In Re F (Hague Convention: Child's Objections) (Application to re-open)

[2007] FamCA 352

FAMILY COURT OF AUSTRALIA

IN RE F (HAGUE CONVENTION: CHILD’S OBJECTIONS) (APPLICATION TO RE-OPEN) [2007] FamCA 352

FAMILY LAW - APPLICATION – CHILD ABDUCTION – HAGUE CONVENTION - APPLICATION TO RE-OPEN – Whether Full Court has power to re-open proceedings once orders perfected – DJL v Central Authority (2000) 201 CLR 226 followed – No basis in law to grant application sought – Application dismissed.

Family Law Act1975 (Cth), s 94(1)
Family Law Rules 2004, rr 17.01, 17.02, 22.52, 24.10
Family Law Rules 1984, O 31, O 2, r 4A
Family Law (Child Abduction Convention) Regulations 1986
Judiciary Act1903 (Cth), s 35A

Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300
Computer Edge Pty Ltd v Apple Computer Inc and Anor (1984) 54 ALR 767
De L v Director General NSW Department of Community Services (No 2) (1997) 190 CLR 207

DJL v Central Authority (2000) 201 CLR 266

F & F and G [1998] FamCA 196
Harris v Caladine (1991) 172 CLR 84
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Noetel v Quealey (2005) FLC 93-230
Smith v NSW Bar Association (No 2) (1992) 176 CLR 256
Wentworth v Woollahra Municipal Council (1981) 149 CLR 672

APPELLANT: A

1ST RESPONDENT: W

2ND RESPONDENT: Director General, Department of Community Services

INDEPENDENT CHILDREN’S LAWYER: Fiona Reid

FILE NUMBER: SYF 3228 of 2004

APPEAL NUMBER: EA 44 of 2006

DATE DELIVERED: 19 April 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Bryant CJ, Kay and Boland JJ

HEARING DATE: By way of written submissions filed 11 October 2006, 12 October 2006 and 26 October 2006

REPRESENTATION

ADVOCATE FOR THE APPELLANT: A in person

SOLICITOR FOR THE 1ST RESPONDENT: No submissions received

SOLICITOR FOR THE 2ND RESPONDENT: Ms Pereira (Department of Community Services)

INDEPENDENT CHILDREN’S LAWYER: Ms Reid

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as In Re F (Hague Convention: Child’s Objections) (Application to re-open).

Orders

1. The father’s application in a case filed 12 October 2006 is dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 44 of 2006
File Number: SYF 3228 of 2004

A

Appellant

And

W

1^st Respondent

And

Director General, Department of Community Services 

2^nd Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This application arises subsequent to proceedings brought by the mother against the Director General, Department of Community Services in which she sought to set aside orders made by Lawrie J that required the return of a child, F born in 1994 to the United States of America pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986. The father was named as second respondent to the appeal.

2. The mother’s appeal was heard and determined and orders of the Full Court were made on 28 July 2006.  Those orders allowed the appeal, and set aside orders of the trial Judge.  The orders further provided “[t]hat the application for the return of the child [F] born [in] 1994 and filed 3 June 2004 be dismissed”.  The father now seeks to re-open the Full Court hearing. 

3. The application now before us was originally sought to be filed by the father as an annexure to his affidavit sworn on 31 August 2006, and rejected by the Appeal Registrar.   

4. What was essentially an oral application to review the Registrar’s decision to reject the application for filing came before Boland J on 6 October 2006.  On that day orders were made providing for the father to file and serve his application on the mother and the Director General, Department of Community Services by 9 October 2006.

5. On 12 October 2006 Boland J made orders permitting the father to file his application, together with his affidavit in support, as well as an affidavit filed in Court that day, and made orders for the application to be dealt with by the Full Court by way of written submissions.

