commencing at Article 8 dealing with return of children. The operative parts of the Convention dealing with the return of children are to be found in Articles 12 and 13. If one goes to Article 12, your Honours will see in the first paragraph of it that it says, really, what regulation 16(1) says and that is that it is mandatory for the judicial or administrative authority of the contracting State to order return. However, one then comes to Article 13 and your Honours will see, again, the concept reflected by the opening words of regulation 16(1), but it commences with the words "Notwithstanding the provisions of the preceding Article". Your Honours, I was referring to the opening words of Article 13 of the Convention. So that both of them recognise - - -

KIRBY J: Do you accept that we should read and interpret any ambiguities in the regulation by reference to the international Convention, otherwise, why are you taking us to it?

MR JACKSON: I am sorry, your Honour, my hesitation in answering that is because I was going to take your Honours to the extent to which the Convention does seem to be implemented. We do not have a particular difficulty in adopting as a general proposition the view that the regulations are to be interpreted in a sense by reference to the Convention. But to say that produces no different result in the particular case because regulation 16 is, in relevant respects, in the same terms as Article 13.

I was going to say, your Honours, a provision to which the Court I do not think has yet been referred is regulation 2(2) which says that:

The purpose of these Regulations is to give effect to section 111B -

and section 111B, in effect, says that the regulations may be made to give effect to the Convention. So, your Honours, I simply mention that.

Now, your Honours I mentioned a moment ago a later decision by the Court of Appeal in which Lord Justice Butler-Sloss was involved and that is Re M [1997] 2 FLR 690, and there are two passages to which I first wish to take the Court. The first is at the bottom of page 694, last paragraph on the page. Your Honours will see the passage in her reasons:

It is equally important to remember that -

and she is dealing with the Convention and recognising that Article 13 is to be given force. Then, your Honours, having set out the terms of the Article, on top of page 695 - - -

KIRBY J: You passed lightly over her expression of the general nature of the Convention as "Draconian", as requiring "summary return". That is undoubtedly so, is it not?

MR JACKSON: Well, if your Honour sees the last words of that sentence, that is referring to the "summary return under Art 12". Your Honours will then see:

That specific consideration of welfare is only to be found in Art 13 -

which she then sets out at the top of the next page. When one comes to C on page 695, then says:

There are two stages to a consideration by the court of Art 13. It is first necessary to show a prima facie case and secondly, if so shown, the court has to consider in the exercise of its discretion whether to send the child back. Because of the strict requirements, few cases in England have crossed the Art 13 threshold -

Now, your Honours, that seems to be giving a strict interpretation, or a limited interpretation perhaps, to the terms of the paragraphs of Article 13 and it is clearly shown from decisions of this Court that it is only in exceptional circumstances that a court should not order a summary return. She went on to say:

There is nothing therefore which is incompatible with our clear obligation to exercise comity with the other Member States in the consideration by Wilson J and by ourselves of the possibility that this case may come within Art 13. The Convention specifically provides for that eventuality.

Then one goes to page 699, and your Honours will see, commencing in the first new paragraph on the page:

I turn now to the exercise of discretion. Having concluded that the judge was right on the issues of grave risk of psychological harm and on the wishes of the children, I find it difficult to see how this court can fault his exercise of discretion.

Your Honours will see that in the remainder of that paragraph she deals with the conduct of the mother and refers to the fact, just after C:

The judge was very critical of her -

and so on. She refers then to the fact that:

The behaviour of the offending parent is of crucial importance and the reliance by a mother on grave risk of psychological harm created by her, if accepted and relied on by the court, would drive a coach and four horses through the Convention. (see Re C -

and then, your Honours, that paragraph goes on, and then E:

The conduct of the abducting parent is, as I have already said, crucial and in most cases determinative. It cannot however exclude the rare case where the court has to look past that conduct to the manifest needs of the child concerned. Article 13 gives the requested State this limited but none the less important opportunity to look at the specific welfare of these children at the time when the application for summary return is made. This is such a rare case. The grave risk to these children of psychological harm . . . is of greater consequence than the importance of the court marking its disapproval of the behaviour of the mother by refusing to allow her to benefit from it.

Your Honours will see, also Lord Justice Pill at page 700F in the first paragraph of his reasons referred to the same division of responsibility under the terms of Article 13.

Your Honours, in the same case, at page 697, there is a reference beside D to what had been said in an earlier decision in the Court of Appeal Re A, to which I will take your Honours in a moment, that there is a recognition that one looks at the actual situation on return, in some cases that may be to look into the distance to some degree; in others, it may require simply to look at what is going to happen really upon return. Your Honours will see that there:

As Nourse LJ wisely reminded us in Re A . . . that in considering on the return to the country of the child's habitual residence whether remote as opposed to proximate practical consequences were to be considered he would expect it to be answered by an application of probabilities and common sense.

Now, your Honours, that reference is a reference to Re A [1988] 1 FLR 365. It is at pages 372 and the relevant parts - - -

KIRBY J: Could I just ask you on Re M, do I take it that the disqualifying conduct on the part of the father in that case was something that he was found to have done was incompatible with the best interests of the children? It was not something that the mother was threatening to do on her own part. I just could not quite find why, in Re M, the father being the innocent person, the children being habitually resident in Greece, the children having been wrongfully retained in England, the father's application failed but - - -

HAYNE J: It is at the bottom of 695, top of 696, is it not, that the children had an extremely close attachment to their mother and simply reacted adversely to the return to their father and the father's parents.

MR JACKSON: Yes, your Honour, I think that is so. My hesitation is that it may be dealt with rather more fully in the primary judge's reasons, I think, but what your Honour says is, as I recall it, correct.

KIRBY J: But it is different from this case in that it is not the action of the mother which is causing the children to wish to stay with the mother in case she might commit suicide or do something else herself.

MR JACKSON: Your Honour, undoubtedly that is so, but, of course, the circumstances of these cases will vary so much. Undoubtedly one can draw distinctions between one case and another but the result - - -

KIRBY J: You will no doubt come to it but you must understand that the concern about this sort of case is that, if in every case a mother could say or a father could say, "I'm going to kill myself", or "I can't live without the children", then you would drive a coach and four and a few camels and lots of buses through the whole purpose of the Convention and the regulations.

MR JACKSON: Your Honour, may I say two things in response to that. One, speaking generally and rather more specifically. Speaking generally, your Honours, there is only one other case which we have been able to find since the Convention came into force in any country in which there has been a similar basis relied upon and that is a New Zealand decision, an unreported decision of a judge in New Zealand last year. I will give your Honours the reference to it in a moment.

KIRBY J: That will not be the case if your client wins this appeal. Every parent will make that declaration and many will mean it.

MR JACKSON: Your Honour, the second thing I was going to say was this. If one looks at the evidence in this case, the evidence was specifically from the psychiatrist that this was not something which was the result of a desire of this kind. It was something brought about by a psychiatric condition. He dealt specifically with the issue and dealt with it.

Now, your Honours, no doubt if this succeeds perhaps there will be people who adopt it but one is, after all, talking about matters that are being heard by courts and the courts usually are pretty capable of dealing with the "floodgates" results that are sometimes said to follow.

Your Honours, the passage to which I was going to refer in Re A commences at page 372H and goes through to page 373 about letter E and the particular passage that was picked up in the later case is at 373 about letter C.

