RS & ALMC

[2006] FamCA 388

[2006] FamCA 388

JFRSALMC

FAMILY LAW ACT 1975

IN THE FULL COURT OF

THE FAMILY COURT OF AUSTRALIA

AT PARRAMATTA

Appeal No. EA 7 of 2006
File No. SYM 651 of 2005

IN THE MATTER OF:

RS

Appellant/Father

- and -

ALMC

Respondent/Mother

REASONS FOR JUDGMENT

BEFORE:  JUSTICE I R COLEMAN
HEARD:  8^th day of May 2006
JUDGMENT:  25^th day of May 2006

APPEARANCES:                 Ms Winfield of Counsel, (instructed by Morton & Harris Solicitors, DX 5301 Nowra) appeared on behalf of the appellant father.

Mr Moss of Counsel, (instructed by Marriott Oliver Solicitors, DX 5302 Nowra) appeared on behalf of the respondent mother.

Name of Appeal  RS & ALMC

Appeal Number  EA 7 of 2006

Date of Appeal Hearing                   8^th day of May 2006

Date of Judgment  25^th day of May 2006

Bench  Coleman J

Catchwords:  Appeal against orders directing father to obtain British citizenship and passports for children on the basis that the Federal Magistrate lacked jurisdiction to grant such relief.

Father’s appeal heard and determined notwithstanding that the issue raised on appeal was not raised in the Federal Magistrates Court.

Court not persuaded that the application with respect to British citizenship was demonstrably “within jurisdiction” or “outside jurisdiction” – Issue having not been agitated at trial, findings of fact insufficient to determine issue of jurisdiction.

Appeal allowed – matter remitted for re-hearing on the merits.

Mother granted costs certificate having failed to raise at first instance the issue raised on appeal.

Appeal allowed.

Costs certificate ordered for respondent.

1. By Notice of Appeal filed 22 December 2009, the father appealed against an order made in proceedings between himself and the mother by Federal Magistrate Ryan sitting in Wollongong on 28 November 2005.

2. The order against which the father appeals (Order 9) provided:

   That the father sign all documents and do all things necessary to enable the children GJS born August 1993 and HKGS born August 1993 to obtain British citizenship and to obtain British passports. In this regard the father shall sign all documents required to give effect to this order within fourteen (14) days of those documents being given to him.

3. As the grounds of appeal relied upon by the father make clear, the order is challenged in this Court on the basis that the Federal Magistrates Court “had no jurisdiction” to make the order:

   … on the basis that it exceeds the Court’s jurisdiction pursuant to the Family Law Act 1975, the Federal Magistrates Courts Act 1999, the Commonwealth of Australia Constitution Act 1900 and exceeds the inherent jurisdiction of the Commonwealth of Australia.

4. The father thus seeks that Order 9 be set aside.

BACKGROUND

1. The proceedings before the learned Federal Magistrate were commenced by the mother in the Local Court at Nowra in March 2005.  Relevantly for present purposes, the mother sought in her initiating Application an order that:

   The father shall forthwith sign all documents to enable the children to obtain both Australian and British passports within fourteen days of being asked to do so by the mother.

2. By his Response filed shortly thereafter, the father sought that the mother:

   … be restrained from taking any action of any kind whatsoever in order to obtain any form of passport for the said children without the prior written consent of the Respondent father.

By way of alternative relief in the event of the Court permitting the mother to remove the children from the jurisdiction of the Court for any period, the father sought an order that he “sign all documents to enable the children to obtain Australian passports” on a number of conditions set out in his Response.

1. On 28 November 2005 the learned Federal Magistrate made a number of orders by consent, including orders permitting the mother to remove the children “from the Commonwealth of Australia to Britain and/or Europe during the six (6) month period” nominated by the mother having given to the father “not less than two (2) months notice” of such period.  It was further ordered by consent that the father sign “all documents and do all things necessary to enable the children to obtain Australian passports”.

2. No part of this appeal relates to the order enabling the mother to obtain Australian passports for the children.

3. Order 9, which was made in the face of the father’s opposition, includes the obtaining of “British citizenship” and “British passports” for the children whereas the mother’s initiating application sought only the latter relief.

10.  A document entitled “Short Minutes of Orders” reproduced in the appeal book, provided for an order that the father:

… within seven days from the date of these orders sign all documents and do all things necessary:

(a)To enable the children to obtain British citizenship.

(b)To enable the children to obtain British passports.

That document was provided to the learned Federal Magistrate by counsel for the mother at the commencement of the hearing before her (Transcript of 28 November 2005, page 6). 

11.   The transcript makes clear that the only matter for determination before the learned Federal Magistrate became “the passport issue” as her Honour described it (Transcript of 28 November 2005, page 7).  It is apparent from the transcript that the focus of attention by counsel for each party before the learned Federal Magistrate was the benefits and risks associated with the children having British passports.  

12.  The issue raised before this Court does not appear to have assumed significance before her Honour.  Final submissions made then and now confirm that impression.  The Court has been unable to discern anywhere in the course of the trial of the proceedings before the learned Federal Magistrate, or in written submissions made by counsel for the father, any suggestion that her Honour lacked jurisdiction to make the orders now complained of.

13.  Counsel for the father has however pursued the jurisdiction argument in this Court without objection from counsel for the mother, essentially on the basis that, if the learned Federal Magistrate did not have jurisdiction to make the order which gives rise to this appeal then the failure to raise that point before her ought not preclude it being raised, and raised successfully, on appeal to this Court.

14.  The decisions of the High Court in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, Coulton v Holcombe (1986) 162 CLR 1 and Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279, which might be thought to create an impediment to the father proceeding with his appeal, having not been raised on behalf of the mother, and in the absence of any other objection, the Court concludes that the father should not be precluded from raising the current challenge to the learned Federal Magistrate’s Orders.

15.  It is reasonably apparent from the background to the proceedings that the significance of seeking British citizenship as a necessary prerequisite to the obtaining of British passports may not have been appreciated by counsel at trial.  The issue was not then agitated as it has been in the appeal.  Unsurprisingly in those circumstances, the learned Federal Magistrate’s reasons for judgment do not address the question of jurisdiction in any detail, for which her Honour cannot be criticised.

