AMS v AIF

HIGH COURT OF AUSTRALIA

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

Matter No P29/1998

AMS  APPELLANT

AND

AIF  RESPONDENT

Matter No P31/1998

AIF  APPELLANT

AND

AMS  RESPONDENT

AMS v AIF and AIF v AMS [1999] HCA 26
17 June 1999
P29/1998 and P31/1998

ORDER

In both matters:

1. Appeal allowed.

2. Set aside the orders of the Full Court of the Supreme Court of Western Australia made on 19 June 1997 and in lieu order:

(a)   Appeal allowed.

(b)Set aside the orders of the Family Court of Western Australia made on 24 April 1996 and remit the matter to that Court for rehearing.

(c)Each party pay his or her own costs in the Family Court of Western Australia and in the Full Court of the Supreme Court of Western Australia.

3. Each party pay his or her own costs of the proceedings in this Court.

2.

On appeal from the Supreme Court of Western Australia

Representation:

Matter No P29/1998

D F Jackson QC with R S Hooper for the appellant (instructed by Lewis, Blyth & Hooper)

D Bryant QC with M M Lodge for the respondent (instructed by Ilbery Barblett)

Matter No P31/1998

D Bryant QC with M M Lodge for the appellant (instructed by Ilbery Barblett)

D F Jackson QC with R S Hooper for the respondent (instructed by Lewis, Blyth & Hooper)

Interveners in both matters:

H C Burmester QC, Acting Solicitor-General for the Commonwealth with D A Mullins SC intervening on behalf of the Attorney-General for the Commonwealth (instructed by Australian Government Solicitor)

D Graham QC, Solicitor-General for the State of Victoria with C M Caleo intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with J H Smith intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

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

CATCHWORDS

AMS v AIF
AIF v AMS

Constitutional law – Inconsistency between Commonwealth and State laws – Family law – Guardianship and custody of child – Whether Family Law Act 1975 (Cth), s 63F(1) inconsistent with Family Court Act 1975 (WA), s 35.

Constitutional law – Powers of the Commonwealth Parliament – Territories – Whether sufficient nexus with Commonwealth law concerning guardianship and custody of children born in Territory to parents then residing there.

Constitutional law – Interpretation – Whether implications arise from international law.

Constitutional law – Freedom of interstate intercourse – Movement of persons – Whether Northern Territory (Self-Government) Act 1978 (Cth), s 49 inconsistent with exercise of judicial discretion under Family Court Act 1975 (WA), s 36A – Guardianship and custody orders – Whether necessary to determine whether requirement of orders that parent not change child's principal place of residence greater than reasonably required to achieve legislative object.

Federal jurisdiction – Family law – Guardianship and custody application – Parents resident in the Northern Territory at birth of ex‑nuptial child – Whether Family Court of Western Australia exercising federal jurisdiction under Family Law Act 1975 (Cth), s 63F(1).

Federal jurisdiction – Inconsistency between Commonwealth and State laws – Matter arising under s 76(i) of the Constitution – Whether jurisdiction invested by Judiciary Act 1903 (Cth), s 39(2).

Federal jurisdiction – Appeals – Family law – Whether appeal to Supreme Court of Western Australia an exercise of federal jurisdiction.

Family law – Guardianship and custody orders – Variation – Exercise of discretion by trial judge – Best interests of child – Whether requirement that custodial parent provide "compelling reasons" to justify relocation within Australia an error of law – Whether order that custodial parent may relocate is an order "with respect to" welfare or custody.

Words and phrases – "compelling reasons".

The Constitution, ss 76(i), 76(ii), 77(iii), 109, 122.
Family Court Act 1975 (WA), ss 27(5), 28, 28A, 34, 35, 36, 36A.
Family Court Act 1997 (WA), ss 68, 69, 246.
Family Law Act 1975 (Cth), ss 60E(3), 61C, 63F(1), Pt VII, 94, 94AA.

2.

Judiciary Act 1903 (Cth), s 39(2).

Northern Territory (Self-Government) Act 1978 (Cth), s 49.

1. GLEESON CJ, McHUGH AND GUMMOW JJ.   These two appeals, one brought by the mother ("AIF") of a child and the other by the father ("AMS"), arise out of orders made by the Full Court of the Supreme Court of Western Australia in allowing the mother's appeal in part, and dismissing the father's cross‑appeal, against orders made in a custody and guardianship dispute in the Family Court of Western Australia ("the State Family Court").

2. On 24 April 1996, the State Family Court ordered that the parents have joint guardianship of the child and that the mother have sole custody with "liberal access" by the father.  On 19 June 1997, the Full Court of the Supreme Court dismissed the father's cross‑appeal seeking joint custody and allowed the mother's appeal against the order for joint guardianship.  The mother was to be sole guardian and to retain sole custody.  However, she was restrained from changing the child's principal place of residence.

3. We would reject the application to revoke the grant of special leave in the father's appeal and allow each appeal.  We would order that the appeals from the State Family Court to the Full Court of the Supreme Court be allowed, that the orders of the State Family Court be set aside and that the matter be remitted to that Court for re‑hearing.  We turn to give our reasons for so concluding, beginning with the appeal by the father against the decision of the Full Court.

   The appeal by the father

4. The parents of the child have never married.  They met in Perth while they were university students.  However, they were living in the Northern Territory when the child was born on 2 March 1990.  In February 1994, they separated.  After a brief visit to Perth, they returned to the Northern Territory.  The mother and the child lived in Darwin while the father lived at a mining site about 160 kilometres away.  In April 1994, the parents agreed to return to Perth at the end of the year.  Until the father returned to Perth in October 1994, he continued to see the child, making the 320 kilometre round trip on most weekends to do so.  Regular contact between the father and the child resumed after the mother returned to Perth in December of that year.

5. Towards the end of 1995, the mother told the father that she wished to return to Darwin to study at the Northern Territory University if she did not obtain a place at Murdoch University in Perth.  On 21 December 1995, she was informed that she had obtained a place at that University.  However, on the same day, she told the father that she had decided to return to Darwin during the following January.  In evidence, the mother said that she had made up her mind to return to Darwin "independent of my acceptance into Murdoch because I sincerely wanted to return to Darwin".

6. On 11 January 1996, the father filed an application to restrain the mother from removing the child from Western Australia.  He also applied for orders for joint guardianship and sole custody of the child and for reasonable access to the child for the mother.  On 16 January 1996, the mother gave an undertaking not to remove the child from the State.  Subsequently, she filed a response seeking orders for the sole guardianship and custody of the child, for reasonable access for the father and for her to "be free to leave the Perth Metropolitan area and the State of Western Australia".

7. Later, the father amended his application to seek orders for the joint guardianship and joint custody of the child, for the child to reside with the father, for "liberal access" for the mother and for both parents to be prevented from removing the child "without the prior written consent of both parties".  The mother also amended her response, the principal amendments being that she be released from her undertaking given on 16 January 1996 and that the father "pay 75% of the child's airfares for access".

8. The State Family Court made the following orders:

   "IT IS ORDERED THAT:-

   1.  The [father] and the [mother] have the joint guardianship of the child … born on the 2nd day of March 1990 with sole custody of the said child to the [mother] and liberal access to the [father] defined to include:-

   (a)during the school term, for two out of every three weekends commencing from Friday after school until Sunday evening;

   (b)    for one half of all school holiday periods;

   (c)further access on important days including Christmas Day, the child's birthday, the father's birthday and Father's Day;

   (d)    such further or other access as may be agreed between the parties.

   2. The [mother] be restrained and an injunction is hereby granted restraining her from changing the child's principal place of residence from the Perth metropolitan area as defined in the Town Planning and Development Act 1928.

   3.  By consent, the parties attend post trial counselling on a date and time to be fixed by the Director of Court Counselling."

9. On appeal, the Full Court varied these orders in the following manner:

   "THE COURT ORDERS THAT:

   1.  The Appeal be allowed in part by varying the order of the Chief Judge of the Family Court made 24 April 1996, so that the application by the [father] for an order that the parties have joint guardianship of the Child, … born 2 March 1990, be dismissed and that the [mother] remain the sole guardian of and have sole custody of the said child with liberal access to the [father] defined to include;

   a)during the school term for two out of every three weekends commencing from Friday after school until Sunday evening;

   b)     for one half of all school holiday periods;

   c)further access on important days including Christmas Day, the child's birthday, the father's birthday and Father's Day; and

   d)     such further or other access as may be agreed between the parties.

   2. The [mother] be restrained from changing the Child's [principal] place of residence from the Perth metropolitan area as defined in the Town Planning and Development Act 1928.

   3.  The Cross Appeal be and is hereby dismissed.

   4.  There be no order as to costs."

   The custody of ex‑nuptial children

10. Under the general law in England (which represented an uneasy accommodation at various times between the ecclesiastical courts, the common law courts and the Court of Chancery), there eventually prevailed the Chancery doctrine that the desire of the mother of an illegitimate infant as to its custody was primarily to be considered, if to do so would not be detrimental to the interest of the child[1].

    [1]Barnardo v McHugh [1891] AC 388 at 398‑399. See also Attorney‑General (Vict) v The Commonwealth (1962) 107 CLR 529 at 585.

11. Chancery asserted its authority with respect to infants upon various grounds.  These included (a) the ordinary residence of the child within the territorial jurisdiction; (b) allegiance to the Crown and (c) physical presence, even falling short of residence, if protection of the Court were needed[2].  Further, as Mason J put it in Carseldine v Director of Department of Children's Services[3]:

    "The courts have always been prepared, when the welfare of the child requires it, to divorce custody from guardianship; the existence of guardianship in one person is not a bar to the making of an order for custody in favour of another."

    [2]Holden v Holden [1968] VR 334; McM v C(No 2) [1980] 1 NSWLR 27; In re D (an Infant) [1943] Ch 305.

    [3](1974) 133 CLR 345 at 366.

12. In Australia, statute intervenes at federal and State level and, at the time of the litigation in the State Family Court, did so in different terms.  The meaning of the terms "guardianship" and "custody" in the Family Court Act 1975 (WA) ("the 1975 WA Act") were dealt with in s 34. Section 34(2) provided as follows with respect to custody:

    "A person who has or is granted custody of a child under this Act has–

    (a)    the right to have the daily care and control of the child; and

    (b)the right and responsibility to make decisions concerning the daily care and control of the child."

    Section 34(1) imposed upon a guardian responsibility for the long‑term welfare of the child and conferred in relation to the child all the powers, rights and duties that are, apart from the 1975 WA Act, vested by law or custom in the guardian of a child, other than those matters dealt with in pars (a) and (b) of s 34(2) as incidents of a grant of custody. Section 34 appeared in Div 3 (ss 34‑53) of Pt III of the 1975 WA Act. Division 3 was headed "Custody, Guardianship, Access and Welfare". The 1975 WA Act has now been repealed by s 246 of the Family Court Act 1997 (WA) ("the 1997 WA Act").

13. The starting point in the reasoning of the Full Court was that the mother of the child had both custody and guardianship by virtue of s 35 of the 1975 WA Act.  Section 35 stated:

    "Subject to the Adoption of Children Act 1896 and any order made pursuant to this Division, where the parents of a child who has not attained the age of 18 years were not married at the time of the birth of the child or subsequently, the mother of the child has the custody and guardianship of the child."