MR JACKSON: Now, your Honours, that it is appropriate to look at the circumstances which might obtain upon return or following return, perhaps I should say, a similar view was taken also in MacMillan v MacMillan in Scotland 1989 SLT 351 at page 354 in the right column about letters I to K.

GUMMOW J: I do not think we have been given that.

MR JACKSON: I am sorry. I will be ensure your Honours get copies of it.

GUMMOW J: There is also a decision of Mr Justice Ewbank in a case called Re G [1995] 1 FLR 64. That is a case in which the complaint was that the mother was likely to become psychotic if she had to go back to Texas from the United Kingdom, and the children would suffer as a consequence, and 13(1)(b) of the Convention was applied in her favour.

MR JACKSON: Yes, your Honour. That case is one which is referred to in the summary that is contained in a document we have given your Honours. That is chapter 9 of an Oxford monograph, The Hague Convention on International Child Abduction, and chapter 9 deals with article 13(1)(b). There are some passages of it to which I can take your Honours. If I may say so, the chapter is illuminating upon the history of the provision and also upon the way in which the issue has been dealt with in various jurisdictions.

Could I give your Honours three particular references to it. Page 140 your Honours will see in the last paragraph of the principal text after a reference to Boggs in Friedrich, says:

Having acknowledged this distinction it remains to be decided what level of investigation should be permitted or undertaken by the judicial or administrative authority seized of the case. While it is essential that proceedings do not become immersed in factual argument and counter-argument, neither should Article 13(1)(b) be dealt with in an overly cursory manner and so be deprived of any effect.

Your Honours will then see the reference to the United States Court of Appeals for the Eighth Circuit decision in Nunez-Escudero, and, in particular the passage in the second line:

a Court -

then go down to the second last line:

must be empowered to evaluate the surroundings to which the child is to be sent and the basic qualities of those located there.

There is a reference, your Honours, in footnote 45 to MacMillan v Macmillan to which I was referring a moment ago.

Then if I could go to page 146. Your Honours will see at the top of the page a reference to the observation of Lord Justice Nourse in Re A to which I referred earlier:

"probabilities and common sense" as to what extent remove consequences could be considered.

Then, at page 147, the - - -

KIRBY J: Coach and four drive through 146.

MR JACKSON: Yes, your Honour. That is the earlier. That is Re C and the coach has slowed down a bit or goes by a slightly less direct route in the later case of Re M. Perhaps greater knowledge and familiarity with the circumstances muted the enthusiasm of the view first expressed.

GUMMOW J: Better horses.

MR JACKSON: I am sorry. Your Honours, I was going to say, one sees then at the bottom of page 146 the reference to Re M and the clawback, as little as it were. Then, if one continues in the same footnote on to page 147, your Honours will see the reference to Thomson v Thomson and Justice La Forest's observation:

`From a child centred perspective, harm is harm.'

Your Honours will also see a reference to what is described as the questionable position taken in Australia where it is taken:

that the grave risk is confined to the harm arising from the return to the State of habitual residence -

and the reference to the case to which my learned friend referred this morning.

KIRBY J: Is that because there is some disparity between our regulation and use of grave risk and the Convention itself or not?

MR JACKSON: No, your Honour. Now, could I then refer your Honours to our written submissions and your Honours will see then - if I can take your Honours to those - commencing at page 7 in paragraphs 29 through to 34 we have set out in our submission what the position is as to the construction of the regulations and we then would seek to go to paragraphs 40 to 42 dealing with the view taken by the Full Court of the terms of regulation 16(3)(b). Your Honours will see that the relevant parts of the decision of the Full Court appear in their reasons commencing at paragraph 62 on page 46 and going through to paragraph 68 on page 48.

What we would seek to say is in - your Honours, I will come back to that in a little more detail in a moment - that the approach taken by the Full Court does not, in our submission, give adequate recognition to the fact that regulation 16(3)(b) is not speaking in the abstract but it is looking to the circumstances of a particular child and asking whether in respect of that child the return to the country of prior habitual residence would have a consequence which is contemplated by regulation 16(3)(b) and we would submit that the very nature of the inquiry inevitably involves consideration of the circumstances in which the child will find itself on return.

Could I refer also, your Honours, to paragraph 41 and in particular to the fact that whilst it may be perfectly proper to take into account the fact that there is a court system which will operate in a particular country, that is not the end of the inquiry.

Now, your Honours, the approach taken - if I could then go in a little more detail - in this case was, first of all by the primary judge - by the primary judge was that it was very clear that he was conscious of the elements of regulation 16(3)(b). Could I take your Honours to page 17 of the application book, your Honours will see at page 17 in paragraph 91, through to page 19 and paragraph 100, he first of all set out the legal principles and, your Honours, in our submission, there could not be any suggestion that he had done so in any heterodox way - - -

GUMMOW J: Yes, I am just wondering, Mr Jackson, where do you find the crucial statement by the Full Court of where the primary judge was wrong?

MR JACKSON: Your Honour, one comes in the end to paragraph 68, page 48. What the Full Court did was not to say that the exercise of discretion was bad, but that the condition for the existence of the discretion had not been satisfied, the judge had erred.

GUMMOW J: Stage 1 or Lord Justice Butler-Sloss' alteration.

MR JACKSON: Yes, your Honour, I - - -

GAUDRON J: They say "Accordingly". You have to go back to 67, do you not, to identify the error?

MR JACKSON: Your Honour, it is a double one, if I can put it that way.

GAUDRON J: Yes.

MR JACKSON: The first is in paragraph 62, where they say:

The grave risk to which Regulation 16(3)(b) is directed relates to the return of the child in this instance to Mexico not to the father.

Now, your Honours, if one cut out the last four words of that, "not to the father", one could not object to the proposition at all. But, your Honours, it is apparent, in our submission, that when one looks at paragraphs 62 and following, that the first error, in our submission, was that the court considered it limited itself too much in its consideration of relevant matters. The second thing, your Honours, that we would seek to attack is that, we would submit, it was just incorrect to say what the court said in paragraph 67, particularly in the last paragraph that:

there was no evidence before the trial Judge from which he could conclude that the mother would be unable to "contest a case in the Mexican Family Law jurisdiction".

I will come to that a little later, if I may.

Your Honours, could I go back to the primary Judge's reasons and your Honours will see at page 17 that he set out the principles. Then, your Honours, he resolved the factual issue arising from regulation 16(3)(b) in favour of the mother. Your Honours will see that set out in paragraph 96 at page 18. Then, could I pause to say, your Honours, that he found specifically in paragraph 95 on page 18 that there was "a genuine medical condition of the mother", that is line 5 on page 18 and it said it was not a case of creating a psychological situation and then seeking to rely on it. Then, your Honours, he proceeded to exercise the discretion in paragraphs 97 to 99 and, your Honours, it is perfectly clear, in our submission, that he treated the two issues as separate ones.

Now, your Honours, if one looks at what the primary judge did, we would submit there is no error in his approach on either aspect of it. If I could go then to the Full Court. I have taken your Honours to the relevant paragraphs of it and the ultimate decision was what appears at paragraph 68 in the Full Court's reasons at page 48. Now, your Honours, the judge had actually found - - -

GUMMOW J: It says that "it was not open to the trial Judge to find". Does that mean there was no evidence that could be accepted?

MR JACKSON: Your Honour, I do not know the Full Court was really seeking to say quite that although, of course, the immediate sentence before in the preceding paragraph is a "no evidence" point.

GUMMOW J: It looks as if they are looking at a jury verdict.

