DJL v Central Authority [2000] HCA 17; 201 CLR 226; 170 ALR 659; 74 ALJR 706

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

DJL APPELLANT

AND

THE CENTRAL AUTHORITY RESPONDENT

DJL v The Central Authority [2000] HCA 17

Date of Order: 18 November 1999

Date of Publication of Reasons: 13 April 2000

S75/1999

ORDER

Appeal dismissed with costs.

On appeal from the Family Court of Australia

Representation:

G Griffith QC and K L Eastman for the appellant (instructed by Bruce A Swane & Co)

J Basten QC and M W Anderson for the respondent (instructed by Crown Solicitor for New South Wales)

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with N E Abadee intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

P A Keane QC, Solicitor-General of the State of Queensland with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for the State of Queensland)

R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell intervening on behalf of the Attorneys-General for the States of Western Australia, Victoria and South Australia, the Northern Territory and the Australian Capital Territory (instructed by Crown Solicitor for the State of Western Australia, Victorian Government Solicitor, Crown Solicitor for the State of South Australia, Solicitor for the Northern Territory and ACT Government Solicitor)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

DJL v The Central Authority

Appeal – Family Court of Australia granted certificate under s 95(b) of Family Law Act 1975 (Cth) regarding "important questions of law and public interest" – Whether Family Court has power to set aside its own perfected orders – Scope of inherent powers of common law courts – "Slip rule" – Ambit of appellate jurisdiction determined by the terms of the statute granting right of appeal – Impermissibility of applying common law analogies to statutory courts.

Family Law – Family Court of Australia – Orders of Full Court – Orders perfected – Whether Full Court has inherent or implied power to set aside orders.

Practice – High Court – Appeal – Certificate by Family Court of Australia – Family Law Act 1975 (Cth) – Validity of requirement of – Specification of question certified.

Words and phrases – "inherent jurisdiction", "inherent power", "superior court of record", "slip rule".

Constitution, ss 71, 73.

Family Law Act 1975 (Cth), ss 93A, 95.

1. GLEESON CJ, GAUDRON, McHUGH, GUMMOW AND HAYNE JJ. What follows are our reasons for joining in the order made at the conclusion of the hearing on 18 November 1999 dismissing the appeal.

The history of the litigation

2. It is necessary first to outline the circumstances in which the matter came before this Court.

3. On 10 October 1996, the Full Court of the Family Court of Australia ("the Family Court") (Baker, Lindenmayer and Smithers JJ)¹ ordered that an appeal from orders made by a judge of that Court (O'Ryan J) on 20 February 1996 be dismissed. The orders made by O'Ryan J had been made following the hearing of an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the 1986 Regulations"). The orders, the appeal from which was dismissed, were²:

"1. That upon the Central Authority being satisfied that the father has given undertakings to the Superior Court, Gwinnett County, Georgia that he will pay to the Central Authority sufficient moneys to enable the mother 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."

Jurisdiction to entertain the appeal was conferred upon the Full Court by s 93A(1)(a) of the Family Law Act 1975 (Cth) ("the Family Law Act").

4. On 7 August 1998, this Court refused an application for an extension of time within which to present an application for special leave to appeal against the order of the Full Court. The application had been filed on 9 April 1998. It was brought out of time because the applicant, the mother of the child J, had gone into hiding with the child for some 14 months following the dismissal of the Full Court appeal.

5. On the same day that the Full Court had delivered its decision, this Court delivered judgment in De L v Director-General, NSW Department of Community Services³. As a result of the reasons for judgment of this Court in De L, the view thereafter was taken that O'Ryan J had erred in that he had applied the Family Law (Child Abduction Convention) Regulations (Amendment) 1995 (Cth) ("the 1995 Regulations") instead of the 1986 Regulations. The 1995 Regulations, which commenced on 26 October 1995, amended the 1986 Regulations, but the latter continued to apply, in the unamended form, to applications made before 26 October 1995⁴. Whether or not his Honour erred in this respect⁵, the Full Court had determined the appeal on the erroneous basis that the 1995 Regulations applied⁶.

6. On 17 August 1998, the mother, the present appellant, made an application to the Full Court of the Family Court⁷. Orders were sought from the Full Court that it set aside its order of 10 October 1996 and in place thereof order that the order of O'Ryan J of 20 February 1996 be set aside and the matter be remitted for rehearing before a single judge. By amendment made during the hearing before the Full Court of this application, the relief sought was varied so as to include a declaration that the order of O'Ryan J was "spent" and that the matter be remitted for further hearing before a single judge⁸. The application was said to be made pursuant to s 21 of the Family Law Act in "the inherent jurisdiction of the Court".

7. By majority (Finn, Kay and May JJ; Nicholson CJ, Moore J dissenting), the Full Court dismissed the application on 9 February 1999⁹. It should be noted that the application proceeded on the footing, which is not challenged, that the order sought to be set aside, that of the Full Court dismissing the appeal, was a final order and had been perfected. No question arose in the Family Court and none arises here with respect to interlocutory orders made by the Full Court or the revision of its final orders after they have been pronounced but before they have been entered. It has been assumed, no doubt correctly, both in the Full Court and in this Court, that the Family Court has power to act in that way before the entry of its orders.

"Notwithstanding anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except:

(a) by special leave of the High Court; or

(b) upon a certificate of a Full Court of the Family Court that an important question of law or of public interest is involved."

Provision in substantially the same terms is made in s 104 of the Child Support (Assessment) Act 1989 (Cth) ("the Child Support Act"). The Full Court ordered that the appellant:

"be granted a certificate pursuant to section 95(b) of the Family Law Act 1975 (Cth) that important questions of law and public interest are involved in the judgment of this Court dated 9 February 1999".

A certificate in those terms was then issued by the Family Court.

10. Section 95 of the Family Law Act is an exercise by the Parliament of its power conferred by s 73 of the Constitution to regulate the exercise of the jurisdiction of this Court to hear and determine appeals from all judgments, decrees, orders and sentences of the courts mentioned in s 73, including any federal court¹³. The requirement in s 95(b) of a certificate of the Full Court of the Family Court is also to be read as conferring the necessary jurisdiction on the Family Court pursuant to s 77(i) of the Constitution to make an order for the grant of the certificate¹⁴. That the Full Court, in ordering that a certificate should be issued, was exercising the judicial power of the Commonwealth, with respect to a matter arising under a law made by the Parliament, was not called into question before this Court. Further, in our view, the Full Court was not exercising one of those administrative functions, such as the regulation of rules of procedure, which may properly be an incident of the exercise of the judicial power of the Commonwealth¹⁵.

11. The decision that a certificate be granted was implemented by a formal order of the Full Court. Before this Court, the appellant conceded in oral argument that that order itself would attract the operation of s 73 of the Constitution. Thus, if special leave were granted, the order might be set aside on appeal by this Court. The respondent challenged the scope and effectiveness of the certificate as part of its argument on the appeal, but it did not institute any cross-appeal seeking to set aside the order for the grant of the certificate.

The construction of s 95 of the Family Law Act

12. However, the circumstance that such an avenue was open throws light upon the construction of s 95. The construction of s 95 is to be approached keeping in mind the observations made by six members of the Court in the joint judgment of Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ in Willocks v Anderson¹⁶. That decision was delivered before the enactment of the Family Law Act. Their Honours said¹⁷:

"Under the Constitution this Court is entrusted with the most important of judicial functions. To confer additional original jurisdiction upon it may well impair its ability to discharge its major functions with despatch. The question whether in any particular circumstances, original jurisdiction should be conferred on this Court is of such great significance as to warrant the careful attention of the Parliament. Even if the power to do so may be validly delegated to the Governor-General it is not a matter to be left to the initiative of the Executive except after that attention has been given to the question by the Parliament. If after such consideration the Parliament for reasons sufficiently compelling in a particular case should decide to delegate the power, its intention to do so should be expressly and clearly stated."

13. Regard also may be had to the provisions of the Matrimonial Causes Act 1959 (Cth) ("the 1959 Act") which the Family Law Act replaced. Part IX (ss 90‑93) of the 1959 Act was headed "APPEALS". Section 91 stated:

"(1) If, in proceedings under this Act in a court, not being proceedings by way of appeal, a question of law arises which the Judge and at least one of the parties wish to have determined by the High Court before the proceedings are further dealt with by the court, the Judge shall –

(a) state the facts in the form of a special case for the opinion of the High Court; and

(b) transmit to the High Court the special case and the documents in the proceedings, or such of them as are required for the purposes of the determination,

and a Full Court of the High Court shall hear and determine the question.

(2) The High Court may draw from the facts and the documents any inference, whether of fact or of law, which could have been drawn from them by the court by which the case was stated.

(3) In proceedings under this Act, a case shall not be stated to any court other than the High Court."