6. Written submissions were filed by the Independent Children’s Lawyer on 11 October 2006, by the father on 12 October 2006 (being submissions annexed to his affidavit filed that day), and by the Director General, Department of Community Services on behalf of the Central Authority on 26 October 2006. Although provision was made for the mother to file written submissions by 3 November 2006 no submissions were received from her.

7. The essential question raised in this application is whether the Full Court has the power to re-open proceedings after its orders are perfected.  A corollary of that question, is whether or not a Registrar can reject documents presented for filing of such an application.

8. These are our reasons in respect of the father’s application to re-open.

Orders sought in the father’s application

1. In his application filed in Court on 12 October 2006 the father sought orders which are identical in terms to those in his draft application dated 31 August 2006.   The orders sought are as follows: 

   1.Set Aside Judgment and Orders of Full Court (28 July 2006) -- Bryant CJ, Kay & Boland JJ

   2.Set Aside certain subsequent related orders of Justice Boland, J (30 August 2006).

   3.Remand to primary court for correction or revision of Order of 13 August 2004.

   4.Reinstatement of Interim Parenting Order of 09 February 2006 of JR Johnston with revision as to location.

History of proceedings

1. The relevant factual background to this matter, which whilst extensive, is not controversial is set out in the reasons for judgment of the Full Court at paragraphs 3 to 12.

2. Subsequent to the judgment of the Full Court, the father applied for a stay pending an application for special leave to the High Court of Australia.  A limited stay on conditions was granted by Boland J on 9 August 2006 but so far as we are aware no application for special leave has been filed by or on behalf of the father, although we note the father annexed to his affidavit a proposed special leave application.

3. As we have set out above, the father seeks an order made by Boland J on 30 August 2006 be set aside.  On 30 August 2006 Boland J made two orders. The first order was made at the request of the State Central Authority who held the relevant passports that those passports be held by the Registrar, Family Court of Australia.  We are unaware of whether or not the mother has sought or obtained the release of the passports.  The second order was as follows:

   IN CHAMBERS IT IS ORDERED:

   1.The application of the mother filed pursuant to the Family Law ("the Hague Abduction Proceedings") on 16 May 2006 (being the mother's review of Order 4 of Judicial Registrar Loughnan made 12 May 2006 requiring the mother to pay funds into Court equal to the costs of the father's airfare incurred travelling to Australia for payment out to the father) be listed by the Court Services Manager for hearing before a Judge in the Sydney Registry as soon as practical.

   2.The Court Services Manager is requested to notify the parties of the time and date of the hearing as soon as possible. 

   IT IS NOTED that the Court was not aware this application had not been determined when addressing the father's application filed 14 August 2006.   

4. The mother’s application was heard and determined by Le Poer Trench J on 18 September 2006, and the father has filed an appeal against his Honour’s orders.

The father’s affidavit in support of his application

1. In his affidavit sworn 30 August 2006 the father deposed:

   1.…The Application is grounded on the applicant’s contention that there has been a “misapprehension as to the facts or the law” by the Full Court…

   2.Notwithstanding the father’s submission that the Full Court hearing was insufficient and “over-hasty,” the Full Court judgment was based on a belief by the Full Court the “delays” in returning the child rendered the primary court judgment “nugatory” -- however, the primary court judgment itself made “prompt” return impossible because it ordered the child’s return “forthwith….in the company of another person.”  Neither the primary court nor the Full Court realized [sic] that the father did not have a passport, therefore enforcement of the judgment was impossible.

   3.…In fact, the father had no passport and therefore - - as the mother refused to return the child - - the Order itself made the “speedy return” purpose of the Convention impossible to carry out.  The father notified Central Authority that he had an airline ticket ready and for DoCS to simply place the child on a plane to L.A. which the father would meet upon arrival; DoCS, however, insisted that the Court order required another person to accompany the child - - which made a “prompt” return impossible and as such the spirit of the Convention was not honored [sic] by the Australian Government…

   4.The Judgment of the Full Court must be reviewed on other levels as well - - the very least of which is that the interest of justice requires a review.  There can be no fault, neglect or default attribuited [sic] to the father in this matter - - it was the original Order requiring another person to escort the child, which caused the delay in returning the child to proper jurisdiction.  The Central Authority failed in its “special duty” to inform the primary court that the father had no passport.

