Pascarl v Oxley

[2013] HCASL 195

PASCARL

v

OXLEY

[2013] HCASL 195
B46/2013

1. The applicant and respondent are the father and mother of a child, born in 1997.  The parties and their child are citizens of the United Kingdom.  The applicant seeks contact with the child in various forms.  The applicant is currently incarcerated in Australia and the whereabouts of the respondent and the child are unknown.

2. On 16 October 2001, the applicant was convicted in the District Court of New South Wales of two counts of soliciting the murder of the respondent and her new partner.  While in detention, the applicant was convicted of a second and separate offence of soliciting the respondent's murder.  The applicant remains in custody.

3. The applicant filed four applications seeking various parenting orders.  On 11 March 2011, the Family Court of Australia (Barry J) declined jurisdiction to decide the matter because the Courts of England and Wales were seized of jurisdiction and because his Honour was not satisfied that the respondent or the child were within the jurisdiction of Australia at that time.  The applications were dismissed.

4. The applicant appealed to the Full Court of the Family Court of Australia, arguing that the primary judge applied the wrong test when determining whether Australia was an appropriate forum and that the primary judge fell into error by not making orders to establish the present location of the child.  On 26 March 2013, the Full Court (Bryant CJ, Faulks DCJ and Finn J) held that it did have jurisdiction to decide the matter, on the basis that the test to be applied is whether the exercise of jurisdiction would be in the best interests of the child, as the paramount consideration.  As to the making of the orders sought, the Full Court did not consider them to be in the child's best interests and dismissed the appeal. 

5. The applicant requires an extension of time in which to commence his application for special leave to appeal.  No question of principle falls for determination.  The grounds relied upon by the applicant disclose no reason to doubt the correctness of the decision of the Full Court.  That being so, there would be no utility in granting the applicant an extension of time.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.
   
   

S.M. Kiefel
13 December 2013 P.A. Keane