Director-General, Department of Communities (Child Safety Services) and Rolfston (Costs)
[2011] FamCAFC 23
•14 February 2011
FAMILY COURT OF AUSTRALIA
| DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES (CHILD SAFETY SERVICES) & ROLFSTON (COSTS) | [2011] FamCAFC 23 |
| FAMILY LAW - APPEAL – COSTS – Hague convention – where an appeal by the Central Authority was dismissed – costs sought by the mother against the Central Authority – whether the Central Authority has immunity from a costs order pursuant to the provisions of reg 7 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) and s 117AA of the Family Law Act 1975 (Cth) – whether the Central Authority asserted a meaning of the Regulations which was not reasonable given the terms of the Regulations – where the Central Authority was wholly unsuccessful in the appeal – order for the Central Authority to pay the mother’s costs. |
| Family Law Act 1975 (Cth) ss 4, 117 & 117AA Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 7 & reg 16 |
| A v GS and Ors (2005) 193 FLR 416 De L v Director-General, NSW Department of Community Services(No 2) (1997) 190 CLR 207 Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090 LK v Director-General, Department of Community Services (2009) 237 CLR 582 |
| APPELLANT: | Director-General, Department of Communities (Child Safety Services) |
| RESPONDENT: | Ms Rolfston |
| FILE NUMBER: | BRC | 10566 | of | 2009 |
| APPEAL NUMBER: | NA | 54 | of | 2010 |
| DATE DELIVERED: | 14 February 2011 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | By way of written submissions |
| JUDGMENT OF: | May, O’Ryan and Strickland JJ |
| HEARING DATE: | By way of written submissions |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 April 2010 |
| LOWER COURT MNC: | [2010] FamCA 264 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Parrott |
| SOLICITOR FOR THE APPELLANT: | Crown Law |
| COUNSEL FOR THE RESPONDENT: | Mr Kent SC |
| SOLICITOR FOR THE RESPONDENT: | Barry & Nilsson Lawyers |
Orders
The appellant pay the respondent’s costs of and incidental to the appeal, including the costs incurred with respect to the matters identified in paragraph (2) of the orders made by the Full Court on 19 August 2010, such costs to be agreed or, failing agreement, to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Director-General, Department of Communities (Child Safety Services) & Rolfston (Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 54 of 2010
File Number: BRC 10566 of 2009
| Director-General, Department of Communities (Child Safety Services) |
Appellant
And
| Ms Rolfston |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 August 2010 we delivered our reasons for judgment and made orders dismissing an appeal by the Director-General, Department of Communities (Child Safety Services), acting as the State Central Authority for Queensland (“the Central Authority”). The Central Authority had appealed against orders made by Murphy J on 13 April 2010 dismissing the Central Authority’s application seeking the return of the child E born in September 2006 to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).
At the hearing of the appeal, senior counsel for the respondent, Ms Rolfston (“the mother”), sought to reserve his position on costs pending delivery of our reasons for judgment. In our orders of 19 August 2010 we thus granted liberty to the parties to file written submissions in relation to costs. The respondent was to file any such submissions within 21 days, the appellant was to file any response within 14 days thereafter and the respondent was to file any reply thereto within a further 7 days.
Pursuant to these orders, written submissions were filed on behalf of the mother on 8 September 2010 seeking that, pursuant to s 117 and s 117AA of the Family Law Act 1975 (Cth) (“the Act”), the appellant pay the respondent’s costs of and incidental to the appeal, including the costs in relation to the filing of the written costs submissions, with such costs to be agreed or, failing agreement, as taxed.
The appellant Central Authority filed written submissions on 22 September 2010 opposing any order for costs and seeking an order that each party bear their own costs of and incidental to the appeal.
Background
It is only necessary for the purposes of determining this application for costs to provide a brief background to these proceedings.
On 19 November 2009 the Central Authority filed a Form 2 Application Initiating Proceedings under the Family Law (Child Abduction Convention) Regulations in this Court, seeking that the child be returned to the United States.
The trial was heard by Murphy J on 22 February 2010. His Honour delivered his reasons for judgment on 13 April 2010, dismissing the Central Authority’s application and discharging interim orders made by Bell J on 27 November 2009.