    Malcolm CJ, who gave the judgment of the Full Court, stated[4]:

    "Where the parents of a child were not married at the time of the birth of the child or subsequently, the mother of the child has both custody and guardianship of the child by virtue of s 35 of the [1975 WA Act]."

    The Chief Justice concluded that[5]:

    "no valid reason had been put before the learned Chief Judge [of the State Family Court] to disturb the status quo so far as guardianship was concerned."

    However, the status quo was supplied not by s 35 of the 1975 WA Act but by the Family Law Act 1975 (Cth) ("the Family Law Act").

    [4](1997) 139 FLR 216 at 222.

    [5](1997) 139 FLR 216 at 235.

14. In 1990, at the time of the birth of the child in Darwin, both parents were resident in the Northern Territory. Section 63F(1) of the Family Law Act appeared in Pt VII and then stated[6]:

    "Subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section), each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child."

    [6]Part VII was repealed with effect from 11 June 1996 by s 31 of the Family Law Reform Act 1995 (Cth) ("the 1995 Act"). Section 31 thereof substituted a new Pt VII (ss 60A‑70Q). Section 61C states:

    "(1)Each of the parents of a child who is not 18 has parental responsibility for the child.

    (2)     Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents.  It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.

    (3)     Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section)."

    Section 61B defines the term "parental responsibility" as meaning, in relation to a child, "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". Section 69ZG provides that Pt VII "applies in and in relation to the Territories". That expression identifies the Territories referred to in s 122 of the Constitution (Acts Interpretation Act 1901 (Cth), s 17(p)) but, by reason of the definition of "Territory" in s 4(1) of the Family Law Act, does not include all external territories.

15. Several questions of construction are presented by the general terms of s 63F(1), not all of which are readily answered by reference to the statutory context. Section 63B applies only to proceedings in relation to a child which are instituted under the Family Law Act. It requires that, on the day the application is filed or otherwise instituted, the child or a parent or a party to the proceedings be present or ordinarily resident in or a citizen of Australia, or the exercise of jurisdiction would be in accordance with the common law rules of private international law or with a treaty or other international arrangement.

16. The term "child" includes an adopted child and a stillborn child (s 60) but is not otherwise defined for the purposes of Pt VII. Division 5 thereof (ss 63E‑66) is headed "Custody and guardianship of children" and has effect as if, by express provision, each reference to a child were confined to a child of a marriage and each reference to the parents of a child were confined to the parties to the marriage (s 60F(2)). That would not apply s 63F(1) to the present case. Part VII also "extends" the language of the reference of power provision in s 51(xxxvii) of the Constitution, to certain States (s 60E) but these do not include Western Australia.

17. In none of these operations of Pt VII would s 63F(1) apply to the child of the appellant and the respondent. However, s 60E(3) provided that Pt VII "applies in and in relation to the Territories". The power of the Parliament to make laws with respect to the government of the Northern Territory supported a law replacing or altering the common law with respect to the guardianship and custody of children born in that Territory to parents then residing there. These circumstances supplied "a sufficient nexus or connection" between the Northern Territory and s 63F(1) of the Family Law Act[7]. It is unnecessary to determine whether some lesser connection would support the validity of s 63F under s 122 of the Constitution.

    [7]See Berwick Ltd v Gray (1976) 133 CLR 603 at 607; Davis v The Commonwealth (1988) 166 CLR 79 at 97.

18. The regime established by s 63F(1) was subject to displacement or variation by "any order of a court for the time being in force … whether or not made under [the Family Law] Act". The term "court" is defined in s 4(1) as meaning, subject to any contrary intention and "in relation to any proceedings", the court which is exercising jurisdiction therein "by virtue of this Act". However, the reference in s 63F(1) itself to orders made other than under the Family Law Act indicates that the term "court" in s 63F(1) is not limited in its application to those courts in respect of which jurisdiction is conferred or invested under that statute[8].  Those courts were specified in s 63 and included the Family Court of Australia (which may sit at any place in Australia[9]), each State Family Court and the Supreme Court of the Northern Territory but, in the last case, subject to at least one of the parties satisfying a residence requirement (s 63(7)). Upon these courts s 63(1) conferred and invested "federal jurisdiction in relation to matters arising under [Pt VII]".

    [8]cf Vitzdamm‑Jones v Vitzdamm‑Jones (1981) 148 CLR 383 at 397.

    [9]Family Law Act, s 27(1).

19. The operation of the regime established by s 63F(1) with respect to the parties to the present litigation was not confined to the geographical area of the Northern Territory. It operated as a binding law of the Commonwealth wherever territorially the power of the Commonwealth ran, and by virtue of s 109 of the Constitution it prevailed over any inconsistent State law. These propositions follow from Lamshed v Lake[10].

    [10](1958) 99 CLR 132 at 141.

20. The result was that the question in the State Family Court turned upon the operation of s 109. In so far as s 35 of the 1975 WA Act applied to the child and his parents, whether by reference to their presence or residence in the State or the commencement of proceedings in a court of the State or by reason of some other sufficient connection, the State law and the law of the Commonwealth made contradictory provision as to the custody and guardianship of the child. To the extent of that inconsistency s 35 was rendered invalid by s 109 of the Constitution[11] and did not supply a proper starting point for the reasoning in the Full Court.

    [11]Fountain v Alexander (1982) 150 CLR 615 at 643‑644.

21. A further result was that the proceeding in the State Family Court (and the appeal to the Full Court) was a matter arising under the Constitution, or involving its interpretation, within the meaning of s 76(i) of the Constitution[12]. Jurisdiction in respect of that matter was invested in the State courts by s 39(2) of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

    [12]Ex parte McLean (1930) 43 CLR 472 at 482.

22. This makes it unnecessary to determine whether the proceeding also had the character of a matter arising under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution. The issue would be whether to seek to displace or vary the regime established by s 63F(1), by a court order founded in State law and establishing other rights and duties, would be to call in question the anterior right or duty which owed its existence to federal law, namely s 63F(1). The federal right or duty would be called into question for the purpose of compromising its further subsistence. If so, federal jurisdiction would be attracted[13], and the character of s 63F(1) as a law made by the Parliament in exercise of its power under s 122 would not deny the operation of ss 76(ii) and 77 of the Constitution and the existence of federal jurisdiction[14]. Federal jurisdiction, upon this hypothesis, would have been invested in the State Family Court by s 63(1) of the Family Law Act.

    [13]LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581.

    [14]Northern Territory v GPAO (1999) 73 ALJR 470; 161 ALR 318.

23. The father submits that s 109 was engaged in this case also by s 49 of the Northern Territory (Self‑Government) Act 1978 (Cth) ("the Self‑Government Act"). In her appeal, the mother also relies upon s 49. The father's appeal will be determined on the ground already indicated and his reliance upon s 49 then does not fall for determination. It will be necessary to consider further the operation of s 49 when dealing with the appeal by the mother. It is sufficient at this stage to indicate that reliance upon s 49 supplies a further basis for the attraction of federal jurisdiction, invested in the State courts by s 39(2) of the Judiciary Act.

24. The Full Court approached the appeal on the footing that the State Family Court had been exercising "non‑federal jurisdiction" within the meaning of s 27 of the 1975 WA Act. Section 27(1) stated that the State Family Court had "throughout the State" the federal jurisdiction with which it was invested by the Family Law Act and any other law of the Commonwealth and any regulations and proclamations in force thereunder. This provision, given the operation of s 77(iii) of the Constitution and the laws made by the Parliament thereunder, including s 39(2) of the Judiciary Act and s 63(1) of the Family Law Act, was only declaratory of what already was the situation established by force of federal law.

25. In respect of the exercise of non‑federal jurisdiction by the State Family Court, an appeal lay to the Full Court. Section 81(2)(a) of the 1975 WA Act so provided and upon this the Full Court relied. With respect to the exercise of federal jurisdiction by the State Family Court, s 80 of the 1975 WA Act provided that the appeal provisions of the Family Law Act applied. This State legislation also could be no more than declaratory of what already was the operation of federal law. The effect of s 94 and s 94AA of the Family Law Act is to direct to the Full Court of the Family Court an appeal from decrees (which include judgments and orders[15]) of the State Family Court exercising jurisdiction under the Family Court Act.

    [15]This follows from the definition of "decree" in s 4(1) of the Family Law Act.

26. However, s 63(9) of the Family Law Act provided:

    "The jurisdiction conferred on or invested in a court by this section is in addition to any jurisdiction conferred on or invested in the court apart from this section."

    In R v Ward, this Court held that the grant of jurisdiction to State courts by the generally expressed and ambulatory terms of s 39(2) of the Judiciary Act, "will only be displaced in whole or in part by another statute when that statute evinces an intention to exclude or otherwise limit the jurisdiction conferred by s 39"[16].

    [16](1978) 140 CLR 584 at 589.

27. This appeal should be disposed of on the basis that s 39(2) invested the State Family Court with federal jurisdiction and invested the Full Court of the Supreme Court with appellate federal jurisdiction so as to render competent the appeal to the Full Court. No contrary submission was made. Nor was it contended that the appeal to the Full Court had been incompetent.

28. It is unnecessary to consider what, if any, significance is to be attached in a consideration of the above matters to the circumstance that the mother's appeal to the Full Court was instituted on 11 June 1996, that by the father on 19 June 1996, while the new Pt VII of the Family Law Act commenced on 11 June 1996.

29. It is sufficient to determine the father's appeal on the footing that the Full Court, in varying the order made by the State Family Court so that the mother be both sole guardian and have sole custody of the child, proceeded upon an error of law.  This was that the "status quo", which the Full Court decided had been wrongly disturbed by the State Family Court, was that established by s 35 of the 1975 WA Act.

30. However, given the intervening repeal of the 1975 WA Act and the commencement of new State legislation, the 1997 WA Act, it is inappropriate simply to restore Order 1 of the orders of the State Family Court that the parents have joint guardianship and the mother sole custody with liberal access to the father. Further, the status quo which provides the starting point is now s 61C of the substituted Pt VII of the Family Law Act. This means that, as before, the State Family Court will be exercising federal jurisdiction but by reference to a changed Family Law Act. As it happens, s 61C (and the definition of "parental responsibility" in s 61B) are mirrored, in all relevant aspects, by the terms of ss 69 and 68 respectively of the 1997 WA Act.

    The appeal by the mother

31. It was said in the judgment of Holden J in the State Family Court:

    "For all of the child's life he has had the benefit of considerable contact with each of his parents.  Each of them has had considerable input into the child's upbringing.  Although the child has always enjoyed a relationship with members of the extended families, since the mother has moved to Perth he has been brought up in an environment of close interaction with members of both extended families.  From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together.  It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary.  Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area." (emphasis added)

32. As we have pointed out, Order 2 of the orders made by that Court was in the following terms:

    "The [mother] be restrained and an injunction is hereby granted restraining her from changing the child's principal place of residence from the Perth metropolitan area as defined in the Town Planning and Development Act 1928."

    Order 2 of the orders of the Full Court was to the same effect and in this Court the mother contends that the Full Court erred in refusing to set aside the restraint upon her changing the principal place of residence of the child.

33. By the time the proceedings reached trial, the father was still seeking an injunction in the terms originally sought whilst the mother was seeking release from her undertaking and an order "that she be free to reside in Darwin".  The judgment of the State Family Court gave detailed consideration to the question whether the mother "ought to be permitted to relocate to Darwin as is her wish".  The primary judge decided to grant the injunction in the terms reflected in the final order after giving detailed consideration to the mother's reasons for wishing to move to Darwin.  His Honour's reasons indicate that he approached the case by treating as a central issue whether the mother should be "permitted to move to the Territory".

