GLEESON CJ, GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
DJL APPELLANT
AND
THE CENTRAL AUTHORITY RESPONDENT
DJL v The Central Authority [2000] HCA 17 Date of Order: 18 November 1999 Date of Publication of Reasons: 13 April 2000 S75/1999
ORDER
Appeal dismissed with costs.
On appeal from the Family Court of Australia
Representation:
G Griffith QC and K L Eastman for the appellant (instructed by Bruce A Swane & Co)
J Basten QC and M W Anderson for the respondent (instructed by Crown Solicitor for New South Wales)
Interveners:
D M J Bennett QC, Solicitor-General of the Commonwealth with N E Abadee intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)
P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)
2.
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorneys-General for the States of Western Australia, Victoria and South Australia, the Northern Territory and the Australian Capital Territory (instructed by Crown Solicitor for the State of Western Australia, Victorian Government Solicitor, Crown Solicitor for the State of South Australia, Solicitor for the Northern Territory and ACT Government Solicitor)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
DJL v The Central Authority
Appeal – Family Court of Australia granted certificate under s 95(b) of Family Law Act 1975 (Cth) regarding "important questions of law and public interest" – Whether Family Court has power to set aside its own perfected orders – Scope of inherent powers of common law courts – "Slip rule" – Ambit of appellate jurisdiction determined by the terms of the statute granting right of appeal – Impermissibility of applying common law analogies to statutory courts.
Family Law – Family Court of Australia – Orders of Full Court – Orders perfected – Whether Full Court has inherent or implied power to set aside orders.
Practice – High Court – Appeal – Certificate by Family Court of Australia – Family Law Act 1975 (Cth) – Validity of requirement of – Specification of question certified.
Words and phrases – "inherent jurisdiction", "inherent power", "superior court of record", "slip rule".
Constitution, ss 71, 73. Family Law Act 1975 (Cth), ss 93A, 95.
GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. What follows are our reasons for joining in the order made at the conclusion of the hearing on 18 November 1999 dismissing the appeal.
The history of the litigation
It is necessary first to outline the circumstances in which the matter came before this Court.
On 10 October 1996, the Full Court of the Family Court of Australia ("the Family Court") (Baker, Lindenmayer and Smithers JJ)[1] ordered that an appeal from orders made by a judge of that Court (O'Ryan…
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
DJL v Central Authority [2000] HCA 17
Case
[2000] HCA 17
Decision Date
CaseChat Overview and Summary
This case concerned an appeal to the High Court of Australia from the Full Court of the Family Court of Australia. The appeal arose from proceedings concerning international child abduction, where the appellant mother sought to retain custody of her daughter, J, in Australia. The father had initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction. The Family Court had previously ordered the return of the child to the United States, and the mother's subsequent appeal to the Full Court of the Family Court was dismissed. The Family Court had granted a certificate under s 95(b) of the *Family Law Act 1975* (Cth) regarding an "important question of law and public interest" as to whether it possessed the power to set aside its own perfected orders.
The central legal issue before the High Court was whether the Full Court of the Family Court possessed an inherent or implied power to set aside its own final orders after they had been perfected. This question was framed by the Full Court as an important question of law and public interest, justifying the grant of a certificate for appeal to the High Court. The High Court was required to determine the scope of the Family Court's powers in this regard, particularly in light of its statutory nature and the limitations imposed by the *Family Law Act 1975* on its appellate jurisdiction.
The High Court reasoned that the appellate jurisdiction of the Family Court is determined by the terms of the statute granting the right of appeal. It held that common law analogies regarding the inherent powers of superior courts to reopen perfected orders were not applicable to statutory courts like the Family Court, especially when the governing statute did not expressly confer such a power. The Court concluded that the power to re-open final orders was not a necessary implication for the protection of the Family Court's appellate functions as conferred by Part X of the *Family Law Act 1975*. Therefore, the Full Court did not have the power to re-open its final orders after their entry.