The Central Authority filed a Notice of Appeal on 11 May 2010. The appeal was heard on 3 June 2010. On 19 August 2010 we delivered our reasons for judgment and made orders dismissing the Central Authority’s appeal and for the filing of written submissions as to costs.
Reasons of the Full Court delivered 19 August 2010
There were 6 grounds of appeal pursued by the Central Authority. With ground 1, which was recast at the commencement of the hearing, the complaint was that the trial judge had erred in finding that the child was not habitually resident in the United States at the relevant time. However, as we noted in our reasons for judgment, even that ground did not address what the trial judge in fact did. What his Honour found was that the Central Authority had not discharged its onus of establishing that the child was habitually resident in the United States as at 30 June 2009. We determined that on the evidence that finding was entirely open and thus his Honour had not erred in this regard.
We also found that grounds 2 and 3 (being a replication of ground 2) of the appeal could not succeed as there was no finding, as asserted by the Central Authority, that a unilateral declaration by the mother was sufficient to alter the child’s place of habitual residence.
Two of the Central Authority’s grounds of appeal related to the intentions of the father in relation to the child’s return to the United States and a possible reconciliation with the mother. We also found no merit in these grounds.
Finally, and perhaps importantly given the nature of the submissions on behalf of the mother to which we will refer below, the Central Authority contended on appeal that the trial judge had erred in the application of the factual nexus and the High Court’s reasoning in LK v Director-General, Department of Community Services (2009) 237 CLR 582. Again, we found that the Central Authority had not established any appealable error on the part of the trial judge in his reference to or application of these principles and there was no merit in this ground.
We repeat our ultimate conclusion in dismissing the Central Authority’s appeal:
112. We are not satisfied that the trial judge erred in concluding that the applicant had failed to discharge its onus of establishing that the child was habitually resident in the United States at the relevant time. In light of the entirety of the evidence, namely the actions and intentions of the parties, the email communications, the child support arrangements reached and importantly the parenting agreement entered into between the parties providing for the child to be able to live in Australia with the mother, we consider that it was open to his Honour to so determine. There being no merit in any ground of appeal, the appeal will accordingly be dismissed.
Relevant legislative provisions
These proceedings were brought pursuant to the Family Law (Child Abduction Convention) Regulations 1986. Regulation 7 provides in relation to costs orders against a Central Authority:
Immunity of Commonwealth Central Authority etc in respect of orders to pay costs
A court must not make an order that requires the Commonwealth Central Authority or a State Central Authority to pay costs in relation to his or her exercising the powers, or performing the functions, of the Commonwealth Central Authority.
Section 117 of the Act deals with costs in proceedings under the Act and provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
… (Emphasis added)
Section 4 of the Act defines “this Act” as including “the regulations”. In Director-General, NSW Department of Community Services and JLM (2001) FLC 93-090 the Full Court was of the view that there was no reason to interpret “the regulations” as being restricted to the Family Law Regulations as opposed to other regulations made under the Act. Thus their Honours concluded that the definition included the Family Law (Child Abduction Convention) Regulations 1986.
Section 117(2A) of the Act outlines the matters the Court is to have regard to in considering what order (if any) is to be made under subsection (2).
Relevant to these proceedings is s 117AA, which provides:
Costs in proceedings relating to overseas enforcement and international Conventions
(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.
Note: For another case where the court can also make an order as to costs, see subsection (3).
(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.
…
Submissions
Submissions of the mother
Counsel for the mother referred to the High Court decision of De L v Director-General, NSW Department of Community Services(No 2) (1997) 190 CLR 207 in which reg 7 was considered. In that case the majority (Toohey, Gaudron, McHugh, Gummow and Kirby JJ) said at 217:
The purpose of reg 7 is clear enough. It is reinforced by the heading to the regulation. It is to provide immunity to the Central Authority. Like the Crown in its traditional role in criminal proceedings, the Central Authority would neither seek nor pay costs. Presumably, this was out of recognition of the high public purpose which the Central Authority performed in executing the functions envisaged by the Convention and effected by the Regulations. (Footnotes omitted)
Brennan CJ and Dawson J in a separate judgment said at 210:
It is an essential function of the State Central Authorities to apply for orders “to secure the prompt return of children wrongfully removed to or retained in” Australia (to adopt the terms of Art 1(a) of the Convention on the Civil Aspects of International Child Abduction (“the Convention”)), to prosecute such an application and, if successful, to defend any order made to achieve that end. The risk of a liability for costs in the event of non-success is an inhibition against performance of that function, but the conferring of an immunity from that liability removes the inhibition and is conducive to the assiduous performance of the State Central Authority’s function.
