Bondelmonte v Bondelmonte & Anor [2016] HCATrans 299 (13 December 2016)

Last Updated: 13 December 2016

[2016] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S247 of 2016

B e t w e e n -

BONDELMONTE

Appellant

and

BONDELMONTE

First Respondent

INDEPENDENT CHILDREN’S LAWYER

Second Respondent

KIEFEL J
BELL J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 DECEMBER 2016, AT 10.14 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR R.M. SCHONELL, SC and MR S.J. WILLIAMS, for the appellant. (instructed by Karras Partners Lawyers)

MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS S.M. CHRISTIE, for the second respondent. (instructed by Legal Aid NSW)

KIEFEL J: The first respondent has filed a submitting appearance. Yes, Mr Walker.

MR WALKER: If it please the Court. Your Honours, this is an appeal against the dismissal of an appeal to the Full Court from the orders that you will find in volume 2 of the appeal book, starting at page 521. As your Honours know from the written submissions, the orders that are at the heart of the controversy are found on page 522, starting with number 8. This has been variously described as a set of options, or “cascade”, which commences with 8, so that the children there named are – in 8, subject to 9 – to live with the mother. “Live with” is a term of art; it describes a parenting order.

In 9, to which 8 is subject, in the event my client returns to Australia with the boys, the boys “can continue to live with him”. In the event that my client does not return to Australia with the boys, they are “to live with their mother” – that is going back, as it were, to number 8 – provided that if one or other of them, or both, “choose to do so” – so there is an option – “they may live either” – there is an option – one, in accommodation paid for by my client with services the mother consents to, or, two – at the heart of the controversy today – one may live with one named volunteer, as I have called them, and the other may live with another one.

Your Honours will see that although numbers 10 and 11, including 11, have to do with further steps in what I will call proceedings generally, one thing which is absent entirely from these orders, including 1 to 7 that I have skipped over, is any reference to “taking steps” in the various ways that the Act and Rules contemplate to ascertain anything further about the boys’ wishes in relation to that range of options. Your Honours, at the heart of the facts in the case is, of course, the age of the two boys, to which reference is made in paragraph 6 of our outline. The oldest one will become adult in the middle of next year. The younger one is only two years behind.

The older one, for example, is already too old to be the subject of convention proceedings. Against that background, it has to be accepted at the outset, as is not contested, I hope it appears from our written submissions, that, by failing to return the boys pursuant to the agreement achieved for their supposed holiday in New York, my client was in breach of the consent parenting orders.

The statutory setting is one which, in our submission, therefore assumes a particular and acute role in the way in which the trial court and then the Full Court in the majority set about the discretionary considerations and that is because, as your Honours are aware, at the heart of this special jurisdiction is section 60CC of the Act, which invents the two concepts of primary and additional considerations but notwithstanding those epithets they are all mandatory, though the primary ones have in particular a consideration, namely the safety, et cetera, of the child, to which greater weight is to be given.

Under the additional considerations is the one that is at the heart of the argument in this case, namely, that stipulated by paragraph 60CC(3)(a) of the Act, namely:

any views –

and we will come back to the word “any” and what it imports:

expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

I single that one out because it is at the heart of the argument. It is, of course, accompanied by other matters as well.

The nature of the orders to which I have drawn attention with the critical options or requirements to live with someone is picked up in the statute in the definition of a parenting order. If I can take your Honours please to section 64B of the Act, under subsection (1), paragraph (a), no distinction is drawn between what I will call permanent or interim orders:

A parenting order is:

(a) an order under . . . (including an order until further order) dealing with a matter mentioned in subsection (2) -

Then subsection (2) stipulates that:

A parenting order may deal with . . .

(a) the person or persons with whom a child is to live -

For the purposes of our third ground, while I am on section 64B, may I draw to your Honours’ attention subsection (6) where it is provided that:

a parenting order that provides that a child is to live with a person is made in favour of that person -

Your Honours, of course, all of these provisions pivot around section 60CA:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

That then brings in the Independent Children’s Lawyer provisions about which I will come to shortly.

Your Honours, the position that attained in relation to the views of the boys in this case can be put plainly but records an inadequate position. That is, as your Honours have seen from the reasons below and from the written submissions, the trial judge accepted that the boys wished to live in New York with their father. We will come shortly to considerations of those expressed wishes in the circumstances which included that which I have noted in opening, namely, my client’s breach of the orders.

However, there were no views expressed by the boys explicitly and consciously directed at the device of the cascade of options to which I have drawn attention in the orders, in particular, the two named volunteers for the boys to live apart from each other in the event of the options and events producing that possibility. When I say explicitly and consciously I mean that they, so far as the record showed, had never been asked about that at all, including by the Independent Children’s Lawyer.

BELL J: Did that come about because the initial proposal as an alternative to the boys living with the mother if the father did not return was for them to live with the paternal grandmother?

MR WALKER: Yes.

BELL J: I think the proceedings were adjourned for a short period and evidence was adduced that due to her frailty that was not a suitable arrangement and so the proposal that the volunteers be enlisted as one of the alternatives in the event the father did not return to the jurisdiction arose on the adjourned date for the hearing of the interim application.

MR WALKER: Yes, in the supplementary appeal book the adjourned occasion of 2 March commences at 637. Unfortunately, that very page records that the Independent Children’s Lawyer, the actual advocate, altered because of a broken arm that day, and then there is reference on page 641 about line 33 to that then recent - as Justice Bell has with respect correctly summarised - proposal on the part of the mother that as an alternative the boys live with their paternal grandmother and you see that reference at about line 33 on page 641 where my learned friend, Mr Schonell, appearing for my client refers to the affidavit which, as it were, answered that matter in relation to the suitability of the boys living with their paternal grandmother, that is, his mother.

Then, on page 644 at the top of that page about line 10 – that is, High Court 10 – you will see that something in the nature of a bargain is proposed by counsel for the mother:

If your Honour is going to permit the reading of the affidavit of the father –

and that is the one about the grandmother’s unsuitability –

then I’m seeking to tender two emails - - -

HIS HONOUR: Well, are you pressing order 11?

that is apparently a reference to the grandmother expedient –

MR BATEY: I am, your Honour.

HIS HONOUR: Well, why wouldn’t I allow the reading of that affidavit, then.

That is the one about the unsuitability. There is discussion about that. Then at the foot of that page his Honour refers about line 45:

But you made the application on Monday, or you foreshadowed the application on Monday. You made it this morning with no evidence to support that proposal –

that is, the grandmother –

as being a viable proposal.

MR BATEY: And I’m aware your Honour, now, of that affidavit which is why I then seek to file and rely upon two emails –

Now, the innocent might have thought at that point that this goes to something to do with this application and the response to it, namely, the grandmother. But if your Honours could, while not closing up that transcript, see what the two emails are, they are in volume 2, page 499 to 501.

At page 500, so that morning, 2 March, there is relayed from the mother’s solicitor something that she had received the preceding evening and you see one of the named volunteers undertaking to provide a family home for one of the boys for as long as may be needed upon his return to Australia in the event that he chooses not to reside with his mother, and then there is reference to some circumstances. Over the page, page 501, in similar fashion, again relaying that morning an email received the previous evening where another named volunteer says:

If [one of the boys] chooses to stay with us, we would be more than happy to have him.

And more circumstances concerning that, and an invitation to be contacted for further discussion. So, if we go back to the supplementary book, page 644, they are the two emails that counsel for the mother was referring to at line 50. Perhaps unfortunately his Honour said, perhaps a triumph of hope over experience, that he would “deal with the whole thing as a job lot” at that point. On page 645, there is an objection on the grounds of relevance. There is then an explanation of the supposed relevance which you see at about line 20:

we’re suggesting that the court would be satisfied that there would be suitable accommodation for each of the two boys –

and his Honour interposes –

But that’s not part of any application you’re making.

After all, his Honour has only just noted that the grandmother proposal was very fresh. That is conceded. “Seeking leave” – I presume that means to amend an application:

in light of the fact that your Honour has accepted the affidavit of the father –

Now, that is the affidavit about the unsuitability of the grandmother. So this is a, as it were, responsive move, so to speak. Counsel responds, perhaps inappropriately, to an inquiry by his Honour about wanting to amend by referring, I presume, to this evidence:

it’s to satisfy the court that there could be living arrangements here.

Then, if the court was of the view that the children living with the mother would not be “a realistic proposition”; there would be alternative living arrangements. Then, there is an attempted paraphrase by the judge, and then at the foot of that page, that progresses to the stage of seeking to find out whether the mother’s position was:

your client would agree to a notation that they could live with this alternate accommodation –

and on that basis, at the top of page 646, it was allowed. Nothing then ensued – and I am going to take you to the passages but not quite yet – that permitted any understanding of the boys’ wishes in relation to that. Of course, the court had before it the boys’ wishes – which it accepted but with the qualifications to which I will be coming – which were obviously diametrically opposed to living with their mother in Australia, or living, of course, with persons whose names have not yet entered into any of the litigious dealings in Australia.

KIEFEL J: On the other hand, there had been a parenting order made with respect to the mother. It is important that that is part of – this is the background to all of this.

MR WALKER: Your Honour, I accept that entirely. Indeed, I would concede it is not background; that is really foreground.

KIEFEL J: Yes.

MR WALKER: It looms very large.

GORDON J: It is the starting point.

MR WALKER: Absolutely. I tried to spell that out in the written submissions. Certainly, we would make it clear that is the starting point.

GORDON J: There are two aspects, are there not? There is the shared parenting order which was in place and remains in place, and there was no application by your client to alter that order - - -

MR WALKER: None to vary, no. There is no varnish possible, your Honour. There was a regime – current, in effect – and the mother granted the indulgence of the shorter notice than the order required for holiday departure – that needs to be noted as well – so that there was not a breach, ultimately, in the boys going to New York, but there is plainly a breach thereafter. I accept that the orders are, when one sees the reference to arrangements for departure from Australia, it is plain that keeping them in New York was in breach; failure to return and defeating of the parenting order. I accept all of that.

