In Re F (Hague Convention: Claim for Expenses)
[2007] FamCA 731
•23 July 2007
FAMILY COURT OF AUSTRALIA
| IN RE F (HAGUE CONVENTION: CLAIM FOR EXPENSES) | [2007] FamCA 731 |
| FAMILY LAW - APPEAL – CHILD ABDUCTION – Costs and expenses – Father travelled from the USA in 2006 to facilitate the return of the child who had been wrongfully retained by the mother in Australia since 2003 – Father was involved in several court hearings relating to the return of the child. The Full Court ultimately held that due to the child’s objections, it was inappropriate to continue to order his return – Father made an application that the Central Authority pay his costs and expenses incurred in coming to Australia to collect the child seeking the Central Authority pay non-legal costs and expenses of $33,000 – Held that s 117AA(3) of the Family Law Act1975 (Cth) does not permit an order for expenses to be made against the Central Authority as it was the mother, not the Central Authority, who wrongfully retained the child – Held that the Family Court has no power, including implied or inherent, to award damages – Appeal dismissed – It may still be open to the father to obtain financial compensation by making a claim against the mother under s 117AA(3) or possibly making a claim in tort against the Central Authority in a court of competent jurisdiction in relation to their initial failure to ensure the return of the child – Sylvester v Austria (2003) 37 EHRR 17; [2003] 2 FLR 210 discussed |
| Family Law Act 1975 (Cth) Family Law (Child Abduction Convention) Regulations 1986 (Cth) |
DJL v Central Authority (2000) 201 CLR 226; (2000) FLC 93-015; (2000) 26 Fam LR 1
In the Marriage of Blann (1983) FLC 91-322; (1983) 9 Fam LR 69
In the Marriage of McKay (1984) 59 ALR 117; (1984) FLC 91-573; (1984) 9 Fam LR 850
In the Marriage of Walker and Pinot (1997) 142 FLR 44; (1997) 22 Fam LR 398
R v Bell; Ex Parte Lees (1980) 146 CLR 141; (1980) FLC 90-850; (1986) 6 Fam LR 208
Re D (a child) (intractable contact dispute) [2004] All ER (D) 41 (Apr); [2004] EWHC 727 (Fam); [2004] 1 FLR 1226
Rzetelski and Johnson (1988) FLC 91-945; (1988) 12 Fam LR 304
Smith and Smith (No. 2) (1985) 64 ALR 227; (1985) FLC 91-604; (1985) 10 Fam LR 283
Stack v Coast Securities (No. 9)Pty Ltd (1983) 154 CLR 261
Sylvester v Austria (2003) 37 EHRR 17; [2003] 2 FLR 210
Warby and Warby (2002) FLC 93-091; (2001) 28 Fam LR 443
Westpac Banking Corp v Aldred (1986) FLC 91-753; (1986) 10 Fam LR 1083
| APPELLANT: | A |
| RESPONDENT: | DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES (NSW) |
| FILE NUMBER: | SYF3228 | of | 2004 |
| APPEAL NUMBER: | EA26 | of | 2007 |
| DATE DELIVERED: | 23 July 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Kay and Thackray JJ |
| HEARING DATE: | 25 June 2007 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 February 2007 |
| LOWER COURT MNC: | [2007] FamCA 602 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | IN PERSON |
| COUNSEL FOR THE RESPONDENT: | MS CHRISTIE |
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: Claim for Expenses).
ORDERS
The appeal is dismissed.
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA26 of 2007
File Number: SYF3228 of 2004
| A |
Appellant
And
| DIRECTOR GENERAL, DEPARTMENT OF COMMUNITY SERVICES (NSW) |
Respondent
REASONS FOR JUDGMENT
This is an appeal against an order made by Le Poer Trench J on 19 February 2007 dismissing the appellant’s application that the Director General of the Department of Community Services (New South Wales) as the State Central Authority pay costs and expenses that the appellant father incurred in coming to Australia to collect his son after the child had been wrongfully retained in Australia by the child’s mother.