At 221 the majority continued:
But does reg 7 forbid such an order? On its face, it applies only to “costs in relation to ... exercising the powers, or performing the functions, of the Commonwealth Central Authority.” That expression may be contrasted with the more general specification in s 117(1) of the Family Law Act that “each party to proceedings under [that] Act shall bear his or her own costs”. The more narrow prescription in reg 7 directs attention to the powers and functions of the Commonwealth Central Authority which are specified in reg 5(1) as follows:
“(a) to do, or co-ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention; and
(b) to advise the Attorney-General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney-General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and
(c) to do everything that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia.”
For practical purposes, it is only the performance of the duty or the exercise of the function set out in reg 5(1)(c) which could give rise to an order for costs, and then only in respect of applications under the Regulations.
It is to be noted that reg 5(1)(c) is necessarily to be read as requiring the Central Authority to do everything which is authorised or required by the Regulations and which is, also, “necessary or appropriate to give effect to the Convention”. From that construction, two matters relevant to the operation and effect of reg 7 emerge. First, reg 7 cannot immunise either the Commonwealth Central Authority or a State Central Authority with respect to costs in proceedings in which they assert powers or functions outside the scope of the Regulations. The second is that, even if the Regulations extend beyond what is required by the Convention, immunity only extends to that which is “necessary or appropriate to give effect to the Convention”.
It follows, in our view, that reg 7 does not provide immunity against costs with respect to proceedings or, perhaps, more accurately, that aspect of proceedings in which either the Commonwealth Central Authority or a State Central Authority asserts a meaning or operation of the Regulations which their terms do not bear or which is neither necessary nor appropriate to give effect to the Convention. (Emphasis added)
We observe that s 117AA of the Act was enacted after this decision, and is clearly intended to incorporate the substance of the High Court’s decision.
Counsel for the mother submitted that for the Central Authority to be able to successfully claim “immunity” from a costs order under reg 7, it must demonstrate either that in the institution and prosecution of the appeal, the Central Authority did not “assert a meaning or operation of the Regulations which their terms do not bear” or that the institution and prosecution of the appeal was “necessary and appropriate to give effect to the Convention.” It was submitted that neither had been demonstrated here and thus a costs order could be made. Counsel for the mother outlined a number of bases in support of this proposition.
Firstly, it was submitted that it cannot be concluded that the prosecution of the appeal was “necessary or appropriate to give effect to the Convention.” Counsel contended that while it may have been appropriate for the operation of the Convention to be tested at trial, it was not appropriate for this to be further challenged on appeal when the Central Authority was in possession of the findings of fact and exposition of the principles applied to the facts contained in the trial judge’s reasons.
Next, counsel for the mother contended that the Central Authority’s argument on appeal in relation to acquiescence and the submission that the trial judge “put the cart (habitual residence) before the horse (acquiescence)” “asserts a meaning or operation of the Regulations which their terms do not bear” and was not “necessary or appropriate to give effect to the Convention.” It was contended that the Central Authority, to use the wording contained in s 117AA(2) of the Act, asserted a meaning or operation of the Regulations which was not reasonable or was not “convenient to give effect to Australia’ s obligations under the Convention concerned, or to obtain the benefits of that Convention.”
Counsel for the mother contended that the immunity in relation to costs provided by reg 7 and s 117AA of the Act, by inference, imposes on the Central Authority the duties of a “model litigant”. It was contended that the principal argument of the Central Authority was not reasonably open given the High Court’s decision in LK v Director-General, Department of Community Services and the operation of the Regulations. The Central Authority maintained a position taken a trial that ignored the true effect of the High Court’s decision in that case.