16.  It is apparent from the absence of challenge in the grounds of appeal relied upon by the father, and was confirmed by his learned counsel at the commencement of the hearing of the appeal, that the only issue for determination in the proceedings is whether the Federal Magistrates Court had jurisdiction to order a parent to obtain citizenship of another country on behalf of a child of that parent.  It was sensibly conceded that if the learned Federal Magistrate had jurisdiction to make the order complained of, save in one respect, no other basis for challenging that order was suggested.

17.  The only other issue raised on appeal, albeit by way of alternative challenge, was that if the learned Federal Magistrate had jurisdiction to make the orders complained of, her Honour erred in including in the order the words “and do all things”.  Counsel for the mother conceded that such alternate challenge was entitled to succeed.  Reasons why such concession was well founded will in due course be provided.  As with the primary issue of jurisdiction, the inclusion of the words complained of in the order was not a topic which was agitated before the learned Federal Magistrate.

THE REASONS FOR JUDGMENT OF THE LEARNED FEDERAL MAGISTRATE 

18.  For the reasons provided earlier, her Honour’s reasons for judgment do not assume the kind of significance in this case which they normally would, which, it must be stressed, is not said critically of her Honour. 

19.  Some reference to the reasons for judgment is helpful however.

20.  Her Honour recorded that the father held “dual Australian and British citizenship” as did the mother. 

21.  The parties had lived in a de facto relationship but had not ever married.  The parties separated in 1995 after which time the children lived with the mother and “exercised contact with their father”, Court orders of 12 May 2000 reflecting those arrangements.

22.  Having referred to the mother’s proposed travel for 6 months to the UK, to which the father had by the time the trial commenced before her Honour consented on terms and conditions reflected in the consent orders made by her Honour, reference was made to the issue of British citizenship.

23.  Her Honour recorded:

6.   Because the mother inherited British citizenship, compared to acquiring it as of right, and the children are “illegitimate” she cannot establish the necessary preconditions for the children to secure British citizenship.

24.  She further recorded that:

7.   Under current guidelines the children’s claim to British citizenship based on patriarchy must be completed before they turn 18. She has requested the father to forthwith complete applications for British citizenship on the children’s behalf forthwith.

25.  The “reason for the father’s opposition to facilitating the children’s British passports” was then referred to by the learned Federal Magistrate.

26.  The “relevant facts” as her Honour considered them on the evidence related to the benefits for the children of their journey to Europe and/or the UK and the likelihood of their being returned if that were to occur.  Her Honour concluded that consideration by recording:

18.  These are all weighty matters that clearly indicate that the degree of risk that the mother will keep the children overseas for longer than proposed is unlikely.

The proposed trip was thus considered to be “a wonderful educational experience” for the children.

27.  Any suggestion that the trip was “a ruse to get the children out of Australia and, once they were out, keep them out of Australia indefinitely” was rejected by the learned Federal Magistrate for reasons which she then gave.

28.  Her Honour then turned her attention to the “difference” that travelling on a British passport may make “in terms of the degree of risk of non return”, and concluded that “[a]s far as risk is concerned basically British citizenship makes no difference” (judgment, paragraph 23).

29.  Her Honour concluded in relation to the issues:

24.  The balance of convenience and children’s best interests suggests that the children should be able to access their British citizenship now so that they can have the holiday that their mother has planned for them.  It was put that the mother could rearrange the holiday again so that more time was spent in non-Schengen countries.  If there was a good reason for forcing the mother to change the children's holiday to require more time, for example, in the United Kingdom than presently proposed, that would be one thing.  But there is no good reason for requiring her to change the proposed trip.  The mother is funding the holiday.  She accepts responsibility for all of the effort associated with it and in my view, having established her bona fides vis returning the children, is entitled to have the trip with the children that she has planned for them.

30.  Her Honour further concluded:

25.  On this basis, the father will be ordered to forthwith sign all such documents as required in order to pursue British citizenship for the children.  It is feasible he may be required to attend for an interview, although this is unlikely.  If necessary, then he must do so.  In my view this is an aspect of his parenting responsibility and promotes the children’s best interests.  The costs of securing British citizenship for the children are costs the mother says she will bear and by virtue of my order she will be required to meet.  These orders, I am satisfied, are in the children's best interests.

THE GROUNDS OF APPEAL

31.  As noted earlier, the primary ground of appeal relied upon by the father was that her Honour did not have jurisdiction to order him to sign documents or do things necessary to enable the children to obtain British citizenship, without which, it is common ground, British passports could not issue to the children.

32.  In her comprehensive written submissions, counsel for the father submitted that the “Order made by the Federal Magistrate exceeded the application sought by the Mother” and that “[t]o this extent, the Father and his legal representatives were caught by surprise at the hearing and were unprepared for the jurisdictional issue which arose during the hearing and by the Orders made” (Appellant’s Summary of Argument, page 2).

33.  As was made plain by counsel for the father, the complaint was not that the orders were made in circumstances involving the denial of natural justice to the father but rather that, in the circumstances as revealed by the transcript, the “jurisdictional issue was not articulated by either side nor by the Federal Magistrate during the hearing” (Appellant’s Summary of Argument, page 2).

34.  The transcript confirms the accuracy of that summary of events at trial and re-enforces the Court’s conclusion, confirmed by learned counsel for the mother, that the absence of challenge to jurisdiction in the lower Court ought not in the circumstances preclude such challenge being agitated before this Court.  Conversely, the father’s failure to raise the issue at that time, an absence of reasons for judgment per se can hardly advance the present complaint.  Neither counsel having raised it, and the issue not being one which should have alerted her Honour to any necessity or desirability to deal with it, the failure to deal with any question of jurisdiction does not provide a basis for criticising the learned Federal Magistrate.