By his Amended Notice of Appeal the appellant asks the Court to make the following orders:
1.Reimbursement by Respondent(s) of $33,000 in costs/expenses incurred by the appellant-father.
2.Payment by Respondent to appellant-father of all future expenses incurred to secure the child’s return, including costs of all present and future legal representation of the applicant, court and travel costs; roughly estimated to be $100,000.
3.Payment by Respondent(s) of all father’s expenses incurred in returning the child, including all present/future court costs, legal fees, costs of father’s care of child during course of proceedings remaining in the action, and transportation costs related to the eventual return of the child.
4.Payment by Respondent(s) of father-applicant’s living and travel expenses until child returns to the USA.
5.Payment of all costs necessary to restore the appellant/applicant-father to the financial position he or she would have been in had there been no removal or retention, as well as to deter the Commonwealth Central Authority from allowing such conduct from happening in the first place to future applicants under the Hague Convention on the Civil Aspects of International Parental-Child Abduction.
At the hearing before us the appellant sought to amend his claim for expenses from $33,000 to $43,000. As it will become apparent, it is unnecessary for us to deal with that amendment.
BACKGROUND
The appellant is the father of a child F born July 1994. F’s mother was born in Australia and his father was born in the United States of America. F’s parents married in the United States in 1994 and separated in May 1999. F’s mother subsequently remarried and she and her present husband have a child A who was born in 2001.
In May 2003 orders were made in Louisiana, United States granting the parents joint custody of F and designating the mother as “domiciliary parent”. There were extensive orders made for the father and the child to enjoy “parenting time” together.
In early August 2003 the mother, accompanied by her husband and their son A, brought F to Australia. There was some sort of understanding between the parents that the father would not object to F spending up to six weeks in Australia visiting the mother’s parents. The mother stayed on in Australia after that period had expired.
Early in February 2004 the father made an application to the United States Central Authority for assistance under the Hague Convention on the Civil Aspects of International Child Abduction. An application was eventually filed in Australia on 3 June 2004 by the Director General of the Department of Community Services (NSW) as the State Central Authority for New South Wales seeking the return of the child pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (Cth).
Orders were made in the Family Court of Australia in Sydney on 13 August 2004 by Johnston JR requiring the State Central Authority to make such arrangements as were necessary to ensure the return of F forthwith to Louisiana, United States in the company of a person and upon conditions to be determined.
On 24 August 2004 the mother and the State Central Authority consented to orders that provided that the Central Authority was to make such arrangements as were necessary for the return of the child to the United States.
The orders noted:
A.That the mother will be unable to leave Australia until 19 October 2004 although she intends returning to the United States at that time.
B.That the Central Authority is endeavouring to arrange for a relative of the father to accompany the child to the United States soon.
Neither event happened and the child remained in Australia with his mother.
The father did not have the necessary funds to travel to Australia.
In a number of conversations between the Department of Community Services (NSW) and the mother, the mother informed the Department that she was endeavouring to acquire the necessary funds to facilitate the return as ordered.
Eventually the father came to Australia on 5 February 2006 with flights booked to return himself and the child to the United States on 10 February 2006. The child told the Department that he did not want to go with his father.
Some 18 months out of time in February 2006 the mother filed an application seeking to review the orders made by Johnston JR. The State Central Authority did not contest the mother’s application to seek a review out of time and the matter then proceeded as a hearing de novo before Lawrie J on 12 April 2006. In those proceedings the State Central Authority attempted to withdraw entirely and the father was permitted to take over the running of the application.
On 28 April 2006 Lawrie J dismissed the application to set aside the original order.
Early in May 2006 the child was taken into care. On 9 May 2006 the child refused to board a plane to be taken to the United States and the father reluctantly agreed to allow the child to return home that evening with his grandmother.
On 13 May 2006 the child again attended at the airport in Sydney but refused to cooperate when attempts were made to place him on the aeroplane.
The mother’s appeal against the orders made by Lawrie J came on for hearing before the Full Court on 18 July 2006. The Full Court admitted into evidence a report prepared by a psychologist at the direction of the Court concerning the child’s wishes. The Full Court concluded that the evidence was overwhelming that the child objected to being returned to the United States and that in the circumstances it would be inappropriate after almost three years to return the most reluctant twelve year old child in circumstances where the return might require the use of force and where the return would separate the child from his primary care giver.
