High Court of Australia Judgment Summary Notes

LK v Director-General, Department of Community Services [2009] HCA 9 (11 March 2009)

The High Court has upheld a mother’s appeal against orders of the Family Court that her four children should be returned to Israel.

In September 2005 a husband and wife, then living in Israel, separated. The four children of the marriage continued to live with their mother. All four children were born in Israel but were entitled to Australian citizenship as their mother was an Australian citizen. In May 2006 the mother and the four children, who were then aged between 15 months and eight years old, travelled to Australia with the father’s consent. The mother and children held tickets to return to Israel on 27 August 2006, however when they left Israel both parents understood that it was the mother’s intention to make Australia her and her children’s home unless the husband decided he wanted to live with them together as a family. In that case she would return with the children to Israel.

Before leaving for Australia the mother registered the children as Australian citizens, obtained Australian passports for the children and enrolled the two oldest children in a private school. Immediately after arriving in Australia the mother sought and obtained Centrelink benefits, the two older children commenced school and the third child was enrolled in pre-school. The older children joined a soccer club and took music lessons. Eventually the mother rented and furnished a home to live in with her children.

In July 2006 the husband advised his wife that he had changed his mind — he wanted a divorce and he wanted the children to return to Israel.

The Convention on the Civil Aspects of International Child Abduction entered into force for Australia on 1 January 1987. Parliament made regulations under the Family Law Act which, in accordance with the Abduction Convention, recognise that “the appropriate forum for resolving disputes between parents relating to a child’s care, welfare and development is ordinarily the child’s country of habitual residence”. The Director-General of the NSW Department of Community Services is empowered under the Regulations to make an application for the return of a child to “the child’s country of habitual residence” if the child has been wrongfully removed to or retained in Australia. The regulations provide that a child will have been wrongfully removed to or retained in Australia if, amongst other things, immediately before the removal to or retention in Australia, the child habitually resided in another country which was also a signatory to the Abduction Convention.

At the request of Israeli authorities the Director-General applied to the Family Court for orders returning the children to Israel. A single judge of the Family Court ordered that the children be returned to enable the custody dispute between the mother and the father to be determined according to Israeli law. On appeal, the Full Court of the Family Court affirmed that decision. The mother, LK, appealed to the High Court.

In a unanimous decision the High Court reasoned it would be necessary to look at all the circumstances of the case, that is — undertake a broad factual inquiry, in order to determine whether the children habitually resided in Israel when they were allegedly wrongfully retained in Australia (assumed, for the purposes of the appeal, to be in July 2006 when the father first asked for them to be returned to Israel). The High Court had regard to the circumstances that, at the time the mother and children left Israel, it was the parents’ shared intention that the mother and the children would live in Australia unless the father decided he wanted to reconcile with the mother and that the mother had, before and after her return to Australia, taken various steps to set up a home in Australia (which gave effect to the parents’ shared intention). The Court held that as at July 2006 the children did not habitually reside in Israel. The High Court set aside the orders of the trial judge and the Full Court, and dismissed the Director-General’s application for orders that the children be returned to Israel.

Minister for Immigration and Citizenship v Kumar [2009] HCA 10 (11 March 2009)

The High Court has decided that the Migration Review Tribunal was not required to disclose to Mr Kumar the identity of the person who provided information it had received concerning his application for a spouse visa.

Mr Kumar was born in Fiji on 14 September 1982. On 8 May 2004 he married Ms Rachel Sunita Krishna at Lidcombe in New South Wales. Ms Krishna is an Australian citizen. On 10 June 2004 Mr Kumar applied for permanent residence in Australia on the basis that he was the spouse of an Australian citizen. The delegate of the Minister for Immigration and Citizenship was not satisfied that Mr Kumar and Ms Krishna were in a genuine and continuing marriage relationship, or that they had a mutual commitment to a shared life as husband and wife. On 29 September 2004 Mr Kumar’s application for a spouse visa was refused.

Mr Kumar applied to the Migration Review Tribunal for a review of the delegate’s decision. At a hearing before the Tribunal on 31 October 2005 Mr Kumar was given a letter which invited him to comment on information received by the Tribunal in confidence stating that his marriage to Ms Krishna was contrived for the sole purpose of migrating to Australia. Mr Kumar was given 28 days within which to provide any comments about the allegation. At the hearing Mr Kumar denied the allegation but did not provide any further evidence or comments within that 28 day period.

In its reasons dated 3 February 2006 the Tribunal affirmed the delegate’s decision. Having regard to financial aspects of the relationship, the nature of the household, social aspects of the relationship and the nature of the commitment between Mr Kumar and Ms Krishna, the Tribunal was not satisfied their relationship was genuine. The Tribunal was also persuaded by the information supplied to it in confidence, which it described as “credible and significant adverse information” that Mr Kumar and Ms Krishna were not in a genuine and continuing spousal relationship.

Mr Kumar’s application for review of the Tribunal’s decision was dismissed by a Federal Magistrate. However three judges of the Full Court of the Federal Court unanimously upheld his appeal from the Magistrate’s decision. They did so on the basis that the Tribunal had failed to disclose to him the identity of the informant and the full nature of the information provided by the informant. They said that this was required by section 359A of the Migration Act. The Minister appealed against the Full Court’s decision to the High Court.

Section 359A requires the Tribunal to give to an applicant “particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision …  under review”. Sub-section (4) of section 359A states that the requirement to give particulars does not apply to “non-disclosable information”. Non-disclosable information is defined to include information whose disclosure would found an action for breach of confidence.

In a unanimous decision the High Court held the Tribunal had complied with the requirement of section 359A when it alerted Mr Kumar to the advice it had received that his marriage had been contrived for the sole purpose of migrating to Australia. The High Court held that the identity of the person who provided the information fell within the definition of “non-disclosable information”

Hickson v Goodman Fielder Limited [2009] HCA 11 (12 March 2009)

The High Court has decided that Glen Hickson may apportion the amount of workers’ compensation payments he must repay to Goodman Fielder to the same extent that damages he recovered through settling a negligence claim may have been reduced because he contributed to the cause of his injury.

In 2003 Mr Hickson suffered serious injury after colliding with a car while riding his push bike from work. He settled a claim for damages against the driver of the car for an amount of $2.8 million on 6 June 2006. As the collision happened on Mr Hickson’s way from work he was also entitled to receive workers’ compensation payments from his employer, Goodman Fielder. Prior to settling his damages claim, Mr Hickson received $607,315.43 from Goodman Fielder in workers’ compensation.

The law in New South Wales provides that a person who first receives workers’ compensation payments and then damages for the same injury must repay the workers’ compensation payments to his or her employer. It also provides that if the amount of damages received by the injured person has been reduced to take account of that person’s contributory negligence, then the amount repayable to the employer should be reduced to the same extent that the damages had been reduced.   On 7 June 2006 Goodman Fielder filed a claim in the NSW District Court for repayment of the $607,315.43 it had paid to Mr Hickson in workers’ compensation. Mr Hickson responded that the amount he had received in settlement of his damages claim had been reduced because his actions had contributed to his injury. He argued that the amount he should repay to Goodman Fielder ought to be reduced to the same extent as his damages had been reduced. Goodman Fielder in turn argued that as Mr Hickson’s damages claim had been settled there was no court record to establish how the damages of $2.8 million had been calculated.    The parties asked a District Court judge to decide whether the law concerning the reduction of workers’ compensation payments to be repaid to an employer applies when a damages claim is settled and there is no court determination about contributory negligence or the calculation of the damages. If the judge answered “yes” to that question the parties also wanted the judge to decide whether the District Court could hear evidence concerning the extent to which the amount recovered by Mr Hickson when his damages claim was settled had been reduced because of his contributory negligence, the degree of his contributory negligence and the calculation of the damages he would have been likely to recover if there had been no reduction for contributory negligence. The District Court judge answered “yes” to all of those questions. Goodman Fielder appealed to the NSW Court of Appeal which held, by majority, that the answer to the first question ought to have been “no”, in which case the following questions did not need to be answered.

Mr Hickson appealed to the High Court and today the High Court unanimously held that the District Court judge’s answers to the questions raised by the parties should be reinstated and that Goodman Fielder’s appeal to the NSW Court of Appeal should be dismissed. The fact that there may have to be “a trial within a trial” – to determine what damages were recoverable by Mr Hickson, whether his actions had contributed to causing his injury and the extent of the reduction of any damages because of his contributory negligence – was not a reason to prevent Mr Hickson from being able to reduce the amount he must repay to Goodman Fielder to the same extent that the damages he recovered had been reduced because of his contributory negligence.