35. Counsel for the father submitted that “having been born in Australia” the children of the parties were Australian citizens by virtue of the provisions of s 10 of the Australian Citizenship Act 1948 (Cth) (as amended) which provided:

Citizenship by birth

(1) Subject to this section, a person born in Australia after the commencement of this Act shall be an Australian citizen.

(2) Subject to subsection (3), a person born in Australia after the commencement of the Australian Citizenship Amendment Act 1986 shall be an Australian citizen by virtue of that birth if and only if:

(a) a parent of the person was, at the time of the person's birth, an Australian citizen or a permanent resident; or

(b) the person has, throughout the period of 10 years commencing on the day on which the person was born, been ordinarily resident in Australia.

(3) Subject to subsection (5), a person shall not be an Australian citizen by virtue of this section if, at the time of the person's birth, a parent of the person was an enemy alien and the birth occurred in a place then under occupation by the enemy.

(5) Subsection (3) does not apply in relation to a person if, at the time of the person's birth, a parent of the person:

(a) was an Australian citizen or a permanent resident; and

(b) was not an enemy alien.

(6) A reference in this section to a permanent resident does not include a reference to a person who is, for the purposes of the Migration Act1958 , an exempt non-citizen.

36.  It was further submitted that the British Nationality Act 1948 and 1981 (UK) regulated the granting of citizenship to non citizens of the United Kingdom. 

37.  It was submitted on behalf of the father, without dissent by counsel for the mother, that “the right to British citizenship is not automatic” and that the granting of British citizenship “is a discretion to be exercised by a foreign jurisdiction, the United Kingdom”.  The decision of the English Court of Appeal in Secretary of State for the Home Department v David Hicks [2006] EWCA Civ 400 (delivered 12 April 2006) appears to support that submission. Interestingly, the observations of Lord Justice Pill in that case raise the possibility that the children of these parties being “citizens by descent” under s 5 of the British Nationality Act may arise independently of anything this Court does or can do (paragraph 2).

38.  Reference was made to the relevant provisions of the Australian Citizenship Act 1948-1973 (ss 18 & 19) relating to the loss of Australian citizenship which provide:

Renunciation of citizenship

(1) Where a person is an Australian citizen and:

(a) has attained the age of 18 years and is a national or citizen of a foreign country; or

(b) was born, or is ordinarily resident, in a foreign country and is not entitled, under the law of that country, to acquire the nationality or citizenship of that country by reason that the person is an Australian citizen;

the person may lodge with the Minister a declaration in the prescribed form renouncing the person's Australian citizenship.

(4) Subject to subsections (5), (5A) and (6), the Minister shall register a declaration made under this section and thereupon the person making the declaration shall cease to be an Australian citizen.

(5) Where, during a war in which Australia is engaged, a declaration is made under this section by a person who is a national or citizen of a foreign country, the Minister may refuse to register the declaration.

(5A) The Minister shall not register a declaration made under this section if the Minister considers that it would not be in the interests of Australia to do so.

(6) The Minister shall not register a declaration made under this section unless the Minister is satisfied that the person who made the declaration:

(a) is a national or citizen of a foreign country; or

(b) will, if the declaration is registered, become a national or citizen of such a country immediately after the registration.

Loss of citizenship by reason of service in armed forces of an enemy country

An Australian citizen who, under the law of a foreign country, is a national or citizen of that country and serves in the armed forces of a country at war with Australia shall, upon commencing so to serve, cease to be an Australian citizen.

39.  It is clear, and not in contention in this appeal, that the granting of British citizenship to the children of these parties would not affect or in any way call into question their continuing status as Australian citizens.

40.  It was submitted on behalf of the father that “the jurisdiction of a country is defined by its boundaries.  A country may pass laws affecting the jurisdiction of a foreign country but could not rely on such laws being enforceable in that country” (Appellant’s Summary of Argument, page 4).

41.  Reference was made to a number of sections in the Commonwealth of Australia Constitution Act in reliance upon which it was submitted that:

The power of the Commonwealth of Australia to make laws does not extend to the power to grant foreign citizenship to an Australian citizen. The power of the Commonwealth is confined in this respect by its boundaries and by the Constitution. By extension, it cannot require a parent to grant his or her child citizenship of a foreign country. (Appellant’s Summary of Argument, page 5)

42. It was submitted that the “welfare of children” was not a “matter” within ss 75 or 76 of the Commonwealth Constitution and as such could not be a “matter” in respect of which the Federal Magistrates Court could be invested with jurisdiction. Sections 75 and 76 of the Commonwealth Constitution provide:

Original jurisdiction of High Court

In all matters:

(i)  arising under any treaty;

(ii)  affecting consuls or other representatives of other countries;

(iii)  in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;

(iv)  between States, or between residents of different States, or between a State and a resident of another State;

(v)  in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

(i) arising under this Constitution, or involving its interpretation;

(ii)  arising under any laws made by the Parliament;

(iii)  of Admiralty and maritime jurisdiction;

(iv)  relating to the same subject‑matter claimed under the laws of different States.

43. It is desirable to refer to s 77 of the Constitution to better appreciate the operation of those sections, which, by their terms, refer only to “the High Court”. Section 77 of the Constitution provides:

Power to define jurisdiction

With respect to any of the matters mentioned in the last two sections the Parliament may make laws:

(i)  defining the jurisdiction of any federal court other than the High Court;

(ii)  defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

(iii)  investing any court of a State with federal jurisdiction.

44.  It was submitted that the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs and B (2004) 219 CLR 365 (MIMIA v B) supported the father’s contention that the Federal Magistrates Court lacked jurisdiction to grant the relief provided by Order 9 of 28 November 2005.

45.  The Court was reminded that the Federal Magistrates Court was created by statute (Federal Magistrates Act 1999 (Cth)) with “defined jurisdiction”, which did not include the “parens patriae jurisdiction”. Section 10 of the Federal Magistrates Act relevantly provides:

(1)  The Federal Magistrates Court has such original jurisdiction as is vested in it by laws made by the Parliament:

(a)  by express provision;

46. It was submitted that neither pursuant to s 10 nor s 18 of the Federal Magistrates Act could jurisdiction to “the granting of citizenship of another country, interpreted as extending to require an Australian citizen to apply, either for themselves or for another person, for citizenship of a foreign country, British or otherwise” be found or inferred (Appellant’s Summary of Argument, page 6). Section 18 of the Federal Magistrates Act provides:

Jurisdiction in associated matters

To the extent that the Constitution permits, jurisdiction is conferred on the Federal Magistrates Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Magistrates Court is invoked.