In Knight v Knight¹⁸, this Court entertained a case stated by a judge of the Supreme Court of South Australia, but the validity of s 91 itself was not called into question. However, s 91 purported to confer upon this Court original jurisdiction and therefore had to answer the description in s 76(ii) of the Constitution of a law conferring original jurisdiction in a matter "[a]rising under" a law made by the Parliament. In Willocks v Anderson¹⁹, this Court left open the question whether the Parliament can delegate its constitutional power to make laws conferring original jurisdiction on the High Court. In that case, reliance for a conferral of jurisdiction was placed upon regulations made under the Apple and Pear Organization Act 1938 (Cth) and, in the event, the Court decided that the regulations were invalid as the Act did not confer power to make regulations conferring jurisdiction on this Court²⁰. Section 91 of the 1959 Act did not involve the purported conferral of jurisdiction by regulations made by the Executive. However, the determinative step which engaged s 91(1) and obliged the High Court to hear and determine the question in the case stated was the wish by the judge and at least one of the parties in pending proceedings in another court to have a question of law determined by the High Court before the proceedings before the judge were further dealt with. The validity of a conferral of original jurisdiction upon the High Court by such means remains dubious.

14. It is against this background of the questionable validity of s 91 of the 1959 Act, particularly after the delivery of the judgment in Willocks v Anderson in 1971, that the device adopted in s 95(b) of the Family Law Act falls for consideration. Rather than original jurisdiction, the legislation engages the appellate jurisdiction of this Court under s 73 of the Constitution. It may be conceded that the requirement of a certificate granted under s 95(b) involves "regulation" within the meaning of s 73. The contrary was not contended. For present purposes, validity should be assumed. However, as we have indicated, the order for the grant of a certificate itself attracts the operation of s 73 of the Constitution.

15. The issue which is involved in the grant of a s 95(b) certificate must be "an important question of law or of public interest". The certificate in the present case does no more than repeat these criteria. That is unsatisfactory. Consistently with the approach to be taken to such a provision, as explained in Willocks v Anderson in the passage set out earlier in these reasons, the certificate should specify the terms of that important question²¹. It should also state whether that question is one of law or of public interest or both. The apparent object of s 95(b) will then be achieved. This is to obviate the necessity for a grant of special leave by the High Court limited to a ground perceived by the High Court, on the special leave application, to be an important question of law or of public interest.

16. The respondent did not submit that, in the present case, the certificate was a nullity for want of compliance with s 95(b). Counsel put the matter rather differently. It was said that the content of the question might be gleaned from the reasons delivered by the Full Court in support of the decision to grant the certificate. Such reasons were given in the present case on 30 April 1999²². Finn J would have dismissed the application. Her Honour detailed the history of the litigation and the previous decision of the Full Court in Re Z [No 2]²³ in which a certificate had been refused. Her Honour then said²⁴:

"Against this factual background, and given the recognition which this court has previously accorded to the right of the High Court to determine which matters it will entertain, I do not consider that it would be appropriate for this court now effectively to require the High Court to 'revisit' this case, notwithstanding that it would come in a somewhat different guise."

Kay J would have dismissed the application on the ground that no important question of law and no important question of public interest was involved in determining what his Honour saw as the question, namely whether the Full Court had properly exercised its discretion in refusing to re‑open its earlier decision²⁵.

17. However, the majority (Nicholson CJ, Moore and May JJ) favoured the making of an order for the grant of a certificate. Nicholson CJ referred to the narrow division of opinion which had led to the dismissal by the Full Court of the application to re‑open its earlier order. His Honour took the earlier decision as supporting the proposition that the Full Court did have the power to set aside its perfected orders in appropriate circumstances, but that there was a "very obvious" difference of opinion as to the circumstances in which the power "can be or should be exercised"²⁶. This was "a matter of considerable public interest", particularly "where the subject matter of the application is a child", and was sufficient to warrant the grant of a certificate under s 95(b)²⁷.

18. The respondent submitted that from the reasons of the majority of the Full Court in favour of an order for the grant of a certificate there was to be derived the "important question" within the meaning of s 95(b); the question being whether the Full Court could or should have acceded to the application made on 17 August 1998 that the Full Court set aside the order of the Full Court made on 10 October 1996 and the order of O'Ryan J made on 20 February 1996.

19. In the circumstances of this case, and in the absence of opposition and submissions as to what we would otherwise have regarded as the true construction of s 95(b), we are prepared to accept that the order granting the certificate be benevolently construed. We would read the certificate as if it set out and identified an important question of law and of public interest which has two parts. The first is whether the Full Court had the power to set aside those perfected orders. The second only arises if the first be answered in the affirmative. It is whether that power should have been exercised by the Full Court.

20. The respondent submitted that the appeal which is enlivened by the grant of the certificate is not one in which the grounds of appeal are at large. There is little to support a construction of s 95(b) which denies to this Court the power, which it would have in disposing of a special leave application, to limit the appeal so as to exclude grounds which would not involve important questions of law or of public interest, or which would not necessarily arise for decision in the particular case, if special leave to appeal were granted. A contrary construction would lead only to the complication that a respondent, faced with a comprehensive appeal consequent upon an order for the grant of a certificate, would apply to this Court for special leave to appeal against the order granting the certificate. By that circuitous means, the position ultimately would be reached that this Court had not been denied the authority to limit the grounds of appeals taken to it.

The power of the Full Court to re-open its orders

24. Section 21(1) of the Family Law Act provides that a court "to be known as the [Family Court] is created" by that statute. Original jurisdiction is conferred on the Family Court by s 31 and appellate jurisdiction by s 93A(1). Jurisdiction is also conferred by other statutes, including the Child Support Act (ss 101, 102, 105), the Bankruptcy Act 1966 (Cth) (s 35A), and the Trade Practices Act 1974 (Cth) (s 86B).

25. The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is "unable to draw upon the well of undefined powers" which were available to those courts as part of their "inherent jurisdiction"²⁹. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute "has powers expressly or by implication conferred by the legislation which governs it" and "[t]his is a matter of statutory construction"; it also has "in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred"³⁰. It would be inaccurate to use the term "inherent jurisdiction" here³¹ and the term should be avoided as an identification of the incidental and necessary power of a statutory court³².

26. In R v Forbes; Ex parte Bevan³³, Menzies J, with whose judgment Barwick CJ, Walsh and Stephen JJ agreed, distinguished in the manner identified above "inherent jurisdiction" or "inherent power" and jurisdiction or power derived by implication from statutory provisions conferring a particular jurisdiction. The distinction between these sources of power is not always made explicit but is fundamental³⁴.

27. There is applicable to the Family Court the observations made by Starke J in R v Bevan; Ex parte Elias and Gordon³⁵:

"To the Constitution and the laws made under the Constitution it owes its existence and all its powers, and whatever jurisdiction is not found there either expressly or by necessary implication does not exist."

The circumstance that a federal court exercises the judicial power of the Commonwealth is significant. The exercise of that authority has, as incidents arising by necessary implication from Ch III, the power to punish for contempt³⁶ and the power to preserve the subject-matter of a pending application for special leave to appeal³⁷. However, the powers conferred upon the Family Court by statute may be exercised only within the range of jurisdiction conferred upon it by laws made by the Parliament under s 77 of the Constitution³⁸.

28. Order 31 of the Family Law Rules is headed "DECREES". The term "decree" is defined in s 4(1) of the Family Law Act as meaning "decree, judgment or order" and as including "a decree nisi and an order dismissing an application or refusing to make a decree or order". Order 31 r 5 states:

"Except where the court or a Registrar otherwise directs, all decrees, warrants and recognizances made under the [Family Law] Act, the [Family Law] Regulations or these Rules shall be drawn up and signed by the Registrar of the filing registry."

Rule 6 provides for the rectification by the Registrar of any error "that appears on the face of a decree" and for the rectification of the formal record of a decree where it contains an error appearing to arise "from an accidental slip or omission" (O 31 r 6(3)). This "slip rule" includes a power to "make or give such consequential orders or directions as may be necessary to ensure that justice is done between the parties" (O 31 r 6(4)(b)). However, it is not suggested that O 31 confers a power of the nature necessary to set aside a decree after entry for error of law in the reasons for judgment founding the decree. Nor was this Court referred to any other provision of the legislation directly and expressly conferring such a power.

29. The application to the Full Court filed on 17 August 1998 was expressed to be brought "pursuant to section 21 of the Family Law Act 1975 and in the inherent jurisdiction of the [Family] Court"³⁹. The questions thus arise as to what is involved in the invocation of the "inherent jurisdiction" of a federal court created by the Parliament and of the significance of s 21 of the Family Law Act. Section 21(2) of the Family Law Act states:

"The Court is a superior court of record."

