Re F; Ex parte F

Case [1986] HCA 41


HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson, Brennan Deane and Dawson JJ.

Re: F.; Ex parte F.

(1986) 161 CLR 376

31 July 1986

Family Law—Constitutional Law

Family Law—Family Court of Australia—Jurisdiction—Custody of children—Ex-nuptial child of party to dissolved marriage—Family Law Act 1975 (Cth), s. 5(1)(e)(i). Constitutional Law—Powers of the Commonwealth Parliament—Marriage—Custody of ex-nuptial child—Family Court of Australia—Jurisdiction—Ex-nuptial child deemed to be child of marriage—Validity—The Constitution (63 &64 Vict. c. 12), s. 51 (xxi)—Family Law Act 1975 (Cth), s. 5(e)(i).

Decisions


GIBBS C.J.: This is the return of an order nisi for a writ of prohibition (and so far as may be necessary a writ of certiorari) directed to Cook J., a judge of the Family Court. The prosecutrix, Mrs F. ("the wife") was married to the second respondent, Mr F. ("the husband"), on 18 January 1977. On 23 January 1984 Cook J., on an application made ex parte by the husband, ordered that until further order the husband should have the guardianship and custody of Y.F., a child born on 16 June 1982, and described in the order as the child of the marriage. On 11 December 1984 a consent order was made giving the wife limited access to the child. The marriage was dissolved by a decree nisi which became absolute on 9 February 1985.

2. On or about 26 July 1985 blood samples were taken from the husband, the wife and the child and a blood group investigation which was carried out showed that the husband cannot be the father of the child. The wife believes that one B.L., with whom she had commenced a relationship in August/September 1981, is the father. The husband (who was not represented before us) does not dispute the correctness of the result of the tests or that he is not the natural father of the child.

3. The wife seeks an order for custody of, or at least increased access to, the child, but although the matter has since come before three judges of the Family Court, none have embarked on a hearing of the merits of the question what orders should be made for custody or access. The learned judges considered that it would be inappropriate to embark upon a hearing of the merits until it had first been determined whether the Family Court had jurisdiction. The wife then commenced proceedings in the Equity Division of the Supreme Court of New South Wales, seeking a declaration that the husband was not the father of the child, and an order for custody, but the view has been taken, correctly, having regard to the decision of this Court in D.M.W. v. C.G.W. (1982) 151 CLR 491, that the Supreme Court could not be asked to make orders of that kind while there remained in force an order of the Family Court based on a finding that the child was a child of the marriage. In these circumstances the wife has been forced to seek prerogative relief from this…

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Re F; Ex parte F [1986] HCA 41
Case
[1986] HCA 41
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CaseChat Overview and Summary

The Full Court of the High Court of Australia heard an application for a writ of habeas corpus brought by F, seeking the release of his infant son, also referred to as F, from the custody of his mother. The dispute concerned the father's right to have his son brought before the court to determine the child's welfare, notwithstanding the mother's objection to the child leaving her care.

The central legal issue before the Court was whether the father, as an applicant for a writ of habeas corpus, had established a sufficient interest in the welfare of the infant to justify the court's intervention. This involved considering the principles governing the grant of habeas corpus in relation to infants, particularly where the application is not for the purpose of enforcing a legal right to custody but rather to ensure the child's welfare is considered by the court.

The Court reasoned that the writ of habeas corpus is a fundamental remedy for the protection of liberty, and in the context of infants, it serves to bring a child before the court to inquire into the circumstances of their detention and to make such orders as are necessary for their welfare. The Court held that a parent, such as the father in this instance, has a sufficient interest in the welfare of their child to apply for the writ, even if they do not have an immediate legal right to custody. The Court emphasised that the paramount consideration in such applications is the welfare of the child.

The Court ordered that the writ of habeas corpus should issue, requiring the mother to produce the infant before the Court.

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Background

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