The Full Court was critical of the State Central Authority’s failure to facilitate the child’s return when the original orders were made. It said that had the Central Authority been much more diligent late in 2004 when it was apparent that the mother was not going to honour her promise to return the child voluntarily to the United States then the issues surrounding the child’s objection would never have arisen. The underlying purposes of the Convention would have been met and the court of the country of habitual residence would have been able to act as the appropriate place for issues concerning the future welfare of the child to be decided.
Since the Full Court delivered its judgment on 28 July 2006 the father has remained in Australia endeavouring to re-establish his relationship with F and achieve F’s return back to the United States. The father remains convinced that the appropriate forum for determining parenting issues relating to F is the Louisiana court in the United States.
Proceedings in the Family Court of Australia at Sydney between the father and the mother for parenting orders have been heard by Le Poer Trench J. At the time of this appeal hearing the trial had concluded and judgment had been reserved. There was an ancillary appeal relating to interlocutory orders made in those proceedings that we have adjourned to August 2007 awaiting the outcome of the substantive hearing.
THE APPELLANT’S APPLICATION
On 23 November 2006 the father filed the application that has been the genesis of this appeal. That application has been described by the trial judge, Le Poer Trench J in his reasons for judgment delivered 19 February 2007 as seeking the following orders:
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.
THE TRIAL JUDGMENT
The trial judge held that as the appellant had not incurred any legal expenses in any of the hearings before Lawrie J, O’Ryan J or himself, his Honour proposed to dismiss the application for legal costs. The trial judge’s treatment of the legal costs does not appear to be the basis of any complaint by the appellant in the proceedings before us.
The trial judge then turned to the appellant’s claim to be reimbursed for expenses to be incurred by him in attending to collect F. The father’s submissions at trial provided the following details as to how the sum sought for reimbursement of expenses was calculated:
Period February 2006 to August 2006
Air fares to Australia and return,
together with cancellation fees $4,000
Lease on hotel room – 7 months @ $600 per month $4,200
Food – 7 months @ $300 per month $2,100
Mobile phone charges – 7 months @ $200 per month $1,400
Money transfer costs – 7 months @ $100 per month $ 700
Computer charges – 7 months @ $80 per month $ 560
Rent of [US] unit – 7 months @ $800 per month $5,600
Insurance on motor car – 7 months @ $100 per month $ 700
Kennel expenses for dog – 7 months @ $200 per month $1,400
Expenses between August 2006 and November 2006
Hotel $2,000
Food $1,800
Mobile phone $ 200
Western Union $ 200
[US] expenses $3,000
TOTAL $29,200
We note here that while the appellant did in fact seek the sum of $29,200 at trial, a proper addition of the figures above shows the accurate total to be $27,860.
The trial judge examined the possible jurisdictional bases for making an order, turning first to s 117AA of the Family Law Act1975 (Cth) (“the Act”) which provides:
Costs in proceedings relating to overseas enforcement and international Conventions
(1) In proceedings under regulations made for the purposes of Part XIIIAA, the court can only make an order as to costs (other than orders as to security for costs):
(a)in favour of a party who has been substantially successful in the proceedings; and
(b)against a person or body who holds or held an office or appointment under those regulations and is a party to the proceedings in that capacity.
Note: For another case where the court can also make an order as to costs, see subsection (3).
(2) However, the order can only be made in respect of a part of the proceedings if, during that part, the party against whom the order is to be made asserted a meaning or operation of this Act or those regulations that the court considers:
(a)is not reasonable given the terms of the Act or regulations; or
(b)is not convenient to give effect to Australia's obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.
(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.
The trial judge in dismissing the appellant’s application said:
12.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.
The appellant asserts that the State Central Authority should be seen as “a party who has wrongfully retained” this child and thus a statutory power to make the order sought clearly exists pursuant to s 117AA(3).
