Commission submission - Z.P

IN THE HIGH COURT OF AUSTRALIA ) ) No. 12 of 1994 MELBOURNE OFFICE OF THE REGISTRY )

BETWEEN:

Z.P. Appellant and

P.S. Respondent

OUTLINE OF SUBMISSIONS BY COUNSEL FOR THE HUMAN RIGHTS AND EOUAL OPPORTUNITY COMMISSION (INTERVENING)

1. Submissions

The Commission supports the submissions of the appellant in Matter No.12 of 1994 and of the applicant in Matter No.13 of 1994. Its additional submissions are limited to (1) the relevance of the welfare jurisdiction of the Family Court, and (2) a review of relevant comparative international law (written submissions).

2. Submissions in respect of the welfare jurisdiction of the Family Court

The within proceedings, which have been brought by the parents, are for custody. However, from the child's perspective these proceedings are really for his welfare.

With this in mind, the Commission makes three broad submissions:

2.1 international child abduction cases should be considered as being also within the welfare jurisdiction of the Family Court

2.2 once these child abduction cases are considered as being within the welfare jurisdiction of the Family Court, and the child is physically within the jurisdiction, then as a matter of law that jurisdiction should only rarely, if ever, be declined as an exercise of discretion.

2.3 in exercising its welfare jurisdiction, it will be necessary for the Family Court to conduct an appropriately thorough review of the merits.

3. The welfare jurisdiction of the Family Court

3.1 No Australian court has yet decided the question of whether child abduction cases fall within the Family Court's welfare jurisdiction: cf. Murray v. Director. Family Services. A.C. T. (1993) F.L.C. 92-416, at pp.80,258 -80,259.

3.2 The 1983 amendment to s.64(1) of the Family Law Act 1975 (Cth) conferred on the Family Court a welfare jurisdiction that has been held to be broadly analogous to the parens patriae jurisdiction: see Secretary, Department of Health and Community Services (1992) 175 C.L.R. 218 ("Re Marion"), at pp.256, 258, 294 and 318.

3.3 It is submitted that children - at least those Physically within the jurisdiction - have a clear legal entitlement (or expectation) to rely and depend on the court's protection supervision and/or protection through the parens patriae jurisdiction: see McKee v. McKee [1951] A.C. 352, at p.360 (approved generally by this Court in Kades v.Kades (1961) 35 A.L.J.R. 251, at p.254); Re P(GE) (an infant) [1965] 1 Ch. 568, at p.582, 584-585, 587-Ɍ Re Kernot (an infant) [1965] 1 Ch. 217, at pp.222-ß Re L (Minors) [1974] 1 W.L.R. 250, at pp.264-ĉ Re R (Minors) (1981) 2 F.L.R. 416, at pp.419, 423-Ʃ Re Eve (1986) 31 D.L.R. (4th) 1, at pp.18, Lowe and White, Wards of Court, (1979) at pp.15-16, 25-26 and 324-360.

This position is analogous to any person's absolute entitlement to rely on the court on habeas corpus: see Re P(GE) (an infant), at p.582, per Lord Denning M.R.

The above principles are consistent with the statements of this Court in Re Marion. In that case this Court held, inter alia, that the parens patriae jurisdiction "springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind": Re Marion, at p.259 (emphasis added). See also Re Marion, at p.258.

3.4 It is therefore the Commission's submission that the situation of abducted children - once raised before the Family Court -must fall squarely within the scope and responsibility of that Court's protective and supervisory welfare jurisdiction, for otherwise is for the Court to ignore its duty and the reality that the removal of children has a major impact on their welfare (one way or another). Cf. McOwan and McOwan (1994) F.L.C. 92-451, at pp.80,689, 80,691 -80,692.

4. The exercise of the Family Court's discretion to decline its welfare jurisdiction

4.1 Because of its carefully guarded and responsible nature, courts have always been loath to decline exercise of the parens patriae jurisdiction when the child is physically within the jurisdiction: see Re Kernot (an infant), at pp.222-ß In re S (M) (an infant) [1971] 1 Ch. 621, at pp.624-ɱ Re P (GE) (an infant), at p.582, 587-Ɍ Re L (Minors), at pp.264-ĉ Re Eve, at p. see par.3.3 above.

It is probably the case that there is in fact no practical discretion in the courts to refuse to exercise the parens patriae jurisdiction when the child is physically within the jurisdiction given that (1) it is a protection owed (originally by the Crown) to children, and (2) no English court appears to have used its discretion to decline the exercise of its parens patriae jurisdiction in these circumstances (as to possible extremely limited exceptions: see Re Kernot (an infant), at pp.222-223).

It is submitted that these principles relating to the parens patriae jurisdiction are equally applicable to the analogous welfare jurisdiction of the Family Court. Indeed, with the exception of the within case, it appears that no Australian court has ever declined to exercise jurisdiction when the child was physically in the jurisdiction.

4.2 Any other approach to the discretion as to jurisdiction (e.g. forum non conveniens) in child abduction cases must be of little or no weight when the child is physically within the jurisdiction of the court for otherwise is to deny the clear importance and relevance of the child's present physical circumstances to its welfare and would be akin to an abdication of jurisdiction by the court: see Re R (Minors), at pp.426-427. See also Re L (Minors), at p.Ĉ Re Kernot (an infant), at p.222.

To the extent that the Full Court of the Family Court stated differently in Scott and Scott (1991) F.L.C. 92-241, at pp.78,639 -78,640, the decision is distinguishable because it was dealing with a child who was not physically within the jurisdiction. It is submitted that different principles as to the discretion as to jurisdiction may apply when the child is not physically within the jurisdiction: see El Alami and Ei Alami (1988) F.L.C. 91-930, at pp. 76, 728 -76,˙ Erdal and Erdal (1992) F.L.C. 93-Ĥ Taylor and Taylor (1988) F.L.C. 91-ί In re S (M) (an infant), at p.625.

5. The need for hearings and findings as to the merits

5.1 It is submitted that once the welfare jurisdiction is assumed, child abduction cases must usually demand a court's inquiry as to the merits for the following reasons:

5.1.1 In order that the Family Court can discharge its direct responsibility that there is not even an "apprehension or suspicion" that the child is in need of protection or care: see Re Eve, at pp.18, 28.

5.1.2 In order that the child can have its views and interests conveyed to the court and appropriately taken into account: see Re R (Minors), at pp.419, ƫ Re Marion, at pp.237-238.

5.1.3 In order that the Court can perform the function of providing a procedural safeguard: cf. Re Marion, at pp.249-252.

5.2 Of course, in some cases it will be clear that expedited hearings and peremptory orders guided by appropriate principles will be in the best interests of the child: see especially Re L (Minors), at pp.264-265 (followed and approved in Khamis and Khamis (1978) F.L.C. 90-486, at p.77,521, per Watson S.J.; Mittelman and Mittelman (1984) 9 Fam.L.R. ˔ Re R (Minors), at pp.425-ƪ In re C (Minors) [1977] 3 W.L.R. 561, at pp.566-567).

6. Comparative international law

Separate written general submissions as to the law applicable internationally in relation to abducted children and the relevant international conventions are provided.

Last updated 6 September 2002.