47.  It was further submitted that “[b]y extension, it cannot be interpreted as extending to require an Australian citizen to apply, either for themselves or for another person, for citizenship of a foreign country”.

48.  Jurisdiction under the Family Law Act was submitted to be conferred upon the Federal Magistrates Court by s 69H(4) of the Family Law Act.  That section provides:

Jurisdiction is conferred on the Federal Magistrates Court in relation to matters arising under this Part (other than proceedings for leave under section 60G).

49. Section 69H is found in Part VII of the Family Law Act, the title to which is “children”.  The “objects and principles underlying” Part VII are set forth in s 60B which provides:

(1)  The object of this Part is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

(2)  The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests:

(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b)  children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c)  parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d)  parents should agree about the future parenting of their children.

50.  The children of these parties not being “children of a marriage”, the power of the Family Court with respect to them derives from the referral of powers by the State of New South Wales in Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW). The validity of such referral of state powers has not been questioned in this appeal.

51.  Whilst sensibly it was not suggested that the Federal Magistrates Court lacked jurisdiction to make orders with respect to the welfare of the children of these parties, it was submitted that the exercise of such power did not extend to the making of an order of the kind complained of in this appeal.  It was submitted that the Court could not make a mandatory injunctive order in the absence of jurisdiction to deal with the subject matter of such injunctive order, a proposition which cannot be seriously disputed.

52. Counsel for the father relied upon the provisions of s 69ZE of the Family Law Act which provides:

(1)  Subject to this section and section 69ZF, this Part extends to New South Wales, Victoria, Queensland, South Australia and Tasmania.

(2)  Subject to this section and section 69ZF, this Part extends to Western Australia if:

(a)  the Parliament of Western Australia refers to the Parliament of the Commonwealth the following matters or matters that include, or are included in, the following matters:

(i)  the maintenance of children and the payment of expenses in relation to children or child bearing;

(ii)  parental responsibility for children; or

(b)  Western Australia adopts this Part.

(3)  This Part extends to a State under subsection (1) or (2) only for so long as there is in force:

(a)  an Act of the Parliament of the State by which there is referred to the Parliament of the Commonwealth:

(i)  the matters referred to in subparagraphs (2)(a)(i) and (ii); or

(ii)  matters that include, or are included in, those matters; or

(b)  a law of the State adopting this Part.

(4)  This Part extends to a State at any time under subsection (1) or paragraph (2)(a) only in so far as it makes provision with respect to:

(a)  the matters that are at that time referred to the Parliament of the Commonwealth by the Parliament of the State; or

(b) matters incidental to the execution of any power vested by the Constitution in the Parliament of the Commonwealth in relation to those matters.

It was submitted that the operation of the section was limited and did not include “parens patriae jurisdiction”.  It was submitted that only the “inherent or parens patriae jurisdiction” gives “power to a State to make provision for children but only within its own territorial borders” (Appellant’s Summary of Argument, page 9).

53. Reliance was also placed upon the terms of s 65D of the Family Law Act which provided:

(1)  The regulations may make provision with respect to authorising:

(a)  a specified authority of the Commonwealth or of a State or Territory; or

(b)  the person from time to time holding or acting in a specified office established under a law of the Commonwealth or of a State or Territory;

to institute and conduct, on behalf of a child, in the authority’s or person’s discretion, proceedings with respect to the maintenance of the child.

(2)  Proceedings instituted on behalf of a child under regulations covered by subsection (1) are taken, for the purposes of section 69C and the provisions referred to in it, to have been instituted by the child.

54. Counsel for the father submitted that “it exceeds a parenting order to change the very birthright of a child by changing its citizenship”. It was further submitted that “requiring the Father to pursue British Citizenship for the children” could not be “an aspect of his parental responsibility” having regard to the terms of s 61B of the Family Law Act which provided:

In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

55.  It was thus submitted that

… while the parental responsibility conferred on a parent within the meaning of the Family Law Act concerns the duties and obligations owed by the parent to the children the Court’s powers in respect to such duties or obligations cannot be extended to enable the Court to require a parent to make a child a citizen of a foreign country. (Appellant’s Summary of Argument, page 10)

56.  In reliance upon the judgments of Gleeson CJ and McHugh J in MIMIA v B it was submitted that the Court lacked the power to require the father to “pursue British Citizenship for the children under the law of a foreign country” (Appellant’s Summary of Argument, page 10).

57. It was submitted on behalf of the father that s 67ZC of the Family Law Act, which provides:

(1)  In addition to the jurisdiction that a court has under this Part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.

Note:          Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of a court to make an order relating to the welfare of a child.

(2)  In deciding whether to make an order under subsection (1) in relation to a child, a court must regard the best interests of the child as the paramount consideration.

Note:          Division 10 deals with how a court determines a child’s best interests.

did not “extend to enable the Court to order a parent to obtain citizenship of a foreign country for the children”.  It was thus submitted that the Federal Magistrates Court lacked the jurisdiction to make the order complained of. 

58.  In addition to his written submissions, counsel for the mother relied on a number of passages in the judgment of Gleeson CJ and McHugh J in MIMIA v B.  At 384, upon which counsel for the mother relied, their Honours said:

The valid application of s 67ZC, therefore, is dependent upon some other provision in Pt VII of the Act creating a "matter" within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach. Consequently, it is necessary to turn to other provisions in the Act -- particularly Pt VII -- to determine the jurisdiction, if any, that s 67ZC validly confers. This step is required in order to ascertain whether one or more provisions enacts substantive rights or privileges or imposes substantive duties which constitute a "matter" under s 75 or s 76 of the Constitution and which can be inferentially linked to s 67ZC. If this step is not taken, it is impossible to identify the "matters" concerning "the welfare of children" which arise under a law of the Parliament for the purpose of s 76(ii) of the Constitution and the jurisdiction of the Family Court that the Parliament has defined in respect of those matters for the purpose of s 77(i) of the Constitution.

