A (by Her Next Friend) & GS and Ors

[2005] FamCA 785

[2005] FamCA 785

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY  Appeal No. EA 56 of 2004
  File No. PAF 1647 of 2004
BETWEEN:

“A”
BY HER NEXT FRIEND

Appellant Child

-and-

GS

First Respondent Father

-and-

MQ

Second Respondent Mother

-and-

ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA

Intervener

-and-

THE COMMONWEALTH CENTRAL AUTHORITY

Intervener

REASONS FOR JUDGMENT OF THE FULL COURT

IN RELATION TO COSTS

CORAM:  Finn, May and Carmody J

DATE OF WRITTEN SUBMISSIONS:   14, 20 and 22 December 2004 and 17 January 2005

DATE OF JUDGMENT:  22 August 2005

SUBMISSIONS FILED BY:

Mr Levet of Counsel (instructed by Brierley Hodge & Co Solicitors) on behalf of the appellant child.

Mr Watts, solicitor (Watts McCray) on behalf of the first respondent husband.

No submissions were filed by or on behalf of the second respondent mother.

Mr Burmester of Queen’s Counsel (instructed by Australian Government Solicitor) on behalf of the interveners.  

APPEAL SUMMARY

MATTER:  “A” (by her next friend) & GS & Others
APPEAL NUMBER:  EA 56 of 2004
  (PAF 1647 of 2004)
CORAM:  Finn, May and Carmody JJ
DATE OF WRITTEN SUBMISSIONS: 14, 20 and 22 December 2004 and 17 January    2005   
DATE OF JUDGMENT:  22 August 2005

CATCHWORDS: FAMILY LAW – APPEAL – COSTS OF THE APPEAL – Operation of s 117AA of the Family Law Act 1975 in relation to proceedings under the Hague Convention on the Civil Aspects of International Child Abduction – Costs certificates pursuant to the Federal Proceedings (Costs) Act 1981.

Caselaw cited:

Panayotides v Panayotides (1997) FLC 92-933

De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207

Applications by the appellant for her costs of the appeal to be paid by the Attorney-General for the Commonwealth, the Commonwealth Central Authority or the respondent father dismissed.

Certificates granted pursuant to the Federal Proceedings (Costs) Act 1981.

Introduction

1. On 22 October 2004 this Full Court allowed an appeal by a then twelve year old child, “A” (by her next friend) against orders made by Coleman J on 12 June 2005. The effect of his Honour’s orders was to confirm an order made by Halligan JR on 6 May 2004 requiring the return to the United States of America of a then three year old child, “S”, who is the half sister of the child A. The order for the return of the child S was made pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”), which were made pursuant to s 111B of the Family Law Act 1975 (“the Act”) for the purpose of making “such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit” under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”)

2. The first respondent to the appeal was the father of the child S.  The order for the return of S to the United States had been made on the application of the father.

3. The essential question raised in the appeal was whether the father, being a person other than a Central Authority referred to in the Regulations, had standing to apply under the Regulations for an order for the return of a child (who has been removed from a “convention country” as defined by Reg 10 or retained in Australia) to the country in which the child habitually resided immediately before his or her removal or retention.

4. Although she was named as the second respondent to the appeal, the mother of the child S (who is also the mother of the appellant child A) supported the appeal.

5. The Attorney-General for the Commonwealth intervened in the appeal (pursuant to s 91 of the Act) to support the father’s contention that he had standing to seek an order under the Regulations for the return of the child.

6. The Commonwealth Central Authority, established under the Regulations, also intervened in the appeal in order to be substituted for the father and to have orders made in its favour for the return of the child in the event that the Full Court held that the father did not have standing to commence proceedings under the Regulations.

7. In our reasons for judgment delivered on 22 October 2004, we held that the father did not have standing to apply under the Regulations for an order for the return of the child to the United States. In so holding, we concluded that an earlier decision of a Full Court majority in Panayotides v Panayotides (1997) FLC 92-933 should not be followed.

8. Accordingly, our orders of 22 October 2004 provided that the appeal should be allowed.  Our orders also provided for further written submissions in relation to the application by the Commonwealth Central Authority to be substituted for the father.

9. We were subsequently informed that the Commonwealth Central Authority did not propose to pursue that application.  Accordingly, on 22 November 2004 we made further orders setting aside the relevant orders of Coleman J and of Halligan JR, and also providing for written submissions from the parties in relation to the costs of the appeal.

