Bennett v Bennett
[2001] FamCA 462
•27 June 2001
[2001] FamCA 462
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No. EA74 of 2000
AT SYDNEY File No. SY4146 of 1994
BETWEEN:
BENNETT
Appellant Wife
- and -
BENNETT
Respondent Husband
REASONS FOR JUDGMENT OF THE FULL COURT
BEFORE: Ellis, Finn & Guest JJ
HEARD: 9 February 2001
JUDGMENT: 27 June 2001
APPEARANCES:
Mr Sansom of Counsel (instructed by Legal Aid Commission of NSW, Level 4, 323 Castlereagh Street, SYDNEY, NSW, 2000) appeared on behalf of the Appellant Wife.
The Respondent Husband appeared on his own behalf.
APPEAL SUMMARY
MATTER: BENNETT and BENNETT
NUMBER: EA74 of 2000 (SY4146 of 1994)
CORAM: Ellis, Finn, and Guest JJ.
DATE OF HEARING: 9 February 2001
DATE OF JUDGMENT: 27 June 2001CATCHWORDS: FAMILY LAW – INJUNCTIONS - Orders restraining institution of proceedings – s.68B.
CASES: Monticelli v McTiernan (1995) FLC 92-617 distinguished; Henry (1996) FLC 92-685 cited; ZP v PS (1994) FLC 92-480 cited; Chester v Bateson (1920) 1 KB 829, and R v W Paul Ltd v The Wheat Commission (1937) AC 139 cited; CSR Ltd v Cigna Insurance Australia Ltd (1996-1997) 189 CLR 345 cited; Coco v the Queen (1993-1994) 179 CLR 427 cited; In re Boaler [1915] 1 KB 21 cited; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 cited; Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 cited;
This was an appeal by the wife against orders made by Cohen J. on 24 May, 2000, whereby his Honour dismissed an application by the wife for an order pursuant to s.68B of the Family Law Act 1975 (FLA) that the husband be restrained without leave of the Court, further proceedings in relation to the child of the parties’ marriage.
The parties had separated in 1994 after approximately ten years of marriage. The husband initially conceded that the child should reside with the wife and orders were made for him to have three hours’ contact every alternate weekend. These orders provided for a re-listing of the matter in relation to contact issues after the release of a psychiatrist’s report on the child. In due course, the matter came before Lawrie J. who made orders providing that the child reside with the wife, and that the husband have contact on alternate weekends and for half the school holidays.
In January 2000, the husband further applied for the child to reside with him, and for leave to appeal out of time the orders made by Lawrie J. The wife sought that both those applications be dismissed and that the husband be restrained under s.68B from bringing further applications in relation to the child (without leave).
Cohen J. heard the matter on 23-24 May 2000. Although his Honour expressed doubts about whether an order could be made under s.68B restraining the institution of further proceedings without leave, he was prepared to assume that it could. However, his Honour dismissed (effectively summarily) on the basis that, putting the wife’s case at its highest, the risk of harm to the child was not so extreme as to outweigh the right of the husband to bring an application for residency, whether or not that application had a reasonable chance of success.
The wife appealed on the grounds that:
· his Honour misapplied section 68B by unnecessarily limiting the circumstances in which it could be used to protect a child from the impact of continuing litigation; and
· his Honour did not give the wife a proper opportunity to be heard before refusing to exercise his discretion under section 68B.
HELD in dismissing the appeal:
1. Although not expressly raised on the grounds of appeal, the appeal raised for determination the question of whether there is in fact power under s.68B to grant an injunction restraining a person from instituting proceedings in relation to a child;
2. The right of a citizen to unimpeded access to the courts is a fundamental common law right (In re Boaler applied, Commonwealth Trading Bank v Inglis applied, Re Attorney-General (Cth); Ex parte Skyring referred to);
3. If such a fundamental common law right (or privilege) is to be modified by statute, then the statute should make that intention unambiguously clear (Coco v The Queen applied);
4. S.68B(1) and/or (2) of the FLA does not make it “unambiguously clear” that Parliament intended either of those provisions to be used to restrain the institution of proceedings in relation to a child otherwise than with the leave of the court;
5. The arguments against the proposition that s.68B(1) or (2) authorise the granting of an injunction restraining the institution of proceedings without leave in relation to a child become more compelling when regard is had to the fact that in section 118 of the FLA, Parliament has clearly defined the circumstances in and terms on which the court may order a person who has instituted proceedings shall not, without leave, institute further proceedings.
