Barnett v Secretary, Department of Communities and Justice [2022] HCATrans 187 (21 October 2022)

Last Updated: 24 October 2022

[2022] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S34 of 2022

B e t w e e n -

BARNETT

Applicant

and

SECRETARY, DEPARTMENT OF COMMUNITIES AND JUSTICE

Respondent

Application for special leave to appeal

KIEFEL CJ
STEWARD J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 2.30 PM

Copyright in the High Court of Australia
KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR B.R. KREMER appears with MS A.T.H. LIM for the applicant. (instructed by Hague Convention Legal Practice)

MS M.A. GILLIES, SC appears with MS M.R.M. BARNETT, SC for the respondent. (instructed by Department of Communities and Justice Legal)

KIEFEL CJ: Mr Kremer, you can take it that Justice Steward and I are familiar with the facts. Essentially, what this involves is whether the jurisdictional fact for the making of a return order under the Hague Convention is satisfied, and that would involve whether or not the father had rights of custody under the law of Ireland immediately before the date of removal, 30 August 2020.

It comes down to what can be taken from the declaration made by the Irish court on 12 April 2021, which is in its terms a bare declaration. Here, the primary judge and the Full Court drew inferences to the effect that that court – the District Court in Ireland, must have been satisfied about cohabitation as fundamental to a guardianship right as at that date. Is that a fair summary, or have I misstated it?

MR KREMER: Thank you, your Honour the Chief Justice. That is a fair summary. There are two steps that we say that the courts below engaged in, in impermissibly enlarging what appeared on the face of the Declaration to form what was found to be initial estoppel against us. Would your Honour like me to address those in turn now briefly?

KIEFEL CJ: Just briefly.

MR KREMER: Thank you, your Honour. The first is that we say there was an impermissible extension contrary to O’Donel in this Court in taking a finding that appeared on the face of an order operative – and found in the Full Court to be operative only from 12 April in its terms – and inferring or assuming that that finding must have also been a finding as to the state of affairs at 30 August, even though that does not appear anywhere on the face of the order. So, in one sense, we are in the territory we have cited from Chief Justice Latham and also Justice Evatt in O’Donel, which is while a judgment may – and I quote:

create an estoppel as to one proposition . . . that estoppel cannot operate to establish by estoppel another proposition which follows from the former proposition only when that proposition is combined with others the establishment of which depends upon evidence or assumption.

KIEFEL CJ: And what is the second basis?

MR KREMER: The second basis is there is a second extension, and it occurs this way: their Honours take the finding as extended from 12 April back to 30 August, and then apply it to a proposition of Irish law, which they summarise or turn the automatic rights theory.

Your Honours will find that although it is expressed as being an issue estoppel therefore as to the existence of guardianship, and therefore the necessary rights under Australian law as at August 30, that only arises because her Honour makes an assumption – or makes a finding – as to what Irish law operated upon that extrapolated finding, and finds that there was an automatic right of guardianship operative.

KIEFEL CJ: There was evidence as to Irish law from two experts before her Honour, was there?

MR KREMER: There was, but the reason we say that there is an error, and that if even one pulls it out of impermissibly extended issue estoppel, the error is that the procedure that was adopted below was for, essentially, a separate question or a preliminary determination of whether there was an issue estoppel, a res judicata, or an abusive process.

There is an understanding recorded on the transcript that that matter was to be decided to avoid the need to cross‑examine any witnesses, and if the authority lost on that proposition, then her Honour would need to hear cross‑examination of the witnesses. The problem that we say that, in a nutshell, is that her Honour basically dipped into the content of expert evidence about Irish law, which was something that could and should only have been done in that second stage. In other words, even if we are incorrect on our first ‑ ‑ ‑

KIEFEL CJ: You mean, the expert evidence had not been properly challenged?

MR KREMER: That is correct. There was no – I apologise, I cut across your Honour.

KIEFEL CJ: No, no. That is fine. Mr Kremer, at this point, I think we might hear from Ms Gillies as to why special leave should not be granted. It is an unusual case, Ms Gillies.

