MW v Director-General, Department of Community Services

• Jurisdiction: Australia Federal only
• Judge: Gummow,Gleeson CJ.,Heydon,Crennan JJ.
• Judgment Date: 28 March 2008
• Neutral Citation: [2008] HCA 12,2008-0328 HCA A
• Court: High Court
• Docket Number: S493/2007
• Date: 28 March 2008

MW

Appellant

and

Director-General of The Department of Community Services

Respondent

[2008] HCA 12

Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ

S493/2007

HIGH COURT OF AUSTRALIA

MW v Director-General, Department of Community Services

Family Court of Australia — Jurisdiction under s 111B of Family Law Act 1975 (Cth) (‘Family Law Act’) and reg 16 of Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘Regulations’) to make a return order — Whether Family Court was properly satisfied that removal of child from New Zealand to Australia was wrongful — Whether Access Order conferred rights of custody upon father — Whether right of access conferred by Access Order was right to determine place of residence of child.

Family Court of Australia — Jurisdiction under s 111B of Family Law Act and reg 16 of Regulations to make a return order — Whether Family Court was properly satisfied that removal of child to Australia was wrongful — Whether Regulations accommodate application for return order by parent asserting breach of rights of custody vested in a court.

Family Court of Australia — Jurisdiction under s 111B of Family Law Act and reg 16 of Regulations to make a return order — Whether Family Court was properly satisfied that removal of child to Australia was wrongful — Whether removal breached rights of custody held by father by operation of s 17 of Care of Children Act 2004 (NZ) — Whether mother living with father as de facto partner at time child was born.

Family Court of Australia — Jurisdiction to make parenting orders under Pt VII of Family Law Act — Parens patriae or wardship jurisdiction.

Family Court of Australia — Procedure — Power to make order permitting cross-examination in application for return order under reg 16 of Regulations.

Care of Children Act 2004 (NZ), s 17.

Convention on the Civil Aspects of International Child Abduction, Chs III, IV.

Evidence and Procedure (New Zealand) Act 1994 (Cth), Pt 6.

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

Family Law (Child Abduction Convention) Regulations 1986 (Cth).

Family Law Rules 2004 (Cth).

Interpretation Act 1999 (NZ), s 29A.

Representation

G O'L Reynolds SC with B R Kremer for the appellant (instructed by Le Vaccaro Lawyers)

B W Walker SC with T Tockar for the respondent (instructed by Department of Community Services)

ORDER

• 1. Appeal allowed.

• 2. Set aside order 1 of the orders of the Full Court of the Family Court of Australia made on 30 April 2007 and in its place order:

  • (a) appeal allowed;

  • (b) set aside orders 1 to 8 of the orders of the Family Court of Australia made on 18 December 2006 and in their place order that the application filed 11 October 2006 be dismissed.

1 Gleeson CJ. The Full Court of the Family Court of Australia, by majority, upheld a decision of the primary judge, Steele J, who made a return order pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (‘the Regulations’) 1. Of particular relevance are regs 4 and 16, which are set out in the reasons of Gummow, Heydon and Crennan JJ. The basis of the Family Court's order was a finding that a child of the appellant had been wrongfully removed by the appellant from New Zealand to Australia. That finding, in turn, rested upon a conclusion that the father of the child, a resident of New Zealand, had rights of custody in relation to the child under the law of New Zealand (reg 16(1A)(c)). The existence of those claimed rights of custody is the point on which the Full Court divided. The child was born in New Zealand in 1996. At that time, and until September 2006, the appellant and the child were residents of New Zealand.

2 The difference between the majority (May and Thackray JJ) and the dissentient (Finn J) in the Full Court turned upon the question whether there was evidence to support Steele J's finding of fact that the appellant was ‘living with the father of the child as a de facto partner at the time the child was born.’ It is common ground that, by reason of s 17 of the Care of Children Act 2004 (NZ), if the answer to that question is in the affirmative, the appellant and the father are joint guardians of the child. In that event, the father had, and has, rights of custody within the meaning of reg 16(1A)(c).

