FAMILY LAW ACT 1975

FAMILY COURT OF AUSTRALIA, Sydney

BEFORE: Baker, Lindenmayer and Smithers JJ.

3, 4 July, 10 October 1996

BETWEEN

Laing

v.

Central Authority

REASONS FOR JUDGMENT

__________________

JUDGMENT:

This is an appeal from orders made by O'Ryan J on 20 February 1996 following a hearing of an application filed by the Director General of the Department of Community Services, pursuant to the provisions of the Convention on Civil Aspects of International Child Abduction (otherwise known as the Hague Convention) which has been given effect to in Australia by operation of the Family Law (Child Abduction) Convention Regulations.

The orders which the trial judge made and from which the wife now appeals, in precise terms are as follows:

It seems to us however, that what Judge Bishop did was no more than what any judge exercising jurisdiction under the Family Law Act in Australia might have done when faced with an application properly instituted, served in accordance with the Rules of Court and in respect of which there was no appearance at the time scheduled for the hearing and no documentation filed or evidence adduced in response by or on behalf of the wife.

On 22 March 1995, an application was filed by the wife in the Family Court pursuant to which she sought sole guardianship and custody of the child. There were apparently difficulties in effecting personal service upon the husband, culminating in an application for substituted terms, which was made on 7 June 1995.

On 6 May 1995, the husband completed an application for assistance under the Hague Convention. On 28 June 1995 an application was filed in the Family Court on behalf of the Director General of the Department of Community Services, who has become the Central Authority for the purpose of these proceedings. The application made by the Central Authority was heard by his Honour on 2 and 5 February 1996 and his Honour delivered written reasons for judgment on 20 February 1996. It is the orders which flow from his Honour's reasons from which the wife now appeals.

The reasons for judgment of the trial judge

His Honour, having recounted the history of the proceedings and of the parties' relationship, inter se, on p 17 of the appeal book, identified four issues which arose in the course of the proceedings, as follows:

There can be no doubt that as at March 1994, the child's habitual residence was in the United States. This is because she had been born in the United States on 9 November 1993 and had lived in that country with her parents without interruption since that time.

It is always difficult for trial judges when dealing with factual issues if they do not have the benefit of hearing the parties themselves give oral evidence and be cross-examined. The decision which the trial judge made was based upon a reading of the affidavit evidence filed in the course of the proceedings and hearing submissions from counsel who appeared for the parties.

There is no dispute that the husband consented to the wife bringing the child to Australia for a holiday and to visit relatives, said to be for a period of not more than one month. At that time, both the wife and the child had return air tickets. There was evidence, as indeed the trial judge found, that the wife chose to remain permanently in Australia and that she communicated this intention to the husband. In addition, there was evidence which established that the husband himself took no steps at that time to ensure the return of the child to the United States or in relation to guardianship, custody or access.

The trial judge found that in spite of whatever intentions the wife may have had from time to time, and despite what she may have communicated to the husband as an expression of those intentions, the husband at no time either consented to or acquiesced in the child's remaining permanently in Australia.

Although the husband may have done nothing until November 1994 when he requested the return of the wife and the child to the United States following his heart attack, nevertheless, in our view, passivity alone, for such a period, cannot amount to acquiescence. His Honour found that the period from March to late November 1994 was one of confusion, uncertainty and emotional turmoil culminating in the husband's ill health. Those findings, in our view, were open to his Honour having regard to the evidence.

His Honour's finding therefore, on p 25 of the appeal book, "I am satisfied that the child's habitual residence did not change in the period March 1994 to November 1994", was a finding open to his Honour, having regard to the evidence, unsatisfactory though that evidence may have been in some respects.

Ground (2): His Honour erred in law in determining that the husband had any custody rights within the meaning of the said Article which the alleged removal could have breached.

The appellant wife argued that the husband had no custody rights at the time of the removal of the child from the State of Georgia and therefore Art 3 of the Convention has no application.

On p 26 of the appeal book, the trial judge concluded that he was satisfied that removal of the child from Georgia was contrary to the husband's rights of custody in terms of the law of the State of Georgia. He apparently had before him some extracts from the relevant laws of Georgia, and in particular, the following passage which His Honour recorded on p 26 of vol 1 of the appeal book:

However, it is important to record the complete passage which appears on p 109 of the appeal book, which is an extract from the Code of Georgia; Title 19. Domestic Relations: Chapter 9. Child Custody Proceedings: Article 1. General Provisions:

(a) In all cases in which the custody of any minor child or children is at issue between the parents, there shall be no prima-facie right to the custody of the child or children in the father or mother. The court hearing the issue of custody, in exercise of its sound discretion, may take into consideration all the circumstances of the case, including the improvement of the health of the party seeking a change in custody provisions, in determining to whom custody of the child or children should be awarded. The duty of the court in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness and to make its award accordingly. In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he desires to live. The child's selection shall be controlling unless the parent so selected is determined not to be a fit and proper person to have the custody of the child. Nothing in this Code section shall be interpreted to deny the custodial parent the right to reasonable visitation determined by the court as in other cases. Joint custody, as defined by Code Section 19-9-6, may be considered as an alternative form of custody by the court. This provision allows a court at any temporary or permanent hearing to grant sole custody, joint custody, joint legal custody, or joint physical custody where appropriate. The court is authorised to order a psychological custody evaluation of the family or an independent medical evaluation.

In our opinion, all that provision means is that neither parent is in a preferred position as against the other when disputes arise concerning the right of custody. Further, the passage makes it clear that a party in the position of the husband in the present appeal does have specific rights of custody. In any event, the trial judge found that there was no issue before him that the husband had rights of custody in the terms of the law of Georgia, although as his Honour conceded, he did not have the complete extract of the relevant laws.

In our opinion however, as this was never raised as an issue in the court below, the appellant should not be permitted to raise it as an issue on appeal. (See Water Board v Moustakas (1988) 180 CLR 491 77 ALR 193).

Ground (3): His Honour erred in law in apparently determining pursuant to the said Article that any alleged custody rights of the husband were either actually exercised or would have been exercised but for the alleged removal.

This ground, in our opinion, flies in the face of the facts as found by the trial judge and in respect of which there was little dispute in the course of the trial.

At the time of the removal in January 1995, the child was living with the husband and wife in the husband's home in Georgia pursuant to an attempt at reconciliation. As the trial judge found, the parties lived together in the period November 1994 to January 1995, their cohabitation was voluntary and part of a reconciliation attempt. Their resumption of cohabitation was a result of a mutual agreement to reconcile and at the time of the removal the child was part of the household.

In our opinion, at the time of the removal the husband was exercising his custody rights as a parent including the right to determine the place of residence of the child and therefore this ground has no merit.

Ground (4): His Honour erred in law in determining within the meaning of Article 4 that the child J was habitually resident within the jurisdiction of the Central Authority at the time of the alleged breach of the husband's alleged custody rights.