BELL J: Is it also necessary to take into account that had there not been a breach the boys would have returned in time to commence the school year?

MR WALKER: Yes.

BELL J: In the events that occurred, the primary judge was faced with an interim application for the boys’ return, to which on one view there was some urgency because the longer the proceedings took with the boys remaining in New York, the more difficult would be structuring an order bringing them back without interfering with their schooling.

MR WALKER: All of that is relevant. It is fair to say, however, that this was not treated as a case where urgency - of a kind that one recalls in real abduction convention cases - required, as it were, prompt return to Australia. The question of the school year did not figure as any reason, for example, not to do anything in relation to ascertaining their wishes. Indeed, as I say, it is significant that the idea - which is to be found in the transcript to which I will be going - of investigation of wishes being better done not in New York.

Now, I do not know whether that just means away from the glittering lights, to which reference is made, or whether it means away from living with the father, which of course would not be inevitable if they did come back to Australia, but one way or the other, that notion goes nowhere because there is no order, no steps contemplated at all about finding out anything further from them. In other words, the new parenting orders were made on the basis of that which was known, including the yawning absence in what was known about their wishes concerning this fall-back expedient.

NETTLE J: But would not the psychological reports have been got before the final relief had the interim relief been complied?

MR WALKER: Your Honour, it rather depends on the rigidity of a distinction between interim and final relief and the timing of hearings and, of course, the looming majority of the elder boy. There are simply no steps taken by the court at all in that regard.

BELL J: Were there not steps that were already in train before the boys went on the holiday?

MR WALKER: Yes, there were.

BELL J: The father was to attend a family conference of some character, I forget - - -

MR WALKER: And did so only by telephone from the United States.

BELL J: - - - and did so by telephone. But do we understand that - - -

MR WALKER: And the two boys, I should point out, were expected to but did not. That was in mid-January.

BELL J: Yes. Do we understand - - -

GORDON J: Those orders were not vacated.

MR WALKER: No, that is part of the regime of which your Honour’s earlier comments – with which the earlier comments are equally applicable.

BELL J: So, just to understand what was in train, had the boys returned in accordance with the orders of the primary judge - - -

MR WALKER: Yes.

BELL J: - - - do we understand that there would have been some consequence arising from the earlier family consultation, however it is described?

MR WALKER: I cannot say one way or the other because the details do not appear in the record that would, as it were, pick up that process to deal with events that had not occurred, of course, at the time that those arrangements had been made – that is, the breach of the order, the remaining in New York and the expression of wishes to remain in New York with their father. So I do not know whether that expedient would have been regarded by the court as simply taking account of those radically different circumstances.

KIEFEL J: But can one reasonably infer that the matter must have – it must have been in the primary judge’s mind that the matter would come back before the court. Matters could not have been left on the interim base for very long.

MR WALKER: No, normally that would be obvious. You would not even call it an inference. These are not matters which, as it were, are ever signed, sealed and delivered, never to be reopened of their nature.

KIEFEL J: Yes.

MR WALKER: However, given the delays in the court and the age of the elder boy, it is by no means obvious that there would be any further proceedings in relation to him, for example, and therefore any meaningful interlocutory out-of-court investigation would not necessarily make any sense for him at all.

NETTLE J: The judge plainly contemplated that there would be. Paragraph 34 he talks about a full family report looking not just at the boys’ views but at the dynamics, the relationships and all of the other - - -

MR WALKER: And their sister, for example, in particular. Your Honour, that the elder boy would be involved in what I will call that “overall family dynamic situation”, I think, is clear to demonstration. That the older boy and parenting orders in relation to him would ever be the subject of any further litigation is highly doubtful.

NETTLE J: Because of his age.

MR WALKER: Because of his age. Indeed, we say the same of the younger boy, as well.

NETTLE J: Well, there was still a better part of two years to go at the time this was all happening.

MR WALKER: Well, yes, your Honour, but my point remains the same in terms of the regime.

NETTLE J: I do not know why. If the orders had been complied with they would have been back in this country in January. He was still two years shy of maturity.

MR WALKER: That is true, your Honour.

NETTLE J: Why could not have assessments been made within that period?

MR WALKER: Your Honour, they could have been. I am saying is that there is no provision made in the orders that we challenged in the Full Court. There was no provision for any such thing to happen at all, that is all. Of course, it could have been done.

BELL J: Had his Honour granted liberty to apply, in the event there were some particular difficulty with the arrangements, say the father chose not to return to the jurisdiction and the children did not wish to live with their mother and the father chose not to provide for them to live in the supervised accommodation so that ultimately the proposal came to pass that they lived with the volunteers, if that presented a difficulty, either the father or the Independent Children’s Lawyer might have taken up the liberty to apply that his Honour granted.

MR WALKER: There is no doubt about that and, in particular, in relation to the Independent Children’s Lawyer, I will be taking you to passages that show, I think, to the forefront of the position taken then but not now was the undesirability of the orders being made in the absence of more knowledge. I will come to those passages.

KIEFEL J: Do we take it that the father was unlikely to return or it was just a matter that his Honour the primary judge could not resolve?

MR WALKER: It really is the latter finally but it is very much floated in the former way – that is, it did not appear that he was about to come back.

KIEFEL J: It was not entirely in his interests to do so.

MR WALKER: Exactly, that is - - -

BELL J: And he chose not to inform the court one way or the other.

MR WALKER: Your Honour anticipates what I was about to say. It is left to what I might call atmospherics but they are strong atmospherics and that they are atmospherics is, as Justice Bell points out, a direct function of the lack of evidence from us.

KIEFEL J: Did the father seek, say, an adjournment to put on material in relation to these alternative living arrangements, because presumably he would have known the people involved?

MR WALKER: Your Honour, I think the short answer is no. Perhaps it is best if I do take you directly to that just to deal with that now. A position is taken during the course of the hearing about the position – the unsatisfactory nature of the evidence, so to speak, but no, I do not think it can be read as seeking and adjournment.

I had taken your Honours to page 646 where those two emails had been tendered. The question of boys’ views, including in the cascade of possibilities, arose then in the course of submissions and there is a passage starting at the foot of 650, going on to 651 and over to 652, to which I draw your Honours’ attention.

GORDON J: What is the point that comes out of these passages, Mr Walker?

MR WALKER: What comes out of these passages is that the possibility of the children’s views being explore in relation to the orders that were in question was raised – indeed, could I identify in particular at 651, about line 30 and following. The judge says to counsel for the mother:

you haven’t talked to me about the boys’ views, you haven’t talked to me about whether or not I should place weight on what you might suggest on the face of the document, is a fairly blatant breach by the father of orders.

That, of course, informs one of our points here. Just before line 40, counsel:

But we would say, your Honour, that should be a matter that should be decided here. As I understand your Honour that the children’s views are being explored by the ICL.

I am going to come to that:

We can do no more than put before the court that we consider . . . we cannot understand why it is that the children are expressing the view . . . through the father, therefore not verified, as to whether or not they wish to spend time with their mother.

So we submit, your Honour, that the views of the two boys, albeit they’re of an age where ordinarily the court would take into account, we say the circumstances of their views being expressed via emails, we say most probably under the instruction of the father, that your Honour would give little weight to those particular views that he has expressed in his affidavit.

The judge tried to sum that up:

because of the nature of the – the way the evidence has been presented and the circumstances surrounding how it has all happened –

That is how the mother’s counsel was diminishing, as it were, the expression of view. Ultimately, as you know, the judge accepted that the boys wished to remain in New York with their father. At page 652, there is one of those references – this is during discussion, of course, not in a judgment – where the judge is asking questions about the weight in relation to the way in which the father has constructed what has happened. Then at line 20:

best interests have to be paramount, but I can take other matters into account.

Then that question of breach is continued on 655, but it is really at about 658 when my learned friend Mr Schonell is addressing his Honour on behalf of the father. At about 658, about line 25 or thereabouts, there is a reference to the state of the application at an earlier point, and the significance noted about line 35 that they should have the choice of living where they want to live in Australia. Then, at about line 45, there is a reference to the ages – this is argument – and a reference to what the boys would not find palatable and she had acknowledged.

At 659, about line 35, there is the reference to the apparent factual contest, which the mother did not succeed in at trial – that is, whether the wishes were indeed the boys’ wishes. That reference continues at the foot of 659. Then there is the important passage of argument, at 660 to 661, really continuing over to 663 where the problem of the evidentiary gap is highlighted.

On page 660, about line 25, there is a reference to a series of alternative propositions, line 30, being put up, what counsel calls a complete vacuum as to how they will cope or deal with the situation, an argument that there is no evidence. Of course, the judge does not respond to that by saying there was evidence and there was not, nor by drawing inferences from their earlier expressed views before these alternative propositions had been raised.

Page 661, at about line 15 or thereabouts, the absence of evidence concerning the effectiveness or appropriateness from the boys’ point of view – that is, treating their best interests as the paramount consideration – is noted. Just after line 30, on page 661, in particular there is stress laid on the fact that there is nothing before the court to enable an assessment of the suitability of the arrangements, let alone the boys’ wishes in relation to those alternative arrangements with the volunteers, that argument continuing at about line 45, on page 661. Page 662 - - -

KIEFEL J: Does the statement at line 35, on page 661: “My client doesn’t know anything about these people” – do we take that to be a fact?

MR WALKER: That is all I know in the record about this, your Honour. Of course, there were no affidavits about this.

BELL J: The email from one of the proposed volunteers says that her son has known – [R] I think it is - - -

MR WALKER: There are two.

