In Re F (Hague Convention: Child's Objections) (Costs)

[2007] FamCA 602

FAMILY COURT OF AUSTRALIA

IN RE F (HAGUE CONVENTION: CHILD'S OBJECTIONS) (COSTS) [2007] FamCA 602

FAMILY LAW - COSTS - Inherent jurisdiction

Family Law Act 1975 (Cth) - s 117, s 117AA, s 117AA(3)(b)
Family Law (Child Abduction Convention) Regulations 1986

Halsbury’s Law of England
Taylor v. Taylor (1979) 143 CLR 1
R B Ross-Jones; exparte Green (1984) 156 CLR 105
Re Z (1996) 20 Fam LR 651
Re v. Forbes; exparte Bevan (1972) 127 CLR 1
Parsons v. Martin (1984) 58 ALR 395
Jackson v. Sterling Industries Limited (1987) 162 CLR 612
In the Marriage of Tansell (1977) 31 FLR 87
Pfitzner v. Pfitzner (1988) 62 ALJR 323
In the marriage of Collins (1985) 9 Fam LR 1123 at page 1130
In the Marriage of Dowdesell (1983) 8 Fam LR 868 at page 869
Re: Bell; exparte Lees (1980) 146 CLR 141
In the Marriage of Molier and Van Wyck (1980) 50 FLR 404
In the Marriage of Talbot (1994) 129 ALR 711

APPLICANT: A

RESPONDENT: Director-General of the Department of Community Services as Central Authority

FILE NUMBER: SYF 3228 of 2004

DATE DELIVERED: 19 February 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Justice Le Poer Trench

HEARING DATE: 10 January 2007

REPRESENTATION

APPLICANT: The father in person

COUNSEL FOR THE RESPONDENT: Ms Christie

Orders

1. The applicant’s application filed 23 November 2006 be dismissed.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3228  of 2004

A

Applicant

And

Director-General of the Department of Community Services as Central Authority 

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the Court is an application filed by the father on 23 November 2006.  By that application he seeks orders against the Central Authority, in this case the Director-General of the Department of Community Services as follows:

   (1)That the Central Authority pay the applicant’s legal costs in relation to a hearing before Justice Lawrie which gave rise to a judgment on 28 April 2006;

   (2)That the Central Authority pay the applicant’s legal costs in relation to a hearing before Justice O’Ryan which gave rise to a judgment on 8 May 2006;

   (3)That the Central Authority pay the applicant’s legal costs in relation to a hearing which took place before me on or about 10 September 2006;

   (4)That the Central Authority pay the applicant’s expenses incurred as a result of his coming to Australia for the purpose of collecting his son [F] and returning to America pursuant to orders which had been made by this Court for the return of [F] to the United States of America.

2. The applicant also seeks leave to pursue his applications out of time should that be required.

3. The applicant’s submissions are contained in writing and raised complicated issues of law.  Inter alia, he relies upon the inherent power of the Court to make the orders sought by him.

4. The Director-General of the Department of Community Services submissions are contained in writing.

5. The applicant’s application for payment of legal costs can be dealt with in short compass.  There is no evidence before the Court of the applicant incurring any legal costs in respect of the hearings referred to in his application.  In the hearing which was conducted before me, the applicant appeared for himself and there was no legal representative for him.  In that case there is no evidence that the applicant incurred any legal cost associated with that hearing.

6. In the written submissions of the Director-General it is asserted that in the proceedings before Justice Lawrie and in the proceedings before Justice O’Ryan the applicant was legally represented by a lawyer who was either employed by the Legal Aid Commission of New South Wales or alternatively funded by the Legal Aid Commission of New South Wales.  The case being run by the applicant before me is not one of his being required as a condition of a grant of legal aid to pursue an order for costs to reimburse the Legal Aid Commission of NSW.

7. In his submissions in reply filed by the applicant in Court on 10 January 2007 he effectively acknowledges at page 6 of the submissions that he was represented in the earlier proceedings as asserted and that he has no legal cost to claim.  He proposes to amend his application to include future costs.  He said the Hague matter was not completed.  He said he still had matters before the Full Court relating to the Hague matters.

8. Inferentially I must see the submission above referred to as an application for interim costs however, given that no leave has been given by the Court to amend his application, it would be unfair to the Director-General to attempt to deal with that application at this time.  In addition, and in fairness to the applicant, there is no evidence to support the application.  I would therefore dismiss the applicant’s application for legal costs.