34. The injunction is to be read with the reasons for judgment it was designed to implement. It is true that, in terms, the order does not restrain any freedom of movement of the mother. She is free to move as she wishes subject to the restraint upon her so doing in a fashion which results in a change to the principal place of residence of the child from the Perth metropolitan area. However, the orders both of the State Family Court and of the Full Court entrusted the mother with sole custody of the child, as understood in s 34(2) of the 1975 WA Act, to which reference has been made earlier in these reasons and it is implicit in the structure of the orders that the child is to reside with the mother. The mother is not enjoined from departing from the Perth metropolitan area and, in particular, from establishing residence in Darwin. However, she is not at liberty to do so accompanied by the child who, at the date of the orders, was six years of age. Since North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW[17], it has been settled doctrine that, where a claim is made that a law interferes with the freedom guaranteed by s 92 of the Constitution, "[t]he Court looks to the practical operation of the law in order to determine its validity"[18].  In those circumstances, to invite the Court to determine this appeal on the footing that, in substance, if not necessarily in legal form, the orders do not place a significant restraint upon the freedom of movement of the mother is to seek a contemporary judgment of Solomon.

    [17](1975) 134 CLR 559.

    [18]Cole v Whitfield (1988) 165 CLR 360 at 399‑400.

35. It is in this setting that there arises the constitutional issue put forward by the mother. Section 49 of the Self‑Government Act states:

    "Trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."

    This reproduces, but with reference to the Territory, the terms of s 92 of the Constitution. It replaces what was s 10 of the Northern Territory (Administration) Act 1910 (Cth), inserted by s 6 of the Northern Territory (Administration) Act 1931 (Cth).

36. It was submitted that s 49 was to be interpreted in accordance with the body of doctrine construing s 92 as it had developed at the time of the commencement of the Self‑Government Act on 1 July 1978[19]. The contrary submission, that the section is to be given an ambulatory interpretation to follow the course of decisions construing s 92, should be preferred. That is what was done in Lamshed v Lake[20]. Dixon CJ there construed the predecessor of s 49 not in accordance with the state of authority as it stood in 1931 but in accordance with the judicial decisions which, as it then seemed, had given some settled definition to the meaning and effect of s 92.

    [19]s 2(2).

    [20](1958) 99 CLR 132 at 147.

37. Lamshed v Lake also establishes that provisions such as s 49 of the Self‑Government Act are laws of the Commonwealth which attract the operation of s 109 of the Constitution[21].  As a species of what is often identified as "operational inconsistency"[22], this supremacy of Commonwealth law operates to exclude, in relation to the matters to which it applies, the operation of the laws of a State, such as the 1975 WA Act, under which the jurisdiction of a court of that State may otherwise be exercised and orders made[23]. Where the law in question confers jurisdiction entailing the exercise of judicial discretion, that discretion will effectively be confined so that an attempt to exercise it inconsistently with s 49 of the Self‑Government Act involves, at least, an error of law which is liable to appellate correction. On that footing, the State law itself retains its validity. These conclusions follow by parity of reasoning with that of Brennan J, concerning the operation of s 92 itself upon discretionary licensing schemes, in Miller v TCN Channel Nine Pty Ltd[24].

    [21](1958) 99 CLR 132 at 148.

    [22]The Commonwealth v Western Australia (1999) 73 ALJR 345 at 356‑357, 369‑371, 394; 160 ALR 638 at 653‑654, 671‑672, 705.

    [23]See Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 472, 479; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 284‑285; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 463.

    [24](1986) 161 CLR 556 at 596‑597, 614‑615.

38. It was in this way that the effect of s 109 of the Constitution was to render invalid the provisions of the 1975 WA Act to the extent to which they otherwise would have empowered the State Family Court to make, in the exercise of a discretion conferred by the 1975 WA Act, orders which impermissibly burdened or prohibited the absolute freedom of intercourse between the Northern Territory and the State of Western Australia, for which provision was made by s 49 of the Self‑Government Act.

39. Section 36 of the 1975 WA Act authorised either parent to apply to the State Family Court for an order with respect to the custody or guardianship of, access to, or welfare of the child. In making an order upon such an application, s 36A empowered that Court to make orders of various descriptions and directed the Court to make the order that, in its opinion, would be least likely to lead to the institution of further proceedings with respect to custody or guardianship of the child. In the present case, the State Family Court thus was exercising discretionary powers and its decisions in so doing were subject to appellate review according to settled principles.

40. In Cole v Whitfield, the Court said[25]:

    "A constitutional guarantee of freedom of interstate intercourse, if it is to have substantial content, extends to a guarantee of personal freedom 'to pass to and fro among the States without burden, hindrance or restriction':  Gratwick v Johnson[26]."

    The Court went on to emphasise that this was not meant to suggest[27]:

    "that every form of intercourse must be left without any restriction or regulation in order to satisfy the guarantee of freedom.  For example, although personal movement across a border cannot, generally speaking, be impeded, it is legitimate to restrict a pedestrian's use of a highway for the purpose of his crossing or to authorize the arrest of a fugitive offender from one State at the moment of his departure into another State.  It is not necessary now to consider the content of the guarantee of freedom of various forms of interstate intercourse.  Much will depend on the form and circumstance of the intercourse involved."

    The matter was taken further in Cunliffe v The Commonwealth[28].  Mason CJ considered that, whilst a law which in terms applied to movement across a border and imposed a burden or restriction would be invalid, a law which imposes an incidental burden or restriction on interstate intercourse in the course of regulating a subject‑matter other than interstate intercourse would not necessarily fail and it would be a matter of weighing the competing public interests[29].  Brennan J repeated his view expressed in Nationwide News Pty Ltd v Wills[30] that s 92 does not immunise interstate intercourse from the operation of laws of general application which are not aimed at that activity[31].  Deane J took a different stance.  His Honour said[32]:

    "The freedom of intercourse which the section demands is freedom within an ordered community and a law which incidentally and non‑discriminately affects interstate intercourse in the course of regulating some general activity, such as the carrying on of a profession, business or commercial activity, will not contravene s 92 if its incidental effect on interstate intercourse does not go beyond what is necessary or appropriate and adapted for the preservation of an ordered society or the protection or vindication of the legitimate claims of individuals in such a society."

    [25](1988) 165 CLR 360 at 393.

    [26](1945) 70 CLR 1 at 17.

    [27](1988) 165 CLR 360 at 393. See as to the United States Constitution, Edwards v California 314 US 160 at 174, 181 (1941); United States v Guest 383 US 745 at 758-760 (1966); Shapiro v Thompson 394 US 618 at 629-631, 642-643 (1969); Saenz v Roe 67 USLW 4291 (1999).

    [28](1994) 182 CLR 272.

    [29](1994) 182 CLR 272 at 307‑308.

    [30](1992) 177 CLR 1 at 58‑59.

    [31](1994) 182 CLR 272 at 333.

    [32](1994) 182 CLR 272 at 346.

41. Dawson J treated s 92 as not striking at laws which place an impediment upon freedom of interstate intercourse if the impediment was no greater than was reasonably required to achieve the object of a legislation which otherwise was within power[33].  Toohey J considered the law in question in Cunliffe v The Commonwealth did not impose any undue restriction on the communication of information and ideas and did not restrict movement across State borders with the result that s 92 had nothing to say about that legislation[34].  Gaudron J favoured the approach taken by Deane J[35].

    [33](1994) 182 CLR 272 at 366.

    [34](1994) 182 CLR 272 at 384.

    [35](1994) 182 CLR 272 at 392.

42. McHugh J emphasised that the freedom of interstate intercourse guaranteed by s 92 is not confined to freedom against laws that are discriminatory in any protectionist sense, as is now the case with freedom of interstate trade and commerce[36]. His Honour concluded that the freedom of intercourse spoken of in s 92 was limited, even in the case of laws imposing indirect restrictions or burdens, only by the need to accommodate laws reasonably necessary for the government of a free society regulated by the rule of law[37].

    [36](1994) 182 CLR 272 at 395.

    [37](1994) 182 CLR 272 at 396.

43. The formulations of principle by the members of the Court in Cunliffe v The Commonwealth differ, but those by Mason CJ, Deane J, Dawson J, McHugh J and, perhaps, Toohey J, reflect reasoning akin to that adopted by the Privy Council in the Bank Nationalisation Case[38], with respect to what came to be known under the former dispensation respecting s 92 as "reasonable regulation". In the working out of the measure of freedom from legislative, executive or curial interference which s 92 now is to be taken to provide in respect of interstate intercourse, each case should be decided "so far as may be, on the specific considerations or features which it presents"[39].

    [38]The Commonwealth v Bank of NSW (1949) 79 CLR 497 at 639‑641.

    [39]Gratwick v Johnson (1945) 70 CLR 1 at 19.

44. In addition to the immunity involved in the freedom of intercourse among the States protected by s 92, there is implicit in the Constitution at least an immunity from State interference, as Dixon CJ put it[40], "with all that is involved in [the] existence [of the Australian Capital Territory] as the centre of national government", which "means an absence of State legislative power to forbid restrain or impede access to it". However, that is not this case. It turns on an aspect of s 92 doctrine which is being developed from case to case[41].

    [40]Pioneer Express Pty Ltd v Hotchkiss (1958) 101 CLR 536 at 549‑550. See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 73‑74; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 213‑214; Kruger v The Commonwealth (1997) 190 CLR 1 at 45, 68‑70, 88‑93, 116, 142‑144, 156‑157; Higgins v Commonwealth (1998) 79 FCR 528 at 534‑536.

    [41]See, for example, Higgins v Commonwealth (1998) 79 FCR 528 at 531‑533.

45. The 1975 WA Act did not in terms apply to impose a burden or restriction upon movement across the borders of Western Australia. Rather, subject to the operation of s 109 of the Constitution, the 1975 WA Act empowered the State Family Court to impose a burden or restriction upon movement by orders made in exercise of its discretionary powers with respect to the custody and guardianship of children. In the present case, the order of which the mother complains does not enjoin movement as such from the State to the Northern Territory. However, its practical operation is to hinder or restrict such movement by the mother by reason of the requirement that she not change the principal place of residence of the child. This, of itself, would not be fatal to validity. The question becomes whether the impediment so imposed is greater than that reasonably required to achieve the objects of the 1975 WA Act. If the order in question does answer that description, it would, as indicated above, be liable to appellate correction as having been made in an exercise of discretion which was tainted by an error of law.

46. The question of the operation by this medium of s 49 of the Self‑Government Act and s 109 of the Constitution will not arise for decision in a given case where, upon appellate review, the orders in question are, on other grounds, liable to be set aside. That is the position in the present case. In deciding the mother's appeal on this narrower footing, we would not wish to be understood as denying the proposition that, in the case of legislation, State or federal, of the nature of the custody and guardianship provisions of the 1975 WA Act, s 92 may not put beyond the relevant statutory power the making of orders which have a practical effect of imposing upon the freedom of intercourse protected by s 92 an impediment greater than that reasonably required to achieve the object of the legislation.

47. With respect to the present appeal by the mother, we agree with Kirby J that the State Family Court erroneously exercised its discretion by requiring the demonstration by the mother of "compelling reasons" to the contrary of the proposition that the welfare of the child would be better promoted by him continuing to reside in the metropolitan area of Perth.  The Full Court should have intervened on this ground and, for that reason, the mother's appeal to this Court should be allowed.