In the passage on p 25 of the appeal book to which we have already referred, the trial judge was satisfied that the child's habitual residence did not change in the period between March 1994 and November 1994, that is to say that the child was at all material times habitually resident in the United States. What the wife's intentions were, in our opinion, is not the point. Although she may have informed the husband that she did not intend to return to Georgia, and although he may have accepted this assertion, at no time did he concede that the marriage was at an end, or that the child might remain permanently in Australia.

The question is whether the wife communicated those intentions to the husband, and whether or not he accepted or agreed to her proposal to remain permanently in Australia with the child. The trial judge found that the wife had informed the husband by letter in August 1994 that it would be better if the parties divorced. There was no evidence however, to suggest that the husband at any time accepted that neither the wife nor the child would return to the United States irrespective of whether the marriage had broken down.

In our opinion, it was open to the trial judge to conclude that the child's residence did not change after her removal to Australia. If however, this is not so, then, as indeed his Honour indicated on p 25 of the appeal book, certainly by January 1995 the child had become habitually resident in the United States. The period that the wife and the child were in the United States, from November 1994 until January 1995, was six weeks and in our opinion was of sufficient duration and with a sufficiently settled intention on the part of the wife to establish habitual residence. During this period, the child was living with both parents within the one residence, with the parties (including the husband) exercising rights of custody. His Honour found as he was entitled to do, that there was no agreement between the parties that in the event that their reconciliation attempt failed the wife would be free to return with the child to live in Australia (cf Hanbury-Brown, above).

Ground (5): His Honour erred in law in finding pursuant to Article 13(a) that the husband had custody rights which he was actually exercising at the time of the alleged wrongful removal.

This ground would appear to be almost identical in terms to ground (3).

In our opinion this ground has no substance for the reason that at the time of the child's removal in January 1995 the parties were living together in their former home in Georgia with the child being part of the household. The husband was clearly exercising his rights as a parent during that period and therefore the trial judge's findings to this effect were correct.

Ground (6): His Honour erred in law in finding that pursuant to the said Article 13(a) the husband had not consented to the alleged wrongful removal.

It was conceded by Ms Farey that the husband's consent to the return of the child to Australia arises by way of constructive agreement and relies upon the following comment which the trial judge made on p 24 of the appeal book:

Further, there is evidence which may establish that the husband gave his tacit consent to the wife and J remaining permanently in Australia and I refer to the evidence about the sale of the wife's motor vehicle and the unsatisfactory nature of the response of the husband to some of the evidence of the wife.

It was further asserted that the wife did not agree or acquiesce over a period of time that her habitual residence and that of the child would change at the time that the parties' reconciled. It was further asserted that the parties covert intentions cannot detract from and overrule their overt agreement. Further, it was asserted that the visit to the United States in November 1994 by the wife and child was for a finite period which did not sever their habitual residence in Australia.

As Mr Anderson submitted on behalf of the Central Authority, the habitual residence of the child may be different from that of its custodian if that custodian had attempted unilaterally to change the child's residence by removing the child in breach of the other's parental rights. (See Re S (Minors) (Abduction: Wrongful Retention) [1994] FLR 70 at 82 ; Cooper and Casey (1995) 18 Fam LR 433 at 435 FLC 92-575).

As the trial judge said on p 23 of the appeal book, the habitual residence of a child is ultimately a question of fact. The child J was resident in the United States from the time of birth until March 1994 and again from late November 1994 until mid January 1995. Similarly, whether or not the husband had consented to the wrongful removal was a question of fact which the trial judge was called upon to decide. His Honour came to the conclusion that the husband had not consented to the child's remaining in Australia indefinitely and therefore the child's habitual residence never changed from the United States. He further found that, in any event by January, 1995, the child's habitual residence in the United States, if previously lost, had been re-established. There was no evidence that the husband consented to or acquiesced in the subsequent removal, and all the evidence points clearly to the contrary.

In our view therefore, and for all these reasons, this ground has no merit.

Ground (7): His Honour erred in law in finding that the wife had not established that the alleged return of the child would expose the said child to physical harm.

Ground (8): His Honour erred in law in finding that the wife had not established that the alleged return of the child would expose the said child to psychological harm.

Ground (9): His Honour erred in law in finding that the wife had not established that the alleged return of the child would place the child in an intolerable situation .

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

In Lovell v Lovell (1950) 81 CLR 5l3 at 519 [1950] ALR 944, Latham CJ said:

The references in the various authorities on this matter to a failure to give sufficient weight to relevant considerations should not be understood in such a sense as to entitle an appellate tribunal to deal with an appeal from an order made in the exercise of a discretion in the same way as in the case of an appeal from any other order. If completely irrelevant considerations have been taken into account and they have really affected a decision the case is clear and the order though made in the exercise of a discretion should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court. The words used by the lordships in the House of Lords in this connection are not always easy to apply but they ought not to be read as denying the long established principle which indeed is expressly recognised in the cases in the House of Lords, that on an appeal from an order founded upon exercise of a discretion the appellate tribunal has no right to substitute its discretion for the discretion entrusted to the primary tribunal.

Of particular relevance to cases in the Family Court involving children's matters is the statement of principle expressed by Stephen J in the following passage from Gronow v Gronow (1979) 144 CLR 513 at 519 29 ALR 129 5 Fam LR 719 FLC 90-716:

The constant emphasis of the cases is that before reversal an appellate court must be well-satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well-established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal, can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.

On and from p 27 of the appeal book the trial judge considered the risk of physical and/or psychological harm which may be occasioned to the child in the event that the child is returned to the United States. He referred to authorities, including Gsponer v Johnson (1988) 12 Fam LR 755 (1989) FLC 92-001; Re A (1988) l FLR 365 and ; Director-General of Family and Community Services and Davis (1990) 14 Fam LR 381 FLC 92-182.

His Honour then went on to consider the situation in which the wife would find herself if she were to return to the United States, the evidence from the Engadine Occasional Child Care Centre and from Professor Waters, who prepared an Order 30A report.

The trial judge's findings in relation to the allegations by the wife that removal to the United States would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation appear in the following passage on pp 30 to 32 of the appeal book:

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

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

The expert evidence in this case does not, in my opinion, establish that the return of J would expose her to the necessary degree of psychological harm. The expert evidence, even when considered with the other evidence, such as age of the child, time spent in the care of the wife, time spent in the care of the husband and separation from S does not enable me to reach the required conclusion. I have no doubt that it is a highly unsatisfactory and unsuitable situation so far as the welfare of J is concerned, however, regretfully, that is not what I have to consider. An example and perhaps the only reported example of circumstances where the defence of physical or psychological harm was established in the decision of the Court of Appeal in Re F (minor: Abduction: rights of custody abroad) (1995) All ER 641 at 647-549, 653; see also ; Re Bassi; Bassi and Director General, Dept of Community Services (1994) FLC 92-465.