59.  At 390 their Honours said:

By necessary implication, the parents of a child may seek an order under s 67ZC whether the operation of that section is confined by s 69ZH(2) and (3) or whether it has an operation independently of those subsections. The right to seek that order arises from various provisions in Pt VII, but particularly from ss 60B, 61B and 61C. Section 60B(1) declares that the object of Pt VII:

"is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children."

Section 61C(1) declares that "[e]ach of the parents of a child who is not 18 has parental responsibility for the child". Section 61B defines this parental responsibility in Pt VII to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". The provisions of these three sections provide ample support for an application by a parent for an order under s 67ZC, whether the source of the jurisdiction is Div 12 generally or s 69H in particular.

60.  At 390-1 their Honours also said:

By necessary implication, the Family Court may also make an order under s 67ZC that is binding on a parent. Under that section it may also make orders such as those made in Marion's Case or those analogous to orders traditionally made by courts exercising the parens patriae jurisdiction. Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes -- expressly or inferentially -- any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties -- for example, ss 65M, 65N and 65P -- that Part is concerned with the relationship between parents and children and parents' duties in respect of their children. We have already set out s 60B(1), which states the object of Pt VII. Section 60B(2) declares:

"The principles underlying these objects are that, except when it is or would be contrary to a child's best interests:

(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

(b) children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and

(c) parents share duties and responsibilities concerning the care, welfare and development of their children; and

(d) parents should agree about the future parenting of their children."

61.  At 396 Gummow, Hayne and Heydon JJ said:

It is desirable to approach consideration of the text and structure of what is now Pt VII by first referring to some earlier decisions of this Court about the Family Law Act. Those decisions illustrate how that Act, in its earlier forms, has been held to operate in identifying matters and in conferring jurisdiction with respect to them. From there it is convenient to go to the examination of a number of the provisions of Pt VII in order to reveal the place occupied by the particular provisions which are in issue in this appeal. That examination will reveal that the Minister's submission is correct. It is Div 12 which provides the relevant conferral of jurisdiction on the Family Court. The jurisdiction conferred is limited. Neither s 69ZE nor s 69ZH conferred jurisdiction to decide either of the applications which gave rise to this appeal. Section 69ZE confers jurisdiction on the Family Court in matters the subject of a reference by a State of power, and matters incidental to the execution of a power vested by the Constitution in the federal Parliament in relation to those matters. Neither of the applications which give rise to this appeal was such a matter, the reference by South Australia being limited to matters of maintenance, custody, guardianship and access. Section 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage.

62.  Their Honours also said at 405:

The second potential application was in the combination of ss 69ZH and 67ZC. However, in its terms, s 69ZH confines the operation of s 67ZC to the parental responsibilities of the parties to a marriage for a child of the marriage. The result, the Minister submits, is that neither of these potential applications of Div 12 of Pt VII could be supported in the present litigation. That submission should be accepted. The same is to be said of reliance upon the injunction provision in s 68B in conjunction with s 69ZH.

63.  Reference was also made to the decision of the Full Court of this Court (Kay, Coleman and Brown JJ) in L v T (1999) FLC 92-875 in which it was said at paragraph 57:

In our view, whatever the limits of the wardship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. It may clearly be demonstrated that it is in a child's interest that a parent remain healthy and to that end give up smoking. Some would say it is essential that all adults undergo regular exercise, eat only healthy foods, and refrain from consuming alcohol. It would not be, in our view, a proper exercise of the ``welfare'' power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.

64.  It was thus submitted that the power of the Court to make parenting orders with respect to the welfare of the children was extremely wide, and that albeit the fate of so doing would inevitably be determined by and in accordance with the laws of a foreign country, the order complained of fell within the jurisdictional competence of the Federal Magistrates Court.

DISCUSSION

65.  There is little doubt that nationality or citizenship is “to be settled for the purposes of each State by its own municipal law” (per Brennan J in Sykes v Cleary (1992) 176 CLR 77 at 111). It is reasonably clear from the decision of the Court of Appeal in Secretary of State for the Home Department v David Hicks that “registration” as a British citizen is not necessarily automatic, and is clearly not something over which any Court in this country could lawfully attempt to exert influence.

66. The learned Federal Magistrate clearly had jurisdiction with respect to the children of these parties. The requirements of s 69E of the Act, which relate to the presence of the children in Australia, or their Australian citizenship or ordinary residence in the country, were undoubtedly satisfied. By virtue of s 69H(4) the Federal Magistrates Court had jurisdiction with respect to matters arising under Part VII, other than proceedings for leave under s 60G of the Family Law Act which is not relevant for present purposes.  The children’s parents were both able to “institute any proceedings” within the jurisdictional competence of the Court pursuant to Part VII of the Family Law Act by virtue of s 69C of the Act. 

67.  It is then relevant to consider what “matters” fall within the ambit of the jurisdiction conferred upon the Court by the provisions of the Family Law Act. Section 69ZE makes clear that “parental responsibility for children” is, by virtue of the referral of powers by the State of New South Wales, vested in the Family Court and, by virtue of the relevant provisions of the Family Law Act and the Federal Magistrates Act, the Federal Magistrates Court.  The Federal Magistrates Court thus had jurisdiction to make orders with respect to “parental responsibility” of the children of the parties’ and, in exercising such jurisdiction, the Court was obliged to have regard to the “best interests of children” in accordance with the provisions of Part VII Division 10.

68. The appeal raises the question of the width of the jurisdiction to make orders for “parental responsibility”. Section 61B of the Family Law Act defines “parental responsibility” as:

In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

69.  In Secretary, Department of Health & Community Services v JWB and SMB (Marion’s case) (1991-1992) 175 CLR 218 the High Court (Mason CJ, Dawson, Toohey, Gaudron & McHugh JJ) considered that the welfare of the child of a marriage was a “matter” which arose under Part VII of the Family Law Act for the purposes of s 63(1) of the Act, as it then read, and was thus an independent subject which may support proceedings before the Family Court with the result that the Family Court had jurisdiction to authorise the sterilisation of a child in appropriate circumstances when an application for such relief was made.