MR JACKSON: Yes.

HAYNE J: And what is it do you say we should understand them to be saying was not open? What is the step in that?

MR JACKSON: The step they seem to be saying that it was not open for the judge to take was that the "risk of suicide" was "such as to create a grave risk of psychological harm" to the child because, your Honours, it would seem from paragraphs 62 through to 67, the judge had applied the wrong test, the wrong test being that referred to in the first sentence of paragraph 62, because it was said what he had done was looked not at the return to Mexico but at the return to the father.

Now, your Honours, in our submission, the primary judge did not say that and if one goes back to what the primary judge said, it appears at page 16 where what he accepted - and I am referring to paragraph 87 which contains a paraphrase of parts of Dr Waters' report. But I wanted to refer your Honours to two parts. The first is subparagraph (f) about line 11 on page 16. He there said were she "to be handed over to the father, it is my opinion" et cetera, but he also went on to say what appears in paragraph (h). I will take your Honours to the actual passage of evidence in just a moment.

KIRBY J: Where was that reference to "handed over to the father"?

MR JACKSON: The first one is paragraph (f), about line 11 on page 16. The second one, your Honours, was what is in paragraph (h) on the same page:

There is a high risk that the mother may attempt suicide prior to a final residence and contact hearing in Mexico "if she has to hand M to the father for the purposes of contact and she forms the view that the father is not going to return M, or she is unable to contest a case in the Mexican Family Law jurisdiction."

Now, your Honours, the actual evidence upon which that based - your Honours can see in a document our learned friends have prepared called "Bundle of Documents" - it is at page 83. It is the third paragraph on that page under the heading "Opinion" at the top of the page and your Honours will see that in the sixth line the doctor says:

On the other hand, were M to be handed over to the father, it is my opinion -

et cetera, and then three lines further down:

There is also a risk that Ms B may attempt suicide prior to a final residence and contact hearing . . . or she is unable to contest a case in the Mexican Family Law jurisdiction. In my view, this risk is high.

HAYNE J: Then are we to understand the conclusion of the Full Court as being that there was no relevant risk of self-harm? Are we to understand it as being there was no relevant risk of self-harm that would have an effect on the child? How do you say we are to understand 68 in its context?

MR JACKSON: Your Honour, what it seems to be saying is that there may have been a risk of psychological harm to the child but the risk was not brought about by the event contemplated by regulation 16(3)(b). It perhaps understates the Full Court's view, and I do not mean to demean it by saying it is geographical, but it does have a kind of geographical aspect to it, that he return the child to Mexico. But to return a child to somewhere is not just to push them across the border and say "Make your own way".

GUMMOW J: No, it seems to assume that return is spent on arrival.

MR JACKSON: Yes, your Honour, but return is to a nation, to a place that has people, institutions, relatives, people one likes, people who do not like one, all sorts of things, but the return contemplated - and this is where one goes back to the start of the argument really - is it is return to a country in which someone has a right of custody in respect of the person, but custody as defined. That is fundamentally what the concept of "return" is.

KIRBY J: But the exception, the burden being on you to prove it, is that it is the return that exposes the child to physical or psychological harm. It has to be the child and it has to be the return, not some intermediate or separate or wilful or voluntary act of somebody else.

MR JACKSON: In that regard there is nothing in the Full Court's reasons, in our submission, that affects the view expressed by the primary judge at page 17 paragraph 95, where he referred to the fact that the child:

has her primary attachment to the mother who has cared for her on a daily basis throughout her life. For the child to lose her mother in any circumstances but especially through suicide is, I accept, a grave risk of psychological harm to the child which would be intolerable.

KIRBY J: That does not deal with the causation question though.

MR JACKSON: No, your Honour. That is why in answer to Justice Hayne before I said that issue seems not to be one attacked by the Full Court. The Full Court's view really seems to be one giving a narrow operation to the terms of regulation 16(3)(b) and the concept of "return".

KIRBY J: It seems a bit thin to be accusing the primary judge of confusing the return of the child to the country as distinct from to the father because, if you look at 97 and 98, three times the reference is to returning the child to Mexico.

MR JACKSON: Well, your Honour, when he actually decided this point - you will see that in the middle of paragraph 96 on page 18 - you will see that he speaks of "the very serious risk" or "high risk" of suicide - these are words coming from the doctor's report - "by the mother" ordering the child "to be returned to Mexico" as being part of it, and then, your Honours, he refers a couple of lines later to the terms of the regulation itself.

HAYNE J: If 16(3)(b) is to be given what you have described as this geographic meaning, it would seem to follow that an order should be made for return of a child to the custody of a violent or abusive parent, for the violence or abuse is the voluntary act of the parent to whom it is returned, and that courts of this country should have nothing to say in such a case. That is a startling result.

MR JACKSON: Your Honour, in our written submissions at the bottom of page 10 and at the top of page 11, we have sought to set out some consequences which would follow from the adoption of the Full Court's view, and perhaps I need only refer to one of them in paragraph (a) at the top of page 11. If one adopts the Full Court's approach, and there are two children in relation to whom return to the country might have adverse consequences to one, but not to the other, both would have to be returned, and we given an example in factual set of facts in paragraph - - -

KIRBY J: Which paragraph is this?

MR JACKSON: It is paragraph 42, in our submission, your Honour, but I was looking at sub-paragraph (a) at the top of page 11, and that ties up with an example in footnote 59.

KIRBY J: Well, on this theory every one of these cases is going to be turned into a full-blown custody fight.

MR JACKSON: No, your Honour, no.

KIRBY J: And one of the parties is not going to be here because the Central Authority is a governmental agency and that person is a wronged parent in another country. That is not the scheme of the regulations or the Convention.

MR JACKSON: Your Honour, the scheme of the regulations is that where an application is made within a year, the child must be returned, but the power or the obligation so to return is subject to a qualification. The qualification places on the person who is resisting the return the obligation to establish an unusual set of facts. Now, if that person does so, there is then a discretion, and your Honours will see from regulation 16(5) that that discretion may yet be exercised in favour of return, notwithstanding that a 16(3)(b) matter is established. So that the situation which obtains, in our submission, is that these are cases where the person seeking to resist return has to show a good case.

Your Honours, the second matter we would seek to say is this, that your Honours will note that the Full Court in paragraph 67 said in the last sentence that "there was no evidence before the trial Judge from which he could conclude that the mother would be unable to `contest a case in the Mexican Family Law jurisdiction"'. Could we seek to say, your Honours, that is not correct and give your Honours two references. Could I take your Honours to the bundle of documents, first of all to page 21 paragraph 79 of the applicant's affidavit and, in particular, going down to subparagraph (h), and then to page 58 paragraph 15, where she said she did not believe she would be able to contest any proceedings concerning the child in Mexico, had no family or close friends, no financial resources to fund proceedings. The passage to which I would then refer goes down to about 10 lines into it - - -

GLEESON CJ: What page is that, Mr Jackson?

MR JACKSON: It is page 58, your Honour, paragraph 15 and it is, in effect, the first half of the paragraph. Now, of course, on that there was no cross-examination and there was no evidence to the contrary.

GUMMOW J: And that evidence at 58 of the book is overlooked, you say, in what paragraph in the Full Court?

MR JACKSON: In paragraph 67 of the Full Court's reasons, page 48, the last sentence.

GUMMOW J: Yes.