MS GILLIES: It is unusual. I was going to start by saying to your Honours that this is a case that is quite esoteric in terms of the area of law that it involves, and also its very peculiar factual circumstance.

Your Honour the Chief Justice started by saying that your Honours were well across the facts in this matter, and I do not seek to recite them on the basis that your Honours are not, but merely to draw ‑ ‑ ‑

KIEFEL CJ: You should not feel inhibited by me saying that. There is no doubt we are not quite across them as you are. So, if you wish to go over them, you should do so.

MS GILLIES: The point of me going over them is, really, to underline what her Honour knew at first instance and what the evidence, of course, was as a consequence of that before the Full Court of the Family Court when it heard the appeal. These parties were never married. It is common ground that the mother left Ireland with the child on 30 August 2020. It is also common ground that she did not give notice of substance, I should say, to the father because the father was advised as she was leaving Ireland and, at the airport, that she was going to Australia with [the child]. We know that the mother has been in Australia since 30 August 2020 with [the child] and that, of course, means that the parties cannot ‑ ‑ ‑

KIEFEL CJ: I think we might avoid use of the child’s name.

MS GILLIES: I beg your pardon, your Honour.

What we also know is that that means that, relevantly, the parents have not cohabited since 30 August 2020. We know that the father remained living in Ireland and we know that the mother remained living in Australia with [the child]. The importance of that is, that when one looks at the face of the declaration that was made on 12 April by the courts in Dublin, they specifically set out that the declaration was made, having heard evidence in the matter, having had a contested hearing before it and, of course, references made in the primary judgment to the fact that there was a six‑day hearing.

There was also apparent, on the face of the document, what sections of the Guardianship Act were, in fact, applied. Specifically, your Honours will see that there were sections – in one in particular – section 2(4A) and the second section, which was subsection (6) – was 6A – is in virtually identical terms. That section gives an automatic right as a father with guardianship rights if certain preconditions are met. The first, is that the parties are married. We know the conceded fact in this case ‑ ‑ ‑

STEWARD J: But can I ask, Ms Gillies ‑ ‑ ‑

MS GILLIES: Yes, your Honour.

STEWARD J: I am sorry, Chief Justice, you go first.

KIEFEL CJ: Thank you. When you say an automatic right is given under Irish law, I take it, is that a question of construction of the statute?

MS GILLIES: It is. It is not couched in terms that you will see in some of the other sections that have been included in the court book where there is a discretion as to whether or not the Court will find that a parent, or a party, is a guardian.

KIEFEL CJ: Was there any evidence as to the approach of the Irish courts to the statute?

MS GILLIES: What was in evidence, we say, is the actual statute itself. And we rely upon ‑ ‑ ‑

KIEFEL CJ: Was there any expert evidence as to the approach of the courts to it?

MS GILLIES: There was expert evidence in relation to the Irish law generally. As to whether it was an automatic right under section 2(4A), I could not say to your Honours as we presently sit here. But I would say ‑ ‑ ‑

STEWARD J: Well, Ms Gillies, was the evidence from Mr Corrigan that there was a sustainable argument that there would be custody arising from guardianship?

MS GILLIES: There was certainly evidence that was relied upon by both of the parties as to the construction of the Guardianship Act. That is so, your Honour. And if I can ‑ ‑ ‑

STEWARD J: But did the evidence ever rise any higher than a sustainable argument from the experts?

MS GILLIES: I understand that was only in respect of the case that is relied upon in the judgment; that is, the L.C. v K.C. Case that has been included in the court book.

STEWARD J: Can I ask you another question? I understand, reading the Full Court’s decision, that section 6 of the Guardianship Act makes both the mother and the father guardians jointly, and then the father made an application under section 6A of the Irish Act, which is reproduced, relevantly, at application book 15. It starts by saying that:

(1) The court may, on an application to it by a person who, being a parent of the child, is not a guardian of the child, make an order appointing the person as guardian of the child.

