C v V [2004] HCATrans 29 (17 February 2004)

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C v V [2004] HCATrans 29 (17 February 2004)

Last Updated: 25 February 2004

[2004] HCATrans 029

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S8 of 2003

B e t w e e n -

C

Applicant

and

V

Respondent

Application for special leave to appeal

McHUGH J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 FEBRUARY 2004, AT 2.19 PM

Copyright in the High Court of Australia

C appeared in person.

MR S.M. STEWART: If your Honours please, I appear for the respondent. (instructed by Coustas & Co)

McHUGH J: Your submissions are to be given through an interpreter?

C (through interpreter): Yes.

McHUGH J: Would you swear the interpreter, please.

LEI WAN LEUNG, sworn as interpreter:

McHUGH J: Now, because of the nature of the proceedings we cannot refer to you by your name but only by the initial which appears. So we will call you Mr C, but that is no disrespect.

KIRBY J: The purpose of this is to prevent the identification of the child.

C (through interpreter): Yes, your Honour.

McHUGH J: Now, proceed with your submissions. We have read the application book. We have read your submissions. If there is anything that you want to tell us about the case, you go ahead now.

C (through interpreter): Yes, your Honour. I consider that the Family Court does not have true and genuine evidence to support their decision. Say, for example, when the judge for the first instance said in the decision that the father use violence, I do not think there is any evidence on that. The second point is that the child actually got hurt while being taken care of by the mother and the sort of harm that the child got was of a serious nature. The mother has reported to the Department of Community Service and also has reported it to the police.

McHUGH J: Now, Mr C, this Court is a special court. It only hears important matters. There are hundreds of thousands of cases decided in Australia each year and we can only hear maybe 70-odd, and they are cases that concern important questions of law, with some exceptions. Ordinarily, we do not give leave for cases that involve factual disputes between parties.

C (through interpreter): In terms of law, I would like to point out that the judge at the Family Court has not made a decision on the basis of truth and facts. The sort of evidence that was relied upon was actually not true and there are no substantial grounds to support.

McHUGH J: Well, the judge believed that evidence and unless you can point to errors rather than assert them, there is nothing we can do about it.

C (through interpreter): Well, for this whole case actually it is a fact that the child does not like to be taken care of by the mother and at that point in time the mother did not have residency in Australia. She is just resident of Vietnam. The child is an Australian citizen and the father is also an Australian citizen. If the child were to be – if the custody of the child were to be given to the mother, it means that the child would have to go and live with the mother in Vietnam. Therefore I consider that the decision was against the interest of the child.

McHUGH J: It is not the sort of case that we grant leave to hear. There are all sorts of disputes in the Family Law Court and there are very few cases that we grant leave. There has to be something special and important about it.

C (through interpreter): I consider this to be a very important case because it involves parties belonging to different countries, so in a sense it is some sort of an international case and it impacts very much on the child.

KIRBY J: Well, I notice that you said that and you complain about the judge deciding to accept the mother’s suggestion of both surnames being used, but that is not unusual in Australia, which is where we are. The child, when the child grows up, might decide to use one name or the other. That will be the child’s right when it is an adult, but whilst the child is a child using both names would not be regarded as unusual in Australia. At least it would be open to the Family Court to decide that that was a proper compromise in Australia.

C (through interpreter): But this child is not just an Australian. This child is a Chinese Vietnamese Australian. I have read a case which talks about a child in Japan who is of Chinese and Vietnamese ethnic background and because of the name it caused the child to wanting to kill himself or herself. This is a very big case which is well known in Japan.

KIRBY J: It might be different in Japan, but in Australia and in many – first of all, in many European countries it is the normal thing for the child to have both names. In Australia it is not the normal thing but it does happen, and these are orders of the Family Court of Australia. I read your submissions carefully because I was anxious in case the judge had not been sufficiently sensitive to your concerns, but I think the judge was merely saying in Australia during the child’s childhood this is a sensible compromise. I do understand that you say in China it would be offensive, but in Australia it would not be to the child or to the community.

C (through interpreter): But then the problem is the child would definitely be laughed at by having a Chinese surname and also a Vietnamese surname. People can, you know, laugh at him and tease him and say that he is something odd.

KIRBY J: He will not be laughed at by the overwhelming majority of Australians and later he might decide to accept one name, but the most important thing is that the child bears your genetics. He is your child and that is accepted. That is much more important than names.

C (through interpreter): He is now over three and he will soon start school and I think that he would be laughed at in school by schoolmates, unless there are no fellow students in the same school who are of Chinese or Vietnamese ethnic background.

KIRBY J: He will not be laughed at by Australian students. At least it was open to the Family Court to decide that.

C (through interpreter): But no one could guarantee that.

KIRBY J: I do understand that in China he might be, but I would be very surprised if that happened in Australia.

C (through interpreter): All along the child’s surname has been “C”. I do not think it is appropriate to have his surname changed after the separation of the parents.

KIRBY J: I think the mother adopted the name from the beginning. You were not married to the mother, is that correct? The day after the birth she used her name in relation to the child.

C (through interpreter): No. All along the surname “C” had been used until we were separated. I can give you some evidence by citing another case. There is evidence to show that the mother agrees that the child’s surname is “C”.

McHUGH J: But, Mr C, these are factual questions. It is for the Family Court to say what the best interests of the child are. Unless you can show some error of law, it is not a matter that we are concerned with. We cannot hear every case that somebody alleges is wrongly decided.

C (through interpreter): But the Family Court has not heard the case. There was no Full Court for the case. The other party had a summary argument which has not been served to me and I did not see the summary argument until the day of the hearing and I requested that the judge did not accept this summary argument as evidence.

McHUGH J: But it is not evidence. A summary of argument is not evidence; it is just submissions.

KIRBY J: My reference to the mother’s giving the name was to application book 33 and the argument on page 51, line 10, but it is a small point. It is not worth delaying over because, as Justice McHugh has said, these are factual questions.

C (through interpreter): I reckon that whatever court it be, it should base on facts to make a decision and make a judgment. Say, for example, if either party, either it be the father or the mother, who is a drug addict, then the court should not be giving the child to that party. So I consider facts to be very important.

McHUGH J: They are very important at the trial level, but they are rarely important when you get to this Court.

C (through interpreter): I understand that this is the High Court, but I have no other avenue to appeal.

McHUGH J: I understand that and many people think that is unfortunate, but we can only deal with questions of law and ordinarily we have to accept the facts as found by the lower courts. We do not see the witnesses.

C (through interpreter): Sorry, your Honour.

KIRBY J: Have you said everything that you want to say? We have read the material in the written book. Is there anything else that you wanted to say to us orally?

C (through interpreter): No.

McHUGH J: Sit down, thank you.

KIRBY J: I have a question for you, Mr Stewart.

MR STEWART: Yes, your Honour.

KIRBY J: Mr Stewart, in the written submissions the applicant raises the point concerning the Hague Convention on the Civil Aspects of International Child Abduction and he raises what I would think a lawyer might have been able to construct into an argument, that the Full Court and the primary judge failed to address the issue relevant to the residence order, that if the child remains with the mother, who is a Vietnamese national, whether or not she is made a permanent resident in Australia, that there is a risk that she might leave the country and that then, the Republic of Vietnam not being a member of that Convention, it would be virtually impossible to get the child to return to Australia. Now, was that an issue? I do not see it referred to in Justice Rowlands’ reasons or in the Full Court. Was that an issue in the trial and can it be submitted that the court below has failed to address this as a relevant issue concerning the residence order, which is a matter that is in contest in this application?

MR STEWART: Firstly, your Honour, I was not briefed in the trial, so I cannot assist your Honour as to that.

KIRBY J: Was your instructing solicitor there at that time?

MR STEWART: Yes, he was, your Honour.

KIRBY J: Perhaps he can say – it is not referred to and that rather suggests that it was not really raised in the trial or in the appeal court. I am just trying to think, if the applicant had a lawyer, what sort of argument might be mounted, that the error of the courts below is failing to give weight to a consideration relevant to the residence order, if it be such a consideration that the child is in the custody of the mother, who is not an Australian national but a national of Vietnam, might take the child to Vietnam and might then not be able to have the child returned.

MR STEWART: Your Honour, before I obtain those instructions, the trial judge made reference to the potential of her perhaps leaving and at application book page 7 - - -

KIRBY J: Did he refer to the Convention which the applicant is now relying on in his applications in this Court?

MR STEWART: No, he did not refer to the Convention specifically.

KIRBY J: That rather suggests that it was not raised before him because one would have thought he would have referred to it if it was raised.

MR STEWART: Your Honour, my instructing solicitor is unclear about that but he believes it was not argued specifically.

KIRBY J: Can you tell me this – and maybe you know this from your knowledge of the practice in the Family Court – it is suggested in the Full
Court that a certain matter was not the proper subject of appeal but could be raised in a fresh application to the Family Court, as, for example, to get some order for the security of the child’s remaining in Australia – surrender of passport or something of that kind. Is that something that would still be available to the father in the Family Court to protect any fear that he has concerning the Hague Convention?

MR STEWART: Yes, your Honour. There is a reasonably common order that is made either on an interim or final basis that refers to what is called the watch list, which is a list of children, in particular, who are kept on a list by the Australian Federal Police.

KIRBY J: Yes, I think we have heard about that in another case.

MR STEWART: So it is a reasonably common order in this type of case for children to be placed on this watch list and both the court and the experience generally appears to be that it is a successful step to take for the protection of children.

McHUGH J: The mother would have to put the child on her passport. I do not know what the practice is in relation to unmarried fathers, but certainly in the case of married parents the department requires the consent of the father for it to go on the passport. Then if the father refuses, the Family Court hears these applications and makes its own orders.

MR STEWART: Yes. The father is at liberty to bring an application if there is concern about this at any time.

KIRBY J: Query, what happens with Vietnamese passports, which presumably is the passport carried by your client.

MR STEWART: Yes, your Honour, but even if the Vietnamese passport granted my client the greatest liberty, the fact is that steps can be taken in relation to this watch list. If the father was of particular concern about that, then there is nothing stopping him bringing that relevant application.

KIRBY J: Very well.

MR STEWART: Thank you, your Honour.

McHUGH J: Mr C, you heard the discussion between Justice Kirby and myself with Mr Stewart. Is there anything you want to say about the matters we just raised?

C (through interpreter): Yes, your Honour. Even though the child’s name would be on the list, on a watch list kept by the Federal Police to
forbid him from leaving the country, the mother did take the child to Vietnam on 17 February 2003 and I have to personally go to Vietnam and bring the child back on 20 March 2003. That is what I have to say, your Honours.

KIRBY J: Was the child then on the watch list?

C (through interpreter): It was on the list at that time, but I guess there might be a mistake made by the Family Court judge which allowed the mother to take the child out of the country.

KIRBY J: In any case, this is a separate question than the one which is in the application for leave to appeal and the child is now back in Australia. Thank you.

McHUGH J: The applicant seeks special leave to appeal from orders of the Full Court of the Family Court of Australia unanimously dismissing his appeal from orders of the primary judge, Justice Rowlands.

There were two essential issues in the case. The first was with whom the child should reside and the second was by what surname the child should be known. Correctly, the Family Court accepted that in determining these issues the best interests of the child should be the paramount consideration. The primary judge considered that it was likely that the respondent mother would be permitted to continue to reside in Australia. His Honour ordered that the child continue to live with the mother, but with contact with the applicant father.

In this Court, in his submissions, the father has expressed concern that the mother is a Vietnamese national, might leave Australia with the child and that Vietnam is not a party to The Hague Convention on the Civil Aspects of International Child Abduction. This matter does not appear to have been an issue in the proceedings in the Family Court. If it is now to be an issue relevant to the residence order concerning the child, the proper place to raise the point is in a new application to the Family Court seeking new specific orders, not in an appeal to this Court.

As to the surname, the judge took into account that the parties had never married. He accepted the mother’s proposal that the child, a boy, bear the surnames both of the father and the mother. The father says that this is culturally insensitive. He claims that it would involve the child’s using a name that would cause people, presumably in China and Vietnam, the parents coming respectively from China and Vietnam, but perhaps even in Australia, to sneer at the child on the ground that only a married female may have such a combined family name.

It was open to the primary judge to conclude that, in Australia, the mother’s compromise would not be so interpreted. In Hong Kong, it seems, a country with a common law tradition, the use of joint names has occurred occasionally. The primary judge was not insensitive to the issue of the name of the child. His order operates primarily in Australia and affects the child as an infant. What the child does later as an adult will be a matter for him and may be affected by where he decides to spend his adult life.

No error being shown in the reasoning of the primary judge that the Full Court should have corrected, the application for special leave must be refused. The respondent has sought an order that the costs be ordered on a solicitor and client basis. However, in our view, the ordinary order is appropriate. Accordingly, special leave is refused with costs.

The applicant referred to his name a few times during the hearing and his name should be deleted from the transcript and replaced with the initials that are in the title of the proceeding.

AT 2.52 PM THE MATTER WAS CONCLUDED