48. When the matter is heard again, it will be for the State Family Court to take into account, upon the evidence then before it and in framing any orders it may make, the need not to impose upon the freedom of intercourse of either party between Western Australia and the Northern Territory, or between that State and any other State, an impediment greater than that reasonably required to achieve the objects of the applicable legislation. This will be the 1997 WA Act but with the status quo supplied by s 61C of the substituted Pt VII of the Family Law Act.

49. We should add that the reliance by the mother upon several international instruments to which this country is a party did not advance her arguments either with respect to the construction of the 1975 WA Act or the operation of s 92 of the Constitution through the medium of s 49 of the Self‑Government Act and s 109 of the Constitution.

50. As to the Constitution, its provisions are not to be construed as subject to an implication said to be derived from international law[42].  As to the legislation itself, it has been accepted that a statute of the Commonwealth or of a State is to be interpreted and applied, so far as its language permits, so that it is in conformity and not in conflict with established rules of international law.  However, the instruments referred to in the present case are, as to some of their provisions, aspirational rather than normative and, overall, reveal but do not resolve the conflicting interests which, as a matter of municipal law, attend a case such as the present.

    [42]Polites v The Commonwealth. Kandiliotes v The Commonwealth (1945) 70 CLR 60 at 69, 74, 75, 77, 79, 80‑81; Fishwick v Cleland (1960) 106 CLR 186 at 196‑197; Horta v The Commonwealth (1994) 181 CLR 183 at 195; Kartinyeri v The Commonwealth (1998) 72 ALJR 722 at 745‑746; 152 ALR 540 at 571‑572; Joosse v Australian Securities & Investment Commission (1998) 73 ALJR 232 at 236; 159 ALR 260 at 265.

    Orders

51. The appeals should be allowed.  The order of the Full Court of the Supreme Court of Western Australia should be set aside.  In lieu thereof, it should be ordered that the appeals from the State Family Court should be allowed, the orders of that Court set aside and the matters remitted to that Court for further hearing.  Each party should pay his or her costs in the State Family Court, in the Full Court of the Supreme Court and in this Court.

52. GAUDRON J.   The facts relevant to these appeals are set out in the judgments of other members of the Court.  I shall repeat them only to the extent necessary to make clear my reasons for concluding that both appeals should be allowed.  At this stage, it is sufficient to note that the parties to the appeals, who were never married, are the parents of a young child, "J".  The father is the appellant in the first matter and the mother in the second.  They will be referred to as "the father" and "the mother" respectively.

    The father's appeal

53. The father's appeal is from that part of an order of the Full Court of the Supreme Court of Western Australia which varied an order for joint guardianship made by Holden J, as he then was, in the Family Court of Western Australia on 24 April 1996.  The Full Court ordered that the mother "remain the sole guardian".  The word "remain" is significant.  It reflects the Full Court's view that that was the position prior to the order made at first instance, a view which is explicit in the statement by Malcolm CJ (with whom Franklyn and Walsh JJ agreed), that the order for joint guardianship should be set aside because "no valid reason had been put [at first instance] to disturb the status quo so far as guardianship was concerned"[43].

    [43](1997) 139 FLR 216 at 235.

54. Seemingly, the Full Court proceeded on the basis that guardianship was governed by s 35 of the Family Court Act 1975 (WA) ("the 1975 WA Act") which, until its repeal in 1998, provided[44]:

    "   Subject to the Adoption of Children Act 1896 and any order made pursuant to [Div 3 of Pt III], where the parents of a child who has not attained the age of 18 years were not married at the time of the birth of the child or subsequently, the mother of the child has the custody and guardianship of the child."

    [44]The 1975 WA Act was repealed by the Family Court Act 1997 (WA) which took effect on 26 September 1998. Section 69 of the latter Act now provides, in terms substantially identical to those of s 61C of the Family Law Act 1975 (Cth), that parents have joint parental responsibility for a child under 18 years of age.

55. J was born in 1990 in Darwin.  His parents were both then resident in the Northern Territory.  When proceedings were commenced in the Family Court of Western Australia, he resided with his mother in Western Australia.  His father also resided in Western Australia.

56. The father's primary argument in this Court was that guardianship was not regulated by s 35 of the 1975 WA Act but by s 63F(1) of the Family Law Act 1975 (Cth) ("the Commonwealth Act"). In consequence of that provision, it was argued, the father and mother had been joint guardians of their son at all times prior to the institution of proceedings in the Family Court of Western Australia and the Full Court erred in thinking otherwise.

57. By s 60E(3) of the Commonwealth Act, Pt VII of that Act, dealing with "Children", applied "in and in relation to the Territories". And s 63F(1) provided, as it did until 11 June 1996[45]:

    "   Subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section), each of the parents of a child who has not attained 18 years of age is a guardian of the child, and the parents have the joint custody of the child."

    [45]Part VII of the Commonwealth Act (including s 63F) was repealed by s 31 of the Family Law Reform Act 1995 (Cth). That section commenced operation on 11 June 1996. Section 31 substituted a new Pt VII of the Commonwealth Act relating to "Children". Parental responsibility for children is now dealt with in the new s 61C.

58. When the order of the Full Court, which is the subject of these appeals, was made on 19 June 1997, s 61C of the Commonwealth Act provided, as it does now, that:

    "(1)  Each of the parents of a child who is not 18 has parental responsibility for the child.

    (2)    Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents.  It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re‑marrying.

    (3)    Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section)."

    "Parental responsibility" is relevantly defined in s 61B to mean "all the duties, powers, responsibilities and authority which, by law, parents have in relation to children". And by s 69ZG, Pt VII of the Commonwealth Act, which includes ss 61B and 61C, applies in the Territories[46].

    [46]This provision replaces the former s 60E(3), which was repealed by the Family Law Reform Act.

59. It is not in doubt that, pursuant to s 122 of the Constitution, the Parliament has power to legislate with respect to the custody and guardianship of, or parental responsibility for, a child resident in a Territory, whether or not the parents are married[47].  And in my view, the power extends to the making of a law in that regard that operates after the child has ceased to reside in the Territory[48], provided it allows for alteration of parental rights and duties in accordance with the law of the place where the child then resides. Were there no provision allowing for alteration of those rights, a question would arise whether, in its application to an ex-nuptial child who no longer resided in the Territory, s 63F(1) of the Commonwealth Act could properly be characterised as a law "for the government of [a] territory"[49].

    [47]See Gazzo v Comptroller of Stamps (Vict) (1981) 149 CLR 227 at 266 per Aickin J; In the Marriage of Cormick (1984) 156 CLR 170 at 182 per Murphy J; Northern Territory of Australia v GPAO (1999) 73 ALJR 470 at 476 per Gleeson CJ and Gummow J (with whom Hayne J agreed), 488-489 per Gaudron J, 498 per McHugh and Callinan JJ; 161 ALR 318 at 325-326, 343-344, 356.

    [48]It has been accepted since Lamshed v Lake (1958) 99 CLR 132 that laws made by the Parliament under s 122 may also operate elsewhere in the Commonwealth. In that case, Dixon CJ relevantly stated (at 145) that rights acquired under the Matrimonial Causes Act 1945 (Cth), on the basis that the place of domicile was a territory, would also be enforceable elsewhere in the Commonwealth. See also Berwick Ltd v Gray (1976) 133 CLR 603 at 607 per Mason J (with whom Barwick CJ, McTiernan, Jacobs and Murphy JJ agreed); Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 513 per Stephen J, 526 per Mason J, 531 per Murphy J.

    [49]Section 122 of the Constitution.

60. The question in this case is whether, in respect of a child who had earlier been resident in a Territory, s 63F(1) of the Commonwealth Act operated, as its terms would indicate, until an order was made to the contrary. It was submitted on behalf of the mother and of the Attorneys-General for the Commonwealth and Western Australia, who intervened in these appeals, that, for present purposes, s 63F(1) ceased to operate when the parties and J became residents of Western Australia.

61. If s 63F(1) of the Commonwealth Act operated until an order was made to the contrary, then to the extent that s 35 of the 1975 WA Act provided otherwise, it was inconsistent with that sub-section and, hence, invalid by reason of s 109 of the Constitution[50]. On the other hand, if s 63F(1) ceased to operate when the parties and J became resident in Western Australia, then, subject to a further argument on behalf of the father as to its validity, s 35 of the 1975 WA Act then applied and continued to apply until its repeal on 26 September 1998.

    [50]See with respect to inconsistency between a State law and law under s 122 of the Constitution, Lamshed v Lake (1958) 99 CLR 132 at 148 per Dixon CJ, with whom Webb, Kitto and Taylor JJ agreed.

62. The only express limitation to which s 63F(1) of the Commonwealth Act was subject was an order of a court to the contrary, whether such order was made under that or another Act. To read it as subject to any other limitation would be to read words into that sub-section that were not there. It is, of course, permissible to read down a statutory provision so that it operates within constitutional limits. At least that is so if its operation within those limits is not thereby altered[51]. However, if s 63F(1) of the Commonwealth Act is read, as I think it must be, as allowing for some other legal regime to be brought into operation when a child ceases to reside in a Territory, it was within constitutional limits and no occasion arises for its reading down.

    [51]See generally with respect to the reading down of a statute to confine its operation within constitutional limits, s 15A of the Acts Interpretation Act 1901 (Cth); Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 501-503 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ and the cases there cited.

63. Questions of constitutionality aside, the circumstances in which a court may construe a statutory provision by reading into it words that are not there are extremely limited.  More particularly is that so where, as here, the words of the provision are clear and unambiguous.  In general terms, clear words can only be read as subject to some unexpressed limitation if that is necessary to avoid absurdity, some conflict with another provision of the statute in question or a result which cannot reasonably be supposed to have been intended by the legislature[52].

    [52]See Thompson v Judge Byrne (1999) 73 ALJR 642 at 653 per Gaudron J; 161 ALR 632 at 645 and the cases there cited.

64. None of the above considerations direct that s 63F(1) of the Commonwealth Act be read in the manner for which the mother and the Commonwealth and Western Australian Attorneys-General contended. On the contrary, if the operation of s 63F(1) were confined by reference to residence in a Territory, it might be productive of uncertainty and disruptive of settled arrangements, particularly in circumstances of the kind that occurred in this case. It cannot be supposed that Parliament intended that possibility. Accordingly, it follows that s 63F(1) of the Commonwealth Act regulated the guardianship of J at the time proceedings were instituted in the Family Court of Western Australia and, to that extent, s 35 of the 1975 WA Act was inoperative.

65. It also follows that the mother and father had joint guardianship of J when proceedings were commenced in the Family Court of Western Australia and the Full Court erred in proceeding on the basis that the mother was his sole guardian.  Ordinarily, that would result in the father's appeal being allowed.  However, it was submitted on behalf of the mother that instead of taking that course, the Court should revoke the father's grant of special leave to appeal.

66. The argument for the revocation of special leave was based on the repeal of the 1975 WA Act and the enactment of the Family Court Act 1997 (WA) ("the 1997 WA Act") with effect from 26 September 1998. Section 69 of the 1997 WA Act is in substantially similar terms to s 61C of the Commonwealth Act with the consequence that, subject to any order of a court to the contrary, both parents have parental responsibility for children under the age of 18, whether or not they are or were married.