6. As to the argument that the principle of the best interests of the child might permit the grant of an order under s.68B restraining further proceedings (without leave), it has to be noted that the power in s.68B is not currently subject to the express legislative requirement that the court must regard the best interests of the child as the paramount consideration; and even if s.68B were subject to the “best interests" principle, it is doubtful that this would displace the established common law principles contained in the authorities referred to in (2) and (3) above.
REPORTABLE
Introduction
1. This is an appeal by the wife against an order made by Cohen J. on 24 May 2000 whereby his Honour dismissed an application by the wife for an order pursuant to s.68B of the Family Law Act 1975 (“the Act”) that the husband not institute, without leave of the Court, further proceedings in relation to the child of the parties’ marriage, [C] (who was born on 11 January 1989).
2. Although the wife’s grounds of appeal are limited to the complaints:
(a)that his Honour “misapplied section 68B by unnecessarily limiting the circumstances in which it could be used to protect a child from the impact of continuing litigation”, and
(b)that his Honour “did not give the wife a proper opportunity to be heard before refusing to exercise his discretion under section 68B”,
this appeal raises for determination by this Court the question of whether there is in fact power under s.68B to grant an injunction restraining a person from instituting proceedings in relation to a child.
3. Section 68B is (and was as at the date of the making of the order which is the subject of this appeal) in the following terms:
“68B(1) If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii) a person who has a residence order or a contact order in relation to the child; or
(iii) a person who has a specific issues order in relation to the child under which the person is responsible for the child's long-term or day-to-day care, welfare and development; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of a person referred to in paragraph (b); or
(ii) a specified area that contains a place of a kind referred to in subparagraph (i).
(2) A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3) An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”
4. Thus, it will be seen, that s.68B does not expressly provide for the grant of an order or injunction which would restrain a person from instituting further proceedings in relation to a child. However, s.118 of the Act does expressly provide for the making of an order restraining a person from instituting further proceedings under the Act, and it does so in the following rather tightly defined terms:
“118(1) The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings;
(b) make such order as to costs as the court considers just; and
(c) if the court considers appropriate, on the application of a party to the proceedings - order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order,
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2) A court may discharge or vary an order made by that court under paragraph (1)(c).”
Relevant factual background
5. Before considering the issues which arise on this appeal, we will refer briefly to the factual and procedural background to it.
6. The husband and the wife separated in February 1994 after about ten years of marriage, with the child, [C], being the only child of their union.
7. Proceedings in relation to the custody and access arrangements for [C] were heard by O’Ryan J. on 13 – 16 November 1995. Early in those proceedings the husband conceded custody to the wife, and thus his Honour had only to determine the extent of access between the husband and the child.
8. In the result his Honour determined that there should be three hours’ access each alternate weekend. However, his orders also provided for a child psychiatrist to prepare a report in relation to access issues, and for the parties to be at liberty to re-list the matter following the release of the report.
9. Further proceedings in relation to the custody/residence and access/contact arrangements for the child came before Lawrie J. on 17 –21 November 1997. On 25 November 1997 her Honour made orders which in effect provided for the child to reside with the wife except on alternate weekends and half school holidays when he was to “reside” with the husband.
10. On 4 January 2000, the husband filed a further application seeking orders that the child reside with him. Then on 9 March 2000, he filed an application for leave to appeal out of time the orders made by Lawrie J. on 25 November 1997.
11. On 23 March 2000, the wife filed a response seeking orders that the applications of the husband filed 4 January 2000 and 9 March 2000 be dismissed. In addition her response sought the following order (AB 94):
“Order pursuant to section 118(1)(c) of the Family Law Act 1975 that the husband shall not, without the leave of a Judge or a Judicial Registrar of the Family Court of Australia, institute further proceedings in relation to the child [C] born 11 January 1989.”
12. The various applications of the husband and wife, referred to in the last two paragraphs, came before Cohen J. on 23 and 24 May 2000. There was also before his Honour an application by the husband (filed 21 February 2000) to review a decision of a Registrar (made on 1 February 2000) to dismiss an application by the husband for interim residence orders in relation to [C].