What I do not understand – and I am not an expert on Irish guardianship law – is why, if he was automatically a guardian, was he making that application under 6A?

MS GILLIES: The application, as I read that section, your Honour, is a discretion that lies in the court to make somebody a guardian of a child. It is not couched in terms that an applicant under section 6A needs to be a parent, for example, of that child. In fact, that submission is supported by the fact that in section 6A(2), as it is recounted, that if the court was to appoint somebody else as a guardian it does not interfere with previous appointments of guardians. So that is discretionary section, we would say, not confined on the face of that section to parents.

STEWARD J: But can I ask you this: looking at the terms of 6A(1), do you have to be, in order to be eligible for that declaration, someone who is not a guardian who therefore seeks an order that they be a guardian? Is that what the provision is directed at?

MS GILLIES: Can I answer – I do not mean to not answer it directly, but if I can ask your Honour to consider the provisions of section 6F(2). Somebody who is the biological parent – if I can put in those terms – of a child in Ireland is not necessarily seen by the courts as being a parent or guardian of that child unless they fulfil certain criteria. So, if one does not fulfil the criteria, for example, of 6F(2) – either of those subdivisions – but is a biological parent of a child, then 6A would give that particular person, we would say, the right to apply to be a guardian of the child.

So, it does not exclude parents, it just means that if you do not fall within the definition provided by 6F that you can still have the guardianship and the custodial rights that are bestowed upon parents of a child.

STEWARD J: So, in this case, it was done to clarify matters?

MS GILLIES: I cannot speak to why the father made an application pursuant to section 6A and subsequently pursuant to section 6F. That is not within the ambit of my instructions or in – because my client is the central authority in these circumstances.

STEWARD J: Yes, of course.

MS GILLIES: But we would say that reading through those particular sections, it is clear that being a biological parent of a child means that you may be eligible for guardianship rights under one or more sections of the Guardianship Act in Ireland.

STEWARD J: In any event, it is accepted, is it not – and correct me if I am wrong – that the effect of the orders made under 6A and 6F were prospective only. Is that right?

MS GILLIES: We do not contend that on the face of that declaration it was a retrospective declaration. Having said that – and as your Honour would apprehend from the submissions that have been made on behalf of my client – we rely upon cases that say with an estoppel argument you look at substance, not necessarily form. Why I went through those conceded facts – hopefully carefully – when I commenced addressing your Honours is because it is quite clear that there can be no evidentiary facts that a court could have relied upon in making that declaration of 12 April that post‑dated 30 August. Now, cases like ‑ ‑ ‑

STEWARD J: Save for one matter, inferentially perhaps, and that is that as I understood the recitation of Irish law, both parents were guardians jointly of the child. One might infer that what the father was doing – in particular under 6F, as I read it – was seeking exclusive guardianship over the child to the exclusion of the mother, and thus, the reason for the court proceedings. Is that an inference that is open on the materials?

MS GILLIES: I would say not, your Honour.

STEWARD J: All right.

MS GILLIES: I would say that this is not one that seeks to preclude one or other. But there can only be one guardian, I think is what your Honour is suggesting that might be said. And we do not accept that that is available on the material. Nor was it in ‑ ‑ ‑

STEWARD J: Then what does that mean for how we read the right to custody under the Hague Convention where there are two people with the right to custody. Is it to attack it, that is okay, and the tiebreaker is where they are habitually resident?

MS GILLIES: There is nothing, we would say, that would suggest that there can only be one guardian of the child in Irish law and, in fact, at least in part section 6A, that part of 6A that I took you to suggests – in fact, it explicitly says that there can be more than one guardian.

So, it follows, if there can be more than one guardian, as a consequence of the provisions of section 10(2) of the Guardianship Act that are contained at page 105 of the court book, that if you have rights of guardianship for a child, you have rights of custody and that satisfies the Convention, if I can use the short term for the Convention, in terms of establishing rights of custody necessary to found the application for the return of a child to a co‑signatory country.

