P v S

P v S - [1994] HCA 29 - HCA 1994 case summary — Zoe

[11]

It is now established that Pt VII has invested the Family Court with a welfare jurisdiction that is similar to the parens patriae jurisdiction exercised by the Court of Chancery but which is freed from the preliminary requirement of a wardship order [1] . In the exercise of the parens patriae jurisdiction, the Court of Chancery has always been guided by the principle that the welfare of the minor is the first and paramount consideration [2] . In exercising the parens patriae jurisdiction or a statutory jurisdiction which makes the welfare of the minor the first and paramount consideration, that Court always makes an independent judgment on any question concerning the custody of a child and cannot blindly follow an order made by a foreign court [3] . Because the welfare jurisdiction of the Family Court is similar to the parens patriae jurisdiction of the Court of Chancery, the Family Court must also form an independent judgment as to what the welfare of the child requires notwithstanding the existence of any custody order made by a foreign court. Moreover, proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression because the Court is not enforcing a parental right to custody or access [4] . Its duty is to make such order as will "best promote and protect the interests of the child" [4] . It follows that, when a child is within the jurisdiction of the Family Court, the doctrine of forum non conveniens has no application to a dispute concerning the custody of the child [5] . Injustice to one or other of the parties, expense, inconvenience and legitimate advantage, which are always relevant issues in a forum non conveniens case [6] , are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum. When the Family Court is seized of jurisdiction in relation to the custody of a child, its duty is to exercise its jurisdiction.

[42]

From the foregoing account, it is plain that his Honour did not apply the correct principles in determining the application for custody. First, it should be noted that in a case such as the present, where the Family Court has jurisdiction, no question of exercising a "discretion in favour of exercising that jurisdiction" arises. Either the welfare of the child requires that a summary order should be made or it does not. If the Court concludes that a summary order is not required, the welfare of the child requires that the Court investigate the issue of custody. No doubt the judgment of the Court is properly described as a discretionary judgment in that the Court must weigh various factors in determining what the welfare of the child requires. However, it is erroneous to speak of the Court having a discretion to determine the issue of jurisdiction. Second, his Honour saw the determinative factor as the unilateral removal of children from one country to another which had to be discouraged because it was totally contrary to their welfare. It may be accepted that, generally speaking, unilateral removal of a child from one country to another is detrimental to the welfare of the child. However, it is the duty of a judge to determine what the welfare of the child requires without regarding that question as being foreclosed simply because the child has been removed unilaterally from one country to another. In the present case, the primary judge was entitled to have regard to the ordinary consequences of unilateral removal of the child from one country to another but it was his duty to go on to investigate the materials before him and, if considered appropriate, determine the question of custody of Dimitrios. If his welfare required that the Family Court should determine the question of his custody, it was irrelevant that abduction of children by one of their parents is generally contrary to the welfare of such children. Furthermore, whether the husband or wife was or was not at a disadvantage or would or would not obtain an advantage if the custody issue was litigated in Australia was of no relevance. In referring to these factors, his Honour was diverted from the issue that he had to determine. Finally, the matters raised by the wife were not of minimal significance or important only on a final hearing of the custody issue. They went to the question whether the welfare of Dimitrios required the making of a summary order or a hearing by the Family Court of the matters raised by the wife. In stating that they were of minimal significance, his Honour failed to give sufficient weight to them.

[53]

Notwithstanding those passages in the judgment of Kay and Graham JJ. which suggest that they saw the case as one primarily concerned with competing jurisdictions, their judgment, when read as a whole, shows that they decided the real issue in the case. At all events, their Honours' judgment indicates that they thought that the welfare of the child as well as the forum non conveniens principle required the making of the orders that Mushin J. made. Although they concluded that the result reached by Mushin J. was plainly correct, they did not accept his Honour's reasons. They correctly perceived that the Court ultimately had to focus on the interests of the particular child, and they concluded that "the interests of this child require that issues relating to his welfare be determined by the courts in Greece" (our emphasis). It is true that the judgment of Kay and Graham JJ. referred to matters which are open to criticism if their Honours regarded them as relevant to the welfare of the child. But it seems probable that their Honours referred to those matters because they were considering both the Voth test and the test of the welfare of the child. Furthermore, their Honours' reference to almost all of the witnesses residing in Greece was clearly relevant to the welfare issue as well as to the forum non conveniens issue [28] . The residency of witnesses is relevant to the welfare issue because it is an important factor in determining whether the Family Court or the foreign forum is likely to be the tribunal that is best informed on the issues concerning the welfare of the child. In the present case, the fact that almost all of the witnesses were resident in Greece supported the argument that it was in the best interests of Dimitrios to have issues concerning his custody resolved by the courts of that country. Finally, once their Honours identified the best interests of Dimitrios as the determinative factor, it is difficult to conclude that the reference to those matters referable to the forum non conveniens principle were decisive factors in their Honours' decision "that the interests of this child require that issues relating to his welfare be determined by the courts in Greece".

[66]

Broadly, we think that the test may be stated as being that an Australian court whose jurisdiction has been properly invoked in custody proceedings, will exercise the same unless it is demonstrated that it is a clearly inappropriate forum. This will be demonstrated by showing that the welfare of the child requires that the proceedings be determined elsewhere or, failing that, that it is vexatious or oppressive for the proceedings to continue in the Australian court. "Accordingly", Mushin J. held - in order to succeed the applicant husband must demonstrate that this is a "clearly inappropriate forum" for these proceedings to be heard. In determining that issue, I must give full weight to the prescription of s. 64(1)(a) of the Act which requires that the welfare of the subject child be the paramount consideration. His Honour reconciled the Voth test of "clearly inappropriate forum" with the requirements of s. 64(1)(a) by reference to what the Full Court had said in Van Rensburg and Paquay [31] : It is well accepted that if a factor relevant to the welfare of the child appears clearly on the evidence such as that the child has been removed unilaterally by a parent from its long established environments, such factor must be given determinative effect in accordance with the statutory instruction that the welfare of the child is the paramount consideration in s. 64(1)(a) of the Act. With respect, the proposition that any single factor which "appears clearly" must be given a "determinative effect" manifestly mistakes the many-factored nature of the concept of welfare. Although his Honour noted that there were a number of factors that tended to show that the welfare of Dimitrios would best be served by leaving him in his mother's custody in Australia, he regarded those factors as of "minimal significance" in determining the father's application. His Honour held that - The fundamental issue is the unilateral removal of the child from Greece where he was born and raised and where there were, at the time of that removal, extant orders of a court of competent jurisdiction including an agreement and order that the child should not be removed from Greece. His Honour made orders designed to ensure that Dimitrios would be returned to Greece at the father's expense and that the cost of the mother's return to Greece would be met by the father. 1. (1911) 104 F.L.R. 320, at pp. 327-328; 14 Fam. L.R. 873, at pp. 879-880; [1991] F.L.C. 92-241, at p. 78,640. 2. (1990) 171 C.L.R. 538. 3. (1911) 104 F.L.R. 320, at pp. 327-328; 14 Fam. L.R. 873, at pp. 879-880; [1991] F.L.C. 92-241, at p. 78,640. 4. (1993) 16 Fam. L.R. 680, at p. 683; [1993] F.L.C. 92-391, at p. 80,011.

At a glance

Court

Decision date

Before

Source

Judgment (114 paragraphs)

Parties

Legislation Cited (1)

Cited By (1)