Consequently, the High Court dismissed the appeal. The Court ordered that the appellant mother pay the respondent's costs of the appeal, and no order was made against the Attorney-General. The Court's decision was made in the interests of bringing the litigation to finality.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
The appeal arose from a case of international child abduction. The appellant, DJL (the mother), attempted by legal and illegal means to retain the custody of her daughter, J. Her husband, LLS (the father), invoked the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and municipal law giving it effect. By reason of the order of this Court it may be expected that the requirements of the Convention and the law will now be fulfilled. It remains to provide the reasons for the order. I now state my reasons.The facts Most of the facts are undisputed[75]. The mother, a citizen of Australia, married the father, a citizen of the United States of America, in March 1991. The couple left Australia soon after to reside in the State of Georgia in the United States. In November 1993 the child J was born. On 12 January 1995, without the consent or knowledge of the father, the mother left the matrimonial home. She took J to Australia where they have lived ever since. At the time, the mother was pregnant with a second child of the marriage who was born in Sydney in September 1995. She named him "S". Meanwhile, in January 1995 the father commenced proceedings against the mother in the Superior Court of Gwinnett County in the State of Georgia. Those proceedings were heard ex parte. In May 1995, the judge ordered that the father have "sole permanent custody" of the daughter J, no visitation rights being granted to the mother who was ordered to return the child to the father immediately[76]. The marriage of the couple was dissolved. A month later the father applied to the Central Authority of the United States claiming the return of J. The relevant provisions of the Convention and the role in Australia of both the Commonwealth Central Authority and Central Authorities for the sub-national jurisdictions of the country are described in a previous case in which the Convention was examined[77]. [75]Taken from the reasons of the primary judge (O'Ryan J) in Central Authority v L unreported, Family Court of Australia, 20 February 1996 (hereafter "the primary decision") at 2-9, and from the account in L v Central Authority [1996] FLC ¶92709 (hereafter the "first Full Court decision") at 83,497-83,500.[76]Final judgment and decree, Superior Court of Gwinnett County, State of Georgia (USA).[77]De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 (hereafter "De L") at 647-653, 671-674. The father's application was conveyed to the Commonwealth Central Authority by the United States Central Authority in June 1995. That month, an application was filed in the Family Court of Australia by the Director-General of the New South Wales Department of Community Services as the Central Authority (the respondent). The application sought an order that the father be permitted to remove J from Australia for the purpose of returning her to the United States. The hearing of the application in the Family Court was delayed because of the impending confinement of the mother. Eventually it came before O'Ryan J, a judge of that Court. On 20 February 1996, his Honour ordered that, upon its being satisfied that the father had made appropriate arrangements to pay the cost of air travel of the mother and child to Georgia, the Central Authority "shall, as soon as reasonably practicable on or after 15 March 1996 cause the child to be returned to the United States in the company of the wife"[78]. The mother appealed against this order. The appeal was heard in July 1996 by the Full Court of the Family Court ("the first Full Court"). In October 1996, an order was made by that Court unanimously dismissing the appeal and thereby confirming the order made by the primary judge. [78]Order of O'Ryan J set out in the first Full Court decision [1996] FLC ¶92-709 at 83,497.
The presence of s 73 of the Constitution and the special nature of the function exercised by this Court, with respect to the grant of special leave to appeal, indicate that there is no compelling necessity to strain the structure of the Family Law Act so as to see as a necessary implication that which is not expressed. In particular, to adapt the conclusions expressed by Menzies J, with respect to the Commonwealth Industrial Court in Forbes[71], the power of re‑opening after entry of final orders made by the Full Court is not necessary to protect this Court's appellate functions conferred by Pt X of the Family Law Act.[71](1972) 127 CLR 1 at 8.Conclusion We would answer in the negative what the Full Court sought to isolate as the important question of law or public interest as to whether the Full Court had the power to re-open its final orders after their entry. Consequently, no occasion arose for the exercise of discretion in that regard by the Full Court. The position respecting costs remains unsettled. The appellant sought an order that the Attorney-General of the Commonwealth pay the entire costs of the appellant as the price of the grant of leave to intervene which was made. The power to award costs in this Court is that conferred by s 26 of the Judiciary Act 1903 (Cth)[72]. Costs should follow the event. No order should be made against the Attorney-General. The appellant should pay the respondent's costs of the appeal. The Court, "[i]n the interests of bringing this litigation to finality"[73], ordered that this appeal from the Full Court of the Family Court of Australia[74] be dismissed. [73]Transcript of proceedings, 18 November 1999 at 173 per Gleeson CJ for the Court.[74]L v Central Authority [1999] FLC ¶92-849 (hereafter the "second Full Court decision"). Pseudonyms for the parents and children were adopted in this Court. In the courts below the children were referred to by their initials but the parents named. In order to preserve the point of the pseudonym, the names of earlier decisions have been amended. The appeal arose from a case of international child abduction. The appellant, DJL (the mother), attempted by legal and illegal means to retain the custody of her daughter, J. Her husband, LLS (the father), invoked the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and municipal law giving it effect. By reason of the order of this Court it may be expected that the requirements of the Convention and the law will now be fulfilled. It remains to provide the reasons for the order. I now state my reasons.The facts Most of the facts are undisputed[75]. The mother, a citizen of Australia, married the father, a citizen of the United States of America, in March 1991. The couple left Australia soon after to reside in the State of Georgia in the United States. In November 1993 the child J was born. On 12 January 1995, without the consent or knowledge of the father, the mother left the matrimonial home. She took J to Australia where they have lived ever since. At the time, the mother was pregnant with a second child of the marriage who was born in Sydney in September 1995. She named him "S". Meanwhile, in January 1995 the father commenced proceedings against the mother in the Superior Court of Gwinnett County in the State of Georgia. Those proceedings were heard ex parte. In May 1995, the judge ordered that the father have "sole permanent custody" of the daughter J, no visitation rights being granted to the mother who was ordered to return the child to the father immediately[76]. The marriage of the couple was dissolved. A month later the father applied to the Central Authority of the United States claiming the return of J. The relevant provisions of the Convention and the role in Australia of both the Commonwealth Central Authority and Central Authorities for the sub-national jurisdictions of the country are described in a previous case in which the Convention was examined[77]. [75]Taken from the reasons of the primary judge (O'Ryan J) in Central Authority v L unreported, Family Court of Australia, 20 February 1996 (hereafter "the primary decision") at 2-9, and from the account in L v Central Authority [1996] FLC ¶92709 (hereafter the "first Full Court decision") at 83,497-83,500.[76]Final judgment and decree, Superior Court of Gwinnett County, State of Georgia (USA).[77]De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 (hereafter "De L") at 647-653, 671-674.