So, your Honours, as I said, why we have sought in our submissions and this afternoon to set out with some care the factual situation of these parties, there is nothing that we would say would inform the court – nor has it ever been argued, with respect, that there is something that has happened subsequent to 30 August that would have informed the decision that is made on 12 April.

My friend raised in his submissions that there was some suggestion that the propositions in O’Donel might lend support to the case that is brought by the applicant. And with the greatest of respect, because of the factual situation that we have outlined, we would say that that cannot be right. O’Donel, of course, dealing with the tram driver who was blinded, had a finding that he had been made blind as a consequence of a workplace injury and then sought to claim compensation for a period of employment post the first finding. That is not the case here. The parties have not taken up cohabitation again. That would be, we would say, something that might defeat what we are saying to the Court today, given the provisions of section 2(4) that I have taken your Honours to. Can we also say, in terms of ‑ ‑ ‑

KIEFEL CJ: Ms Gillies, a point made by the applicant here is that there is a distinction between the father having a right to become a guardian by reason of the fact of cohabitation and whether or not the father, in fact, was a guardian and, therefore, had rights of custody.

MS GILLIES: Yes.

KIEFEL CJ: Is that proposition not, apparently, well‑founded?

MS GILLIES: We would say not. Could I take your Honours to the legislation as it is replicated at page 104 of the court book. Section 6A sets out that:

(1) The court may, on an application –

et cetera. It is a discretion; it is a matter to be determined by the court ‑ ‑ ‑

STEWARD J: Just pausing there, does the fact that it is a discretion mean that all the father might have had on 30 August is an inchoate right to become a guardian to be perfected upon the exercise by the court at its discretion to make an order to that effect?

MS GILLIES: I am going to say no to that, your Honour. I am going to say no to that for this reason. The declaration, we say, does not create the right. It does not mean that as, and from that date, the father is created as a parent or a person that is able to be a guardian of a child under the Irish law. He is – and was – we would say, because of the evidence, somebody who was a father as a consequence of fulfilling statutory obligations.

Section 6A is probably not the best example of that argument, it is probably better directed towards 6F. But, the rear‑making of the declaration does not create the right. It simply proclaims that that right has been in existence. So, the analogy I would use is, that somebody who does not get a declaration from a court can still be parent because they have fulfilled the statutory requirements for doing so – such as being married.

STEWARD J: I must say, that sounds like an interesting question, if I may say so.

MS GILLIES: I had best sidestep that, your Honour. It may not be the best analogy.

KIEFEL CJ: You could always say, Ms Gillies, that that is not a ground for a grant of special leave – that Justice Steward is interested.

MS GILLIES: I was going to come back to that after I have answered his Honour’s question, if I might. Section 6A, discretionary; 6F(2), not discretionary. The declaration is made upon the fulfilling of certain criteria. So I say, your Honour, that that is also something that is extremely relevant and persuasive when looking at this argument of substance over form and the fact that, yes, the declaration was made on 12 April but it could only have really applied – and the statutory obligations could only have been fulfilled – up to 30 August when this child, we say, was wrongfully removed from Ireland.

Just adjusting your Honour the Chief Justice’s comments in relation to special leave, the application brought by the applicant seems to be on two different bases. The first, is that this is a matter of public importance and the public importance is said to arise because the primary judge did not have before her the underlying judgment and transcript that led to the making of the declaration.

The declaration that is before you – and can be found at page 97 of the court book – is extremely detailed, we would say, in terms of what the court actually did. We know some of that as well from what the parties – the conceded facts between the parties might be. That declaration tells us that the court heard evidence. Evidence was offered, and it was satisfied – that is, the Court was satisfied on the balance of probabilities that the father was a person that was to be given guardianship rights.

KIEFEL CJ: Ms Gillies, your reliance in the absence of there being any reasons or a transcript, your necessary reliance on how a declaration is to be understood in terms of the processes of Irish courts, really underscores the question of whether or not there should have been evidence led from experts in relation to Irish law.