67. It was put that, given the terms of s 69 of the 1997 WA Act, there is no longer any question of general importance to be decided by this Court. Were the order for special leave revoked, however, J's guardianship would be governed by an order which was made in disregard of what was then the correct legal position and which takes no account of the present legal position. In these circumstances, it is contrary to the interests of justice to revoke leave.

    Further grounds of the father's appeal

68. Given that s 35 of the 1975 WA Act did not apply and, given also that, in my view, special leave should not be revoked, it is unnecessary to consider the further argument made on behalf of the father, namely, that, in making an order that the mother be the sole guardian, the Full Court erred in the exercise of its discretion. It is, however, convenient to note one other argument, namely, that, if s 35 of the 1975 WA Act otherwise operated to grant the mother sole guardianship of J, then it was inconsistent with s 49 of the Northern Territory (Self-Government) Act 1978 (Cth) ("the NT Self-Government Act") and, hence, invalid. The latter section provides, in terms which mirror those of s 92 of the Constitution, that "[t]rade, commerce and intercourse between the ... States ... shall be absolutely free."

69. It was put on behalf of the father that intercourse "is not in any sense 'free' if a person must give up a right ... in consequence of having [left a Territory and] entered into a State". In the view I take as to the operation of s 63F(1) of the Commonwealth Act, that precise question does not arise. However, were there a right of the kind which the argument seems to assume, the same could be said with respect to s 69(3) of the 1997 WA Act in so far as it allows for an order making provision contrary to the situation for which s 61C of the Commonwealth Act now provides.

70. Assuming guardianship and parental responsibilities are correctly described as rights, s 63F(1) of the Commonwealth Act did not and s 61C does not now confer any absolute right. Rather s 63F(1) provided and s 61C now provides for a regime which is, in terms, susceptible of change. Moreover, so far as concerns a child no longer resident in a Territory, it would, in my view, exceed constitutional validity if it did not permit of that possibility.

71. For present purposes, what is significant is that the regime established by s 63F(1) was, and the regime now established by s 61C of the Commonwealth Act is, susceptible of change regardless of whether the persons affected move from a Territory to a State. That being so, it cannot be concluded that intercourse is impeded if that regime is changed in circumstances that happen to involve movement from a Territory to a State.

    Background to the mother's appeal

72. The mother's appeal is brought from that part of the order of the Full Court dismissing her cross-appeal from the orders made by Holden J.  Essentially, her appeal is concerned with order 2 of those orders, which is in these terms:

    "The respondent be restrained and an injunction is hereby granted restraining her from changing the child's principal place of residence from the Perth metropolitan area as defined in the Town Planning and Development Act 1928."

    In order to understand how that order ("the residence order") came to be made, it is necessary to give some account of the nature of the proceedings in the Family Court of Western Australia and the course that they took.

73. The proceedings were commenced by the father on learning of the mother's intention to return with J to the Northern Territory and to take up residence in Darwin.  He filed an application seeking joint guardianship and also seeking custody of the child with reasonable access to the mother.  Additionally, he sought an injunction restraining the mother from removing J from Western Australia.  In context, it seems that the injunction then sought was an interim injunction to preserve the status quo pending the hearing and determination of his application.  However, at the hearing, the father sought a further order that both he and the mother be restrained from removing J from Western Australia without the written consent of both.

74. Shortly after the proceedings were commenced, the mother gave an undertaking that she would not remove J from the Perth metropolitan area without the father's consent.  Later, she filed a response seeking sole guardianship and custody of J with access to the father at times which varied according to whether or not the parties lived within reasonable proximity to each other.  She also sought an order that she "be free to leave the Perth Metropolitan area and the State of Western Australia"[53].

    [53]On 27 March 1996, the mother amended the order sought to an order that she "be free to leave the State of Western Australia with [J]."  In the Minute of Proposed Orders dated 16 April 1996, the mother sought an order in terms different again, namely, that she "be free to reside in Darwin."

75. The issue presented by the father's application and the mother's response can be simply stated:  what orders should be made with respect to guardianship, custody and access in the light of the mother's proposed return to Darwin?  However, Holden J saw the matter somewhat differently.  In his Honour's view, it was necessary to first decide whether the mother or father should have custody and, then, "whether or not [the mother] ought to be permitted to remove the child from the jurisdiction".  According to his Honour, that was because it was the mother's case that if "not permitted to change her place of residence to the Northern Territory then she [would] remain in Perth as the custodian of the child".

76. It will later be necessary to say something about the approach adopted by Holden J and the manner in which the mother's case was conducted.  At the moment, it is sufficient to note that his Honour decided that "the best interests of the child ... would be best served by him remaining in the custody of his mother", without having any regard to where she might live or the access arrangements that might be made.  And he decided that "the welfare of [J] would be better promoted by him continuing [to live in Perth] in the absence of any compelling reasons to the contrary".  And on that basis, the residence order was made in the terms set out above.

77. In the view of the trial judge, the question "whether or not [the mother] ought to be permitted to relocate to Darwin" was to be answered on the basis that "the welfare of the child ... is the paramount consideration", with regard being had to whether "the application to remove ... [is] bona fide", whether "access and other orders made to ensure the continuance of the relationship ... [with] the non-custodian" are likely to be complied with and "[t]he general effect upon the [child's] welfare ... in granting or refusing the application"[54].

    [54]These factors are taken from In the Marriage of Holmes [1988] FLC ¶91-918 at 76,663.

78. In the Full Court, Malcolm CJ reviewed various authorities concerned with a custodial parent's desire to relocate and said that they indicated that "the wishes of the custodial parent should have priority, unless it can be shown that the removal of the child would not be in the interests of the child as the paramount consideration."[55]  Although this does not seem to be the manner in which Holden J approached the issue, it was nevertheless held that "his Honour's decision was clearly right and consistent with the requirement to regard the welfare of the child as the paramount consideration"[56].

    [55](1997) 139 FLR 216 at 234.

    [56](1997) 139 FLR 216 at 234.

    Legislative provisions relevant to the mother's appeal

79. The proceedings were conducted at first instance as proceedings in what the 1975 WA Act referred to as "non-federal jurisdictions ... under this ... Act"[57].  As will later appear, that does not necessarily mean that the Family Court of Western Australia was exercising non-federal jurisdiction as that term is usually understood.

    [57]See s 27(2).

80. Subject to conditions which are not presently relevant, s 27(5) of the 1975 WA Act conferred "non-federal jurisdiction under [that] Act" on the Family Court of Western Australia "to make an order containing a provision for the custody of, guardianship of, access to, or welfare of, a child". And s 36(a) provided that either parent might apply "for an order with respect to the custody or guardianship of, access to, or welfare of, a child".

81. The powers of the Family Court of Western Australia when exercising its "non-federal jurisdiction under [the] Act" were set out in ss 28(3) and 28A(1) of the 1975 WA Act. By s 28(3) it was provided:

    "   Subject to this Act, in exercising its non-federal jurisdictions with respect to a child the Court may‑
    (a)    make such order in respect of those matters as it thinks proper;
    (b)    make an order until further order;

    (c)    discharge or vary an order or suspend any part of an order and may revive the operation of any part of an order so suspended."

Section 28A(1) provided:

" The court in exercising its non-federal jurisdictions under this Act may grant an injunction, either unconditionally or upon such terms and conditions as the Court thinks appropriate, by interlocutory order or otherwise (including an injunction in aid of the enforcement of an order), in any case in which it appears to the court, having regard to the principles set out in section 28, to be just or convenient to do so."

82. In the exercise of its non-federal jurisdiction, the Family Court of Western Australia was required by s 28(1) of the 1975 WA Act to have regard to certain principles which are of no immediate relevance[58]. However, s 28(2) provided:

    "   In the exercise of its non-federal jurisdictions with respect to a child the Court shall have regard to the welfare of the child as the paramount consideration."

    [58]The principles set out in s 28(1) were:

    "(a)the need to preserve and protect the institution of marriage as the union of man and woman to the exclusion of all others voluntarily entered into for life;

    (b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of children;

    (c)the need to protect the rights of children and to promote their welfare;

    (d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage; and

    (e)the effect of any order on the stability of the marriage and the welfare of the children of the marriage."

83. Reference should also be made to s 34 of the 1975 WA Act which, so far as is presently relevant, provided:

    "(1)  A person who is the guardian of a child under this Act has responsibility for the long-term welfare of the child and has, in relation to that child, all the powers, rights and duties that are, apart from this Act, vested by law or custom in the guardian of a child, other than‑
    (a)    the right to have the daily care and control of the child; and

    (b)    the right and responsibility to make decisions concerning the daily care and control of the child.

    (2)    A person who has or is granted custody of a child under this Act has‑
    (a)    the right to have the daily care and control of the child; and

    (b)    the right and responsibility to make decisions concerning the daily care and control of the child.

    (3) The operation of subsection (1) or (2) in relation to a child may be varied by any order made by the Court in relation to the child."

84. The applications before the Family Court of Western Australia for custody, guardianship and access were clearly referable to ss 27(5) and 36(a) of the 1975 WA Act. However, it is not entirely clear that the same can be said for the mother's application to "be free to leave the State of Western Australia". It was, however, contended on behalf of the father that the residence order was an order with respect to J's welfare and made in exercise of the welfare jurisdiction of the Court.

    Welfare jurisdiction

85. It may be taken that the jurisdiction conferred by s 27(5) of the 1975 WA Act "to make an order containing a provision for the ... welfare of, a child" is a jurisdiction similar to the parens patriae jurisdiction exercised by the Court of Chancery "without the formal incidents of one of the aspects of that jurisdiction, [namely] the jurisdiction to make a child a ward of court"[59].  It has been said that the parens patriae jurisdiction is "an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a [child]"[60] and that "[i]ts limits ... have not, and cannot, be defined"[61].  However, the jurisdiction is not in principle supervisory[62].  Rather, it is a jurisdiction which, in general terms, is exercised when there is some risk to a child's welfare.

    [59]Secretary, Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 256 per Mason CJ, Dawson, Toohey and Gaudron JJ. See also P v P (1994) 181 CLR 583 at 598 per Mason CJ, Deane, Toohey and Gaudron JJ, 615 per Brennan J, 627 per Dawson J and 632 per McHugh J; ZP v PS (1994) 181 CLR 639 at 646-647 per Mason CJ, Toohey and McHugh JJ.

    [60]In re X (A Minor) [1975] Fam 47 at 61 per Sir John Pennycuick.

    [61]E (Mrs) v Eve [1986] 2 SCR 388 at 410 per La Forest J.

    [62]Marion's Case (1992) 175 CLR 218 at 258-259 per Mason CJ, Dawson, Toohey and Gaudron JJ.

86. If there is a risk to the welfare of a child, the parens patriae jurisdiction will support a great variety of orders and orders of great width.  It has been said that it will support orders related to "categories of cases ... such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations" and that "[t]hat list is not exhaustive ... [for] the powers of [a] court in this particular jurisdiction have always been described as being of the widest nature."[63]

    [63]In re X (A Minor) [1975] Fam 47 at 50-51 per Latey J. See also E (Mrs) v Eve [1986] 2 SCR 388 at 426 where La Forest J stated "[t]he situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense."

87. Notwithstanding that the welfare jurisdiction is similar to the parens patriae jurisdiction and that that jurisdiction will support a wide variety of orders and orders of great width, it would be reading too much into a statute simply conferring jurisdiction with respect to the welfare of a child to read it as authorising any order that would promote the child's welfare.  That would be to convert a jurisdiction designed to protect against risk into a jurisdiction to supervise parents and guardians in the exercise of their rights and responsibilities.

