DS and DS
[2003] FMCAfam 365
•3 July 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DS & DS | [2003] FMCAfam 365 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of consent orders – implied power to address potential miscarriage of justice – where applicant alleges she had inadequate or incompetent representation – role of children’s representative – children’s representative does not confer with children or attend to pre-trial investigations – stay of consent orders pending appeal granted. |
Family Law Act 1975, ss.62, 65, 68
Re Evelyn (No 2) (1998) FLC 92-817
Elder (2000) FamCA 1527
Harris v Caladine (1991) FLC 92-217
Dietrich v The Queen (1992) 177 CLR 292
Re K (1994) FLC 92-461
P v P (1995) FLC 92-615
Makita (Australia) P/L v Sprowles 52 NSWLR 705
R v Mogley, (1992) 28 NSWLR 735
Tregally v Stewartson, Stubbs and Collette Limited, (1966), 66 SR 335
| Applicant: | LDS |
| Respondent: | JDS |
| File No: | PAM4219 of 2002 |
| Delivered on: | 3 July 2003 |
| Delivered at: | Parramatta |
| Hearing Date: | 3 July 2003 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Counsel for the Applicant: | Mr G. Kenny |
| Solicitors for the Applicant: | McLarens |
| Counsel for the Respondent: | Mr A. Allen |
| Solicitors for the Respondent: | Taylor & Scott |
| Solicitor Advocate for the Separate Representative | Ms F. Neilsen |
| Solicitors for the Separate Representative | Legal Aid Commission of New South Wales |
ORDERS
That orders 1, 3, 4, 6 and 10 made 16 June 2003 are stayed pending the determination by the Full Court of the Family Court of Australia of the wife’s appeal filed 30 June 2003.
That orders 1, 3, 4, 6 and 10 made 16 June 2003 are stayed pending the determination of an application by the wife to the Federal Magistrates Court to set aside or stay these orders. In the event that the wife does not file an application to the Federal Magistrates Court seeking to invoke its inherent jurisdiction within seven days, this order is discharged.
That pending the outcome of proceedings referred to in orders 1 and 2 of these orders that:
(a)The children live with the mother;
(b)The children live with the father from after school until 5.30pm each Tuesday, Thursday and Friday.
Friday contact is to continue until 6.00 pm Saturday.
That this contact is to be effected by the father collecting the children from day care and school. The mother to collect the children from the father’s home at the end of each contact period.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM4219 of 2002
| LDS |
Applicant
And
| JDS |
Respondent
REASONS FOR JUDGMENT
This judgment was delivered orally.
Introduction
This is an application that the Court grants a stay of final residence orders pending appeal. The orders were made by consent on 16 June 2003. The effect of the orders is that the children live with the father and have contact to the mother. The orders were as follows:
1.That the children of the marriage reside with the father.
2.That the long term care, welfare and development of the children be a jointly shared responsibility of both parents and the day to day care welfare and development be the responsibility of, the parent whose care the children are at that time in.
3.That the mother have contact with the children from 6:00pm Saturday until 4:00pm Monday and on the alternate weekend from 6:00pm Sunday until 9:00am the following Tuesday, contact commencing Saturday is to commence the 21st June 2003.
4.The mother is to have contact with the children for half the NSW school holidays being the first half in odd numbered years and the second half in even numbered years.
5.There be such other contact as agreed between the parties.
6.That in the event the mother attends to her work or business interest during a contact period, contact is suspended and the children are to be left in/or returned, to the father.
7.That each party restrained from denigrating the other in the presence and hearing of the children.
8.That each party shall do all things necessary to organise and facilitate appropriate counselling for the child J, and that the Order 30A report in these proceedings be released to the Counsellor.
9.That the parties notify the children’s representative of the counselling organised in compliance with the Order 8 above.
10.In the event counselling referred to in Order 8 is on a Monday afternoon, contact of the mother with J is extended to include the counselling appointment.