BELL J: - - - since the two boys were aged two.

MR WALKER: That is right.

BELL J: It would be surprising if the father did not have some knowledge of people with whom his son had had a friendship going back so many years.

MR WALKER: All I can say, your Honour, is it is not human experience, apart from knowing that your children’s friends have parents and occasionally seeing them, it does not mean you know anything about them, let alone in relation to suitability to provide accommodation.

BELL J: I suppose that is correct. Coming back to the submission by Mr Schonell about the vacuum in information before the court respecting this alternative proposal, it is to be noted that the trial judge inquired what proposal your client offered in the event of return and no proposal was offered - - -

MR WALKER: That is right.

BELL J: - - - so that there was – his Honour was confronting a difficult position.

MR WALKER: There is no doubt about that, none at all. However, I am concentrating in particular on the views of the boys. I could not possibly have had a special leave point or an appeal point by complaining about their Honours not being more solicitous of my client in his forensic position; that is not the point.

BELL J: I understand that, Mr Walker, but is one inference if - given the trial judge’s acceptance that the boys had preference to remain in New York with their father, is it seriously suggested that if it had been said to them, well, one possibility is that you will be returned to Australia to live with your friend’s parents until things are sorted out in a final sense, that the boy would have said “yes”?

MR WALKER: Well, your Honour, in one sense, no, of course not, in one sense. The problem with proceeding on that basis, which is to prefer or to treat lack of knowledge as sufficient, is first of all the statute really does not sanction the idea of preferring lack of knowledge, and second, in a case where the boys’ wishes, though accepted by the judge, are diminished in their weight by reason of matters to which I am going to come, it was, in our submission, simply not proper to treat the matter as too obvious to need inquiry, particularly if – and I do not need to read the passages but can I draw to your Honours’ attention that there is then over the next four pages arguments strongly put by my learned friend, Mr Schonell, that this was a matter upon which a wishes report could be got, and that it could be got from somebody in Australia speaking to the boys or somebody in America and that it ought to be done before the thing was ordered, in which the best interests of the boys was the paramount consideration, rather than an understandable chagrin, or worse, at the behaviour of the father.

My learned friend put all of that, in particular if you see at 662 in the passage from about line 30 to the foot of that page, it is accepted that “good grounds for viewing” our client’s conduct in a “poor light”, et cetera, but an emphasis on ascertaining the wishes of the boys, and it is precisely because there was the deprecation of a kind by his Honour adopted by, and I should say accepted, by the majority in the Full Court as appropriate, of the expression of those wishes because of the influence of New York, the influence of the father, it is precisely because of that that it became more and more important to know what they really thought about those possibilities.

To guess is not taking a consistent approach because, on the one hand, the expressed views are being understood as being coloured by the father – they are not rejected, it is accepted that is what they thought – but coloured by the father. On the other hand, no attempt made to find out, not through the father but through an ascertainment of wishes. Now, it is to be recalled, of course, that children cannot be compelled to express views under the Act. But in this case there is no suggestion that there would have been any difficulty. No one has ever suggested that that is a reason not to have tried.

BELL J: Is the legal error that you identify in the primary judge’s decision the omission to set in train some proposal to ascertain the boys’ views about the alternative proposal in the event the father did not return with them and in the event they did not stay in the accommodation paid for by the father that they might live with one or other of the volunteers? That is the legal error, is it?

MR WALKER: That is the sharpest point on that first ground, yes, your Honour.

BELL J: Yes, all right, I understand.

MR WALKER: Your Honours, the argument concerning that before the trial judge made that point very plainly not only the passages I have already taken you to but they culminate at 664 to the top of 665. I note the whole passage that starts at about line 25, and your Honours will see included in that passage at the foot of page 664 between about lines 40 and 60, there is a series of comments and they are raised with counsel – I stress this is not the judgment – but a series of comments by which his Honour exposes a view concerning the other point to which we are coming, namely, the use of the understandable disapproval of the father’s conduct in making a decision about the parenting orders for the boys, and it culminated in the argument with the proposed response to that position at 665, about line 10.

GORDON J: There is something quite artificial about it though, is there not, when you have got – you have accepted from Justice Bell the legal errors predicated upon two “ifs” – if the father does not return and if the children do not like the alternative. I mean, the primary position was that the children could choose where they lived if the father returned.

MR WALKER: Yes, your Honour – yes and yes. Of course it is artificial - - -

GORDON J: That is your biggest problem. The father chose not to return. If he returned, the children could live with him.

MR WALKER: There is no question about that. On the other hand, it is the best interests of the children; it is not disapproval of the father - - -

GORDON J: There is no disapproval; the question is the choice of the father. The father could come back to Australia and the children could live with him.

MR WALKER: No, I understand that, your Honour, entirely. But if the father was not about to come back to Australia, then the question was for the court what to do, because - - -

BELL J: In that circumstance, in determining the best interests of the children, the primary consideration of the two primary considerations – the one engaged here – was the benefit to the child of having a meaningful relationship with both of the child’s parents.

MR WALKER: Yes.

BELL J: So, looking as the primary judge did, in particular at the situation of [J], where the evidence, as I understand his Honour’s finding, was that there was a basis for [J] to continue to have a relationship with his mother and with his sister, that was the matter to which the judge had to give primary consideration – that is, not to say that it was not necessary to consider [J]’s views. His Honour was faced with the difficulty of accommodating the requirement that he seek to take account of the benefit, to [J] in particular, of a meaningful relationship with both parents in circumstances where the decision as to whether or not [J] might have that meaningful relationship with his mother depended very substantially on whether the father would return, in which case, [J] could live with the father and have the relationship with the mother, and if the father chose not to return – which circumstance he declined to reveal to the court – then his Honour had to structure orders that would accommodate that circumstance.

MR WALKER: Unquestionably, and “artificial”, as Justice Gordon raises with me, is one of the ways you could describe the position – “unpleasant”, “awkward to an extreme degree”, all of that. The family had not been described in happy terms in any of the materials leading up to this. I stress, I am not here to plead the merits of my client in ways that should attract this Court’s appellate intervention. That is not the point.

BELL J: I understand that, Mr Walker. It is just that you keep saying the focus is on the primary interest of the child, and then you slip immediately to the child’s wishes. I draw your attention to the primary consideration - - -

MR WALKER: Yes, of course. I hope I am not slipping there. I have gone there because it is one of the mandatory additional considerations, and it is unquestionably one about which the Court has to engage in the exercise called “considering”. There has to be consideration.

There had been clearly expressed wishes. The judge’s approach to those wishes – I am going to come to in a moment in the reasons – as I say, deprecates or diminishes that clarity of expression. But, in any event, the expression had not accommodated to that which on the run during the hearing had been raised as one of the possibilities.

When I am talking about the boys’ wishes, of course, I do include in relation to the contingencies that the court was obviously considering and finally decided ought to be contingencies that triggered the content of the parenting order, so that the boys’ wishes should have been considered in relation to and what will happen if your father does remain in New York and you are in Australia, what are views, et cetera, et cetera.

The simple return to that notion of New York or Australia, with the question of relationship, at least for the younger boy with his mother, and probably for both boys with their sister, all of that, in our submission, is something which called for a consideration of wishes in a way that the unfolding of this extraordinary hearing did not permit. It is no answer to say that my client could, by proxy, convey the views, after all there had been criticism of the fact that the only evidence of the wishes was either by his affidavit or by emails which the mother criticised as being composed while they were with the father.

BELL J: I think at the commencement of the hearing the whereabouts of the children was not known but at some point an address was given.

MR WALKER: Yes, your Honour. So, as I say, it is not an area where one can, as it were, say to my client but it is all on your own head. Yes, in many ways there are many things about which that is true in this case but not in relation to the wishes of the boys concerning a contingency which my client was not proposing and now, if I can come to it, neither was the Independent Children’s Lawyer.

It starts – your Honours, perhaps if I can pick it up at an earlier stage in the proceedings so as to do it once and completely. When Ms Connor was appearing about 624 in the supplementary book – I do not need to dwell on this – about line 50 there is a reference to her contact with the boys at a much earlier stage. At the top of page 625 a reference to the sister, and then at about line 12 or so:

The only thing I would say, your Honour, is that from a practical point of view, I just don’t know how it would look if both the boys were brought back with the intention of them residing with their mother in the circumstances prior to their leaving.

which is a euphemism for a very unsatisfactory state of affairs. Then, as to wishes says:

I’m not entirely convinced as to the utility of that.

Then there is a reference to the affidavit of the father and a stream of texts:

I’m not sure how much further - unless those texts are challenged, I’m not really sure how much further a wishes report would take the court, but certainly if your Honour were minded to do that –

But your Honours will bear in mind this, of course, is before the cascade proposal – alternative proposal had come up. One sees that, in any event, at the foot of that page, the Independent Children’s Lawyer regarded the mother challenging even the authenticity of those communications. If I could take your Honours briefly, then, to 629 to 630, this is where the grandmother idea had been raised.

You can see that when it was first raised in the afternoon of 29 February there was an attempt to get instructions about it on behalf of my client, about line 35 on 629. The Independent Children’s Lawyer at the foot of page 629 contemplates the father returning with the boys to Australia and then says:

The boys would have the opportunity of meeting with someone, I would propose, meeting with someone to discuss and explore the real consequences of what is happening.

