Dp v Commonwealth Central Authority

• Jurisdiction: Australia Federal only
• Court: High Court (Australia)
• Judge: Gleeson CJ,Gaudron,Gummow,Hayne JJ,Kirby J,Callinan J
• Judgment Date: 27 June 2001
• Neutral Citation: [2001] HCA 39,2001-0627 HCA A
• Docket Number: D12/2000
• Date: 27 June 2001

DP

Appellant

and

Commonwealth Central Authority

Respondent

JLM

Applicant

and

Director-General Nsw Department of Community Services

Respondent

[2001] HCA 39

Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ

D12/2000

S291/2000

HIGH COURT OF AUSTRALIA

DP v Commonwealth Central Authority

Family law — Children — Family Law (Child Abduction Convention) Regulations — Orders for return of child to country of habitual residence — Refusal to make such an order — Grave risk of exposure to physical or psychological harm to child — ‘narrow construction’ – Onus of proof of establishing that Greece lacked appropriate facilities for child suffering Autistic Spectrum Disorder — Court erred in accepting finding of trial judge that return of child to Greece would not constitute a grave risk of physical or psychological harm to child — Question of available facilities a question of fact not assumption.

International law — Treaties — Interpretation — Child Abduction Convention — Incorporation by Family Law (Child Abduction Convention) Regulations — Approach to construction — Whether ‘narrow construction’ of exceptions to return of child required to achieve stated purposes of Convention.

Words and phrases — ‘grave risk of physical or psychological harm’.

Family Law Act 1975 (Cth), s 111B(1).

Family Law (Child Abduction Convention) Regulations, regs 14, 16(3)(b). Convention on the Civil Aspects of International Child Abduction.

JLM v Director-General NSW Department of Community Services

Family law — Children — Family Law (Child Abduction Convention) Regulations — Orders for return of child to country of habitual residence — Refusal to make such an order — Grave risk of exposure to physical or psychological harm to child — ‘Narrow construction’ – Evidence of serious risk of mother committing suicide if child returned to father in Mexico — Court erred in finding that the mother's suicide would not expose child to grave risk of physical or psychological harm — Relevance of mother as originator of the source of the risk of harm.

International law — Treaties — Interpretation — Child Abduction Convention — Incorporation by Family Law (Child Abduction Convention) Regulations — Approach to construction — Whether ‘narrow construction’ of exceptions to return of child required to achieve stated purposes of Convention.

Words and phrases — ‘grave risk of physical or psychological harm’.

Family Law Act 1975 (Cth), s 111B(1).

Family Law (Child Abduction Convention) Regulations, regs 14, 16(3)(b). Convention on the Civil Aspects of International Child Abduction.

Representation:

R K J Meldrum QC with S M Gearin for the appellant (instructed by Legal Aid Commission of the Northern Territory)

D Grace QC with P J Baston for the respondent (instructed by Diana Elliott)

ORDER

1. Appeal allowed with costs.

2. Set aside orders of the Full Court of the Family Court of Australia of 19 May 2000.

3. Remit the matter to the Full Court of the Family Court of Australia for further consideration consistent with the reasons for judgment of this Court.

4. The costs of the original proceedings in the Full Court of the Family Court of Australia and on remitter, and of the trial, be in the discretion of the Full Court.

1 Gleeson CJ. In each of two cases, one an appeal, the other an application for special leave to appeal, a challenge is made to a decision of a Full Court of the Family Court of Australia upon an application for an order for the return of a child pursuant to the Family Law (Child Abduction Convention) Regulations (Cth) (‘the Regulations’). In the first case, the application was made by the Commonwealth Central Authority 1. In the second case, the application was made by a State Authority 2. In each case, the application was opposed by the mother of the child, who relied upon the ground in reg 16(3). That regulation provides:

‘16(3) A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:

…

(b) there is a grave risk that the return of the child to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation …’

2 The facts of the cases are set out in the reasons for judgment of Gaudron, Gummow and Hayne JJ, where reference is also made to the scheme of the Regulations, which represent Australia's method of fulfilling its international obligations under the Convention on the Civil Aspects of International Child Abduction (‘the Convention’).

3 In De L v Director-General, NSW Department of Community Services3, this Court pointed out that where there has been a wrongful removal, or retention, of a child to, or in, one contracting state, the concern of the Convention is to reserve to the jurisdiction of the contracting state which is the place of habitual residence of the child the determination of rights of custody and of access. This was said to entail a degree of self-denial, the natural inclination of any court before which such a question comes being to make its own assessment of the interests of the child. The objective is to secure the prompt return of children who have been removed wrongfully, or are being retained wrongfully, so that issues of custody and access may be dealt with according to the laws of their

place of habitual residence. That objective, however, is not unqualified. The obligation to make an order for return, so far as presently relevant, is qualified by the existence of a discretionary power to refuse such an order in the circumstances stated in reg 16(3)(b).

4 A Full Court of the Family Court, in one case upholding the decision of the primary judge, and in the other case reversing the primary judge's decision, concluded that the ground for refusal had not been made out. This Court is invited to hold that such conclusions involved error of law. In neither case am I persuaded that this is so.

The case of DP

5 The person opposing return was the child's mother. The child having been removed by the mother from Greece in circumstances which otherwise fell within reg 16(1), the Australian court's discretion to refuse to make an order for the return of the child was enlivened only if the mother established the grave risk referred to in reg 16(3)(b). The decision of both the primary judge and the Full Court was that the mother did not, by evidence and argument, establish that grave risk.

6 The outcome turned upon the onus of proof. The onus was important partly because of the unsatisfactory nature of the evidence concerning the state of affairs said to give rise to the particular risk which the mother sought to establish.

7 In an adversarial litigious procedure, questions of onus may arise because there is an absence of evidence upon a material issue, or because the evidence bearing upon such an issue lacks the completeness or cogency necessary to support a rational conclusion, or because the evidence lacks sufficient weight to satisfy a tribunal of fact of some matter which arises for judgment. The nature of the issue, and the context in which it arises, may be significant in considering the sufficiency of evidence.

8 Here the issue was whether there was a grave risk that the return of the child to Greece (the country in which he habitually resided immediately before the removal by the mother) would expose the child to physical or psychological harm or otherwise place him in an intolerable situation. An issue of that kind will often involve difficult problems of evaluating future possibilities. The primary facts which form the basis for such an evaluation may be disputed or doubtful. The problem may be magnified by the context in which the issue arises: a custody dispute between parents; one parent in Australia, the other in a foreign country; one parent before the court, the claims of the other only advanced through a government official; language problems; the pressures of urgency; and the probability that some degree of harm to the child, at least of a psychological nature, will result from the very circumstances that have given rise to the need for a court to consider the issue. The regulation provides that the risk demonstrated must be grave. The nature and degree of physical or psychological harm is unspecified, but guidance as to what is in contemplation is given by the words ‘or otherwise place the child in an intolerable situation’ 4.

9 To my mind, it is unhelpful to say that reg 16(3)(b) is to be construed narrowly. In a case where there is no serious question of construction involved, such a statement may be misunderstood as meaning that the provision is to be applied grudgingly. The task of the decision-maker is to give effect to the regulation according to its terms. The meaning of the regulation is not difficult to understand; the problem in a given case is more likely to be found in making the required judgment. That is not a problem of construction; it is a problem of application. It may exist at the level of finding the primary facts relevant to judgment; or at the level of deciding the conclusion to be drawn from evaluating known facts. What is made clear, for reasons that are explicable by reference to the nature and purpose of the regulatory scheme, and the Convention to which it gives effect, is that the discretion not to make an order for return only exists where there is a grave risk of harm (the gravity being emphasised by the cognate reference to an intolerable situation), and the onus of establishing that circumstance is upon the person opposing return.

10 The risk to the child in the present case was said to be associated with the child's condition of autism, and the suggested unavailability of appropriate and accessible facilities for treatment of that condition...