LDS, (“the mother”) filed an application on 1 November 2002 for residence of the parties' two children: N, born 26 February 1993; and E, born on 13 March 2000. In her affidavit filed in support of the application she outlined the parties' history. She deposed that the parties were married on 9 November 1990, and have the two children to whom I have referred. Neither party has any other children.
By mutual agreement the parties separated in July 2001. At separation the mother and children left the family home.
Without court intervention, the parties agreed on the arrangements for the children's care. The mother says that during the school week, at about 8.00 am she took N to School, and E to long daycare. She runs her own business and works full time. The father is not employed. He collected both children after school and kept them until she called by and took the children home in the evening. Usually by no later than 6.30 pm.
JDS (“the father”) agrees that these were the usual arrangements. However, he says that N stayed overnight more frequently than the mother concedes, and he did more with the children vis-a-vis their afternoon care than she deposes in her affidavit. The weekend arrangements are somewhat unclear, although it appears that the children spent time with both parents each weekend.
The catalyst for the mother’s application for residence orders was the father’s decision that he would not return the children to her after contact on 20 October 2002. He held the children over because he believed that children wanted to live with him and his opinion that the parties should do as the children wanted. E was 2 and N was 9. Apparently, E was returned to the mother at some stage prior to
3 November 2002. N returned to her mother not long after the proceedings started, precisely when is unclear.
Because of the urgency of the situation, a Deputy Registrar granted the mother leave to proceed on short notice. Thus, even though her application did not seek any interim orders, it came before me on 18 November 2002. Both parties attended, and with the help of their legal advisers reached an interim agreement. I incorporate those orders into these reasons. The consent orders were as follows:
1.The children of the marriage reside with the mother.
2.The father have contact with the children by collecting E from day care on Tuesdays, Thursdays and Fridays and J from school on each school day.
3.The mother to collect the children from the father’s residence at 4:30pm.
4.The father to have contact with both children from 9:00am to 5:00pm every Saturday with the father to collect the children from the mother’s place of residence and the mother to collect them from the father’s place of residence at the end of the contact period.
5.These terms to be reviewed following counselling with a view to expanding contact on the part of the father.
6. Liberty to either party to restore on 7 days notice.
7.Neither party to make adverse comments about the other in the presence of the children.
These orders continued until the final orders of 16 June 2003 were entered.
When the matter came before me on 17 January 2003, I made an order pursuant to s.68L of the Family Law Act 1975 for both children to be separately represented. I requested that the Legal Aid Commission implement this order. They did, and on 10 February 2003 the child's representative filed a notice of address for service. It revealed that a solicitor from the Legal Aid Commission had been appointed.
On 14 February 2003, trial directions were made. These required the parties to file and serve all affidavits by 9 May 2003. Pursuant to s.62G(2) I ordered that a family report be prepared. The matter was listed for final hearing as a two-day matter to start on 16 June 2003.
The mother filed her trial affidavit on 22 May 2003. Its brevity is breathtaking. The affidavit comprises nine paragraphs, only one of which extends into two sentences. It is contained in one page in its entirety. The father filed his trial affidavit on 13 June 2003, that is the Friday before the hearing was due to start. He did nothing more than attach a fresh coversheet to an affidavit he had sworn for the interim hearing on 18 November 2002. Thus the court had no evidence from him post dating the interim orders.
Neither party filed affidavits from any other deponent. Relevantly, the mother did not file an affidavit from her partner. The child's representative did not file any affidavits, did not issue any subpoenas or confer with either child at any stage.