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

The evidence in support of the existence of a grave risk of physical or psychological harm, or the placement of the child in an intolerable situation appears in the report of Professor Brent Waters, who, under the heading "Opinion" on p 156 of the appeal book, said:

My examination indicates that J is strongly and securely attached (bonded) to her mother. She is also strongly attached to her brother. I note that she is reported to show some anxiety when she stays overnight at her aunt's, and also shows some jealousy when her mother is occupied with her brother, but these are normal reactions for a well-adjusted two year old. Nevertheless, they do underscore that an abrupt and permanent separation from her mother would be associated with protest and extreme distress on behalf of the child. This distress would be associated with crying, withdrawal, lack of sleep, insecurity while in the care of the new carer, and probably appetite disturbance. However, provided that the new carers offered a warm, loving, attentive and responsive environment with minimal disruption to care and day-to-day routines, it is likely that J would adapt to the change and bond to the new carer. Nevertheless, there is a risk that the premature rupture of the bond with her mother may have the effect of making her somewhat less likely of establishing a secure bond with the next carer.

Based on the information available to me, I would not believe that there is any intrinsic reason for believing that the brother's psychiatric illness poses any risk to J.

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

Given the distance between the families, access to the mother would not significantly modify these risks. The benefit of access would be substantially in the area of maintaining the relationship with the mother, rather than protecting the child from the risks of being removed from a secure relationship and placed in a new carer relationship with an unfamiliar person or persons.

I would note that I did not have the opportunity to assess the father and his capacity to parent, nor to explore with him the detailed nature of the care he proposed to provide for his daughter.

Professor Water's opinion in summary reveals the following:

(a) that J is strongly and securely attached (bonded) to her mother;

(b) the child J is strongly attached to her brother;

His Honour in our opinion clearly considered all of this evidence and all the factors relevant to the child's welfare, under reg 16(3)(b) and concluded that the wife had not been able to establish that there was a grave risk of physical or emotional harm to the child, or that the child would otherwise be placed in an intolerable situation, by being the subject of an order for her return to the United States.

It must always be remembered that in most cases where an order is made by a court returning a child to its habitual place of residence, the order does not and is not intended to have the effect of returning the child to the custody or care of the other parent. What the order does is to require the Central Authority to return the child (often in the company of the abducting parent) to the country from which the child was wrongfully removed. It would be inconceivable that the judicial system of the State of Georgia in the United States would not be able to protect the child from any significant risk of physical and/or psychological harm arising from the implementation of this court's order. In addition, as indeed the trial judge found, the evidence was that the court in the State of Georgia having Jurisdiction in disputes relating to children applies the principle that the best interests of the child are the paramount consideration.

It was argued by the appellant that the trial judge failed to consider that the child was to be returned to the care of a person (the husband) who was in full time employment and absent for the greater part of waking hours, and who has known the child J effectively for a period of six weeks some twelve months ago and, prior to that, for a period of four months in the first four months of her life.

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

The purpose of the Convention is to protect children habitually resident in Convention countries from the harmful effects of their wrongful removal to or retention in another Convention country, by establishing a framework to ensure their prompt return to the State of their habitual residence. This is because countries which have signed the Convention recognise that disputes involving the custody of and access to children are best heard and determined in the place of their habitual residence, where the principle that the interests of children are of paramount importance will be applied.

The gravamen of the appellant's submission was however, that the trial judge erred in not finding that there was a grave risk that the child's return to the husband would expose her to physical or psychological harm, or otherwise place the child in an intolerable situation.

The meaning of the words, "grave risk", "physical or psychological harm", and "intolerable situation", as contained in reg 16(3)(b) have been referred to in a number of authorities. In Re F (minor: abduction: rights of custody abroad), above, the Court of Appeal was concerned with an application under the Hague Convention on the Civil Aspects of International Child Abduction 1980 which is reproduced in Sch 1 to the Child Abduction and Custody Act 1985 (UK). Article 13(b) of the Convention is in similar terms to reg 16(3)(b), with which we are concerned in relation to this appeal.

In concluding, having regard to the facts in that case, that there was a grave risk that the child's return would expose him to psychological harm and place him in an intolerable situation, Butler-Sloss LJ recorded the evidence which was before the trial judge in relation thereto in the following passage on p 649 of the report:

The extent to which the child has himself been drawn into the violence between his parents and the clear evidence of the adverse effect on him of his father's violent and intimidating behaviour would not in my view in themselves be sufficient to meet the high standard required in Art 13(b). The matters which I find most telling are: (1) the actual effect upon the child of the knowledge that he may be returning to Colorado together with the unusual circumstances; (2) that he would be returning to the very same surroundings and potentially the very same situation as that which has had such a serious effect upon him before he was removed. There has to be concern as to whether the father would take any notice of future orders of the court or comply with the undertakings he has given to the judge. How is a child of four to have any security or stability or from his perception come to terms with a return to his former home? I have come to the conclusion on the unusual facts of this case that the extreme reaction of the child to the marital discord and the requirement by Art 12 to return him on the facts of this case to the same house with the same attendant risks would create a grave risk that his return would expose him both to psychological harm and would place him in an intolerable situation.

The principle to be applied however was stated by Sir Christopher Slade on p 653 in the following passage:

Millett LJ declared that the facts disclosed, "an exceptional case, where the intolerable situation is extreme and compelling".

Returning then to the present appeal, the evidence which the wife has given in support of her application is untested and, in any event, it is inconceivable that the courts in Georgia having the relevant jurisdiction would not protect both the wife and the child, or otherwise act in a manner consistent with the child's best interests. Indeed, we endorse similar comments made to the above effect in Murray and Director Family Services (ACT) (1993) 16 Fam LR 982 FLC 92-416 and ; Gsponer and Director General Department of Community Services (Vic), above.

We are not satisfied that the allegations which the wife has made and the evidence which she has adduced in support of her case, disclose a situation of such gravity or such exceptional circumstances as would require the court to intervene pursuant to reg 16(3)(b). His Honour refused to do so and, in our respectful opinion, he was correct.

The allegations of physical and psychological harm and sexual abuse which the appellant raises are not matters which could be conveniently dealt with in this country. The allegations are in respect of incidents said to have occurred within the State of Georgia. Therefore, in our opinion, the courts in that State are best equipped to hear and determine all those matters.

The matters referred to in reg 16(3)(b) are essentially questions of fact which a trial judge must decide, having regard to the evidence put before him. In the instant appeal, the trial judge carefully considered all the evidence which was before him at the time and concluded, for reasons which he gave, that no grave risk was present that the return of the child to the United States would expose her to physical or psychological harm, or otherwise place the child in an intolerable situation.