MR JACKSON: This is, of course, an application for special leave. We rely upon the reasons set out in page 75 of the application book at paragraphs 33 to 36. Your Honours, apart from that, we rely on our written submissions.

GAUDRON J: I would like to invite you to say something about the terms of the orders that were made by the Full Court in this case.

MR JACKSON: They appear, your Honour, on page 65 and 66.

GAUDRON J: Yes. Do we know whether they can be enforced in Mexico? Do we know anything about them?

MR JACKSON: I think the answer is no, your Honour.

KIRBY J: Have you raised this in any way in your application?

MR JACKSON: Your Honour, we have not challenged the form of order, as such.

GAUDRON J: You see, again, what it seems to me, to some extent - leave aside (a) - all of these things seem to be directed to what you might call "risk minimisation" without - the practice seems to have developed that you can minimise the risk and therefore there is no risk or the risk is not grave.

MR JACKSON: Your Honour, the source of the power, if there is one, would have to be regulation 15. It would have to be regulation 15. Now, the difficulty with that, in a sense, is that the way in which it is expressed is that in subregulation (1):

If a court is satisfied that it is desirable to do so, the court may in relation to an application made under regulation 14:

(a) make an order of a kind mentioned in that regulation -

Now, of those kinds, if one goes then to regulation 14(1), (a) is the order for return. Except for the paragraph (e), the other orders seem to be ones that - - -

GAUDRON J: But even in (a) if it said pay the costs of return of the child that is one thing.

MR JACKSON: Yes.

GAUDRON J: These orders all seem to go to saying we can, as it were, foreordain a regime that will minimise the risk.

GLEESON CJ: The risk, of course, being the risk of harm that your client is threatening to inflict.

MR JACKSON: Well, it may be, your Honour, yes. Well, your Honour, it is a question of the - - -

GLEESON CJ: It is a response by the court to a threat by your client.

MR JACKSON: No, your Honour, with respect, what it is, is an attempted response by the court to a request by the Authority to exercise jurisdiction and to make a mandatory order and to our reliance upon the ability provided for by the regulations to resist it.

GLEESON CJ: But we cannot overlook the ultimate source of the risk, can we?

MR JACKSON: Well, your Honour, one can find that the occasion for the issue to have arisen was the retention of the child in Australia and, of course, that is so. But equally, your Honour, one does see, both in the Convention and in the regulations, that the obligation to return is in each case qualified by the opening words of either regulation 16(1) or Article 13.

Now, your Honours, the point I would seek to make is, just in response to your Honour Justice Gaudron, that the difficulty in attaching conditions of that kind is that if one goes to regulation 16(1), the order that the court is to make is an order for return. That is what it says. It says, "a court must make an order for the return". Now, your Honours, the orders that are sought to be made after that, if what they are doing is conditioning the making of the order for return on something else being done, they seem to be ones that are reducing the possible ambit of regulation 16(3), rather than anything else.

KIRBY J: My recollection is that they follow a pattern which is fairly common in these cases and may even have some sort of international provenance, that this is how these orders are made in countries that are Convention members.

MR JACKSON: Well, your Honour, there are some provisions of the Convention, I think, in relation to airfares and things of that kind and, needless to say, there are some aspects one would expect to be fairly common.

GLEESON CJ: There is something about this in an article that you drew our attention to. I did not actually follow on and read it, but there was a section of that article under the heading "Undertakings" I noticed.

MR JACKSON: Yes, your Honour. There have been in the United States endeavours to develop in the courts the use of undertakings and, your Honour, I think the position that has arisen there is that there has been some legislative backing for it in the end.

GUMMOW J: The undertakings here were given to the Authority, not the court.

MR JACKSON: Yes, your Honour.

GUMMOW J: What does the Authority do if the undertaking is breached? It is just a contract of the Authority, is it not?

MR JACKSON: It depends which one, I suppose. If one looks at what happens in Australia - - -

GUMMOW J: Or anywhere. It is just a contract of the Authority.

KIRBY J: There is no way that an authority in Australia is going to be able to bind a court in another country. The most that can be done is to carry forward the spirit and purpose of the regulation and Convention. That is all that we can do. We cannot force a court in another country to do something.

MR JACKSON: No. In answer to your Honour Justice Gummow, some of the undertakings are ones that I suppose would be effective in the sense that the Authority would not allow, to the extent to which it could stop, the child from going.

GUMMOW J: If you look at (2)(e), there was $US1,200 up front. That was it. Then the rest of it is not up front. I doubt if this litigation could be disposed of anywhere in four weeks in Mexico or anywhere else.

MR JACKSON: Your Honours, those are our submissions.

GLEESON CJ: Thank you, Mr Jackson. Yes, Mr Basten.

MR BASTEN: Your Honours, this is certainly a case in which the central issue between the parties is that identified in terms by Justice Kirby a moment ago as the causal nexus between the harm and the question of return. It is not a case in which any issue arises as to the quality of the harm. There was no dispute about the two first matters that your Honour Justice Hayne raised. If the harm was to be caused, it was of a relevant sort under regulation 16(3)(b) and it was a question as to whether the act of the mother in causing the harm was itself a relevant factor to be relied upon in considering whether the exception had been made out.

HAYNE J: I am sorry, what does that mean, Mr Basten, that last statement? What do you mean by that?

MR BASTEN: Just this, your Honour, that the critical passage to which my friend took your Honours at paragraph 62, which explains what the Full Court is saying at 68, stands for the proposition that it was not the return to the country which was going to be the cause of any psychological or other harm inflicted on the children, but the mother's executed threat of taking her own life if the children were handed over to the father, in the sense presumably that she then no longer had them in her care and control as she had theretofore. May I come back and develop this point, but that is my understanding of the difference between the way that the Full Court addressed the matter and the way that the trial judge addressed the matter and it is a matter which does not depend on anything other than the causal connection point, to which I am about to come, and what is ultimately a value informed causal decision.

Might I turn to the operation and scope of regulation 16(3)(b).

HAYNE J: Is that proposition larger than a proposition that harm happens not from return but harm happens if the child is given into the custody of the father?

MR BASTEN: Yes, it is in one sense larger, your Honour, because it is harm which occurs by the act of the person who wrongfully took the child out of the country.

HAYNE J: That, then, invites attention to the fact that the uncontradicted evidence here is that the mother is suffering from a severe psychiatric condition. Therefore, to apply notions of voluntary conduct to such a person carries with it a considerable degree of assumption, which, at least from my part, should not go unnoticed.

MR BASTEN: I did not intend to suggest that that was part of the elements, your Honour, on which the Full Court relied. They do not say that that is an element. It is of the nature of the harm though. Obviously, there is a distinction between a case in which a person voluntarily refuses to return in circumstances where it would be reasonable to expect her to return and a mother who does not return because she is unable physically or what other reason.

GAUDRON J: Well, would you not take that into account, too, and I was just going to ask you in line with your submission, let us assume a mother says, "I have this illness, physical illness, for which I need regular medical attention here in Australia. If the child is to go back, I am to go back and I will not be able to get the medical attention and the child will be motherless". What is the difference between that case and this case? Certainly, of course, you can say, "Well the mother can chose not to go back."

MR BASTEN: The child will be deprived of the benefit of having its mother readily available. Your Honour, in a sense these questions may turn upon difficult questions as to what the appropriate outcome is for the care of this child in the long term.

GAUDRON J: Well, then, where did the trial judge go wrong in that? If that is the question, where was it taken account of?