Section 117AA expressly differentiates between “a person or body who holds or held an office or appointment under [regulations made for the purpose of Part XIIIAA] and is a party to the proceedings in that capacity” as in s 117AA(1), and “a party who has wrongfully removed or retained a child” as in s 117AA(3).
The proceedings to which s 117AA refers in this case were the proceedings initially conducted between the State Central Authority and the mother but subsequently conducted between the appellant and the mother. They were proceedings in which it was asserted that the mother had wrongfully retained the child in Australia within the meaning of the Convention on the Civil Aspects of International Child Abduction and the relevant regulations.
The mother admitted the retention was in breach of the rights of custody attributed to the appellant under the law of the state in which the child was habitually resident before the retention, namely Louisiana, United States. It was asserted and subsequently admitted that it was the mother who had wrongfully retained the child.
Whilst the earlier Full Court had been critical of the role that the State Central Authority had played in failing to ensure the proper execution of the return orders that had been made in August 2004, we do not accept that the language of s 117AA(3) permits an order for expenses to be made against the State Central Authority.
Such a conclusion does not necessarily mean that the father is without a remedy in his quest to obtain financial compensation for expenses that he has incurred by reason of the admitted wrongful retention. He clearly has the remedy of making a claim as against the mother. He may also have a claim in tort in a court of competent jurisdiction against the State Central Authority.
Does the appellant have a claim against the Central Authority?
In Sylvester v Austria (2003) 37 EHRR 17; [2003] 2 FLR 210 the European Court of Human Rights awarded a father of a young child who had been abducted to Austria EUR20,000 for non-pecuniary damage and EUR22,682.61 for costs and expenses incurred after the Austrian authorities failed to ensure the prompt return of the child who had been taken to Austria without the father’s consent.
The child had been taken in October 1995. In December 1995 a return order was made and in May 1996 an application seeking enforcement of the order was brought after unsuccessful appeals had been filed against the return order. After several further court proceedings the application for enforcement of the return order was dismissed in April 1997 and an appeal against that order was ultimately dismissed in May 1997 with the Appellate Court expressing the view that the situation had changed fundamentally since the issuing of the original return order. The father then brought an application before the European Court of Human Rights asserting that the behaviour of the Republic of Austria in failing to promptly enforce the return order was in breach of Article 8 of the Council of Europe’s Convention for the Protection of Human Rights and Fundamental Freedoms which provides:
(1)Everyone has the right to respect for his private and family life…
(2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The European Court of Human Rights held that the positive obligations that Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms laid on the contracting States in the circumstances of reuniting a parent with his/her child must be interpreted in the light of Article 7 of the Hague Convention on the Civil Aspects of International Child Abduction which contains a list of measures states may take to secure the prompt return of children. (For an extensive discussion of the importance of the European Court of Human Rights decisions in English domestic contact cases see the judgment of Munby J in Re D (a child) (intractable contact dispute) [2004] All ER (D) 41 (Apr); [2004] EWHC 727 (Fam); [2004] 1 FLR 1226 from paragraph 25 to 34).
Australia is not a party to the Convention for the Protection of Human Rights and Fundamental Freedoms and the Convention does not form part of Australian domestic law. However the matters underlying the emphasis by the European Court of Human Rights of the importance of States ensuring the protection of the rights of parents and children to enjoy each other’s company appear to be equally applicable to Australia.
Whether an action lies in Australia in negligence or otherwise for the failure of the State Central Authority to comply with its obligations under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) is a matter that we do not have to determine in this appeal. What is ultimately at issue in this appeal is, if any such action lies, whether the Family Court of Australia has the jurisdiction necessary to entertain the action.
Does the Family Court of Australia have an inherent power to award damages?
The appellant asserts that the Court has an inherent power to correct what he perceives as the injustice that has occurred as a result of the inaction of the State Central Authority after the first return order was made. In his written submissions he says:
…Without reimbursing the father his costs and expenses for travelling to Australia and attending to this matter (which came to a nullity before the Full Court from no fault or inaction of the father), the purpose of the Convention would have become a mockery, no, travesty of justice.
