Laing v Central Authority

[1999] FamCA 100

[1999] FamCA 100

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA 39 of 1996
AT MELBOURNE  File No SY 3981 of 1995
BETWEEN:

DEBORAH JOY LAING
Appellant Wife

- and -

THE CENTRAL AUTHORITY
Respondent

REASONS FOR JUDGMENT OF CHIEF JUSTICE NICHOLSON

CORAM:  NICHOLSON CJ, FINN, KAY, MOORE,
  and MAY JJ

DATE OF HEARING:  27 and 28 August, 14 September 1998
DATE OF JUDGMENT:                  9 February 1999

APPEARANCES:  

Dr Griffith, one of Her Majesty’s Counsel, and Ms Eastman of Counsel, instructed by Bruce A Swane & Co., 89 Cambrai Ave, Engadine NSW 2233, appeared on behalf of the Appellant Wife.

Mr Basten, one of Her Majesty’s Counsel, and Mr Anderson of Counsel, instructed by Crown Solicitors Office, GPO Box 25, Sydney NSW 2001, appeared on behalf of the Respondent Central Authority.

Name of Appeal  Laing v The Central Authority
Appeal Number  EA 39 of 1996 from SY 3981 of 1995
Date of Appeal
Judgment in Issue                 10 October 1996 (Baker, Lindenmayer and Smithers JJ)
Date of Appeal Hearing       
Before Present Full Court:    27, 28 August and 14 September 1998

Decision Delivered:              9 February 1999

Coram  Nicholson CJ, Finn, Kay, Moore and May JJ

Catchwords: Family Law - Appeals - Powers and Discretion of Full Court - Jurisdiction - Inherent jurisdiction to re-open appeal - Exercise of discretion – section 21 Family Law Act.

Family Law - Child Abduction - Hague Convention - Family Law (Child Abduction Convention) Regulations 1986 and 1995 - Whether correct or superseded regulations relied upon by trial Judge and Full Court - Interpretation of the Regulations – whether previous Full Court authorities correct.

Constitutional Law - validity of superseded regulations - whether superseded regulations violate implied limitation on laws providing for the expulsion from Australia of Australian citizens residing in Australia

By application on Form 42A the wife sought to re-open the appeal determined by a differently constituted Full Court on 10 October 1996 which had dismissed her appeal against orders made by O’Ryan J at first instance on 20 February 1996. O'Ryan J ordered the return of a child of the marriage pursuant to the Hague Convention. The wife's Form 42A sought that both the Full Court order and the order of O’Ryan J be set aside and that the matter be remitted for re-hearing before a single Judge. The factual background in this case up to the point of appeal is summarised in the headnote to the report of the Full Court’s decision at (1996) FLC 92-709.

Following the previous Full Court’s decision, the wife and child went into hiding until they were located on 9 January 1998. The wife then applied to the High Court for an extension of time in which to seek special leave to appeal. That application was dismissed on 7 August 1998.  The wife then made the Form 42A application before the present Full Court.  The application raised for decision whether the Full Court had power to set aside a perfected order made by another Full Court. 

Central to her application were submissions that the trial Judge and Full Court had erroneously applied newly proclaimed regulations implementing the Convention because in DeL v. Director- General, New South Wales Department of Community Services & Anor [1996] 187 CLR 640, the High Court determined that the applicable Family Law (Child Abduction Convention) Regulations to be applied in a Convention matter were the regulations operative at the time of making the application [1986 SR No. 85]. The prior Full Court’s decision had been handed down on the same day as DeL.  Neither the trial Judge nor the Full Court had the benefit of the High Court majority’s findings as to the change in Regulations.

The wife submitted to the present Full Court that the prior Full Court in this case fell into the same error as the Full Court in DeL in applying the subsequent rather than prior regulations.  The wife submitted that there were material differences between the two sets of regulations in that the old regulations speak of return the child to the applicant whereas the new regulations refer to the return of the child to the country in which he or she was habitually resident.

It was further contended that the 1986 regulations which should have been applied were invalid because they did not give effect to the Convention because the Convention requires the child to be returned to the contracting state not the applicant.

From this footing, the wife urged the Full Court to overrule the Full Court’s decisions in Gsponer v Director General, Department of Community Services, Victoria (1989) FLC 92-001 and Murray v Director, Family Services, ACT (1993) FLC 92-416 which had characterised the Central Authority as the applicant in proceedings under the Regulations.

It was also submitted on behalf of the wife, that the regulations were invalid "in the application to the appellant and to [the child], as Australian citizens, by reference to an implied limitation of Constitutional power of the Commonwealth to pass laws providing for the expulsion from Australia of the Australian citizen residing in Australia.”

Held: (by a majority): Application dismissed

1. Power to set aside orders.

Per Nicholson CJ and Moore J,  May J agreeing generally.

A Full Court has the power to set aside a perfected order made by a differently constituted Full Court. There is no binding authority to the effect that the Full Court lacks power. Although on one view the decision as to power is one that should be made by the High Court and not this Court,  a different view is that it is the responsibility of this Court to correctly characterise the state of the law and determine, until otherwise guided by the High Court, the extent of this Court’s powers. Other intermediate appellate courts have assumed or accepted but not actually exercised such power. The unwillingness of those courts to reopen completed proceedings is referable to the nature of the particular cases in question.  In any event, those cases did not concern children as the subject matter, a distinction of importance highlighted by the High Court in CDJ v VAJ(1998) FLC 92-828.

Per Finn J

The Court’s power to re-open completed proceedings may be assumed but need not be decided having regard to the facts of the present case.

Per Kay J contra

The Court does not have the jurisdiction to re-open completed proceedings: Bailey v Marinoff (1971) 125 CLR 529 and Gamser v Nominal Defendant (1977) 136 CLR 145 applied. Absent a clear statutory power, or an established exception such as fraud or a denial of natural justice, an intermediate appellate court cannot reopen proceedings which have been completed and duly entered into its records.

1. The validity of the 1986 Regulations

Per curiam

There was no substance in the arguments asserting invalidity of the Regulations on the basis of an implied Constitutional protection of the right to live in Australia.

Per Nicholson CJ and Moore J

The inclusion of the words “to the applicant” in the 1986 Regulations fundamentally failed to give effect to the Convention and gave rise to invalidity for relevant purposes.

The “applicant” as defined by reg 2 of the 1986 Regulations “means a person who made an application referred to in regulation 11, 13 or 24 as the case requires;”.  Regulation 13 obliges the Commonwealth Central Authority to take action when it receives a proper application in respect of a child removed to Australia from a Convention country.  Regulation 15 of the 1986 Regulations provides for the “responsible Central Authority” to apply for, inter alia, “(d) an order for the return of the child to the applicant.”  In contrast, the Preamble to the Convention refers to “ensuring the prompt return of children to the State of their habitual residence” and the articles of the Convention, and in particular Article 8, merely speak in terms of “return of the child”.

Further, when one looks to subreg 16(3) of the 1986 Regulations which concerns exceptions to the Convention obligation to return, it is apparent that the 1986 Regulations draw a distinction in respect of these bases.  The “grave risk” exception in para (b) speaks in terms of return of the child “to the applicant”, whereas other paragraphs of subreg 16(3) merely speak of the child’s “return”.  The corresponding Convention articles 12 and 13 speak of “return” simpliciter for all exceptions.

These features of the 1986 regulations cannot be overlooked in order to find them valid within the specific power provided by s111B. The “blue pencil” test cannot be applied to the 1986 Regulations. To delete the words “to the applicant” would change the meaning of the 1986 Regulations in a way that would offend Harrington v Lowe (1996) FLC 92-668.

Per Finn J

It may be assumed without deciding, that the 1986 Regulations are invalid and that they cannot be saved by any severance technique.

Per Kay J

Any challenge to the validity of the former regulations based on the inclusion in them of the words “to the applicant” after the words “return of the child” must fail.  The regulations need to be read in light of the purpose for which they were promulgated, namely to give effect to Australia’s obligations under the Hague Convention.  Their constitutional validity was confirmed by the High Court in De L and by the Full Court in McCfall and State Central Authority; Attorney-General (Cth) (Intervener) (1995) FLC 92,551;18 Fam LR 307 (the High Court refusing special leave to appeal that decision).

Section 111B of the Family Law Act states that the regulations will be valid in so far as they are “necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention”. When the Regulations are read in context, the phrase “return the child to the applicant” means no more than to return the child to an appropriate jurisdiction.  Alternatively, the offending words “to the applicant” can be severed without radically changing the nature of the regulations: Harrington v Lowe (1996) FLC 92,668; 20 Fam LR 145

Per May J

The validity of the former regulations was not argued before the trial Judge or the previous Full Court.  The fact that the regulations have already been held to be valid, is enough to justify a refusal to reopen on that ground.

1. The correctness of Gsponer v Director General, Department of Community Services, Victoria (1989) FLC 92-001 and Murray v Director, Family Services, ACT (1993) FLC 92-416.

Per Nicholson CJ, Kay, Moore, and May JJ, Finn J expressing no view

These Full Court decisions which held that the Central Authority is the “applicant” were wrongly decided. When the regulations speak of making orders for the child’s “return to the applicant” they do not speak of the child being returned to the requesting Central Authority.

1. Discretion to re-open the appeal

Per Finn J, May J agreeing

The considerations referred to as relevant in De L v Director General, New South Wales Department of Community Services and anor (1997) FLC 92-744 ("De L No. 2") to the exercise of that discretionary power must also be applicable to the exercise of the same or similar discretionary power by an intermediate Court of Appeal, such as the Full Court. The majority there stressed the need for there to be no neglect or default on the part of the applicant for a re-opening and for the applicant to have done all that he or she might have done to raise the point (sought to be argued on the re-opening) when “it was timely and appropriate to do so”.

Although it is of course only speculation, it would seem likely that had an application for special leave been made by the applicant within the prescribed time or even indeed an application to the Full Court to re-open, the defects in relation to the regulations now sought to be relied upon by her, may well have been exposed at that time.  But by going into hiding the applicant denied herself that opportunity. 

Even if the Central Authority and its legal advisers bear the greater share of responsibility for the error made by the trial Judge and the Full Court in this case, some responsibility must also lie with the applicant’s then legal advisers. 

