Bamfield v Secretary, Department of Communities & Justice & Ors [2022] HCATrans 209 (18 November 2022)

Last Updated: 22 November 2022

[2022] HCATrans 209

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S49 of 2022
No S50 of 2022

B e t w e e n -

BAMFIELD

Applicant

and

SECRETARY, DEPARTMENT OF COMMUNITIES & JUSTICE

First Respondent

Q

Second Respondent

INDEPENDENT CHILDREN’S LAWYER

Third Respondent

Applications for special leave to appeal

GAGELER J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2022, AT 11.50 AM

Copyright in the High Court of Australia

____________________

MS R.L. SEIDEN, SC: May it please the Court. I appear with my learned friends MS B.J. TRONSON and MS J.E. TREHERNE for the applicant in both matters. (instructed by Hague Convention Legal Practice)

MR M.P. KEARNEY, SC: May it please the Court. I appear with my learned friend MS V.A. HARTSTEIN on behalf of the first respondent in both matters. (instructed by Department of Communities and Justice Legal)

MR G.R. DICKSON, KC: May it please the Court. I appear with my learned friend MR A.M. BARBAYANNIS for the second respondent in both matters. (instructed by Sayer Jones)

GAGELER J: Yes, thank you. Ms Seiden.

MS SEIDEN: Thank you, your Honours. Your Honours, the force of this application is that a First Nations child – an infant when she arrived in Australia – will otherwise be relocated to a nation whose courts lack the history and context by which to assess the cultural safety of this Aboriginal child.

GAGELER J: They are bound by the UN Convention on the Rights of the Child, are they not?

MS SEIDEN: They are, your Honour. Having found that, at best, the mother’s intentions regarding Belgium were ambiguous, the primary judge was not satisfied that the parents had a shared intention regarding Belgium as the habitual residence of the child. The approach in those circumstances – the approach taken by the primary judge, which was an approach that was endorsed by the Full Court – was then to determine whether the child was sufficiently connected to Belgium as a way to determine whether the child was habitually resident in Belgium. This was a one‑sided analysis. If I could take your Honours to where that occurs in the ‑ ‑ ‑

GAGELER J: Was this point taken before the primary judge?

MS SEIDEN: Your Honours, the question of the child’s aboriginality as a factor that went to habitual residence was not put in that way. However, for the reasons that the
primary judge was alive to the fact that the child was an Aboriginal child, was alive to the issues that this Court raised in Love, was alive to the fact that the legislative protections in place in Australia for fostering an Aboriginal child’s cultural connections to Australia, it was something that had the primary judge – not taken a one‑sided approach, but looked at the child’s connections to Australia – that is something that would have naturally arisen, it is submitted.

GLEESON J: I had thought that the mother accepted, at least at first instance, that the child’s habitual residence was in Belgium.

MS SEIDEN: Your Honour, there was an apparent concession in parenting proceedings in Belgium. I can take your Honours to that. It is at paragraph 109, application book 34. Your Honours will see the last line, that:

the mother accepted that the habitual residence of the child was in Belgium –

in the Belgium proceedings, and:

then sought relocation orders –

The Full Court dealt with – before I take your Honours to the Full Court, the learned primary judge, nevertheless, being aware of that concession, proceeded to determine the question of habitual residence on the merits. The Full Court identified that the concession had been made, identified that the mother had claim that there were language barriers and, nevertheless, noted that for the primary judge, that concession had not been determinative.

If I could just take your Honours, then, to the Full Court at application book 136. At paragraph 48, about the middle of that paragraph:

We note the language barriers the mother asserted may explain the

apparent incongruity –

GLEESON J: So, here, the Full Court is saying it is difficult to understand how the mother could be heard to advance the opposite position, for the first time on an appeal ‑ ‑ ‑

MS SEIDEN: Indeed.

GLEESON J: So, what has changed between then and now?

MS SEIDEN: Your Honour, it is submitted that, nevertheless, the Full Court in the last paragraph identifies that the way the primary judge approached it was – that the finding was sound, which it submitted was on a merits review – and it submitted that the court’s role is to determine for itself whether it had jurisdiction, and the only way it had jurisdiction to relocate the child is if it had determined that habitual residence of the child was Belgium.

It would be inherently unlikely – particularly in face of the mother’s continued assertion that Australia was her habitual residence – for the mother to have intended to concede in the Belgium proceedings the habitual residence while simultaneously advancing a position in Australia that the child’s habitual residence was not Belgium. The Full Court identified that the mother had explained it by language differences and no finding was made that that was not genuine. The Full Court, rather than determining it on the concession, simply endorsed the primary judge’s approach, which also was not to determine it on the concession but to determine on the basis of the merits.

If I could take your Honours then to the main consideration of how the primary judge arrived at the conclusion that habitual residence of the child was Australia, that is at 150, which is application book page 49, your Honours. If I could start with 149, just the third line up, the last sentence:

When assessing the connection of [the child] to Belgium –

that is the task that the primary judge was undertaking at this point. Then, at 150, her Honour identifies that the child:

spent the first seven months of her life in Belgium –

but had not taken into account that, at this stage, the child had spent two months before the retention date in Australia. So, the length of time in Australia was not considered. The child was seven months when she arrived in Australia, nine months old by the time of the retention date. Then, turning to the last three lines of paragraph 150, her Honour identified several factors that supported a connection to Belgium. For instance:

The father is employed –

in Belgium, while equally there was a finding that the mother was employed in Newcastle, Australia. The primary judge identified that:

The parent’s own real property in Belgium –

and, equally, the parents own real property in Australia. The primary judge noted that:

The parents’ relationship with Belgium is in no way transitory –

and, equally, the relationship ‑ ‑ ‑

GAGELER J: Ms Seiden, how do these factors relate to what you say is the question of principle that you wish to raise in this Court?