30. Section 98 of the Conciliation and Arbitration Act 1904 (Cth) ("the 1904 Act") established the Commonwealth Industrial Court as a "Superior Court of Record". In Forbes, Menzies J concluded that the Commonwealth Industrial Court did not, by virtue of its being a court of that description, have powers which would "go beyond protecting its function as a Court constituted with the limited jurisdiction afforded by the [1904] Act"⁴⁰. Put another way, the principle that a grant of power carries with it everything necessary for its exercise did not apply to the Commonwealth Industrial Court to any greater degree than that identified by Menzies J.

31. The question in Forbes was whether the Commonwealth Industrial Court had power to make an interlocutory order restraining the officers of a trade union, which was a registered organisation, from withdrawing money from the bank accounts of the union and from transferring money or securities belonging to the union. The substantive proceedings in which the interlocutory order was sought were brought against the officers for an order requiring them to observe the union rules by treating as null and void a resolution made by ballot for the amalgamation of the union with other registered organisations. The Court decided that there was no power to make the interlocutory order. Menzies J said⁴¹:

"In my opinion a court with the limited jurisdiction of the Commonwealth Industrial Court has not by virtue of its being a superior court of record, jurisdiction in relation to the property of an organisation which is party to litigation in the Court where no question of the exercise of powers or duties under the rules of the organization in relation to such property is involved."

32. The central issue in the present litigation thus is whether the creation of the Family Court as a superior court of record carried with it the statutory power exercised by the Full Court in the manner sought by the application to "re-open" of 17 August 1998. A starting point is the position respecting orders made after trials in the common law courts at Westminster. These undoubtedly were superior courts of record but, significantly for any analogy, were not appellate courts as was the Family Court in this litigation.

33. In CDJ v VAJ, McHugh, Gummow and Callinan JJ described the position in the common law courts at Westminster as follows⁴²:

"At common law, the verdict of a jury might be set aside in one of two ways. First, it might be set aside by way of writ of error. Secondly, it might be set aside where the jury had given a general verdict subject to the opinion of the court in banc on a question of law involved in the case, the question being stated in a special case or in a point reserved⁴³. But once judgment had been entered after trial before a jury, the common law courts would not entertain any fresh action to set aside the judgment. Entry of judgment might, however, be delayed until the next Term and, in the meantime, the disaffected party might move for a new trial. An order for a new trial was an interlocutory remedy⁴⁴. It was an exercise of what in modern times is called original jurisdiction, the common law having no conception of appellate jurisdiction. In that respect, the order for a new trial was an exercise of original jurisdiction just as the issue by this Court under s 75(v) of the Constitution of a writ of prohibition or mandamus is an exercise of original and not appellate jurisdiction. The grounds relied upon on the motion for a new trial might include fraud or the discovery of new evidence."

34. The common law courts, as superior courts of record, had "full power to rehear or review a case until judgment [was] drawn up, passed, and entered". That statement, with citation of supporting authority, was made by Starke J in Texas Co (Australasia) Ltd v Federal Commissioner of Taxation⁴⁵. Even after entry of judgment, an error arising from an accidental slip or omission might be corrected at any time by further order in the action and even without an enabling rule of court⁴⁶. An order also might be made in the action for the correction of the records of the court to make certain that they truly represented what the court had pronounced or had intended to pronounce⁴⁷. It also appears that a judgment might be set aside after entry if the parties to the judgment consented, although in deciding whether to make such an order the court would have regard to the interests of third parties⁴⁸. Finally, where the business of the court was so organised that some orders were made in chambers, those orders may have been open to review by motion in the action, even if they were final orders⁴⁹.

35. The Court of Chancery had power to re‑open and rehear cases which had been tried before it, even after the decree had been entered. The right of rehearing in the Court of Chancery had involved the exercise of appellate rather than original jurisdiction. Sir George Jessel MR so concluded in In re St Nazaire Co⁵⁰. However, that peculiar state of affairs in Chancery did not continue with respect to the exercise of equitable jurisdiction by the Supreme Court of Judicature established by the Judicature Act 1873 (UK). The structure it provided included the Court of Appeal⁵¹.

36. The Court of Chancery also had had jurisdiction⁵² to enjoin, by a species of common injunction, the enforcement of judgments fraudulently obtained, including those recovered in the common law courts, or to oblige the holder of such a judgment to enter satisfaction of it upon the judgment roll of the common law court. The exercise of this jurisdiction involved the institution of a separate proceeding. In dealing with the matter, the Court of Chancery might send the issues respecting the alleged fraud to a common law court for trial by a new jury. It is unsettled whether this jurisdiction might have been invoked to set aside judgments by reason of the availability of "fresh evidence".

"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."

In Bailey v Marinoff, Gibbs J dissented on the footing that the New South Wales Court of Appeal had an "inherent power" to vary a conditional order to dismiss an appeal after the time for compliance with the condition had expired⁵⁷.

39. In considering what is involved in the establishment of a statutory court as a superior court of record with appellate as well as original jurisdiction, as is the case with the Family Court, it is important to bear in mind that the position respecting the revision of the orders of the superior courts of record at Westminster can supply only a limited analogy. Those courts did not exercise appellate jurisdiction as that term is now understood, for example, in s 73 of the Constitution.

40. In CDJ v VAJ, McHugh, Gummow and Callinan JJ said with respect to the provisions of Pt X (ss 93‑96A) of the Family Law Act, which is headed "APPEALS"⁵⁸:

"The operation of Pt X is to be contrasted with the procedures developed in the English common law courts which have influenced, if indeed they have not determined, the doctrinal foundation for the admission of new evidence after verdict. Appeal is not a common law remedy⁵⁹. It derives from the civil law⁶⁰. Exceptionally, in 1675 the House of Lords declared its right 'as the delegate of the Sovereign to receive and determine "appeals" from inferior Courts, "that there may be no failure of justice in the land"'⁶¹. But, apart from this special jurisdiction of the House of Lords, in the absence of statute there was and still is no basis for an appeal from a verdict of the common law courts⁶²."

It follows that where the right of appeal is conferred by statute, such as by s 93A of the Family Law Act, the terms of that statutory grant will determine the nature of the appeal and consequential matters. These matters include the right, if any, to adduce further evidence on the appeal and the susceptibility of orders, made by the court in its appellate jurisdiction, to re‑opening after they have been entered.

41. Section 93A(2) expressly confers on the Family Court a power on appeal to receive, in its discretion, "further evidence upon questions of fact". It was with the construction of that provision that CDJ v VAJ was concerned. There is, however, as has been indicated, no comparable provision rendering orders made by the Family Court in its appellate jurisdiction susceptible to re‑opening after entry.

42. The reference to s 93A(2) has a further significance for the present appeal. In CDJ v VAJ it was decided that the existence and content of the power of the Full Court of the Family Court to receive "further evidence" turned upon the construction of the Family Law Act. The issues which arose were not to be decided by some general inquiry as to the position of "intermediate courts of appeal". Nor were they to be decided by reference to what had been said in this Court in cases concerned with the procedure of the common law courts. McHugh, Gummow and Callinan JJ said⁶³:

"The principles laid down in Wollongong Corporation [v Cowan⁶⁴] and the similar appeal in McCann v Parsons⁶⁵ are to be understood by reference to the procedures of the common law courts. Those cases have nothing authoritative to say about the admissibility of further evidence in respect of a statutory power to admit evidence on appeal. They came before this Court on appeal from judgments of the Full Court of the Supreme Court of New South Wales on motions for a new trial in accordance with s 160 of the Common Law Procedure Act 1899 (NSW), after verdicts given by juries in the trial of common law actions for damages. Accordingly, the principles with respect to the allowance of a motion for a new trial on the ground of discovery of fresh evidence which were propounded by this Court in Wollongong Corporation and McCann were informed by the position in the English common law courts. In those cases, this Court was not concerned with the terms of any modern statute expressly conferring upon an appellate court a power to receive additional evidence. To regard Wollongong Corporation and McCann as defining the jurisdiction or controlling the discretion to admit evidence in statutory appeals is erroneous."

43. Likewise, in the present litigation, clarity of thought and the isolation of the true issues have not been encouraged by submissions expressed in general terms respecting the position in "intermediate courts of appeal". In the case of each such court, State or federal, attention must be given to the text of the governing statutes and any express or implied powers to be seen therein. Nor is it of assistance to consider the position with respect to this Court in the exercise of its entrenched jurisdiction as a court of final appeal under s 73 of the Constitution, or with respect to the Privy Council or the House of Lords after R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No 2)⁶⁶, a decision referred to by the Solicitor-General of the Commonwealth.

44. We would add that the statement in De L v Director-General, NSW Department of Community Services [No 2]⁶⁷ that the power of the High Court to re‑open its judgments and orders is not in doubt should not be misconstrued. In that case and in all of the authorities respecting orders of this Court which were referred to in that passage⁶⁸, the applications were to re‑open final orders and were made before entry of the orders in question. There is, as yet, no decision of this Court which turns upon the position after entry of its final orders.