   …

   10.As such, there should also have been cross-examination of Ms. [C] (the largly [sic] self educated “psychologist” child interviewer) as to her finding of the child’s “age” and “maturity” - - which was apposite [sic] both Judge Lawrie (a long-tenured Family Court judge) and the previous child interviewer-psychologist, Dr. [B].  Overruling a Family Court judge’s discretion based on the flimsy “trial by report” is a miscarriage of justice.  To quote Kirby, J.:

   “Prompt listing for hearing is one thing; an over-hasty and insufficient hearing is another. That point is made in the concluding terms of reg 15(2) set out above.  Further, there may be cases where, consistent with these precepts, some, even if restricted, cross-examination upon affidavits is appropriate to assist the court to reach a decision whether to refuse an order for the return of the child.”

Submissions of the parties

1. As we have already noted, prior to the orders providing for the filing of written submissions, the Independent Children’s Lawyer had prepared extensive written submissions to assist the Court, those submissions being filed on 11 October 2006, that is prior to the father’s submissions.  Accordingly, it is only the State Central Authority’s submissions which directly respond to the father’s submissions, although they adopt the submissions made by the Independent Children’s Lawyer.

2. At the commencement of his submissions, after noting that he was a self represented litigant, the father set out a number of bases for his application, noting that these were not in any particular order.

   ·    the father asserted notwithstanding he acknowledged in DJL v Central Authority (2000) 201 CLR 266 the High Court held the Full Court of the Family Court of Australia had “no inherent or statutory authority to re-open the perfected order in that case” it had “left open the questions of this Court’s equity jurisdiction and its implied and discretionary powers to re-open or revisit decrees”;

   ·    that conversely if there was no power to re-open a final decree then the orders made in February 2006 were a nullity because the Court “set aside its final, perfected return order, to allow the mother’s 18-month untimely review”. Therefore all orders post February 2006 are nullities;

   ·    the case falls under the “slip-rule” and the Full Court should correct its order to provide for the return of F to the United States, and make an “interim parenting order under Convention Regulation 24 until the child is age 18”;

   ·    that the Full Court order is not final and perfected because

   (i)there is a costs issue pending;

   (ii)“there remains an issue over the father’s rights of access to his child”;

   ·    the case has been effectively “re-opened” and stayed pursuant to the inherent powers of the Court; and

   ·    the case falls within the category of “exceptional cases” noted in DJL v Central Authority (supra).

3. In the submissions filed by the solicitor for the State Central Authority (as had the Independent Children’s Lawyer) noted the distinction in the High Court judgment in DJL v Central Authority (supra) between a court of common law and a court created by statute.  The solicitor said:

   The High Court stated that “A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and [t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”.  The High Court noted that it was inaccurate to use the term “inherent jurisdiction” when what was being contemplated was “incidental and necessary power of a statutory court” (supra page 241,25)

   The limited exceptions to the general rule of statutory courts lacking the inherent power to re-open perfected orders were cited by the High Court as being “few and rarely found in practice.  On the current authorities they are confined (statute apart) to the correction of formal errors and the like, fraud, or failure to give a party a hearing” (supra page 291,189)

   The father was present at the hearing on 18 July 2006 and was represented by counsel. The father therefore had the opportunity to put forward all material relevant to his case. The father’s remedy against the Full Court judgment and orders dated 28 July 2006 is under s 95 of the Family Law Act 1975, namely an application for special leave.

Relevant statutory provisions, rules and case law

1. At the commencement of our examination of the law relevant to the father’s application we think it is appropriate to set out some of the relevant provisions of the Family Law Act1975 (Cth) (“the Act”) and the Family Law Rules 2004 (“the rules”). As well, we propose to set out the principles enunciated in DJL v Central Authority (supra) and we will refer to the decision of the High Court in De Lv Director General NSW Department of Community Services (No 2) (1997) 190 CLR 207.

2. Section 94(1) of the Act provides that an appeal lies to the Full Court of the Family Court from a decree of the Family Court from a Judge exercising jurisdiction under the Act or under any other law. A decree is defined in s 4 of the Act as follows:

   “decree” means decree, judgment or order and includes:

   (a)an order dismissing an application; or

   (b)a refusal to make a decree or order.

3. In the rules in force prior to the commencement of the Family Law Rules 2004, “decree” was also referred to in Order 31. The present rule, r 17.01 uses the terminology “order”. However the dictionary to the rules defines order to include “a decree”. Rule 17.01 and r 17.02 provide as follows:

   17.01 When an order is made

   (1)      An order is made:

   (a)in a hearing or trial — when it is pronounced in court by the judicial officer; or

   (b)in chambers — when the judicial officer signs the order (see paragraph 11.16 (3) (b)).

   (2)An order takes effect on the date when it is made, unless otherwise stated.

   NoteAfter an order is made, it is issued by the court. The issued order embodies the terms of the order in a document that is signed and sealed.

   (3)      A party is entitled to receive:

   (a)      a sealed copy of an order;

   (b)if the order is rectified by the court — a sealed copy of the rectified order; and

   (c)a copy of any published reasons for judgment.

   (4)Subrule (3) does not apply to a procedural order.

   17.02 Errors in orders

   (1)If a party claims that there is an error in an order issued by the court, the party must give written notice of the error to the Registry Manager and all parties.

   (2)A Registrar may rectify an error that appears obvious on reading the order.

   Example

   A kind of amendment that a Registrar may make under subrule (2) is the correction of a typographical error .

   (3)      If the Registrar:

   (a)      is in doubt about whether there is an error in an order; or

   (b)believes that an error in an order has, or may have, arisen from an accidental slip or omission;

   the Registrar may take action under subrule (4).

   (4)If subrule (1) or (3) applies, the party or Registrar may, after giving reasonable notice to each party, refer the order to the judicial officer who made it.

   NoteIf the judicial officer who made the order is unavailable, it may be referred to another judicial officer (see rule 1.13).

   (5)A judicial officer may, after giving each party a reasonable opportunity to be heard, rectify a suspected error referred to the judicial officer.

   NoteAn amendment of an order may be made under this rule only if it is an error obvious when reading the order. Any other amendment must be remedied by appeal or consent.  

4. Rule 17.02 refers to errors in orders and the circumstances and manner in which such error can be corrected (“the slip rule provision”).

5. The question of when a decree is final and an order perfected is subject of decided authority (see Smith v NSW Bar Association (No 2) (1992) 176 CLR 256 at 265; Autodesk Inc v Dyason (No 2) (1992) 176 CLR 300 and Wentworth v Woollahra Municipal Council (1981) 149 CLR 672 at 684).

6. In De Lv Director General NSW Department of Community Services (No 2) (supra) at 215 Toohey, Gaudron, McHugh, Gummow and Kirby JJ referred to the limited circumstances in which the High Court itself as the final court of appeal could re-open proceedings after a final order has been made. Their Honours noted the heavy burden cast upon an applicant to re-open and the competing requirements of finality of litigation, compared to ensuring an accident or oversight, which if not remedied would cause injustice, is corrected. In that case the Court found it was appropriate to deal with an application to re-open because the Court’s orders “although publicly announced, were not perfected”.

7. The High Court further examined the matters of principle surrounding

   
   

   re-opening of perfected orders in the Family Court (an intermediate appellate Court created by statute) in DJL v Central Authority (supra). The majority in the Full Court had expressed the view that the power to re-open existed but should be used sparingly. Kay J was of the view that the Full Court lacked the necessary power. Having set out the statutory basis for the establishment of the Court, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said at 241:

   A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. It would be inaccurate to use the term “inherent jurisdiction” here and the term should be avoided as an identification of the incidental and necessary power of a statutory court.

   and went on to contrast the position of this Court with a common law court.

8. Their Honours concluded at 248:

   The Family Law Act in its text and structure provides no express conferral of the power sought to be exercised in the present case. Nor is there an inherent power by reason of the description in the statute creating the court of it as “a superior court of record”. Further, no such power is derived by necessary implication from the statutory structure, in particular from the exercise of the appellate jurisdiction conferred by Pt X of the Family Law Act.  

Discussion

1. We deal firstly with the father’s submission that this Court has an equitable jurisdiction to re-open or re-visit its decrees.  We note in his submissions the father relied on:

   ·statements of principle in the High Court judgment in DJL v Central Authority (supra) referable to common law courts which have no application to this Court’s decrees;

   ·The findings of the second Full Court in DJL v Central Authority (supra).  Those findings were not upheld by the majority in the High Court; and

   ·Kirby J’s discussion of common law authorities.

   None of those submissions correctly state the law as explained by the High Court in DJL v Central Authority (supra) and which we have set out above.

2. The father’s assertion that the Court had no power to overturn the earlier orders made by the Judicial Registrar as those orders were final misconceives the status of those orders. The Judicial Registrar was exercising a delegated power which power was only valid if subject to a review by a Chapter III Judge (see Harris v Caladine (1991) 172 CLR 84). We find no merit in this submission.

3. We turn to consider the father’s assertion that the orders are amenable to correction under the slip rule (r 17.02).  The circumstances in which the slip rule may be invoked are extensively reviewed in Noetel v Quealey (2005) FLC 93-230. The father points to no matter or amendment to the Full Court’s orders which would be amenable to a slip rule application, rather the order he seeks (for a return of F to the United States) is an order completely inconsistent with the reasons of the Full Court of 28 July 2006.

4. The father asserted that the orders of the Full Court of 28 July 2006 were not final orders, first because they did not expressly discharge the interlocutory orders made during the proceedings, and secondly because there was at the time the father filed his submissions, a costs application which had not been determined. 

5. The orders made by the Full Court in dismissing the application brought under the Convention by implication overtook and discharged the interlocutory orders of the Court, including the orders for access made pursuant to the Convention.  Those orders were perfected when sealed orders signed by the Registrar issued.  Whilst it may have been arguable that the rights of the parties were not finally determined until the determination of the issue of costs (see judgment of Gibbs CJ in Computer Edge Pty Ltd v Apple Computer Inc and Anor (1984) 54 ALR 767) that argument lacks efficacy as the costs judgment has been delivered and final perfected orders in respect of that judgment have issued. It follows we reject the father’s contention that there is an extant application before the Court under the Convention.

6. We have some difficulty in understanding the basis of the father’s argument that the order is not “final” because “this ‘exceptional case’ case has already been effectively re-opened (and stayed), pursuant to the inherent powers of this Court (see, Stay Order, Justice Boland) [original emphasis]”.  The limited stay, which was made on conditions, has expired.  The limited and conditional stay granted in this Court was based on the principles set out in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681. The stay did not affect the final nature of the orders, but was granted to preserve the subject matter of the litigation (the application under the Convention) on the basis that the father intended to prosecute an application for special leave to the High Court under s 35A of the Judiciary Act1903 (Cth).

Conclusions

1. It is apparent from our discussion above, we find no basis in law to grant the father’s application to re-open.  Accordingly his application will be dismissed.  However, the father raised during the course of his application, the action of the Appeal Registrar in refusing to accept his application for filing and for completeness we deal with that issue below.

Registrar’s refusal to permit the husband to file the application

1. As we noted at the commencement of our reasons, when the father sought to file his application and affidavit in support on 31 August 2006 the Appeal Registrar refused to accept the documents for filing.

2. Chapter 22 of the rules deals specifically with matters relating to appeals.  Rule 22.52 provides that a person may apply for a review of an Appeal Registrar’s order relating to the conduct of an appeal. 

3. Rule 24.10 of the rules, which deals with the power of a Registrar to reject documents, is in the following terms:

   24.10 Refusal to accept document for filing

   (1)A Registrar may refuse to accept a document for filing if the document:

   (a)is not in the proper form in accordance with these Rules;

   (b)is not executed in the way required by these Rules;

   (c)does not otherwise comply with a requirement of these Rules;

   (d)is tendered for filing after the time specified in these Rules or an order for filing the document;

   (e)on its face, appears to the Registrar to be an abuse of process, frivolous, scandalous or vexatious; or

   (f)is tendered for filing in connection with a current case in a registry that is not the filing registry (see rules 22.10 and 24.09).

   (2)A person may apply for review of a Registrar’s decision under subrule (1) by filing an Application in a Case (Form 2) without notice.

4. The former rule, Order 2 Rule 4A, which was as follows:

   (1)      A Registrar may refuse to accept a document for filing, if:

   (a) it is not in proper form in accordance with these Rules; or

   (b) it is not executed in the way required by these Rules; or

   (c) the document, on its face, appears to the Registrar to be an abuse of process or frivolous, scandalous or vexatious; or

   (d) the document is filed in connection with pending proceedings in another court or another registry, and the registry is not the appropriate registry.

   (2) If a Registrar refuses to accept a document for filing, the person who sought to file the document may apply to the court for review of the Registrar's decision.

   (3) A Registrar must accept an application for review of a decision not to accept a document for filing.

   (4) An application under subrule (2) must be made ex parte, in the first instance.

   was considered by Burton J in F & F and G [1998] FamCA 196 when determining a review of a Registrar’s decision refusing to accept for filing submissions in respect of an application for leave to appeal out of time. His Honour said, quoting the rule:

   It is put to me that Order 2, Rule 4A provides the grounds upon which the Registrar may refuse to accept a document, however, I do not consider that those grounds in Order 2, Rule 4A are exclusive of the grounds upon which a Registrar can refuse to accept documents. It is not in mandatory form, it is in this form, Order 2, 4A:

   “A Registrar may refuse to accept a document for filing if -”

   and then the various grounds are set out.  I do not consider that they are the only grounds on which a Registrar may refuse to receive a document for filing.  A specific power must always overrule a general power and in this case I find that the specific power granted to an Appeal Judge is such that the Appeal Judge is the only one who may vary it or extend the time for the doing of an action contained in the order.

5. It appears to us that his Honour’s decision turned on the specific power exercised by a Judge of the Appeal Division who had made the order providing for the date by which submissions were to be filed, and non compliance with that order entitled the Registrar to reject the submissions for filing.

6. We note that r 24.10(1) is discretionary in its terms, thus permitting a Registrar in the exercise of his or her discretion to reject or accept a document in the circumstances set out in (a) to (f) inclusive. We accept as correct the reasoning of Burton J in the circumstances of the case before him.

7. In this case it appears the Appeal Registrar rejected the father’s application as appearing on its face to be an abuse of process, however we have not been referred to any order made by the Appeal Registrar rejecting the filing of the application. It appears to us that the Appeal Registrar could have rejected the application in the exercise of her discretion under r 24.10(f). The father would then have had a right to review her decision under r 22.52.

8. Our discussion is in some respects academic as Boland J permitted the father to file his application in Court on 12 October 2006 there being no order preventing him so doing, or any application to review such an order. Accordingly we are satisfied no prejudice has been caused to the father.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate: 

Date: 19 April 2007