Discussion of the principle of the finality of litigation and the application of the principle where children are concerned, particularly in Hague Convention matters.

Per Kay J, May J agreeing

The facts of the present case would not warrant the re-opening of the completed proceedings. The trial Judge and the previous Full Court made reference to the wrong set of regulations and interpretations of the Regulations in Gsponer v Director General, Department of Community Services, Victoria (1989) FLC 92-001 and Murray v Director Family Services, ACT (1993) FLC 92-416 however, there was no injustice caused by consideration of the wrong regulations and the former regulations were valid or were capable of being read down to ensure their validity. Any challenge to these matters should have been remedied by a prompt application to the Full Court before its orders were perfected or an application for special leave to appeal made within time.

With hindsight, the Central Authority should have at least ensured that the mother's legal advisers were aware of the existence of the decision in DeL v. Director- General, New South Wales Department of Community Services & Anor [1996] 187 CLR 640, as soon as it came to hand.

There is nothing to suggest that the result might have been any different if the Court had applied the correct regulations.  There is nothing to suggest that somehow the application of the incorrect interpretation of the regulations made in Gsponer and in Murray in any way affected the outcome.

Both the trial Judge and previous Full Court were clearly conscious that an order for the return of this child to Georgia would mean, at least temporarily, a return of the child into the father’s physical possession because of the operation of the orders of the Superior Court in Georgia.  They were equally both conscious of the proposition that the judicial authorities of Georgia would appropriately make orders to advance the welfare of the child.  Whether those orders meant that the child stayed with the mother who had removed her from America or stayed with the father from whose society she had been withdrawn would be a matter for the Court in the appropriate forum.

Per Nicholson CJ and Moore J

The discretion to re-open should be exercised.  The distinguishing facts that favourably affected the exercise of discretion were:

• that the trial Judge and the previous Full Court had proceeded upon a wrong interpretation of the law and had applied the wrong regulations;

• that these errors may have had an effect on the outcome of those proceedings;

• that it was of crucial significance that the subject matter of the application was a child and that the issue of default by the applicant assumed less importance in those circumstances;

• that there had also been default by the Central Authority;

• that the effect of the order would be to separate the child from a sibling;

• that at least portion of the delay that had ensued was not the fault of the mother.

Reportable

Introduction

1. The application before the Court presents a range of significant issues and unusual circumstances.  A specially constituted bench of five judges has been assembled to hear it.  Before turning to identify the issues for resolution, it is convenient to first indicate how the matter comes before this Court.

1. The statutory basis of these proceedings is s111B of the Family Law Act 1975. Subsection 111B(1) is in the following terms:-

“(1) The regulations may make such provision as is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.”

1. I shall return to detailed consideration of the Regulations in due course.  For present purposes it should be noted that the Regulations were first promulgated as Statutory Rule 85 of 1986 (“the 1986 Regulations”).  New Regulations in the form of Statutory Rule 296 of 1995 (“the 1995 Regulations”) came into operation on 1 November 1995.  According to the majority judgment of the High Court in in De L v Director-General, NSW Department of Community Services and Anor (1996) FLC 92-706, delivered subsequently to the decision of the Full Court in this case, where a Hague Convention application had been brought prior to the repeal of the 1986 Regulations, they continue to apply to such an application despite their repeal. In the present case, the 1986 Regulations were thus the relevant regulations that should have been applied.

1. The Hague Convention on the Civil Aspects of International Child Abduction (“the Convention)” came into force between Australia and the United States of America on 1 July 1988.

1. The case arises because the relevant application was made while the 1986 regulations were in force, in respect of a child “J” born 9 November 1993.

1. Without informing the father, the mother brought J to Australia on 12 January 1995 from the State of Georgia in the United States of America. The mother was pregnant when she brought J to Australia and gave birth to a boy S in Sydney on 22 September 1995.  There has been no application under the Convention in respect of the child S by the father, nor could there have been. The father has remained in the United States of America since the time of J’s removal and has made no application for residence or contact with either child in the Australian courts. 

1. On 19 August 1998, Knibbs JR made orders granting interim residence of S and interim sole responsibility for the day to day care, welfare and development of S to the mother.

1. The application for the return of J was the subject of proceedings in the Family Court of Australia at both first instance and in the Full Court.   On 20 February 1996, the trial Judge, O’Ryan J, held that J should be returned and made orders in the following terms:-

“1.       That upon the Central Authority being satisfied that the father has given undertakings to the Superior Court, Gwinnet County, Georgia that he will pay to the Central Authority sufficient moneys to enable the wife and the child J, born on 9 November 1993 to travel by air from Sydney to Atlanta, Georgia or paid to the Central Authority sufficient moneys to pay the cost of such air travel then the Central Authority shall, as soon as reasonably practicable on or after 15 March 1996 cause the child to be returned to the United States in the company of the wife. 

2.        That liberty is reserved to the Director-General of the Department of Community Services to apply to a single judge of this court for further directions for the implementation of Order 1.”

1. The mother appealed from that decision to the Full Court and on 8 October 1996, Baker, Lindenmayer and Smithers JJ ordered that the appeal be dismissed [(1996) FLC 92-709].

1. The mother has also attempted to bring the matter before the High Court by way of an application for special leave to appeal.  Her application was brought in August 1998, well outside the time limits for such an application, because she went into hiding with the child for fourteen months following the dismissal by the Full Court of her appeal. 

1. It was thus necessary for the mother to first apply for an extension of time in which to seek special leave.  Both that application and an application to adjourn the application for an extension of time were dismissed by Gleeson CJ and McHugh J in the High Court of Australia on 7 August 1998.

1. In the normal course of litigation, the High Court’s refusal would have left no further avenue to challenge the decisions below. However on 17 August 1998, another application was made by the mother. She sought an order pursuant to s21 of the Family Law Act 1975 in the inherent jurisdiction of the Court that the Full Court proceedings be re-opened and that: –

“(a)      the order of the Full Court made the 10th October 1996; 

and

(b)the order of Justice O’Ryan made at first instance the 20th February 1996

be set aside and that the matter be remitted for re-hearing before a single judge.”

1. Her application relied on the following grounds:-

· “…manifest error arising from the application by each of the courts of the Family Law (Child Abduction Convention) Regulations which came into force on 1 November 1997 (sic) after the application made Central Authority on 28 June 1995, rather than the applicable, now repealed, regulations, which should have been applied by reason of the decision of the High Court of Australia in DE L v Director General, Department of Community Services (NSW) (1996) 187 CLR 640 delivered the same day as the decision of the Full Court.

·   …that the above orders made by the Court should be regarded as vitiated by reason of the different relevant inquiry mandated by the applicable regulations from the inquiry and fact made by the above courts by reference to the inapplicable regulations.

·   …that by reason of the application of the non-applicable regulations, the appellant was shut out from making further relevant and material submissions as to why no order could and should be made in the matter reference to the applicable regulations and, in particular, from putting arguments that:

·   (a)   the property (sic) construction of the applicable regulations and their application to the circumstances of her case;

·   (b)   the order made was insupportable by reference to the terms of the applicable regulations, and

· (c) the applicable regulations were invalid by reference to the regulation making power under s111B of the Family Law Act

·   …that the applicable regulations were in any event beyond constitutional power in their application to the child, as an Australian citizen.”

1. On 11 September 1998, notice was given that leave of the court would be sought on 14 September 1998 to amend the application.  The mother’s application was ultimately treated as though the following paragraphs formed part of the application:-

   “Further and alternatively that the order of Justice O’Ryan made on 20 February 1996 be declared spent and that the matter be remitted for further hearing before a single judge.

   Further that an order be made pursuant to s68L of the Family Law Act 1975 that the child, [“J”], born 9 November 1993 be separately represented.”

1. That application first came on for mention before me in Melbourne on 20 August 1998.  Dr. Griffith QC appeared in person on behalf of the mother and Mr Anderson of Counsel appeared by telephone link on behalf of the Department of Community Services NSW as the Central Authority with responsibility for the matter (“the Central Authority”). 

1. The Central Authority took objection to the threshold issue of the existence of a power to re-open the Full Court proceedings.  I referred that issue and the application generally to a Full Court for hearing on 27 August 1998.  The Central Authority gave an undertaking not to implement the orders for the return of the child until such hearing.

1. The definition of “Full Court” in sub-s 4(1) relevantly provides that a Full Court comprises 3 or more Judges of the Family Court sitting together where a majority of those Judges are members of the Appeal Division.   Subsection 21B(1) empowers the Chief Justice to “make arrangements as to the Judge or Judges who is or are to constitute the Court, or the Full Court, in particular matters or classes of matters.”

1. In the circumstances of the case, I determined that a bench of five Judges should hear the matter.  The factors which led to this decision were:-

·    the important legal questions raised by the case;

·    the fact that the original appeal court was not readily available; and

·    the fact that Dr. Griffith foreshadowed argument that two previous Full Court authorities had been wrongly decided.

1. The solicitors for the mother gave notice to the Commonwealth and State and Territory Attorneys-General under s78B of the Judiciary Act 1903 that the present case may involve a matter arising under the Constitution or involving its intepretation. None elected to intervene.

1. The Court sat at the Melbourne Registry on 27 and 28 August 1998 and on 14 September 1998.  Judgment was reserved.  The Central Authority extended its undertaking in respect of not taking steps to return the child until this Court determined the mother’s application.

1. I have had the benefit of reading the reasons for judgment in draft form prepared by Kay J.  It will be convenient in the course of my reasons to refer to portions of his Honour’s judgment where I adopt what his Honour has said.  There are, however, aspects of the case circumstances, the submissions and the law which, with respect, I view differently.

Background

1. Under the headings of “Background”, “Subsequent events” and “The High Court refuses to extend time to seek special leave to appeal”, Kay J has provided a description of these aspects of the case and I adopt his Honour’s account.

Approach to the Application

1. At the hearing, as a matter of convenience and with the agreement of the parties, we considered the questions of jurisdiction and power to reopen the matter, as well as discretionary considerations in the event that such jurisdiction and power existed. As will be seen at a later stage of this judgment, the particular facts of the matter are, as a matter of law, integral to the issue of reopening. 