88. Moreover, it is impossible to read ss 27(5) and 36(a) of the 1975 WA Act as conferring a supervisory jurisdiction in a context in which the right and responsibility to make decisions as to the daily care and control of children is, by s 34, expressly conferred on a custodial parent. Were ss 27(5) and 36(a) construed to extend to any order that would promote the welfare of a child, those provisions would allow for the curtailment of a parent's rights not only as a parent, but as an individual, regardless of any risk to the child's welfare. In my view, neither s 27(5) nor s 36(a) of the 1975 WA Act can be read as authorising that course. Rather, they are to be read as authorising "orders" which, in the words of Sir John Pennycuick in In re X (A Minor) are "necessary for the welfare of a [child]"[64], or, perhaps, more accurately, orders which are appropriate and adapted to avert a risk to the child's wellbeing.

    [64]In re X (A Minor) [1975] Fam 47 at 61.

89. There was no suggestion that, in this case, the mother's proposed move to Darwin posed any risk to her son's wellbeing. Accordingly, the residence order cannot be said to be an order with respect to his welfare for the purposes of s 36(a) of the 1975 WA Act. Thus, if the order is to be supported, it must be supported as an order with respect to custody.

    Orders with respect to custody

90. A custody order which is expressed to operate only so long as the custodial parent resides in a particular place is, as to that part concerned with residence, an order with respect to custody.  The words "with respect to" are words of wide import[65] and an order will be an order with respect to custody so long as there is some discernible nexus between it and the custody of a child.

    [65]See, for example, New South Wales v The Commonwealth (The Incorporation Case) (1990) 169 CLR 482 at 498 per Mason CJ, Brennan, Dawson, Toohey, Gaudron and McHugh JJ. See also Bank of NSW v The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 186 per Latham CJ, quoted with approval in Allders International Pty Ltd v Commissioner of State Revenue (Vict) (1996) 186 CLR 630 at 638-639 per Brennan CJ, 659 per Toohey J.

91. As already indicated, the question of custody was approached at first instance as the primary issue to be determined on the basis of the competing claims of the mother and father without regard to where either might live.  And the question of the mother's proposed place of residence was approached as a discrete issue, which was sometimes identified as "whether or not [the mother] ought to be permitted to relocate to Darwin" or "permitted to change her place of residence to the Northern Territory" and, at other times, as whether she should be "permitted to remove the child from the Perth Metropolitan area".  In these circumstances, it is not possible to view the residence order as having any nexus with the custody order.  It is, thus, not an order with respect to custody.

    Error in approach at first instance

92. There was, in my view, a fundamental error in the approach taken at first instance.  That error can be described in various ways.  It can be described as an error in dissecting the case into two discrete issues, namely, a primary issue as to who should have custody and a further issue as to whether the mother should be permitted to change J's place of residence.  It can also be described as an error in treating that latter issue as equivalent to the question whether the mother should be permitted to relocate to Darwin, as the trial judge frequently did.  So, too, it can be described as an error in determining that issue as one which raised the question whether "the welfare of the child would be better promoted by him continuing in [an ideal] situation" involving close interaction with members of both extended families.  It can also be described as an error in proceeding on the basis that the mother had to show "compelling reasons" why she should be permitted to remove J from the Perth Metropolitan area.  However, they are but aspects or consequences of a more fundamental error, namely, a failure to determine the issues in the case.  Before explaining why that is so, it is convenient to say something further as to the way in which the mother's case was conducted.

93. It is true that, by her application, the mother sought an order that "she be free to reside in Darwin".  And it is also true, as Holden J noted, that, early in the proceedings, her counsel indicated, in answer to a question as to what the mother proposed if it were decided that it was "in the child's best interest ... [to] remain in Perth", that, in that event, she would remain in Perth.  It may be that both that answer and her application were premised on a misunderstanding of the nature of the welfare jurisdiction of the Family Court of Western Australia.  Whether or not that is so, the mother's case throughout was that she should have custody of her son regardless of whether she lived in Perth or Darwin.

94. The mother's case that she should have custody regardless of where she lived was one that required a consideration of the competing claims of each parent and the arrangements that each could make for J to maintain contact with the other.  In this last regard, the mother proposed that, on her return to Darwin, the father should have very considerable access during school holidays and, had those proposals been examined, it may have been ascertained that they were as much in the interests of the child, particularly as he grew older, as those which would obtain if he stayed in Perth.

95. The mother's case was one which permitted of two possible outcomes.  The first was that she should have custody regardless of where she lived.  The second was that she should have custody only for so long as she resided in Perth.  Each of those possibilities had to be assessed against the alternative for which the father contended, namely, that the child live with him and his new family.  A decision then had to be made as to which of those possibilities was preferable, the welfare of J being the paramount but not the only consideration to which regard was to be had in making that decision[66].  That is not the course that was taken.  The mother's case that she should have custody regardless of her place of residence was simply not dealt with.  It follows that the mother's appeal to the Full Court should have been allowed, as must her appeal to this Court.

    [66]Storie v Storie (1945) 80 CLR 597 at 611 per Dixon J, 620 per Williams J. See also B and B:  Family Law Reform Act 1995 [1997] FLC 92-755 at 84,198.

    The residence order and s 92 of the Constitution

96. Before leaving the mother's appeal, it is necessary to say something of the residence order and s 92 of the Constitution. The order operates directly to prevent the mother living with her child in any place other than the Perth Metropolitan area. It thus operates directly to restrict her freedom to reside in any other part of Australia, not simply the Northern Territory. So far as it operates to restrict her freedom to live in the Northern Territory, a question arises whether it conflicts with s 49 of the NT Self-Government Act, to which reference has already been made. So far as it has a wider operation, the question is whether it also infringes the guarantee in s 92 of the Constitution. Both questions raise the same issue, and it is, thus, convenient to proceed by reference simply to s 92 of the Constitution.

97. Section 92 guarantees that "trade, commerce, and intercourse among the States ... shall be absolutely free." The first issue that arises is whether "intercourse" includes moving one's place of residence from one State to another. It is not in doubt that, in s 92, "intercourse" includes passage across State borders[67].  There is no reason, in point of principle, to distinguish between passage for limited or temporary purposes and passage for more permanent reasons, including to take up residence in another State.

    [67]See Cole v Whitfield (1988) 165 CLR 360 at 393. See also R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 108-109 per Griffith CJ, 113, 117 per Isaacs J, 117‑118 per Higgins J; Gratwick v Johnson (1945) 70 CLR 1 at 17 per Starke J.

98. The second question that arises in relation to s 92 is whether its guarantee is infringed by a law that permits of a court order restraining a person from moving interstate. In this regard, the first matter to be noted is that the test adopted in Cole v Whitfield with respect to interstate trade and commerce, namely, whether a law has a discriminatory effect on interstate trade or commerce in a protectionist sense[68] does not apply to interstate intercourse[69].

    [68](1988) 165 CLR 360 at 394.

    [69]Cole v Whitfield (1988) 165 CLR 360 at 387-388; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 54 per Brennan J, 82 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 192 per Dawson J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 307 per Mason CJ.

99. This Court considered the circumstances in which a law infringed the implied freedom of political communication in Nationwide News Pty Ltd v Wills[70] and in Australian Capital Television Pty Ltd v The Commonwealth[71].  The test for infringement was described in various ways in those cases, with a distinction being drawn by some Justices between a law whose purpose or character was to restrict that implied freedom and a law which had some other purpose and only incidentally limited it[72].

    [70](1992) 177 CLR 1.

    [71](1992) 177 CLR 106.

    [72]See, for example, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 76-77 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 143 per Mason CJ, 169 per Deane and Toohey JJ, 234-235 per McHugh J. See also Cunliffe v The Commonwealth (1994) 182 CLR 272 at 337 per Deane J.

253. I do not think that any question of inconsistency truly arises. Section 63F, although on its face apparently unconfined in operation with respect to children, either nuptial or ex-nuptial, has to be read subject to, and as being intended to be within a head of constitutional power or the subject of an appropriate reference by the State to the Commonwealth pursuant to s 51(xxxvii) of the Constitution. There has been no reference. The only Commonwealth constitutional power with respect to children is to be found in s 51(xxii) which is subject to the qualification that Commonwealth legislation concerning the custody and guardianship of infants must be related to divorce and matrimonial causes[237]:

     "Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants."

     [237]See Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383 at 402, 405 per Barwick CJ, 423 per Aickin J, 433 per Wilson J.

254. It seems to me to be very unlikely that the Commonwealth legislature would have intended s 63F of the Family Law Act 1975 (Cth) to have an operation with respect to a subject matter over which it would not ordinarily have any power to legislate without a reference by a State pursuant to s 51(xxxvii) of the Constitution. The Commonwealth in its submissions at least accepts that in order for s 63F to operate upon an ex-nuptial child there had to be some connexion between the child and the Territory, and that this child's connexion with the Northern Territory had entirely ceased at the inception of these proceedings.

255. Section 63(7) of the Family Law Act 1975 (Cth) (which was later replaced by s 69K of the Family Law Reform Act 1995 (Cth)[238]) recognised the need for a demonstrated connexion, certainly so far as the jurisdiction of a Court of a Territory is concerned, between at least one of the parties to the proceedings, and the Territory.  It provided as follows:

     "Jurisdiction in relation to a matter arising under this Part in relation to which a proceeding is instituted under this Part is not conferred on a court of a Territory unless at least one of the parties to the proceedings is, on the day of the institution of the proceedings or the day of the transfer of the proceedings to that court, ordinarily resident in the Territory."

     [238]Section 69K now provides:

     "A court of a Territory must not hear or determine proceedings under this Part unless at least one of the parties to the proceedings is ordinarily resident in the Territory when the proceedings are instituted or are transferred to the court."

256. The very broad definition of "child" in Part VII of the Family Law Act 1975 (Cth) is relevantly affected in certain important respects by s 69ZH(2) which states that particular divisions and sections of Part VII have the effect they would have, as if each reference to a child were confined to a reference to a child of a marriage[239].  This restriction on the Act's reach is an acknowledgment of the Constitutional limitations on the Commonwealth's power contained in s 51(xxii) as interpreted by the High Court in earlier cases decided in respect of similar provisions[240].

     [239]Prior to the insertion of s 69ZH by the Family Law Reform Act 1995 (Cth), s 60F(2) was to similar effect.

     [240]See for example R v Cook; Ex parte C (1985) 156 CLR 249; Re F; Ex parte F (1986) 161 CLR 376.

257. Questions as to the extent of the Commonwealth's power in this respect are now largely academic as a result of the referral of power by every state (except Western Australia) to the Commonwealth: see for example Commonwealth Powers (Family Law – Children) Act 1986 (NSW).  The New South Wales legislation refers to the Commonwealth matters relating to the "custody and guardianship of, and access to, children" (s 3(1)(b)).  "Children" in this context are defined to mean persons under the age of 18 years[241]. 

     [241]Commonwealth Powers (Family Law – Children) Act 1986 (NSW) s 3(3).

258. It is against the background of these referrals by nearly all of the States that the Family Law Act 1975 (Cth) is stated to apply to New South Wales, Victoria, Queensland, South Australia and Tasmania[242].  The referrals, however, do not make any express references to "welfare".

