TH v ERH [2011] HCATrans 102 (8 April 2011)

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TH v ERH [2011] HCATrans 102 (8 April 2011)

Last Updated: 14 April 2011

[2011] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S274 of 2010

B e t w e e n -

TH

Applicant

and

ERH

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 2.48 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR M.P. KEARNEY and MS M.R.M. BARNETT, for the applicant. (instructed by Barkus Doolan Kelly Family Lawyers)

MR G. O’L REYNOLDS, SC: May it please the Court, in this application I appear for the respondent with my learned friend, MS E.T. BOYLE. (instructed by Watts McCray Lawyers)

GUMMOW J: Yes, Mr Walker.

MR WALKER: Your Honours, in this case it is common ground, that is, in this Court and indeed in the Full Court after contest, that the bulk of the requirements for a return order to be made, furthermore a mandatory return order to be made for my client’s young son, had been made out in favour of the term. There had been the international abduction to which the Convention speaks and for which purpose our statute and our regulations have been moulded. What would ordinarily, that is, under the mandatory order for return then be worked out, as the Convention requires, would be that questions of custody and like, parenting matters, would be sorted out in the courts of Norway from which the child was wrongfully taken.

In this case, however, the mandatory nature of the order being subject to regulation 16(3), there was an issue at first instance concerning two matters, we say conflated - the Full Court wrongly regarded them as having been dealt with separately at first instance. The first matter was that there was a grave risk that the return of the child, that is to Norway, would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. The second appears to have been an expansion of intolerable situation by extension or some extending effect from the fact that the mother would, if she accompanied the child back to Norway, be in a situation of some social isolation and relative financial impoverishment.

CRENNAN J: Was there ever any contest about whether the mother would be going back with the child?

MR WALKER: Your Honour, ultimately it appears - - -

CRENNAN J: This is a child of three, is it not?

MR WALKER: I was about to say, ultimately it appears that that is treated as a given but I am bound to say that in the record there is reference to an attitude on the part of my client which would accommodate whether she went back or whether she did not go back. It is not something where - - -

CRENNAN J: He was offering to give some level of financial support if she went back.

MR WALKER: Exactly, he was offering to consent to conditions which would require the provision of money and perhaps of kind in relation to accommodation, et cetera, yes, and so it was obviously correct for the courts below to proceed on the basis that the mother would be returning to Norway. Now, on the other hand, Norway was the country from which, ex hypothesi, she had wrongfully abduced the child with whatever consequences that would have upon her social network in Norway. That is the situation that both at first instance and slightly, but only slightly, transformed in the Full Court was treated fatally for my client’s appeal to the Full Court as placing the child in an intolerable situation. Now, the matter in the Full Court was quite different - - -

GUMMOW J: The Full Court judgment says:

The evidence was that the parties would not be living together in Norway - - -

MR WALKER: Your Honour is looking at page 115, paragraph 143.

GUMMOW J: That is right.

MR WALKER: The very sentence I was about to go to, particularly the last part of it:

nor was there evidence that the father had ever breached a domestic violence order which could have led to a conclusion such an order would not adequately protect the mother and child.

At 145, the Full Court said that the trial judge had gone –

on to consider separately the defence of intolerable situation -

that is, having dealt with grave risk in a way that the Full Court said was wrong and required correction, overturning. The trial judge finds grave risk. The Full Court says no, there was not the adequate material to justify that, but there is this separate, so-called defence of intolerable situation. If I could take your Honours back to application book 56, where one sees the way in which the move was made at first instance from the first to the second so-called defence, and in paragraph 191, with great respect, the way her Honour expressed it at first instance really shows that paragraph 145 of the Full Court is indefensible. It is not a separate treatment at all. It is turning to the same purpose, exactly the same material as had served, wrongly it turns out, to ground the finding of grave risk.

GUMMOW J: Where do we see the text of regulation 13?

MR WALKER: Regulation 13, your Honour will find set out in the Full Court, I think - page 35 of the application book, one has 13.

GUMMOW J: Yes, thank you. Well, 13(b) says:

or otherwise place the child in an intolerable situation.

MR WALKER: Quite so, and as I have drawn to attention, that was the second matter to which the trial judge had turned, found against us, and which the - - -

CRENNAN J: Well, the nub of the finding is in 195, is it not, at page 57 of the application book, and at 116, at paragraph 150 the Full Court expresses the view that those findings were open on the evidence.

MR WALKER: Yes, and there, in our submission, lies error which is complicated by the matters of procedural fairness to which I will come in just a moment. At paragraph 195, the trial judge finds in the course of considering the same material as had led to her incorrect conclusion about grave risk - - -

CRENNAN J: It was incorrect because of the conflation, was it not?

MR WALKER: Indeed, but the conflation continues, in our submission, and at paragraph 195 again the concentration has to be “intolerable situation” for the child. There is here “compelling”, so her Honour said, “evidence” and I draw to attention that in order to link up with my procedural fairness point –

compelling evidence the mother genuinely and reasonably believes her life is at risk from the father if she returns to Norway.

As a matter of belief of course, that needs to be considered against the matter to which I have drawn attention at the foot of paragraph 143 on page 115 in the Full Court. Nonetheless, it then went on:

The seriousness of the past domestic violence –

et cetera –

combined with his threat to kill her –

All of these are of course findings made without any cross-examination or without my client being represented.

CRENNAN J: He did not deny that domestic violence had occurred, did he?

MR WALKER: It depends what you mean by domestic violence, your Honour. The threats to kill had been explained - - -

CRENNAN J: I thought part of his evidence involved some degree of apology for breaking her arm and threatening to kill her at some stage.

MR WALKER: Your Honour, the threat to kill is certainly the subject of an explanation which conveys a degree of admission, yes, but if I can just continue, the point is at the end of that sentence, it -

would place her in intolerable situation.

Then the link is made because of the child’s reliance upon her for what is said to be –

the entirety of his physical and psychological needs –

a matter which, with great respect, rather forecloses the very kind of inquiry which it is the purpose of the Convention to have a country such as Norway determine rather than on this kind of application in Australia.

Now, in our submission, when one then comes to consider the way in which this application was carried out at first instance, that gives rise to a grave concern that there has been a miscarriage of justice in the individual case and, in any event, in our submission, a misunderstanding of the way in which findings as grave as domestic violence that apparently, notwithstanding adequate Norwegian procedures, would still place the mother and, by extension, the child, in an intolerable situation and I stress, notwithstanding apparently adequate Norwegian protective procedures.

If one goes back to page 95, one finds in paragraph 60 satisfaction that there had been - as a result of the sorry saga of dealings between my client and his lawyer, the Norwegian authority and the Australian authority and their lawyers - by 6 July – see paragraph 60 – the father being made aware that –

she was not personally representing him, that he had a difficult case . . . the father was certainly aware he could obtain his own legal representation and that he sought to do so.

That, with respect, is a summary which really does not do justice to the extraordinary situation that obtained by reason of the events that can be picked up in relation to the so-called procedural fairness challenge commencing at page 87. The selection by the Full Court adequately picks up the matter.

At page 88, in paragraph 40, bearing in mind this is an exchange of correspondence in early June with respect to an application lodged on 25 May, the hearing which would eventuate on 25 November for a judgment on 13 April the year afterwards, my client was first of course assured – see paragraph 40 – of the fact that he would be represented in Australia by an attorney, meaning the solicitor from within the Australian Central Authority.

Paragraph 42, that was continued as a theme, towards the end of the month, by so-called counsel, the attorney, being named, again from within the Australian authority. Instructions were to come from the Australian Central Authority. The obvious conflict between the Central Authority, by which I mean at the very least a lack of complete congruence of the position of Central Authority and [Mr H] was not touched on at all by that misleading communication.

Paragraph 43, you see the first name of the mother. That is significant because when one goes to paragraph 51 on page 92, after the supposed occasion when my client had been told he could be represented, he is in communication with the woman formerly described as his attorney or counsel in the following terms:

[Is the mother] allowed to [be] there?”:

Should I [be] there?

Are you representing both [the mother] and me, or only me.

Is the material going to be presented verbally . . .

Are you presenting only my material or both [the mother’s] material and mine?

Then there was an answer to that which of course has to be treated in a way that the Full Court does not address at all. The Full Court had held that by 6 July, before 27 July, the father was on clear notice of the true position in relation to the authority not representing him. There is no consideration of the very disturbing matter clearly drawn to the Full Court’s attention from his communication of 27 July showing a thorough misunderstanding, no suggestion of insincerity, a thorough misunderstanding, greatly to his detriment in terms of taking steps of the position so far as would concern this drastic decision affecting him.