Further argument which Ms Farey raised in the course of her submissions was that once the child is returned to the United States the order of the Gwinnett Superior Court will immediately take effect and the husband will thereafter resume custody of his daughter. Indeed, the very purpose of the Convention is to respect the custody orders of the jurisdiction of the country from which the child was abducted which apply or have applied the best interests principle. There would appear however, to be nothing to prevent the appellant from applying to the Gwinnett Superior Court to set aside the orders previously made in her absence on the various grounds alleged before his Honour and before us in the course of the hearing of this appeal. While there may be some practical and procedural difficulties facing the wife in making and pursuing such an application, they are essentially of her own making. After all she chose, at her own risk to ignore the process of that court, with which she had been regularly and properly served, and it was clearly the court which provided the most appropriate forum for the resolution of the custody issue between these parties on its merits.

Ground (10): His Honour erred in law in not determining that the alleged return of the child would be in breach of fundamental principles relating to the protection of human rights and fundamental freedoms.

This ground has no substance in our view, for the reason that it implies that the Gwinnett Superior Court of the State of Georgia would not apply fundamental principles relating to the protection of human rights and fundamental freedoms.

There was no evidence before the trial judge to suggest that the Gwinnett Superior Court would not apply the paramountcy principle nor be capable of protecting human rights and fundamental freedoms of individuals. In any event, that aspect of the appeal was never argued before the trial judge and therefore he did not apply his mind to it in his reasons for judgment.

Summary and conclusions

The decision which the trial judge was called upon to make required him to consider all the evidence before him and make findings of fact in relation thereto. His Honour carefully considered the facts before him in a comprehensive and well reasoned judgment and in our opinion the findings which he made were all open to him having regard to the evidence.

Having made his findings of fact the trial judge then went on to consider the relevant law and, in particular, the various authorities to which he made reference in his reasons for judgment. In our opinion, his Honour correctly applied the law and we are therefore unable to find that any appellable error has occurred.

For all these reasons the appeal will be dismissed.

Costs

At the conclusion of the hearing of the appeal, we heard argument from the parties in relation to what order for costs should be made depending upon the result.

The appellant submitted that if the appeal were to succeed, she would be seeking an order for costs or, in the alternative, a certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981.

The respondent's counsel submitted that irrespective of the result, he would not be seeking costs on behalf of his client.

In the end result, as the appeal has not been successful, we do not propose to make any order for costs.

Order:

It is ordered:

(1) That the appeal be dismissed.

Laing and The Central Authority [1999] FamCA 100 (9 February 1999)

IN THE FULL COURT

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

AT MELBOURNE File No SY 3981 of 1995

BETWEEN:

CORAM: NICHOLSON CJ, FINN, KAY, MOORE,

and MAY JJ

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

DATE OF JUDGMENT: 9 February 1999

APPEARANCES:

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

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

Name of Appeal

Laing v The Central Authority

Appeal Number EA 39 of 1996 from SY 3981 of 1995

Date of Appeal

Judgment in Issue 10 October 1996 (Baker, Lindenmayer and Smithers JJ)

Date of Appeal Hearing

Before Present Full Court: 27, 28 August and 14 September 1998

Decision Delivered: 9 February 1999

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

Introduction

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and

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

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

13. Her application relied on the following grounds:-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* the important legal questions raised by the case;

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

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

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

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

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

Background

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

Approach to the Application

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

24. I turn first to the substantive issues.

The Validity of the Regulations.

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

a) Submissions

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

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

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

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

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

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

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

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

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

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

b) Findings

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

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

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

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

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

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

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

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

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

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

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

If the Regulations are Valid

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

* his Honour's further assumption that "there will be a speedy determination of the welfare issues which I have identified" ;

* the concerns expressed by Professor Waters as accepted by O'Ryan J;

* the allegations of threat of physical harm to child.

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

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

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

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

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

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

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

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

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

55. Accordingly, applied to the present case, I do not accept Mr Basten's submission that reliance on the erroneous interpretation of "applicant" can be ignored.

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

The Validity of the Order by O'Ryan J

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

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

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

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

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

Are Australian citizens excluded from return orders under the Convention

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

Special duties of the Central Authority

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

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

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

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

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

Can completed proceedings ever be reopened?

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

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

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

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

Core Submissions as to Power

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

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

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

* the interests of justice so require.

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

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

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

High Court Authority

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

"Reopening of a final order

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

The Significance of "Perfection"

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

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

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

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

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

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

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

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

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

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

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

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

78. Dawson J at 317 said:-

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

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

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

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

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

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

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

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

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

Does the jurisdiction to reopen exist for an intermediate Appellate Court

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

High Court Authority on the Jurisdiction to Reopen

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

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

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

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

85. His Honour also said at 544:-

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

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

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

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

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

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

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

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

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

Intermediate Appellate Court Authority on the Jurisdiction to Reopen

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

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

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

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

92. His Honour further said:-

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

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

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

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

In all of the foregoing cases, either by direction of the Court or by sensible arrangement between the parties, the formal orders of the Court were withheld. They were not perfected. There was therefore no impenetrable barrier to the correction of the orders. Yet, even in such cases, special circumstances must be shown before the discretion to set aside or alter orders which have been announced is enlivened The purpose of the jurisdiction is 'not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases' or 'simply for the purpose of giving a party the opportunity to present a case to better advantage': see Autodesk Inc v Dyason [No 2] (1993) 176 CLR 300 at 301, 312, 328; State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38, 45f; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 683; 51 LGRA 212 at 220; Permanent Trustee Co. (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 201. Special or 'very special' circumstances must be shown, amounting to a serious oversight or departure from due process or mistake. Otherwise, the orders pronounced must stand. In Australian courts other than the High Court of Australia, they must then be corrected, if at all, by appeal or by judicial review where available.

The question remains as to whether the jurisdiction to correct is available in the case of a perfected order. Whilst the Minister asserted that this Court had no such jurisdiction, at least in a case such as the present, it is my view that such a jurisdiction exists. It is confined to the most exceptional circumstances. It is true that earlier decisions doubt the existence of this jurisdiction, statute apart: see, eg, Bailey v Marinoff (1971) 125 CLR 529 at 531. However, later decisions have acknowledged the inherent jurisdiction in a court such as this to set aside a previous order in limited circumstances. As for example where the order did not conclude litigation but merely regulated procedure and where its execution would result in futility: see, eg, Wentworth v Attorney-General for the State of New South Wales (1984) 154 CLR 518 at 526. However, it has been emphasised that such inherent power, where it exists, "is not lightly to be exercised". It is truly exceptional.

In the case of the High Court of Australia, the jurisdiction to correct even perfected orders has certainly been acknowledged. It has been explained in terms of that Court's position "as a final court of appeal to prevent irremediable injustice being done by a court of last resort": see Codelfa (at 45). However, in Wentworth v Rogers [No 9] (1987) 8 NSWLR 388 at 394, this court pointed out that, since the termination of appeals to the Privy Council and the provision for appeals to lie to the High Court only by special leave of that Court, there is now no further appeal from this Court as of right:

"For most litigants, this Court is the final place of appeal or review. It may therefore be appropriate to apply to this Court the same principles as are stated in State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd, though with the modification that "irremediable injustice is not inevitable because of the avenue which is always open to a disaffected litigant to seek special leave to appeal from the High Court."