70.  The essential facts of that case were that the parents of Marion, a mentally retarded fourteen-year-old girl, applied to the Family Court for an order authorising performance of a hysterectomy and an ovariectomy on her.  Alternatively a declaration that it was lawful for them to consent to the performance of those procedures was sought.  The trial Judge stated a case to the Full Court of the Family Court, for consideration of several questions, including whether the Family Court of Australia has jurisdiction:

(a) to authorize the carrying out of such a procedure; or

(b) to enlarge the powers, rights or duties of the Applicants as guardians of the said child to enable them to lawfully authorize the carrying out of such a procedure; or

(c) to approve the consent of the Applicants, as guardians of the said child, to the proposed procedure to make the procedure lawful?

The Full Court answered these questions as (a) yes, (b) no, (c) no. The Secretary of the Department of Health and Community Services of the Northern Territory, who represented Marion, appealed to the High Court from the answers given by the Full Court.

71.  Under the heading “Does the Family Court have jurisdiction to authorize sterilization?” Mason CJ, Dawson, Toohey and Gaudron JJ referred to the 1983 amendments to the Family Law Act whereby the definition of “matrimonial cause” was amended to include “proceedings between the parties to a marriage with respect to the welfare of a child of the marriage”.

72.  Their Honours concluded at 256 that the:

… 1983 amendments were intended to, and did, confer jurisdiction on the Family Court similar to the parens patriae jurisdiction, without the formal incidents of one of the aspects of that jurisdiction, the jurisdiction to make a child a ward of court.

73.  Reference was then made to the provisions of s 63 of the Act which conferred jurisdiction on the Family Court “in relation to matters arising” under Part VII.  Section 63 of the Act then provided:

Jurisdiction is conferred on the Family Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Part (including proceedings under sections 70C and 70D).

74.  In 1992, s 64(1) of the Act provided:

In proceedings with respect to the custody, guardianship or welfare of, or access to, a child –

…

(c) … the court may make such order in respect of those matters as it considers proper, including an order until further order

Their Honours said at 257 that:

The sub-section does not in terms confer jurisdiction on the Court but it confers power to make orders and presupposes jurisdiction. 

75.  Their Honours thus concluded at 257 that:

Whether the source of jurisdiction is to be found primarily in s. 64 along with s. 63(1) … or in a much wider range of sections in Pt VII … it is clear that the welfare of a child of a marriage is a “matter” which arises under Pt VII for the purposes of s. 63(1) and is, therefore, an independent subject which may support proceedings before the Family Court.  Although there are limits on that jurisdiction, there is no doubt that it encompasses the circumstances of the present case.

76.  It appears from their Honours’ subsequent comments that the “limits” of that jurisdiction related principally to the power to make a child a ward of the Court.

77.  Under the heading “The nature of the welfare jurisdiction”, their Honours re-affirmed that the “welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction”.

78.  Reference has earlier been made to MIMIA v B, the brief facts of which were that B and his brother, together with their parents and sisters, were unlawful non-citizens being held in immigration detention in South Australia. They commenced proceedings in the Family Court of Australia, by their mother as their next friend, against the Minister for Immigration and Multicultural and Indigenous Affairs seeking orders including a mandatory order under s 67ZC or s 68B of the Family Law Act that the Minister be required to release them from detention. The Family Court dismissed the applications, holding that the Court did not have jurisdiction to make the orders sought. An appeal against that decision was allowed by a Full Court of the Family Court (Nicholson CJ and O'Ryan J, Ellis J dissenting in part). The majority held that the welfare jurisdiction of the Family Court in respect of children was not limited to disputes between parents with respect to custody and access to children and that, when necessary having regard to the welfare of children, the Court could make orders against third parties. The operation of s 67ZC was sufficiently related to the marriage of the parents to be supported by the marriage power in s 51(xxi) of the Commonwealth Constitution. The majority alternatively held that Pt VII of the Family Law Act implemented the United Nations Convention on the Rights of the Child and thus s 67ZC was held to be supported by the external affairs power in s 51(xxix) of the Constitution. The Full Court granted a certificate under s 95(b) of the Family Law Act, enabling the Minister to appeal to the High Court.

79.  In MIMIA v B, the High Court considered the operation of s 67ZC of the Family Law Act.  Reference has earlier been made to portions of their Honours’ judgments in that case.  In addition to the paragraphs of their joint judgment cited earlier, Gleeson CJ and McHugh J said at 380 that:

… s 67ZC does not itself impose any substantive liabilities or duties or confer rights or privileges on any person. Standing alone, therefore, s 67ZC does not confer jurisdiction in respect of a "matter" arising under a law of the Parliament because it does not confer rights or impose duties on anyone.

80.  Their Honours added at 383-4 however that:

… the failure of s 67ZC, standing alone, to define the Family Court's jurisdiction with respect to a s 75 or s 76 matter is not itself decisive against the respondents' contention that the Family Court had jurisdiction in the present matter. Other provisions of the Act may supply the elements of a "matter". The ultimate question then is whether, read as a whole, the Act defines the jurisdiction of and thereby -- for constitutional purposes -- confers jurisdiction on the Family Court to determine the present dispute between the respondent children and the Minister.

81.  It is appropriate to repeat their Honours’ conclusion at 384 that:

The valid application of s 67ZC, therefore, is dependent upon some other provision in Pt VII of the Act creating a "matter" within the meaning of s 75 or s 76 of the Constitution to which the jurisdiction conferred by s 67ZC can attach. Consequently, it is necessary to turn to other provisions in the Act -- particularly Pt VII -- to determine the jurisdiction, if any, that s 67ZC validly confers. This step is required in order to ascertain whether one or more provisions enacts substantive rights or privileges or imposes substantive duties which constitute a "matter" under s 75 or s 76 of the Constitution and which can be inferentially linked to s 67ZC. If this step is not taken, it is impossible to identify the "matters" concerning "the welfare of children" which arise under a law of the Parliament for the purpose of s 76(ii) of the Constitution and the jurisdiction of the Family Court that the Parliament has defined in respect of those matters for the purpose of s 77(i) of the Constitution.