The parties’ applications and submissions as to costs

1. On 2 December 2004 the respondent father, through his solicitors, filed an application and supporting affidavit seeking the grant of a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981.

2. Subsequently on 14 December 2004 written submissions were filed by the solicitor for the respondent father in which it was submitted that no order for costs should be made against the father as the unsuccessful respondent to the appeal, and again seeking a certificate under s 6 of the Federal Proceedings (Costs) Act 1981.

3. On 20 December 2004, Counsel for the appellant child filed submissions “primarily [submitting] that all costs of the successful appellant, both of the appeal and in the Court below, be borne by the Attorney-General for the Commonwealth.”  It was further submitted in “the first alternative…that any of such costs not ordered to be borne by the Attorney-General for the Commonwealth should be ordered to be paid by the Central Authority.”  In “the second alternative” it was submitted that such costs be paid by the respondent father.

4. Counsel for the appellant also submitted that if the appellant was not successful in seeking an order for costs against any of the other parties, then the appellant sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 “for the maximum amount available under that Act”.

5. On 22 December 2004, written submissions were filed by Senior Counsel for the Attorney-General and for the Commonwealth Central Authority. In those submissions no order was sought by the Attorney or the Authority against any other party. It was also submitted that no order for costs could, or alternatively should, be made under the Act against either the Attorney or the Authority.

6. On 17 January 2005, further written submissions were filed by Senior Counsel for the Attorney and the Central Authority.  Those submissions were in response to the written submissions on behalf of the appellant, in particular, it would seem, to the appellant’s application that her costs be paid by the Attorney or the Authority.

The appellant’s application for the costs of the proceedings at first instance

1. As mentioned above, the appellant seeks that this Court should make orders in her favour in respect of the costs of the first instance proceedings in the matter.

2. It is not generally the practice of the Full Court to entertain or determine applications for the costs of proceedings at first instance; such an application is more appropriately made to the trial Judge. We see no reason to depart from that practice in this case.  It will be noted that in our directions of 22 November 2004, we invited submissions only “in relation to the costs of the appeal”. 

The appellant’s application that her costs of the appeal be paid by the Attorney-General or the Central Authority

1. In support of her application that the Attorney-General or the Commonwealth Central Authority should pay her costs of the appeal, the appellant relies on s 117AA(1) of the Act which is in the following terms:

   (1)In proceedings under regulations made for the purposes of Part XIIIAA, the court can only make an order as to costs (other than orders as to security for costs):

   (a) in favour of a party who has been substantially successful in the proceedings; and

   (b) against a person or body who holds or held an office or appointment under those regulations and is a party to the proceedings in that capacity.

2. For the sake of completeness we also set out at this point the remaining subsections of s 117AA:

   (2)However, the order can only be made in respect of a part of the proceedings if, during that part, the party against whom the order is to be made asserted a meaning or operation of this Act or those regulations that the court considers:

   (a)is not reasonable given the terms of the Act or regulations; or

   (b) is not convenient to give effect to Australia’s obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.

   (3) In proceedings under regulations made for the purposes of section 111B, the court can also make an order as to costs that is:

   (a)against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access (within the meaning of the Convention referred to in that section) to a child; and

   (b) in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child.

3. In his written submissions (filed 22 December 2004), Senior Counsel for the Attorney-General and the Commonwealth Central Authority included the following observations in relation to the operation of s 117AA (with footnotes inserted and emphasis added):

   6.Section 117(1) of the Act sets out the general rule that each party to the proceedings under the Act is to bear their own costs. For this purpose, the Act includes the Regulations (see definition of “this Act” in s 4 and Director-General, NSW Department of Community Services v JLM (2001) 28 FamLR 243, 250 at [33]). This section is, however, subject to s 117(2) and s 117AA. Section 117(2) provides that where the Court “is of the opinion that there are circumstance (sic) that justify it in doing so”, it may “make such order as to costs…as [it] considers just”. By s 91(2) the Attorney as intervener is deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. This includes the right to and liability for costs (In the Marriage of B (No 2) (1997) 142 FLR (sic-semble FLC) 430, 435 Nicholson CJ and Lindenmayer J).