In that last-mentioned case, it was unnecessary for this Court to "explore the precise extent of and limits upon the power of the Court to vary or supplement orders made by it". The Court accepted that: " ... to the extent that such a power exists, it would only be used in the most exceptional of cases."

The High Court of Australia refused special leave to appeal from that decision. So this Court has assumed that such discretion existed. It has expressed the view that :

"plainly [it ought] to exist. But it is discretion to be utilised with extreme care. Although not confined to such cases, it should normally be limited to dealing with technical or incidental changes to the form or content of orders but should not be used as a substitute for an appeal. It is, for example, entirely inappropriate that the finality of a simple order such as was made in the instant case should be disturbed by such a beneficial facility."

I remain of the view which I expressed in Wentworth v Rogers [No 9] with the concurrence of Hope and Samuels JJA and without disturbance by the High Court : see also Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 26; (1993) 82 LGERA 158 at 172. Neither the inherent power of the Court nor the power conferred by parliament under s23 of the Supreme Court Act 1970 (NSW) is unlimited. Neither permits the Court to undo basic principles of jurisprudence in the name of an undefined feeling that an injustice has occurred which the Court must correct: see also University of Wollongong v Metwally (1985) 59 ALJR 481 at 482.

To the extent that the Minister asserted that the Court was bound to dismiss Mr Haig's motion to re-open the appeal for a complete absence of jurisdiction to act thus, I would not accede to his argument. But that leaves the question whether, on the merits, a sufficiently exceptional case was made out by Mr Haig to permit or require the course which he urged."

94. Priestly JA proceeded on the basis that he assumed "without expressing any opinion on the matter that there is power in the Court to permit such a re-opening". (at 159). Handley JA assumed in favour of the applicant, the power to re-open the Court's perfected orders (at 159). Like Kirby P, neither would have exercised that power in the case.

95. A willingness to assume without deciding the existence of such a power is also manifest in the unreported decisions of the Full Court of the Federal Court in Donkin v AGC (Advances) Ltd (30 August 1995 per Black CJ, Davies and Whitlam JJ) and Grace Pushpa Wati v Minister for Immigration & Multicultural Affairs (3 October 1997 per Davies, Lindgren and Lehane JJ). The following extract from Wati's case considers both cases:-

"In Donkin v AGC (Advances) Ltd (Fed Ct/FC, 30 August 1995, unreported), an application was made for leave to institute proceedings to set aside a decision of a trial Judge and the judgment of a Full Court which had dismissed an appeal from the trial Judge's decision. The application was referred by the Chief Justice to a differently constituted Full Court. Davies J referred in some detail to the authorities and said (at 9) that he was prepared to assume that the Court could

`reopen a case if there were a truly exceptional circumstance apart from fraud which required a matter to be reopened in the interests of justice.'

Black CJ was prepared to make a similar assumption (at 2). However, his Honour pointed out that any such jurisdiction had to be exercised with great caution and having regard to the observations of the High Court in Wentworth v Woollahra MC.

Should the Matter be Reopened?

We are prepared to assume, without deciding, that the Court has jurisdiction to consider whether the orders made by Davies J should be set aside, notwithstanding that those orders have already been entered. We are also prepared to assume, without deciding, that the Court, as presently constituted, can exercise that jurisdiction, and can do so without the appellant filing documentation, other than the notice of appeal. Nonetheless, in our view, this is not a case in which the Court should set aside to modify the orders made by Davies J."

96. For the sake of completeness, mention should also be made of Qantas Airways v Cameron [1996] 715 FCA 1 where Davies, Lindgren and Lehane JJ accepted the power to reopen in respect of orders that had not been perfected.

97. Of particular relevance to the present application, is that in Wati, the Court that assumed the existence of power was differently constituted to the Court that had made the order in its appellate jurisdiction. It is also relevant that the orders in question had already been entered.

CDJ v VAJ

98. For the purposes of the present application, the facts in CDJ v VAJ are not important. In essence, the High Court, in deciding an appeal from the Full Court in respect of parenting orders made under the Family Law Act, was required inter alia, to consider the exercise of discretion by the Full Court with respect to the admission of further evidence pursuant to s93A(2) of that Act. In doing so, the Justices of the High Court made important observations as to the exercise of the Full Court's jurisdiction in cases concerning children that are, in my view, apposite to the present application.

99. The majority judgment of McHugh, Gummow and Callinan JJ (at 85,446-7) emphasised the importance to the exercise of discretion of the fact that a child is the subject matter of the proceedings and that the significance of the principle of finality is relevant but qualified in such cases:-

"104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake[60], although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion." (emphasis added, footnote omitted)

100. Next in that paragraph, their Honours contrast the position at common law with respect to the admission of further evidence. However, in doing so, they also make it clear that the distinction they draw refers not only to the issue of the reception of further evidence, and that guidelines may be developed by the Full Court:-

"In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion." (emphasis added)

101. Kirby J, who dissented as to the outcome of the appeal but not for relevant purposes, had this to say about the principle of finality in proceedings concerning children and matters of public interest (at 85,465-6):-

"The law books are full of general statements about the interests of the public, and the long-term interests of litigants, in finality of judicial decision-making: interest reipublicae ut sit finis litium[144]. Such statements go back for centuries[145]. They have been repeated in recent times[146] and in the context of family law cases[147]. In a general sense, the principle has universal application. However, because of the peculiarities of family law, concerned as it often is with deeply felt human emotions from which it may be difficult or impossible for the parties to escape and from which money may not extricate them, some of the emphasis on finality needs to be qualified. Decisions affecting the welfare of children partake of the traditional parens patriae jurisdiction of the Crown's courts[148]. Necessarily, decisions on such questions have consequences for persons (namely the children) who are ordinarily not parties to the proceedings before the Court, even if today, in Australia, they are sometimes separately represented (as they were in this case). Such decisions also have consequences for the community, which has its own wider concern that the disruptive outcomes of incorrect or inappropriate decisions could have long-term consequences. Where the interests of others and of the public are affected, courts have for a long time treated the decisions which they must make in ways different from those made in ordinary civil litigation between parties of full capacity, represented and before the court[149]. This consideration (as I shall show) has sometimes affected the admission of fresh evidence in an appeal. It may distinguish such cases from the ordinary civil case.

...