The trial judge explored the prospect of the Court having an inherent power that would enable it to make an order against the State Central Authority for expenses sought by the father. His Honour commenced by citing a passage from Halsbury’s Laws of Australia, Volume 13 at [205-260] which reads as follows:
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.
The trial judge then made reference to a further passage in the same paragraph that said:
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.
The trial judge made reference to an earlier Full Court discussion saying:
19.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 [sic] agreed, where His Honour adopted the definition of what was termed “the nature of inherent jurisdiction” by Menzies J in R 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, requires no authorising provision. Courts of unlimited jurisdiction have inherent jurisdiction.
20.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.
21.In Re Z the Full Court pointed out at page 6 of the High Court decision in Taylor Gibbs 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 [not] [sic] 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.
22.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.
23.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.
The trial judge then cited a series of authorities set out in Halsbury’s Laws of Australia, Volume 13 at [205-260] that were said to be examples of where the Family Court had held that it has inherent jurisdiction:
24.The Family Court has held it has inherent jurisdiction in the following ways:
(1)To determine whether it has jurisdiction in any case (R v Ross-Jones; Ex parte 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 Dowdeswell (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 (R v Bell; Ex parte 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 Wyk (1980) 50 FLR 404);
(10)Make an Anton Piller order (In the Marriage of Talbot (1994) 129 ALR 711).
The trial judge concluded that it would be outside the scope of any inherent jurisdiction that the Court may have to consider what is in essence a damages claim. His Honour said:
25.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 [sic] 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”.
Accordingly, the trial judge dismissed the appellant’s application.
THE APPEAL
The appellant’s Notice of Appeal simply asserts the following as the grounds of appeal:
1. Errors of law;
2. Errors of principle;
3. Errors of fact; and
4. Substantial injustice.
It does not provide any insight into the basis upon which the appellant challenges the conclusion of the trial judge that the Court lacks jurisdiction to deal with the claim against the State Central Authority.
The appellant’s written submissions do not throw any light upon the nature of the argument that he seeks to advance to persuade us that the trial judge was in error in concluding the Court lacked jurisdiction.
The written submissions of counsel for the State Central Authority whilst commendably brief, also offer little insight into the resolution of what the trial judge described as “complicated issues of law”. The submissions from the State Central Authority read as follows:
14.That the Family Court has inherent power is not in question. However, his Honour’s conclusion that an application for payment of the appellant’s living, travel and sundry expenses (whether characterised as expenses or as damages) fell outside the Court’s inherent powers was correct.
The existence of an inherent or implied power in the Family Court to make orders beyond the powers expressly granted by the Act is beyond doubt. Gibbs J in R v Bell; Ex Parte Lees (1980) 146 CLR 141; (1980) FLC 90-850; (1980) 6 Fam LR 208 held that the Court had an inherent power to order a solicitor to give information concerning the whereabouts of a child.
Justice Maxwell in In the Marriage of Blann (1983) FLC 91-322 at 78,185; (1983) 9 Fam LR 69 at 76 said:
Clearly, the Family Court of Australia has inherent jurisdiction to prevent abuse of its process.
Justice Nygh in Westpac Banking Corp v Aldred (1986) FLC 91-753; (1986) 10 Fam LR 1083 held that the Court had inherent jurisdiction to exercise control over proceedings instituted in it so as to dismiss proceedings that were frivolous or vexatious.
The Full Court in In the Marriage of Walker and Pinot (1997) 142 FLR 44; (1997) 22 Fam LR 398 said at paragraph 67:
It is well established that courts have inherent jurisdiction to control their own processes and to prevent abuse of their processes.
In DJL v Central Authority (2000) 201 CLR 226; (2000) FLC 93-015; (2000) 26 Fam LR 1 the High Court examined whether the Full Court of the Family Court of Australia had power to re-open proceedings and receive further evidence to give re-consideration to a matter that had already been completed. Six judges of the High Court (Kirby J dissenting) held that the Full Court of the Family Court did not have the power to re-open its final orders after their entry.