   7.However, the Attorney submits that s 117AA applies to restrict the power of the Court to make orders as to costs in the present appeal. Both s 117(1) and s 117(2) must be read subject to the provision of s 117AA (Director-General, NSW Department of Community Services v JLM (2001) 28 FamLR 243, 251 at [38]). The father’s application filed in the Family Court sought an order purportedly pursuant to the Regulations for the return of the child to the United States of America. The Judicial Registrar made an order for the return of the child and an application to review that order was dismissed by Coleman J (reasons for judgment of the Full Court delivered 22 October 2004, at [9], [10] and [20]). Although the Full Court has now determined that the father did not have standing to bring the application for the order for the return of the child and that the orders made on his application by both the Judicial Registrar and Coleman J could not validly be made, the application and the subsequent appeal (as to the application of s 117AA to an appeal, see Director-General, NSW Department of Community Services v JLM (2001) 28 FamLR 243) are nevertheless appropriately described as being “proceedings under regulations made for the purposes of Part XIIIA” to which s 117AA applies (the Regulations are made under s 111B which is contained in Part XIIIA of the Act: see Director-General, NSW Department of Community Services v JLM (2001) 28 FamLR 243, 251 at [35]). That is because the father was claiming a right under the Regulations against the mother (see Re McJannet; Ex parte Australian Workers’ Union of Employees (Q) (No 2) (1997) 189 CLR 654, 657 Brennan CJ, McHugh and Gummow JJ). It does not matter for this purpose that the father’s application was dismissed on appeal on the ground that he lacked standing. … The policy of s 117AA of the Act in restricting costs orders to the circumstances it sets out (which include consideration of the reasonableness of assertions made as to the meaning or operation of the Regulations) is advanced by its application to proceedings of the present kind.

   8.Under s 117AA(1), the Court can only make an order as to costs first, in favour of a party who is substantially successful in the proceedings and secondly, against “a person or body who holds or held office or appointment under [the Regulations] and is a party to the proceedings in that capacity.”  This second aspect refers only to the Commonwealth and State Central Authorities (see Director-General, NSW Department of Community Services v JLM (2001) 28 FamLR 243, 251 at [37]). Thus s 117AA(1) removes any power that the Court would otherwise have under s 117 to make a costs order against the Attorney. The Attorney submits that, in consequence, no costs order can be made against him.

   9.In the alternative, if it is not accepted that s 117AA precludes costs of the appeal being awarded against the Attorney under s 117, it is submitted that where the Attorney intervenes in proceedings in the public interest, no order for costs should ordinarily be made against him. This is consistent with the general rule in s 117(1) of the Act. The Attorney submits that there are no circumstances in this case warranting a costs order against the Attorney.

4. As we do not understand the appellant to seek costs against the Attorney-General otherwise than under the power contained in s 117AA, we will not set out the further submissions made on behalf of the Attorney in relation to s 117. However, if we have misunderstood the position of the appellant in this regard, we make it clear that we consider that there are no circumstances which would warrant the making of an order for costs under s 117(2) against the Attorney-General and in favour of the appellant.

5. In support of her application for an order under s 117AA that the Attorney-General or the Central Authority pay her costs of the appeal, it is submitted on behalf of the appellant that she is a person who has been substantially successful in the appeal (within the meaning of s 117AA(1)(a)); this is conceded on behalf of both the Attorney and the Authority.

6. It is also submitted on behalf of the appellant that the Attorney is a person who holds an office or appointment under the Regulations and is a party to proceedings in that capacity. In support of this submission reliance is placed on Reg 8 of the Regulations which provides that the Attorney-General “may appoint a person to be the Central Authority of a State or Territory for the purposes of” the Regulations.

7. In reply, the Attorney submits that he is not a person who holds an office or appointment under the Regulations, but rather he is an appointor under Reg 8. The Attorney also submits that he was not a party to the proceedings in any capacity under the Regulations, but rather in the capacity provided by s 91(1)(a) of the Act (which permits the Attorney to intervene in proceedings under the Act in which “a matter arises that affects the public interest”).

8. Further, the Attorney submits that even if he is a person who holds an office or appointment under the Regulations, this would not be sufficient to allow an award of costs under s 117AA because of the criteria contained in s 117AA(2).