1. I turn first to the substantive issues.

The Validity of the Regulations.

1. Although Mr Basten did not concede this point, I consider it clear that both the trial Judge and the Full Court applied the 1995 Regulations rather than the 1986 Regulations.  By accident, the correct Regulations, the 1986 Regulations, were quoted on one occasion by the trial Judge but it is obvious that he was otherwise referring to the 1995 Regulations.

a)        Submissions

1. The nub of the submission for the mother was that the 1986 Regulations were invalid and could not be saved. Dr Griffith’s argument emphasised that the regulations had only one source of power, the regulation-making power of s111B of the Family Law Act and that the power conferred by s111B only provided for regulations to give effect to the Convention. He argued that the 1986 Regulations failed to give such effect in a material way because they required the Court to consider making an order for the return of the child to the applicant.  It was Dr. Griffith’s submission that the Convention does not authorise the return of the child to the applicant and thus the Regulations are invalid.  Alternatively, he said that if the Convention does envisage the return of the child to the applicant it is not confined to such a return and the Regulations therefore still do not give effect to the Convention which, he said, clearly envisages the return of the child either to the country of habitual residence or to the applicant, depending upon the circumstances and nature of the application.

1. In further support of this argument, he also referred to the fact that the 1986 Regulations had been substantially amended by Statutory Rule 296 of 1995.  The 1995 Regulations no longer refer to the return of the child to the applicant but now make specific reference to “return of the child to the country in which he or she habitually resided immediately before his or her removal or retention” (para 14(1)(a) concerning applications and reg 15 concerning orders which refers to “an application under regulation 14” ).  In reg 16, concerning an “order for the return of a child”, reference is made to “return” simpliciter  and, significantly, in the case of the “grave risk” exception contained in para 16(3)(b), “return of the child to the country in which he or she habitually resided immediately before his or her removal or retention”.  This alternative argument may also suggest that the current 1995 Regulations are also invalid in that they similarly do not give effect to the Convention, because they do not also envisage the return of a child to the applicant parent. However, it is unnecessary to decide this point in this case.

1. To properly appreciate this argument as to validity, it is necessary to understand that Dr Griffith also argued that the prior Full Court decisions of Gsponerv Director General, Dept of Community Services, Victoria (1989) FLC 92-001 and Murray v Director, Family Services, ACT (1993) FLC 92-416 were wrong insofar as differently constituted Full Courts held that return of the child to the “applicant” means return of the child to the Central Authority of the jurisdiction which transmits the application.

1. The following passage from Gsponer at 77,159-60, to which the trial Judge in this case referred, is significant:-

“…the grave risk which Reg 16(3)(b) refers to is the risk arising from “the child’s return to the applicant”. The proceeding before the trial judge proceeded upon the assumption that “the applicant” in this case was the father and indeed that is reproduced in Order 1, where his Honour ordered the return of the child to “the custody of the husband in Switzerland”. Regulation 2, to which we have referred, makes it clear that “applicant” means the person who has made the relevant application under Reg 13. In this case that was the Federal Office of Justice Switzerland, or its appropriate officer. Senior counsel for the wife, when he commenced his argument, briefly acknowledged this was so, although he submitted that it had no relevance to the submissions he was making.

Nevertheless it is an important matter both in this case and generally. Orders under the Convention are in reality directed to the return of the child to the other country, and this would be so as a matter of practical reality even if the “applicant” under Reg 13 is the other parent. This is made clear from the preamble to the Convention which speaks of the “prompt return (of the child) to the State of their habitual residence”.  Once the child has been so returned no doubt the appropriate court in that country will make whatever orders are then thought to be suitable for the future custody and general welfare of that child, including any interim orders.

So understood, Reg 16(3)(b) has a narrow interpretation. It is confined to the “grave risk” of harm to the child arising from his or her return to a country which Australia has entered into this Convention with. There is no reason why this court should not assume that once the child is so returned, the courts in that country are not appropriately equipped to make suitable arrangements for the child’s welfare. Indeed the entry by Australia into this Convention with the other countries may justify the assumption that the Australian Government is satisfied to that effect.”

1. The impugned passage in Murray’s case (at 80,259) is as follows:-

“As the Full Court pointed out in Gsponer’s case, supra, it must be remembered that the ‘‘applicant” for the purposes of the Regulations is not the husband, but the New Zealand Department of Justice and the children are proposed to be returned to it and not to the husband. Their disposition in New Zealand will be a matter for the New Zealand courts if they are returned to that country, and if the wife’s allegations are accepted it would appear unlikely that they would be returned to the husband.”

1. While not conceding that Gsponer and Murray were wrongly decided, Mr. Basten did not press the Court to uphold the meaning ascribed by those authorities.  He disputed the proposition that the inclusion of the words “to the applicant” gave rise to invalidity and argued that the phrase should not be read in the precise and literal way submitted for the mother.  He submitted that the phrase did not mean return to the physical presence or control of the applicant.  While accepting that there is a difference in terminology between the 1986 and 1995 Regulations, it was his stance that no matter of substantive difference arises.

b)        Findings

1. Like Kay J I, too, consider that Gsponer  and Murray were erroneous as a matter of law to interpret the applicant as the Central Authority that made the application. I agree those decisions were wrongly decided: who is the “applicant” will be a question of fact in each case due to the multiple avenues available to make applications: see Article 8 of the Convention and reg 2.

1. While it is not an easy matter for decision, I have further reached the conclusion that the inclusion of the words “to the applicant” in the 1986 Regulations fundamentally failed to give effect to the Convention and gave rise to invalidity for relevant purposes.

1. The “applicant” as defined by reg 2 of the 1986 Regulations “means a person who made an application referred to in regulation 11, 13 or 24 as the case requires;”.  Regulation 13 obliges the Commonwealth Central Authority to take action when it receives a proper application in respect of a child removed to Australia from a Convention country.  Regulation 15 of the 1986 Regulations provides for the “responsible Central Authority” to apply for, inter alia, “(d) an order for the return of the child to the applicant.”  In contrast, the Preamble to the Convention refers to “ensuring the prompt return of children to the State of their habitual residence” and the articles of the Convention, and in particular Article 8, merely speak in terms of “return of the child”.

1. Further, when one looks to subreg 16(3) of the 1986 Regulations which concerns exceptions to the Convention obligation to return, it is apparent that the 1986 Regulations draw a distinction in respect of these bases.  The “grave risk” exception in para (b) speaks in terms of return of the child “to the applicant”, whereas other paragraphs of subreg 16(3) merely speak of the child’s “return”.  The corresponding Convention articles 12 and 13 speak of “return” simpliciter for all exceptions.

1. I do not accept that these features of the 1986 regulations can be overlooked in order to find them valid within the specific power provided by s111B. The draftsperson has drawn a distinction between “return” and “return…to the applicant” that I do not think can be ignored.  The issue to be determined by the Court when considering the “grave risk” exception of para 16(3)(b) is markedly different depending upon whether one is considering return to the Central Authority or a Contracting State, as compared with return to the person who is the applicant.  I will consider subsequently the effect of this difference in relation to the facts of this case.

1. As a further consequence of such distinctions, I do not accept that the “blue pencil” test can be applied to the 1986 Regulations.  I think that to delete the words “to the applicant” would change the meaning of the 1986 Regulations in a way that I consider would offend Harrington v Lowe (1996) FLC 92-668 where Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ said (at 82,915):-

“As to the common law in Australia, the position, as established by the earlier decisions of this court to which we have referred appears to be that a valid operation for the subrules might be preserved after textual surgery by operation of the ‘blue pencil’ rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject matter dealt with from what it would otherwise be.”

1. In the present case, contrary to the views expressed by the Full Court in Gsponer and Murray, if the Regulations provided for the return of the child to the applicant and if the father was the person under consideration as the applicant, quite different considerations would apply than if the only issue related to the return of the child to the United States when considering para16(3)(b).

1. In my view, the passage by Professor Perez-Vera, cited by Kay J at para 77 of his judgment highlights the fact that the Convention envisages that where and to whom the child is to be returned will depend upon the facts of the case and circumstances of the application.  Where the provisions in the 1986 Regulations speak of return to the applicant, those provisions confine the operation of the Convention and the inquiries afforded in the exercise of the discretion to order return.

1. The passage also underlines the difficulties which arise from the form in which the Convention was incorporated into Australian law.  Other jurisdictions such as England did not attempt to re-write the Convention.  Rather, the text of the Convention was incorporated wholly thereby leaving it to the decision-making body to determine where the child is returned.   In this regard I would respectfully agree with Finn J’s observation in Murray’s case at 80,260 which was cited in argument by Dr Griffith, that: -

“it seems unfortunate that when the Commonwealth incorporated the Hague Convention into Australian law, it did not so either simply by incorporation of the Convention as a whole or at least in terms identical to the terms of the Convention.”

If the Regulations are Valid

1. In the event that I am wrong on the question of validity and the “blue pencil test”, there remains the issue of the effect of this Court’s reconsideration of Gsponer and Murray.  In my view it is clear that the trial Judge and the Full Court had regard to these decisions and the interpretations now impugned.  The significance lies in the distinctly different approach to be taken to the question of whether, to use the language of para 16(3)(b) of the 1986 Regulations, “there is a grave risk that the child’s return to the applicant would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”.

1. Mr Basten’s argument was that a different result would not have been reached if the meaning now ascribed to the phrase “to the applicant” had been relied upon.  He argued that even if the 1986 Regulations read the applicant to be the Central Authority, the effect of considering whether to return the child to the United States rather than the applicant father reflected what is actually required by the Convention.  On this argument, the right test would have been applied but for the wrong reasons. 

1. In the course of the hearing before us, there was reference to passages in O’Ryan J’s reasons for judgment that acknowledged that the Gwinnett County Superior Court order would have the effect of placing the child in the care of the father.  It was said that, notwithstanding that Gsponer and Murray read “applicant” to mean “the Central Authority” his Honour contemplated an outcome whereby the child would be, in reality,e returned to the father.  Accordingly, Mr Basten said that the erroneous interpretation of those cases did not infect the actual decision and its effect.