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

46. A power in the Full Court of the nature for which the appellant contends is not to be found by necessary implication from Ch III of the Constitution. Rather, the Constitution itself deals with the perceived injustice of which the appellant complains in the federal court system. Complaints that orders made by the Full Court should be set aside for error of law, apparent in the reasons for judgment, are to be vindicated through the exercise by this Court of its power conferred by s 73 of the Constitution.

47. The Family Court is a federal court within the meaning of s 73(ii) of the Constitution. Thus, this Court has jurisdiction to hear and determine appeals from all judgments, decrees, orders and sentences of the Family Court with such exceptions and subject to such regulations as the Parliament prescribes. An appeal lies from a decree of the Family Court exercising appellate jurisdiction by special leave of this Court (s 95(a)). An application for special leave "is not in the ordinary course of litigation" and, until the grant of special leave, "there are no proceedings inter partes before the Court". Further, the disposition of a special leave application is not the determination of an appeal. The result is that the refusal of an application for special leave does not produce a final judgment of this Court which forecloses the re‑opening of the matter in an appropriate and, necessarily, very special case where the interests of justice so require.

Conclusion

50. We would answer in the negative what the Full Court sought to isolate as the important question of law or public interest as to whether the Full Court had the power to re-open its final orders after their entry. Consequently, no occasion arose for the exercise of discretion in that regard by the Full Court.

51. The position respecting costs remains unsettled. The appellant sought an order that the Attorney-General of the Commonwealth pay the entire costs of the appellant as the price of the grant of leave to intervene which was made.

52. The power to award costs in this Court is that conferred by s 26 of the Judiciary Act 1903 (Cth)⁷². Costs should follow the event. No order should be made against the Attorney-General. The appellant should pay the respondent's costs of the appeal.

53. KIRBY J. The Court, "[i]n the interests of bringing this litigation to finality"⁷³, ordered that this appeal from the Full Court of the Family Court of Australia⁷⁴ be dismissed.

54. The appeal arose from a case of international child abduction. The appellant, DJL (the mother), attempted by legal and illegal means to retain the custody of her daughter, J. Her husband, LLS (the father), invoked the Hague Convention on the Civil Aspects of International Child Abduction ("the Convention") and municipal law giving it effect. By reason of the order of this Court it may be expected that the requirements of the Convention and the law will now be fulfilled. It remains to provide the reasons for the order. I now state my reasons.

The facts

55. Most of the facts are undisputed⁷⁵. The mother, a citizen of Australia, married the father, a citizen of the United States of America, in March 1991. The couple left Australia soon after to reside in the State of Georgia in the United States. In November 1993 the child J was born. On 12 January 1995, without the consent or knowledge of the father, the mother left the matrimonial home. She took J to Australia where they have lived ever since. At the time, the mother was pregnant with a second child of the marriage who was born in Sydney in September 1995. She named him "S". Meanwhile, in January 1995 the father commenced proceedings against the mother in the Superior Court of Gwinnett County in the State of Georgia. Those proceedings were heard ex parte. In May 1995, the judge ordered that the father have "sole permanent custody" of the daughter J, no visitation rights being granted to the mother who was ordered to return the child to the father immediately⁷⁶. The marriage of the couple was dissolved. A month later the father applied to the Central Authority of the United States claiming the return of J. The relevant provisions of the Convention and the role in Australia of both the Commonwealth Central Authority and Central Authorities for the sub-national jurisdictions of the country are described in a previous case in which the Convention was examined⁷⁷.

56. The father's application was conveyed to the Commonwealth Central Authority by the United States Central Authority in June 1995. That month, an application was filed in the Family Court of Australia by the Director-General of the New South Wales Department of Community Services as the Central Authority (the respondent). The application sought an order that the father be permitted to remove J from Australia for the purpose of returning her to the United States.

57. The hearing of the application in the Family Court was delayed because of the impending confinement of the mother. Eventually it came before O'Ryan J, a judge of that Court. On 20 February 1996, his Honour ordered that, upon its being satisfied that the father had made appropriate arrangements to pay the cost of air travel of the mother and child to Georgia, 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"⁷⁸. The mother appealed against this order. The appeal was heard in July 1996 by the Full Court of the Family Court ("the first Full Court"). In October 1996, an order was made by that Court unanimously dismissing the appeal and thereby confirming the order made by the primary judge.

Decisions of the Full Court of the Family Court

64. There are therefore three decisions of the Full Court relevant to these proceedings. The first⁹⁰ may be largely disregarded for present purposes. Substantially, it concerned challenges to the findings of the primary judge and to the exercise of the powers and discretions conferred by the Regulations designed to give effect in Australia to the terms of the Convention. There was a challenge to the validity of the Regulations (initially identified by the first Full Court as the 1995 Regulations⁹¹). However, this challenge was made upon a basis that has not been reargued. It was summarily dismissed and need not be further noticed.

65. The second Full Court produced divergent views upon the matters argued. However, a majority emerged that the order of its predecessor should not be reopened or changed. The threshold question was whether the second Full Court had a power to set aside one of its own orders which had been perfected by entry in the formal orders of the Court. One judge, Kay J, held that, in the circumstances, there was no power to reopen the order. He relied upon a number of decisions of this Court⁹². He expressed the opinion that any "such a power ought be available to be utilised sparingly and in exceptional circumstances"⁹³. However, he concluded that it was excluded by authority binding upon him.

66. The majority of the second Full Court reached the contrary conclusion. Nicholson CJ (with whom Moore J concurred) concluded that there was power to reopen the judgments and orders of the Full Court of the Family Court even where they had been perfected⁹⁴. May J was of the same view⁹⁵. Finn J considered that the position was not so clear in the case of perfected judgments and orders of courts below this Court⁹⁶. However, her Honour was prepared to assume, without deciding, that there was such a power⁹⁷. In this way a majority of the second Full Court supported the existence of the power. None of the judges disputed that such a power should exist for truly exceptional cases.

The issues

72. When the certificate was granted, it did not identify on its face the "important question of law or of public interest" said to be involved. Armed with the certificate, the mother filed her notice of appeal to raise the several issues which she then proceeded to argue. The emerging issues were:

73. Whether it was competent to the third Full Court to grant a certificate for an appeal to this Court from the decree of the Family Court exercising jurisdiction under the Act; whether, if it was, the discretion to grant the certificate miscarried in the circumstances; and, if not, whether the certificate was in proper form, given its failure to identify the "important question of law or of public interest" said to be involved. (The certificate issue).

74. Whether the second Full Court had the power to reopen a perfected order earlier made by the first Full Court; and whether, if it did, the decision of the second Full Court declining to reopen the order of the first miscarried in a way that should now be corrected. (The reopening issue).

75. Whether the first Full Court erred in the application to the facts as found of the Regulations which it applied in deciding the application for an order to return J to the United States; whether the Regulations applicable were valid; and whether, if the incorrect Regulations were applied and were valid, this had resulted in any error or injustice in the order ultimately made by the primary judge and confirmed by the first Full Court. (The validity of the Regulations issue).

76. Whether, in any event, it was constitutionally impermissible to order that J, an Australian citizen, be removed from Australia to the United States although she was not alleged to have committed a criminal offence; and whether, to the extent that the Act and the applicable Regulations giving effect to the Convention purported to provide for such removal, such laws were invalid as beyond the lawmaking power of the Commonwealth. (The citizenship issue).

77. Whether, in all the circumstances, and the events which had occurred since it was made, the order of February 1996 made by the primary judge should be held to be spent, necessitating reconsideration by the Family Court of the application to the circumstances of the correct Regulations and redetermination of the order which should now be made. (The spent order issue).

The certificate

73. Objections to the certificate: At the outset of argument in this Court, the threshold question of the validity, revocability and terms of the certificate granted by the third Full Court was raised. The Court was informed that the Central Authority challenged the competency of the appeal. Although it had not sought, in terms, to move the Court to "deal with the issue of the certificate", it agreed that relevant to the competency of the appeal was whether this Court could, for itself, revoke the certificate and whether it should do so in the events that had occurred.

74. Various questions were raised in argument which might have suggested that an issue was presented as to whether s 95(b) of the Act was constitutionally valid. Did it, for example, involve an attempt to impose upon this Court a duty to answer a hypothetical question not apt to the jurisdiction of a court created by or under Ch III of the Constitution¹¹¹? If it was open to a Full Court of the Family Court, by certificate, in effect to permit an appeal to be brought to this Court without any decision of this Court (and possibly without any power to revoke the certificate as to which the Act is silent) would it be equally competent to delegate such certification to a Magistrate's Court (bypassing the ordinary processes of appeal envisaged by the hierarchy recognised in the Constitution¹¹²)? Would it be competent for the Parliament to authorise the giving of such a certificate by an organ of the Executive Government? In short, was the procedure compatible with the role and functions of this Court as envisaged by the Constitution, and elaborated in successive legislative provisions regulating and prescribing appeals to this Court?