Claim for expenses of $29,200

1. The applicant makes a claim for expenses incurred by him as a result of coming to Australia to collect his son following the orders of the Court requiring the return of F to the United States of America.  Prior to making the trip the applicant proposed to travel to Australia and after a few days leave Australia taking his son with him back to the United States of America.  The claim is made by the applicant against the Central Authority and/or in this case the Director-General of the Department of Community Services.  The claim is for $29,200.

2. The only reference in the Act or the Family Law (Child Abduction) Convention Regulations 1986, to the payment of expenses is contained in s 117AA(3)(b). Section 117AA is in the following terms:

   [s 117AA]  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.

   (3)  In proceedings under regulations made for the purposes of section 111B, the court can also make an order as to costs that is:

   (a)against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access (within the meaning of the Convention referred to in that section) to a child; and

   (b)in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child.

3. As can be seen sub-paragraph (3)(b) is restricted in its operation in so far as an order in the nature described in that sub-section can only be made against the party who wrongfully removed or retained the subject child.  The section would therefore appear to have no application to the Central Authority or in this case the Director-General of the Department of Community Services.

4. It should be made clear at this stage that the $29,200 is said by the applicant to be made up of travel costs and accommodation and living costs. None of the expenses claimed would appear to be an expense which could be the subject of an order of the Court under s 117 of the Family Law Act. Further given that the Act provides specifically for costs in proceedings relating to overseas enforcement and international conventions in s 117AA and given that s 117AA(3)(b) is the only sub-section which appears to give legislative power for the payment of “necessary expenses incurred by the person who made the application” it would seem that there is no legislative provision to enable a claim by the applicant against the Central Authority for his expenses as articulated in his application presently under consideration. Such a finding is in keeping with the submission of the Director-General of the Department of Community Services.

5. If the claim, therefore, has no legislative provision which would clearly enable the Court to consider the application and make such an order, is it in reality a damages claim arising out of an act of negligence or omission said to exist in relation to the Director-General of the Department of Community Services or is it something capable of being categorised in a different way?  In either case the only capacity for the Court to determine the case would be if the Court concluded that there was power to do so.

6. In his submissions the applicant said that during the course of the hearing of the appeal which gave rise to the Full Court judgment dated 28 July 2006 a member of the Full Court Bench named by the applicant as Justice Kay told the legal representative of the Director-General that the conduct of the Director-General in relation to the case was such that an order for the payment of the applicant’s expenses could and/or should be made.

7. The applicant was unable to provide a transcript of the proceedings before the Full Court and I otherwise do not have a copy of such a transcript to see what, if anything, fell from his Honour Mr Justice Kay.  I have read the judgment of the Full Court and the role of the Central Authority is specifically referred to from paragraphs 74 onwards.  Nowhere in those paragraphs does the Full Court say that the Central Authority should be required to pay any expenses of the applicant or indeed could be required to pay any expenses of the applicant.

8. One possible head of power could be the courts’ inherent jurisdiction.

The inherent power of the Court

1. In Halsbury’s Law of Australia (vol 13) the following appears:

   “The Family Court to the extent that there is no indication in the Family Law Act 1975 to displace it, has an inherent jurisdiction to regulate the proceedings before it and to avoid injustice.”

2. The High Court decision of Taylor v. Taylor(1979) 143 CLR 1 is specifically referred to. Reference is also made to the decision of R V Ross-Jones;
   Ex parte Green (1984) 156 CLR 185 at page 200. There Halsbury says the following was discussed:

   “The inherent jurisdiction (of the Family Court) cannot go beyond protecting the Court’s function as a court constituted with the limited jurisdiction afforded by the Act.”[1]

   [1]  Lexis Nexis Butterworths, Halsburys Laws of Australia, Vol 13.

3. In the Full Court decision of Re Z (1996) 20 Fam LR 651 their Honours referred to the reasons of Gibbs J. (as he then was) in Taylor v. Taylor(1979) 143 CLR 1 with whom Steven J. agreed, where His Honour adopted the definition of what was termed “the nature of inherent jurisdiction” by Menzies J. in Re v. Forbes; Ex parte Bevan (1972) 127 CLR 1 at page 7.  There the following was said:

   “‘Inherent jurisdiction’ is the power which a Court has simply because it is a court of a particular description.  Thus the Courts of Common Law without the aid of any authorising provision had inherent jurisdiction to prevent an abuse of their process and to punish for contempt.  Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdictions; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction” which, as the name indicates, no authorising provision.  Courts of unlimited jurisdiction have inherent jurisdiction.”