MS GILLIES: Thank you, Chief Justice. Could I answer it that way. There is absolutely no evidence – nor could there be – that an application was made on behalf of the applicant at the time that this application was before the court for cross‑examination of those experts. It was not part of the grounds of appeal before the Full Court that her Honour had erred because she had restricted cross‑examination or had not permitted a cross‑examination, and ‑ ‑ ‑

KIEFEL CJ: I suspect that there might a wider question, Ms Gillies, about whether or not the evidence went far enough.

MS GILLIES: Well, with respect, your Honour ‑ ‑ ‑

KIEFEL CJ: I mean, the whole approach to this has been to read an Act – an Irish Act – in the context of what it says about the processes and understanding of the courts from an Australian perspective. I mean, that is just not usually what courts do.

MS GILLIES: Could I say to your Honour the Chief Justice this, though. That is exactly what the regulations that – the Family Law (Child Abduction) Regulations – give rise to the Convention being applied here tell a court it must do, because the court has to be satisfied of guardianship rights in a foreign jurisdiction, or a co‑signatory country, to be able to say that there are rights of custody sufficient for a warrant returning a child to be made. So that is something in this very peculiar area of the law, on these very esoteric factual circumstances, has to be done by a court.

Now, insofar as, again, there might be criticism in terms of whether or not that evidence was tested or the like; not something that was raised at first instance. There was no application made that was then rejected. It was not a ground of appeal in front of the Full Court, and we say would not give rise to something as significant as the public importance in this matter for a
special leave application to be granted, nor would the interests of justice, with respect, be impacted positively if special leave were granted.

In fact, given the objects of the Convention contained at regulation 1(a) that provide for the speedy return of children and also for the Australian courts not to go behind or seek to undermine custody orders that have been made in foreign jurisdictions, we would say that the administration of justice would tell against leave being granted in the way that is contended for by the applicant.

That is a significant, we would say, assurance to the Court as well about what generally does happen in these matters because if the objects of the Act, as contained in regulation 1(a) of our Family Law (Child Abduction) Regulations are, that we ought not be going – or the Australian courts ought not be going behind custody orders made by foreign jurisdictions. We would say that is exactly what the applicant is seeking to do here and if that is permitted, in our respectful submission, that is not upholding the objects of the Convention for which Australia is a signatory.

KIEFEL CJ: Ms Gillies, just before you conclude, was the case conducted upon the common understanding of the parties that a guardianship order actually gives what are called custody rights?

MS GILLIES: It was, yes. That was never an area in contention.

KIEFEL CJ: Yes, very well.

MS GILLIES: I can tell you why, if that helps.

KIEFEL CJ: Yes, thank you.

MS GILLIES: Again, at page – in the court book you will find at page 105, there is section 10 of the Guardianship Act, and it talks again about rights of guardianship giving rise to custodial rights of the child.

KIEFEL CJ: I see.

MS GILLIES: I am assisted by the fact that my learned junior ran both trials, and I am assured that there was never an issue in the proceedings that was raised.

KIEFEL CJ: I see. Thank you. Yes, Mr Kremer, do you have anything in reply?

MR KREMER: Only very briefly, your Honour. I think dealing with in roughly the order my friend raised them, the first is the O’Donel point. As your Honour the Chief Justice pointed out, without reasons or a transcript, one is seeking to divine something from the face of a single‑page document and supplementing it by what, in my submission, is assumption or further propositions within the language of O’Donel.

One is essentially assuming that there was no error committed in the Irish court. And if there were a safe assumption to make, this Court would not need its appellate jurisdiction, for example. The second point is, so far as my learned friends point about cross‑examination not being taken below, I think while I have to accept, perhaps with a qualification it may not have been raised expressly in the grounds, if your Honours turn to page 100 of the appeal book, there is a page from the trial starting at line 1. Do your Honours have that? I will not read it. It is that entire first full paragraph from lines 1 to 9.