     [242]Family Law Act 1975 (Cth) s 69ZE.

259. I think that there are reasons why no intention to legislate in respect of ex‑nuptial children ordinarily resident or domiciled in Western Australia should too readily be imputed to the Commonwealth.

260. It is doubtful whether this child's parents ever had any plan to reside in the Northern Territory indefinitely, or that they established a different domicile from Western Australia.  The child has spent so far about four and a half years of his life there.  At the time of the applications to the court the appellant and the respondent were all resident in Western Australia and the appellant domiciled there. 

261. I have referred to the domicile and residence of the parties because these were matters which were relevant to the exercise of the parens patriae jurisdiction of the High Court of the United Kingdom and the Supreme Courts of the States.  In Western Australia the Supreme Court could always exercise the parens patriae jurisdiction subject to any statutes dealing with children on the grounds of nationality and ordinary residence[243]. 

     [243]Corin v Corin (1991) 7 SR (WA) 124.

262. The classical statement is that of Lord Campbell in Johnstone v Beattie[244]:

     "I do not doubt the jurisdiction of the Court of Chancery on this subject, whether the infant be domiciled in England or not.  The Lord Chancellor, representing the Sovereign as parens patriae, has a clear right to interpose the authority of the Court for the protection of the person and property of all infants resident in England."

     [244](1843) 10 Clark & Finnelly 42 at 119-120 [8 ER 657 at 687]. See also Descollonges v Descollonges 183 NYS 2d 943 (1959); In re P (GE) (An Infant) [1965] Ch 568 per Lord Denning MR. See also Holdsworth, A History of English Law, 2nd ed (1937), vol 6 at 648:

     "The equitable control over infants, and the guardians of infants, arose in its modern form after the abolition of the military tenures, and the court of Wards and Liveries.  The equitable jurisdiction was based, it is said, not on any inherent jurisdiction, but upon a special delegation by the crown of its prerogative right, as parens patriae, of looking after their interests.  In 1696, in the case of Falkland v Bertie, it was said, 'In this court there were several things that belonged to the king as pater patriae, and fell under the care and direction of this court, as charities, infants, idiots, lunatics, etc.  Afterwards such of them as were of profit and advantage to the king were removed to the court of Wards by the statute; but upon the dissolution of that court, came back again to the Chancery.'  This view has generally been accepted as the origin of this jurisdiction of the court; and it is true that, after the dissolution of the court of Wards, this jurisdiction of the Chancery developed."  (footnotes omitted).

263. It is unlikely that against the background of the long history of the exercise of the parens patriae jurisdiction over children essentially based on residence that the Commonwealth would have set out to legislate for the guardianship and custody of ex-nuptial children no matter where they might be resident at any time during infancy[245].  (No question arises in this case as to the operation of the principle in those cases which might attract the diversity jurisdiction[246]).

     [245]See American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 682-683 per Mason J:

     "The general rule is that the courts will construe a statute in conformity with the common law and will not attribute to it an intention to alter common law principles unless such an intention is manifested according to the true construction of the statute."

     See also Figgins Holdings Pty Ltd v SEAA Enterprises Pty Ltd (1999) 162 ALR 382 at 394-395 per Gaudron, Gummow and Callinan JJ. See also Nygh, Conflict of Laws in Australia, 6th ed (1995), at 435 who is of the view that the Family Law Act 1975 (Cth) does not confer jurisdiction on the Family Court of Australia in respect of ex-nuptial children who are, at the date of institution of proceedings, neither present nor ordinarily resident in a referring State or Territory.

     [246]Constitution s 75(iv).

264. The State of Western Australia has legislated in terms reflecting the usual jurisdictional basis of residence of children. Section 27(5) of the Family Court Act 1975 (WA) provides as follows:

     "Subject to this Act, the court has non-federal jurisdiction under this Act to make an order containing a provision for the custody of, guardianship of, access to, or welfare of, a child-

     (a)    if the child in respect of whom the order is sought is then present in the State; and

     (b)    if the applicant or the respondent in the proceedings in which the order is sought is resident in the State."

265. Section 51(xxii) has no operation in relation to an ex-nuptial child. Nor do I think did s 63F of the Family Law Act 1975 (Cth) in the circumstances that existed when it fell to be invoked, if it could be. Neither the child nor his parents was or were resident out of Western Australia. That State has, within its legislative competence, legislated to make provision for the guardianship of ex‑nuptial children and on a residential basis.

266. The focus is, and always has been, appropriately upon residence, and in particular the residence of the child.  Whilst it is settled that a court having jurisdiction to make orders for custody and guardianship of a child may at common law make such orders, even if the child is out of the jurisdiction[247], it has been said that it is "the rarest possible thing for a judge of … the High Court to make a custody order in respect of a child who is out of the jurisdiction"[248]. 

     [247]Hope v Hope (1854) 4 De GM & G 328 [43 ER 534]; R v Sandbach Justices; Ex parte Smith [1951] 1 KB 62; Harben v Harben [1957] 1 WLR 261; [1957] 1 All ER 379.

     [248]Harris v Harris [1949] 2 All ER 318 at 322; Moses v Stephenson (1981) 10 NTR 32 at 33.

267. I am inclined therefore to take it as correct, although I need not, and do not decide, that s 63F was intended to operate only in respect of ex-nuptial children over whom the jurisdiction would ordinarily be exercised, that is, children ordinarily resident within that jurisdiction, and not over children resident elsewhere who would both at common law and under specific statutory provision be subject to the jurisdiction of a different court or bound by legislation (without a court order) of a different polity. However I am of the opinion that it was certainly not intended to operate in the present situation in which both parents and the child were resident in Western Australia. Accordingly, in my opinion no question of inconsistency calling for the application of s 109 of the Constitution arises.

268. Both parties seek to rely upon s 49 of the Northern Territory (Self‑Government) Act 1978 (Cth), the Northern Territory equivalent of s 92 of the Constitution:

     "Trade, commerce and intercourse between the Territory and the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."

269. The appellant's submission is that intercourse between the Territory and the States is not in any sense "free" if a person, the appellant, loses a right conferred by a Territory in consequence of having entered into a State. The same submission is put in respect of the child's rights. The lost right is said to be the statutory right to guardianship conferred by s 63F of the Family Law Act 1975 (Cth) if the correct view is, contrary to the appellant's first submission, that s 35 of the Family Court Act 1975 (WA) comes into operation as soon as, and as a result of the crossing of the border between the Northern Territory and Western Australia by any of the parties or the child. The appellant submits that the statutory deprivation thereby caused constituted a "burden, hindrance or restriction" within the meaning of Gratwick v Johnson[249]. 

     [249](1945) 70 CLR 1 at 17.

270. This argument does not require lengthy discussion.  Even if I were to assume that the appellant had a continuing statutory entitlement to joint guardianship of the child, and the child that entitlement so far as both parents are concerned, I do not think it apt to regard it as a right in any ordinary sense.  However it may be characterised, it must always give way to, and be subject to displacement or alteration by order of a court.  That a voluntary movement from one jurisdiction to another may subject a parent, or a child to a different statutory regime making provision for the welfare of the child, cannot mean that the appellant or the child has been subjected to a burden, hindrance or imposition.  So far as the parents are concerned the birth of children to them will always create obligations.  Practically everything a parent thereafter does will be affected or influenced, personally, socially, residentially and familialy by such an event.  As much pleasure as the birth may give it will also give rise to what some would describe as burdens[250]. Section 63F should not be regarded as having conferred a right upon a parent or a child but rather as stating what the relationship of the child to his or her parents is to be in the absence of any order to the contrary, or other valid statutory provision.

     [250]"He that hath wife and children hath given hostage to fortune; for they are impediments to great enterprises, either of virtue or mischief" (Bacon, "Of Marriage and the Single Life", Essays (1625)).

271. Before dealing with the respondent's argument that Order 2 of the Full Court's order (as with the like order of the primary judge) should be struck down by s 92 of the Constitution it is convenient to dispose of a prior argument that this order, expressed in injunctive language could not be made under the Family Court Act 1975 (WA). I do not doubt that it could be. Section 28(3)(a) is expressed in very broad terms:

     "Subject to this Act, in exercising its non-federal jurisdictions with respect to a child the Court may –

     (a)    make such order in respect of those matters as it thinks proper;"

272. Section 28A(1) should also be noted:

     "The Court in exercising its non-federal jurisdictions under this Act may grant an injunction, either unconditionally or upon such terms and conditions as the Court thinks appropriate, by interlocutory order or otherwise (including an injunction in aid of the enforcement of an order), in any case in which it appears to the court, having regard to the principles set out in section 28, to be just or convenient to do so."

273. The words "as it thinks proper" do not mean that the Court can make any order at all.  So long as an order is properly directed to the subject matter of the Act authorising it, is within the power or jurisdiction conferred, and is not otherwise invalid (eg on constitutional grounds), it will be maintainable.  A court should construe a provision appearing to give virtually untrammelled power in such a way as to confine its operation to one that is within power[251]. That is how s 28(3) should be read here.

     [251]cf Re JJT; Ex parte Victoria Legal Aid (1998) 72 ALJR 1141 at 1164-1165; 155 ALR 251 at 284-285.

274. The respondent in advancing her argument that the order restraining any change of residence of the child, accepted that s 92 did not operate to strike down executive action or orders of a court, but rather the legislative provisions which purport to support or authorise them to the extent necessary to ensure that infringing activities or orders will not be permissible: and in some cases that may mean that the legislative provision may be wholly invalid[252]. 

     [252]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 56-57 per Brennan J.

275. If the respondent's submission that ss 28(3), 28A and 36A of the Family Court Act 1975 (WA) are unconstitutional to the extent that they purport to authorise orders restricting either directly or indirectly personal movement across state borders be correct, it would also require that Pt VII of the Family Law Act 1975 (Cth) be similarly read down so that the Family Court would also be precluded from making orders having a like effect. To mount her submission the respondent was also forced to point to indirect effects, because, in terms, the order does not operate in relation to the respondent personally, and indeed makes no reference to interstate movement.

276. The principle which the authorities state is that movement by people between states should be able to take place without regard to state borders[253].  Various formulations have been adopted.  Satisfaction of the guarantee of freedom does not require that every form of movement or intercourse must be left unrestricted or unregulated[254]. The freedom of which s 92 speaks must be balanced "against … other interests in an ordered society which must be recognised by the law"[255].  A determination of what (if any) burden might be validly imposed on intercourse or movement depends on the form and circumstances of the intercourse or movement involved[256]. 

     [253]R v Smithers; Ex parte Benson (1912) 16 CLR 99 at 117; Gratwick v Johnson (1945) 70 CLR 1 at 17; Cole v Whitfield (1988) 165 CLR 360 at 393; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 54.

     [254]Cole v Whitfield (1988) 165 CLR 360 at 393; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 56; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 307-308, 333, 366-367, 384, 392, 396.

     [255]Levy v Victoria (1997) 189 CLR 579 at 607 per Dawson J.

     [256]Cole v Whitfield (1988) 165 CLR 360 at 393.

277. It has been held that laws not aimed at intercourse between states but which may place a burden on such intercourse will not be invalid provided that the means adopted to achieve the object of the law are neither inappropriate nor disproportionate[257].  It is right, I think, to say that McHugh J in Cunliffe[258] contemplates a somewhat more strict test of a challenged law than the other Justices in that case:

     "But given that emphatic injunction that the freedom of intercourse is absolute, it is a natural, if not necessary, conclusion that the freedom of intercourse guaranteed by s 92 should be impaired only by laws that are necessary for the government of the nation or its constituent parts. A law is necessary in the relevant sense only if there is a real social need for it and the restriction or burden on interstate intercourse is 'no more than is proportionate to the legitimate aim pursued'[259]. Unless the impact of legislation on the freedom of interstate intercourse is so restricted, the freedom of intercourse that s 92 guarantees would be a freedom that was subject to enacted laws. Such a construction would make s 92 superfluous and fail to give effect to the injunction that the freedom is to be absolute. The words 'intercourse among the States … shall be absolutely free' in s 92 should, therefore, be given their ordinary and natural meaning, limited only by the need to accommodate laws that are reasonably necessary for the government of a free society regulated by the rule of law.

     Obviously, a law that incidentally restricts or burdens interstate intercourse as the consequence of regulating another subject matter will be easier to justify as being consistent with the freedom guaranteed by s 92 than a law that directly restricts or burdens a characteristic of interstate intercourse. But whether the restriction or burden is direct or indirect, it is inconsistent with the freedom guaranteed by s 92 unless the restriction or burden is reasonably necessary for the government of a free society regulated by the rule of law."

     [257]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 58-59 per Brennan J; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 191-196 per Dawson J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 333 per Brennan J, 366 per Dawson J, 384 per Toohey J.

     [258]Cunliffe v The Commonwealth (1994) 182 CLR 272 at 396.

     [259]cf Attorney-General v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109 at 283‑284.

278. The attraction of the test propounded by McHugh J, as I read it, is that, among other things, it places less emphasis on "proportionality" and it appeals to a less uncertain test, of reasonable necessity.  It is unnecessary for me to decide whether I would be free to choose McHugh J's test because, by reference to any of the tests, I do not think that the sections of the Family Court Act 1975 (WA) under attack (and accordingly the force of the challenged order made under them) are rendered invalid by s 92 whether the argument be that the relevant burden is imposed upon the child or the respondent.

279. First, it is relevant but of course not decisive that the sections make no reference to interstate intercourse.  Secondly, they are not aimed at interstate intercourse.  The sections are adapted to achieve their object, of ascertaining and ensuring the best interests or welfare of children, the place of residence of whom will almost always be, if not always be, critical to a child's welfare.  The laws are not disproportionate or inappropriate, and I would regard them as reasonably necessary to secure or protect the welfare of children ordinarily resident in Western Australia.  To the extent that reasonable regulation may also be a test, they satisfy it also[260].

     [260]Samuels v Readers' Digest Association Pty Ltd (1969) 120 CLR 1.

280. The respondent also seeks to invoke international treaties to support the existence of a right to a freedom of movement for a custodial parent[261].  The invocation is sought on the basis that there is a relevant ambiguity in how the statutory powers of the Court should be exercised. 

     [261]International Covenant on Civil and Political Rights (ICCPR); Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); United Nations Convention on the Rights of the Child (UNROC).

281. In my opinion there is no ambiguity in the provisions which define the applicable principles[262] and accordingly I need not decide in this case whether resort may be had to those treaties in aid of the construction of the state law. 

     [262]See Family Court Act 1975 (WA) s 28.

282. The next matter to be decided is whether, in making the orders that the Full Court did, and to the extent that those orders affirmed the ones made by the primary judge, the Full Court and the primary judge made errors of law in exercising the discretions that they did.

283. The respondent presented her case in various ways.  At one point she claimed that the error lay in the failure to decide as a first premise whether she or the appellant should have the custody or guardianship of the child.  Only after that decision was made, the respondent argued, would it have been appropriate to decide whether any order should have been made respecting the residence of the child.  It was the respondent's submission that had the issues been approached in this way the case for the residence of the child with the respondent in the Northern Territory might, or indeed would have borne a different complexion.  This submission required the discrete treatment in a particular order of the issues. Alternatively, the respondent argued, had the welfare of the child, his residence and the circumstances of each of the parents been treated as related but non‑sequential matters as they should have been, the Full Court and the primary judge might, or would have exercised their discretions differently.

284. These submissions do not have regard to the way in which custody cases are usually, and this one was in fact conducted.  It will generally not be possible for a trial judge to construct a framework and environment for the upbringing of a child.  What happens in practice is that those competing for the care and custody of a child will present proposals to the Court to advance the welfare of the child[263].  Judges frequently will be able to mould or adopt such proposals in making orders but rarely will they be able to invent or construct substantially different arrangements for children from those proposed by the parties.

     [263]See Div 4 of Pt VII of the current Family Law Act 1975 (Cth) which defines a parenting plan proposed and made by parents (s 63C) and capable of registration and which may be registered in the Court "having regard to the best interests of the child to which [it] relates" (s 63E(3)).

285. This is very much the situation that existed here.  Counsel who represented the appellant at the hearing before Holden J opened his case in this way:

     "There is really only one issue in my submission, your Honour, and that is where - - or, which principal place of residence - - will best serve the future welfare of this child.

     The - - that issue - - you are presented with three options, effectively, by the parties, in resolving that issue, and those three options are simply: firstly, that the child continues to principally reside with the mother in Perth; secondly, that the child principally resides with the father in Perth; or, thirdly, that the child principally resides with the mother in Darwin, or elsewhere in the Northern Territory.  Now that, essentially, is what this case is about.  Our submission is, that decision having been made, the parties are likely to be able to sort out the final details of the arrangements then to be made for the child.  That has been the history of the parties' dealings with each other, in the 2 years since separation.  They only had to call upon - - not only the court - - but they've only even had to call upon solicitors to try and resolve this issue, of whether the child should be allowed to go to Darwin, or whether he should now take up residence principally with the father.  Being able to simply express the issue, belies the gravity of the matter, and the difficulty in weighing it up, and that's, in my submission, evident from the authorities cited by both myself and my friend, and the difficulty in cases where the merits of both parents are finely balanced." 

286. No exception was taken to the way in which the matter was put on behalf of the appellant and indeed the respondent's counsel responded to the trial judge's invitation to the respondent to state her proposition:

     "HIS HONOUR:  Well, I understand what you're saying.  Let me ask:  if I decide that it is in the child's best interest that the child remain in Perth, what does the mother propose to do?

     MS TURLEY:  Your Honour - -

     HIS HONOUR:  Does she propose to stay in Perth, or go to Darwin?

     MS TURLEY:  Your Honour, the mother proposes to stay in Perth.

     HIS HONOUR:  Yes.  And all of her reasons for wanting to move to Darwin, are as set out in her affidavit?

     MS TURLEY:  Yes, your Honour."

287. The parties maintained and repeated these positions throughout the hearing.

288. Accordingly it is not surprising to discover that a substantial part of the reasons of the trial judge are taken up with the relative advantages to the child of residence in Perth or in Darwin.

289. I can discern no error in the way in which the trial judge set out to exercise and exercised his discretion.  His Honour first summarised the parties' lives as they affected the child.  He next turned to a consideration of the welfare of the child, and understandably referred in this context to the respondent's preparedness to remain in Perth if the Court thought the child should reside there.  He then gave careful consideration to each of the matters that the Family Court Act 1975 (WA) required him to take into account. His Honour next said:

     "This case involves a contest between two capable, caring and loving parents.  They both profess to have nothing but the child's best interests at heart and no doubt that is true.  The unfortunate thing is that they have differing ideas as to what would best fulfil the child's needs and therefore the unenviable task of deciding that matter falls to the Court.  In my opinion, there is one very important factor in this case which separates the parties.  That factor is that ever since [J] was born the mother has been his primary caregiver."

290. And later he said:

     "Given the historical pattern of care for the child, and given the warmth and standard of that care, I cannot see that it would be desirable to now remove the child from the care of his mother unless there was some compelling reason to do so.  In my opinion, no such reason, compelling or otherwise, exists.  Whilst the mother has been administering this care to the detriment of her own personal position, the father has been able to continue working, to continue pursuing his career, to acquire property and commence a family.  For him to now say that the result is that he can provide a better environment for the child is, in my view, unfortunate.  It has been suggested, somewhat critically, that the mother has said some unkind things about the father during the course of these proceedings.  To the extent that that is so one can understand how she may feel.

     For the reasons expressed above, in my opinion, the best interests of the child [J] would be best served by him remaining in the custody of his mother."

291. The possible residence of the child in Darwin was then given extensive consideration. It had to be. It was highly relevant to the child's "education and upbringing" an expression used in s 39A(1) of the Family Court Act 1975 (WA). His Honour discussed the advantages and disadvantages attaching to residence of the child in either of Perth or Darwin. He did not disregard the aspirations of the respondent to order her own life. He acknowledged those aspirations in this unexceptionable passage:

     "In considering the last matter and subject to the welfare of the child being the paramount consideration, a custodial parent and particularly one with sole guardianship of a child should be free to order his or her own life without interference from the other party or the Court[264].  Whilst these are the general principles, the fact remains as was stated by the Full Court in I & I[265] that each case is different and must be approached from the point of view of its own particular facts, bearing in mind the paramountcy of the child's welfare."

     [264]See Fragomeli and Fragomeli [1993] FLC 92-393 and I and I [1995] FLC 92-604.

     [265][1995] FLC 92-604.

292. In the end the primary judge thought the welfare of the child would be better served by his residence in Perth:

     "For all of the child's life he has had the benefit of considerable contact with each of his parents.  Each of them has had considerable input into the child's upbringing.  Although the child has always enjoyed a relationship with members of the extended families, since the mother has moved to Perth he has been brought up in an environment of close interaction with members of both extended families.  From the point of view of the welfare of the child it seems to me that he has been in as an ideal situation as he could possibly be in given that his parents do not live together.  It is my opinion that the welfare of the child would be better promoted by him continuing in that situation in the absence of any compelling reasons to the contrary.  Accordingly, the mother's application for a release from her undertaking will be dismissed and an injunction will be made restraining her from removing the child from the Perth Metropolitan area."

293. I do not take his Honour there in using the word "compelling" to be saying more than that in this case there would need to be strong, indeed compelling reasons, for an order which would allow the child to reside other than in Perth.  His Honour was not purporting to state any general legal principle.  In many cases the happiness of the parents and the extent to which the wishes and hopes of each of them are being fulfilled will be capable of having an impact upon the welfare of children.  However the relevance that a parent's desire to live in a particular place will have must depend upon the circumstances of the case and is susceptible of no statement of general principle. 

294. The Full Court could detect no error in his Honour's approach to the issues which led to the making of the order with respect to residence that he did and nor can I.  The relevant legislation does not require that a judge consider any factor in any particular order.  Sometimes it may be convenient to deal with some matters ahead of others, but the only critical requirement is that whatever approach is adopted it be the one best adapted to the case in hand to the ascertainment of the welfare of the child. 

295. This case was, like so many of these cases, one in which each parent was honestly striving to secure the best interests of the child.  Because each was well intentioned, and suitable as a guardian and custodian, the trial judge was obliged to make some very difficult choices indeed.  What is important is that a court have proper regard to all of the relevant matters in order to determine how and where the best interests or welfare of the child will be served.  It cannot be inappropriate in determining that matter to consider the legitimate aspirations and desires of those who wish to have the custody and guardianship of the child.  This the trial judge anxiously did and has not been shown to be in error in so doing, either in the Full Court or here.

296. I would dismiss both appeals and make no orders as to costs.