75. After the appeal was adjourned and when the hearing was resumed, the Central Authority made it plain that it withdrew any challenge to the validity of the certificate. It explained this change of course by reference to its desire to avoid any further delay that might be occasioned by prosecuting the point. No notice was given under the Judiciary Act to suggest that s 95(b) of the Act whether generally, or as applied to circumstances such as the present, was beyond the lawmaking powers of the Parliament.

76. Because the point was not therefore placed before this Court by an issue in its record, nor fully argued, it is inappropriate to do more than to notice it in passing. However, the point having been raised, as it was originally said to involve the jurisdiction of this Court to hear and determine the appeal, it is appropriate to say sufficient to establish that a valid foundation for jurisdiction exists, as in my view it does.

77. The certificate and judicial power: The Constitution in s 73 specifically envisages that appeals, relevantly from judgments, decrees, orders and sentences of federal courts to this Court, will be "with such exceptions and subject to such regulations as the Parliament prescribes". From the first enactment of the Judiciary Act, such "regulation" and "prescription" was made. Initially, that Act permitted appeals as of right in specified cases, including those in which claims, demands or questions involving a certain amount or value were at stake or where the status of persons was affected. When this provision, as later amended, was altered to require in every case a grant of special leave to appeal, that enactment was upheld as valid under the Constitution. If such regulation and prescription might be provided by the Judiciary Act, there is no apparent reason why, in relation to appeals from the Family Court, it might not be effected by the Act.

Reopening of a perfected order

87. Finality and flexibility: The question whether in any circumstances the Full Court of the Family Court (and other Australian courts equivalent to it) is entitled in law to reopen a perfected order previously entered is undoubtedly an important question of law and of public interest. The mother asserted that there was such a power. The Central Authority (supported by the Attorney-General of the Commonwealth) denied this.

88. The mother gained the support on this point of a majority of the second Full Court. She only lost her application because one of the judges in that majority (May J) was unconvinced that the power should be exercised in the present case. By its notice of contention, the Central Authority sought to uphold the dismissal of the mother's application to reopen the decision of the first Full Court. It did so on the ground that the second Full Court lacked the power to reconsider the matters determined by the first Full Court once the decision of the first Full Court was given effect by perfected orders entered on the Court's record. If there were no power in the second Full Court to reopen the earlier decision then, subject to any other remedies which the mother might have under the Constitution to prevent effect being given to unconstitutional conduct, the litigation between the parties would be closed.

89. According to the submission of the Central Authority, the proper answer by the second Full Court to the attempt by the mother to reopen the order of the first Full Court was that, in law, no such power existed in the Family Court so that the application was misconceived. If it was, the grant of a certificate permitting an appeal on the point was equally misconceived. On one or other of those grounds, the appeal would have to be dismissed, although for reasons different from those of the majority of the second Full Court and more akin to those of Kay J in that Court.

90. The law, for very good reason, places a high store on the finality of court judgments and orders. There would be little point in having courts to resolve disputes between parties according to law¹³¹ with settled remedies of judicial review and appeal, and within a hierarchical judicial system, if no ultimate finality could be reached. The judicial system would become discredited if "final" orders were revealed as provisional or always subject to reconsideration and collateral challenge thus compounding costs, delays and the anxiety of submitting disputes to independent judicial determination. People caught up in litigation would not be able to order their affairs with certainty following its outcome. They could be subjected to repeated attempts by their opponents to engage them in fresh argumentation on issues they thought had been decided. Litigants with long purses¹³², uncompromising certainty of their own rectitude or spiteful desire to win although they lose (by constantly running up the costs of reopenings) would defeat one of the chief objectives of any civilised legal system: the bringing of a litigated contest to an end.

"I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it. It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation. However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which has been given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand. In my opinion it is desirable that the Court of Appeal should have a discretion – however guardedly it might have to be exercised – to reopen its judgments in cases such as that in which the needs of justice require it."

99. It is worth mentioning that in Gamser, this Court proceeded to allow the appeal against the original order of the Court of Appeal. It thereby restored the more substantial judgment which the plaintiff had recovered at trial. Thus the principle of non-disturbance was affirmed in a case where the injustice could be repaired in disposing of an appeal which, at the time, was capable of being brought to this Court as of right.

100. The Central Authority, and the Attorney-General of the Commonwealth, urged this Court to adhere to the principle expressed in Bailey and Gamser. However, since those decisions were published suggestions have been made in this Court¹⁵⁵, in the New South Wales Court of Appeal¹⁵⁶ and in the Full Court of the Federal Court¹⁵⁷ that Courts of Appeal and Full Courts in Australia may, in wholly exceptional circumstances of the type to which Gibbs J referred in Bailey and Gamser, enjoy the power to correct even a perfected order. In my view this is a correct statement of the law.

101. A consideration which occasions further refinement of the principles stated in Bailey and Gamser is the alteration that has happened, since those cases were decided, in the judicial arrangements of Australia affecting appeals from what were, at that time, described with accuracy as intermediate appellate courts. The abolition of all remaining appeals to the Privy Council¹⁵⁸ meant that the last appeal to that Court from an Australian court was concluded in 1987¹⁵⁹. Meanwhile, in 1984, by the Judiciary Amendment Act (No 2) 1984 (Cth), s 35 of the Judiciary Act was amended to substitute for previous arrangements¹⁶⁰ the universal requirement to obtain special leave to appeal for all appeals to this Court. The previous provision allowing certain appeals in civil cases to lie as of right was repealed. There were equivalent changes to other federal Acts¹⁶¹.

102. By reason of these changes, and the criteria enacted by the Parliament for the grant of special leave¹⁶², it cannot be disputed that the number and kinds of appeals thereafter coming to this Court were changed. The change was effected out of recognition of this Court's primary functions as the ultimate constitutional and appellate court of the nation. Published statistics indicate the relatively small number of appeals in both civil and criminal matters and the very small proportion of applications that are granted special leave to appeal. A moment's reflection upon these developments indicates that it is simply not feasible or honest, in the present judicial arrangements of Australia, to suggest that this Court is in a position to exercise, in fact, an appellate function to correct every minor mistake of fact or law which is discovered after the orders of a federal, State or Territory Court of Appeal or Full Court have been perfected and which would otherwise fall within the exceptional category of an accidental oversight occasioning injustice. To argue that such cases are not instances of "irremedial injustice" because of the theoretical possibility that this Court might, even out of time, permit special leave to effect a correction is to allow form once again to triumph over substance. I reject that approach.

The validity and operation of the Regulations

111. Mistakes and oversights: In De L this Court held that the Regulations applicable in the facts of that case were the 1986, and not the 1995, Regulations¹⁷². Whatever doubt might have existed about that question¹⁷³, the construction and operation of the Regulations is concluded by the decision in that case. By that decision, on the facts of this case, it is clear that the 1986 Regulations applied. Although the Central Authority never conceded that a mistake had occurred in the application of the wrong Regulations¹⁷⁴, the second Full Court was clearly right to hold, upon this basis, that it had. It was one easy enough to make. It had been continued into the arguments of all parties before this Court in De L¹⁷⁵. It was missed by the Full Court in that case and by the first Full Court in the present case.

112. I am also persuaded by the reasoning of the judges in the second Full Court that the previous decisions of the Full Court of the Family Court on the interpretation of the 1986 Regulations were erroneous¹⁷⁶. Those decisions construed a provision of the 1986 Regulations relevant to this case. By reg 16(3) of the 1986 Regulations it was provided that:

"A court may refuse to make an order [for the removal of the child] if it is satisfied that –

…

(b) 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" (Emphasis added).

113. In previous decisions of the Full Court¹⁷⁷ the words "to the applicant" were construed to mean "to the applying Central Authority". If correct, this would mean that the attention of the decision-maker would be addressed (as the Convention¹⁷⁸ and the 1995 Regulations¹⁷⁹ provide) to the grave risk occasioned by the return of the child to the country of residence from which the child was removed rather than to the individual applicant (ordinarily the other parent).

114. Given that the primary judge and the first Full Court referred to this line of authority, the foregoing construction of the 1986 Regulations affords an argument that the mistaken application of the 1995 Regulations had no practical consequence because the actual focus of attention in both Regulations was (despite difference of their language) substantially the same.

115. In the second Full Court, Kay J¹⁸⁰ convincingly demonstrated (with the concurrence of other members of that Court¹⁸¹) that the previous construction was incorrect. The phrase "to the applicant" in reg 16(3)(b) of the 1986 Regulations refers only to the return of the child to the individual applicant, in this case the father. This reading leads to a prima facie conclusion that the primary judge and the first Full Court, by mistake or oversight, addressed their attention not only to the incorrect Regulations (which might be harmless) but also, potentially, to the incorrect destination of the child once returned (namely the father and not the Central Authority in the United States). What follows from such errors?