13. At the commencement of the hearing on 23 May 2000, the solicitor for the wife orally amended the application for an order restraining the husband from initiating further proceedings, to seek such an order under s.68B of the Act (rather than under s.118). (See Transcript 23 May 2000, p.12).
14. In the event and having heard some oral evidence of a social worker/child counsellor (who was apparently interposed for the sake of convenience), and also some submissions from the solicitor for the wife and from the husband, his Honour dismissed, with a series of ex-tempore reasons for judgment, all the various applications which were before him, including the wife’s application for an order under s.68B restraining the husband from bringing further proceedings in relation to the child.
Cohen J.’s reasons for refusing the restraining order
15. Given the view which we ultimately take of this matter, it is only necessary for us to refer briefly to Cohen J.’s reasons for refusing the wife’s application for the restraining order under s.68B.
16. As we understand his Honour’s reasons, he was prepared for the purpose of deciding whether or not to grant the restraining order under s.68B, to assume that the wife could establish the facts upon which she relied to support an application for the restraining order - those facts being that
“…the prosecution by the father of claims for residency are (sic) likely to put [C] at risk of harm because they could well cause him to break down or regress into his previously anti-social pattern of behaviour”. (See paragraph 23, and also earlier at paragraph 19 of his Honour’s reasons.)
17. Having expressed the view that the facts of this case “would not justify the characterisation of the husband’s activity leading up to his application for residency as being either frivolous or vexatious”, and thus would not justify a restraining order under s.118 (paragraphs 24 – 26), and having then summarised the arguments put on behalf of the wife in support of her application for relief under s.68B, his Honour expressed his own doubts about the application of that section in the following terms:
“ 28. No argument was put to me on the meaning of personal protection in s.68B. If I had been confronted with argument to the contrary, I might have concluded that personal protection means physical protection. But that point has not been argued and I am content to deal with the matter on the basis that s.68B could apply to the case here, the case being that the protection of the psychological condition of the child is what is sought. I shall assume that personal protection for the purpose of the arguments in this case, although I’m not convinced that it is the fact, refers to the protection of the psychological condition of the child.
29. My initial reaction to this application was scepticism because of the existence of s.118 which provides a scheme for preventing people from improperly using process. Ms Wearne for the wife argued strongly that, in a case where s.118 cannot apply, s.68B is available. She says, inter alia, that here it would not apply because the case is such that an order under s.118 would not be made, yet there is still a need to protect [C]’s psychological condition and s.68B provides the method to meet that need. She further says that it should not be contemplated that, where the circumstance could arise, the Court could not protect the child because it did not have sufficient powers to do so.”
18. But notwithstanding his doubts regarding the application of s.68B, his Honour was prepared to assume that it could be available to the wife. However, he was not ultimately prepared to make an order under the section for the following reasons:
“39. Here, although I am assuming that [C] will be at risk of harm and could well suffer a breakdown, I am not of the view that the need to protect [C] is so extreme and he is at such risk of harm, putting the wife’s case at its highest, that the husband ought to be prevented from bringing an application for residency, whether or not that residency has reasonable chance of success. Courts should be vigilant to protect the right of members of the community who feel aggrieved by a set of circumstances to be able to approach them for a remedy rather than feel frustrated or compelled to seek some other redress which might, of its nature, be less acceptable to the community. It must be remembered that this Court cannot create an ideal world. It should not attempt to do so if the attempt promotes the ideal in one sense yet undermines it in another.
40. That is the situation here. I am not prepared to make the order the wife seeks for those reasons...”
The wife’s grounds of appeal
19. In summary the wife’s grounds of appeal are that his Honour erred first in “unnecessarily limiting the circumstances” in which s.68B could be used to protect a child from the impact of continuing litigation, and secondly, in not giving the wife a proper opportunity to be heard before refusing to exercise his discretion under s.68B.
20. His Honour’s approach (to the extent we understand it) of assuming that the wife had established her case for a restraining order under s.68B, yet ultimately refusing her relief (effectively on a summary basis) because she had not established that the need to protect the child was “so extreme” or the child was “at such risk of harm”, that the husband ought be prevented from bringing an application for residency, seems to us somewhat unusual.