1. The difficulty with Mr Basten’s submission lies in my concern that the trial Judge and the Full Court approached the question of grave risk on the basis that return was to the Central Authority.  If the 1986 Regulations were valid and the term applicant denotes the father, a much closer examination of the father was warranted. 

1. It is convenient at this point to recite the pertinent passages from the trial judgment:-

“Professor Waters in his O 30A report said that the wife was very responsive to J “who appeared to be securely attached to her”.  Professor Waters expressed the opinion that his examination indicates that the child is strongly and securely attached (bonded to the mother and also is strongly attached to S.  Professor Waters said:

“certainly the option presented by the father would need to be explored in more detail, because a combination of abrupt removal from the mother, placement with the father with whom she has virtually no relationship of recollection, and where the day to day care is largely provided by a neighbour who may not be in the child’s life for very long and also may not be well qualified to be a carer, would be associated with significant risks and may qualify as a grave risk of psychological harm or placement of the child in an intolerable situation”.”

In summary, I am satisfied that J is clearly attached and bonded to the mother.  The mother has provided appropriate care for the child.  I am satisfied that J is closely attached to her mother.  I am satisfied that there is a risk of some psychological harm to J if I make the order sought by the Director.  I am concerned about the separation of the child from her brother and an environment in which she is settled and appears to be satisfactory for her welfare.  I am also very concerned about the circumstances in which the child will be placed upon the child’s arrival back in the United States if I make the order sought by the authority.  I am being asked to make an order returning this child to the care of a person with whom who [sic] has had very little association.

However, notwithstanding my concerns, I am not satisfied that degree of harm required by the authorities which I have referred to has been established.  I have a great deal of sympathy for the wife and the child, however, it must be remembered that I am not considering the welfare of the child in the sense of making a determination as to where the child should live.  I am only considering an application for the return of the child to the United States, in which country there will be a consideration of what the welfare of J ultimately requires.  I accept that there will be some psychological harm to J caused by the order which I propose to make.  However, this should be of short term duration because, hopefully, there will be a speedy determination in the Unites [sic] States of the welfare decisions which I have identified.

In Regino and Regino (1995) FLC 92-587 Lindenmayer J had before him circumstances which are very similar to those which exist here, and he found that the return of the child would be likely to expose the child to some risk of psychological harm. However, Lindenmayer J was considering the exercise of discretion by the court in circumstances where a Reg 16(3)(a) defence had been made out and he was not considering reg 16(3)(b). The expert evidence in this case does not, in my opinion, establish that the return of J would expose her to the necessary degree of psychological harm. The expert evidence, even when considered with the other evidence, such as age of the child, time spent in the care of the wife, time spent in the care of the husband and separation from S does not enable me to reach the required conclusion. I have no doubt that it is a highly unsatisfactory and unsuitable situation so far as the welfare of J is concerned, however, regretfully, that is not what I have to consider. An example and perhaps the only reported example of circumstances where the defence of physical or psychological harm was established is in the Court of appeal in Re F (Minor: Abduction: Rights of Custody Abroad) (1995) All ER 641 at 647-649, 653; see also Re Bassi; Bassi and Director General, Dept of Community Services (1994) FLC 92-465.

The wife also alleged that there was some threat of physical harm to the child.  The wife referred to the presence of guns in the household and things the husband has said.  Again, notwithstanding my disbelief that even a so called hunter would keep firearms in a suburban home, I am not satisfied that the wife has established the defence to the extent required by the authorities.  I am not satisfied that the wife has established that there is any possible physical harm of a weighty or substantial kind.” (AB 30-32, emphasis added).

1. It is also relevant to note the following views expressed by the trial Judge concerning the orders made by the Superior Court of Gwinnett County in Georgia:-

‘It is my view that Judge Bishop should only have made what we describe as interim orders.  I find it difficult to accept that he was able to make a final order for custody unless his discretion was limited by the evidence which he had before him which of course I did not have the benefit of.  I find it very difficult to accept how, even on an undefended basis, and knowing that an application would be made under the Hague convention, Judge Bishop could possible find that on a permanent basis, the husband could have custody of this child.  The evidence clearly established that the husband had spent very little time with J.  Further purpose of a prompt return of a child is to enable the question of what the welfare of the child requires to be determined in the country to which the child is returned and in my view that has not yet happened in this case notwithstanding the final order made by Judge Bishop.” (AB 13-14).

1. I accept that the trial Judge appreciated that the child would be returned to the father’s care.  Indeed, his Honour went on to express concerns about such a situation.  I am not, however, satisfied that the trial Judge examined the father as applicant in the manner which would follow from the meaning of “applicant” as now understood.  The above extracts from O’Ryan J’s judgment strongly indicate to me that matters going to the father were put aside from decision-making as to “grave risk” by the trial Judge on the basis that his task did not require an assessment of the father.  Moreover, this approach was applied in circumstances where highly significant uncertainties were evident, such as:

• the status of the orders made by the Superior Court of Gwinnett County in Georgia placing the child in the father’s custody;

• his Honour’s further assumption that “there will be a speedy determination of the welfare issues which I have identified” ;

• the concerns expressed by Professor Waters as accepted by O’Ryan J;

• the allegations of threat of physical harm to child.

1. The trial Judge’s concerns for the child were placed on the record but not factored into the grave risk assessment on the basis that return was to the applicant father.  I find it difficult to imagine that these issues would not have taken on greater importance where a Judge understood his or her task to include assessing whether there would be grave risk in returning the child to the father in person.

1. My concerns equally apply to the Full Court’s consideration of the appeal grounds directed to these matters: (1996) FLC 92-709 at 83, 509 – 83,514. Their Honours’ review of the evidence and its analysis by O’Ryan J appears to me to be fundamentally framed by two aspects of their approach.

1. First, the Full Court proceeded on the basis that the grounds of appeal relevant to grave risk did not involve error of law and essentially concerned questions of weight. The Full Court said at 83,509-510:-

“The essence of these grounds [of appeal] is that the trial Judge’s findings that the wife had not established the existence of a grave risk that the return of J to the United States would expose the child to physical or emotional harm, or otherwise place the child in an intolerable situation, within the meaning of Reg. 16(3)(b) of the Child Abduction Regulations were not reasonably open to him on the evidence before him.  As these grounds are concerned essentially with weight, regard must be had to High Court authorities as to the manner in which appellate courts must deal with [and] hear appeals from discretionary judgments.”

1. Their Honours then referred to well-known passages urging appellate restraint in Lovell v Lovell (1950) 81 CLR 513 at 519 per Latham CJ and Gronow and Gronow (1979) 144 513 at 519-20 per Stephen J.  Those authorities concern trial judgments where there has not been “exclusion of relevant considerations or the admission of irrelevant considerations” [Lovell] and “error of law or mistake of fact” [Gronow].  It is quite clear that in considering the question of weight, their Honours were proceeding upon the basis that the principles stated in Gsponer and Murray were correct and were viewing the trial Judge’s reasons for judgment in that light.  I do not think the Full Court would necessarily have arrived at the same result if they had been considering the position of the father.

1. Secondly, and interconnected with the first issue, the Court considered the appeal on the basis that it was misconceived for the mother to argue the grave risk of returning the child to the father.  At 83,513 the Full Court said:-

“The difficulty with this, as with most, if not all of the submissions made by the appellant in relation to these grounds of appeal, is that they presuppose that the order which the trial Judge made was that the child be returned to the husband rather than to the jurisdiction.  Such submissions not only misconceive the order which the trial Judge in fact made, but are a misunderstanding of the nature and the effect of the Convention itself.””

1. Referring again to my earlier comments, I consider this assessment fails, on a proper construction of the 1986 Regulations, to correctly characterise the effect of the regulations.

1. Due to no fault of the trial Judge and the Full Court, it is an inescapable conclusion that the proceedings were decided on the basis of what were erroneous decisions as well as the wrong regulations.

1. Accordingly, applied to the present case, I do not accept Mr Basten’s submission that reliance on the erroneous interpretation of “applicant” can be ignored.

1. Before leaving this matter, I should acknowledge that an approach that reads the “applicant” as including the fact of the other parent as applicant presents practical difficulties, given the purpose of the Convention and the imperative of prompt determination of applications.  Assessment of the "grave risk" of returning a child to that person rather than a Central Authority can introduce additional factual arguments for resolution and evidentiary needs which could lead to additional delay in the bringing on of cases for hearing. However, it is apparent that the framers of the Convention considered that there were circumstances where a child who had been illegally removed to another country should nevertheless be permitted to remain in that country and the Court’s duty is to give effect to that intention as expressed in the Regulations.

The Validity of the Order by O’Ryan J

1. A complementary argument to those raised in respect of the validity of the 1986 Regulations concern the terms of the order made by O’Ryan J that are set out at para 8 of my reasons.  I was not persuaded by the arguments of Dr. Griffith in this regard.  In light of my views concerning the regulations and my ultimate decision, it is unnecessary to consider this issue further.

Whether O’Ryan J’s Order Is Spent and a Child Representative Should be Appointed.

1. Dr Griffith advanced a further alternative argument to the effect that the passage of time since O’Ryan J made his order should now lead to the view that the order is spent insofar the foundation for the order no longer exists.  Re HB (Abduction: children’s objections) [1998] 1 FLR 422 was cited in argument as an illustration of how radically changed circumstances can permit reconsideration of an order for return under the Convention.

1. I agree with Mr Basten that the factual circumstances of Re HB were wholly different in that it was the conduct of the applicant parent and its damaging impact on a 12 year old child’s objections which led to reconsideration of the order. 

1. So far as the appointment of a Child Representative is concerned, if this Court holds that the mother’s application to reopen should be granted, I am mindful of the High Court’s dicta in De L on the subject.  While not expressly so limited, the Court was principally concerned with such representation where a child of sufficient maturity was expressing objections to return. Given the unusual circumstances of this case however, I would appoint a child representative.

Are Australian citizens excluded from return orders under the Convention

1. I refer to paragraphs 96- 98 of Kay J’s reasons for judgment and respectfully agree with his reasons therein.

Special duties of the Central Authority

1. I refer to paragraphs 93 - 95 of Kay J’s reasons for judgment and respectfully agree with his reasons therein save that I do not agree that the same result in this case would have been achieved if the 1986 Regulations had been applied. 

