GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
Matter No P29/1998
AMS APPELLANT
AND
AIF RESPONDENT
Matter No P31/1998
AIF APPELLANT
AND
AMS RESPONDENT
AMS v AIF and AIF v AMS [1999] HCA 26 17 June 1999 P29/1998 and P31/1998
ORDER
In both matters:
Appeal allowed.
Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 19 June 1997 and in lieu order:
(a) Appeal allowed.
(b)Set aside the orders of the Family Court of Western Australia made on 24 April 1996 and remit the matter to that Court for rehearing.
(c)Each party pay his or her own costs in the Family Court of Western Australia and in the Full Court of the Supreme Court of Western Australia.
Each party pay his or her own costs of the proceedings in this Court.
2.
On appeal from the Supreme Court of Western Australia
Representation:
Matter No P29/1998
D F Jackson QC with R S Hooper for the appellant (instructed by Lewis, Blyth & Hooper)
D Bryant QC with M M Lodge for the respondent (instructed by Ilbery Barblett)
Matter No P31/1998
D Bryant QC with M M Lodge for the appellant (instructed by Ilbery Barblett)
D F Jackson QC with R S Hooper for the respondent (instructed by Lewis, Blyth & Hooper)
Interveners in both matters:
H C Burmester QC, Acting Solicitor-General for the Commonwealth with D A Mullins SC intervening on behalf of the Attorney-General for the Commonwealth (instructed by Australian Government Solicitor)
D Graham QC, Solicitor-General for the State of Victoria with C M Caleo intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)
R J Meadows QC, Solicitor-General for the State of Western Australia with J H Smith intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
AMS v AIF AIF v AMS
Constitutional law – Inconsistency between Commonwealth and State laws – Family law – Guardianship and custody of child – Whether Family Law Act 1975 (Cth), s 63F(1) inconsistent with Family Court Act 1975 (WA), s 35.
Constitutional law – Powers of the Commonwealth Parliament – Territories – Whether sufficient nexus with Commonwealth law concerning guardianship and custody of children born in Territory to parents then residing there.
Constitutional law – Interpretation – Whether implications arise from international law.
Constitutional law – Freedom of interstate intercourse – Movement of persons – Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 inconsistent with exercise of judicial discretion under Family Court Act 1975 (WA), s 36A – Guardianship and custody orders – Whether necessary to determine whether requirement of orders that parent not change child's principal place of residence greater than reasonably required to achieve legislative object.
Federal jurisdiction – Family law…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
AMS v AIF [1999] HCA 26
Case
[1999] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals in two related matters, AMS v AIF and AIF v AMS. The dispute concerned guardianship and custody orders for a child born in the Northern Territory to parents then residing there. The mother sought to relocate with the child to Darwin, while the father sought to restrain her from removing the child from Western Australia. The proceedings involved the application of both Commonwealth and Western Australian legislation concerning family law and the exercise of federal jurisdiction.
The primary legal issues before the High Court were whether the *Family Law Act 1975* (Cth) was inconsistent with the *Family Court Act 1975* (WA) regarding child guardianship and custody, and whether the Family Court of Western Australia was exercising federal jurisdiction when making orders under the Commonwealth Act. The Court also considered whether a provision of the *Northern Territory (Self-Government) Act 1978* (Cth) was inconsistent with the exercise of judicial discretion under the Western Australian Act, and whether any such inconsistency impeded freedom of interstate intercourse. Furthermore, the Court examined whether an order restraining a custodial parent from changing a child's principal place of residence was an error of law, particularly if it required "compelling reasons" for relocation.
The High Court reasoned that the *Family Law Act 1975* (Cth) was the paramount legislation governing federal jurisdiction in family law matters, and that the Family Court of Western Australia, when exercising powers conferred by the Commonwealth Act, was indeed exercising federal jurisdiction. The Court found that the Western Australian Supreme Court's Full Court had erred in its approach to the mother's cross-appeal concerning the residence order. The High Court determined that the trial judge's order restraining the mother from changing the child's principal place of residence from the Perth metropolitan area was an error of law, as it imposed a restriction that was not necessarily required to achieve the legislative object of the child's welfare. The Court also addressed the constitutional questions regarding inconsistency between Commonwealth and State laws and the nexus between Commonwealth law and children born in Territories.
In both matters, the High Court allowed the appeals, set aside the orders of the Full Court of the Supreme Court of Western Australia, and set aside the orders of the Family Court of Western Australia. The matters were remitted to the Family Court of Western Australia for rehearing. Each party was ordered to pay their own costs in the Family Court, the Full Court of the Supreme Court, and the High Court.
Orders
Orders of the court
In both matters:
1.
Appeal allowed.
2.
Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 19 June 1997 and in lieu order:
(a) Appeal allowed.
(b) Set aside the orders of the Family Court of Western Australia made on 24 April 1996 and remit the matter to that Court for rehearing.
(c) Each party pay his or her own costs in the Family Court of Western Australia and in the Full Court of the Supreme Court of Western Australia.
3.
Each party pay his or her own costs of the proceedings in this Court.
2.
Background
Background to the litigation
For present purposes, what is significant is that the regime established by s 63F(1) was, and the regime now established by s 61C of the Commonwealth Act is, susceptible of change regardless of whether the persons affected move from a Territory to a State. That being so, it cannot be concluded that intercourse is impeded if that regime is changed in circumstances that happen to involve movement from a Territory to a State.Background to the mother's appeal The mother's appeal is brought from that part of the order of the Full Court dismissing her cross-appeal from the orders made by Holden J. Essentially, her appeal is concerned with order 2 of those orders, which is in these terms: "The respondent be restrained and an injunction is hereby granted restraining her from changing the child's principal place of residence from the Perth metropolitan area as defined in the Town Planning and Development Act 1928."In order to understand how that order ("the residence order") came to be made, it is necessary to give some account of the nature of the proceedings in the Family Court of Western Australia and the course that they took. The proceedings were commenced by the father on learning of the mother's intention to return with J to the Northern Territory and to take up residence in Darwin. He filed an application seeking joint guardianship and also seeking custody of the child with reasonable access to the mother. Additionally, he sought an injunction restraining the mother from removing J from Western Australia. In context, it seems that the injunction then sought was an interim injunction to preserve the status quo pending the hearing and determination of his application. However, at the hearing, the father sought a further order that both he and the mother be restrained from removing J from Western Australia without the written consent of both. Shortly after the proceedings were commenced, the mother gave an undertaking that she would not remove J from the Perth metropolitan area without the father's consent. Later, she filed a response seeking sole guardianship and custody of J with access to the father at times which varied according to whether or not the parties lived within reasonable proximity to each other. She also sought an order that she "be free to leave the Perth Metropolitan area and the State of Western Australia"[53].[53]On 27 March 1996, the mother amended the order sought to an order that she "be free to leave the State of Western Australia with [J]." In the Minute of Proposed Orders dated 16 April 1996, the mother sought an order in terms different again, namely, that she "be free to reside in Darwin." The issue presented by the father's application and the mother's response can be simply stated: what orders should be made with respect to guardianship, custody and access in the light of the mother's proposed return to Darwin? However, Holden J saw the matter somewhat differently. In his Honour's view, it was necessary to first decide whether the mother or father should have custody and, then, "whether or not [the mother] ought to be permitted to remove the child from the jurisdiction". According to his Honour, that was because it was the mother's case that if "not permitted to change her place of residence to the Northern Territory then she [would] remain in Perth as the custodian of the child".