21. However, we do not need to comment further on his approach because for reasons which we will shortly give, we do not consider that the restraining order sought by the wife under s.68B could have been granted by his Honour under that section. Thus no useful purpose will be served in our discussing further the manner in which his Honour disposed of the wife’s application under s.68B.
Is an order restraining the institution of further proceedings available under s.68B?
22. We are aware that there have been a number of first instance decisions in this Court where judges have made orders, purportedly pursuant to s.68B, restraining a person from bringing (without leave) further proceedings in relation to a particular child or children (see for example the unreported decisions of Kable and Hanthorn [1998] FamCA 831, Owen and Nikolovska [1999] FamCA 74, Maxwell and Whalen and Caruana [1999] FamCA 692, Atkinson [1999] FamCA 677, Schueddekopf and Webb [1999] FamCA 1175, Shabo and Brown [2000] FamCA 78, Creagh [2000] FamCA 1935).
23. In all the first instance cases just mentioned, the judges concerned have expressed themselves satisfied that an order restraining the institution of further proceedings in relation to a child could be made if the court considered it appropriate for the welfare of the child, and also that s.68B provided a separate and additional head of power to that contained in s.118. However, in none of these cases has there been any in-depth analysis of whether the general terms of s.68B will support an order restraining the institution of further proceedings.
24. In certain of the first instance cases just referred to, and also in the present case before the primary judge and also before ourselves, some reliance has been placed on the decision of the Full Court (Nicholson CJ, Fogarty and Chisholm JJ) in Monticelli v McTiernan (1995) FLC 92-617. In that case the Full Court concluded that the then existing s.70C(1) and (2) (which were in almost identical terms to the existing s.68B(1) and (2)) would support the issue of an injunction by this court to restrain a mother from “pursuing any steps” in custody and/or access proceedings which had been instituted by her in a Californian court in circumstances where the mother and subject child resided in Australia, and the father resided in California but had instituted custody and access proceedings in this Court (although subsequent to the institution by the mother of the Californian proceedings).
25. In our view Monticelli v McTiernan is distinguishable from the present case. The former case was concerned with restraining an Australian resident party to proceedings in this court from pursuing proceedings of the same kind in a foreign court, that is, the granting of a so-called “anti-suit injunction”. The present case is concerned with restraining a person otherwise entitled to make an application in this court from doing so (without leave).
26. Although we have not had the benefit of argument on the matter, we would suggest that the power to grant an anti-suit injunction is an aspect of the inherent, or perhaps more correctly, implied power which this court clearly has (and which was recognised in the High Court decision of Henry (1996) FLC 92-685; (1996) 185 CLR 571) to stay its own proceedings on the grounds that proceedings are pending in a foreign court concerning the same matter. We refer in this regard to the following observations from the joint majority judgment in the High Court decision of CSR Ltd v Cigna Insurance Australia Ltd (1996-1997) 189 CLR 345 at 390:
“Although stay orders and anti-suit injunctions are not governed by the same principles, it will later become apparent that, in some cases, the power to grant anti-suit injunctions is an aspect of the power which authorises a court to stay its own proceedings. And it will also become apparent that, in other cases, the power to grant anti-suit injunctions should not be exercised without the court concerned first considering whether its own proceedings should be stayed.
The test which, in this country, governs a stay of proceedings in favour of proceedings in another country is as stated in Voth v Manildra Flour Mills Pty Ltd [(1990) 171 CLR 538. See also Henry v Henry (1996) 185 CLR 571]
…
It was pointed out in the joint majority judgment in Voth that …“the traditional power to stay proceedings… on inappropriate forum grounds, is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are oppressive, vexatious or an abuse of process and the rationale for the exercise of the power to stay is the avoidance of injustice…in the particular case [Voth (1990) 171 CLR 538 at 554].
It is clear from the rationale for the exercise of the power to stay proceedings and, also, from the words “oppressive”, “vexatious” and “abuse of process”… that the power to stay proceedings on grounds of forum non conveniens is an aspect of the inherent or implied power which, in the absence of some statutory provision to the same effect, every court must have to prevent its own processes being used to bring about injustice.
