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, 587-588; Re Kernot (an infant)
[1965] 1 Ch. 217, at pp.222-223; Re L (Minors) [1974] 1 W.L.R. 250, at
pp.264-265; Re R (Minors) (1981) 2 F.L.R. 416, at pp.419, 423-425; Re
Eve (1986) 31 D.L.R. (4th) 1, at pp.18, 28; 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.222-223; In re S (M) (an infant) [1971] 1 Ch. 621, at pp.624-625;
Re P (GE) (an infant), at p.582, 587-588; Re L (Minors), at pp.264-265;
Re Eve, at p.28; 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.264; 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 -76,729; Erdal and Erdal (1992) F.L.C. 93-292; Taylor and Taylor (1988)
F.L.C. 91-943; 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,
427; 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. 724; Re R (Minors), at pp.425-426;
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.