Further in support of an order for costs against the Central Authority, it was submitted that each of the considerations in s 117(2A) are in favour of the mother, and that in particular the Central Authority has been wholly unsuccessful in the appeal.
Finally, it was submitted that s 117AA(1) clearly contemplates an order for costs being made in favour of a successful party against a Central Authority in proceedings brought under the Regulations, within the parameters of subsection (2). It was submitted that it is important that the proceedings in question here was an appeal, with counsel highlighting the importance of the power of the Court to award costs in appeal matters to ensure that a successful party may be protected against a substantial costs burden. Counsel also made reference to the background of litigation in this matter not only in Australia, but also in the United States.
Submissions of the Central Authority
In support of an argument that the Central Authority, in prosecuting the appeal, was exercising its powers or performing its functions, the Central Authority referred us to the provisions outlining what those powers and functions are under the Regulations. We do not need to set out those provisions here.
Counsel for the Central Authority also referred to the decision of De L v Director-General, NSW Department of Community Services (No 2) in relation to the effect of reg 7 and s 117.
The Central Authority conceded that the appeal was dismissed and that the mother was therefore successful in opposing the appeal. It was submitted, however, that the outcome of the appeal is not the determining factor and that s 117AA imposes a test of reasonableness and s 117(2A) provides a range of discretionary considerations the Court is to take into account.
It was submitted that s 117AA(2) severely limits the circumstances in which costs can be ordered against a Central Authority and that the scope of the section must be distinguished from the discretion contained in s 117(2A) in family law proceedings generally.
In response to the submission on behalf of the mother that it was not reasonable to prosecute the appeal, the Central Authority contended that this argument is really a reference to the merits of the appeal, which is not the test. The Central Authority maintained that it did not assert a meaning or operation of the Regulations which was outside the scope of the Convention.
The Central Authority submitted that it was within its powers and obligations to test the principles of LK v Director-General, Department of Community Services and that, where the Central Authority was of the view that the decision at first instance may have incorrectly stated or misapplied the relevant principles, it was incumbent on the Central Authority to test those matters on appeal.
The Central Authority refuted that there was any foundation for the assertion that it had failed in its duty to act as model litigant, submitting that a failure on appeal was insufficient to establish that the Central Authority had failed in its duties in relation to the conduct of the case.
The Central Authority thus submitted that, in the absence of a finding that the Central Authority acted unreasonably in instituting and prosecuting the appeal, an order for costs could not be made against it. It was the position of the Central Authority that each party should therefore bear their own costs.
Discussion
Both parties referred us to the High Court decision of De L v Director-General, NSW Department of Community Services(No 2) where the High Court considered the operation of reg 7.
In Director-General, NSW Department of Community Services and JLM the Full Court of this Court (Ellis, Coleman and Joske JJ) also considered whether the Central Authority has “immunity” from an order for costs by virtue of reg 7. The Court found that the High Court in De L v Director-General, NSW Department of Community Services (No 2) did not purport to rule on the relationship between reg 7 and s 117 of the Act (at 88,605).
In that case, their Honours noted the amendment to s 117 and the insertion of s 117AA into the Act following the High Court’s decision in De L v Director-General, NSW Department of Community Services (No 2). The Full Court also noted that it is in fact s 117(1) of the Act that is stated to be subject to s 117AA, not s 117(2). The Full Court concluded at 88,606 – 88,607:
36. … The question arises whether the provisions should nevertheless be interpreted so that the power to make an order for costs, albeit in ss (2), should also be taken to be subject to s 117AA.
37. To determine this question, it is necessary to identify the operation of the relevant provisions. Section 117AA(1) restricts the power to make costs orders in two ways. Firstly, the order can be made only in favour of a party who is substantially successful in the proceedings. Secondly, the order can only be made against a person or body who holds or held an office or appointment under the Regulations and is a party to the proceedings in that capacity. Section 117AA(2) in substance restricts the circumstances in which an order for costs can be made against a body such as a Central Authority. Put shortly and imprecisely, an order for costs cannot be made against the Central Authority unless the Central Authority has, in the proceedings, asserted powers or functions outside the scope of the Regulations.