9. With regard to those criteria, it is contended on behalf of the Attorney that, in arguing that the father had standing to bring proceedings in his own name for an order for the return of the child under the Regulations, the Attorney sought to uphold the previous Full Court decision of Panayotides, and therefore the Attorney cannot be said to have asserted a meaning or operation of the Regulations that was “not reasonable”. It is further contended that the Attorney cannot be said to have asserted a meaning or operation of the Regulations that is “not convenient to give effect to Australia’s obligations under the Convention” given Article 29 of the Convention which provides:

   This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.

10. We accept all the submissions made on behalf of the Attorney in relation to the operation and scope of s 117AA, and conclude that no order for costs could be made in the appellant’s favour against the Attorney-General.

11. As to the appellant’s claim that the Central Authority should be ordered to pay her costs of the appeal by virtue of the provisions of s 117AA, it must be accepted that for the purposes of s 117AA(1)(b), the Authority (unlike the Attorney) is a body holding an office or appointment under the Regulations.

12. However, the Authority contends that the pre-conditions or criteria contained in s 117AA(2) are not satisfied. We accept that this must be so given the limited purpose for which the Authority intervened in the proceedings (see paragraph 6, above); that purpose did not involve or require any assertion of a meaning or operation of the Act or the Regulations. To the extent that the appellant may seek to attribute to the Authority any such assertion made by the Attorney-General, such assertion could not be said to be “not reasonable” or “not convenient” for the reasons set out in paragraph 26 above.

13. Thus no order can be made against the Authority under s 117AA.

14. We also mention that the submissions on behalf of the appellant endeavour to contend that Reg 7 of the Regulations could not protect the Central Authority from a costs order in this case. Reg 7 provides:

    7.A person who holds office as the Commonwealth Central Authority, who is appointed to act as that Authority or who, being a State Central Authority, exercises the powers and performs the functions of that office shall not be made subject to any order to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.

15. At least as presently advised, we agree with the submission of Senior Counsel for the Commonwealth that, because s 117AA confers a broader immunity on the Authority than Reg 7 as interpreted by the High Court in De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207 at 222 (in that s 117AA is not limited to any immunity where the Authority has not asserted powers or functions outside the scope of the Regulations but extends to an immunity where the Authority has asserted a reasonable meaning or operation of the Regulations), there is no need to consider the operation of Reg 7 in this case.

16. For the above reasons we dismiss the application by the appellant that her costs of the appeal be paid either by the Attorney-General or the Commonwealth Central Authority.

The appellant’s application that her costs of the appeal be paid by the respondent father

1. We understand it to be the submission of the appellant that while s 117AA(1) “would appear to preclude recovery” against the father (presumably because he does not hold an office or appointment under the Regulations, neither has he wrongfully removed or retained a child or wrongfully prevented the exercise of rights of access), “the incompetent proceedings” brought by him do not qualify as “proceedings under the Regulations” for the purposes of s 117AA. It is therefore submitted that the father’s proceedings are “not protected” under s 117AA. In these circumstances, the appellant purports to seek a costs order against the father under the provisions of s 117(2), with reliance being placed on the father’s conduct in bringing incompetent proceedings (s 117(2A)(c)) and on his lack of success in the appeal (s 117(2A)(e)).

1. Assuming that the appellant could seek a costs order against the father under s 117(2), we do not consider that the circumstances warrant the making of such an order, having regard particularly to the decision of the majority in Panayotides. But we emphasise that in reaching this conclusion, we are not to be taken as deciding either that s 117AA had no application to the father’s application for the return of the child, or that an order under s 117(2) would have been available to the appellant.

The applications of the appellant and of the respondent for costs certificates

1. Given that the success of the appeal depended on the over-ruling by this Full Court of the majority decision in Panayotides, and given also that we have concluded that no costs order should be made in this case, we consider it is entirely appropriate that both the appellant and the respondent be granted the certificates which they have sought under s 9 and s 6, respectively, of the Federal Proceedings (Costs) Act. 

Orders

1. (a)       That the application by the appellant child that the Attorney-General for the Commonwealth pay her costs of and incidental to the appeal be dismissed.

(b)That the application by the appellant child that the Commonwealth Central Authority pay her costs of and incidental to the appeal be dismissed.

(c)That the application by the appellant child that the respondent father pay her costs of and incidental to the appeal be dismissed.

1. (a) That the Court grants to the appellant child a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant child in respect of the costs incurred by the appellant child in relation to the appeal.

(b)That the Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent father in respect of the costs incurred by the respondent father in relation to the appeal.

I certify that the preceding 36 paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate