Abraham v Attorney General for the Commonwealth [2003] FCA 1566

FEDERAL COURT OF AUSTRALIA

Abraham v Attorney General for the Commonwealth [2003] FCA 1566 JEMAS ABRAHAM v ATTORNEY GENERAL FOR THE COMMONWEALTH No S 676 of 2003 LANDER J ADELAIDE 15 DECEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 676 OF 2003

BETWEEN: JEMAS ABRAHAM

APPLICANT

AND: ATTORNEY GENERAL FOR THE COMMONWEALTH

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 15 DECEMBER 2003

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 676 OF 2003

BETWEEN: JEMAS ABRAHAM

APPLICANT

AND: ATTORNEY GENERAL FOR THE COMMONWEALTH

RESPONDENT

JUDGE: LANDER J

DATE: 15 DECEMBER 2003

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application by the applicant to have the respondent, the Attorney-General, pay to him a sum of money which the Attorney-General has agreed to pay him pursuant to the Overseas Custody (Child Removal) Scheme. It is necessary to have some regard to the facts of the matter to explain the decision at which I have arrived. 2 The applicant married his wife in Melbourne, Australia, in 1994. On 6 March 1995 his wife gave birth to a daughter. In August 1998 the applicant's wife left Australia with his daughter and she and his daughter have lived in Japan since that time. She gave the applicant no notice of her leaving or her intention to leave. The applicant made an application in the Family Court of Australia for the custody of his daughter and a temporary order was made in his favour. He however has not been able to have access to his daughter since his wife left in August 1998. 3 On 28 August 1998 he applied to the Attorney-General's Department for financial assistance under the Overseas Custody (Child Removal) Scheme to pay his legal and other expenses for an application to be made for the custody of his daughter in the Family Court in Japan. Some five months later, on 15 January 1999, the department received an opinion indicating that the applicant's prospects of obtaining custody in Japan were not good and, on 29 January 1999, more than five months after the initial application was made, funding was refused to the applicant. 4 The applicant sought a review of that decision and, on 16 July 2001, the Department upheld its own decision. The Attorney-General appeared in these proceedings by counsel, but leave was given to counsel to withdraw. Before withdrawing from these proceedings the Attorney-General filed an affidavit of David Roger Williams, which was sworn on 11 November 2003 and in which is set out some of the details of this matter. 5 On the final hearing of the application today I did not have the assistance of submissions on behalf of the Attorney-General. I did however have the assistance of submissions made by Mr Stretton, who has appeared pro bono for the applicant. Mr Stretton's submissions have been of considerable assistance to me in understanding the reasons for this application and the history of the matter giving rise to the application. 6 No explanation has been given for the time taken by the department in reviewing its decision between January 1999 and July 2001. Without any explanation and without the assistance of submissions by counsel for the Attorney-General, I cannot be too critical of the delay in making that decision. However, at the very least, it seems to me to be surprising that the Department would take more than two years to review its own decision. 7 In any event, on 16 July 2001 Mr Abraham brought proceedings in this court to review the Department's decision to refuse funding under the scheme. On 2 November 2001 Mansfield J held that the court did not have jurisdiction to entertain the application and dismissed the application. The applicant then appealed to the Full Federal Court. That appeal was adjourned because very shortly before the hearing of the appeal the Department indicated that it would grant funding to the applicant. A sum of $13,000 was agreed to be paid. That, however, was of no real assistance to the applicant because he is otherwise without means. $13,000 would not have been of any assistance in seeking to prosecute proceedings in Japan, either for the custody of or access to his child. 8 The applicant then made a further application, claiming that there had been a constructive failure to exercise jurisdiction. That application came before von Doussa J on 18 December 2002 and, on the applicant's motion, the application was dismissed. However, later the applicant sought to appeal from von Doussa J's decision dismissing the application. After making the application to this court to extend the time within which to appeal, a further decision was made by the Department to pay to the applicant the sum of $41,000, so that he might bring his proceedings in Japan. 9 The present position is that the Department has agreed to pay the applicant $41,000, which sum should be (or hopefully will be) sufficient to allow the applicant to bring his proceedings in Japan and to travel there for the purpose of prosecuting those proceedings. There is no doubt that the applicant has become frustrated by the time it has taken him to get to a position whereby the department will pay $41,000 under the Scheme. 10 I have considerable sympathy for the applicant who has apparently been the victim of inordinate delay on the part of others, which must have heightened his level of frustration. It is important, of course, in any proceedings relating to children, that the party who does not have custody or access bring the proceedings as soon as possible, otherwise the party who has custody or access may be able to successfully argue that the period during which the moving party has not had access to the child should disentitle that party to custody or access. It seems to me it was therefore reasonably obvious that Mr Abraham's application in August 1998 needed timely and expeditious consideration. 11 In any event that has not occurred and, as I have said, Mr Abraham has been left with a feeling of frustration and a feeling of desertion by the authorities. That, I think, has moved him to make this application. He no longer trusts the authorities to pay the moneys to his agents in Japan or to him for his living expenses in Japan. In those circumstances he wishes this court to order the Attorney-General to pay the moneys directly to him so that he has control over the funding. 12 Unfortunately, his application cannot succeed. It is, in my view, at the very least, premature. This court cannot on the evidence presently before it find that there has been a constructive failure on the part of the Department to exercise its jurisdiction and to pay $41,000 to Mr Abraham in relation to his application. In those circumstances I am obliged to dismiss the application and the order will be that the application is dismissed. 13 I cannot part from these proceedings without expressing my sympathy to the applicant for the delays which have been occasioned him in relation to his efforts to gain access to his child. I can understand the delays have heightened his levels of frustration. It seems to me that it would be in the best interests of all, including the Department, but more particularly for Mr Abraham, if the Department responded as quickly as possible to Mr Abraham's requests in relation to the disbursement of these moneys so that Mr Abraham can make his application in Japan as soon as possible. 14 If there are any further delays on the part of the Department, those delays are likely to continue to heighten Mr Abraham's levels of frustration and will necessarily give rise to further applications to this court, at expense both to Mr Abraham and to the Department. In my opinion therefore it is in the best interests of all concerned that the Department deals with Mr Abraham's applications expeditiously. 15 Again, I would record the Court's gratitude to Mr Stretton, who has appeared pro bono on behalf of Mr Abraham on three occasions in relation to this application. Mr Stretton has been of considerable assistance to the Court in, as I have said, pointing out the history of the matter and in directing Mr Abraham's energies in relation to the applications. 16 The order of the court will be that the application is dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.