Then over the next page he continues to talk about New York. Then:

I wonder, your Honour, whether anyone has really explored with them in any great detail the consequences because the father’s actions in failing to return them really are in flagrant disregard of the current court orders ... flagrant disregard of ... any meaningful relationship –

with the sister, et cetera. Then just after line 30 on 630:

one really has to reality test the mother’s initial proposal that the boys reside with her –

So the idea of the cascade starting with or ever returning to living with the mother is one the ICL is not very enthusiastic about and it follows up with some data which would rather suggest why that might be so. Then if your Honours could go over to 666, so this is the final address then by Ms Maitland who had taken up the cudgels after Ms Connor broke her arm. In an understatement, she commences at 666, line 35:

the court is in a very difficult position –

Then at page 667, the ICL says:

There are concerns that that –

that is, the failure to return –

has happened and how the father has behaved. But also, from the independent children’s lawyer’s point of view, the practicality of where the children will live once they return –

Then the judge asked:

What orders do you want me to make –

The reference to Ms Connor is a colleague, obviously. Ms Connor’s incapacity to place a view as to what orders should be made is then relayed to the court at line 10 on 667. Then at about line 25, there is a reference to:

The only evidence ... about the children’s views is there is nothing within the report as I was referring to –

because that is the interview process on 13 January. Then with their sister on 20 January they had left. Then the judge refers to the limited nature of the evidence about views. Then not surprisingly the ICL at about line 45 doubts the utility of going back to what was understood from the earlier meetings in October. Then at 668, the question of a wishes report is raised:

If your Honour was mindful of making a return order, or a return order pending a wishes report, the independent children’s lawyer has made some inquiries ... to see if they would be able to assist –

and they have not received a reply. Of course, all this has been done very much on short notice. Then, at about line 20:

I’m sorry we don’t have any formulated orders, your Honour. We think it’s a very difficult matter in the fact that the children have been, on the mother’s case, wrongfully retained, but we are concerned about the practicality of where the children would live if they are returned to Australia.

So it is coming to that point about in the contingencies that the orders contemplate, including the father not coming back, whatever one may think to the detriment of the father’s good standing, there is still the question, practicality as the ICL correctly points out, of what is going to happen with the boys. Then there is a reference to the volunteers’ proposal:

I understand the mother has put forward friends of the family who have both said that they would like to be able to look after the boys. That’s separately, not together . . . would be living without a family member. It means that they would not necessarily be seeing each other regularly. It wouldn’t be something that the independent children’s lawyer could accept.

Yet, without really any explanation at all, and it cannot possibly be because the first respondent is submitting in this Court, the second respondent, the ICL here, is taking an opposite view. It is not neutral about the point. It is positively saying that this was an order which the Full Court correctly did not disturb, notwithstanding that before – at first instance the ICL’s position was it could not accept that arrangement.

BELL J: Did the ICL in the balance of the submissions on 668, going over to 669, come to a view about the proposal that the boys might stay in accommodation provided there was supervision paid for by the father?

MR WALKER: Yes, and that is pretty clearly related to, and perhaps explanatory of, the alternative in the cascade of options that I drew to your attention in opening the appeal.

GORDON J: Paragraph 9.1 of the orders provides for it.

MR WALKER: Exactly. Exactly so, yes. As Justice Bell points out, that is what the colloquy between Ms Maitland and the judge seems to be directed at for most of the rest of those submissions.

BELL J: Also in the context of the ICL putting a submission that it was important for the girl child to have a relationship with her brothers.

MR WALKER: That is a point which is very significant to grasp from the ICL’s point of view.

BELL J: Yes.

MR WALKER: We have said nothing about that being wrong. It could not possibly be said that that was wrong. But it equally does not answer, does not even begin to meet the point, about the boys’ wishes.

BELL J: But it was a matter for the primary judge - - -

MR WALKER: Very much so.

BELL J: - - - who had to determine ultimately an order that would accommodate interests including those of [N].

MR WALKER: And this is one of those cases, we accept, where the things that all have to be taken into account are what are sometimes called incommensurables. So a relationship with a sister and a desire to be with a father and not things which are easily, as it were, cancelling each other out or the like; accept all of that.

Now, your Honours, in answers your Honours’ questions, I have I think now taken you to all of the pre-judgment forensic course that we wished to draw to your attention. It is highly significant, as we try to point out in item 4 of our outline, that the position of the ICL is radically different and, in our submission, the position as the ICL put it below is one which in fact had as its foundation that there was an absence of evidence including about the boys’ wishes for what the ICL called the “practicality” of living in Australia under a proposal as was then being argued which foreshadowed, of course, the orders that were made, particularly item 9 of the orders.

Now, your Honours, if I could then complete what I wanted to say about wishes by referring to two other statutory provisions that you will have seen argued in the parties’ written submissions. First of all, there is 60CD. Subsection (1) starts with a paraphrase of 60CC(3)(a), to which I draw attention, and then says of 60CD itself:

This section deals with how the court informs itself of views expressed by a child.

Then there are the ways stipulated in subsection (2) which, subject to rules, expand to such other means as the court thinks appropriate.

One notes the note to paragraph (b) but, rather than rely on it I will go to the other section, which is 68LA, which is one of the provisions appertaining to the Independent Children’s Lawyer. And one sees under subsection (2) that there is a requirement to:

form an independent view, based on the evidence available to the independent children’s lawyer, of what is in the best interests of the child –

Of course, that parallels the regime that is set down in 60CC. It makes that germane. Under subsection (3) there is an obligation upon reaching satisfaction as to what would be in the best interests to make a submission suggesting that. That has significance because of the opposition expressed by the ICL in this case to the practical arrangements that were being argued for. Then under subsection (5), so-called “Specific duties”, paragraph (b), the ICL must:

ensure that any views expressed by the child in relation to the matters to which the proceedings relate are fully put before the court –

And then you will see there is a reference to reports, which are not necessarily only about views of course in paragraph (c).

Now, your Honours, we have drawn to attention thus two uses of the word “any” in relation to views: 60CC(3)(a) and 68LA(5)(b). We argue, as you have seen, that that is not to be treated in the idiom “views, if any” – that is, the legislation being neutral as to whether there are views or not. It is to be recalled, of course, that by reason of 60CE the whole of the regime about children’s views mean that there will not be compulsion to express a view, for obvious reasons.

There is no suggestion in this case that there was any greater difficulty added to the already difficult case by reason of any feared or apprehended refusal to supply views, and, I stress, there were views and they were views which could not be fully put before the court unless there had been a return to attempt to find out how the boys would respond in the contingencies that had emerged as being critical after they had expressed the views that were before the court. Their views which were before the court via their father’s affidavits and the text messages, their views were views that had been put in response to the return to Australia.

KIEFEL J: Does it matter in this context whether or not the orders made in relation to these alternative arrangements by the primary judge are viewed as in law orders relating to temporary accommodation or are in fact in law parenting orders?

MR WALKER: We think not to any of our ultimate arguments - - -

KIEFEL J: Although you have got a separate ground of appeal in relation to 65C.

MR WALKER: Yes, I am going to come to that. Our position, as your Honour sees, is that these are parenting orders, yes.

KIEFEL J: But if one views these orders simply as matters relating to temporary accommodation until views can be obtained, then the original parenting orders are still operative. This is just a temporary fix, so to speak. So the statutory requirements about the ascertainment of views might not have quite the importance.

MR WALKER: I see, with respect, what your Honour has raised. There is certainly no consideration of that approach by the trial judge or by the majority of the Full Court – that is, that this is in the nature of short-term emergency pending the obtaining of, say, a wishes report.

NETTLE J: He stresses it in paragraph 60 of his reasons.

MR WALKER: I am sorry, your Honour?

NETTLE J: The judge stresses in paragraph 60 of his reasons that:

Again, we are talking about temporary arrangements pending a final determination of the father’s application for international relocation –

MR WALKER: Your Honour, there is no question that everything in this field will be temporary – that is, it is not final in the same way that - - -

NETTLE J: Granted that, but 59 too:

it is a possible temporary arrangement pending a determination . . . as to whether or not the boys should be permitted to relocate internationally.

It is temporary. It is a quick fix in all the circumstances, is it not?

MR WALKER: There is no doubt it is temporary in the sense I have put it, but no, there is no reasoning here that says, “Here is what we are going to do when they come back”. He does not make any orders at all, your Honour, of the kind that the court could make, and of a kind which one would have thought the ICL’s submission below would have justified.

GORDON J: But what do we do with paragraph 34 of his Honour’s reasons? It is clear that he thought there was going to be:

A full family report, prepared in Australia –

The reasons refer to it, and he goes on to identify the aspects that the report would look at –

not just look at the boys’ views but look at the dynamics of the relationships . . . the future of the relationship between [the daughter] and her father –

et cetera.

MR WALKER: Your Honour, 34 is very clear in that regard - - -

GORDON J: Is that not what the judge expected to happen?

MR WALKER: Well, it is equally clear that there was no such order made at all.

NETTLE J: There is a liberty to apply. I mean, everyone has got the right to come back at the drop of a hat and get it going as soon as the children are back in this country. What more is required?

MR WALKER: Well, your Honour, what more is required is, in our submission, that there not be orders of this import for the boys made without observing what the statute requires in relation to their wishes.

NETTLE J: It is plain the judge was seized of the importance of ascertaining the children’s wishes. That was the very purpose he brought them back here to get them ascertained by someone he could rely upon.

MR WALKER: Your Honour, in our submission, there is no finding here which rejects on grounds based on fact ascertaining wishes while they were in New York. It is not suggested that everyone can only ascertain wishes with them physically in Australia.

GORDON J: The Full Court deals with that issue at paragraphs 53, 56, 57 and 70 and expresses doubts about the extent to which he could rely upon information obtained in New York about the children’s views.

MR WALKER: Your Honour, that is one of the difficulties that I referred to earlier. If those views – that is, evidence about those views, are to be diminished in their cogency – that is, question marks are raised against them, that indicates a need to do more. It does not justify doing nothing in relation to it.

So, if it be the case, and ultimately of course the judge did accept that those were their wishes, but if it be the case that there is reason to doubt whether their wishes really do speak to the true position presented, then that is why a wishes report would be appropriate. As I say, it is very difficult to read the judgment and the orders together as positive on the basis that unless they come back to Australia there cannot be an adequate investigation of their wishes, because logically that might be available in another case but that is certainly not this case.

KIEFEL J: Mr Walker, did the father formerly apply for international relocation?

MR WALKER: No.

KIEFEL J: The primary judge is simply saying that is effectively what he would have to do if he - - -

MR WALKER: Yes.

GORDON J: He sought no variation of the order, he sought no international relocation, he just sought dismissal of the mother’s application.

MR WALKER: That is exactly right. That is exactly right. But, your Honours, this point is important to us, I therefore repeat it. This is not a judgment against the father in terms of me urging a lack of demerit in him personally. This is saying of these orders that the court is required to proceed in a regime which has an Independent Children’s Lawyer, which has the children’s best interests as the paramount consideration and which raises practicalities that cannot be solved by the pretended notion – I am not suggesting anyone in this case had that – as being able to dictate where the father should live.

BELL J: At paragraph 32 on appeal book 511, the primary judge indicates his willingness:

to accept the father’s evidence as to the views expressed by the boys.

Then he says:

I would not expect those expressed views to be any different if the boys spoke to a report writer in New York. The weight that I place upon those views are weakened by the circumstances which have been contrived by the father.

Now, I understand you take a point about the latter, but when one reads on to his Honour’s views about the desirability of a full family report expressed in paragraph 34 to which Justice Nettle has taken you, is not that a clear indication that his Honour has turned his mind to the question of a wishes report conducted in New York and considered that in his Honour’s view it is unlikely that that will assist him in the way that a report ascertaining the wishes of the boys and [N] prepared in Australia will assist in the determination of the ultimate disposition of the matter?

MR WALKER: Yes. Yes, and we make this answer. His Honour has taken that view but that is, as I put it earlier, to prefer a lack of knowledge. The “I would not expect”, his Honour is not capable, with respect – no judge would be capable of inferring in any responsible way. That is a guess, and the idea of the ICL in particular whose duty it is to ensure that the children’s – any wish is fully put before the court, had submitted to the judge, well, you just do not know. We do not know.

One may make a guess. One may be more or less or worldly or some might think cynical about it but, with respect, the fact that somebody is either impressed by being in New York or anxious to stay with their father does not speak at all to the sincerity of the wish and no one is arguing here, of course, that wishes have any trumping effect. The statute is plain about that. But it starts with knowing what they are, and 32 is not a means of avoiding the need to know what they are.

NETTLE J: So are you saying not open to infer that the judge could not rely upon a report prepared in New York?

MR WALKER: That is right. In my submission, that is going far beyond the logical capacity of inference and one asks, regardless of who the report writer was and how skilled he or she would be, regardless of the care with which the occasion was set up and monitored and reported on on behalf of the court, in our submission, that is not a matter of inference; it is a matter of speculation or guess.

BELL J: But his Honour has accepted that the boys want to stay in New York.

MR WALKER: Yes.

BELL J: Your complaint is that his Honour has not sought to ascertain the views of the boys about the last of the cascading options in the context of an urgent application for the boys’ return brought on at the commencement of the school year.

MR WALKER: Your Honour, yes, with everything entailed in the way your Honour has assembled that. Yes, that is our argument. It is not capable of being isolated into just one of the last of the possibilities. It is part of the whole scheme. It is part of the whole scheme of - - -

BELL J: Well, in the event the father does not return to the jurisdiction, in the event the father does not fund the supervised accommodation, and in circumstances in which the father has offered no alternative proposal, it is then an available option.

MR WALKER: That is right. It is that combination, cascade is what I have been referring to as the contingencies and it does turn on all of those, as your Honour has, with respect, correctly put it.

In paragraphs 30 and 31, moving to the next point, in particular point 6 in our outline, you will see that the trial judge does take into account in a way that, as it were, affects the appreciation of best interests of the children, the delinquency of the father. Thus, in paragraph 30, the end of the first sentence the father has “given the boys the choice of participating in a breach of the current orders”.

That, with respect, in a best interests and paramount consideration context inappropriately avoids the distinction between the position of the children and the position of the father vis-a-vis the court. It cannot be said that come what may the best interests of the children are always to be on the basis that existing orders ought to remain in force, otherwise that which ought to have been done would not need to be done – that is, a variation.

GORDON J: But there was no application. This is the problem.

MR WALKER: That is my client’s defect.

GORDON J: The whole argument – but the argument suffers from that defect because if it is truly the position, then there would have been an application either for variation or for international relocation. I mean, you start it from the starting point that you accept the joint parenting orders in Australia.

MR WALKER: Your Honour, I do not seek to contradict any of that. I am simply saying that it cannot be said, in terms of the best interests of the boys, that continuation of the current regime is axiomatically in their best interests. Otherwise, as I say, it would not be sensible even to consider variation. Now, of course there should have been a variation application, but in terms of the best interests of the boys, that is not an answer. And it is in that way, brought on no doubt by my client’s conduct, that his Honour was faced with a difficulty which led him into error.

The error was to treat that which was understood about the boys’ wishes, including as to what the judge would do about that – it turns out nothing, that is, prefer a lack of knowledge – to treat all of that as being somehow brought about by and correctly seen in light of what he calls our “unilateral action in breach of court orders”.

NETTLE J: Mr Walker, pardon my obtuseness, my ignorance of the area, but in circumstances where there was an extant order and there was no application yet for its variation, why is it an error of the judge to do what is expedient, to have the order complied with pro tem until there is such an application for variation?

MR WALKER: Because if it involves the boys coming back to Australia and the possibility of not living with their father, that is something which is relevant to their best interests – relevant to their best interests – and that ought to be, as the statute contemplates, a consideration which will include a consideration of their wishes.

NETTLE J: You do all that surely in a trial about the variation of the orders on a permanent basis with all the evidence available?

MR WALKER: I am sorry, your Honour has raised that with me before. My answers have not been as crisp as they might have been. I think what we are saying about that last point is that the statutory prescription of best interests and the relevance of wishes to them obtains as surely in an order of this kind as in a case which is hoped by everyone will be the last time a court ever looks at the matter. It is tempting, for obvious reasons, to attach the word “interim” to what has happened here, and the word “final” to what might later happen.

NETTLE J: Or what had previously happened and what might happen if there were an application for variation.

MR WALKER: Exactly so. My submission is to call it “interim” is not to dispense with what the statute requires in relation to best interests, and the relevance to that of wishes. It does not dispense. The statute does not say it need not be taken into account. This is not the classic convention infant abducted where the treaty enshrines the principle that there will be only one court system responsible, and that will be the one of the territory from which the child was taken. We are not in that area at all.

NETTLE J: Thank you.

MR WALKER: If we were, then for all the reasons that not only the treaty bespeaks, but also this Court has spoken of, then of course the idea of, as it were, tarrying full reports would be silly. That is not this case.

The first sentence of paragraph 31 continues the way the trial judge saw this, and one sees what I have called earlier the diminution or deprecation of the expression of wishes. It sits oddly, but ultimately it does sit with what the judge finds – that is, that the boys did have the wishes that they had expressed. That then culminates in his Honour’s paragraph 61, which starts at the foot of page 516. This very much speaks to some matters that Justice Gordon has raised with me. The first three sentences of 61 are, with respect, unexceptionable. But then there is this sentence where:

The father has given the boys the option to agree to a breach a court order.

With respect, that has introduced notions which rather avoid the requirement to think in terms of the boys not being bound by a court order – one of them about to become an adult, both of them of an age where, as it were, they are far from the helpless infants that the court also has to deal with.

The poor judgment and as a role model is a comment that we may not be able to avoid but, with respect, it is certainly not self-explanatory as a reason not to ascertain their wishes nor as a reason to count it as in their best interests to be exposed to the contingencies which the orders, in particular, item 9, imposes.

KIEFEL J: Mr Walker, do you adopt the approach of the dissentient judge in - - -

MR WALKER: Yes. In the interests of time, I do not need to elaborate on that but, in our submission, his Honour did, with respect, properly – how shall I put it – steel himself to the necessity of seeing the foundation upon which these orders were made, notwithstanding the artificial, manufactured, contrived, as his Honour put it below, circumstances for which my client is responsible, that being what the statute requires.

BELL J: I think the majority understood his Honour’s reference to “contrivance” as the inference that the father had not laid out all the possibilities to the children and it is in that context – and that was an inference that was open, was it not?

MR WALKER: As far as that goes, yes, very much so. However, that is, with respect, the inferences to what the father had laid out. That is not what the trial – I do not want to go back over those paragraphs, I have just taken you to them – that is not what the trial judge was confining himself to at all. The repeated reference to the boys being involved in participating in breach of court order et cetera means the contrivance is far more than that. That, of course, is if there is any force to it at all, our point that his Honour has misled himself by, in effect, being distracted by the judgments that could or should be made against my client.

Your Honours, it is to be borne in mind in relation to the contrivance as understood by the Full Court, as Justice Bell has just raised it with me, that at the time in question, of course, the cascade of contingencies had not come about so query the extent to which there is in any sinister sense, a contrivance.

I think the gravamen of what the Full Court was putting has this force - that they inferred or held that the trial judge must have been inferring that the father had not – how shall I say, expatiated in any useful way about the possibilities of him being back in Australia. I think that is the sting that is still there, notwithstanding the arguments I have put otherwise about it. Would your Honours, just excuse me.

Apropos the first instance judge’s conclusion in paragraph 32, to which reference has already been made, that is page 511, can I complete the story there? In the Full Court majority, 565, paragraph 107, there is that same point made and I make the same answer, namely that is speculation. It is the preferring of knowledge where the statute really requires there to be more effort than that.

