Proctor : May 2017
38 PROCTOR | May 2017 High Court and Federal Court casenotes High Court Family law – parenting orders – best interests of children – views of the children In Bondelmonte v Bondelmonte  HCA 8 (1 March 2017) the High Court considered the requirements of the Family Law Act 1975 (Cth) with respect to the consideration of the views of children and interim parenting orders. The parties to the appeal were the father and mother of three children. The two eldest (aged almost 17 and 15) had been taken to New York by the father for a holiday. The father decided not to return, keeping the children with him, in breach of parenting orders that provided for equal parental responsibility, required the children to engage in a child responsive program and provided for parental interviews. The mother applied for the children to be returned to Australia. The father did not indicate what he would do if orders were made for the children’s return. The children had expressed a desire to remain with the father. In making orders, the Family Court was required to consider, relevantly, the best interests of the children and any views they had expressed. The primary judge made interim orders for the children’s return, considering their views but giving them limited weight because of the father’s influence over the children. The children were ordered to return to live with the mother or, if the children preferred, identified parents of friends. The father appealed, arguing that the children’s views had not been properly considered and that there was no power to order custody in favour of the friends’ parents. The High Court held that the primary judge was entitled to take account of the father’s influence in giving weight to the children’s views. The judge was also not required to ascertain the children’s view on the alternative living arrangements – only to consider views that had been expressed. Lastly, the High Court held that there was power to make parenting orders in favour of a parent of a child “or some other person”, which included the friends’ parents. Kiefel, Bell, Keane, Nettle and Gordon JJ jointly. Appeal from the Family Court dismissed. Migration law – migration – statutory interpretation – deeming under Acts Interpretation Act In Minister for Immigration and Border Protection v Kumar  HCA 11 (8 March 2017) one of the criteria for a visa applied for by the respondent was that, at the time of application, the visa applicant was the holder of a visa of a specified class. The respondent held a visa that would have satisfied the criterion, which expired on a Sunday. However, the new visa application was made on the Monday after the old visa expired. The new visa was refused because the applicant did not meet the criterion. The respondent argued that s36(2) of the Acts Interpretation Act 1901 (Cth) applied. That section provides that if an Act requires or allows a thing to be done, and the last day for doing the thing is a weekend or public holiday, then the thing can be done on the next working day. The respondent argued that s36(2) operated to allow the new visa to be applied for and for the criterion to be satisfied on the Monday because the existing visa expired on the Sunday. That was rejected by the Federal Circuit Court but upheld by the Federal Court. The High Court held that the Migration Act 1958 and Migration Regulations 1994 did not, in this case, impose a time limit or require a thing to be done by a particular date, expressly or impliedly. It was common ground that the visa application was validly made on the Monday. However, the visa applicant did not meet the criterion on that day. Section 36(2) did not apply to alter the rights or obligations in that scenario. Bell, Keane and Gordon JJ jointly; Gageler J separately concurring; Nettle J dissenting. Appeal from the Federal Court allowed. Criminal law – directions to juries – application of the ‘proviso’ – approach to questions for appellate courts In Perara-Cathcart v The Queen  HCA 9 (1 March 2017) the High Court held that jury directions as to discreditable conduct evidence were sufficient, and also commented on the application of the “proviso” (which allows for criminal appeals to be dismissed when there has been an error but if there has been no substantial miscarriage of justice) and the questions for an appellate court. The appellant was convicted of rape and threatening to kill. The trial judge admitted evidence that a small amount of cannabis had been found in the appellant’s home when it was searched. The trial judge gave directions as to how the evidence could be used. On appeal, the appellant argued that the evidence should not have been admitted and that the directions were insufficient. The Court of Appeal unanimously held the evidence was admissible. Two members of the court held that the direction was inadequate; of those, one would have allowed the appeal, but the other applied the proviso to dismiss it. Ultimately, the appeal was dismissed. The appellant argued that the Full Court should have allowed the appeal because a majority had not held that the proviso should apply. In the High Court, a majority (Nettle J dissenting) dismissed the appeal on the basis of a notice of contention, finding that the direction to the jury was sufficient. However, the court divided on other aspects of the case. Kiefel, Bell and Keane JJ, Nettle J concurring on this issue, held that the application of the proviso presented two questions: whether there had been an error; and whether the proviso should apply. The legislation required a majority for both questions. The notice of contention aside, the members of the joint judgment would have upheld the appeal for that reason. Gageler J and Gordon J held that there was but one question, whether the appeal should be allowed or dismissed. Absent the notice of contention, their Honours would have dismissed the appeal, because a majority of the court below had not decided that the appeal should be allowed. Kiefel, Bell and Keane JJ jointly; Gageler J and Gordon J separately concurring; Nettle J dissenting. Appeal from the Court of Appeal (SA) dismissed. Andrew Yuile is a Victorian barrister, ph (03) 9225 7222, email email@example.com. The full version of these judgments can be found at austlii.edu.au. Numbers in square brackets refer to paragraph numbers in the judgment. Federal Court Administrative law – whether s33 of the Acts Interpretation Act 1901 (Cth) authorised revocation of administrative decision – whether the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) evinced a contrary intention preventing revocation of a decision Minister for Indigenous Affairs v MJD Foundation Limited  FCAFC 37 (3 March 2017) concerned the interaction between s33 of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) and s64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). Section 33(1) of the Acts Interpretation Act provides that: “Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires.” There were two core issues before the Full Court (Perram, Mortimer J and Perry JJ). The first was whether s33(1) of the Acts Interpretation Act empowered the incoming Minister to revoke the earlier decision of a former Minister under s64(4) of the Land Rights Act. The second issue was whether the scheme provided by the Land Rights Act evinced a “contrary intention” for the purposes of s2(2) of the Acts Interpretation Act to displace any powers of revocation that may be conferred by s33(1). Justice Mortimer (with whom Perry J agreed) held that there was a contrary intention evinced by the scheme of the Land Rights Act as a whole (and Pt VI of the Act, in which s64(4) is contained, in particular), so that s33(1) of the Acts Interpretation Act was not applicable. That was a sufficient basis on which to determine the appeal. However, had her Honour not been satisfied of the existence of a contrary intention, in Mortimer J’s opinion, the scope of s33(1) of the Acts Interpretation Act did not extend to a general implication of an additional power to reverse or undo an exercise of power, whether by revoking a decision made in the exercise of a power or otherwise (at ).