"The statutory power in the case of the Family Court is similar to that afforded to the Full Court of the Federal Court of Australia[155]. The latter was a nearly contemporaneous creation of the Parliament. The Federal Court, in a series of decisions, has developed a jurisprudence (which it is inappropriate here to analyse or to question) under which it is ordinarily necessary to establish that a special case exists before further evidence will be received on an appeal[156]. However, in the Federal Court, it has been recognised that a wider approach is appropriate where the interests of persons other than the parties, or where the public interest, may be affected by the determination of the appeal in question[157]. Thus, a greater willingness to receive further evidence on appeal has been evidenced in a case involving bankruptcy affecting the interests of creditors generally[158], and another in which the status of an industrial organisation was involved[159]. Obviously, a case concerned with the status, welfare, residence and other rights of children bears close similarity to the last-mentioned cases." (emphasis added, footnotes omitted).

Conclusions as to the Jurisdiction of the Full Court of the Family Court to Reopen

102. Having regard to the above decision and to Haig's case, and other intermediate appellate authorities that I have discussed, I do not consider that Bailey's case and Gamser's case determine the issue of jurisdiction of this Court.

103. It is not, I consider, a point in favour of the Central Authority's argument on the question of power to reopen, that intermediate appellate courts have assumed or accepted but not actually exercised such power. Such approaches, in fact, refute the contention that jurisdiction is lacking for if it were otherwise, those Courts need not have contemplated the cases which raised the question. The unwillingness of those courts to reopen completed proceedings is referable to the nature of the particular cases in question. In any event, those cases did not concern children as the subject matter, a distinction of importance highlighted by the High Court in CDJ v VAJ.

104. The receptiveness of other intermediate appellate courts to the jurisdiction in issue is a matter that also relates to Dr Griffith's argument on the basis of Kirby P's judgment in Haig's case - that the systemic environment for the administration of justice has changed significantly since Bailey's case and Gamser's case.

105. In circumstances where there is no binding authority against the existence of such a power, the matter must be approached as one of principle. There is also a practical issue to consider, namely; the relatively few cases in which the High Court grants special leave to appeal and the fact that potentially meritorious arguments are precluded from being pursued by virtue of this fact.

106. Mr. Basten also submitted that the decision was one that should be made by the High Court and not this Court. A different view is that it is the responsibility of this Court to correctly characterise the state of the law and determine, until otherwise guided by the High Court, the extent of this Court's powers. I consider the latter to be the correct position.

107. This is a specialist court and very few of its decisions are in fact considered by the High Court of Australia. It would be an abrogration of responsibility for this Court to refuse to act either because the High Court has not yet given guidance, or because other intermediate appellate courts have not found it necessary to decide the issue. Indeed, the High Court has on many occasions recognised the specialist nature of the Family Court of Australia, its Full Court, and its subject matter in refusing special leave applications.

108. Dr Griffith's reliance on Kirby P's consideration of the Australia Act 1986also has relevance here on the question of assumption or conferral of jurisdiction. This development is a further reason why I consider it is unnecessary to wait for conferral and confirmation by the High Court of a jurisdiction that is rarely exercised.

109. In circumstances where I consider that this Court possesses the necessary power, and that it is appropriate that this Court determines that issue for itself, it is necessary now to identify against what criteria a particular case such as the present application should be evaluated. This necessarily involves consideration of the application of the appropriate principles to a judgment that has been perfected, as this one has. To the extent that this entails the development of what might be described as guidelines for Full Court matters of discretion such as the present application, I consider doing so to be in conformity with the anticipation of the majority in CDJ v VAJ in the passage cited at para 100 of this judgment.

The Requirements for Exercise of the Power to Reopen

110. An equivalent inherent power to reopen a decision of an intermediate appellate court would necessarily be in conformity with the principles that have been enunciated by the High Court for itself. I have already considered these principles.

111. From the authorities discussed I would apply the following principles

* That by exercising the power to re-open final orders, courts seek to recognise the following competing objectives of the law:

* the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered reliant upon their binding authority;

* a recognition that accidents and oversights can sometimes occur which, unrepaired, will occasion an injustice which may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief in the exceptional circumstances of the case.

112. Finally, I would further distil the following discretionary considerations for the exercise of power to reopen:-

* A heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required without fault on his [or her] part, ie without the attribution of neglect or default to the party seeking reopening.

* Whether oversight of the legal or factual subject matter in question occurred by accident.

* Whether the court addressed specific questions on the legal or factual subject matter to the parties.

* Whether the point raised is one of importance for the meaning and application of a federal law, potentially one of general application, and whether it is desirable that the position of the parties and of the law should be clarified.

* Whether there is utility in reopening the court's orders.

* Whether, in the particular circumstances of the case, reopening the order would safeguard against the risk of injustice that could flow from an order on its face apparently contrary to the requirements the relevant legislation.

Additional Matters Where the Order Has Been Perfected

113. In considering what has been said concerning perfected judgments, it is not apparent that any specific additional considerations arise. Naturally, the High Court majority's observations in De L that "different considerations will arise" in cases where judgments have been perfected, is intended to carry substantive meaning. However on my reading of the authorities, their Honours have identified certain circumstances where appropriate use of power has arisen, rather than establishing particular criteria for the exercise of power.

114. In my view, a particular core concern associated with perfected orders relates to "the due administration of justice" identified by Barwick CJ in Bailey's case. This factor takes on greater ramifications where judgment has been entered, not the least because it may be that a party to the proceedings or a third party has relied upon an order addressed to the world at large to his or her detriment.

115. The Full Court's decision in this case was handed down on the same day as the High Court handed down its judgment in De L. As discussed elsewhere herein, it must have been then apparent to the Central Authority, which was a party to De L, that this case had proceeded on the footing that the wrong Regulations had been applied. This would not necessarily have come to the attention of the legal advisers of the wife. I think that it was incumbent upon the Central Authority to indicate to this Court before the order was perfected, that this error had occurred. The Central Authority did not do so and I consider that it does not lie well in the mouth of the Central Authority to now seek to rely upon on the fact that the order was "perfected" as an argument against setting it aside.

116. In any event, I think that there is a certain artificiality about relying on whether an order was perfected or otherwise in a case of this sort, particularly having regard to the fact that there is a child involved as the subject matter of the litigation. I turn now to this aspect of the case and the fact that the proceedings concern an application under the Hague Convention.

a) This is a Case Concerning a Child

117. It is highly significant that the subject matter of the application in question is a child. This is a feature of the present case that distinguishes it from past cases where the issue has been considered. CDJ v VAJ makes it clear, in my view, that this distinction is a major factor.

118. The principle that the best interests of the child are paramount does not apply to applications under the Regulations. Issues of forum for decision-making about children wrongfully removed or retained from their jurisdiction of habitual residence are the subject matter. That is not, however, to say that a court should ignore a child's best interests where the core basis of the Court's jurisdiction is an application under the Convention. I do not read the extracts from CDJ v VAJ cited above to exclude such attention.

