SSS v Director-General Department of Families [2004] HCATrans 55 (12 March 2004)

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SSS v Director-General Department of Families [2004] HCATrans 55 (12 March 2004)

Last Updated: 22 March 2004

[2004] HCATrans 055

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B106 of 2002

B e t w e e n -

SSS

Applicant

and

DIRECTOR-GENERAL DEPARTMENT OF FAMILIES

Respondent

Application for special leave to appeal

McHUGH ACJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 2004, AT 10.40 AM

Copyright in the High Court of Australia

SSS appeared in person.

MR K.A. PARROTT: May it please the Court, I appear for the respondent. (instructed by Crown Solicitor’s Office (Queensland))

McHUGH ACJ: Yes.

SSS: This special leave application raises three issues. One, whether this case has been rendered nugatory, or there remains a mechanism in place to order my son back to the jurisdiction of this honourable Court, and that this Court’s power to order that a child be brought back from a foreign country involves a question of law which, it is submitted, is of national and public importance and special leave ought be granted. Also, as an implication, the Court of Appeal consideration of whether there has been a judicial bias and foregoing.....judicial process, and that the interests of the administration of justice, either generally or in this particular case, require consideration by this honourable Court of the judgment to which the application relates, thus requiring granting of the special leave.

On the issue of.....of judicial bias, judicial process, as an implied constitutional principle, I submit in Kioa v West Mason J stated the law on page 31, paragraph 21:

The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary intention.

In Registrar Court of Appeal v Craven, Kirby P states:

If the court concludes that a mistake has occurred or that a principle of due process of law has been overlooked, its fidelity to truth will ordinarily require that the mistake be corrected or the departure repaired. Only in this way will the final, perfected orders of the court, represent the formal manifestation of the court’s duty to the law.

It has been my submission that the trial judge intentionally tried to render my future appeal nugatory by announcing his dissatisfaction that I, a foreigner, have the right to appeal the decision, and that even if he were wrong in the interpretation of the law, he would have still sent my son out of the country, and, further, that he would be aggravated, and I would be punished, if I did use my right of appeal in trying to get my son back. Is the actions of a lower court judge in unilaterally deciding to forego the appeal and judicial process for any reason, ignorance or otherwise, reversible?

The trial judge was wrong in his interpretation of the law. This honourable Court has recently stated in Johnson v Johnson, page 1, paragraph 1 that the test for a bias in a judicial context in Australia as per honourable Kirby J is:

whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.

In Park Oh Ho v Minister for Immigration and Ethnic Affairs, the appeals court has stated that:

A decision may be set aside by the court under the ADJR Act only if it is shown that the decision was affected by an error of law, that is to say, some procedural defect such as a breach of the principles of natural justice.

The decision in this case was appealed, but was upheld by this honourable Court.

In Kennedy v....., Re Watson; Ex parte Armstrong and R v Sussex Justices; Ex parte McCarthy, R v Camborne Justices; Ex parte Pearce, Stollery v Greyhound Racing Control Board, Livesey v New South Wales Bar Association, In re R v Judge Leckie; Ex parte Felman, R v Shaw; Ex parte Shaw, Barton v Walker, Re Polites; Ex parte Hoyts Corporation Pty Ltd, Re Finance Sector Union of Australia; Ex parte Illaton Pty Ltd and Re JRL; Ex parte CJL, the gravamen of the court’s concern was that a reasonable apprehension of bias exists if, in all the circumstances, the parties or the public might entertain a reasonable apprehension that the judge was not impartial or unprejudiced in the resolution of the question before him or her and that this principle, which has evolved from the fundamental rule of natural justice that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice, and that not only justice must be done, it must be seen to be done.

As to the question of the power of this honourable Court to order my son back, I have already shown on page 124 and the two preceding pages of the application book that there are a number of mechanisms that make it possible to order the return. As well, the Convention has a mechanism in place for implementing the essence of my application, being ordering my son back and giving effect to the Convention. On page 124 of the application book, Regulation 15 and Article 7 of the Convention clearly give power to the courts of the signatory country to do as they see appropriate to give effect to the Convention.

As to the question of the undertaking as a mechanism, a particularly important error, perhaps a pragmatic one, in the submission of the central authority on page 130 of the application book will reveal that their Honours’ grounds for the central authority’s submission – it reads:

The fact that there is no such mechanism is, in part, due to the attitude taken by the Applicant at the hearing of the application to stay the orders made by the trial judge.

And that:

During the course of the hearing to stay the return order, the Applicant was asked through his solicitor, whether he would prosecute the appeal in the event the stay was not granted. The Applicant, who was present in court, indicated that he would not prosecute the appeal. The trial judge records this in his reasons for judgment and it forms the basis for him concluding that it was unnecessary for the mother to give such an undertaking in those circumstances.