82.  A number of provisions within the Family Law Act were then considered, and the divisions of Part VII analysed.  Their Honours concluded at 385 that:

… the various Divisions and subdivisions of Pt VII show that the main object of the Part is to require parents to act in ways that will advance the best interests of their children.

That conclusion is supported by the terms of s 60B(1) of the Act.  Their Honours added:

Nor, when construed as a whole, does anything in Pt VII suggest that the Part was intended to give the Family Court a general jurisdiction over children with the power to make an order against individuals whenever the best interests of a child require such an order to be made.

83.  Having considered the various divisions of Part VII, Gleeson CJ and McHugh CJ concluded at 386 that:

… the object of Pt VII and the contents of Divs 1 to 11 read as a whole suggest that, except where expressly mentioned, Pt VII is concerned with proceedings between the parents of children and also with the obligations of parents to children.

84.  Their Honours thus concluded at 390:

By necessary implication, the Family Court may also make an order under s 67ZC that is binding on a parent. Under that section it may also make orders such as those made in Marion's Case or those analogous to orders traditionally made by courts exercising the parens patriae jurisdiction. Nothing in that section or in the rest of Pt VII, however, suggests that the Family Court has jurisdiction to make orders binding on third parties whenever it would advance the welfare of a child to do so. Nothing in s 67ZC, or in Pt VII generally, imposes -- expressly or inferentially -- any duty or liability on third parties to act in the best interests of or to advance the welfare of a child. Except where Pt VII expressly imposes obligations on third parties -- for example, ss 65M, 65N and 65P -- that Part is concerned with the relationship between parents and children and parents' duties in respect of their children.

85.  Their Honours observed that:

The orders sought in the present case are not concerned with the relationship between the parents of the children. They do not seek to enforce duties or obligations owed by the parents to the children. They are not analogous to the orders sought in Marion's Case, which did not impose any duty or liability on a third party. The object of the orders in the present case is to require the Minister to take or to refrain from taking action in respect of the children. Nothing in Pt VII gives any support for the making of such an order or orders against the Minister. Consequently, no provision or combination of provisions in Pt VII defines the jurisdiction of the Family Court with respect to a matter involving the Minister. So far as the Minister is concerned, the Act has not defined any jurisdiction of the Family Court with respect to a matter mentioned in s 75 or s 76 of the Constitution.

86.  As noted earlier, Gummow, Hayne & Heydon JJ said at 406-7:

The submission that ss 67ZC and 68B are to be given effect according to their terms should be rejected. Section 67ZC, which appears in Div 8, and s 68B, which appears in Div 9, must be read in the manner indicated earlier in these reasons, with the provisions of Div 12, in particular s 69ZH. It may be that s 69ZH does not represent an exhaustive exercise of the marriage power and that the marriage power may extend to authorise laws respecting the welfare of children of a marriage in the fashion urged by the respondents. However, given the complex adjudicative history of the exercises of the marriage power in the past, it is perhaps not surprising that some caution is manifest in the terms of s 69ZH. At all events, the terms of that provision are limiting and decisive.

87.  Callinan J said at 434-5:

In my opinion the appellant's first submission is correct, that the jurisdiction conferred by s 67ZC of the Family Law Act does not, as a matter of statutory construction, extend to a jurisdiction to order the children to be released from detention. The only jurisdiction which the relevant States, including South Australia, sought to transfer and transferred to the Family Court for exercise under the Family Law Act pursuant to s 69ZE(3) and (4) was relevantly, the parental responsibility for, and the parental maintenance of children. Clearly, the orders sought by the respondents in this case are not orders with respect to any of these matters.

The reference by the States in the terms that it was made is consistent with these propositions: the Commonwealth has power to make laws with respect to marriage under s 51(xxi) and (xxii) of the Constitution; power in relation to ex-nuptial children resides in the States; and the whole thrust of the Family Law Act so far as children are concerned is to deal with children of marriages and the obligations of their parents to them. That last appears (inter alia) from those provisions of the Family Law Act in Pt VII to which I have referred, including s 69ZH, in which the notion of, and obligations attached to "parenting", that is to say, parents within, or who have been in a marriage, are set out. It was with "parenting" and its obligations not otherwise the subject of the Family Law Act that the States were concerned, and some powers with respect thereto that they sought to, and did in terms transfer to federal courts, the Family Court, and, by s 69H(4), the Federal Magistrates Court.

Sections 69ZE-69ZH are central to, and govern the application of the provisions of Pt VII. It is not only unlikely that a State would seek to confer a power upon the Commonwealth that the latter already possessed, but it also would be constitutionally unable to do so. What the States have done is simply to confer a jurisdiction with respect to parental obligations owed to children, not already possessed by the Commonwealth. Furthermore, the power or jurisdiction conferred is neither in terms nor by implication a general welfare jurisdiction over children. What I have said is, I believe, in conformity with the recent approach of the Court generally to a reference of a State power to be exercised in conjunction with a constitutionally confined Commonwealth powerhttp://subscriber.lawbookco.com.au/lbcbin/lpext.dll?f=id$id=cl%3Ar%3A43f9$cid=cl$t=hyperlink.htm$an=JD_df.219.CLR.00435248$3.0 - JD_df.219.CLR.00435248.

88.  His Honour concluded at 439:

No matter how extensive the powers conferred by s 51(xxi) and (xxii) may be, the powers of the Family Court with respect to children are powers in relation to, or arising out of married (either currently or previously) parentage of children, or of unmarried parentage of them on a reference by the States. Those powers do not comprehend a general discretionary welfare power over any or all children, whether of a marriage or not, exercisable in such a way as to override any or all other powers over children, such as to detain them in immigration detention, or rehabilitative, reformative, or penal institutions. The Family Court may no more do this than it could exercise a jurisdiction in tort or contract in order to advance the welfare of a child.