119. In these reasons I see it as highly relevant that the subject matter of the ultimate order is a child rather than the reinstatement of an appeal dismissed by self-executing order with costs for want of prosecution (Bailey's case) or the quantum of damages following an accident (Gamser's case). By taking this view, I do not depart from the long-standing recognition that applications under the Convention are determinative of the forum in which a child's interests are decided rather than determinative of where or with whom the child should live to give effect to those interests. The unavoidable fact remains, however, that a child is the direct subject of the disputed order and, in my view, this approach is in conformity with the dicta in CDJ v VAJ.

b) The Case Concerns a Hague Convention Application

120. Although the nature of the subject matter under litigation is a child, it is significant to take account of the fact that the instant proceedings concern a child who is alleged to have been wrongfully removed and that an application had been lodged in accordance with a multilateral treaty which promises rapid determination of the question of the forum in which the child's best interests are to be determined.

121. There have been significant delays in the implementation of this decision, not all of which are the fault of the mother, and the public interest in finality of orders might not be thought to be as great in a case such as this.

122. There is at least one English case where a child has refused to be returned to the country of origin despite the Court's order and the Court was required to re-think the matter: see Re HB (Abduction: Children's Objections) [1998] 1 FLR 422. Although at para 59 I did not accept that Re HB was factually applicable to the present case, it stands, in my view, as an illustration of the concern expressed by the High Court in CDJ v VAJ that family law proceedings be understood as disputes involving peculiarly vulnerable third parties.

Should the Power to Reopen be Exercised in This Case

123. I have previously set out what I consider to be the mandatory threshold pre-condition for exercising the power to reopen. I consider the mother has satisfied the requirement that the Court hold a conviction that it has proceeded on a misapprehension of the law calling for review. Moreover, as a cumulative, rather than alternative factor, the interests of justice require the matter to be reopened.

a) Misapprehension as to the law

124. The majority judgment of the High Court in De L determined that where an application had been brought prior to the repeal of the 1986 Regulations, that repeal did not affect the continuation and completion of an application made under them. Accordingly, the application ought to have been proceeded under the 1986 Regulations and not the 1995 Regulations.

125. In this case the wrong Regulations, namely the 1995 Regulations, were relied upon by the trial Judge and, in dismissing the appeal, by the Full Court. It is also clear from the reasons for judgment delivered by the Full Court that it determined the appeal in accordance with the 1995 rather than 1986 Regulations.

126. Furthermore, both the trial Judge and the Full Court purported to apply the test set in Gsponer and Murray which treats return of the child to the "applicant" as return of the child to the Central Authority of the jurisdiction which transmits the application.

127. In my view, to decide a matter applying the wrong legislation and based upon incorrect principles derived from wrongly decided cases clearly establishes a "conviction" that the Court has proceeded under a misapprehension as to the law. In this regard, it is pertinent to note that Kirby J in CDJ v VAJ said (at 85,465):-

"..so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle or by giving weight to irrelevant considerations." (emphasis added)

128. His Honour was speaking in that case of parenting orders under the Family Law Act, not applications under the Regulations made pursuant to the Hague Convention. However, in my view, notwithstanding the different nature of applications pursuant to the Hague Convention, that difference is of no moment because a child's right to have matters concerning him or her determined without error of law or principle lies at the heart of the issue and extends to questions of the jurisdiction which will be seized of substantive questions in the dispute over the child.

129. The next question that has to be asked is whether misapprehension as to law made any difference. Mr. Basten argued that it did not and that the Court would have come to the same conclusion whichever regulations it relied upon.

130. For reasons that I set out earlier I do not accept the same result would have necessarily been reached.

b) The Relevance of the High Court's Refusal of Special Leave

131. Much was made at the hearing before us of the mother absconding with the child following the Full Court's delivery of judgment. It is a significant factor but is relevant only to the exercise of discretion. It was a determinative factor in the High Court's refusal to extend the mother's time in which to apply for special leave to appeal.

132. Had the High Court, when hearing the special leave application on 7 August 1998, held the mother's arguments concerning the regulations and the Gsponer / Murray test to be without substance, then that would have been an end of the matter. As I see it, however, their Honours determined the threshold question that the mother's arguments as to the decisions below should not be permitted to be heard out of time. Their Honours did not extend an indulgence to the mother in view of her actions. They did not expressly refute the potential validity of her arguments. They elected, for perfectly understandable reasons, not to grant the indulgence sought by the mother.

133. The proceedings before this Court are quite different. What is being put is that a decision made by it proceeded upon a misapprehension of the relevant law. While the factors that affected the High Court are also relevant to issue of the exercise of discretion, I do not believe that they operate to preclude this Court from considering this matter.

The Guiding Principles

134. The certainty of a final order in this case based on the application of what has been found by the High Court in De L to be the wrong law, would seem a pyrrhic outcome in a sensitive matter concerning a child. Seen in terms of the principles to be balanced, such an outcome serves neither the interests of justice for the persons affected nor the reputation of the justice system.

135. Further, the consequences of reopening an order in respect of a child do not involve the same considerations which are obviously of significance in financial matters, particularly where, as in this case, the order, although perfected, has not been carried out. Again, I refer to CDJ v VAJ as authority for the validity of distinguishing matters concerning a child.

Discretionary Considerations for the Exercise of Power to Reopen

136. It is convenient to consider these matters seriatum.

137.

* A heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required without fault on his [or her] part, ie without the attribution of neglect or default to the party seeking reopening.

138. It is undoubtedly true that the applicant was seriously in default in relation to this matter. In normal circumstances that would be the end of the matter. Tempering factors are the fact of default on the part of the Central Authority, to which I have previously referred.

139. More important, is the fact that the subject matter of the application is a child who has spent the greater part of her life in this country with her mother and who will, if the order is put into effect, be effectively split from her younger sibling. I think that CDJ v VAJ reinforces my view that she must also be considered in this case despite the default of her mother.

140. It is true that the mother's actions have effectively separated the child from her father and this may have been to her detriment, but there can be no doubt that the carrying out of this order will have a serious effect upon her. If it was made as a result of misapplication of the law then I consider that her interest outweighs any default on the part of the mother.

141. In argument before us, Dr. Griffith highlighted certain aspects of the chain of events in the case in order to put into a broader context of delays, the effect of the mother's absconding on the delay in determining the application. His argument also addressed the significance of the mother giving birth to a second child of the marriage while in Australia. I turn to these matters now.

Delay

142. It was Dr Griffith's contention that of the 45 months the child has been in Australia, only fourteen months are due to the mother going into hiding. As I understand his argument, this perspective to the case bears upon our discretion, if we find a power exists, to reopen the appeal. If that point is reached, Dr Griffith urged us to question whether we should find that the orders of O'Ryan J have been spent or require revisiting in light of how circumstances have changed due to the birth of a sibling and the time J has spent in Australia.

143. Dr Griffith first placed emphasis on the fact that upon discovering J had been taken to Australia, the father commenced proceedings in the Superior Court of Gwinnett County in Georgia for custody of the child rather than proceedings under the Convention. The matter came on for hearing before Judge Bishop with orders then made on an undefended basis on 9 May 1995 with the effect that the father has an order for sole custody of the child with no contact to the mother and all property settled in his favour (see Application of the Central Authority filed 28 June 1995).