The word “any”, in our submission, if one rejects the notion that the statute is indifferent to whether there are wishes but if there just happen to be then you must take them into account. We would say that in the case where there have been wishes, it is accepted there have been wishes expressed, but forensic events have overtaken them so that something has been contemplated by way of a parenting order about which wishes have not been expressed in what I might call an explicit or conscious fashion, the wishes obviously are diametrically opposed to the outcome, along with all other possible outcomes, not New York and father, but nonetheless, in our submission, the statute properly understood required the ICL and required his Honour to do more than what was done, particularly when the possibility of a wishes report was not being resisted by anybody.

When I say “not being resisted”, even the independent child’s lawyer said but if your Honour thought that was possible then yes and we have made inquiries as to whether it can be done in New York, and counsel for my client argued firmly that there was that step that ought to be taken before the return was ordered.

Your Honours, that brings me finally to the point that we have raised, as the Chief Justice noted earlier discretely, in relation to section 65C. Starting with that section, it is a standing provision and an exhaustive standing provision, we submit. It stipulates the people who may apply for a parenting order which has the statutory or legislated character to which I earlier drew attention.

The volunteers, we submit, do not fit within paragraph C because concern for “the care, welfare or development of the child” refers either to an existing character or experience; it does not refer to what I might call a potential emotional, intellectual or sentimental interest.

KIEFEL J: But why is order 9.2 a parenting order?

MR WALKER: Well, your Honour, it is because it provides for people with whom the child may live. It is that expression in the orders that is the answer to that. To just go back to the orders at 522; so 8 is “live with the mother”, and then 9 is “may live with”, and 9.2 “may live with”. It is that expression “living with” that picks up or is picked up by the provision in 64B, the combination through subsection (1) and subsection (2)(a). Subsection (1) says:

A parenting order is:

(a) an order . . . dealing with a matter mentioned in subsection (2) -

And subsection (2) says:

A parenting order may deal with . . .

(a) the person or persons with whom a child is to live -

We see that, perhaps demonstrating Parliament’s capacity to make true that which might not otherwise be true, it is said in (6)(a) that:

a parenting order that provides that a child is to live with a person is made in favour of that person –

for various other reasons or for various other purposes, of course. Now, it is by putting those provisions together that we say these are parenting orders. We need to note the difference between the permissiveness – we think that is what led to the adoption of the curious expression “facilitative”. Maybe “facultative” would be a better way of putting it.

We note the permissive wording in the parts of 9 to which attention has been drawn but, with respect, submit that that permissiveness – that is, providing options, as had been done in 2014 between mother and father, clearly is an order that deals with the person or persons with whom a child is to live. A child is to live with a person notwithstanding, for example as in 2014, that the child had a choice between mother and father. The orders still provide for the person with whom a child is to live, notwithstanding there is permissiveness, facultative nature or a choice. It is for those reasons that the volunteers also are persons in whose favour parenting orders have been made.

Now, in our submission, it is an odd reading of these provisions in the absence of evidence about these people even to contemplate that they may have fitted within paragraph (c) of section 65C, and his Honour does not hold so. His Honour did not have, as was pressed upon him – as I say, this last minute expedient being raised – as was pressed upon him on behalf of my client. His Honour did not have any material by which any findings could be made at all about the suitability of the volunteers. Now, that means the viability, cogency or appropriateness of one of the contingent possibilities could not be the subject of findings by the court.

BELL J: True enough that his Honour’s orders included an order suspending orders 2 of 3 of the parenting order made in June 2014.

MR WALKER: Yes.

BELL J: But his Honour was not dealing with an application for a parenting order for the purposes of 65C, was he?

MR WALKER: Well, it is really, your Honour. Any order made of a kind that answers the description in 64B is a parenting order.

BELL J: I see.

MR WALKER: Your Honour’s point, however, going back to what I might call originating process, which is not a happy story on the record of this case. You saw the informality. Now, that may not be a bad thing. However, it is difficult to point to an application – we cannot find process that actually announces itself as an application for a parenting order in favour of the two named volunteers. That is true.

BELL J: Indeed.

MR WALKER: That is true. But the orders were made and the appeal is against the orders, and the orders have - - -

BELL J: The question is how one characterises the orders.

MR WALKER: Of course. I cannot add to what I have said. “Live with”, “is to live with”, we say, includes “may live with”, whether be mother, father, which was 2014, or add the volunteers in the later orders.

It is for those reasons, in our submission, that looked at through a different prism – that is, the nature of what was being sought – the absence of evidence about these people in whose favour, in effect, parenting orders were about to be made is critical. The complete absence leaves open the possibility – not merely logical, but a very practical possibility – that just as the grandmother had been raised, and that proposal dropped in the face of affidavit evidence, that had there been any exploration of the matter it would have been revealed that this cascade, which was an overall scheme – as the Full Court, look at it holistically. Well, if you look at it holistically, an important part of it can be seen to have no substance.

Then that suggests that there has been a miscarriage in the exercise of treating as the paramount consideration the best interests of the children, because it cannot possibly be in the best interests of the children to propose for them alternatives in relation to the persons with whom they are to live, which are based upon speculations and which turn out to be, as the Independent Children’s Lawyer foretold, turned out to be just not practical.

It is for those reasons, in our submission, that the Full Court should have made the orders that we have proposed here. Your Honours will see that the orders we propose should be made would put in train whatever the parties considered appropriate in relation to a wishes report. As I say, it is to be doubted surely whether now, for the older boy, that is anything other than an exacerbation of poor family dynamics and a waste of time and money. But we accept the same cannot be said to the same degree of vehemence in relation to the younger boy, and, of course, there is also the sister, who would be the subject of that kind of investigation. May it please your Honours.

KIEFEL J: Yes, Mr Jackson.

MR JACKSON: Your Honours will have seen from our outline of submissions and also from our written submissions the events which gave rise to the application to the primary judge. Your Honours, I will not go through them again because your Honours will see them set out with the various references, and, in particular, if I could just make these points.

As your Honour Justice Bell mentioned, these boys were about to start school. They were about to come back. The day before they were to leave New York, the solicitor for the appellant contacted the solicitor for the mother to say the boys were going to remain in the United States with him and, your Honours, as we say, hardly surprisingly, the mother instituted the proceedings to have the boys returned to Australia. Your Honours will see that referred to in the Full Court’s reasons in paragraphs 37 and 38.

Your Honours will see the summary of the events which took place at that point in paragraphs 28 and following of the Full Court’s reasons commencing at page 546 in volume 2. Your Honours, at the time when the mother instituted the proceedings to have the boys returned to Australia, there were proceedings in being by both parents for orders in relation to two of the children. Your Honours can see that from volume 2 and the reasons for judgment of the majority of the Full Court. Your Honour, those are in paragraph 25 to 27 which, your Honours, are at pages 545 to 546.

Now, your Honours, there had also been directions given for the parties and the children to attend a series of meetings with a family consultant. Your Honours will see that referred to in the direction which is in the supplementary appeal book at page 617. Now, your Honours will see at page 617 in that book that in paragraph 8 there was a direction that:

Pursuant to section 11F of the Family Law Act 1975 all parties must attend an Intake Event for the Child Responsive Program at the following times . . . and the parties must also attend all future meetings fixed by the Family Consultant and are to ensure that the children attend all meetings as instructed by the Family Consultant.

Then, there was the provision in paragraph 9 for a report. The first of those meetings, as your Honours will see from that, was to take place on 13 January and, as appears from paragraph 32 of the Full Court’s reasons at page 546, there were discussions between the parents and the family consultant on 13 January, the father doing it by telephone from New York, and further, a meeting with the youngest child and the parents again, the father from New York by telephone, on 20 January and that your Honours can be seen in paragraph 40 of the Full Court’s reasons.

Now, your Honours, it was in a context of that kind, the boys about to resume school at the school they have been attending for years. There have been meetings with the family consultant which were expected to take place although a date had not been fixed for the meeting with the family consultant and the boys. It is in that context that the appellant made the decision not to bring the boys back to Australia. Your Honours, in circumstance of that kind there was good sense, in our submission, obvious good sense in what was submitted on behalf of the Independent Children’s Lawyer when the matter first came before the judge at page 629 in the supplementary appeal book, about line 42. And your Honours will see that Ms Connor said, about line 32:

has the benefit of meaning that the father would improve his position before the court.

Your Honours, that goes on through that page to about line 11 on page 630. What your Honours will see, about line 4 to about line 11, is what Ms Connor was directing the court to, directing his Honour to, were matters that, in our submission, ultimately resulted in the order which he made or ultimately were reflected in the order which he made.

Could I come, then, your Honours, to deal with what we apprehend are three points that seem to be made by our learned friends. The first point deals with the need to obtain the boys’ view of every aspect of the proposal, their living arrangements, if they were returned to Australia. Your Honours, the contention comes essentially, in our submission, to this, that it was necessary to obtain their views of the proposal by the mother. Your Honour, the proposal in relation to the living with the two friends was one that the mother’s side of the proceeding was making, before an order could be made requiring them to return to Australia. And, in short, that means that any view of “their wishes” – to put that in inverted commas – had to be obtained in New York.

In our submission, that view should not be accepted – that contention should not be accepted – and we submit a number of things in relation to it. The first is that it is not supported by the provisions of the Act. May I take your Honours to those provisions that are relevant. Your Honours, one starts of course with section 60CA. And your Honours will see – I think we all may be using the same volume, and that is at page 259 – that section 60CA provides that:

In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Your Honours, the concept of “best interests” is expanded upon in the first place by other provisions. First of all, if one goes to section 60B, which your Honours will see on page 256, it sets out the objects of that part of the Act. Could I refer your Honours, particularly, to section 60B(1) and in relation to that provision, to two sub-provisions. The first is in 60B(1)(a), which refers to the fact that:

the best interests of children are met by:

(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child -

Secondly, also, your Honours, section 60B(1)(d):

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Your Honours, one also notes, if one goes to section 60B(2), that the principles underlying those objects include, particularly, the matters referred to in section 60B(2)(a), which says that:

children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together –

Also 2(b), your Honours, they have:

a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development –

and so on. Now, your Honours, returning from that to section 60CA at page 259, the working out of the proposition in section 60CA appears from succeeding provisions and importantly your Honours will see that section 6 – I am so sorry, I will start again if I may. One goes in that regard to section 60CC, and section 60CC is at page 260. Your Honours, it requires the Court to consider the matters in the two succeeding subsections. Importantly, as your Honours will see, they deal with primary considerations and then conditional considerations. As is apparent, your Honours, from 60CC(2)(a), a primary consideration is:

the benefit to the child of having a meaningful relationship with both of the child’s parents –

Then, your Honours, if one goes down then to the list of additional considerations, may I take your Honours to section 60CC(3)(a) and could I invite your Honours to look particularly at its words because it makes it clear, it is submitted, that the views expressed by a child are to be taken into account. But, first of all, they are not determinative and the provision recognises that the effect to be given to the views of children does involve a question of weight, a term one might think particularly relevant to decisions which, whilst perhaps not strictly discretionary, do have elements which are akin to those in the exercise of a discretion when one comes to the ultimate conclusion to be made. Your Honours, and of course there are to be taken into consideration the other additional considerations in sections 60CC(3) and could we refer your Honours to paragraph (b):

the nature of the relationship of the child with:

(i) each of the child’s parents –

Section (3)(d), your Honours:

the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i) either of his or her parents; or

(ii) any other child –

et cetera, your Honours will see set out. Then subparagraph (e) and also subparagraph (i).

Your Honours, the Act then goes on to provide for the manner in which a court may become aware of the child’s views for the purposes of section 60CC(3)(a), and it does so by the terms of section 60CD and, your Honours, that is at page 262. In particular, section 60CD(2) lists three possible ways in which that may be done. One is, as your Honours will see, by a family consultant’s report pursuant to section 62G(2).

If I could take your Honours for a moment to section 62G which commences at the bottom of page 277, your Honours will have seen that the procedure of section 62G was already in train at the time when the appellant said that the boys would not be coming back, and I have referred your Honours to page 617 of the supplementary appeal book.

Your Honours, there was a preliminary report in relation to the youngest child had been provided on 25 January. Your Honours will see that in volume 2 at page 487. I had not intended to go to the detail of it. But there was no reason, in our submission, why a similar procedure might not have been followed in relation to the boys, of course, if they were in Australia.

Your Honours, a second method of obtaining children’s views is that referred to in section 60CD(2)(b), again at page 262, and that takes one to section 68L, the appointment of an Independent Children’s Lawyer. Section 68L, your Honours, is at page 343, and your Honours will see that subsection (2) allows a child’s interests to be “represented by a lawyer” and an order to be made to that effect. Your Honours will see that under section 68L(2)(a), the child’s interests “are to be independently represented by” the appointed lawyer. Now, the independent lawyer has the general duties which are set out in section 68LA(2) at page 344.

Could I invite your Honours to note that the Independent Children’s Lawyer must form an independent view based on the evidence available to that person of what is in the best interests of the child and act in relation to the proceedings in what the Independent Children’s Lawyer believes to be the best interests of the child. As section 68LA(4) makes clear, your Honours, the Independent Children’s Lawyer “is not the child’s legal representative” and does not “act on the child’s instructions”. Your Honours, our learned friend’s case relies on section 68LA(5)(b), the obligation to:

ensure that any views expressed by the child . . . are fully put before the court.

Your Honours, in this case, the views of the boys were before the court. They wanted to stay in New York, attracted no doubt by the excitement of New York, the bright lights, large Central Park, Trump Tower, all these kinds of things. But, your Honours, we were entitled as the Independent Children’s Lawyer, in our submission, pursuant to section 68LA(2)(a) to take the view that a better course was to obtain their views once they were back in Australia. And, better to do so, in our submission, for the – reason which we have set out in our written submissions at paragraphs 45 to 47 and may I take your Honours to those for just a moment?

Your Honours, in that regard – I will not read out paragraphs 45 to 47. May we invite your Honours to note those paragraphs and, your Honours, we would submit, it is important to bear in mind that the proceedings were and plainly, were, with respect, interim proceedings. Your Honours, if one needs to have something to support that notion, one needs, really, to do little more than go to the reasons for judgment of the primary judge at page 506 in volume 2 where in paragraph 1, he describes it as:

These interim proceedings –

Then the heading, after paragraph 2:

INTERIM APPLICATIONS –

At page 508, in paragraph 9.2, in the fourth-last line, he speaks of saying:

in the context of this interim hearing –

Your Honours, if one goes to page 511, in paragraphs 32, 33 and 34, your Honours will see that he is speaking particularly in paragraph 33 of considerations required by the statutory provisions to which I have taken the Court, but also in paragraph 34, to which reference has been made on a number of occasions, it is perfectly obvious, with respect, that the judge is dealing with the situation until the matter comes before the court in relation to orders which, to use another expression, would be “final orders”. If one goes from page 512 over to page 516, your Honours will see in paragraph – your Honours have been taken already to paragraphs 59 and 60, your Honours will see, particularly, the last three lines of paragraph 59:

it is a possible temporary arrangement pending a determination by this court as to whether or not the boys should be permitted to relocate internationally.

GORDON J: Repeated at the end of 60, again.

MR JACKSON: I am sorry, your Honour?

GORDON J: Repeated again at the end of 60.

MR JACKSON: Yes, your Honour, yes, I am sorry. Your Honour, that is quite so. Thank you, your Honour.

Your Honours, the related point that was made was that there was no sense of urgency in the proceedings before the primary judge. If one goes to the actual orders made by the judge at page 504, you will see order 1 says:

Forthwith and within 72 hours of the date of these orders, the father is to do all things and sign all documents to cause each of the children . . . to be returned to the Commonwealth of Australia.

Then paragraph 2, until that happens, they are not to go outside the State of New York, and then paragraph 3:

forthwith surrender all valid passports –

Your Honours, I will come back to the remainder of the order in just a few moments but it is perfectly plain that these are intended to operate immediately in the sense of there being only three days within which to be complied with.

BELL J: Mr Jackson, just before you move on, can I ask one thing about the statutory scheme? You have taken us to section 60CD(2) about the means by which the court may inform itself of views expressed by a child and then to section 68LA(2) relating to the obligation on the Independent Children’s Lawyer, including to form an independent view. Am I right in understanding that an approach that it is adopted in relation to children who are aged 15 and 16 is to ascertain the views of the children themselves?

This is not to put to one side the appropriateness of the Independent Children’s Lawyer expressing a view about what is in the lawyer’s estimate in the best interests of the children, but the matter that I am taking up with you is that in some circumstances with young children the Court would consider the submission of the Independent Children’s Lawyer to be an expression of the children’s views relevantly, whereas with older children one might look to the children’s views expressed by the children in addition to anything that is put on their behalf by the Independent Children’s Lawyer. Is that a fair way of understanding it?

MR JACKSON: Your Honour, there is a practical element of what your Honour is putting to me. I need to say a few things in response to what your Honour has said. One starts from the proposition in section 60CE that you cannot compel a child to give a view.

One does have children of varying ages, various enthusiasms, various desires to have views and to put them forward and some who are reluctant. One does have a situation that may be a function of age but may also be a function of the living circumstance in which they are found. So your Honour, that is a kind of background.

One also does have as part of the statutory background – and your Honour adverted to this – that the Independent Children’s Lawyer is not a mere mouthpiece for a child, has his or her own discretion and also who does not act on the child’s instructions.

Your Honours, having said those qualifying things, one can readily imagine that if you have young children and there is a serious dispute between their parents about what should happen to them, the weight to be given to the Independent Children’s Lawyer’s views – views about what the appropriate thing is – is likely to be more significant than in some other cases.

Now, the views of the Independent Children’s Lawyer in the case of young children would – in the ordinary course of events, one would expect, and I understand this to be the case – one would endeavour to obtain a view from the children, but a non-binding view. In the case of older children, they are more likely to express a view, but one does have to, because of the statutory obligation of the Independent Children’s Lawyer, form an independent view.

If I could just say this, your Honours; our learned friend says, “Well, you did not say anything in the courts below. Why are you taking the view you are taking now?” Well, your Honours, we have to look at things as they develop. Your Honours saw the reference I gave to page 629 in the supplementary appeal book, where the view was put forward at first instance that it would be appropriate to have the children back here where they could see someone here. But the proceedings in the first two courts were proceedings in which the parties, the former husband and wife, were themselves represented and had views to put forward, but the situation which obtains now is that this matter has been before the courts below on two occasions.

The order that is made is, in the circumstances as they have developed, one which, in our submission, should not be the subject of further consideration. I do not mean that offensively to the Court in any way, of course. But, to put it shortly, enough is enough, in relation to it. That is why we take the particular attitude that we have taken, taking the view that it is for us to form a view in the circumstances in which they present themselves at the time at which they do.

BELL J: Just so I understand completely the statutory scheme, is your submission that the primary judge had before him the views expressed by the boys through the father, in the way that his Honour indicated, and in addition he was informed of the views of the children by reason that the Independent Children’s Lawyer had been appointed and made some submissions?

MR JACKSON: Yes, your Honour. We did not challenge the view that the views of the boys were as represented by the father and as contained in the emails, which your Honours will see in the appeal book. Could I just return to one aspect, your Honour? If one were to present the views of children, then it is not really a question of just saying, “This is what the children’s views are”. One would need to have some evidence to that effect. It may be a question partly of form. Very often, one might think that in a practical matter, there would not be a challenge to the expression of the views without the need for that, but, ordinarily speaking, it would be a question of having evidence before the court about the children’s views.