In their joint judgment, Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (citations omitted):
24.Section 21(1) of the Family Law Act provides that a court “to be known as the [Family Court] is created” by that statute. Original jurisdiction is conferred on the Family Court by s 31 and appellate jurisdiction by s 93A(1). Jurisdiction is also conferred by other statutes, including the Child Support Act (ss 101, 102, 105), the Bankruptcy Act 1966 (Cth) (s 35A), and the Trade Practices Act 1974 (Cth) (s 86B).
25.The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. 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.
26.In R v Forbes; Ex parte Bevan, Menzies J, with whose judgment Barwick CJ, Walsh and Stephen JJ agreed, distinguished in the manner identified above “inherent jurisdiction” or “inherent power” and jurisdiction or power derived by implication from statutory provisions conferring a particular jurisdiction. The distinction between these sources of power is not always made explicit but is fundamental.
27.There is applicable to the Family Court the observations made by Starke J in R v Bevan; Ex parte Elias and Gordon:
To the Constitution and the laws made under the Constitution it owes its existence and all its powers, and whatever jurisdiction is not found there either expressly or by necessary implication does not exist.
The circumstance that a federal court exercises the judicial power of the Commonwealth is significant. The exercise of that authority has, as incidents arising by necessary implication from Ch III, the power to punish for contempt and the power to preserve the subject matter of a pending application for special leave to appeal. However, the powers conferred upon the Family Court by statute may be exercised only within the range of jurisdiction conferred upon it by laws made by the Parliament under s 77 of the Constitution.
In a separate judgment Callinan J said:
183.The Family Court of Australia is a superior court of record. It has power in relation to matters, in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of such kinds, as the court considers appropriate. … [A]s the majority point out in their reasons, as a statutory federal court the Family Court does not have recourse to the undefined powers in the inherent jurisdiction enjoyed by the three common law courts of Westminster.
In Rzetelski and Johnson (1988) FLC 91-945; (1988) 12 Fam LR 304 the Full Court (Ellis, Murray and Frederico JJ) said at 76,831; 308:
It is not necessary for us in this case to examine the extent of the inherent power of the court for that power clearly does not extend to an action for damages in respect of the breach of an order of the court because such an action will not make the original orders effective in accordance with the substance and intention of the original order.
In In the Marriage of McKay (1984) 59 ALR 117 at 123; (1984) FLC 91-573 at 79,633; (1984) 9 Fam LR 850 at 862 – 863 Strauss J said:
The Family Court has no general jurisdiction to award damages, which is the most usual remedy at law. Its power to deal with financial matters is by reference to principles which may be quite different from those applied in a “court of law and equity”. It has no general equitable jurisdiction. There is no general power to make declarations or to grant equitable remedies.
We recognise that the judgment of Strauss J in McKay (supra) has been the subject of some adverse comment (see Smith and Smith (No. 2) (1985) 64 ALR 227; (1985) FLC 91-604; (1985) 10 Fam LR 283 per Evatt CJ and Warby and Warby (2002) FLC 93-091; (2001) 28 Fam LR 443). Those adverse comments, however, relate only to issues dealing with the existence of an accrued jurisdiction in the Family Court of Australia and the powers available to the Court in the exercise of any accrued jurisdiction.
The Full Court has noted in Warby (supra at [86]) that questions concerning the scope of the remedies available to the Family Court of Australia in the exercise of its accrued jurisdiction are “unresolved”. Since the matter was not argued before us, all we need say here is that there could be no suggestion of the Court exercising accrued jurisdiction in dealing with the appellant’s application against the Central Authority, since his claim is clearly severable from the other proceedings currently pending before the Court: Stack v Coast Securities (No. 9)Pty Ltd (1983) 154 CLR 261 at 290.
Accordingly absent any express power that would enable the Family Court of Australia to make an order that the State Central Authority contribute towards the expenses incurred by the appellant arising out of the wrongful retention of the child in Australia, we see no error by the trial judge in dismissing the application.
The formal order of this Court is that the appeal is dismissed.
I certify that the preceding Sixty Two (62) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court
Associate:
Date: 23 July 2007
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