4. Menzies J. in the case being referred to by Gibbs J. “was referring to the Industrial Court which did not have unlimited jurisdiction.”  He said in relation to that Court:

   “Such inherent jurisdiction as the Court may have, could not go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the Act.”

5. In Re Z the Full Court pointed out at page 6 of the High Court decision in TaylorGibbs J. said as follows:

   “It follows from these statements that any inherent power of the Family Court to set aside it’s own orders will be conferred, expressly or by implication, by the provisions of the Family Law Act, although the Act may contain provisions which negative the existence of any inherent power, and although the Court would not have any inherent power except as might be necessary to do it justice within the limits which that Act confers on it.”

6. Again in Re Z the Full Court referred to the decision of the Full Court of the Federal Court of Australia in Parsons v. Martin(1984) 58 ALR 395 at page 400 where the following was said:

   “In our opinion a Court exercising jurisdiction conferred by statute has powers expressly or by implication conferred by the legislation which governs it.  This is a matter of statutory construction.  We are also of the opinion that it has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the power so conferred.”

7. The Full Court also in Re Z referred to the High Court decision of Jackson v. Sterling Industries Limited(1987) 162 CLR 612 at page 623 and 624 where the High Court endorsed the following passage from Bowen CJ.:

   “In relation to a statutory court such as the Federal Court it is wise to avoid the use of the words ‘inherent jurisdiction’.  Nevertheless a statutory court which is expressly given certain jurisdiction and powers must exercise that jurisdiction and those powers.  In doing so it must be taken to be given by implication whatever jurisdiction or powers may be necessary for the exercise of those expressly conferred.  The implied power for example to prevent abuse of process is similar to, if not identical, with inherent power.”.

8. The Family Court has held it has inherent jurisdiction in the following ways:

   (1)To determine whether it has jurisdiction in any case (RB Ross-Jones: exparte Green (1984) 156 CLR 185 at 193);

   (2)To prevent abuses of the Court’s processes (In the Marriage of Tansell (1977) 31 FLR 87);

   (3)To adjourn proceedings in appropriate circumstances (Pfitzner v. Pfitzner (1988) 62 ALJR 323 at page 323);

   (4)To finally determine disputes between the solicitor and the client on an issue of costs (In the marriage of Collins(1985) 9 Fam LR 1123 at page 1130);

   (5)Make orders for costs where appropriate (In the Marriage of Dowdesell(1983) 8 Fam LR 868 at page 869);

   (6)Set aside judgments obtained without service or notice to a party (Taylor v. Taylor (1979) 143 CLR 1);

   (7)Set matters right when there has been a failure to observe an essential requirement of natural justice (Taylor v. Taylor (1979) 143 CLR 1);

   (8)Order a person who can give information as to the place of concealment of a child to attend before the Court and give information (Re: Bell; exparte Lees (1980) 146 CLR 141 at 148 and 149);

   (9)Modify the machinery provisions of an order where the effect of the order is not clear, provided that this does not effect the substantive property rights of the parties (In the Marriage of Molier and Van Wyck(1980) 50 FLR 404);

   (10)Make an anton pillar order (In the Marriage of Talbot (1994) 129 ALR 711);

   (The above referred to instances of the exercise of inherent jurisdiction are taken from Halsbury’s Laws of Australia Vol 13 at [205-260])

Conclusion

1. I conclude that it would be outside the scope of any inherent jurisdiction the Court may have to consider what is in essence a damages claim.  I conclude that it would “go beyond protecting the Courts function as a court” to hear the application.  It goes beyond drawing on powers which “are incidental and necessary to the exercise of the jurisdiction or the power conferred by the Act”.

2. I conclude therefore that the application must fail for lack of jurisdiction.

3. I made an order in this case on the 19 February 2007 and gave reasons which I have now published.

4. When the orders were engrossed for 19 February 2007 they were grouped with two other orders which related to the Family Law Act proceedings between the parties in respect of parenting orders sought by each of the mother and the father (the applicant referred to in this judgment). That was an error and the order should have been published on its own and clearly indicate that it related to the proceedings brought by the Director-General of the Department of Community Services under the Family Law (Child Abduction Convention) Regulations 1986. I now cause the orders to issue in their proper form.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date:  30 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as In Re F (Hague Convention: Child's Objections) (Costs)