38. Thus, we are of the view, on a consideration of the legislation as a whole and having regard to its evident intention of the legislation, that both s 117(1) and s 117(2) must be read subject to the provisions of s 117AA.
39. It follows that the Central Authority has a qualified immunity from an order for costs deriving not only from reg 7 but also from the provisions of s 117AA. … (Emphasis added)
In A v GS and Ors (2005) 193 FLR 416, orders were sought, inter alia, against the Central Authority. The Full Court (Finn, May and Carmody JJ) in that case accepted that the pre-conditions in s 117AA(2) were not satisfied given the limited role the Central Authority had played and that to the extent any assertion had been made, it could not be said to have been “not reasonable” or “not convenient”. In relation to s 117AA and reg 7 the Court said at 422:
32. 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.
In summary, the authorities have established that there is a “qualified immunity” protecting the Central Authority from an order for costs pursuant to reg 7 and s 117AA . The immunity provided by s 117AA is said to be broader than that provided by reg 7. Pursuant to s 117AA, an order for costs can only be made against a Central Authority where the other party has been “substantially successful in the proceedings” and pursuant to subsection (2), where the Central Authority has asserted a meaning or operation of the Regulations that is not reasonable given the terms of the Regulations or “is not convenient to give effect to Australia’s obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.” Both ss 117(1) and 117(2) are to be read subject to s 117AA.
We note that no submissions were made to us in relation to the meaning and effect of the phrase “part of the proceedings” in s 117AA(2). Thus we do not propose to form any concluded view about it. However, we observe that any deliberation of that issue would require consideration of what the High Court said in De L v Director-General, NSW Department of Community Services (No 2), given, as we say, that that led to the insertion of s 117AA into the Act.
It seems to us that in this case there can be an order for costs. It is not controversial that the respondent was “substantially successful in the proceedings” as required by s 117AA(1)(a) and we are of the view, for the following reasons, that the Central Authority was asserting a meaning of the Regulations that was not reasonable given the terms of the Regulations.
We accept the submission of the Central Authority that the test of reasonableness does not necessarily relate to the merits of the appeal, but here the primary contention of the Central Authority was that the true issue in the application was acquiescence, and the trial judge treated that as an issue of habitual residence and put the cart (habitual residence) before the horse (acquiescence). As we explained in our reasons though, under the Regulations the trial judge is obliged to first consider and determine the requirements of reg 16(1A) because it is only if wrongful retention is established that it would become necessary to consider consent or acquiescence within the meaning of reg 16(3), and this is precisely how the trial judge approached this case.
The submission of the Central Authority before us was that before a finding could be made that there had been a change of habitual residence (in this case from the United States) it was necessary to find that the husband had acquiesced in such a change. However, this is not what the Regulations require and this promotes a meaning or operation of the Regulations which is not reasonable.
We also note the submission of the mother that the Act and the Regulations impose on the Central Authority “the duties of a model litigant”, and thus the qualified immunity against costs orders does not apply because it was not reasonably open to the Central Authority to advance the argument on appeal that it did given the High Court’s decision in LK v Director-General, Department of Community Services. However, we do not accept this submission. The Act and the Regulations are quite clear on what basis the immunity applies and to make the implication suggested inappropriately takes the argument into the arena of the merits of the appeal.
Nor do we agree with the mother that just because the relevant proceeding is an appeal that enables a court to more readily find that the immunity does not apply. The Central Authority is entitled to pursue an appeal and it will attract immunity if it is not caught by s 117AA(2).
We have found that there can be an order for costs against the Central Authority as a result of a consideration of s 117AA. There is still of course the question of whether there should be an order for costs and for that purpose we turn to ss 117(1) and 117(2A).
We are satisfied that there are circumstances here that justify an order for costs being made, namely the Central Authority was wholly unsuccessful in the proceedings (s 117(2A)(a)) and there is no other factor that has been brought to our attention which would lead us to find otherwise.
Conclusion
We propose to make the order for costs sought by the respondent mother.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, O’Ryan and Strickland JJ) delivered on 14 February 2011.
Associate:
Date: 14 February 2011
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