116. The appellant's arguments: The mother submitted that, for several reasons, the power being present, the minority in the second Full Court were correct in deciding that she had established the exceptional case required to authorise reopening of the original order dismissing her appeal and substitution of a new order remitting the question for redetermination at first instance.

117. First, she argued that it was highly relevant in this case that the incorrect Regulations had been applied. Once attention was correctly focussed upon the return of the child to the father, no comfort could be derived from the contemplation that the Central Authority of the United States would ensure that custody of J would be determined by the courts in that country in a manner conducive to the child's best interests. The mother submitted that the failure to evaluate explicitly and in detail the risks of physical or psychological harm to J caused by the order of return to the father resulted in a failure at first instance to examine and evaluate appropriately what those risks would be. Attention was drawn to the reasons of the primary judge in this regard. He had accepted that there would "be some psychological harm to J caused by the order which I propose to make". However, because he indicated that he was "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", he did not feel obliged to scrutinise the evidence of harm to J with the care appropriate to an order specifically returning her to her father.

"These provisions confer a wide latitude upon the Executive Government in making the Regulations. They recognise the fact that the Convention is addressed to governments throughout the world, necessarily with differing legal and administrative systems. It will be implemented in different ways: sometimes through judicial process and sometimes through administrative procedures."

126. In my view, there is not such a variance between the language of the Convention and the impugned regulation in the 1986 Regulations as to destroy the validity of the latter in so far as it depended for its constitutionality on the former. In giving effect to an international treaty, federal law does not lose its validity because it has not repeated verbatim the terms of the treaty¹⁹⁴. Sometimes variance may occur to re-express the substance of the treaty in terms considered clearer or more in harmony with the Australian style of statutory expression. Only if the variance is substantial will it deny the law the character of a measure implementing the treaty¹⁹⁵. A study of the travaux préparatoires makes it clear that the matter that was concerning the treaty makers was not, as such, the risk of return of the child to the applicant parent. In the overwhelming majority of cases that would be the only sensible arrangement that could be made. The concern was to permit the child to be returned to the place to which the applicant parent might have moved between the date of abduction and the date of the return¹⁹⁶.

127. Although the preamble to the Convention refers to the return of children promptly "to the State of their habitual residence", the operative article in the Convention merely contemplates an order for the return of the child without stating where, or to whom, the child is to be returned. In these circumstances, there is no relevant disparity between reg 16(3)(b) of the 1986 Regulations and the Convention. There is accordingly no foundation for the argument of invalidity. Validity was upheld, although challenged, in De L¹⁹⁷. The challenge was rejected there. It has not improved in the second attempt. In light of this conclusion it is unnecessary for me to consider whether, had there been an impermissible variance, it could be cured by severance of the offending words.

128. Discretionary grounds for reopening: Can it be said that the misapplication of the incorrect Regulations enlivens what I would hold to be the exceptional power to reopen the order of the first Full Court so as to permit and require that the case be reconsidered with the mind of the decision-maker addressed to the applicable Regulations? It will be remembered that the reopening of a perfected order is confined to truly exceptional cases. The applicant must have acted promptly and be without fault. To deny relief must effectively leave a serious injustice unrepaired.

129. In my view, it is quite exceptional for a decision of such importance to be made by an Australian court by the application of the incorrect law. Although there is to be attributed to the mother the conduct of the litigation on her behalf by the lawyers acting for her at the trial and in the first Full Court, I assume that, in this case, there was no relevant fault that would deny the person principally affected by the order (the child J) the benefit of reopening and reconsideration according to the correct law, if that course were otherwise warranted. It is true that the mother caused very great delay in the prosecution of the reopening application by failing to take advice after the first Full Court decision and by absconding with her children. But, again, I would be prepared to disregard this consideration when the practicalities of the mother's access to legal assistance and the impact of the orders on one or both of her children is considered in the predicament in which she found herself. However, this still leaves the question whether the mistaken application of the 1995 Regulations in fact resulted in a serious injustice which it would be wrong to leave uncorrected on the record of the Family Court.

Citizenship and compulsory return overseas

134. The Australian Constitution does not refer to the status of "citizen" in relation to the native born or naturalised²⁰³ people of the Commonwealth. The "people" are referred to in several places²⁰⁴. Elsewhere the people who are entitled to vote are described as "electors"²⁰⁵. In harmony with the notions of the time, the Constitution refers to the national status of Australians as that of "a subject of the Queen"²⁰⁶. This has been construed, in contemporary circumstances, to be equivalent to a reference to Australian citizenship²⁰⁷. The one occasion on which the word "citizen" is referred to in the Constitution is in the form of a disqualification. In s 44(i) a "subject or a citizen of a foreign power" is disqualified from being elected to the Parliament²⁰⁸. In Sykes v Cleary²⁰⁹ Brennan J explained that the word "subject" was considered in 1900 to be appropriate where the foreign power was a monarchy and "citizen" where it was a republic.

135. Nevertheless, the growing sense of national independence and identity, also reflected in the decisions of this Court in both constitutional and non-constitutional cases, has seen new attention being given to the consideration of citizenship²¹⁰ with the possibility that the status of citizenship may carry with it common law rights. In the case of a citizen who is a child these may include the right to have that child's best interests taken into account in discretionary decisions by governments and government agencies. This consideration was referred to by Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh²¹¹. A growing body of doctrine ascribes as the ultimate foundation of the Constitution the will of the people (meaning the citizens) of the Commonwealth²¹². It therefore seems likely that further constitutional implications will be derived for the idea of citizenship to which the political institutions established by the Constitution give effect.

The "spent" order

139. These conclusions leave only the argument that the order of the primary judge should be set aside as "spent". This argument repeated, in different words, many of the considerations already mentioned. The strongest argument for regarding the original order as "spent" is that it was made some 26 months before the order of this Court finally disposing of this litigation. However, more than half of that time was the result of the action of the mother in going into hiding. Whilst it is no part of the Court's function to punish the child J for the mother's conduct, it is the Court's duty (the law being valid) to ensure that it is upheld both in its letter and spirit.

140. The scheme of the Regulations denies the contemplation of lengthy delays or multiple hearings²²³. The law would be undermined if the orders of the primary judge were treated as "spent" on the bases advanced by the mother. In particular, the suggestion that broad discretionary powers of the kind traditionally exercised in parens patriae jurisdiction over children should be superimposed upon the Regulations is wholly incompatible with the attainment of the Regulations' objectives. The problem of international child abduction was not present, at least to anything like the same degree, when the parens patriae jurisdiction of the courts was assumed from the Sovereign in medieval times. That problem is the product of international transportation, the reduction of barriers to immigration and tourism and the increasing number of marriages and relationships which cross nationalities and cultures²²⁴. The Convention, s 111B of the Act and the Regulations are a response to these phenomena. They require a measure of adjustment in the ordinary approach of Australian courts to decisions which affect the welfare of children.

141. The Act and the Regulations being valid, it is the duty of the courts to give them effect. The present case illustrates how, on occasion, that duty will be painful and potentially have very serious consequences for all involved. But the expressed exceptions to the order for return are deliberately narrow. Australian courts must faithfully observe these rules even as they are entitled to expect that the courts of other countries will do where demand is made for the return of a child abducted from Australia.

Conclusion and orders

142. A mistake and misapprehension of the applicable law occurred in this case. It was, in my view, within the implied power of the Full Court of the Family Court to reopen the order earlier made by that Court to permit correction of that error. Such reopening would only be ordered in the most exceptional of circumstances and then, relevantly, only to cure what would otherwise be a serious injustice. However, in this case, no such serious injustice was shown. The reasons of the primary judge and of the first Full Court were defective. But their orders were correct. They represented, in the facts of the case, a proper implementation of the applicable law giving effect to the Convention designed to redress and discourage international child abduction.

143. It was for the foregoing reasons that I joined in the order made by the Court on 18 November 1999. I agree with what Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ have said in relation to the costs of the proceedings.

CALLINAN J.

The Question

144. The appeal to this Court came by way of a certificate granted by the Full Court of the Family Court of Australia that an important question of law is involved in the case. The important question that is said to be involved is whether the Full Court of the Family Court has power to re-open an appeal after orders have been entered.

The Certificate of the Full Court of the Family Court

145. After hearing full argument on the legal questions and the question whether the majority in the Full Court of the Family Court had properly exercised their discretion, assuming the availability of a discretionary power in the circumstances, the Court was able to announce that the appeal should be dismissed. That decision was expressed in these terms:

"A majority of the members of the Court have reached the conclusion that, if there was power in the Full Court of the Family Court of Australia to reopen or reconsider the order made on 10 October 1996, no error is shown in the conclusion of Kay, Finn and May JJ that any power to reopen should not be exercised in this case.

That being so, the appeal is dismissed. The Court will give its reasons for that conclusion and (to the extent necessary) its reasons in respect of other issues raised in the appeal, later. It will then deal with any question of costs."

The Effect of a Certificate Granted by the Full Family Court

146. At the outset of the hearing of this appeal other questions were raised, whether: first, s 95(b) of the Family Law Act 1975 (Cth) ("the Act") was constitutionally valid; and secondly, if it were, nonetheless this Court might revoke a certificate granted under the paragraph in the same way as it may revoke special leave granted by the Court.

147. In my opinion both of these questions are answered by the reasoning and decisions in Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth²²⁵.

148. Section 95 of the Act provides as follows:

"95 Appeals to High Court

Notwithstanding anything contained in any other Act, an appeal does not lie to the High Court from a decree of a court exercising jurisdiction under this Act, whether original or appellate, except:

(a) by special leave of the High Court; or

(b) upon a certificate of a Full Court of the Family Court that an important question of law or of public interest is involved."

149. The language is clear. It makes provision for two paths of appeal to this Court. It is not to the point that a court having a power to grant leave might have a necessary, incidental, or implied power to revoke leave²²⁶. The reference to a certificate in s 95(b) is unqualified. Nothing is to be gained, in my view, from attempting to characterise a certificate granted by the Family Court as either an interlocutory or a final order in the not entirely uncontroversial terms in which orders of similar kinds by various courts under different statutes or at common law have been characterised over the years.

150. In Smith Kline²²⁷ this Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) unanimously held as follows:

"Notwithstanding these special features, an application for special leave to appeal, like an application for leave to appeal, is an accepted and long-standing curial procedure in this country²²⁸. The procedure calls for a hearing, whether orally or on written materials, and a determination in the form of a curial order. If the application be refused, the order dismissing the application is the final curial act which brings the litigation between the parties to an end. An application for special leave to appeal therefore involves the exercise of judicial power."

151. In granting a certificate the Full Court of the Family Court is exercising a power of a similar kind to that which this Court exercises in granting special leave, that is, judicial power.

152. Furthermore, it follows from Smith Kline that if the Parliament can effectively legislate²²⁹ that all matters (unless this Court grant special leave to appeal) are capable of being exceptions within s 73²³⁰ of the Constitution²³¹ it can equally legislate, as I think it has, by s 95(b) of the Act, to confer a right (not revocable) to appeal upon the grant of a certificate by the Full Family Court.

153. In my opinion, as a matter of construction, s 95(b) also gives to a certificate the status of a judgment, decree or order within the meaning of those terms as used in s 73 of the Constitution. Because it has that status this Court no doubt has jurisdiction pursuant to s 73 of the Constitution, subject to such exceptions and regulations as the Parliament has lawfully prescribed by the Judiciary Act 1903 (Cth), to hear and determine an application for special leave to appeal, and an appeal, against the grant of such a certificate. However, no such application has been made in this case.

154. There is only one other aspect of these preliminary matters that I wish to touch upon. It may seem incongruous that although this Court may have power of its own motion to revoke special leave that it has itself granted, it should lack such a power in the case of a grant by some other court. But whether it is incongruous or not, if that is the position for which Parliament, within power, has legislated²³², that is the end of the matter just as it was not to the point that some may have preferred different legislative arrangements from those which eliminated appeals as of right to this Court in order to lessen the burden that they were imposing and would increasingly impose.

155. It may be unfortunate that the certificate that the Full Court granted did not itself identify with precision the important question of law or public interest involved. However, it is almost certain that the question which the Full Court thought answered that description is the one referred to by the Chief Justice of the Family Court in this way²³³:

"36. As Kay J has said in his reasons for judgment in relation to this application, (which I have had the opportunity of reading in draft form) there is a clear majority in favour of the proposition that this Court does have the power to set aside earlier decisions of the Full Court in appropriate circumstances. As I have pointed out, it appears that the Full Court of the Federal Court have taken a similar view.

37. However, there is a very obvious difference of opinion amongst the judges who constituted the Court as to the circumstances in which such a power can be or should be exercised. I think that the issue of what principles should be applied where the subject matter of the application is a child is a matter of considerable public interest and in my view is sufficient to warrant the grant of the certificate under the section.

38. I think that this view is reinforced when it is considered that a bench of five has divided so narrowly on this issue. Accordingly, I think that this is a case that is appropriate for the grant of such a certificate and would so order."

39. The certificate which s 95(b) contemplates is not one which would confine, or necessarily confine the issues or questions to be dealt with by this Court. The certificate, if issued, as this one was, in an unqualified way, had the effect of conferring upon the appellant an entitlement to appeal. Once that entitlement was certified the appellant had the right to have an appeal heard at large.

40. I propose therefore to deal with the appeal on that basis.

Previous Proceedings

158. On 17 August 1998, the appellant "DJL" applied to a Full Court of the Family Court seeking to re-open the judgment of a Full Court dated 10 October 1996 ("the first Full Court"), on the ground that the trial judge (O'Ryan J) and the first Full Court had applied the wrong law, namely the Family Law (Child Abduction Convention) Regulations (Amendment) 1995 (Cth)²³⁴ ("the 1995 Regulations"), which were in materially different terms from the applicable regulations, the Family Law (Child Abduction Convention) Regulations 1986 (Cth)²³⁵ ("the 1986 Regulations") in ordering the removal of her daughter "J" from Australia. It was also contended on a number of bases that the 1986 Regulations were, in any event, invalid laws of the Commonwealth, and could not support a lawful removal of J, an Australian citizen. The appellant in making the application sought to invoke an "inherent jurisdiction of the [Family] Court".

159. The Hague Convention has effect in Australian law by operation of the Family Law (Child Abduction Convention) Regulations made under s 111B of the Act. The applicable 1986 Regulations authorised the Central Authority²³⁶ to ensure compliance in Australia with the Hague Convention. The Central Authority has standing to commence proceedings in the Family Court and secure orders for the return of a child who has been wrongfully removed from that child's country of habitual residence.

160. The Full Court of the Family Court (Nicholson CJ, Finn, Kay, Moore and May JJ), constituted as a bench of five ("the second Full Court"), heard the application to re-open the earlier appeal to the first Full Court in August and September 1998. On 9 February 1999 the second Full Court dismissed, by a majority (Finn, Kay and May JJ²³⁷), the appellant's application to re-open the appeal.

161. Nothing daunted and despite her continued disobedience of the orders of the first and second Full Courts, the appellant again sought the intervention in her favour of a third Full Court of the Family Court in applying for the certificate under s 95(b) of the Act which was ultimately granted in her favour: the constitution of that third Full Court was the same as the second Full Court.

The Facts

162. The child J was born in the United States of America on 9 November 1993. She is a citizen of Australia and the United States of America. The appellant is an Australian citizen. She married an American citizen and moved to the United States with her husband in July 1991.

163. On 12 March 1994, with the father's consent, the appellant and J (then aged four months) travelled to Australia. At that time the marriage was foundering. The appellant and J remained in Australia until November 1994. At the end of November 1994, the appellant and J returned to the United States at the request of the husband who had suffered a heart attack. An attempted reconciliation failed.

164. On 12 January 1995, the appellant and J departed from America and returned to Australia without the consent or knowledge of the father. The appellant was by then pregnant with a second child of the marriage, "S", who was born in Sydney on 22 September 1995. By 17 January 1995, the husband had commenced divorce proceedings in the Superior Court of Gwinnett County, Georgia. The proceedings were heard ex parte after the appellant had been served and had entered an appearance. On 9 May 1995, the husband obtained orders including the sole permanent custody of J with no rights of visitation.

165. About five months after the departure of the child from the United States, on 5 June 1995, J's father applied to the Central Authority of the United States of America seeking her return.

166. The application was conveyed by the United States Central Authority to the Central Authority in Australia in June 1995. On 28 June 1995 an application was filed by the Central Authority (the Director-General of the New South Wales Department of Community Services) in the Family Court, seeking an order that the father be permitted to remove the child from Australia for the purpose of returning her to America.

167. The application of the Central Authority was listed for hearing on 5 September 1995. The hearing dates were vacated and the proceedings adjourned on the appellant's application on the ground of her pregnancy.

168. The application was heard by O'Ryan J in the Family Court of Australia on 2 and 5 February 1996. On 20 February 1996, O'Ryan J made an order that the child be returned to America.

169. The appellant appealed by leave, out of time, to the first Full Court and that appeal came on for hearing on 3 and 4 July 1996. The first Full Court delivered judgment on 10 October 1996, some 16 months after the father's application. The appeal was dismissed.

170. The appellant then went into hiding with the two children. They were located in January 1998.

171. On 9 April 1998, the appellant lodged an application to seek special leave to appeal to the High Court out of time. The grounds for special leave were not exactly the same grounds as are the subject of the present appeal. On 7 August 1998, this Court (Gleeson CJ and McHugh J) refused the appellant's application for special leave to appeal out of time.