The transcript of the stay hearing that augments the reasons for judgment of the trial judge has now been produced and it exposes the statement of the judge and the central authority as what I can only describe as a lie. Notwithstanding I believe I have shown the mother did, in fact, submit to the jurisdiction of this court by making an appearance and, nevertheless, despite the trial judge’s abuse of his discretion, there has been a mechanism in place, that this Court in any case has had the jurisdiction to order my son back, among others, as parens patriae, as in Marion’s Case.

The central authority offered an undertaking by the mother, but then, in the next three pages, argued that the undertaking should not be accepted. Furthermore, the trial judge’s other question was, in the event that he dismissed this application, but accepted the undertaking, in those circumstances, would I prosecute an appeal? My answer was that, in fact, I would prosecute the appeal and wanted the undertaking accepted, if that were the last resort. So this judge was supposed to accept the undertaking if he sent my son back. Therefore the central authority’s submission in the respondent’s summary of argument to this honourable Court is fundamentally false.

On the issue of a second appeal being an appeal to a stay decision, stated in the Full Court decision, although they are appealing or otherwise, after they say the decision does not constitute a mechanism affecting the power of this honourable Court to order a return, the reasons for judgment of 9 August became available on the same day as the stay hearing on 16 August, which was a Friday. The case was decided the same afternoon and my son was taken out of the country the next morning, a Saturday.

Anyway, even as imperious as the Queensland Department of Families and the central authority can claim that I, in any shape or form,.....was given any opportunity to appeal the stay decision before my son was whisked out of the country. As the trial judge pressed, “God speed”.

I have provided your Honours with documents that put to rest the continual insistence by the central authority and the trial judge....., of course, that I can easily choose to go to the US and deal with the matter there, and the question of access to a court. An official response letter from the US Consulate informs that I am not able to enter the US, by once again rejecting my application for return of residence that was filed in August 2002, before the Full Court’s hearing. I cannot enter the US, and the only other avenue suggested by the Americans is to apply for a non-immigrant visa, being a significant public benefit.....category visa, meaning that I am like any other average Joe trying to get into the US. Otherwise, that I have already been rejected entry and I have already been told in a previous letter that I cannot enter their country either temporarily or permanently.

I have, in my previous submissions, shown that I do not qualify for a non-immigrant visa in any way. This ground used by the central authority in their response is immaterial, because keeping in mind that I could not possibly be of any significant benefit to the public, even if I were given this category visa, the only venue for the visa as.....would be to get me into their jurisdiction to prosecute me for the pending so-called “eavesdropping” charge brought on by my ex-wife during the custody fight. It is of no application for a custody or a Family Court case and I would be in a disadvantaged position of being placed in gaol, perhaps in Guantanamo, and then be deported to a country I have avoided for 26 years for fear of persecution.

In R v Secretary of State for Home Department; Ex parte Sayanthan Shanmuganthan, on page 3, line 2, in the Royal Court of Justice in Britain, their Honours ordered the return of the applicant who was taken out of the country before his application for a judicial review could have been heard. Their Honours state that:

whatever [the case’s] merits may be and however great or small its prospects of success –

was immaterial. And same as a similar order in the case of M v Home Office, they should:

facilitate the applicant’s immediate return to the jurisdiction.

Their Honours state that:

it has probably not been suggested before us that it was an order of a nature that the court could not make at all.

Their Honours ordered that:

the Home Office should use its full endeavours in conjunction with the German authorities to secure the applicant’s return. The order of course can only be in those terms because the possibility has to be envisaged that the German authorities will simply decline to return –

the applicant. But their Honours state that the applicant must be returned, regardless of the chance of success of his application, by stating that that chance or otherwise was for the future.

This, your Honours, is the point that the central authority in their submission has dubbed “the tail wagging the dog”, when, in fact, it is the central authority that is employing this argument, suggesting that an order, which may not be enforced in the US, means that it is an order that this court does not have the power to make. This, your Honours, is what makes the special leave question of national and public importance.

Hypothetical assertions are not a proper subject for determination by a court, because the object of the judicial process is the final determination of the rights of the parties to an action. As it has been referred to before in Velez v Mitsak, the child was ordered back from Spain, where he was habitually resident, and the Court of Appeal in the US, the same as the Royal Court of Justice in Britain, found that the success or otherwise of the application was of no relevance to the fact that the plaintiff was deprived of the opportunity to present her case.

Contrary to the proposal of the Full Court in finding a remedy through the Family Court, my application for custody and contact has been rejected by a Queensland Family Court magistrate in May of last year. Therefore this honourable Court is the last venue for me to prosecute my case, for my son to see his father for at least nine years. The trial judge and the central authority’s preaching of the immorality of preventing a child from seeing one of his parents is rather pompous when they already advocate that a child should not see the other parent as a sort of punishment and.....point of justice, because now it is okay with them.

I have waited 14 months for my 20 minutes in front of the highest court in this country. It would be of utmost hypocrisy if the central authority attempts to use the passage of time as an excuse to forego judicial process. In Leeth v The Commonwealth, this honourable Court held that an essential feature of judicial power was that it should be exercised in accordance with the judicial process, and that:

A legislative direction which would require a power vested in a court to be exercised other than in accordance with that process is necessarily invalid. Its effect would be to take the power outside the concept of “judicial power”.