The counterpart of a court’s power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if “an estate is being administered…or a petition in bankruptcy has been presented…or winding up proceedings have been commenced…an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets” [Société Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] AC 871 at 892]. Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 22 FCR 209, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court.”
27. We are of course aware that in ZP v PS (1994) FLC 92-480; (1994) 181 CLR 639 the High Court held that the issues which are relevant to the determination of a forum non conveniens dispute are not relevant in a custody dispute where the subject child is within the jurisdiction. But we do not read ZP v PS as suggesting in any way that this court does not have an implied power to stay its own proceedings concerning a child where foreign proceedings are pending regarding that child, or to restrain a party to child-related proceedings in this court from pursuing foreign proceedings. It was only the test to be applied in deciding whether or not to exercise such a power which was in issue in ZP v PS.
28. Accordingly, it may well not have been necessary in Monticelli v McTiernan for the court to seek to rely on s.70C (the predecessor to s.68B) for the grant of the anti-suit injunction. In our view the injunction in that case could have been supported by the implied power which this court must have to prevent its processes being abused or to protect the integrity of its processes.
29. There is, in any event, an additional reason why Monticelli v McTiernan should be regarded, at least now, as being of limited authority. That reason is that, as previously pointed out, that decision was concerned with the operation of the injunction power then contained in s.70C; that provision was itself subject to the then overriding requirement in s.64(1)(a) of the Act that in proceedings in relation to the custody or guardianship of, or access to a child, the court must have regard the welfare of the child as the paramount consideration (as was recognised by the High Court in ZP v PS).
30. However, the current power in s.68B to grant an injunction in relation to a child is not subject to the express legislative requirement that the court must regard “the best interests of the child as the paramount consideration”, and in this regard is to be contrasted with the powers, for example in s.65E to make a parenting order, or in s.67ZC to make an order in relation to the welfare of a child.
31. For these reasons then, we consider that Monticelli v McTiernan is of no real assistance in determining the question which arises in this case.
32. We come then to that question (which it would seem, the Full Court has not had to answer previously) being, whether the court is empowered under s.68B(1) or (2) to issue an injunction restraining a party from instituting (without leave of the court) proceedings in relation to a child.
33. In our opinion, two important principles together dictate that this question must be answered in the negative. The two principles are:
· that if a fundamental common law right or privilege is to be modified by statute, then the statute should make that intention unambiguously clear; and
· that the right of a citizen to unimpeded access to the courts is such a fundamental common law right.
34. In relation to the first mentioned principle, being the principle of statutory interpretation which requires a clear statement of intention by the legislature if it intends to abrogate or curtail a fundamental legal right, we need only set out in the following passages from two of the judgments of the High Court in Coco v The Queen (1993-1994) 179 CLR 427. In their joint judgment Mason CJ, Brennan, Gaudron and McHugh JJ said (at 436-8):
“In England, Lord Browne-Wilkinson has expressed the view that the presence of general words in a statute is insufficient to authorize interference with the basic immunities which are the foundation of our freedom; to constitute such authorization express words are required [Wheeler v Leicester City Council [1985] AC 1054 at p.1065; see also Marcel v Commissioner of Police [1992] Ch. 225 at p.234; Lord Browne Wilkinson, The Infiltration of a Bill of Rights”, [1992] Public Law 397, at pp. 404-408]. That approach is consistent with statements of principle made by this Court, to which we shall shortly refer. An insistence on the necessity for express words is in conformity with earlier judicial statements in England which call for express authorization by statute of any abrogation or curtailment of the citizen's common law rights or immunities. Thus, in Raymond v Honey, Lord Bridge of Harwich stated that [[1983] 1 AC 1 at p.14] "a citizen's right to unimpeded access to the courts can only be taken away by express enactment"…
The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights [See Chu Khen Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 12 per Mason J.].
So long as the requirement for express statutory authorization is understood in the sense explained above, we would accept the requirement as a correct statement of principle. At the same time, in our view, the principle was expressed more simply by Brennan J in Re Bolton; Ex parte Beane [(1987) 162 CLR 514 at p.523] in these terms:
"Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation."
In Bropho v Western Australia [(1990) 171 CLR 1 at p.18] , Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ pointed out that the rationale against the presumption against the modification or abrogation of fundamental rights is to be found in the assumption that it is:
"in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used' [Potter v Minahan (1908) 7 CLR 277, at 304.] ."