3 A striking, and disconcerting, feature of the case is the absence of factual detail, on an issue that is now presented as potentially decisive, in the evidentiary material before the Family Court. Part of the explanation appears to be that, until shortly before the hearing at first instance, the issue did not emerge as a matter of serious contest. The case was dealt with as one of urgency. The application for a return order was filed on 11 October 2006. The response and the supporting affidavit of the appellant were filed on 14 November 2006. The hearing took place on Monday 18 December 2006. An ex tempore judgment was delivered. Most of the affidavit evidence was directed to matters which are irrelevant to this appeal. When, from an affidavit sworn by the appellant on the Thursday before the hearing, it became apparent that there was to be a serious dispute about the relationship between the father and the appellant at the time of the birth of the child, the evidence of the father (who was not a party to the proceedings), and other witnesses for the respondent, was not supplemented. One example of the deficiency of the material illustrates the point. The appellant was born in September 1977. The father was born in 1964. They met in October 1995. The child was born in September 1996. There was some sketchy evidence on the topic of their living arrangements at and immediately after the birth of the child.

There was, however, an almost complete absence of evidence about their living arrangements during the months leading up to the birth of the child. The Family Court was left to rely upon inferences from subsequent conduct, and upon one or two broad generalisations, in order to reach a conclusion about a question of fact the answer to which was well known by both the father and the appellant. If there is one thing in the case that is certain, it is that the evidence before the Family Court did not reveal, or even attempt to reveal, the full history of the relationship in question. Since the father was not a party to the litigation, he was in a position of disadvantage. The appellant gave some evidence, not in all respects consistent, about where she was living in the weeks following the birth of the child. It is surprising that no one thought to adduce evidence about where she was living during her pregnancy.

The relationship between father and mother at the time the child was born

4 Before the removal of the child to Australia, in September 2006, there had been a history of disputation and litigation, between the father and the appellant, concerning the father's rights of access to the child, and alleged interference with those rights. Steele J found that, shortly after the birth of the child, the parties separated. In November 1997, a parenting agreement was reached which provided that the child would live with the appellant and spend some time with the father. In 1997, the appellant married a man described by Steele J as ‘a notorious criminal’. Steele J said that the father ‘was attempting, somewhat valiantly, to build a relationship with the [c]hild’. The appellant's marriage to the criminal broke down, and the husband disappeared. In 1997, following counselling, there was a counsellor's report which recorded the agreement of the appellant and the father to court orders giving custody to the appellant and rights of access to the father. The counsellor's report said that the appellant agreed to ‘recognise [the father's] guardianship rights.’ The appellant, in her evidence, denied the accuracy of that part of the report. Nevertheless, the report was in evidence before Steele J, who declined to accept the appellant's evidence on a number of matters, but made no specific finding about the report. Court orders relating to custody and access were made in 2000. There were later court proceedings over the years between 2000 and 2006.

5 The application initiating the present proceedings asserted, among other things, that, pursuant to s 17 of the Care of Children Act 2004, the father was a guardian of the child ‘as he was living with the child's mother when the child was born.’ Plainly, this was intended to be an elliptical assertion that the two were living as de facto partners. So much appears from the reference to s 17, which provides that the father and mother of a child are joint guardians unless the mother is the sole guardian, and further provides that, in the case of a child conceived at the relevant time, where the parents were not married or in a civil union, the mother is the sole guardian if she was not living with the father as a de facto partner at the time the child was born. By reason of s 29A of the Interpretation Act 1999 (NZ), that turned upon whether the two lived together as a couple in a relationship in the nature of marriage or civil union. A supporting affidavit of the father asserted, without elaboration, that he was the child's joint guardian by virtue of the fact that he lived with the appellant at the time of the child's birth. An affidavit sworn by the father's New Zealand lawyer repeated the same assertion, expressly relating it to s 17. The appellant's first affidavit in response, sworn on 10 November 2006, did not contradict those assertions. It alleged physical abuse, which, according to the appellant, began during her pregnancy. ‘This’, she said, ‘is why I moved out with my 2-month old son and went to live with my parents.’ Her statement that she ‘moved out’ is to be understood in the light of the assertions to which she was responding, and appears to confirm at least the fact of...