Paragraph 52, there is then a letter which, in our submission, compounds and renders far more grave the confusion that was evident in my client’s position shown in paragraph 51. So there are statements which are no means by obvious to a legal, let alone a lay, mind:

I am not representing you but I will argue the case for the return -

a statement at odds with the later proposition that the authority was not here to argue for return, but to present a case for compliance with Convention obligations. There is a reference to waiting for material, but that has to be backed up with the quoted advice from counsel that there will be a request to the Norwegian Central Authority to obtain material concerning what should be put on in Australia. It is for those reasons, in our submission, that when one culminates in the quoted counsel’s advice that:

I am unlikely to be able to make her resile from it –

that is, the narrative of domestic violence –

to any great extent in cross examination -

One is plainly, in our submission, left with my client being told not that there would be no cross-examination, but that there was pessimism about the likelihood of being able to make the mother resile from the damaging narrative to any great extent. For those reasons, in our submission, what happened at first instance - - -

GUMMOW J: Now, your client himself had been entitled to institute proceedings, had he not?

MR WALKER: I am so sorry, your Honour.

GUMMOW J: The way the regulations now work, your client could have himself directly proceeded under the changes that were made to regulation 14.

MR WALKER: Yes.

CRENNAN J: There can be, in the future, further litigation in relation to parenting, can there not?

MR WALKER: Yes, but not as the Convention would require in Norway, but rather in Australia, and it is to be remembered the Convention and our courts ought not to be neutral between Norway and Australia in this regard. It is from Norway to which the child was wrongly removed to Australia. The wrongfulness is not affected by any of the matters that were held against my client at first instance and only of which of course survived into the Full Court. The wrongfulness remains.

In our submission, what appears clear from the record is that the forensic decisions of the Central Authority, the Australian Central Authority, were not only greatly detrimental to my client’s position at first instance, for reasons which are utterly unexplained and which, in principle, are inexplicable, not only first instance forensic decisions, but what I will call appellate level forensic decisions by the Central Authority have been taken against my client. In particular, could I observe the way in which the matter is put on page 119, paragraph 164, their Honours reiterate:

we again emphasise . . . that the State Central Authority chose not to appeal her Honour’s orders, nor did they participate in the appeal . . . We may infer the State Central Authority too found her Honour’s reasoning on intolerable situation, and lack of conditions which could overcome that situation, satisfactory.

The more one ponders that sentence, the more disturbing it is, in our respectful submission, as an appropriate way in which to deal with (a) my client’s appeal - he was for the first time in the proceedings as an appellant, and (b) the difficulties presented by the way in which the State Central Authority had not even contested by any cross-examination, with or without optimism, in relation to the critical matters which gave rise to any concern about grave risk.

Now, when their Honours have found that the State Central Authority had run a case which produced a wrong answer on grave risk then, in our submission, logically there is nothing to be gathered from the State Central Authority’s unexplained refusal or request to play no part – they were excused, I understand – in the appeal, particularly, if one was to infer from that that they found her Honour’s reasoning on intolerable situation correct, which is going far too far. If that was correct, the same must be true of what her Honour said about grave risk, but they would have been wrong in that, as the Full Court found.

In our submission, when one then examines the intolerable situation finding which comes down to the financial position, that is, going from social security in Australia to the conditions which were not in any quantitative terms found to be greatly deficient compared to social security in Australia and Norway - when one talks about social isolation which is obviously largely, if not wholly, contributed to by the fact of the wrongful abduction from Norway in the first place, in our submission, the intolerable

situation finding is one which is against the terms of the regulation because the facts could not amount to an intolerable situation affecting the child.

It is for those reasons, given the highly unsatisfactory nature of the conduct of the trial at first instance, compounded by the illegitimate reference to the Central Authority’s non-participation in the appeal by the Full Court that, in our submission, in the interests of justice in this particular case and also in order that the Court may elaborate and expand on previous observations by it concerning the importance of the rapid but proper determination of these factual issues, the case is one apt for a grant of special leave. May it please the Court.

GUMMOW J: What do you say, Mr Reynolds, about the point taken as to the nature of the proceedings in the Family Court, the procedural fairness point?

MR REYNOLDS: Your Honour, the way we deal with that is in this way. The issue goes back, as your Honours will have seen from my learned friend’s outline of submissions - and I am talking particularly at the bottom of 134 through to 136 where the alleged denial of procedural fairness is repeatedly pointed up by reference to the absence of cross-examination. If your Honours go to page 100 of the application book, and over to 101, your Honours can see the findings which your Honour Justice Crennan referred to a little earlier, and can I stress three of them.

