De L v Director-General Department of Community Services (NSW) [1996] HCA 9; (1996) 136 ALR 201; (1996) 70 ALJR 532; (1996) FLC 92-678 (4 April 1996)

HIGH COURT OF AUSTRALIA

De L v DIRECTOR GENERAL, NSW DEPARTMENT OF COMMUNITY SERVICES and De L
S. 96/003
Number of pages - 4
High Court

HIGH COURT OF AUSTRALIA
GUMMOW J

CATCHWORDS

High Court - Procedure - Stay of Proceedings pending special leave application

HEARING

SYDNEY
4:4:1996

ORDER

1. Order 5 of the orders of the Full Court of the Family Court of Australia given on 29 February 1996 be stayed up to and including the disposition of the application for special leave to appeal filed 19 March 1996 or until earlier further order.

2. Costs of this application be costs of the application for special leave to appeal.

DECISION

GUMMOW J. The applicant for special leave to appeal is the mother of two children, born in 1984 and 1986, who are presently in Australia. In aid of that application, she seeks this morning a stay of order 5 of orders made by the Full Court of the Family Court of Australia (Nicholson CJ, Kay and Mushin JJ) on 29 February 1996. Reasons for judgment were published later, on 18 March 1996.

2. The dispute before the Full Court involved the construction of the Family Law (Child Abduction Convention) Regulations ("the Regulations"). They implement what is generally known as the Hague Convention. Regulation 16 deals with the making of orders for the return of children. Sub-regulation 3(c) states:
"A court may refuse to make an order under subregulation (1) if a

...

(c) the child objects to being returned and has attained an age and

degree of maturity at which it is appropriate to take account of the child's views." (1)

3. As I understand it, the principal thrust of the case for the applicant will concern alleged error by the majority of the Full Court (Nicholson CJ contra) in the construction of par (c).

4. Order 5 of the orders made by the Full Court reads:

"In the event that the visa issues, then unless the mother has not

returned to Virginia with the said children within 21 days of its issue, it is ordered that the said children be returned to the USA forthwith thereafter."
It will be observed that the order does not indicate by what means the children are to be "returned", into whose custody and care they are to be entrusted, or their destination in the United States of America. The making of these arrangements is left to the Central Authority acting under reg 20. Order 5 followed upon orders providing for the making of application by the applicant to the relevant United States authorities for a visa to enable her to travel to the State of Virginia in the United States with the two children. The visa was, in accordance with the Court orders, to be sought for sufficient time to enable the mother to make applications to a court of competent jurisdiction in Virginia for custody of the children. Their father resides there. These orders made on 29 February were subsequently modified by the Full Court, but order 5 remains in force and is the pivot upon which turns the regime established by the decision of the Full Court.

5. The application for leave to appeal to the High Court was instituted on 19 March 1996. An application for stay had been made to the Full Court on 14 March and was supported by written submissions signed by senior and junior counsel for the present applicant. It comprised nine paragraphs, two of which are numbered "7". The second paragraph numbered "7" develops the submission as to stay and includes the following passage:

"A stay is necessary in those circumstances to preserve the subject

matter of the litigation (namely the continued residency of the children in Australia) and the balance of convenience clearly favours a stay. To refuse a stay would be to render the Wife's right to apply for Special Leave to Appeal nugatory and it could unnecessarily, or unfairly, interfere with the existing arrangements for care of the children. See generally Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681 at 684-685; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 693-695; and commentary on the Family Court Rules Order 32 rule 4."

6. Notwithstanding this citation of authority, the application for a stay was disposed of by the Full Court in a less than satisfactory manner. The Full Court issued supplementary reasons for judgment on 22 March 1996, the first two paragraphs of which read as follows:

"Since the delivery of our reasons for judgment on 18 March 1996

the solicitors for the (applicant) have contacted the Appeals Registrar, Sydney Registry, querying whether the Court had dealt with:

(1) the application for a stay of the order pending a possible

appeal to the High Court which was made in the written submissions of the (applicant) at the hearing which took place on 14 March 1996, and

(2) the application which the (applicant) made for a costs

certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 at the conclusion of the first hearing.