89.  From the judgments to which reference has been made, it is evident that the order complained of may or may not have been within the jurisdiction of the Federal Magistrates Court.  The order may have been “concerned with the relationship between the parents of the children”, and/or may have sought to “enforce duties or obligations owed by the parents to the children” and may, if falling within either of those descriptions, have been in the best interests of the children.  Unsurprisingly, given the way in which the proceedings developed before the learned Federal Magistrate, the question of the children’s “British citizenship” was not explored in the way in which it has been before this Court.

90. This Court is not persuaded that the relief sought by the mother necessarily fell “outside jurisdiction”. Nothing to which this Court has been referred establishes that questions regarding the citizenship of the children of a foreign country necessarily lack the relevant nexus to be a “matter” as required by the Constitution. Whether the issue fell “within jurisdiction” this Court is also unable to determine. The issue was not agitated before the learned Federal Magistrate who, necessarily, was thus unable to give the matter the benefit of her considered opinion and reasons for it. Nothing to which this Court has been referred establishes that questions regarding the citizenship of the children of a foreign country necessarily have the relevant nexus to be a “matter” within the Constitution. Only when findings of fact are made can it be determined whether or not the citizenship issue was a “matter” within the jurisdiction of the Federal Magistrates Court. The issue can be usefully contrasted with the question, had it arisen, of the children’s citizenship of Australia, or their “status” as “Australians”. Unlike questions of citizenship of a foreign country, such question(s) could be readily considered to have the relevant nexus, as involving the basis of the entitlement of the children to continue to live in the country in which they were born and have been usually, or habitually, resident.

91.  In Dougherty v Dougherty (1987) 163 CLR 278, a case involving the Constitutional validity of s 79(1) of the Family Law Act, the High Court remitted to a single judge of the Family Court for determination on the facts the question of whether a claim by a child of a marriage under s 79(1) of the Family Law Act fell “within jurisdiction” of the Family Court, having been satisfied that such claim did not necessarily fall “outside” the Court’s jurisdiction.  That approach, if it be permissible, has much to commend it in the present circumstances. 

92.  The issue confronting this Court however is whether the father has demonstrated error on the part of the learned Federal Magistrate in assuming jurisdiction to make the order complained of.

93. Absent findings of fact by the learned Federal Magistrate in support of the conclusions necessarily made by her with respect to s 67ZC, the order with respect to the obtaining of British citizenship cannot stand. If, the issue having been agitated before her, the learned Federal Magistrate concluded on the facts as found that such an order bore the relevant nexus to “parental responsibility”, nothing to which this Court has been referred establishes that such order would not fall within the jurisdictional competence of the Federal Magistrates Court. As the judgments in MIMIA V B, to which reference has been made explain, that question determines whether or not the jurisdiction to make orders with respect to the citizenship of the children exists.  The “best interests” of the children impact upon the exercise of the jurisdiction if it exists, but do not provide an independent basis for the jurisdiction.

94.  To the extent that it might be suggested that it can be inferred from the learned Federal Magistrate’s reasons for judgment that her Honour determined the “nexus” issue in favour of the mother, the Court does not accept that such was the case.  The issue which gives rise to the present appeal was simply not agitated before her Honour.  As a reading of her Honour’s judgment makes clear, the focus of enquiry before her did not extend to the implications of the children obtaining, or not obtaining, British citizenship.  The judgment of the Court of Appeal in the Hicks case suggests that, properly agitated, a considerable number of issues would have arisen for consideration by her Honour.  Those matters were not agitated in the hearing before her.  As noted throughout these reasons, for that her Honour deserves no criticism.

95.  Without suggesting fault on her Honour’s part, this Court is persuaded that Order 9 cannot stand.  It follows from the Court’s conclusions in relation to the jurisdiction issue that the application for orders in terms of Order 9 should be remitted to the Federal Magistrates Court for determination.  Nothing to which this Court has been referred provides any foundation for suggesting that it would be inappropriate for Federal Magistrate Ryan to undertake that hearing, although clearly this Court cannot and does not seek to direct her Honour in that regard.

96.  Although strictly unnecessary to consider the challenge to the wider and possible effect of Order 9, it is safe to suggest that the terms of any order in relation to the obtaining of British citizenship for the parties’ children, if within jurisdiction and appropriate to be made in the children’s interests, would need to carefully consider the nature of such an order.  The fact that any such order may involve the further seeking of orders in a foreign court would require very careful consideration both as a matter of jurisdiction and, if jurisdiction be attracted, discretion.

COSTS

97.  The appeal having been allowed, each party seeks the benefit of a certificate under the Federal Proceedings (Costs) Act 1981 with respect to the appeal.

98.  With the greatest respect to both parties, to grant certificates for the appeal in circumstances where the parties failed to agitate the issue at trial is an outcome which could not be readily embraced.

99.  It could however be said that although the unsuccessful respondent to the appeal, the mother ought not be penalised for not having responded to an issue which was not raised in the Federal Magistrates Court.  Such an argument is not without merit.  The mother’s inability in this appeal to direct the Court to findings of fact of the learned Federal Magistrate which would have provided a foundation for jurisdiction cannot be considered to have necessarily been the position had the father raised the jurisdictional challenge at trial.  It thus cannot be said that her position would necessarily have been the same even if the father had raised the jurisdiction issue at trial.  To the extent that the mother’s last minute seeking of orders in relation to British citizenship could be said to have “caused” the problem, the father did not complain about her doing so, at trial or on appeal.

1. In all the circumstances, the Court considers that the mother should have the benefit of a costs certificate with respect to the appeal but that the father should not.

ORDERS

1. The Court accordingly orders:

2. That the appeal be allowed.

3. That Order 9 of the Orders of 25 November 2005 be discharged.

4. That the matter be remitted to the Federal Magistrates Court for re-hearing.

5. That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

I certify that the preceding
101 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.C.
Associate
Date: 25/05/2006