The first is the first bullet point on page 101, which is the eye injury matter and that was the subject, as your Honour Justice Crennan said, of a concession on the part of the husband. The second concession relevantly is the second bullet point, which relates to the breaking of the mother’s arm, and the final bullet point on that page was also the subject of a concession, namely a threat to kill. I could, if necessary, go through the other ones, except for the third-last bullet point, all of which were to some extent corroborated by evidence.

My point is this. There is a clear basis there for the ultimate findings that are made for intolerable situation on the basis, effectively, of concessions. If that is the case, we ask rhetorically, what would the cross-examiner have done, certainly in relation to the allegations which were the subject of concession? The other ones there except, as I say, for the third-last one – that is the attempt to strangle, which was rejected by the Full Court – were also the subject of corroboration.

So as your Honours appreciate under this regime - it works here under the Hague Convention. There is an issue, we acknowledge, about the extent to which cross-examination is required to achieve natural justice. I do not dispute that. But I submit that in this particular case, it is difficult to

see that it would have made any real difference. Your Honours have a discretion in relation to the grant of special leave and I say that for that reason your Honours should exercise that discretion by refusing leave.

GUMMOW J: Thank you.

MR REYNOLDS: If the Court pleases.

GUMMOW J: Yes, Mr Walker.

MR WALKER: Your Honours, the references to corroboration, of course, really only compound the difficulty. They include, for example, the double hearsay document of, really, unexplained or inadequately explained provenance of the very kind that ought to have been objected to, if findings of fact were to be contested, as they were, my client’s affidavit having been procured by the Central Authority. The forensic decisions were, with respect, unaccountable. Why would one contest matters and not insist upon a rudimentary level of reliability of evidence? That is the first thing about corroboration.

The second thing is about the so-called concessions. Yes, there was evidence before the first instance judge concerning certain incidents, in particular two of them. You will see them in the application book pages 45 and 47, respectively, paragraphs 155 and 161. They do not tell stories which are adequately or fairly summarised as domestic violence, unless one adds domestic violence of a mutual kind – that is, both dealing roughly and physically violently with each other. Each of the versions involves what in criminal law terms would be probably accident in relation to the particular injuries in question, certainly involve matters where there would not be an intention to commit the injury, to cause the injuries in question.

It is that very matter in relation to the quality of the conduct which would then feed later, we know at first instance, into a conflated version of intolerable situation by reason of a grave risk, which the Full Court failed properly to disentangle. The Full Court correctly overturned the unjustified finding of grave risk to the boy. In our submission, it ought to have followed that they should have done the same to intolerable situation.

None of that would have occurred, with respect, or should have occurred, had there been an appropriate approach first by the Central Authority to how to contest matters of fact, and second, with respect, had there been not the most unfortunate misleading of my client concerning the way in which he could be involved in this application. At page 105 – paragraphs 105 and 106 – I need not dwell on them – there is yet other examples of the way in which, had the matter been better or properly done at first instance, particularly without misleading information to my client

about his participation, then in our submission a different result could have been expected in the Full Court, because in the Full Court some use is made of corroboration which, with respect, could not have survived the most straightforward objection.

It is for those reasons, in our submission, that this is a case which presents as the Australian court system having dealt the necessarily peremptory decision – albeit after some unexplained delay – in a way which has denied my client the appropriate participation in something which is all the more important, the more peremptory, that is, the more prompt the decision needs to be. May it please the Court.

GUMMOW J: Having regard to the terms of regulation 13B of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) and to the conclusions of the Full Court expressed at paragraph 149 and in the first sentence of paragraph 150, and in paragraphs 151 to 155 of its reasons, there are insufficient prospects of success to warrant a grant of leave. Further, having regard to the concessions made respecting at least several of the incidents listed at paragraph 83 of the primary judge’s reasons, we are not satisfied that the interests of justice require a grant of special leave on the natural justice point. Special leave is refused. What is the situation with costs? There were no costs in the Full Court, I think?

MR WALKER: That would involve money from one person’s pocket to the same person’s other pocket, so there is no need for an order.

GUMMOW J: We simply order: special leave is refused.

MR WALKER: May it please the Court.

GUMMOW J: We now adjourn to 10.15 am on Tuesday, 3 May at Canberra.

AT 3.18 PM THE MATTER WAS ADJOURNED