As the record reveals, when the matter was called on for hearing, it was one of a number of hearings listed to proceed before me that day. Both parties appeared instructing counsel, and the child’s representative appeared for the children. As events transpired the parties reached agreement, and they and the children's representative invited the court to make the consent orders identified at the start of these reasons. These orders are consistent with the recommendations made by Dr L, whose s.62(G)(2) report was released on 12 May 2003. Dr L's report concluded:
30. Recommendation. It appears that N’s best interest lie in staying with her father. There appear to be no grounds for separating N and E. My recommendation is based on N’s extremely strong comments to me about her wishes. I have no reason to believe that the father is abusive to N. However, it is unlikely that the depression I believe is developing in N will remit unless her relationship improves with her mother. Her mother appears genuinely concerned about N, and wanting to do the best for her (and indeed for E). It may be that a combination of paternal vilification of the mother, the mother’s own heavy involvement in her business interests, the mother’s newly established relationship, and her mother’s over-concern about discipline and educational attainment for N have helped erode their relationship. Until that relationship is restored it is unlikely that N will adjust to a residency arrangement with her mother.
31. I believe that the following additional recommendations may be useful.
32. There should e some attempt to undertake an assessment of N by either a child psychologist or psychiatrist. This assessment should consider whether or not N is depressed or showing signs of developing depression, and, if so, whether environmental manipulations (such as improving the quality of communication between the parents and about the parents, and providing guidance to the mother about her relationship with N) would be sufficient to effect change, or whether some individual counselling of N may be required.
Relevantly, he recommended that a psychologist or a psychiatrist undertake an assessment of N. He was concerned that she may be suffering from some form of depression, and said he did not have the qualifications to investigate and form an expert opinion about that. Although it appears the report was released a month prior to the hearing, apparently neither the child's representative nor the parties acted upon Dr L' recommendation.
The application to set aside the consent orders
On 24 June 2003, having changed solicitors, the mother lodged an application to stay these orders pending the determination of an appeal that has been filed in the Family Court of Australia. The day before she delivered the children to their father. As I was absent from the registry, the application for a stay came on before me on the first day I had returned. That is, on 1 July 2003. I am satisfied that the mother moved with real urgency to address her challenge to the orders.
The mother's case is that her consent was based upon erroneous advice, and that she was inadequately represented. She tells the Court, through her affidavit, that she had received a telephone call from her solicitor on the Friday preceding the hearing, advising that she needed counsel and that she should meet Counsel at court on Monday at 9.30 am. She says that her solicitor had recently advised her that her case was difficult because the opinion expressed by Dr L was adverse to her application for residence.
It does not appear that she was given the opportunity to provide detailed instructions to her solicitor in anticipation of the trial or to confer and provide detailed instructions to her counsel in anticipation of the trial. Whilst there may be circumstances where it is appropriate that counsel confer with clients for the first occasion within half an hour of a trial’s start, it seems to me that this may not have been one of those occasions.
However, having met her counsel, the mother says that she told him that she wished to retain residence of the children, and that none the less he gave her the following advice.
“After I had said these words, although I am not sure if it was said immediately after, my barrister said: “Your case is very hard to settle. I have been in the business for fifteen years, and I have never seen a report like yours. The children’s representative’s opinion is that from your report, the children will go to the father”.
After he spoke with the children's representative, he apparently advised the mother, that the child's representative's view was that the report should be supported. As a consequence counsel formed the view that the mother had little prospects of success. Her understanding of her position when she conducted the negotiations was this:
“When I signed the papers at the court I believed that if I did not do so, I would get less than what was proposed in the orders that were ultimately made. I did not ever explicitly say to my lawyers that I wanted to settle the case on the basis that my children would reside with my husband, and I would have contact to them. I was very worried about how I would perform in the witness box if I had difficulties with the English language.”
Quite clearly she proceeded on the basis that the orders presented to her by her counsel, was the best choice that she had and it was the best that she could expect to do. Her counsel in this application submits that advice was erroneous, it was inadequate, and possibly also incompetent.
Applicable principles on a stay application pending appeal
The principles applicable to a stay of a parenting order pending appeal are well known. In Re Evelyn (No 2) (1998) FLC 92-817, the Full Court of the Family Court summarised the relevant law and held:
“It is clear from the decision of Gummow J in De Lewinski v Director General New South Wales Department of Community Services (1996) FLC 92-678 that the principles enunciated by Brennan J in Burgundy Royale must be applied in a child related matter which involves the Hague Convention relating to international child abduction, where there is an application for special leave to appeal to the High Court.