1. However, I do consider that there was a special obligation upon the Central Authority to take action as a result of the High Court’s decision in De L as to the correct regulations to be applied in this case. 

1. To use the language of Marc Galanter ‘Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change’ (1974) 9 Law and Society Review 95, there are aspects of the legal system which involve claimants who have only occasional recourse to the courts and “repeat players” who are litigants in a range of similar cases. Organisations comparable to the Central Authority here are State and Territory child protection services, or, for example, to look to other jurisdictions, prosecutors in criminal matters and government departments in freedom of information applications. 

1. In my view, the repeat involvement of such organisations in forensic disputes places them in a circumstance of greater awareness of decisions which are material to their routine work.  That awareness brings responsibilities.  In matters of law, the playing field is not even when repeat organisational players are in dispute with a party who lacks a similar familiarity to be informed and lacks the organisationally vested responsibility to be vigilant for the effect of decisions as to the law in the area of their mandate.   I would therefore place at a more stringent level than Kay J, the obligation upon the Central Authority as to the applicable regulations and the question of preventing a perfected order discussed below.

1. A Central Authority is by design within a system of intelligence as to legal developments that cannot be deemed as equivalent to an individual respondent to an application under the Regulations.  There are advantages in litigation that cannot be glossed over.  As will become evident, such a view of the responsibilities which come from being a repeat player have bearing upon the question of how my findings to this point affect the view I have taken of the power to reopen.

Can completed proceedings ever be reopened?

1. The key issues for determination by this Court may be summarised as follows:-

·    Given the findings I have come to on the substantive issues which are advanced as a basis for reopening:

·Does the Full Court of the Family Court possess the inherent power to vary or set aside a perfected order?

·If such a power exists, in the circumstances of this case, should the Court exercise the discretion to apply that power?

Core Submissions as to Power

1. Dr Griffith urged us to find that as a superior court, the Family Court of Australia has an inherent power to reopen completed proceedings.  His written submissions relied upon De L v Director General, New South Wales Department of Community Services and anor (1997) FLC 92-744 and Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 from which he identified three limbs to the test for the exercise of power:

• there is some matter calling for review or if the interests of justice so require;

• the court has proceeded on a misapprehension as to the law where the misapprehension cannot be attributed solely to the neglect or default of the Appellant;

• the interests of justice so require.

1. In the course of argument before us, Dr Griffith also drew attention to State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45-6. He also referred to a number of subsequent decisions by the New South Wales Court of Appeal and the Full Court of the Federal Court of Australia (discussed below) which were said to illustrate the contemplation of the power to reopen being possessed by intermediate appellate courts notwithstanding that a judgment had been entered.

1. Mr Basten’s submissions for the Central Authority conceded that a number of cases have accepted the power of a superior court to reopen proceedings where final orders have been made but not finally entered in the Court’s records.  Referring particularly to University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 he submitted that although the High Court has on one occasion assumed that it has the power to vacate an order, notwithstanding that it had been perfected, the High Court has never actually held that it has such a power.

1. In respect of other superior courts in Australia, he relied upon Bailey v Marinoff (1971) 125 CLR 529 and Gamser v Nominal Defendant (1977) 136 CLR 145 as authorities against the existence of an intermediate appellate court’s power to reopen completed proceedings which have been duly entered into the Court’s records. In supplementary submissions concerning Dr Griffith’s authorities, he further stressed the centrality of a finding that parties had not been heard where proceedings were reopened.

High Court Authority

1. The most recent authority on this matter is High Court’s judgment in De L v Director General, New South Wales Department of Community Services and anor (1997) FLC 92-744. The Court there reviewed its previous decisions and confirmed the power of that Court to reopen its judgments or orders in circumstances where the order has not been finally entered into the Court’s records. The following passage by the majority (at 84,034) highlights the rationale for the possession of such a power by the High Court and when it may exercise that power:-

“Reopening of a final order

The power of this court to reopen its judgments or orders is not in doubt. The court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law” [Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 111 ALR 385], where “there is some matter calling for review” [Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265 108 ALR 55] or where “the interests of justice so require”.[ Autodesk Inc v Dyason (No 2)]  It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required “without fault on his part” [Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 43 ALR 240 cf State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45-6 42 ALR 289 Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 168 121 ALR 577], ie without the attribution of neglect or default to the party seeking reopening[Autodesk Inc v Dyason (No 2) CLR at 303, ALR 385]. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice. In the case of a final court of appeal, such as this court, that injustice may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case. [Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 302 111 ALR 385 Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 at 394-5; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28-9]”

The Significance of “Perfection”

1. In De L v Director General, New South Wales Department of Community Services and anor (1997) FLC 92-744, the order in question had not been perfected. In a subsequent passage, however, the majority addressed this circumstance:-

“An important consideration is that the orders of this court, although publicly announced, were not perfected. That is, the formal entry of the orders in the court’s records was not made before the present motion was filed. As a result of the motion, the registrar of the court, of his own initiative, has delayed the entry of the orders pending the outcome of these proceedings. Courts have always treated differently applications to reopen final orders which, although pronounced publicly, have not been finally entered in the court’s records. Different considerations arise when this latter step has been taken. [State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38 42 ALR 289 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 308, 317 111 ALR 385 University of Wollongong v Metwally (No 2) (1985) 60 ALR 68 at 70 59 ALJR 481 at 482-483].”

1. It is convenient at this point to extract what would seem the relevant portions of the previous authorities to which reference is made at the end of the above passage.

1. State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 considered orders of the High Court which had not been passed and entered. At 38, Mason J (as he then was) and Wilson J said:-

“Counsel for the Authority referred the Court to many cases to establish the jurisdiction of the Court to entertain the present application.  We have no doubt that such a jurisdiction exists:  Rajunder Narain rae v. Bijai Govind Sing [(1839) II Moo.Ind.App. 181; 18 ER 269]. See also Vienkata Narasimha Appa Row v Court of Wards [(1886) 11 App.Cas. 660]; In re Harrison’s Share Under a Settlement [(1955) Ch. 620]. Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. In Rae’s Case, Lord Brougham said, in words with the Authority claims are opposite to the present case [(1839) II Moo.Ind.App., at 220; 18 ER at 284]:

“It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being doing by a Court of the last resort, where by some accident, without any blame, the party has not been heard, and an Order has been inadvertently made as if the party had been heard.”

In Venkata’s Case [(1886) 11 App.Cas. at 663-664], Lord Watson, delivering the opinion of the Judicial Committee of the Privy Council, referred to Lord Brougham’s words in Rae’s Case and continued:

“Even before report, whilst the decision of the Board is not yet res judicata great caution has been observed in permitting the rehearing of appeals.  In the last case to which we were referred, that of Hebbert v Purchas [(1871) LR 3 PC 664], where a litigant alleged, before report and approval, that he had been disabled by want of means from appearing and maintaining his case, the Lord Chancellor said: - ‘Having carefully weighed the arguments, and considering the great public mischief which would arise on any doubt being thrown on the finalty “[sic]” of the decisions of the Judicial Committee, their Lordships are of opinion that expediency requires that the prayer of the petitions should not be acceded to, and that they should be refused.’ There is a salutary maxim which ought to be observed by all Courts of last resort – Interest reipublicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this.””

1. In University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 482-483, the Court ( Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ) said:-

“It may be assumed without deciding that the court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected.  If such power exists, it must be exercised with great caution after weighing what might otherwise be irremediable against the public interest in maintaining the finality of litigation: see New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38.”

1. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 308, Brennan J (as he then was) said:-

“This Court has undoubted jurisdiction to recall a judgment which it has pronounced, at least prior to the formal entry of the judgment, if the judgment has been pronounced against a person who, without fault on the part of that person, has not had an opportunity to be heard as to why that judgment should not be pronounced [State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684]. This jurisdiction is exercised sparingly for it is important to bring litigation to finality in this Court. The approach of Courts from which an appeal lies is not so strict, for it may be preferable to recall an unperfected but erroneous judgment rather than allow it to stand until it is quashed on appeal: see eg. In re Harrison’s Share under a Settlement [1955] Ch.260 at 282-284]. Nevertheless, natural justice would be denied if, in a case in which the stated conditions are satisfied, the judgment were not vacated.”

1. Dawson J at 317 said:-

“Whilst the Court has jurisdiction to entertain an application to vacate orders which it has made, at all events before those orders have been perfected by the entry of judgment [cf. University of Wollongong v Metwally [No.2] (1985) 59 ALJR 481 at 482; 60 ALR 68 at 70] (that not having occurred in this case), it is a jurisdiction to be exercised cautiously, bearing in mind the public interest in the finality of litigation [See State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45-46]. In Wentworth v. Woollahra Municipal Council [(1982) 149 CLR 672 at 684], the Court said:

“[T]he circumstances in which this Court will reopen a judgment which it has pronounced are extremely rare.  The public interest in maintaining the finality of litigation necessarily means that the power to reopen to enable a rehearing must be exercised with great caution.  Generally speaking, it will not be exercised unless the applicant can show that by accident without fault on his part he has not been heard.””

1. Although not specifically referenced in the majority’s judgment in De L, mention should also be made of how Gaudron J approached the question of reopening.  Her Honour said at 328:-

“Having regard to the significance which currently attaches to computer technology and having regard to this Court’s status as Australia’s final court of appeal, it seems to me that the interests of justice would require that course if it were fairly arguable that the judgment involved a misunderstanding of the facts or misapplication of the law in relation to one or more of the issues on which the respondents now wish to put further argument.”

1. One further authority cited by Dr Griffith is also pertinent here for its consideration of Codelfa. In Wentworth v Rogers (No 9) (1987) 8 NSWLR 388, Kirby P (as he then was) delivered the judgment of the New South Wales Court of Appeal in which there was an application to set aside a previous order by it which had dismissed an appeal. The Registrar had entered orders dismissing an appeal. At 394, the judgment described as “obvious” the reason for the cautious attitude towards reopening found in Codelfa:-

“It is stated by Mason and Wilson JJ in their judgment to be the public interest in maintaining the finality of litigation. Otherwise, a determined or wealthy litigant could postpone final judgment and exhaust the rights and funds of his opponent by continuously denying the finality of the judgment and seeking to reopen disputes which that judgment was designed to close, at least so far as the courts were concerned.”