The Appeal to this Court

174. The appellant correctly submits that the Regulations which should have been applied by the Family Court were the Regulations that were in effect at the time of the making of the application on 28 June 1995, the 1986 Regulations, as amended up to October 1994²³⁸; and that the appellant (and J) were entitled to have the matter determined by reference to the applicable 1986 Regulations and not by reference to the materially different 1995 Regulations.

175. The application of the wrong Regulations occurred by oversight of all parties, in circumstances in which the Central Authority had a responsibility to bring applications in proper form to the Court. However, in De L a similar oversight did not become apparent to the litigants until the decision of this Court in that case²³⁹ was delivered. That occurred on the same day as the judgment of the first Full Court in this matter was pronounced.

176. The most significant difference, the appellant submits, between the 1986 and 1995 Regulations was that regs 13, 16(3)(b) and 20(2) of the 1986 Regulations referred to the return of the child to the "applicant" and the later regs 13(1), 16(3)(b) and 20(2) referred to the return of the child to the "country in which he or she habitually resided".

177. There were some further differences. The earlier Regulations required the Court to consider whether there would be a grave risk that the child would be exposed to physical or psychological harm if she were returned to her father. Under the 1995 Regulations, the Court's inquiry was whether there would be a grave risk that she might be exposed to physical or psychological harm in the United States. The appellant adopted what the Family Court had said in Murray v Director, Family Services, ACT²⁴⁰, to the effect that the distinction in this respect was not a trivial one.

178. The appellant argues that the differences in the Regulations were of determinative significance in the reasons of the first Full Court which turned on the proposition that the child would be returning to the United States and not to the father.

179. The different Regulations, it may be accepted, do call for the application of different tests. It may also be accepted that in some cases the results would be quite different if they were to be decided under one set of Regulations rather than the other. I do not think that it is possible to say in this case however that the decisions of the judge at first instance and of the first Full Court would have been different had the correct Regulations been applied. The issue upon which the parties were joined was formulated by the present respondent in the initiating application in terms which necessitated consideration and evaluation of the desirability of the child's return to America with, and to the father, and, consequently what might be involved by way of risk or otherwise to the child in those circumstances. The order sought was as follows:

"That the Father ... is permitted to remove the child from Australia forthwith for the purpose of returning her to the UNITED STATES OF AMERICA pursuant to the provisions of the Hague Convention on the Civil Aspects of International Child Abduction."

180. Evidence was given on that issue. For example, Professor Waters who was called by the appellant, spoke of, and the Courts must have evaluated, the "combination of abrupt removal [of the child] from the mother, [and] placement with the father with whom she has virtually no relationship or recollection"²⁴¹. The first Full Court (Baker, Lindenmayer and Smithers JJ) expressly dealt with what their Honours described as the "gravamen" of the appellant's submission, that in fact return to the USA meant return to the father²⁴². Those fears were certainly not treated as irrelevant or unimportant: the first Full Court rightly held that the trial judge had considered them and that his Honour's conclusion was not attended by error. The first Full Court also emphasised that even if the effect of return to the USA would be return to the custody of the father, the Family Court was not required or able to address questions of the ultimate, proper custody order.

181. It follows that the trial judge and the first Full Court must have been alive to the consequences for the child of their decision in every practical sense. It was on that basis that those Courts made the orders that they did. Those orders should have been complied with and it would be wrong for a subsequent Family Court to treat the matters as if they might be fully relitigated, albeit on the basis of Regulations which should have governed the proceedings from the outset.

182. I come now to the legal question whether the second Full Court had power to re-open the earlier decision of the first Full Court.

183. The Family Court of Australia is a superior court of record²⁴³. It has power in relation to matters, in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate²⁴⁴. There is no statutory power express or implied to be found in the Act or the Regulations conferring a power upon the Full Court of the Family Court as an intermediate court of appeal or otherwise to re-open a perfected order. And, as the majority point out in their reasons, as a statutory federal court the Family Court does not have recourse to the undefined powers in the inherent jurisdiction enjoyed by the three common law courts of Westminster.

184. In Bailey v Marinoff²⁴⁵, a majority of the High Court held that the New South Wales Court of Appeal had no power to re-open a perfected order disposing of a proceeding. The Court of Appeal on 10 February 1970 had ordered:

"that the Appellant file and serve the appeal books herein on or before the 31st day of March 1970 [and] ... if the Appellant does not file and serve the appeal books herein on or before the 31st day of March 1970 the appeal is to stand dismissed for want of prosecution".

There, the order was signed and sealed on 5 March 1970. Appeal books were filed on 31 March but were not served until 6 April. Notwithstanding that the appeal stood dismissed in accordance with the order that had been made, the Court of Appeal, on 28 September 1970, ordered that the filing and late service of the appeal books should be deemed a sufficient compliance with the order of 10 February 1970. On appeal from that order to the High Court, it was held, applying the principle that 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 relevant statutory provision to a different effect, is at an end in that court, and is, in substance, beyond recall by that court. It was further held that the Supreme Court had no inherent power or jurisdiction to make the order it made, its earlier order dismissing the appeal having been perfected by the process of the Court.

185. Barwick CJ said this²⁴⁷:

"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. ... In my opinion, none of the decided cases lend support to the view that the Supreme Court in this case had any inherent power or jurisdiction to make the order it did make, its earlier order dismissing the appeal having been perfected by the processes of the Court."

186. Menzies J put the matter this way²⁴⁸:

"However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end. ... [A] court cannot, by a further order, get rid of the operative and substantive part of its judgment."

Owen J agreed²⁴⁹ as did Walsh J, who echoed the words of Menzies J²⁵⁰.

187. Gibbs J dissented, referring to the general rule²⁵¹ and then to the exceptions²⁵². His Honour's opinion was that the cases indicated that a superior court had an inherent power to vary its own orders in certain instances, although the limits of the power remained undefined²⁵³. He emphasised that any such power should be exercised in "the interests of justice", and to "remedy any injustice"²⁵⁴.

188. In Gamser v Nominal Defendant²⁵⁵, this Court followed Bailey v Marinoff. Gibbs J accepted that the decision of the majority in Bailey established that the New South Wales Court of Appeal lacked inherent power to re-open a perfected order disposing of proceedings²⁵⁶. In that case a plaintiff had been awarded $160,000 in an action for damages for personal injuries in negligence. The damages were reassessed by the New South Wales Court of Appeal at $125,000 and judgment of that Court was entered. The plaintiff subsequently applied to the Court of Appeal for an order setting aside the earlier order, and a new trial of the action, or a further reassessment of damages, on the ground that recent, supervening events had caused a significant deterioration in the plaintiff's condition. It was held that there was no power under s 75A(7), (8) and (9)²⁵⁷ of the Supreme Court Act 1970 (NSW) to grant the application, by Barwick CJ, Gibbs, Stephen and Aickin JJ on the ground that the power of the Court to receive further evidence conferred by those provisions could be exercised only during the currency of an appeal and not after it had been determined and finally disposed of by entry of judgment; and that there was no power under the Supreme Court Rules (NSW), Pt 40, r 9(4) (which gives power to set aside or vary orders), to grant the application. Nor was there any power under the Supreme Court Rules, Pt 42, rr 11 and 12(1) (the latter of which provides that 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"), to grant the application. The kinds of orders contemplated by those rules did not include one setting aside a judgment regularly obtained. The Court of Appeal did not have inherent power to set aside its judgment by reason of changed circumstances on application made after the case had been finally disposed of.

Footnotes

1. The judgment is reported, (1996) 135 FLR 68. ↩

2. (1996) 135 FLR 68 at 68‑69. ↩

3. (1996) 187 CLR 640. ↩

4. De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640 at 653. See also the report of the Full Court decision in the present litigation delivered on 9 February 1999, (1999) 24 Fam LR 555 at 558 per Nicholson CJ (with whom Moore J agreed), 588-590 per Finn J (with whom May J agreed), 601 per Kay J. ↩

5. Although it is not clear exactly which regulations O'Ryan J applied, as he made no express reference to the date of the regulations, he appears to have applied the 1995 Regulations. He quoted regs 3, 4 and 13 in their form as substituted by the 1995 Regulations, and reg 16 from the 1986 Regulations, although he appears to have applied reg 16 in its amended form. See also (1999) 24 Fam LR 555 at 589 per Finn J. ↩

6. (1996) 135 FLR 68 at 79-81. See also (1999) 24 Fam LR 555 at 583 per Nicholson CJ, 589 per Finn J. ↩

7. The text of the application is set out in the reasons of Finn J, (1999) 24 Fam LR 555 at 591. ↩

8. (1999) 24 Fam LR 555 at 591. ↩

9. (1999) 24 Fam LR 555. ↩

10. (1999) 24 Fam LR 555 at 610. ↩

11. (1999) 24 Fam LR 555 at 621. ↩