However, there would appear to be nothing in De Lewinski to suggest that the principles which have previously been applied in this Court in relation to applications for a stay pending an appeal to the Full Court in a child related matter, and in which matter the interests or welfare of the subject child were the paramount consideration do not remain good law.
It would, with respect, suggest that given that De Lewinksi involved the refusal by the Full Court of this Court to stay orders requiring children to be sent abroad pursuant to the provisions of the Hague Convention relating to child abduction. Gummow J was, in that case, solely concerned with what can be described as the preservation of the subject matter of the litigation. In any event, the best interests principal has no application in cases concerning the Hague Convention relating to child abduction. We turn first to the authorities in this Court relating to the grounds for refusal of a stay in proceedings in which the child's best interests are to be considered as the paramount consideration, and where as in the present case no question arises about the removal of a child from Australia.
In Carlon v Carlon (1977) FLC 90-320 at 76,696, Watson J said:
Without in any way fettering discretion, it seems to me that I should in this case consider:
(a ) the rights of the children (see s 43);
(b) the delays as to appeal;
(c) whether refusal of the stay renders a successful appeal nugatory;
(d)the hardship to the successful respondent in comparison to the hardship of the applicant;
(a) the grounds of appeal.
In Clement v Clement (1981) FLC 91-013, Nygh J said:
In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it would be appropriate to grant stay of proceedings for at least the short period.
It will be observed that there are some differences in the above statements in that Watson J considered the rights or welfare of the child to be but one matter to be considered, while Nygh J considered that matter to be the paramount consideration. Further, the question must arise as to the status to be given to the interests of the child where relevant, in any application of the Burgundy Royale principles. In relation to all of these issues it could well be argued that the grant or refusal of a stay of any order which comes within the definition of a parenting order in Pt VII of the Family Law Act would itself be a parenting order, and thus in its making the best interests of the child would have to be the paramount consideration by virtue of s.65E of the Family Law Act.
It may well be, however, that the possible conflicts in the authorities and legislative provisions to which we have just referred are more theoretical than real, in that in many cases the result achieved from an application of the paramountcy of the best interests principle, as stated by Nygh J in Clement, would be exactly the same as the result achieved on an application of the Burgundy Royale principle, or of the - not the similar principals enunciated by Watson J in Carlin v Carlin.
Certainly in the present case we consider that the result would be the same whether the Clement or Carlin or Burgundy Royale test is applied, and thus it is unnecessary for us in this case to attempt any further reconciliation of the authorities.”
Recently, the Full Court in Elder (2000) FamCA 1527 delivered on
30 December 2000 refused to stay a final residence order pending an appeal. The Full Court referred to Clement as the relevant authority governing the issue of the grant of the stay pending an appeal in matters relating to children. Thus, I am satisfied that my decision to grant or refuse a stay must ensure that the children's welfare is the paramount consideration.
Applying the principles to the relevant facts
The first factor I must consider is to make a provisional assessment of the mother’s appeal. I agree with the submission made by the father’s counsel that she faces some difficulties in succeeding in her appeal. However, I do not agree that the mother has such small prospects of success that I should necessarily decline the stay. An unusual feature of this case is that the mother appeals orders that she agreed should be made. Any parenting order is one that the Court must be satisfied is in the child's best interests. That is the purport of s.65E. Section 65E applies whether the order is made at the conclusion of a defended hearing or by consent.