1. When De L is read with regard to these dicta concerning perfected judgments, the state of the law as I read it is that the High Court’s power to reopen completed proceedings:-

• is beyond doubt and has been exercised by the High Court where judgment has not been perfected;

• is assumed to be an exercisable power but has not yet been the ratio of a decision by the High Court where judgment has been perfected.

Does the jurisdiction to reopen exist for an intermediate Appellate Court

1. The High Court has not specifically considered the position of the Full Court of the Family Court in respect to the jurisdiction to reopen.   The High Court’s decision in CDJ v VAJ (1998) FLC 92-828, delivered subsequent to argument in this matter, does however address the appellate jurisdiction of the Full Court in the course of its reasons for judgment concerning the receipt of further evidence by the Full Court. I shall return to CDJ v VAJ after examining authorities directly concerned with the jurisdiction to reopen.

High Court Authority on the Jurisdiction to Reopen

1. The key dicta relied upon by the Central Authority in its submission as to lack of power is Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529. The New South Wales Court of Appeal had ordered that appeal books be filed within a certain time in default of which the appeal was to stand dismissed. The appeal books were not filed in time. Subsequently, the Court of Appeal granted leave to file out of time. That order was successfully appealed by leave to the High Court (Barwick CJ, Menzies, Owen and Walsh JJ, Gibbs J dissenting). Barwick CJ said at 530:-

“Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.”

1. Gibbs J. ( in dissent) said at 539:-

   “It is a well-settled rule that once an order of a court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made the court has no jurisdiction to alter it: In re Suffield and Watts; Ex parte Brown [(1888) 20 QBD 693] ; In re Swire; Mellon v. Swire [(1885) 30 Ch D 239] ; Preston Banking Co. v. William Allsup & Sons [[1895] 1 Ch 141] ; Woods v. Sheriff of Queensland [(1895) 6 QLJ 163] ; Ivanhoe Gold Corporation v. Symonds [(1906) 4 CLR 642] ; MacCarthy v. Agard [[1933] 2 KB 417] ; Arnett v. Holloway [[1960 VR 22]. The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most rules of court”.

2. His Honour also said at 544:-

   “The authorities to which I have referred leave no doubt that a superior court has an inherent power to vary its own orders in certain cases. The limits of the power remain undefined, although the remarks of Lord Evershed already cited suggest that it is a power that a court may exercise "if, in its view, the purposes of justice require that it should do so”.... Where, however, the order has been made by the appellate court itself the position is different, since if the appellate court cannot grant relief, none is available. The fact that this Court would have power to grant special leave to appeal from the order of the Court of Appeal made on 10th February 1970 may be put aside, having regard to the established principles that govern the grant of special leave... I can see no reason in principle, and certainly none in justice or convenience, why an appellate court cannot vary the condition of an order dismissing an appeal, notwithstanding that the appeal has been dismissed before the variation is effected; the appeal may be at an end, but the power of the court remains, and an exercise of the power can reinstate the appeal.”

1. The Central Authority placed further reliance upon Gamser v Nominal Defendant (1976) 136 CLR 145. The plaintiff suffered compensable injuries from a motor vehicle accident. His verdict was reduced by the NSW Court of Appeal and he appealed to the High Court. In the intervening period, his condition deteriorated and he was granted an adjournment to approach the Court of Appeal in respect of his worsened condition. The Court of Appeal held that it had no jurisdiction to set aside the verdict or reopen the matter. The plaintiff appealed to the High Court.

1. Mr Basten referred especially to the judgment of Aickin J with whom Barwick CJ and Stephen J agreed.  His Honour said at 154:-

“As to the question of whether there was in the Court inherent jurisdiction to make the order sought, Glass J.A. took the view that the decision of this Court in Bailey v. Marinoff (1971) 125 CLR 529 was fatal to the argument. In that case this Court held that when an appeal has been finally disposed of in a court of appeal by an order duly entered it has no inherent power to reopen the case on an application made after the order has been entered. That general proposition is no doubt subject to the rule that a judgment apparently regularly obtained may be impeached upon the ground of fraud, and there would seem to be no reason why that rule should not also apply to judgments upon appeal, although it is difficult to visualize how a judgment of an appellate court could be obtained by fraud, other than in circumstances in which the original judgment which the appellate court had upheld had itself been obtained by fraud. The majority judgments in Bailey v. Marinoff appear to me to make it clear that there is no inherent power to set aside judgments by reason of changed circumstances on application made after the case has been finally disposed of. It is sufficient to quote what Menzies J said [(1971) 125 CLR 529 at pp. 531-532]:

“This appeal is not concerned with the power of a court to alter orders in pending litigation.  It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court.  To recognise the problem is I think, to solve it.  However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend [to] the making of orders in litigation which has been brought regularly to an end.”

1. Wentworth v Attorney-General for the State of New South Wales (1984) 154 CLR 518 is an important High Court decision subsequent to Bailey’s case and Marinoff’s case.  There, the High Court once again considered this aspect of the jurisdiction of the New South Wales Court of Appeal.  The joint judgment of the Court held that in a case where the order in question regulated the procedure to be followed in the future conduct of proceedings and would, if carried out, ultimately result in a futility, it had been within the inherent power of that Court to set aside a previous order it had made.  Gibbs CJ, Mason, Brennan, Deane, and Dawson JJ said at 525-526:-

   “The second question that arises is whether the Court had power to set aside its previous order. Clearly, it had. Hutley J.A. held that Pt 42, r. 12(1) of the Supreme Court Rules (NSW) would have authorised an order for a perpetual stay. That sub-rule provides:

   “A person bound by a judgment may move the Court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the Court may, on terms, make such order as the nature of the case requires.”

   The view of Hutley J.A. would appear to be correct, but in any case the inherent power of the Court was sufficient to justify the order which was made.  Of course the general principle is that there is no inherent power to set aside a judgment by reason of changed circumstances (Gamser v. Nominal Defendant [(1977 136 C.L.R. 145] but the rule is subject to exceptions : see Bailey v. Marinoff [(1971) 125 C.L.R. 529, at pp. 531-532, 539-540] and The Supreme Court Practice 1982, (UK), 20/11/5, and cases there cited.  It is unnecessary to attempt to discuss the various exceptional cases in which the rule does not apply.  The order in question in the present case was not one by which the litigation was concluded; it was merely an order regulating the procedure to be followed in the future conduct of proceedings.  It was an order which, if carried out, would ultimately result in a futility.  The inherent power, where it exists, is not lightly to be exercised, but it extends to, and was properly exercised in, the present case.”

Intermediate Appellate Court Authority on the Jurisdiction to Reopen

1. Some intermediate appellate courts have considered the question of their power to reopen. They have done so with regard to how such a power would be exercised in the circumstances of the case at hand.  A review of those authorities indicates that these courts have approached the issue on the basis that none would have been disposed to exercise such jurisdiction in the particular cases before them but were prepared to proceed on the basis that such jurisdiction existed.

1. Kirby P (as he then was) has been a strong proponent of the existence of such a power. 

1. In Wentworth and Rogers (No 9) (1987) 8 NSWLR 388, the New South Wales Court of Appeal (Kirby P, Hope and Samuels JJA concurring) suggested, but did not find it necessary to decide, that the power of an intermediate court to reopen extended to perfected orders. The Court’s reasons included reference (at 394) to the fact that since the Australia Act 1986, there is no appeal as of right to Australia’s final court of appeal, the High Court of Australia:-

“Since the Australia Act determined appeals as of right to Her Majesty in Council, and since appeals now lie to the High Court of Australia only by special leave of that Court, the function of this Court has changed. There is now no further appeal from this Court as of right. For most litigants, this Court is the final place of appeal or review. It may therefore be appropriate to apply to this Court the same principles as are stated in State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd, though with the modification that `irremediable injustice' is not inevitable because of the avenue which is always open to a disaffected litigant to seek special leave to appeal from the High Court.”

1. His Honour further said:-

“It is not necessary in this case to explore the precise extent of and limits upon the power of the Court to vary or supplement orders made by it: cf Bailey v Marinoff (1971) 125 CLR 529 and Southern Cross Exploration NL v Fire and All Risks Insurance Co Ltd [1986] 7 NSWLR 319.  Clearly, to the extent that such a power exists, it would only be used in the most exceptional of cases.  It would certainly not be used in the present case upon the ground advanced by the appellant.  Accordingly, it is neither necessary nor useful to charter, in this case, the boundaries of the Court’s residual discretion to correct or supplement orders made by it.

It may be assumed for the purposes of this judgment that such a discretion exists, as we incline to think it does and plainly ought to exist.  But it is a discretion to be utilised with extreme care. Although not confined to such cases, it should normally be limited to dealing with technical or incidental changes to the form or content of orders but should not be used as a substitute for an appeal.  It is, for example, entirely inappropriate that the finality of a simple order such as was made in the instant appeal should be disturbed by such a beneficial facility.” (at 394-5).

1. In Haig v The Minister Administering the National Parks and Wildlife Act 1974, (1994) LGERA 143. Kirby P (as he then was) in the New South Wales Court of Appeal referred to Wentworth v Rogers (No 9), and the fact that the High Court of Australia had refused special leave to appeal from that decision. His Honour reiterated his adherence to the views he there expressed, saying (at 152-3):-

"There is no doubt that the Court may correct unperfected orders, that is, those pronounced in Court at the time of the handing down of a decision before the entry of a formal order in the records of the Court. This course is adopted, for example, where it is established that a mistake has occurred in the Court’s understanding of the matters in issue between the parties: see, eg. Winrobe Pty Ltd v Sundin’s Building Co Pty Ltd [No.2] [1992] NSWJB 139; New South Wales Medical Defence Union Ltd v Crawford [No.2] [1994] NSWJB 68.  In Winrobe, the Court, being convinced that an appeal had been decided on a basis not raised at the trial, withdrew its published orders.  It did so although they had been formally pronounced in open court and supported by reasons which were then delivered.  Subsequently, the Court published a judgment which came to a conclusion different from that earlier reached: see Winrobe Pty Ltd v Sundin’s Building Co Pty Ltd [No.3] [1993] NSWJB 42.  The Court emphasised the importance of intellectual honesty and the manifest integrity of its process.  The same principles were emphasised in Crawford [No.2].  When, later, it was pointed out that one of the orders in Crawford [No.2] itself did not conform to the majority opinion of the judges expressed in their published reasons, the Court withdrew those orders.  It announced new orders for the purpose of bringing the record of the Court into line with the decision of the judges:  see New South Wales Medical Defence Union Ltd v Crawford [No.3] [1994] NSWJB 102.