MS SEIDEN: It is submitted that the primary judge at best identified that the habitual residence of the father was Belgium, and was satisfied, because of these connections to Belgium, that the child was habitually resident in Belgium.

The primary judge did not decide what the mother’s habitual residence was and therefore lost focus on the fact that when one is deciding the habitual residence of a child based on sufficient connections to a country – Belgium – that if there is another significant country in the mix, then one must weigh that up. Had the primary judge identified that Australia was at least the habitual residence of the mother – or at least contended for – identified that the child had been here for two months before she had been said to be retained, then that would have changed the entire balancing exercise.

So, the point of principle is that, when one is dealing with an infant, one really needs to determine the habitual residence of both parents and that if there is a second country of significance – such as, in this case, Australia – and, particularly, where there are significant cultural connections to Australia, that that should have been weighed up. The primary judge, in effect, substituted a test of sufficient connection for the wide‑ranging test of factual question of habitual residence and because, it is submitted, the primary judge did not focus on the mother’s habitual residence, lost focus on the connections to Australia which, we say, are very significant.

It may be possible in a case to determine by looking at one country alone that habitual residence is not that country. But, it is submitted, when there is another significant country that is in the mix, it needs to be a balance and that, therefore, when one is dealing with an infant and the primary carer, it is critical to consider that. The primary judge said, at best, the mother’s intention – vis‑à‑vis Belgium – was ambiguous. So, did not finish that analysis and, it is submitted, was sent down the wrong path, as a result.

GAGELER J: You are seeking special leave to appeal from the Full Court’s judgment.

MS SEIDEN: Indeed.

GAGELER J: What was wrong about the way in which the Full Court dealt with this point?

MS SEIDEN: They simply endorsed what the primary judge had done and, it is submitted – that is why we are focusing on the errors of what the primary judge had done; that the Full Court, after identifying the concession in Belgium, nevertheless then said there was no error in what the primary judge had done. So, we fall back to the reasoning of the primary judge, your Honour.

GAGELER J: So, you have the habitual residence point which you have developed. Is there another point that you are also seeking to raise?

MS SEIDEN: The other point of principle, your Honours, is the intolerable situation. The way that the primary judge had identified that – and that case also changed slightly. If I could take your Honours to application book 65, at 195, her Honour, for context, identified that Australia’s parenting proceedings expressly require consideration of a First Nations Australian’s culture in determining what is the best interest of the child. Her Honour also recognised the well‑developed jurisprudence and judicial education in relation to Australian Aboriginal culture. Her Honour acknowledged that the courts of Belgium could not be expected to be as familiar with the plight of First Nations Australians as Australian courts, and that judicial education was essential and that the mother’s concerns were genuine.

Ultimately, even though there was no expert evidence that the Belgian courts would not take this into account – or would, and relied on the Convention applying – but, ultimately, at paragraph 195, the first line:

For the reasons set out above I find that Australian courts, as compared to Belgium courts, may place greater significance upon a child’s Aboriginal culture . . . However that is not to say that [the child’s] Aboriginality will be accorded insufficient or no weight.

We say that is not a finding of what would happen in Belgium and that that finding that the Australian Courts may place greater significance of it is there and then the identification of risk. The error then occurs, if your Honours look further down to the penultimate sentence of that paragraph. Her Honour was looking for:

a situation which arises on return and not a situation that might emerge at some later indeterminate time –

We say that that was an error, too. Here, her Honour failed to appreciate that the risk exists now. It is not something that may well arise in the future.

In any event, it is the wrong question to ask whether the risk would crystallise immediately on return. The essence of the risk is it may well arise, and in circumstances where before the primary judge the parenting proceedings were still on foot, it was possible to identify where that risk might crystallise.

GAGELER J: Again, you are seeking special leave to appeal from the decision of the Full Court.

MS SEIDEN: Indeed. However, we say that the same question – and it had been put slightly differently – nevertheless still arises for this reason: that same risk actually is still live because parenting proceedings are never decided once and for all; circumstances change. Now the child has been living in Australia for two years and it is anticipated from the primary judge’s orders that the mother would be planning to go to Belgium, which was not something that was taken into account.

So, yes, the Full Court focused on what had happened in the Belgium proceedings, but it is submitted that that does not actually take away the original risk and the way that it was put in the first instance decision. We would seek to therefore still press that risk, that it is still a live risk on the basis that parenting proceedings might be taken again, might change as circumstances change, and, at the very least, the two‑year period in Australia is quite a significant change. So, the short point, your Honour, is that the risk we rely on is that same risk.

Your Honours, they are the submissions.

GAGELER J: Mr Kearney and Mr Dickson, we do not need to hear from you. The proposed grounds of appeal are not sufficiently arguable to warrant the grant of special leave to appeal. Special leave is therefore refused. What is the position in relation to costs?

MR KEARNEY: We do not seek an order, your Honour.

MR DICKSON: We do not seek an order, your Honour.

GAGELER J: There is to be no order as to costs.

The Court will at this stage adjourn until 2.00 pm.

AT 12.07 PM THE MATTERS WERE CONCLUDED