In Harris v Caladine (1991) FLC 92-217, the High Court held:
In considering what order if any should be made under s.79, a Court is required under sub-s (4) of that section to take a number of matters into account, including the various financial contributions made by the parties to the marriage. Sub-s (2) provides that a Court shall not make an order under the section unless it is satisfied that in all the circumstances it is just and equitable to do so. The fact that an order is sought by consent does not relieve a Court or a Registrar from compliance with the requirements of the section, but it may render compliance much less demanding, provided that a Court or a Registrar is adequately informed, where the parties are at arms length and are properly represented, little more than consent may be needed to establish that the requirements of the section have been met. See Jenkins v Liversey (1985) AC 424 at pages 437-444.
These principles apply with equal force to a parenting order that is made by consent. In this sense the Court maintains a supervisory role, and could refuse to make orders agreed by all parties if satisfied that the orders did not promote the children's best interests. Indeed, it seems to me that s.65E would almost with certainty require that the Court did withhold its approval. In my opinion the Court need not delve too deeply into the integrity of parenting orders if both parties are apparently adequately represented, and their consent appears on the face to be informed and freely given. Freely given does not mean that a party must be happy about the compromise, but rather, having weighed up the pros and cons of pursuing a different outcome, decides that compromise is appropriate.
It seems hardly necessary to spend time on the advantages to a litigant of legal representation. In Dietrich v The Queen (1992) 177 CLR 292, at 305 Toohey J, speaking of the advantage to an accused of legal representation at trial, said this:
These [advantages of legal representation] are well recognised.
I assume, of course, that representation is competent. …Indeed, the adversary system that prevails in this country assumes the existence of contestants who are more or less evenly matched. Where they are not, the trial Judge can lend assistance, but that can only be limited and may interfere with the true function the trial Judge is required to perform.
Whether the proceedings are criminal or civil, contested or concluded by agreement, the important issue is that they are completed as fairly as possible. The notion that unfairness can only result in a miscarriage of justice remedy after a defended hearing does not find favour with me.
The role of the children’s representative
In children's proceedings, the Court may order that the children be separately represented. The Act is silent upon when it is appropriate to do so, and what role the child's representative appointed pursuant to s.68L should fulfil. Thus, one must look to the decided cases to understand what is expected. That is, expected by the parties, children and the Court. In Re K (1994) FLC 92-461, the Full Court set out now well known guidelines as to the circumstances in which a court may appoint a children's representative. The guidelines do not need restating here. It is sufficient to observe that the intent is that in parenting proceedings where there are significant issues that go to the children's best interests, the Court should seriously consider appointing a representative for the children. This serves two primary purposes. Firstly, ensuring that the Court has all the relevant evidence available when it comes to adjudicate the matter. Secondly, it gives the children a voice in the proceedings.
From the Court's perspective, the appointment of a child's representative is a significant procedural safeguard. In P v P (1995) FLC 92-615, the Full Court set out the role of the separate representative, as follows:
The separate representative ought:
(1)Act in an independent and unfettered way in the best interests of the child;
(2) Act impartially, but if it is thought appropriate, make submissions suggesting the adoption by the Court of a particular course of action, if he or she considers that the adoption of such course is in the best interests of the child;
(3)Inform the Court by proper means of the children's wishes in relation to any matter in the proceedings. In this regard the separate representative is not bound to make submissions on the instructions of a child or otherwise, but is bound to bring the child's expressed wishes to the attention of the Court.
(4)Arrange for the collation of expert evidence, and otherwise ensure that all evidence relevant to the welfare of the child is before the Court;
(5)Test by cross-examination, where appropriate, the evidence of the parties and their witnesses;
(6)Ensure that the views and attitudes brought to bear on the issues before the Court are drawn from the evidence and not from a personal view or opinion of the case;
(7) Minimise the trauma to the child associated with the proceedings;
(8)Facilitate an agreed resolution to the proceedings.
Thus, the appointment of a child's representative facilitates participation by the child, without imposing on the child the burden of decision making. The model, as has developed in virtually all states and territories, is that the child and lawyer have a direct relationship in the sense that they meet and confer about the matter. This is particularly the case for children N’s age. The child is thus given the opportunity to provide input into the litigation via their representative, both as to their wishes and about relevant facts.