This provision has its counterpart, as regards legislation in excess of constitutional power, in s 15A of the Interpretation Act. Section 15A was added by the Acts Interpretation Act 1930 (Cth) and that in turn had its precursor in s 2(2) of the Navigation Act 1912 (Cth). The operation of s 2(2) was identified as follows in the joint judgment of this court in Newcastle and Hunter River Steamship Co Ltd v Attorney-General (Cth):

‘We think this provision is a legislative declaration of the intention of parliament that, if valid and invalid provisions are found in the Act of parliament, however interwoven together, no provision within the power of parliament shall fail by reason of such conjunction, but the enactment shall operate on so much of its subject matter as parliament might lawfully have dealt with.’

This involved the enactment of that which Higgins J had found (by analogy with the principles saving partly defective exercise of powers of appointment) was the position under the general law. 27 It has been dubbed ‘the relative invalidity doctrine’ 28 whereby the provision in question may be ‘applied distributively so that it is read as covering those applications within power’. But, as decisions upon s 15A, including Re Dingjan; Ex parte Wagner illustrate, the doctrine is not without limitations in its application. It was not accepted as representing the common law by the majority of this court in decisions including R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co, 30 Owners of SS Kalibia v Wilson and Waterside Workers’ Federation of Australia v JW Alexander Ltd, and more recently was rejected by the House of Lords.

...

As to the common law in Australia, the position, as established by the earlier decisions of this court to which we have referred appears to be that a valid operation for the subrules might be preserved after textual surgery by operation of the ‘blue pencil’ rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject matter dealt with from what it would otherwise be.”

1. In the dream sequence in “Fiddler on the Roof”, Tevye sings “we haven’t got the man we had when we began”.  In my view, absent the words complained of, we still would have the regulations we had when we began and I would, if necessary simply delete the offending words.

Is the decision of the Full Court in anyway affected by the error in Murray and Gsponer?

1. Whilst Gsponer, supra and Murray, supra, are referred to by the trial Judge and the Full Court, the error contained therein did not in any way appear to influence the outcome of the trial or the appeal.  Neither the trial Judge nor the Full Court took the view that the order that was made was an order that would have the effect of keeping the child out of the care of the husband because it was mistakenly intended to be an order for the return of the child to the United States Central Authority.  Nor was the trial Judge or the Full Court under the impression that the regulations in some way required return of the child to the husband.

1. They were both clearly conscious that an order for the return of this child to Georgia would mean, at least temporarily, a return of the child into the father’s physical possession because of the operation of the orders of the Superior Court in Georgia.  They were equally both conscious of the proposition that the judicial authorities of Georgia would appropriately make orders to advance the welfare of the child.  Whether those orders meant that the child stayed with the mother who had removed her from America or stayed with the father from whose society she had been withdrawn would be a matter for the Court in the appropriate forum.

1. If the Full Court had refused to order the return of the child because it thought the regulation mandated a return to the father rather than to a more suitable jurisdiction, the father could properly have complained that the requirement under the Convention and under the Regulations as properly interpreted was a requirement to return the child to the jurisdiction where the father was rather than to the father himself.  I have difficulty in understanding how the mother can complain that the order that was made at first instance was made in reliance upon the wrong regulation and that somehow she was disadvantaged by that error.

1. The regulation relied upon did not mention the concept of returning the child to the father.  The Full Court recognised that the practical effects of its order would be to temporarily place the child in the father’s care but still upheld the primary Judge's exercise of discretion.  There is nothing to suggest that the result might have been any different if the Court had applied the correct regulations.  There is nothing to suggest that somehow the application of the incorrect interpretation of the regulations made in Gsponer, supra, and in Murray, supra, in any way affected the outcome.

1. Neither the trial Judge nor the Full Court sought to justify the order that was made because of the wording of the regulation.  Rather, the result was arrived at because Georgia was clearly the proper forum, there had been a wrongful removal and it was not established that returning the child to Georgia, and even placing her in the husband’s care, amounted to a defence under the regulations or the Convention.

Other matters

1. Several other grounds argued deserve particular attention.

Special duties of the Central Authority

1. It was submitted that it was incumbent upon the Central Authority to have the matter reopened once it was apparent that the wrong Regulations had been considered.  There is weight in the submission that the Central Authority needs to act to some degree as an honest broker.  Its role may be likened to that of a Crown Prosecutor who is required to put before the Court matters which might assist the accused as well as matters which might lead to a conviction.  The Central Authority's obligation is not to secure the return of the child but to implement the requirements of the Convention.  The duties of the Central Authority are more particularly described in Reg. 5 as follows

“5. (1) In addition to the other functions conferred on the Commonwealth Central Authority by these Regulations, the functions of the Commonwealth Central Authority are:

(a) to do, or co-ordinate the doing of, anything that is necessary to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention;  and

(b) to advise the Attorney-General, either on the initiative of the Commonwealth Central Authority or on a request made to that Authority by the Attorney-General, on all matters that concern, or arise out of performing, those obligations, including any need for additional legislation required for performing those obligations; and

(c) to do everything  that is necessary or appropriate to give effect to the Convention in relation to the welfare of a child on the return of the child to Australia.

(2) The Commonwealth Central Authority has all the duties, may exercise all the powers, and shall perform all the functions, that a Central Authority has under the Convention.

(3) The Commonwealth Central Authority must perform its functions and exercise its powers as quickly as a proper consideration of each matter relating to the performance of a function or the exercise of a power allows.”

1. If in implementing the requirements of the Convention it obtains the return of a child who ought to be returned then it is carrying out its function.  If it draws to the Court circumstances which might lead the Court to make an order other than the return of a child then it is also carrying out its function. 

1. Here it must have become immediately apparent to the Central Authority that the Court might have been directed to the wrong set of regulations albeit that there may be, as Kirby J observed, no substantive difference between the two sets.  With hindsight, the Central Authority should have at least ensured that the mother's legal advisers were aware of the existence of the decision in DeL, supra, as soon as it came to hand.  However in light of the order that was made by the trial Judge, and for the reasons given above, I cannot see how any other result would have been achieved if the correct regulations had been considered. 

Are Australian citizens excluded from return orders under the Convention?

1. The next matter requiring consideration is the submission that the provisions of the Hague Convention and the Regulations which might have the effect of requiring an Australian citizen to leave Australia offend one of the most basic rights of all Australian citizens namely the right to live in Australia.  It is submitted that absent the clearest intention of any law to abrogate such a right, that right remains.  There is no suggestion that this proposition has ever found favour with the judicial authorities of any of the countries that are signatories to the Convention.

1. It is clearly competent for the Australian government to enter into agreements with other countries on a multinational or bilateral basis which require citizens to be taken, by force if necessary, from their State of citizenship to another place.  Clearly the best known example of this power are the various extradition treaties.  Whilst I accept that the right of citizens to a peaceful life within their own country is a right that ought to be interfered only if the law properly provides for such interference, in my view, there is sufficient evidence of such power given by way of the Hague Convention.  In my view, there is nothing so abhorrent in the application of the Hague Convention that the right to remain behind the borders of one's country of citizenship takes precedence over one's obligation as a citizen of this country to be bound by the provisions of a multinational treaty entered into by the duly elected government and properly made part of the municipal law of the State.

1. In any event, in this particular case the child J is a citizen of both the United States and Australia.  There is no reason advanced as to why her basic right to live in Australia is any more significant or worthy of protection than her basic right to not be wrongfully removed from the United States.

Is the order requiring the mother to accompany the child beyond power?      

1. The last matter advanced concerned inherent faults within the order itself.  The mother complains that the order extends beyond the power of the Court in that it obliges her to travel with the child and effectively expels her from Australia.  The inclusion of the mother in the order came about as a result of the mother's evidence that she would accompany the child if the child was obliged to return to Georgia.  The words in the order referring to the mother are facilitative and not mandatory.  They allow, rather than compel, the mother to accompany the child.  These are orders frequently made and are designed to advance the welfare of the child.  Should the mother decide that the child should travel without her then the orders can be easily varied under the liberty to apply.

Relevance of the error in Gsponer and in Murray

1. The fact that those decisions wrongly decided the narrow point as to the meaning of the term “the applicant” in the former regulations does not affect either the validity of the regulations nor the outcome of these proceedings.  Whilst Gsponer, supra, and Murray, supra, were both referred to by the trial Judge and the Full Court, they were in no way decisive of the issue that had to be determined.  Neither the trial Judge nor the Full Court took the view that the order that was being made or required to be made was an order that would have the effect of keeping the child out of the care of the husband.  They were both conscious that an order for the return of this child to Georgia would mean, at least temporarily, a return of the child into the father’s physical possession because of the operation of the orders of the courts of Georgia.  They were equally both conscious of the proposition that the judicial authorities of Georgia would appropriately make orders to advance the welfare of the child.  Whether those orders meant that the child stayed with the mother who had removed her from America or stayed with the father from whose society she had been withdrawn would be a matter for court of appropriate forum.

1. In my view the father might have had cause for complaint if the Full Court had said “The meaning of the Regulations is that the child has to be returned to the father.  We think that returning the child to the father would cause grave risk to the welfare of the child and therefore we refuse to exercise our discretion.” It did not say that.  The requirement under the Convention and under the Regulations as properly interpreted was a requirement to return the child to the jurisdiction where the father was rather than to the father himself.  It is then a matter for the local jurisdiction to determine into whose care the child is placed.