MR BASTEN: Your Honour, may I just come back to the question of the operation of regulation 16(3) to say what is not in issue in this case because it does appear to be a fairly limited question which does not give rise to a number of the issues which have been raised before. It does not depend, as we would see it, on any geographical notion. We accept that the questions as to what may be taken into account upon return and following return are, in a sense, at large. There must be a line drawn. The line depends upon the terms of the regulation. The regulation refers to "a grave risk" which is obviously something which has an element of foreseeability about it. It also refers to a causal nexus between the return and the harm which is caused and, of course, it involves the child being exposed - - -

GAUDRON J: Not would cause, would expose.

MR BASTEN: Yes, well, I was going to come to that, your Honour.

GAUDRON J: Yes.

MR BASTEN: We would say that "expose" really means no more than to place the child in circumstances where the relevant harm might be suffered.

CALLINAN J: It is "place at risk of" then, is it not? Is not that another way of saying "place at risk of"?

MR BASTEN: I suppose that is so, your Honour. One can redraft this terminology, I suppose, in various ways, but the element of risk is there. There is no need to prove the harm will occur on the balance of probabilities. It is a lesser standard than that. The nature of the harm has to be whatever the terminology requires. We do not seek to put any gloss upon that and we accept that the question of harm in this case was established to the relevant level, but the question is ultimately, in our submission, whether it was appropriate for the Full Court to say that it is not the consequences of return but the consequences of whatever arrangements are made in the country of habitual residence in relation to the child which might give rise to the harm.

May I say why that is a legitimate approach - and I know what your Honour's question is going to be to me, I think - but the purpose is not, as we would accept, to return this child for the purpose of any court proceeding. The purpose of the legislation is to provide for a mechanism for return to the place of habitual residence whence the child has been taken in contravention of one parent's existing custody rights. It may be access, it may be residence. Now, once that is accepted, one does have to go the further stage in a case such as this where the separation between the parents took place in Australia after the father had gone back to Mexico and the mother did not follow him. The result is that there is an unresolved dispute as to with whom this child should live on the basis that the parents have separated and he cannot - - -

GAUDRON J: Is there not a custody order already in existence in Mexico in favour of the father?

MR BASTEN: Not to my knowledge, your Honour. I am sorry, there are cases in which that has arisen. I did not think this was one of them, but I may be wrong about that.

GAUDRON J: I will just go back to the orders.

KIRBY J: I think we were told in the other case that there was such an order in Greece.

MR BASTEN: Yes, I think it is a question of the operation of Mexican law, absent any court order that gives rise to the right in the father. Whether it is a right to residence or not, I am not sure. But might I say this - - -

GAUDRON J: It said that "he will agree to a stay of any existing orders", which seems to suggest that there might be some.

KIRBY J: I think that may be in common form.

MR BASTEN: Your Honour, we are not aware of any existing orders, but sometimes these orders are obtained ex parte and the Central Authority - - -

GAUDRON J: This was the Full Court's order.

MR BASTEN: I know what your Honour is referring to. I am saying I do not know of any order. It may be from an abundance of caution that that was placed there to protect the mother, and might I say in passing - and I am going to come back to the question that your Honour Justice Gaudron raises about the power in relation to these orders. In a sense, though, the form and content of these orders demonstrate the contrary of what my learned friend put to the Court. They do demonstrate that the court was concerned not merely with what happened upon a return to a geographical place, but they took account of the circumstances as between people that might arise upon that return.

Now, may I take the matter one stage further. Suppose that the child is not returned and the father makes an application in the Family Court of Australia for custody of the child. This Family Court in Australia will need to deal with the very question which is sought to be agitated in these proceedings, namely, is it appropriate to make a custody order in favour of a father, when the mother is saying she will commit suicide if she loses residence of the child?

GAUDRON J: But then may we not need also to look at the way the order's work?

MR BASTEN: May I come back to the orders, your Honour, because I just wanted to - - -

GAUDRON J: But, if you just look at those orders, one thing might be that the mother and the child are there forever on $US300 a week and there is simply no decision.

MR BASTEN: Well, your Honour, that may be so and your Honour will note that the court at page 62, paragraph 110, gave an express opportunity to the mother to make such submissions as she wished in relation to the content of the orders. She made no submissions. They were, therefore, made in the terms proposed.

KIRBY J: $US300 a week is probably the rough annual income of an ordinary Mexican.

MR BASTEN: Well, your Honour, there was evidence before the court as to what money he was making, there is evidence in the bundle of documents.

GUMMOW J: These are wealthy people in Mexico.

MR BASTEN: Your Honour has read the evidence, I would imagine so. Certainly, they come from a family of some substance, put it that way. But, your Honour, there is no challenge in these proceedings to the form of the orders, nor could there be, we would have thought. If they are overly protective of the mother's position, then one would not expect the mother to complain, perhaps. If they are under-protective, then there is a question as to what she might want in addition and the court has indicated that it would consider those matters.

I was seeking to make a slightly different point in relation to the question of custody, namely, that the issue of what the significance of the mother's threat is in relation to the person with whom the child should ultimately reside is a matter which would have to be considered by a court having a full understanding of all the relevant issues, and that is the court which determines custody.

We referred in our list of authorities - and I will not take your Honours to it - to the Court's recent decision in AMS v AIF. Questions of relocation and questions of where children reside, even within Australia, give rise to issues which cannot simplistically be stated as a possible attempt to restrict the freedom of one party to move from one place to another. Those questions, one might think, under the Convention are to be determined by the place of the child's habitual residence. That is the purpose of the Convention.

GAUDRON J: Or not as the case may be.

MR BASTEN: Can I come to that?

GAUDRON J: Yes.

MR BASTEN: I was going to say - - -

GAUDRON J: Because it is not the purpose of the Convention in terms to provide for litigation in the country of habitual residence. It is the purpose of the Convention to provide for return and to respect the custody laws which are not necessarily the same things as the outcome of court proceedings.

MR BASTEN: They are not, your Honour, but there was evidence in this case as to what might or might not happen in Mexico and they included court proceedings. One, perhaps, should not read the judgment as being restricted to something in a generic sense when that was the case they were dealing with but may one assume, perhaps, that there will be no court proceedings. The father will simply agree to access arrangements and will let the mother continue to look after the child. There would be no difficulty in that proposition. The psychological harm feared would not follow.

The point I was seeking to make was really that if there are exceptions then they are the exceptions provided for by the Convention and one exception might well be if it were established to the satisfaction of the Family Court that the judicial or administrative arrangements in Mexico were such that they simply did not give effect to what we would consider essential elements of a legal system, for example, the best interests of the child were to be disregarded in favour of a penal system which provided children to parents who were least at fault.

Now, if that were established then that would provide a ground, we would say, properly, under regulation 16(3)(d) but it might be squeezed under (b) and would provide an example of a case where the child should not be sent back. All we say in this matter is that that exception was not established in those terms.

GAUDRON J: But it was not established because the causal connection has not been made out. The harm will happen. There is a grave risk of exposure to harm. A condition precedent for that is that the order is made but even so you say that is not sufficient causal connection because it is not sufficient, as it were, because it is a sine qua non but it is not sufficient of itself to bring about the risk. Therefore you construe regulation 13(3)(b) as not applying.

MR BASTEN: It is not a question of whether it is sufficient of itself in an effective cause sense. It is whether it is a cause which is intended to be encompassed by the terms and the purpose of this Convention which are - - -

GAUDRON J: What are the terms - forget about what is intended to be, what is encompassed in terms? That is really the question that we come to.