Drawing from the decided cases it seems clear that the Court is entitled to expect that prior to a matter coming on for trial, the child's representative will play a vital role as an evidence gatherer and negotiator. Throughout the life of the litigation, the child representative will have set about gathering evidence on matters that concern the child's welfare, evidence that will influence the integrity of the outcome in terms of the child's best interests. It is this latter feature that receives support from proponents of the current model of best interest representation. See, for example the Australia Law Reform Commission’s “Seen and Heard” Report. It is emphasised in the National Training Scheme for Child Representatives conducted by the Family Law Section of the Law Council in conjunction with all Legal Aid Commissions and the Family Court. It is an essential feature in the draft child representation guidelines promoted by the Chief Justice of the Family Court.
Although the Act and case law do not specifically demand it, I have no doubt that those appearing as children representatives in this state and this registry know that the Court and profession expect that a child's representative will have conferred with the children they represent. Both the applicant's counsel and the solicitor who argued the stay application on behalf of the child’s representative agreed that this is so. The solicitor, who appeared on behalf of the child’s representative at this hearing submitted that in spite of this not having occurred, the Court would accept that the child's representative had provided at least adequate representation to N and E. This is because the child’s representative had spoken to Dr L and satisfied herself that his report and opinion would withstand cross-examination.
The wife’s counsel provided a schematic of the areas where cross-examination of the expert was warranted, and if he were retained to conduct the case he would focus. It demonstrated the usual competent standard the Court has become accustomed to enjoy from him. Although not specifically mentioned, it seems to me that the force of Dr L’s opinion may have been lessened if the factual matters upon which he based his opinion were not proved. How could the child’s representative confidently assert that Dr L's opinion would inevitably be maintained without issuing subpoena, without obtaining affidavit evidence from her school and perhaps also E's long day carers. His opinion relied, in part, on his own observations, but also significant factual matters that needed to be proved before me if his opinion was to carry the full weight which the child’s representative submitted it was entitled to have: Makita (Australia) P/L v Sprowles 52 NSWLR 705.
Conclusion
Thus it seems to me that the applicant wife can argue with some substance that to the extent that this Court exercised its discretion to make the parenting orders in reliance on the fact the she and the children were adequately advised and represented, that reliance was wrongly placed. Thus, I am satisfied that the appeal appears to me to raise substantive issues of both fact and law.
I am satisfied that it is not merely a delaying tactic.
The appeal is likely to be heard within about eight to ten weeks. Refusing the stay in circumstances where the children have been handed over will not prima facie render the appeal nugatory. However, it may have distressing consequences for the children. Clearly I must bear in mind the children's welfare when deciding this issue. Until last Monday E has almost always returned to his mother at the end of contact. He has rarely stayed overnight with his father. While this is not the situation with N, other than one period in May when the father had the children while the mother was ill, she went home every night subsequent to the interim orders. That is, home to her mother.
The child’s representative submitted that the Court would avoid unnecessary changes to the residency arrangements for the children. She argued that the stay should be refused, saying in essence that it is desirable that their living arrangements should be disturbed once and not twice. Courts are usually concerned to maintain longstanding residency arrangements, rather than have them altered, only to revert if an appellant succeeds.
This same rationale applies here, complicated by the fact that the children are now in their father's care. The child’s representative submitted that the Court would infer that both N and E believed that they would now live with their father indefinitely, and returning to their mother would be confusing, and for N probably upsetting. There is no evidence about what the children were told about going to their father's home last week. The mother could have been cross-examined on this point, and the father could have given evidence concerning it. This did not happen. Nor is there any evidence that the child's representative has explained the effect of the impugned orders to N.
On appeal the final orders may be maintained or set aside. If set aside it could be at least a further three to four months before a re-hearing on the merits could take place. That is probably optimistic. Assuming the appeal succeeded the Full Court would need to consider whether the children should return to the mother in accordance with the interim orders, or stay with their father. Ordinarily one would anticipate that the interim orders would be given effect to.
