Abraham v Commonwealth of Australia

The background to the proceedings 9 It must be said at the outset that the appellant's situation is both sad and disturbing. His daughter, who was born on 6 March 1995, was removed from Australia on 2 August 1998 by her mother, Saori Horikoshi. The appellant's daughter was then just over three years of age. The mother abducted the child in clear breach of an order of the Family Court which was made on 31 July 1998 by a Registrar of that Court. The order was made ex parte at the behest of the appellant, who had come to suspect that his wife was about to return to Japan, her country of origin, taking their daughter with her. The order provided in terms that the wife was restrained from removing or attempting to remove the child from the Commonwealth of Australia. 10 On the same day that the order was made, 31 July 1998, a letter was faxed by the Court Services Supervisor at the Dandenong Registry of the Family Court to the Family Law Squad of the Australian Federal Police. That letter was headed: "RE: MATTER OF ABRAHAMS [sic]/HORIKOSHI/DG2970 of 1998" 11 The letter stated that it attached a sealed order and the restraining order made by the Judicial Registrar that day. A copy of the letter was sent to the Marshall/Family Court of Australia, Canberra. 12 The transcript of the proceedings before the Judicial Registrar reveals that the name of the child given to him in court was "Lemlem Sara Jemas". That name was spelt out with care by the appellant's legal representative who appeared on his behalf in support of his application for injunctive relief against his wife. Unfortunately, it seems that the name of the appellant's daughter, as it appeared in her passport, was different from that which was given to the Judicial Registrar. In the passport, it seems, the name is "Sarah Lemlem Abraham-Horiko". The material before us, but not before North J, indicates that, had the Family Court recorded the name of the appellant's daughter as it is said to appear in her passport, this would have resulted in immigration officers at passport control at the airport being able to act to prevent her from being removed from Australia in breach of the Family Court order. Although the order made was against the mother and restrained her from removing the child from Australia, the material before us does not indicate that any information concerning the mother's name, or the order made against her, was provided to the relevant immigration officers at the airport.

The appeal to this Court 13 The fact that the appellant is unrepresented has caused us to consider with some care whether or not the application which he brought before the Court, and which was struck out by North J, was capable of disclosing a cause of action. The appellant's case seems to be based upon one or more of the following assumptions: · The Federal Police contravened an order of the Family Court by not preventing the appellant's daughter from being removed from Australia. · The Federal Police acted in breach of a statutory duty, said to arise under ss 8 and 9 of the Australian Federal Police Act 1979 (Cth), or were negligent in the discharge of their functions, or the exercise of their powers or duties under that Act. · The Federal Police were negligent in having failed to prevent the wife from abducting her daughter. 14 The relief sought by the appellant appears to be something akin to a mandatory injunction compelling the Federal Police, or perhaps the Commonwealth of Australia, to fund his trip to Japan and the legal proceedings which he will have to institute in that country in order to have any prospect of regaining custody of his daughter. 15 When the matter was before North J, his Honour had before him limited material and submissions that were confusing as to the basis of the claim. In those circumstances, and having regard to the form of the application before him, we are unable to discern any error on the part of his Honour in the manner in which he conducted the proceeding, or in the order his Honour made striking out the appellant's application. 16 Before us there was additional material, and the appellant put further and more detailed submissions, as to the basis upon which he was contending that he has a justiciable cause of action in this Court against the Commonwealth of Australia on the basis of breach of statutory duty or negligence by officers of the Federal Police. 17 It is clear to us, on the material before the Court, that there is no factual basis for a claim against either the Federal Police or the Commonwealth arising out of the bare assertion that the Federal Police contravened an order of the Family Court by not preventing the appellant's daughter from being removed from Australia. In these circumstances, it is unnecessary for us to consider whether a contravention of an order of the Family Court, without more, could give rise to any cause of action in this Court. 18 On the material before us, the appellant's claim for breach of statutory duty is in our view untenable. No particular duty under any of the provisions of the Australian Federal Police Act, or any other Act, was identified as having been breached. It is unnecessary therefore to consider whether any such breach might entitle the appellant, as a private individual, to claim damage or loss. 19 It is also unnecessary to consider whether the claim for damages in negligence at common law, which does not rely upon a federal enactment, is tenable, as the Court does not have jurisdiction to entertain such a claim. The fact that the Commonwealth of Australia is now the respondent to this proceeding does not have the consequence that this Court has jurisdiction to entertain such a claim - see s 39B of the Judiciary Act 1903 (Cth). 20 The claim that officers of the Federal Police were negligent in the discharge of their functions or the exercise of their powers or duties raises more difficult questions. On the very limited material and submissions before us, it may be arguable that the officers of the Federal Police who were responsible for communicating the orders made by the Family Court to the relevant immigration authorities failed to discharge their function adequately. One could not say that the contention that the appellant might have a cause of action arising out of such a finding was so wholly untenable as to warrant the summary dismissal of the proceeding if the matter were properly pleaded and presented to the Court. 21 Under s 39B(1A)(c) of the Judiciary Act, the Court has jurisdiction in any matter arising under any law made by the Parliament. In so far as a cause of action is pleaded on the basis of negligent discharge of functions, or the negligent exercise of powers or duties, under ss 8 and 9 of the Australian Federal Police Act and that cause of action is brought against the Commonwealth on the basis of its liability in respect of a tort committed by a member of the Federal Police under s 64B of that Act, we need go no further than to say that it is at least arguable that such a claim would be within the jurisdiction of this Court - L.N.C. Industries Limited v B.M.W. (Australia) Limited (1983) 151 CLR 575 at 581-2. 22 No error has been demonstrated in respect of the decision by North J the subject of this appeal and the appeal must therefore be dismissed. However, there are now new circumstances, including the substitution of the Commonwealth as a party, and the formulation of a cause of action arguably within the jurisdiction of this Court. These new circumstances have led us to conclude that the order made by the trial judge does not prevent the appellant from bringing a fresh application against the Commonwealth in respect of an alleged cause of action for the negligent discharge by the Federal Police of their functions, or the negligent exercise of their powers or duties, under the Australian Federal Police Act. 23 This appeal, however, must be dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Merkel, Goldberg and Weinberg JJ.

Associate: Dated: Counsel for the Appellant: The appellant appeared in person.

Solicitor for the Respondent: Australian Government Solicitor