MR BASTEN: Well, it is, your Honour and it depends, as your Honour said to more than one counsel, perhaps, of the meaning of the term "return".

GAUDRON J: Well, you seem to say no. You say "would expose", do you not, "if return would expose"?

MR BASTEN: The question is whether it is the return which would expose or whether it is a decision as to with whom this child shall reside.

GLEESON CJ: Could I ask you a question about the evidence or the facts, which goes to the question of whether the return is a sine qua non of the exposure to harm. Did the evidence deal with the possibility that there might be a dispute as to custody in Australia between these parents?

MR BASTEN: Well, I do not know, your Honour.

GLEESON CJ: If there were a dispute as to custody in Australia between these two parents and it was resolved in the favour of the father, would that make a difference to the mother's threat?

MR BASTEN: Whether she would carry it out or not, your Honour means or - - -

GLEESON CJ: Is it the fact of the return of the child to Mexico that triggers her threat or the return of the child to the father, wherever that should take place?

MR BASTEN: That was a matter which was considered by the Full Court and they said on the basis of the evidence that it was the handing over to the father, wherever that might take place, but it must be accepted I think for the purpose of these proceedings, it was assumed that that would occur, if it occurred, in Mexico.

KIRBY J: Once the Convention is activated, you do not have rights to custody disputes within Australia; is that correct? In other words, you cannot invoke the Family Court's usual jurisdiction over the child for a full-blown custody case.

MR BASTEN: I am not aware of any restriction on the court's jurisdiction in that sense, your Honour. The court might, if it had an outstanding application for return of the child to Mexico, be loathe to make an order, but there is no restriction that I am aware of on the jurisdiction of the court simply because the child had a habitual residence in another country.

GLEESON CJ: If the father, instead of appealing against the decision of Justice Rose, had made an application for custody to the Family Court of Australia, would there have been any procedural difficulty in his way?

MR BASTEN: I think Mr Jackson is suggesting that regulation 19 might have something to say about it. I think it says no more than I was indicating.

Your Honour, I was just going to say in relation to the evidence that the primary evidence which is relied upon by the Full Court is in the third affidavit at pages 55 to 58, and particularly at page 57 to 58 where it consistently with the approach adopted by the Full Court, and we would think it was a finding of fact made by the Full Court, the evidence was understood to mean that she would be at serious risk of taking her life were she to have to hand over the child who had lived with her, for example, just before paragraph 15 on page 58, for all except three nights of her whole life.

Your Honours, obviously we would think that that would be a matter which the Mexican court, if it were required to make a decision about these matters, in other words, if there were not some modus vivendi achieved between the parties, would have to consider. The assumption, for the purposes of the argument that the mother puts, is that the Mexican court would decide adversely to her in what we would see to be a very strong case in favour of her retaining residence.

GAUDRON J: No it is not. The assumption was (a) she would not be able to proceed in the courts, because she said, "You have got to bribe people in Mexico and I haven't got the money to bribe people". That was her affidavit.

MR BASTEN: That was her first affidavit, your Honour, I think - no, it may have been a later one, I am sorry.

GAUDRON J: Well, it does not matter which it was. It was not the subject of cross-examination apparently.

CALLINAN J: Well, she said she had no evidence herself of any corruption on the part of court officials, although she knew that bribery was rife in other official areas, but I do not think she was able to give any evidence about court corruption, was she?

MR BASTEN: She did not, your Honour. There was an attempt to put in some evidence about how Mexican courts works. It was unsuccessful. There was no appeal against the rejection of that material.

CALLINAN J: I suppose your answer would be, anyway, that if this is a Convention country and Australia is part of the Convention, that it accepted the Mexican court.

GLEESON CJ: Well, we would be sailing into deep waters if that were a factual consideration and relevant to a decision.

MR BASTEN: Yes, that is so.

GAUDRON J: But her assumption was that she could not fight a case in Mexico, for whatever reason. That was her assumption: not that she would lose but that she could not fight a case and the evidence was that if she felt she could not fight a case and the husband had the child, even on access, then there was a grave risk.

MR BASTEN: Mr Jackson took your Honours to page 21 of the bundle in paragraph 79 where that evidence is given. That was in the first of a number of four affidavits and the position changed significantly over the period of time and it was the third affidavit which begins at page 55 in which she stated at paragraph 8 that she would travel to Mexico - this is the first time she had stated it - because she would not want to remain in Australia if her daughter was taken to Mexico.

Now, the purpose of the orders - and I wish to come back to them and perhaps I should do so immediately - was to try and ensure that any difficulties which might lie in the way of her contesting custody in Mexico, if it came to court proceedings, would at the very least be ameliorated. Your Honours, may we note that we should not be too sceptical about the justice that is granted in other countries. This is a woman who on her own evidence has been refused legal aid to continue these proceedings in this country. She has remained legally represented. Legal aid is not universally available in custody proceedings in this country.

If she were to come to this country as other than a permanent resident and without a right to work she would no doubt not receive social security benefits here.

KIRBY J: She is a citizen, is she not?

MR BASTEN: She is. I am just saying her complaints are that she is going to be without resources in Mexico which of course puts her at a disadvantage. The purpose of the orders was to try and ameliorate that aspect of her situation. I have said that there was no complaint about that. Might I go to the question of power, though, very briefly. I am conscious of the time, your Honour.

Firstly, might I just note that in De L, under the old regulation concededly, at 662 there appears to have been some approval, at least implicitly given, to the approach adopted in C v C in the judgement of Lord Justice Butler-Sloss. I will not take your Honours to that case but orders which are far more highly conditioned in relation to the hideous circumstances that might arise if a child were sent back to this country, and in particular Sydney, were approved.

So far as the question of power is concerned, your Honours were taken to regulation 15. Consideration needs to be given to regulation 15(1)(c) which provides that the court may:

include in an order to which paragraph (a) -

relevantly -

applies a condition that the court considers to be appropriate to give effect to the Convention.

I am not in a position in the time available to detail how that might be limited or what its scope is. We would simply say that in the absence of challenge this Court would not suggest that the form of the orders made in the present proceedings was invalid as being beyond power.

GAUDRON J: What worries me is a different issue, and that is that whether or not it is legitimate to say because the court could make these orders or will make these orders or might make these orders, the risk is not as great. The question is whether, on a proper approach to the Convention or the regulations, you should analyse the risk.

MR BASTEN: Yes.

GAUDRON J: And then if you analyse the risk and say it is not great, then you might make orders of a similar kind for whatever purpose, but the question is whether - and it seems to me that when you look at these cases, the orders that are made seem to be made on an assumption which runs through the judgments and, indeed, I thought ran through your submissions, that we are talking about a temporary return for the purposes of a court in another country determining the long-term welfare of the child.

MR BASTEN: Your Honour, that assumption in the present case was an assumption which was not disputed and was made on the evidence of what was about to happen. The court may have been wrong to make - - -

GAUDRON J: It was not an assumption that was made by Justice Rose, was it?

MR BASTEN: I thought it was, I may be wrong about that, but there does not seem to have been an issue litigated between the parties as to what would happen in Mexico, apart from the fact that there might be some agreement if the parties started talking to each other perhaps.

GAUDRON J: Now could you identify for me in Justice Rose's judgment where he went wrong?