I accept Mr Kenny's submission that the children may consider the last week as analogous to the period where they stayed with their father for a week earlier this year. On balance I am satisfied that I should give preference to longstanding rather than short-term residency arrangements.
The hardship to the father if the stay is granted is apparent. He has obtained final residence orders and believed that the litigation was over. He will probably be distressed if the stay is granted. There is the spectre of further costs associated which issue he had put behind him. This is a factor that weighs in his favour.
The hardship to the mother if the stay is refused is substantial, it may also be for the children. If the children remain with the father and the stay is not given effect to, should the mother succeed on appeal she will not have her children for probably a period of about 6 months, in circumstances where she will have been able to persuade a Court that the children are out of her care as a consequence of a miscarriage of justice. When this Court has the opportunity to moderate the potentially harmful consequences of a miscarriage of justice to a party and potentially also to children, I am satisfied that it should intervene as soon as it can.
The father’s counsel forcefully argued that there were strong matters of public policy whereby the Court would emphasise finality and would not likely contemplate ordering a stay of orders that had been entered by consent. I agree with him.
I have found balancing the competing interests in this case very difficult. Nonetheless, I am satisfied that I should, not only in the interests of the wife and children, but also in the interests of justice, stay the orders.
I can order a stay unconditionally, or I can order it with conditions attached to it. My intention is to order that there are conditions that provide for the children to have more extensive contact with their father than the orders that were made on 18 November 2002. I will hear from those who wish to make submissions concerning the precise form of those contact orders before I finalise this aspect of the proceedings.
Implied powers to redress a miscarriage of justice
In ordering the stay I have also contemplated whether the Federal Magistrate's Court has an inherent power to redress a miscarriage of justice, and in my opinion it does. The inherent or implied power of Courts most commonly arises when the power is exercised by a superior Court of record. The Federal Magistrate's Court is by virtue of s.10 of the Federal Magistrates Act1999 a Court established by Chapter 3 of the Constitution. Federal Magistrates are appointed as Justices pursuant to Chapter 3 of the Constitution. The Court is a Court of law and equity. It is a Court of record that exercises power given to it pursuant to the Family Law Act 1975, inter alia.
Section 80 of The Judiciary Act1903 Commonwealth incorporates the common law jurisprudence on implied powers. In R v Mogley, (1992) 28 NSWLR 735, the Court of Appeal when considering the powers of the State Magistrate's Court held:
Where a Court has jurisdiction under a statute and no provision was made in the statute for the making of an order which is necessary to carry the Court's statutory power into effect, the Court, although it does not have an inherent power, has an implied power.
Although those comments relate to a State Magistrate's Court, and in spite of the differences between State Magistrate's Court and the Federal Magistrate's Court, the comments are apposite. R v Mogley is consistent with the NSW Court of Appeal's earlier decision in Tregally v Stewartson, Stubbs and Collette Limited, (1966), 66 SR 335. At 344 Their Honours said:
“The power of each Court over its own process is unlimited. It is the power incident to all Courts, inferior as well as superior. Was it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful consideration.”
Thus I am satisfied the Federal Magistrate's Court has the power, as an incident of its function as a Court of law and equity, to make orders, the effect of which would be to suspend or set aside the final orders if it was satisfied that the orders were obtained as a consequence of or in pursuance of a miscarriage of justice. I have not needed to determine that issue, because at this point of time there is no application for the Court to exercise its implied power to set aside or stay the orders. However, should the mother determine that such an application should be made, it seems to me she has an obligation to proceed with it quickly. The father and children are entitled to have that issue, if it is to be ventilated, decided sooner rather than later.
I intend to include provisions in the stay that will provide that it operates not only in relation to the appeal but also in relation to an application to this Court in its inherent jurisdiction. If the application is not made within seven days that opportunity will be lost to the mother.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate:
Date: 27 August 2003
3
0