BELL J: But section 60CD(2)(c) does permit the court to inform itself by such other means as it thinks appropriate.

MR JACKSON: Yes, your Honour. What section 60CD(2) is doing is saying, in effect, there are two statutorily regulated means, and there is also the third means as well.

Your Honours, could I just say that the proceedings before the primary judge we had submitted a moment ago were interim proceedings but they were circumstances in which the status quo regulated by orders had been altered and the appellant had not applied for an order allowing the children to reside outside Australia.

May I refer your Honours to our written submissions in that regard, paragraphs 31 to 33. Your Honours, this was also a case where the father put forward no proposal at all, no proposal at all, if the children were to come back to Australia. May I take your Honours for a moment back to the transcript of the proceedings in the supplementary book at page 661. I know your Honours have been taken to this passage or parts of it but it is a passage that commences at line 40 and goes through to line 16 on page 662. Your Honours will see that at about line 42 my learned friend, Mr Schonell, said:

MR SCHONELL: My client doesn’t have a proposal for ordering them back.

Then, at the top of the next page:

MR SCHONELL: What my client’s proposal is, that they remain in New York.

The judge said that was not the question:

HIS HONOUR: . . . What’s your client’s proposal if I order them back?

MR SCHONELL: I don’t know what my client’s proposal is.

I do not mean to convey that my learned friend had not sought to find out but simply there was not a proposal of which he could inform the court. You will see then, your Honours, the reference to him being “a man of substance and he could make arrangements” if necessary.

Your Honours, if one goes back to the orders actually made by the primary judge and you can see those, your Honours, in volume 2 at page 521. One can see in orders 7 to 10 the first thing he did was by order 7 he suspended the terms of the earlier orders 2 and 3. You can see those orders at page 543, your Honours. That was to suspend order 2 and, of course, order 3. Order 8 at page 522 then came into play and it was that “Pending” - your Honours will see the words:

Pending further order and subject to order 9 –

the three children “live with the mother”. Then, if one goes to order 9 it dealt first with the position if the appellant returned to Australia, it was only if he did not do so that the remainder of the order came into operation and choices were offered.

Information was available from the two women who had made the offer, which is referred to in order 9.2, and further provision was made in order 10 for liberty to apply if there was a difficulty. Whilst there was some debate about the two offers that were referred to in paragraph 9.2, no further information was sought, nothing was said about the two women who were offering accommodation for the boys that would make them suitable, and surely if it was a serious suggestion that one of them who was a mother of a boy who had been friends with another boy since the boys were two, if there was something unsuitable about that, surely that was something that needed to be further investigated.

Your Honours, I think I mentioned paragraph 10 relating to liberty to apply. Could we just make a concluding submission, your Honours, on this point, that the orders actually made seem, with respect, perfectly sensible in the immediate circumstances brought about by the appellant’s change of residence and his view that the children’s change of residence should occur also.

Your Honours, could I move then to the second point, who may apply for a parenting order? Our learned friend’s argument suggests that a parenting order cannot be made in favour of someone who has not applied for it under the Act. Well, your Honours, in our submission, the Act simply does not say that, and may I go to the several provisions which are involved? First of all, section 64B(1), which your Honours will see at page 288, defines what is a parenting order and picks up, as your Honours have been referred to, section 64B(2)(a), and we have a view similar I think to that of our learned friends in relation to whether the order here would be a parenting order or not. It may be on the boundary of it, but does seem to fall within the words:

the person or persons with whom a child is to live -

Your Honours, section 64B(6)(a) on page 289 says that such an order that provides a person is to live with someone else “is made in favour of” the latter person. And then when one goes to section 65C which, your Honours, is at page 292, it defines the persons by whom the application for a parenting order may be made. It does not define the persons in whose favour such an order should be made. That is the subject dealt with rather by section 64C which your Honours will see at page 290 and it says:

A parenting order in relation to a child may be made in favour of a parent of the child or some other person.

There is no obligation on such a person to be an applicant. Of course, in the ordinary course of events, the court would wish to be satisfied that such a person is an appropriate person to have the benefit of such an order but that, in our submission, is a different matter. Could I refer your Honours, in that regard, to what we have said in paragraphs 56 to 59 of our written submissions?

The third matter, your Honours, concerns the appellant’s conduct. Our learned friends’ submissions – written submissions, I am sorry – in paragraph 31, treat the primary judge’s views, which were approved of by the majority in the Full Court, of course, as having eroded the weight to be given to the two boys’ views. It is contended, as your Honours will see about halfway through the paragraph, that that constituted a distortion of principle.

Your Honours, the first point we would make is that the appeal was from an exercise of discretion by the primary judge. A difference of view as to the weight to be given to particular evidence is not normally a ground for setting-aside an exercise of discretion – one of the House v The King criteria would have to be satisfied. But, in our submission, the view taken by the primary judge, in this case, does seem perfectly normal. In our submission, it would be rather naïve to think that the father’s conduct had not had an influence.

Could we, in that regard, refer your Honours first to our written submissions in paragraph 61, and your Honours will see we have said there in the fifth line of paragraph 61 the appellant formed a view that he was required to remain for his work purposes in the United States on 25 January 2016, no later than 29 January 2016 – only four days later, the

day prior to their scheduled return – they are said to have expressed the view that they wanted to remain with him in New York. If you go, your Honours, then, to the primary judge’s reasons for judgment in volume 2, at page 510 in paragraph 24, his Honour said:

It is a reasonable inference to draw from the text messages that even if the father did not have a direct hand in the authorship of them, there have been extensive conversations between he and [J] about the father’s desire that he be able to relocate with the boys to America.

Your Honours, if one goes to paragraph 30 of the same reasons for judgment, at page 511, he says in the third line:

I do not doubt that the boys have been dazzled by the bright lights and that they find New York “amazing” . . . and that . . . “everything is better” –

and your Honours will see the last four or five lines:

In the text message [J] has sent his mother, he has dismissed the roots that he had in Australia and his friends at school and other connections that he has left behind in a quite blasé manner. He does not mention his sister’s relationship with him.

Now, your Honours, in circumstances like that where there is such a change of view by the boys in such a short time and where it so accords with the father’s desire to stay in the United States it is very unlikely, we would submit, that the father’s views have not had an influence on the boys and that is why, as the primary judge said, the better place for there to be a consideration of what should happen in relation to them was, to put it shortly, in Australia. Your Honour, otherwise we rely on our written submissions. Those are our submissions.

KIEFEL J: Thank you, Mr Jackson. Mr Walker, anything in reply?

MR WALKER: Very briefly, your Honours. On that last matter, we respectfully submit that the way in which the dissenting reasons concluded, appeal book 591, 592, in particular in paragraphs 230 and 232, should commend itself to your Honours these circumstances to which my friend has just referred which rather bespeak the need to find out more about the practicalities of the boys’ wishes rather than accepting, on the one hand, the general desire to remain with their father in New York but, on the other hand, deprecating or diminishing the cogency of that so as to leave unknown their views about the particular contingencies that were under contemplation.

And in relation to those contingencies, of course, the way in which the dissenting reasons dealt with that in the interim position can be seen in paragraph 228 of his Honour’s reasons at 591, 592. Your Honours, it is, of course, correct – I do not want to resile from what I have said and I do not contradict what my learned friend said concerning the application, no application being made by my client to vary the orders. However, your attention should be drawn – I do not think it detracts greatly from the force of the argument against us in this regard, but in the affidavit before the Court to be found in volume 1 of the appeal book at page 304, my client’s paragraph 16 foreshadowed an application. I accept that a response to that information, of course, is “but none came”, which is true.

Your Honours, finally in relation to the identity of the persons in whose favour, to use the statutory expression, parenting orders were made, it is not purely a standing question at all and, with respect, the provisions of the Act to which our friend refers in section 64C rather produces than solves difficulties. Appreciate as we have drawn to your attention that such orders are said by the statute to be made in favour of a person but an order that, what I call a volunteer, be a person with whom a child is to live is, of course, also an order about a burden, maybe a very welcome burden but it is still a burden. The notion that an order would be made without any joinder or notice, for example, need only be raised to be dismissed.

That is one of the extraordinary things about this case. There are the emails that express willingness but nothing else: no information about whether there is an appreciation of the nature of what was being sought, what it meant to call this temporary, et cetera, et cetera.

It is for those reasons, in our submission, that the citation, as my learned friend pointed out in his paragraph 58 of their written submissions of Faulkner v Rugendyke 19 Fam LR 507 is not, with respect, to the point. That was a case about a statutory personage with legislated authority in relation to looking after children who had by some kind of procedural oversight not been joined. It is scarcely a promising basis to defend the expedient which was adopted in this case of orders with that statutory character to be made with such a paucity of information as there was before the Court. May it please the Court.

KIEFEL J: The Court will adjourn briefly to consider the course it will take.

AT 12.39 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.43 PM:

KIEFEL J: At least a majority of the Court is of the view that the appeal should be dismissed. Mr Walker, is there anything you can say in relation to the order for costs sought against your client?

MR WALKER: No.

KIEFEL J: There will be an order that the second respondent’s costs be paid by the appellant. The orders of the Court are, therefore, that:

1. The appeal be dismissed.
   
2. The appellant pay the second respondent’s costs of this appeal.
   

Reasons will be published in due course.

MR WALKER: May it please the Court.

KIEFEL J: The Court will now adjourn until 9.45 am tomorrow for pronouncement of orders, and otherwise until 10.15 am.

AT 12.44 PM THE MATTER WAS ADJOURNED