At the same time, curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.
The need for a clear expression of an unmistakable and unambiguous intention does not exclude the possibility that the presumption against statutory interference with fundamental rights may be displaced by implication. Sometimes it is said that a presumption about legislative intention can be displaced only by necessary implication but that statement does little more than emphasize that the test is a very stringent one [See the discussion in Bropho (1990) 171 CLR at pp. 16 – 17]. As we remarked earlier, in some circumstances the presumption may be displaced by an implication if it is necessary to prevent the statutory provisions from becoming inoperative or meaningless. However, it would be very rare for general words in a statute to be rendered inoperative or meaningless if no implication of interference with fundamental rights were made, as general words will almost always be able to be given some operation, even if that operation is limited in scope.”
35. In their joint judgment in Coco, Deane and Dawson JJ said (at 446):
“It is settled law that a court should not impute to a legislature an intention either to abolish or to modify a fundamental common law right or privilege unless the relevant legislation makes such an intention unambiguously clear [See eg,. Baker v Campbell (1983), 153 CLR 52 at pp.96, 116, 123; Hamilton v Oades (1989) 166 CLR 486 at pp. 495, 500’ Bropho v Western Australia (1990) 171 CLR 1 at p.17]. Obviously, the most satisfactory means of manifesting a legislative intent to that effect is by express and specific words. There can, however, be circumstances where such a legislative intent is made unambiguously clear notwithstanding the absence of express words [See eg., Mortimer v Brown (1970) 122 CLR 493 at pp.498-499; Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at pp.341, 347; Sorby v The Commonwealth (1983) 152 CLR 281 at pp.289-290]. One example of such circumstances is where the relevant legislative provisions would otherwise be rendered either inoperative or nonsensical.”
36. As to the second principle relevant to the determination of this case, being the right of a citizen to unimpeded access to the courts, it seems to have been accepted by Mason CJ, Brennan, Gaudron and McHugh JJ. by their reference, in the above quoted passage from their judgment in Coco, to the statement of Lord Bridge in Raymond v Honey, that this right can be classed as “a fundamental common law right”.
37. It must however be noted, that in Raymond v Honey, Lord Bridge and the other members of the House of Lords were concerned with the actions of a prison governor, performed under regulations, which interfered with a prisoner’s right of access to the courts. They were not concerned with an order of a court limiting a person’s access to that court and purportedly made under a generally worded statutory provision (as is the case before us).
38. Similarly, the authorities which Lord Bridge cited for his proposition “that a citizen’s right to unimpeded access to the courts can only be taken away by express enactment”, being Chester v Bateson (1920) 1 KB 829, and R and W Paul Ltd v The Wheat Commission (1937) AC 139 were cases where the right to approach the courts was purportedly limited by provisions in subordinate legislation, and not by court order made under a generally worded statutory provision.
39. However, in Chester v Bateson reliance was placed on the earlier Court of Appeal decision in In re Boaler [1915] 1 KB 21. That decision is more directly relevant to the issue now before us in that it was concerned with the exact scope of the provision in the English Vexatious Actions Act 1896 which permitted a court to make an order that a person could not institute a proceeding in the court without the leave of the court.
40. In Boaler’s case it was said by Scrutton J. (at 36):
“One of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension.”
41. This description by Scrutton J. of the right of a citizen to approach the courts as a “valuable” right was referred to by Barwick CJ and McTiernan J. in Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 (at 315), where in a joint judgment their Honours held that while there was an inherent power in the High Court to restrain a person from making (without leave) unwarranted and vexatious applications in an action which is pending in the Court, there was no inherent jurisdiction to restrain a person from commencing new proceedings without leave. In the course of their judgment their Honours said:
“In our opinion, it is not surprising that the courts do not appear (so far as we have been able to discover) to have taken the further step of intervening in a summary way to prevent the commencement, except by leave, of actions and other proceedings by a particular person or persons but have limited themselves to exercising their powers in relation to proceedings which have been taken in a court and have thus been placed under its control. It may be that the exercise of supervision, by means of a requirement that leave should be obtained for the bringing of proceedings, could have been justified logically as a proper safeguard against abuse of the court’s process in cases where it was shown to be probable that a person would continue bringing groundless proceedings. But, in our opinion, it is apparent that the courts, both in England and in this country, have declined to regard themselves as having power to do so, except where such power has been conferred upon them by an Act of Parliament or by rules promulgated under statutory authority. This is demonstrated, not merely by the absence of reported cases in which such orders have been made under the inherent power of the court, but by the fact that it has been thought necessary to deal with specific cases of the bringing of numerous unfounded proceedings by legislation rather than by invoking the inherent power of the court.”