Bearing in mind that the (applicant) has 21 days from the time of

obtaining a visa to take herself and the children to the United States before the children will be otherwise returned there, in our view it is inappropriate for this Court to grant a stay of the orders. In our view there is ample time for the (applicant) to approach the High Court for a stay of the orders should she be so advised. We thought that we had already communicated this view to the parties when we extended the time for compliance with the orders, and ensured an early delivery of our reasons for judgment."
The Full Court went on to grant a costs certificate.

7. In dealing with the stay application, the Full Court carried significant responsibilities, in accordance with a number of decisions of this Court. The stay application was properly made to the Full Court as the court familiar with the matter. It then became important for the administration of justice that the application be dealt with, and be seen to have been dealt with, in a principled fashion.

8. I refer in particular to what was said by the present Chief Justice in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (2). This is one of the decisions to which the Full Court had been referred by counsel. The passage of particular importance in that judgment of Brennan J is as follows:

"When an application for special leave to appeal is made to this

Court, a jurisdiction to stay may be exercised by the court below and it is to that court - the court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court."

9. His Honour went on to identify factors material to the exercise of the discretion to stay (3:)

"In each case when the Court is satisfied a stay is required to

preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies." (4) The discharge of this task, in the events that have happened in the Full Court, now falls to this Court.

10. In the present matter, the applicant did take the steps necessary to seek a stay from the intermediate court of appeal. The question then becomes whether there is a substantial prospect that special leave will be granted. Supplementary documents were filed in Court this morning. The amended draft notice of appeal contains five paragraphs dealing with grounds of appeal, the first two of which focus upon the construction of par (c) of reg 16(3). They highlight the difference of opinion in the Full Court as to the construction of the provision. In particular, there are differing views as to the significance to be attached in the courts of this country to the construction placed upon the relevant provisions of the Hague Convention by the English Court of Appeal. The Court of Appeal's decision is that in S v S (5).

11. There is a question of public importance involved here. There is, in my view, at least a significant prospect of success as regards those grounds. There is, in my view, less prospect of success in grounds set out in pars 4, 5 and 6 of the amended draft notice of appeal.

12. It then becomes a question of whether the grant of a stay will cause loss to the respondent. In that respect there is no appearance for the second respondent, the father, and counsel for the first respondent, the Director-General of the New South Wales Department of Community Services, neither supports nor resists the application. The first respondent is the relevant Central Authority appointed pursuant to reg 8 of the Regulations and has had carriage of the resistance to the present application. There has not been any active participation by the second respondent in the litigation in the Family Court.

13. The balance of convenience is the remaining matter referred to in the judgment of Brennan J in Jennings Construction. It is the submission for the applicant that the balance of convenience clearly favours the stay, given the nature of the subject-matter of the litigation and the integrity thereof. That submission should be accepted.

14. Accordingly, I order that order 5 of the orders of the Full Court of the Family Court of Australia made 29 February 1996 be stayed up to and including disposition by this Court of the application for special leave to appeal filed 19 March 1996 or earlier further order. Costs of the stay application should be costs of the application for special leave to appeal.
1 At the time of the original application to the Family Court for orders for the return of the children, 7 June 1995, the first sentence of reg 16(3) was in a different form. At that time, the court's discretion to refuse an order for return was triggered "if it is satisfied that" a relevant condition was met. The current form, which expresses the discretion to arise "if a person opposing return establishes that" a relevant condition is met, was introduced by the Family Law (Child Abduction Convention) Regulations (Amendment): Statutory Rules 1995 No 296, r 15. The amendment was effective on 26 October 1995: Commonwealth of Australia, Gazette, No S413, 26 October 1995. Before the Family Court and before me, the regulation in its present form was treated as applicable. No argument before me was put concerning the correctness of that course.
2 (1986) 161 CLR 681 at 684.
3 [1986] HCA 84; (1986) 161 CLR 681 at 685.
4 See also Grassby v The Queen (1989) 63 ALJR 348, where Mason CJ identified the issue as whether the grant of a stay is required to preserve "the subject matter or the integrity of the litigation".
5 (1992) 2 FLR 492, especially in the judgment of Balcombe LJ at 499.