In In the Marriage of Bishop, their Honours Nicholson, Kay and Young cite Justice Lindell’s comments in Lee and Winterton:

the existence of a duty to exercise jurisdiction does not preclude the existence of exceptions based on the availability of a more appropriate alternative court as it does not deprive a litigant of access to a court altogether.

Their Honours cite Voth and Oceanic Sun Line and Philip Morris, where the concern was with an exercise of jurisdiction by an Australian domestic court in the case where a foreign court would also have jurisdiction.

The proposition for which Voth and Philip Morris assume authority....general principle recognised in both cases that “the court having jurisdiction has an obligation to exercise it”. An alternative court, being a court in the US, is inaccessible to me, and if this honourable Court does not assume jurisdiction I will be deprived of access to a court altogether. In SSS v Director-General, Department of Families, Callinan J rejected my application for expedition of this case, but found that this Court could have jurisdiction under the parens patriae jurisdiction. In De L v Director-General, this honourable Court states that, in a Hague Convention case:

The foundation of the jurisdiction of the Family Court . . . was not the jurisdiction with respect to “matrimonial causes” –

as in section 39 –

but a special jurisdiction conferred by the Act.

In reviewing the trial court’s adjudication of Mitsak’s Convention petition, the Texas Court of Appeal applied a de novo standard. In Diorinou v Mezitis, the United States Court of Appeal for the Second Circuit addressed the deference that a United States court should accord to a judgment of another country which has adjudicated a prior Convention issue. The court concluded that the appeal court should consider, de novo, the proper application of full faith and credit, res judicata and comity. The access of comity is at the heart of the Convention.

The United States Court of Appeal for the Second Circuit declared in Blondin v Dubois that the comments which section 98 of the restatement of conflict of laws revealed that judgments rendered in a foreign nation in most respects would be accorded the same degree of recognition to which sister states’ judgments are entitled.

The state of Washington, where my son is, has since passed the Uniform Child Custody Jurisdiction and Enforcement Act, UCCJEA. Section 105 of Article 1 of UCCJEA treats “a foreign country as if it were a State of the United States”. Section 20(1) defines the home state as having jurisdiction where the child resided within six months of the beginning of the proceedings.

In DJL, this honourable Court addressed the necessity to preserve the subject matter of a pending application for special leave to appeal. I submit that the lower court judge and the central authority are wrong in assuming that this honourable Court will not grant me justice because my 20 minutes are up and because the trial judge decided I do not deserve equal justice. What if this case was heard only a week after my son was removed from Australia? That, your Honour, is the core of the special leave question. This case must be approached as if it were at the original circumstances, in deciding the special leave question.

Protection of judicial process is an implied constitutional principle. This concept is employed and accepted by the courts of the country which the return will be requested from. The United States courts incorporate the “stop the clock” doctrine, utilising a concept of equitable.....which essentially approaches the case as if it were at the original circumstances, so that the passage of time will not deprive a litigant of justice.

The state of Washington, where my son has been living since his removal from Australia, has not issued an order for custody in favour of the mother, nor has there been a motion to modify the existing determination since the motion for change of custody proceedings in January 1999. Henceforth, at the present time, I am, in fact, a joint legal custodian of my son, as per the temporary change of custody order, March 1999, in Georgia. The child was not returned to the mother, but to the central authority, and they were the applicant. The order for the return would be, as well, an order to the central authority, recognising that the mother, nevertheless, has
submitted to the jurisdiction of this Court, among others, by making an appearance and conceding that she would bring the child back if so ordered.

The honourable Justice Buckley of the Queensland Family Court placed my son under the care of the Director-General of the Department of Families. By the time of my son’s removal, the court was exercising custody as per that order, and my appeal filed on 15 August 2002 was pending. So the judicial process has not been completed. Therefore, this Court retains its inherent jurisdiction, under parens patriae, as in Marion’s Case.

McHUGH ACJ: Yes, thank you. The Court need not hear you, Mr Parrott.

The applicant seeks special leave to appeal against orders of the Full Court of the Family Court of Australia dismissing his appeal against orders made by a judge of the Family Court that a child of the applicant be returned to the United States of America. The Full Court held that there was no remedy it could grant to achieve any meaningful outcome for the applicant father. Even if the applicant’s appeal to that court was successful on the merits, the Full Court found that the appeal would be rendered nugatory by reason of the fact that the child was now residing in the United States. Finding that no useful purpose could be served by the appeal, the Full Court unanimously dismissed the appeal.

Because the child has been returned to the United States, no useful purpose can be served by the proposed appeal to this Court. The actual decision of the Full Court of the Family Court, in our opinion, is not attended by doubt. Special leave to appeal is accordingly refused with costs.

The Court will now adjourn to reconstitute.

AT 11.00 AM THE MATTER WAS CONCLUDED