42. We have drawn attention to this statement because in our view it illustrates the fundamental importance of the right of a citizen to bring an application to the courts. As Kirby J. observed in Re Attorney-General (Cth); Ex parte Skyring (1996) 70 ALJR 321 at 323:
“…it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction.”
43.His Honour added:
“It is a rare thing to declare a person a vexatious litigant.”
44. Thus we are able to conclude that unimpeded access to the courts is a fundamental right, which can only be abrogated or curtailed by a statutory provision, the intent of which is, in the language of the High Court judgments in Coco, “unambiguously clear”.
45. It would be impossible to assert in our view that the language of s.68B(1) and/or (2) makes it “unambiguously clear” that Parliament intended that pursuant to either of those provisions a parent, or other person interested in the welfare of a child, could be restrained from bringing proceedings in relation to that child otherwise than with the leave of the court.
46. Had Parliament intended such a use of the injunction power in s.68B, then surely it would have included specific reference to such an important injunction or restraining order in the four categories or examples of injunctions which it specified in s.68B(1), or indeed in the more general terms of s.68B (2).
47. It seems to us that the arguments against the proposition that s.68B(1) or (2) authorise the granting of an injunction restraining the institution of proceedings without leave in relation to a child, become more compelling when regard is had to the fact that in s.118 of the Family Law Act the Parliament has clearly defined the circumstances in and terms on which the court may order that a person who has instituted proceedings shall not, without leave, institute further proceedings.
48. We recognise that some might argue that the principles of the general law on which we have so far relied in this decision have no application in cases involving children, and that in such cases the welfare or best interests of the subject child or children are the paramount or perhaps the sole consideration.
49. However, as we earlier indicated, the Act no longer expressly mandates that the “best interests” of the child is the paramount consideration in proceedings under either s.68B(1) or (2) for an injunction “in relation to a child”. But even if that were not so, we have difficulty in seeing how the common law principles on which we have based this decision could be displaced by that consideration.
Conclusion
50. Accordingly we would dismiss the appeal on the basis that there was no jurisdiction in the primary judge to make the restraining order which he refused to make.
Costs
51. At the conclusion of the hearing of the appeal we invited and received submissions in relation to the costs of the appeal.
52. In the event that the appeal was unsuccessful, the husband sought that the wife pay the costs which he had incurred in obtaining legal advice in connection with the appeal. He informed us that he had at that time incurred costs of about $600. Subsequently on 4 May 2001 he wrote to the Appeal Registrar enclosing two accounts received from a firm of solicitors, which together totalled $1158.30.
53. The Appeal Registrar forwarded copies of the husband’s letter of 4 May 2001 and the enclosed accounts to the Legal Aid Commission of New South Wales which represents the wife. The Commission wrote to the Appeal Registrar on 14 June 2001. After noting that no solicitor had appeared for the husband nor apparently drafted any documents for him and that certain items in the accounts bore no relation to Court events and some were repetitive, the Commission went on to say in its letter:
“We are therefore unable to comment on whether the sum now claimed by Mr Bennett, being $1,158.30 is a fair assessment of his costs in the proceedings. However, in the interest of reducing further litigation and costs in the matter, we would not oppose an Order being made in the original terms sought by Mr Bennett, that is $600.00, should a cost order be deemed appropriate in the proceedings.”
54. We are of the view that the circumstances justify the making of an order for costs in the husband’s favour. In the interests of saving the parties the further costs which would be associated with a taxation, we propose to assess those costs at $850.
Orders
1.That the appeal be dismissed.
2.That the wife pay the husband’s costs of and incidental to the appeal with such costs assessed at $850.00.
I certify that the preceding 54 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full CourtAssociate
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