144. Dr Griffith next stressed the fact that the father's application under the Convention was made on 5 June 1995, some six weeks after the local orders had been obtained. While this is still within the twelve month period envisaged by the Convention and the Regulations, this fact was said to have contributed to the delay in determining whether the child should be returned.

145. Dr Griffith then pointed to the fact that the substantive hearing of the application did not take place until 2 and 5 February 1996, a little over twelve months after J left Georgia. He took us to the chronology filed on behalf of the Central Authority. At page 2, it shows the following matters:-

"5 June 1995 Application by father to Central Authority under Hague Convention.

28 June 1995 Application filed by Australian Central Authority in Family Court of Australia at Sydney.

5 July 1995 Directions made for hearing by Johnston JR.

5 September 1995 Matter listed for hearing before Cohen J, adjourned due to imminent confinement of the mother.

22 September 1995 Child of the mother and father born in Sydney and named "S" by the mother.

24 January 1996 Order 30A Report prepared by Professor (as he then was) Brent Waters for the rescheduled hearing.

2 February 1996 Matter heard before Justice O'Ryan.

and

5 February 1996"

146. Dr Griffith underlined the requirement in reg 19 of the 1986 Regulations which was in the following terms:-

"Where an application is made under regulation 15, the day fixed by a court for the hearing of the application shall be a day not later than 7 days after the date of the filing of the application."

147. It was therefore Dr Griffith's argument that the circumstances of the mother and child by the time O'Ryan J made his orders were also attributable to the father and systemic delays. While Dr Griffith conceded that the mother's absconding had compounded the matter, he said her actions were not the main cause of the situation which now presents.

148. I think that there is some substance to these arguments, albeit that they do not excuse the mother's own default following the Full Court order.

The Birth of a Sibling

149. The argument concerning delay was also important to a particular feature of the case, namely that the mother was pregnant at the time she left Georgia although apparently not aware of the pregnancy. It was said that if the matter had been proceeded more rapidly, and it had not due to the father and the system, the second child S would not have been born in Australia prior to the determination of the application.

150. The relevance of these matters lies in what Dr Griffith argued to be an impossible position for the mother; given the existing Superior Court of Gwinnett County order, she would risk her rights with respect to the second child if she returned with him to contest the order concerning J. He also highlighted the fact that the mother has no right to return to live and work in the United States of America and that the second child is beyond the reach of the Convention to argue the practical likelihood that the siblings would be split by the second child and the mother remaining in Australia and that these matters should affect the exercise of this Court's discretion.

151. I consider these matters are of substance in favour of the exercise of the discretion.

152.

* Perfection of the order.

153. I have already commented upon the artificiality of this test, particularly in proceedings involving a child. In circumstances where the order has not been carried out, for whatever reason, I do not think that this factor should weigh heavily in this case.

154.

* Whether oversight of the legal or factual subject matter in question occurred by accident

155. It is clear that the application of the wrong regulations occurred by accident and that both parties, and the trial Judge and the Full Court failed to detect the error. It is of interest to note that a differently constituted Full Court and another trial Judge made the same error in De L. It is difficult therefore to be critical of anyone. However if any criticism does lie, it lies more heavily with the Central Authority for the State of New South Wales which has the responsibility for bringing proceedings such as these, and was in fact a common party in both De L and the present case. However its real default, as I have said, was its failure to notify the Court of the error once the decision in De L was given by the High Court.

156.

* Whether the court addressed specific questions on the legal or factual subject matter to the parties.

157. I do no think that this factor is relevant to this case for the reasons just stated.

158.

* Whether the point raised is one of importance for the meaning and application of a federal law, potentially one of general application, and whether it is desirable that the position of the parties and of the law should be clarified.

159. The question of whether the Full Court of the Family Court of Australia can reopen its decisions is obviously one of considerable importance. That issue is not, however the "point" to which this consideration is addressed. It is addressed to the substantive arguments to be decided if the power to reopen is exercised.

160. As a result of the change effected by the 1995 Regulations, the question of whether Gsponer and Murray were correctly decided is now of no great importance other than to the parties in this case. Similarly the interpretation of and validity of the 1986 Regulations is only significant for the parties. In a sense, this is an argument in favour of the applicant, since it is unlikely that the High Court would regard these issues as substantial enough to grant leave to appeal from this decision, which means that this Court stands much more in the position of a final court of appeal.

161.

* Whether there is utility in reopening the court's orders.

162. If the wrong law was applied, as I have found it was, then in circumstances where the order has not been executed or carried out, there is obvious utility in reopening the matter in order to avoid a possible injustice.

163.

* Whether, in the particular circumstances of the case, reopening the order would safeguard against the risk of injustice that could flow from an order on its face apparently contrary to the requirements the relevant legislation.

164. I have endeavoured to look at this matter from the perspective of an ordinary member of the public who is fully informed as to what has occurred. I should have thought that such a person would find it an astounding proposition that the public interest in preserving the finality of the orders of the Court would operate to preserve an order made upon the basis of the wrong piece of legislation, and relying on cases that are now found to have been wrongly decided, particularly if the correct application of the correct piece of legislation might have made a difference to the result.

165. I can think of nothing more calculated to bring the law into disrepute than such an outcome and I do not believe that it is one that this Court should countenance, particularly in proceedings related to a child. In this regard I refer again to the remarks of Kirby J in CDJ v VAJ cited previously concerning "wider concern that the disruptive outcomes of incorrect or inappropriate decisions could have long-term consequences." (at 85,466)

Conclusion as to reopening the present proceedings

166. For the above reasons, the proceedings should be reopened.

167. I have had regard to the dicta of the High Court in CDJ v VAJ concerning the avoidance of new hearings of matters concerning children. If this court were to order that the proceedings be reopened, regrettably, in my view, such a course could not be avoided. Furthermore, in the peculiar circumstances of the case, particularly the amount of time which J has lived in Australia, I would order the appointment of a Child Representative.

Proposed Orders

168. The orders that I would make are as follows: -

1. That the orders of the Full Court made on 8 October 1996 be set aside.

2. That the mother's appeal against the decision of O'Ryan J be allowed and the orders made by his Honour on 20 February 1996 be set aside.

3. That the matter be set down for retrial before a single Judge of this Court.

4. That a Child Representative be appointed.

IN THE FULL COURT

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

AT MELBOURNE File No. SY 3981 of 1995

BETWEEN:

CORAM: NICHOLSON CJ, FINN, KAY, MOORE,

and MAY JJ

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

DATE OF JUDGMENT: 9 February 1999

APPEARANCES:

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

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

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

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

Associate:

IN THE FULL COURT

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

AT MELBOURNE File No SY3981 OF 1995

BETWEEN: