U v U S249/2000 [2001] HCATrans 518 (12 October 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S249 of 2000

B e t w e e n -

U

Applicant

and

U

Respondent

Application for special leave to appeal

GAUDRON J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 12 OCTOBER 2001, AT 11.29 AM

Copyright in the High Court of Australia

MR M.D. BROUN, QC: If the Court pleases, I appear for the applicant, who was the wife in the proceedings in the Family Court. (instructed by Russell McLelland Brown)

MR R.D. HARDING: If the Court pleases, I appear for the respondent. (instructed by James Richardson)

GAUDRON J: Yes, Mr Broun.

MR BROUN: Your Honours, the Family Court made an order granting to my client, the wife and mother, the residence or the custody, as we used to call it, of her daughter.

GAUDRON J: We are familiar with that, but where do you say their error was? Can you tell us briefly what you say the error was?

MR BROUN: Your Honour, first of all, that grant imposed upon my client the obligation, willingly accepted, of caring for the child. Then the court says, "Ah, but you can't take the child out of Australia". Then when we say, "But, hey, the Convention on Human Rights says a party is entitled to leave a country and go back to their own original country", that is brushed aside on the basis that, "No, the order isn't restraining her from leaving the country; it restrains the child".

GAUDRON J: That is right.

MR BROUN: But the trouble is, of course, the order itself, the further order - - -

GAUDRON J: One can readily understand what you say about the consequences of the order, but where is the error in the approach? I mean, ultimately, the consequences of parenthood are long-term, inevitable and sometimes devastating, and that is for all of us.

MR BROUN: Your Honour, and I speak from experience.

GAUDRON J: So you have to identify an error in the approach, do you not, either of the Full Court, I would have thought, and in the judge at first instance?

MR BROUN: Your Honours, can I attempt to do it this way. The trial judge decided the matter essentially on two bases. First of all, that it was to the advantage of this child, the optimal arrangement as to contact, that the child should see her father at frequent intervals, once a week - once a fortnight for a whole weekend, once a week for a single day. The Full Court in paragraph 30 to which we have directed attention said, "No, the trial judge" - - -

GAUDRON J: Is that the error, looking at the optimal advantages?

MR BROUN: Well, that is the first part of the error, your Honour. They said "optimal", but the Full Court drew attention to the fact that was not really a fair summary of what the expert had said.

GAUDRON J: Of course, if one were looking to the optimal situation of a child, one presumably might make all sorts of orders, including against third parties, imposing obligations on third parties, even, but - - -

MR BROUN: What we say was the error of the trial judge, which the Full Court allowed to stand, although they said the trial judge got it wrong in that paragraph 30, what we say is that there was not a balancing of the optimal benefit of contact in that way with the devastating effect put by the counsellor as quite debilitating upon the mother's household of being kept in a foreign country with no family, no friends, no employment opportunity, when she had in Bombay a family, a job, a support system.

GAUDRON J: She did not have a job.

MR BROUN: But she had the potentiality of a job. She had had a job there and she was very experienced in the shipping industry in Bombay and in India and had worked in London in the shipping industry in a way that was not available to her in Australia. So that she had - in effect, what we say is the trial judge, and the Full Court let it stand, looked to what was optimal rather than to looking at the balancing of the different factors.

GAUDRON J: I am wondering what you mean by "balancing".

MR BROUN: Well, your Honour, we would suggest, as I have put it in submissions, that it is really carrying contact too far to sacrifice the home of the residence parent, the happiness, contentment and satisfaction - - -

GAUDRON J: That sounds all very good as a matter of advocate's flourish, but really, Mr Broun, where is the error, apart from "optimal"? Is it in this, that although the trial judge said you had to analyse the three cases, following up on what I said in the earlier case, but in reality it was just all put in the pot together instead of looking at the mother's willingness to accept the burden of staying in Australia as arising only in the event that it was decided that as between her relocating in India and the husband staying in Australia, that it was in the best interests of the child to stay with the husband, presumably without access to the mother, because there seems to me to have been no consideration of the case if the husband had custody - I use "custody" because I am old-fashioned and have not caught up with the new law - - -

MR BROUN: It is easier to understand, also, your Honour.

GAUDRON J: - - - if custody had been granted to the husband in Australia and the mother had gone to India.

MR BROUN: That was not considered. Indeed, your Honour has put it, if I may say so, very clearly for me. In our draft notice of appeal that is what we had endeavoured to raise. There was not the examination of the real alternative proposals and a real consideration in respect of the Australian situation of benefits of contact, detriment of a wife, a mother retained against her will in adverse circumstances, and there was not a consideration of the father because, I suppose, frankly the father never suggested he should have the residence of the child - - -

GAUDRON J: Yes, he did.

MR BROUN: Yes, I am sorry, but it was not put forward or advanced as a substantial issue, I suppose, but nonetheless, yes, it was there.

GAUDRON J: Should it not have been? I mean, unless custodial parents are to have their lives shackled very considerably, does one not have to always consider the detail of each possibility?

MR BROUN: Yes.

GAUDRON J: I mean, it might even have been the case, had it been considered, that it would have been found - but it does not seem to have really been considered - that it would have been in the best interests of the child to be with the father here in Australia, even if the mother stayed in Australia. Was the husband's case considered, is really what I am saying?

MR BROUN: Well, your Honours, we say that when you look at the conclusion, something has gone clearly wrong, but that essentially that it was because the - - -

GAUDRON J: You cannot say that, I mean, in an area like this.

CALLINAN J: This is special leave.

MR BROUN: Yes, it is.

GAUDRON J: It is not entirely clear that something has gone wrong, I am sorry.

MR BROUN: Your Honours, we say in the Full Court it is pretty clear what went wrong. They knocked out one half of the trial judge's basis for his decision but, nonetheless, upheld it. As to the second part, namely, the trial judge's suspicions that the wife might not be co-operative about contact, that was based entirely on the trial judge's - - -

GAUDRON J: It was based on prior conduct. The prior conduct certainly gives you cause for concern.

MR BROUN: Your Honour, I would suggest illogically because what the wife's conduct referred to in each case related to her endeavours to get back to India, not to obstruct contact. The evidence was very compelling, and agreed by the husband, that in India, once the child was there - and the child at the time of trial had spent more than half her life in India - he was able to see the child without difficulty; he was greeted with warmth and respect in the mother's household; he was even invited to stay in the mother's household on two occasions and there was absolutely no problem about contact in India and he was made very welcome and great co-operation there.

It was also clear on the evidence, no dispute about it, that in Australia the wife, after the separation, had been thoroughly co-operative in respect of contact and, indeed, the very evidence of the child having maintained a good relationship with the father strongly argued her support of contact. But, nonetheless, the - - -

GAUDRON J: The other thing that also concerns me about these cases, Mr Broun, is that perhaps it is necessary in cases such as this to look not just to the short term. I know this is not a point that was raised in the case from Western Australia, was it?

CALLINAN J: No, it was not.

GAUDRON J: But, I mean, if you look just to the short term, you may get one answer; if you look to the long term, you may get another; but if you look at the whole spectrum, you may get a third which says, "Well, for the next two years or for the next three years" - et cetera.

MR BROUN: Indeed, that point raises very strongly in this case because the expert opinion upon which the trial judge acted and which the Full Court ultimately accepted or used, even though they thought the trial judge had got it wrong, was that while the child was young - and I put "young" in inverted commas there because we are not told precisely what that meant - regular contact at shorter intervals was more beneficial than block access at longer periods. So, in effect, the very basis of the judgment of the trial judge and the Full Court says, "Come back again at some time in the future when the child is older and block access presents no problem", that is to say, the child coming to Australia for Christmas or January holidays or for long holiday periods and the father having the child in India for holiday periods, that is to say, blocks rather than weekends. In effect, the judgment invites coming back a second time. So that effectively it is quite clear the long term question was not looked at at all and, indeed, the sort of combination of the two is not looked at.

Now, the wife's position, of course, is she wants the child to be back in India at an early enough stage to resume her education in India, or to take up primary eduction in India, having been there already so much, and to enrol her in a school so that her school education is in the country where she might reasonably be expected to live a large part of her life. The child, however, it is agreed, should retain her Australian citizenship so that she is capable of returning to Australia if desired.

So we would submit that, really, the trial judge has not looked at all at anything beyond the immediate future and that has produced also a very distorting effect upon the outcome of the case. Now, the Full Court, in our submission - - -

GAUDRON J: Yes, perhaps we will hear from Mr Harding, Mr Broun.

MR BROUN: Thank you.

MR HARDING: Your Honours, the key to the court's consideration may be found on page 61 of the application book. In paragraph 3 there appearing the Full Court talks of the parties' position at trial before Justice O'Ryan. The primary position adopted by the wife was that the child should go to India with her. However, as they there note:

during the course of the trial, it became apparent that if the wife were not successful - - -

GAUDRON J: But you see, that is the error, is it not? This is not an application to relocate. That is precisely what is wrong with the way these matters are dealt with. Nobody has to ask permission to relocate. The question is: which of three alternatives better serves the interests of the child? The third alternative only arising, really, if the question is, is it better, if the question arises, when at a certain point in this case the wife would have said, "Look, if you think the child's interests are better served by living with her father in Australia rather than with me in India, then I wish you to consider this possibility. But I only wish you to consider that possibility if you come to that answer." Otherwise, if you approach it on the basis of permission to relocate, you are warping the issue, are you not?

MR HARDING: Certainly and, I mean, that is very clear from what fell from the court in AMS in terms of the utilisation of a word such as "permission". In my submission, however, whilst your Honour criticises what is said by the Full Court in that paragraph, when you look at the reasoning of the trial judge, it is very clear that he has considered all of the proposals as were presented to him.

GAUDRON J: Has he come to the conclusion in terms that it is better for the child to remain with her father in Australia with whatever access would thereupon become available to the mother than for the mother to have custody of the child in India with the access that was then proposed for the father? Has he ever made that decision?

MR HARDING: No, he has not.

GAUDRON J: So, do you think he should have?

MR HARDING: No, your Honour, with respect. What I would submit to you is this, that his Honour made it clear that what was before him was a very finely balanced case.

GAUDRON J: Finely balanced case on what? A finely balanced case on which of these three alternatives, which his Honour does not really take as true alternatives but takes as possibilities, which of these three possibilities has the optimal outcome for the child?

MR HARDING: Can I say this to your Honour, that reading from what the Full Court said, namely that upon hearing of what the wife's secondary position was, it - - -

GAUDRON J: Yes, but there is an ambiguity in the word "secondary", is there not? It comes about because you treat it as a permission to relocate. The question is: who should have custody - I use the word "custody" because that is the language I grew up with - having regard to the circumstances with which the court is faced? The circumstance is the mother wants to have custody in India. The case for her custody in Australia surely only arises if and when it is said, "No, if you go to India, the father will have custody".

MR HARDING: In my submission, she could put her case in the alternative without having to meet that final decision. In other words, she does not have to wait - - -

GAUDRON J: Why? Is it not inevitable that if you do not do it that way, the custodial parent will never be allowed to relocate, or very rarely be allowed to relocate, because it becomes a question of permission to relocate, which can never be the question, not in a free democratic country.

MR HARDING: In my submission, the idea or notion of permission or the notion of the right of the mother's freedom to move were matters which the trial judge clearly paid attention to.

GAUDRON J: He called it an application to relocate with the child to India.

MR HARDING: Yes.

GAUDRON J: It is application for a residence order.

MR HARDING: And his Honour, when he dealt with the principles under which he was deciding the case, made it very clear - and he does so on page 18 of the book, if I could take your Honours to 9.55 and 9.61, particularly having regard to the decision of the Full Court in B v B and the Family Law Reform Act, his Honour had not lost sight of the fact (a) that:

Ultimately it is a question of applying in a common sense way the individual sections -

talking of 687(2) of the Family Law Act -

so as to achieve the best interests of the children -

and then:

As previously pointed out, relocation cases are but a particular example of proceedings under that Pt VII.

So it is clear from the framework which his Honour set out and which he was operating under the subheading of "Relevant Principles" on page 17 of the book - - -

GAUDRON J: Now, his Honour is there referring to what was said in other cases.

MR HARDING: Yes, he was. He certainly made reference to this Court's decision in AMS and, in my submission, he applied what was said by your Honours in that case.

GAUDRON J: Yes, I am looking now at page 19. I simply do wonder what is involved in the concept:

whether the reasons to relocate are genuine, whether they are optional or whether they are seen as important or essential for the ordinary life of that parent.

I mean, that just seems to me to be missing the point of what these cases are all about. They go the trouble of making an application saying, "I want to go and live in India". One would have to assume that the applicant genuinely wants to go and live in India. To talk about "optional" is silly when, of course, there is an option of not going to live in India. In such a case, the hypothesis is always that there is an option of not going there. Important or essential, I do not know.

MR HARDING: In the end, his Honour really found that it was her genuine desire to go to India and with the child.

GAUDRON J: So what?

MR HARDING: So the issue which you were raising does not arise.

GAUDRON J: I mean, the relevance would have been, would it not, whether her life in Australia was likely to be such that it would impact adversely on the welfare of the child?

MR HARDING: His Honour took that into account.

GAUDRON J: Yes, but that could really have been the only issue, could it not?

MR HARDING: Yes, and his Honour found that the wife had very few friends in Australia, that most of her friends and support were to be located in Mumbai. She apparently was not working in Australia and upon being taken off a plane, she went to Wollongong, for reasons best known to herself.

GAUDRON J: She explained that. She thought she had some support in that area.

MR HARDING: That is right. Now, his Honour found that the wife would be depressed if she was obliged to remain in Australia as an incident of her custody order and clearly his Honour weighed up the type of advantages which the wife perceived she would have if she were to reside in Mumbai where her family was. So, in my submission, whilst your Honour has stated those matters, they are matters which were brought to account by the trial judge.

GAUDRON J: But taking them into account, really - it is true that they were taken into account, but once you express the question as, "What is the custodial parent's reasons for wishing to relocate, are they genuine or optional?", you are almost inevitably sucked back into the question, "Should the parent be given permission to relocate?", which, as I said, is not the question.

MR HARDING: Yes. Your Honour, I can understand what flows from the terminology used but in the effect of what his Honour did, he did not fall into an error. In my submission, matters like those which your Honour has raised are not really matters which would lead to special leave being granted. They are more appropriately matters which should be ventilated on an appeal to the Full Court of the Family Court. But they do not really give rise, in my respectful submission, to a special leave point.

CALLINAN J: The only circumstances in which the genuineness or otherwise of the parent's reasons would be relevant, I would think, would be if it was suggested that the reason was simply to deprive the other parent of access to the child. Otherwise, the parent's reasons to relocate have really got nothing to do with the court.

MR HARDING: With respect, I think that is so, and in the findings of the trial judge, whilst the mother said she wished to go in order that she be with friends, his Honour found that he rather doubted her sincerity in these matters.

CALLINAN J: But so what? So long as it was not intended simply to deprive the other parent of access to the child, a person should be able to relocate for whatever reason that person thinks fit.

MR HARDING: What his Honour found, your Honour, was of course that he doubted the sincerity of the mother that she would provide reasonable contact.

CALLINAN J: But did the trial judge make a finding that the applicant wished to relocate simply to deprive the father of access to, or perhaps custody of the child?

MR HARDING: No, your Honour, not in those terms. Hopefully the replies we have reproduced in the book set out our position to the application as framed by my friend. If the application is limited to the matters contained in his submissions and outline, our general submission is this, that they simply do not give rise to a special leave point and that, accordingly, this Court has more than comprehensively dealt with the type of matters which he raises which would justify the grant of special leave and, in particular, we refer to this Court's fairly recent decision in AMS and, particularly, if I may say so, the judgment of his Honour Justice Kirby. So that the application as framed, in my submission, does not give rise to special leave.

The concerns raised by your Honours, particularly Justice Gaudron, are really matters which in themselves do not lead to a special leave point. In the end, you would be satisfied that the result achieved by his Honour and the matters which he considered were, firstly, appropriate and in accordance with law. If there has been any fault, it has been a use of terminology rather than a substantive matter. They are my submissions.

GAUDRON J: Yes, thank you, Mr Harding. Yes, there will be a grant of special leave in this matter. Mr Broun, you might consider recasting your grounds of appeal to raise the issues properly.

MR BROUN: Indeed, your Honour, yes.

GAUDRON J: I do not think a lot will be gained by relying on the international instruments, any more than they were in AMS and AIF.

MR BROUN: Thank you, your Honours.

GAUDRON J: Yes, thank you.

AT 11.57 AM THE MATTER WAS CONCLUDED