MR BASTEN: Can I come back; may I just finish the answer I was seeking to give to your Honour a moment ago.

GAUDRON J: Yes.

MR BASTEN: I can do it by reference perhaps. In relation to the question of undertakings, there is a discussion in the Beaumont and McEleavy book "The Hague Convention on International Child Abductions", about the significance of the undertakings and orders conditioned upon them. One of the issues that has been raised is whether or not those sort of conditions have any effect at all and as to whether they might be enforceable. May I say two things about that: the first is that your Honours will see that there have been orders made, especially in North America, called "safe haven" or "mirror orders". In other words, an order is conditioned upon similar undertakings being given to the court in the place of habitual residence. That is because an issue of enforceability has been seen to be relevant.

In this case your Honours might doubt the effectiveness of the conditions imposed. In our submission, the proper approach is to accept that the Full Court is a court of specialist jurisdiction, which would have some understanding of whether or not these orders are likely to be obeyed, even if they are not enforceable by contempt proceedings in Australia and if that is an issue to be raised, it should be raised properly in a proceeding in which some challenge is brought to the consequence of the orders, and that is not this proceeding.

Your Honour asked in relation to the judgment of Justice Rose, where the error lay? As we would understand the passage at paragraph 62 in the Full Court's judgment - - -

GAUDRON J: Yes, but I want to see it in Justice Rose's judgment.

MR BASTEN: Yes, I am sorry, I was just going to say your Honour that is where the error appears to be identified and it seems to be made by reference to paragraphs 95 to 96 at pages 17 to 18 in the application book.

GAUDRON J: But now, what is the error in those paragraphs? Can you tell me what the error is there?

MR BASTEN: Yes. The error is in treating the evidence that the mother would take her life, or there was a risk that she would take her life, if she had to hand the child over as being evidence that she would cause that psychological harm to the child following return to the country per se.

GAUDRON J: I do not follow that.

MR BASTEN: There was an intervening act, namely, an order or direction from some body or court that she no longer have custody, in our old terms, of the daughter before that risk arose. His Honour in those paragraphs ran those elements together.

GAUDRON J: Did he? Did he not refer to the evidence that it might occur if she felt - page 16, the evidence in paragraph (h). He referred to that. The evidence was not, was it, simply restricted to handing over to the father?

MR BASTEN: Your Honour, might I interpose. At paragraphs 85 through to 87 his Honour listed a whole list of times statements were made. There is no specific reliance upon one passage and rejection of others.

GAUDRON J: No, but we have to find error.

MR BASTEN: It is open to the Full Court to reconsider this material and draw its own conclusions as to - - -

GAUDRON J: It did not purport to, did it? It purported to find error.

MR BASTEN: It did do that, your Honour, on a basis that that was what his Honour had done without - - -

GAUDRON J: That error then must come down to saying the judge at first instance was obliged simply to look to the position up until there was a determination in Mexico.

MR BASTEN: No, your Honour. The judge was obliged to consider whether the evidence went any further than a finding that harm would result if the child was taken away from the mother after return to Mexico; that if it were the handing over rather than the return, as such, then that revealed error.

HAYNE J: Can I take you then to the book of materials, the bundle of documents, page 58, and invite your attention to the accumulation of three sentences. Page 58, first sentence in paragraph 14, the first sentence in paragraph 16, and over at page 59, the whole of paragraph 17. Do those sentences when taken together form a basis on which a judge could conclude that the risk might obtain if the mother went back to Mexico?

MR BASTEN: Your Honours, there are some risks which, perhaps, cannot properly be dealt with by way of conditional orders. In this case these are circumstances which depend upon a variety of factors, including possibly whether she wins Lotto, of which there may be no risk. What the orders purport to do is to make sure that these concerns are dealt with and that she will not have to go back unless funds are provided, in effect, to allow her to support herself. That is the way, I think, that the Full Court dealt - - -

GAUDRON J: Then you come straight to my question that I have been asking. Is it a legitimate way to proceed in these cases to formulate orders rather than assess the risk?

MR BASTEN: Your Honour, there may be cases in which the appropriate conclusion is that 16(3)(b) has been triggered and then to formulate orders in the exercise of discretion.

GAUDRON J: That was not this case.

MR BASTEN: Not what happened in this case. It is an alternative way of doing it. What we say is that the Court in this case without error said that the risk had not been triggered; therefore, of course it did not - - -

GAUDRON J: Well, it was not open to the trial judge to find, is what it said.

MR BASTEN: Yes, and the reason - - -

GAUDRON J: And, I cannot understand why, unless it be on the causal basis?

MR BASTEN: For better or worse, your Honour, we say - and we are really here to assist the Court and not to make any final pronouncement about whether their Honours were right or wrong but we - - -

GAUDRON J: Why not? You come along here as a respondent.

MR BASTEN: All right. Their Honours got it right, with respect. Your Honours can reject my submissions. All I meant was that I had made it once and I was merely - - -

GAUDRON J: I would like you to understand that I fail to understand your submission. I could understand it - - -

MR BASTEN: Can I take your Honour to paragraph 62?

GAUDRON J: - - -if you put it on the basis of causation?

MR BASTEN: Yes, I do.

GAUDRON J: You do. What is the causal factor that had to be present before regulation 156(3)(b) could activate the discretion? What causal factor was it?

MR BASTEN: Within the context of the evidence that she gave and the purpose of the Convention there was a break in the causal link which meant that the risk was not - - -

GUMMOW J: Now, wait a moment, what is the link?

MR BASTEN: The link is the return - - -

GUMMOW J: It is broken.

MR BASTEN: The link is the return to the country of habitual residence. What they say in the third sentence in that paragraph:

The risk referred to in the Regulation is not the risk which would flow from the child being returned to the father -

Then I insert in brackets:

in which event Dr Waters was of the view that there was a risk, which he described as high, that the mother may attempt suicide -

close brackets:

but the risk which would flow from the child being returned to Mexico -

In other words, that is the distinction that they are seeking to draw.

GAUDRON J: Yes, but the real question is, who could you make that distinction? You have got to look to the evidence of what is going to happen, how it is going to occur. You have got to make some calculation of likely future events, do you not? You cannot limit it to getting off the plane, and you do not say that, do you?

MR BASTEN: No.

GAUDRON J: No. So, where do you limit it? Where do you limit the inquiry?

MR BASTEN: Your Honour, the question of whether the child should be returned to the father - - -

GAUDRON J: No. Where do you - - -

MR BASTEN: Can I - - -

GAUDRON J: Yes.

MR BASTEN: I am answering your Honour's question, I am sorry, perhaps indirectly. The limit is at the question of where the child should reside because that is said to be, on the evidence, the trigger to the psychological harm.

The purpose of the Convention is to allow the country's laws of the place of habitual residence to determine that question. Unless we are to say that we will only return children where the laws would do it in the way that the abductor wants, then it must be left to that country to determine it and the consequences follow from its determination, not from the fact that they have been given the opportunity to do just what the mother should have let them do in the first place.

GAUDRON J: That is a Herod-type argument in terms of causation.

MR BASTEN: I am not sure that it is, your Honour.

GAUDRON J: But let me be clear about what you say the trial judge could look to in terms of determining the causal connection. That is what I do not understand. What could he look to?

MR BASTEN: If the evidence before him had been that the mother might attempt suicide if taken anywhere near Mexico, perhaps because the father was abusive in the terms of the example given by Justice Hayne, that would be of critical importance.