KIEFEL CJ: Yes, Mr Kremer.

MR KREMER: In our submission, the understanding that was recorded was that the course that was being undertaken would not need cross‑examination; hence, my point in-chief about once the trial judge reached a point where it was necessary to decide upon a contested issue of Irish law, which needed input from the experts, on which they did not agree, it was not safe for her Honour simply to make that finding, as your Honour said, by looking at the statute and applying Australian judicial reasoning, including, for example, the former Chief Justice’s article. One really needed to have that as an issue of Irish law ventilated and tested in a proper way, and that is by cross-examination of the experts.

That raises the issue – I think the question that your Honour Justice Steward raised about did the evidence rise, or not rise, any higher than a sustainable argument. As I understand the father’s experts’ affidavit evidence, I believe that is correct. The Full Court has set out the two paragraphs which are expressed in a double negative, which her Honour Justice Hogan in dissent did not agree with the Justices in the plurality was even beyond, on the balance of probabilities.

Your Honour Justice Steward also, in our submission, with respect, quite rightly, pointed out that whether or not section 6A of the Irish legislation involves a discretion, the very fact that such an order was sought and obtained suggests that the father must not be, on reading of that order – must not have been a guardian as at 30 August. Otherwise, he would not have had standing, he would not have been able to apply, and he would not be able to receive that order.

So, there is a question which again, we say, should have been put and tested properly with the Irish experts, which is: how does the fact of the
Irish legislation and the order that was in evidence which suggests the father was not a guardian at the relevant date, how does that then sit with the findings inferred by the courts below from the section 6F declaration?

That would have teased out, I think, your Honour’s second question if I may just overstay my time, your Honour. The question about what the father’s rights were as at 30 August – your Honour mentioned the words “inchoate rights”, and there is a real question, and the important question under Australian law is: did the father have any rights at all? What were they? And, were they, most importantly, rights that amounted to rights of custody in Australian law?

Now, my friend has quite rightly pointed out that if the father was a guardian, then the parties proceeded on the basis that his rights would suffice under Australian law to enable a finding of wrongful removal. However, if the father had something less than that, and they were not a right of guardianship, but a right to apply to be one, or some other inchoate rights, then there was a live question as to what the content of those rights were under Irish law, that the Irish experts should have been asked and then tested on, and it is to enable the courts below to determine whether those rights satisfied the necessary jurisdictional precondition for an order of removal to be made under Australian law.

I think, finally, that point is brought out by my learned friend’s references to various parts of Irish legislation such as section 10(2). Again, those were matters that, although the statues were before the courts below, the experts’ evidence on it was not tested in the usual way.

Your Honours, unless there is anything else I can assist you with, those are our submissions in reply.

KIEFEL CJ: Yes, thank you. The Court will now adjourn to consider the course that it will take.

AT 3.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.04 PM:

KIEFEL CJ: There will be a grant of special leave in this matter. How long do you think the appeal will take, Mr Kremer?

MR KREMER: I always hesitate on these things, your Honours. I believe it should take less than a day. I think your Honours already have enough of the arguments. It would probably be dictated by the extent to which it is necessary to visit the transcript and potentially the evidence.

KIEFEL CJ: It will be heard by more judges than us, of course, but I would be very surprised if it required more than a day. In fact, I would suggest to counsel that it should it take rather less than day. Ms Gillies, what do you say?

MS GILLIES: I would have thought half a day, but I am mindful of the fact that there will be several more members of the Bench on the day that might require questions to be answered.

KIEFEL CJ: Even so, I think within the confined facts it should be closer to half a day than a day. The parties should confer about this and advise the Senior Registrar when they have got a clearer idea of the matter. For the moment, I will put the matter down as a half‑day matter, but if the parties think that it might require a little more than that, they can advise the Senior Registrar.

MS GILLIES: Thank you.

KIEFEL CJ: Yes, thank you. The Court will now adjourn until 3.30 pm.

AT 3.06 PM THE MATTER WAS CONCLUDED