1. It is difficult to see how the mother can complain of the order that was made at first instance and of the consideration given by the Full Court to the issues before it and the issues of grave risk because the court recognised that the practical effects of its order would be to temporarily place the child in the father’s care.  Neither the trial Judge nor the Court of Appeal felt compelled to achieve that result because of the wording of the Regulation.  But rather, they felt compelled to achieve that result because Georgia was clearly the proper forum and there had been a wrongful removal and it was not established that returning the child to Georgia, and even placing her in the husband’s care, amounted to a defence under the Regulations or the Convention.

1. The grounds sought to be argued as to the validity of the Regulations or their constitutional limitations were grounds that were not argued before the Full Court and in my view, in accordance with Metwally, supra, can not now be argued as a basis for challenging afresh the previous decision of the Full Court.  If there is a basis for reopening the decision, it can only be that the Full Court applied the wrong law in a manner which, if it applied the right law may well have led it to some other conclusion.  I am not persuaded that this is so. 

1. Further, it ought to have been apparent to the wife’s legal advisers on the day that the judgment was handed down, or very shortly thereafter, on a reading of DeL, supra, that both courts had been mistaken as to the relevant Regulations.  It was open to the wife to move within time a High Court to challenge the Full Court’s decision or to move the Full Court, for that matter, to set aside its own order before it had been validly entered.  Instead she chose to go into hiding.  I adopt the approach of McHugh J that it hardly behoves her to now come to the Court to seek an indulgence.

1. Assuming however, that the Court has the power to reopen the matter, it has to then determine the question of whether the reopening of the matter would achieve anything. This means that the Court would need to look to the appropriate regulations and to determine whether an application of the appropriate regulations would have made any difference. It is suggested that the appropriate regulations were invalid because they provided for the Court to make orders for the return of the child to the applicant whilst the Convention made no such provision. The limitations of s111B are such that the regulations could only be made in aid of the Convention. This matter is dealt with by Kirby J in DeL, supra, on the basis that there is capacity to mould the regulations to local practice.  In any event, it is not clear that a return to the applicant is inconsistent with the regulations if the phrase “to the applicant” is meant as something other than to the physical possession of the applicant but is more of a geographic description.  Indeed, it makes more sense in light of the Perez-Vera Report than do the current regulations which require the return of the child to the country from whence it was abducted.  It is incumbent, in my view, upon the Court to try to make the regulations to work and this is consistent with the Act’s Interpretation Act.  To the extent that it is necessary in my view, it is convenient in this case to simply remove the words “to the applicant” by blue penciling them, and thus bring the regulations back within the power, if they exceed the power, and I do not concede that they do exceed the power.  I do not view that making such change has any substantiative effect upon the regulations to convert them into something other than they have always been, namely regulations designed to give effect to Australia's obligation under the Convention.  It is necessary to set out in detail the definitions relating to the applicant to demonstrate why Gsponer, supra, and Murray, supra, are incorrect.

1. The next leg in the journey is to examine, in passing, two other grounds, namely that it was incumbent upon the Agency to have the matter reopened once it was apparent that the wrong regulations had been applied.  I think there is weight in the submission that the Agency needs to act to some degree as an honest broker in proceedings in a manner not dissimilar to that of the Crown Prosecutor.  Its obligation is not to secure the return of children but to implement the requirements of the Convention.  If in implementing the requirements of the Convention it obtains the return of a child who ought to be obtained then it is carrying out its function.  If it draws to the court circumstances which might lead the court to make an order other than the return of a child then it is also carrying out its function.  Here it must become immediately apparent to the Central Authority that the court had at least been directed to the wrong set of regulations albeit that there may be, as Justice Kirby observed, no substantive difference between the two sets.  In light of the order that was made, it is difficult to see how another result would have been achieved under either set of regulations. 

1. Finally there is the submission that it is contrary to the basis rights of Australian citizens to be deported.  This is a novel proposition that has never before seen the light of day.  It is clearly competent for the Australian government to enter into agreements with other countries on a multinational or bilateral basis which require citizens to be taken, by force if necessary, from their state of citizenship to another place.  Clearly the best known example of this is extradition.  It is clear that a right of a citizen to a peaceful life within their own country is a right that ought to be interfered only if the judicial and executive are expressly empowered to do so.  In my view, there is sufficient evidence of such power given by way of the Hague Convention.  In my view, there is nothing to me that is abhorrent in the application of the Hague Convention to the principles espoused in the right of a citizen to remain peacefully and quietly within its own borders.

Summary

1. The Full Court of the Family Court lacks inherent power to vary or set aside a perfected order regularly obtained.

2. Even if such a power exists, in the circumstances of this case the power ought not be exercised.

3. Insofar as Gsponer, supra, and Murray, supra, decided that the expression "the applicant” referred to in the former Child Abduction Regulation 16(3) meant the requesting Central Authority, then those decisions were made in error.

4. The requirement that an order be made for the return of a child to the applicant does not require the order to actually return the child to the applicant's care, but rather requires the return of the child to the forum more appropriately associated with the applicant.

1. If such a requirement was ultra vires s.111B of the Family Law Act then the words "to the applicant' wherever appearing in the previous regulations may be severed.

2. If there is a fundamental right in an Australian citizen to remain within Australia unless there is a clear legislative intention to provide for their removal, then the Family Law (Child Abduction Convention Regulations) evince such a clear intention.

3. The order that the child be accompanied by her mother is an order which enables rather than requires the mother to accompany the child when she is returned to the United States.

The application should be dismissed.

FAMILY LAW ACT 1975

IN THE FULL COURT  
OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA 39 of 1996
AT MELBOURNE  File No SY 3981 of 1995
BETWEEN:

DEBORAH JOY LAING
Appellant Wife

- and -

THE CENTRAL AUTHORITY
Respondent

JUDGMENT OF THE HONOURABLE JUSTICE MOORE

CORAM:  NICHOLSON CJ, FINN, KAY, MOORE,
  and MAY JJ

DATE OF HEARING:  27 and 28 August, 14 September 1998
DATE OF JUDGMENT:                   9 February 1999

APPEARANCES:  

Dr Griffith, one of Her Majesty’s Counsel, and Ms Eastman of Counsel, instructed by Bruce A Swane & Co., 89 Cambrai Ave, Engadine NSW 2233, appeared on behalf of the Appellant Wife.

Mr Basten, one of Her Majesty’s Counsel, and Mr Anderson of Counsel, instructed by Crown Solicitors Office, GPO Box 25, Sydney NSW 2001, appeared on behalf of the Respondent Central Authority.

I agree with the reasons given by the Chief Justice and with the orders he proposes.

I certify that this page is a true copy of the judgment handed down by the Honourable Justice Moore. 

Associate: 

FAMILY LAW ACT 1975

IN THE FULL COURT  

OF THE FAMILY COURT OF AUSTRALIA  Appeal No EA 39 of 1996

AT MELBOURNE  File No SY3981 OF 1995

BETWEEN:

DEBORAH JOY LAING

Appellant Wife

- and -

THE CENTRAL AUTHORITY

Respondent

REASONS FOR JUDGMENT OF JUSTICE MAY

CORAM:NICHOLSON CJ, FINN, KAY, MOORE AND MAY JJ

DATE OF HEARING:  27 AND 28 August, 14 September 1998

DATE OF JUDGMENT:                   9 February 1999

APPEARANCES:

Dr Griffith, one of Her Majesty’s Counsel, and Ms Eastman of Counsel, instructed by Bruce a Swane & Co., 89 Cambrai Ave, Engadine NSW 2233,  appeared on behalf of the Appellant Wife.

Mr Basten, one of her Majesty’s Counsel, and Mr Anderson of Counsel, instructed by Crown solicitors Office, GPO Box 25, Sydney NSW 2001, appeared on behalf of the Respondent Central Authority.

1. I have had the benefit of reading the Reasons for Judgment prepared by the Chief Justice, Finn J and Kay J.  I agree with the reasons of Finn J and her ultimate conclusion.  I also agree with the conclusions of Kay J to which I specifically refer.

1. In addition, I agree with the Chief Justice that there must be a category of cases as described in the authorities when this Court should exercise its discretion to set aside orders made by the Full court and by a trial judge.  However, in my view, this case does not fall within that category.

1. It is clear from the authorities referred to in the judgment of the Chief Justice and Kay J that there must be “a misapprehension as to the facts or the law” and that such “acts and/or oversight unrepaired will occasion an injustice.”  The principles were summarised by the High Court in De L v Director-General, New South Wales Department of Community Services & Anor (No 2) 1997 190 CLR 207 at p 215:

   ‘The power of this Court to re-open its judgments or orders is not in doubt.  The Court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded “on a misapprehension as to the facts or the law”, where “there is some matter calling for review” or where “the interests of justice so require”.  It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required “without fault on his part”, ie without the attribution of neglect or default to the party seeking reopening.  By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law.  On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority.  On the other hand, courts recognise that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice.  In the case of a final court of appeal, such as this Court, that injustice may be irremediable, unless the Court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.’

2. It is clear that the judgment of the trial judge referred, without discrimination, to both the former and revised regulations.  Though various references are made to “the applicant” and to “the country” each is in the context of considering the “grave risk” defence which is contained in both sets of regulations.  It has not been shown that more precise attention to the different terminology would have produced any different result.  As Kay J at paragraph 56 of his judgment puts it:

   “…the issue presented to the trial Judge and argued at the appellate level, and the orders made had nothing to do with any difference in the wording of either set of regulations.”

3. Although I agree that the Central Authority had a ‘special duty’ in this case, there is nothing in the judgments of either the Full Court or the trial judge to suggest that had the Full Court been immediately notified upon application by the Central Authority the outcome would have been different.

1. The present argument in relation to validity of the former regulations was not argued before the trial judge or the Full Court. The power to reopen does not allow a party the opportunity to raise contentious matters which could have previously been argued.   The fact that the regulations have already been held to be valid, is enough to justify a refusal to reopen on that ground.

Summary

1. The Full Court of the Family Court  has power in exceptional circumstances to set aside a perfected order.

2. In the circumstances of this case the power ought not to be exercised.

3. I adopt those parts of the judgment of Kay J in relation to Gsponer’s Case and Murray’s Case, particularly at paras 63-64; 76, 86-90: 100 and 101 and his response to the argument in relation to Australian citizens commencing at paragraph 96.

4. I would dismiss the application.