KIRBY J: Or that the child suffered from asthma and the pollution was absolutely intolerable and she would not put up with that in Mexico.

MR BASTEN: Yes, indeed, or the country might be on the verge of a civil war or the judicial system might be in a state of collapse or the administrative system for protection of fundamental freedoms and human rights might be unacceptable. Any of those factors.

GAUDRON J: But it could not have regard to what appears in paragraph (h) at page 16?

MR BASTEN: Not to the extent that it would be the consequence of a custody order which might be made in this country or that.

GAUDRON J: No, no, but paragraph (h) at page 16 is not dependent on a custody order.

MR BASTEN: Not an order, your Honour, handing over.

GAUDRON J: For contact.

MR BASTEN: In the circumstances where the father might - - -

GAUDRON J: Or she is unable to contest the case.

MR BASTEN: Your Honour, she did not say any of these things.

GAUDRON J: Yes, but could his Honour have regard to that, to paragraph (h)?

MR BASTEN: Yes, there is a series of pieces of evidence which indicate what the - - -

GAUDRON J: It goes beyond what would happen in the event of the making of an order for custody in favour of the father.

MR BASTEN: You mean it takes place thereafter if a particular - - -

GAUDRON J: No, no, as I read it, that is quite - - -

MR BASTEN: I see, you mean in anticipation.

GAUDRON J: - - - it is quite independently. No, no, it is posited on she goes to Mexico with the child, to some extent borne out by page 58 in the bundle, and she decides, she forms the view that she cannot contest the case.

MR BASTEN: Then, with respect, that may be so, if that is the harm - - -

GAUDRON J: Could his Honour have regard to that?

MR BASTEN: His Honour could have regard to that, but the question is whether that is caused by the return to Mexico or other factors.

GAUDRON J: What are they?

MR BASTEN: Well, the factors that she has listed are her incapacity to live in Mexico with the child - - -

GAUDRON J: Inability "to contest a case".

MR BASTEN: What does that mean, your Honour? I mean, does it mean "I do not have legal aid", or "I do not have a lawyer", or "I cannot speak Spanish"?

GAUDRON J: She formed the view that she cannot.

MR BASTEN: Yes, but there is more evidence about that. She has given the list of reasons. The Full Court tries to deal with all of them and asks her if there are any others.

GAUDRON J: But why, because the Full Court is saying we do not take account of anything that might happen once litigation is commenced? Is that your argument too?

MR BASTEN: The Full Court in this case said there was no reason to suppose that the question of with whom the child should reside would not be properly dealt with - - -

GAUDRON J: But it says that in every case.

MR BASTEN: Your Honour, there may be very few countries of which we would say their legal systems are inherently unstable or inadequate, absent some evidence to that effect. Now, my ignorance is that I am not aware of any case where anybody has tried to establish that.

GAUDRON J: Yes, that is why I say it is said in every case. But I just want a reason - - -

MR BASTEN: There is a reason for saying it in every case, your Honour.

GAUDRON J: I just want to be clear about this. You say the trial judge had to find something in the circumstances prior to the point where the litigation processes of Mexico were engaged.

MR BASTEN: Not necessarily prior to, your Honour; it is unrelated to the decision-making process in Mexico. The war could break out the next week, it does not matter when. The question is whether there is anything outside the decision-making process of the country of habitual residence properly carried out, not in contravention of fundamental principles which Australian courts accept, which would cause harm to the children.

GAUDRON J: And what if the matter never goes to court?

MR BASTEN: Because it has been agreed by the parties?

GAUDRON J: No.

MR BASTEN: Because the father has taken the child?

GAUDRON J: These are risks.

MR BASTEN: That is a risk which the court has to assess, your Honour, and - - -

GAUDRON J: And did it?

MR BASTEN: In this long judgment, it assessed those things which had been put to it.

GAUDRON J: And what if it just happens that the mother cannot afford to pursue the rights in the court and then she forms the view set out in paragraph (h) or she takes the steps set out in paragraph (h), because she forms the view, just independently of who has got custody or access, that she is unable to fight the matter out in Mexico.

MR BASTEN: Your Honours, there are two possibilities. One is that she is given an opportunity which is adequate under any legal system and she decides not to take it. The other is the equivalent of your Honour's first example to me that she is physically or mentally disabled from doing so. Now, obviously different answers would arise in the two cases and I really probably cannot take my answers any further than what I have said to your Honour. If the Court pleases.

GLEESON CJ: Thank you, Mr Basten. Yes, Mr Jackson.

MR JACKSON: Your Honours, a few very brief matters to which I wish to refer. The first is I said I would give your Honours a reference to the New Zealand case about suicide. I have given your Honours a copy of it. It is New Zealand Central Authority on Evidence.

The second matter was one of your Honours asked what the position was about custody. The evidence can be seen in paragraph 72 of Justice Rose at page 11 that the view was both parents had custody in accordance with the underlying law of Mexico.

The third matter relates to our view about the suitability of the orders that were made. Your Honours will see at page 62 paragraph 109 of the Full Court's reason we made submissions in writing as to the unenforceability of the undertakings.

The fourth matter is this. In relation to taking proceedings in the ordinary custodies - a rather dated word - jurisdiction now in Australia, both regulation 19 and Article 16 of the Convention deal with the fact that such orders should not made once an application has been made for a return under the Convention.

KIRBY J: So that would have restrained either your client or the husband from proceeding here. I thought that was the rule, but I did not know what the basis of it was.

GLEESON CJ: From proceeding here if the husband decided not to appeal against Justice Rose's decision?

MR JACKSON: Your Honour, I think the answer is no to that because it deals with the position - - -

GLEESON CJ: Well, that was the question that I asked. What would happen if the husband lost in front of Justice Rose and then just did not appeal. Could he make an application for custody here?

MR JACKSON: Regulation 19 concludes with the words "until the application is determined," so - - -

GUMMOW J: Depends what you mean by "determined".

KIRBY J: One would think it meant determined finally.

GLEESON CJ: By a decision not to appeal.

MR JACKSON: Yes, I was assuming, your Honour, was meaning that the case - the time for appeal had expired, yes.

GLEESON CJ: The case would be over and he could make an application for custody.

MR JACKSON: Yes. Your Honours, the penultimate matter is this, as to Justice Rose's findings concerning Dr Waters' report, your Honours will see that he did specifically accept Dr Waters' evidence, and in particular at page 18, paragraph 99 he adverts to that fact.

Finally, the view taken by the Full Court, at page 48, paragraph 66 and 67 of the Full Court's reasons, your Honours will see that they seem to contemplate that what is to be done is that there is a broad assumption made that the social and legal system is such that suitable arrangements could be made for the welfare of the child in the particular case and that some onus was borne to show that that was not the case. The onus was borne by us to show that was not the case. In our submission, that goes beyond the words of the regulation.

GLEESON CJ: Thank you, Mr Jackson. We will reserve our decision. Yes, Mr Basten.

MR BASTEN: There were two matters I wanted to hand to your Honour. Could I do it perhaps after the hearing? One is a matter in relation to cross-examination which has been raised. There is an authority about it. Your Honours might wish to know the authorities so far. The second was simply the reference to "narrow exceptions" which is a term taken from a Congressional finding in relation to the US Act. I was simply going to provide copies of that material, if that is convenient.

GLEESON CJ: Thank you. We will reserve our decision in both of these matters.

AT 4.43 PM THE MATTER WAS ADJOURNED