S v S; Re The Hon Justice William Brian Treyvaud; Ex Parte S

[1991] HCATrans 257

~

~ ',,.~-~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M39 of 1991

B e t w e e n -

§.

Applicant

and

§.

Respondent

Application for special

leave to appeal

Office of the Registry

Melbourne	No M41 of 1991
In the matter of -

An application for Writs of

certiorari and mandamus

directed to THE HONOURABLE

JUSTICE WILLIAM BRIAN

TREYVAUD, a Judge of the

Family Court of Australia

and THE HONOURABLE

CHIEF JUSTICE ALISTAIR

s	1	5/9/91
BRENNAN J DEANE J TOOHEY J

BOTHWICK NICHOLSON, THE

HONOURABLE JUSTICE ALAN

JAMES BARBLETT and THE

HONOURABLE JUSTICE NAHUM

MUSHIN, Judges of the Family

Court of Australia

Respondents

Ex parte -

§.

Prosecutor

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 5 SEPTEMBER 1991, AT 11.05 AM

Copyright in the High Court of Australia

MR F.CALLAWAY, QC:  May it please the Court, in this matter

I appear with my learned friends, MR C.B. MALPASS,

MR G.P. THOMPSON and MS P.L. SHIFF, for the

applicant in the first matter and for the

prosecutor in M41 of 1991.	(instructed by Telfer &
Graham)

MS M. BACZYNSKI:  May it please the Court, I appear for the

respondent in the first matter. (instructed by

Shatin & Bernstein)

BRENNAN J:  The Deputy Registrar has certified that she has

received a letter from the Australian Government

Solicitor advising that the respondents do not wish

to appear at the hearing of the second matter and

will abide any order of the Court, save as to

costs.

Yes, Mr Callaway.

MR CALLAWAY:  May it please Your Honours, in this matter

there are, in our respectful submission, two main
issues.	The first is whether the Full Court of the

Family Court was correct in upholding

Justice Treyvaud's decision not to hear the custody

application on its merits. The second is whether

Their Honours were correct in applying Voth v

Manildra Flour Mills to a custody application.

In .t~e context of the special leave

application, it is submitted that those issues are

of the kind of importance which might be thought to

warrant the intervention of this Court for two,

admittedly, disparate reasons. The case concerns

the guardianship and custody of a child; of a child

who was born in November 1983 and has been

separated from her mother since May 1985, indeed

s 2 5/9/91

has been separated from her father since 1986; and

the propriety or otherwise of the Family Court of

Australia not embarking on a hearing as to that

custody, a decision upheld by the Full Court. If

it was simply a single justice who had made such a

decision, it might be difficult to say that was a

special leave point, but the Full Court has upheld

that decision so that it becomes a precedent for

the future.

So far as the second issue is concerned, there

are two aspects. The first is the jurisprudential aspect of whether it is appropriate at all to take

a case like Voth v Manildra Flour Mills, which is

concerned with the justice between plaintiff and

defendant, and to apply it to a case concerning the

custody of a child. Later I will develop the

submission that it is just inapposite. But it is

not only, in our respectful submission, an

inapposite development or application - or

respectfully, misapplication of Voth, it also

involves the Full Court expressly disagreeing with

the right approach in earlier decisions of the Full

Court of the Family Court as recently as 1987 and

1988, those cases being El Alami and Taylor, and

Their Honours say expressly in the judgment that they take a different view from the view expressed in those cases. Broadly, the view taken by Full

Courts in El Alami and Taylor was that the welfare

of the child is the paramount consideration; that
difficulties of enforcement and so forth are

subservient to that issue.

The Full Court in this case has said, in

effect, no, the right approach is to ask whether

the Australian court is a plainly inappropriate

forum.

TOOHEY J:  I wonder is that right, Mr Callaway. I rather

thought that what the Full Court had said was that
the primary judge had erred in failing to treat the

welfare of the child as a paramount consideration

but that there was very little room for the

application of that principle to the facts of the

present case. I am not to be taken as endorsing

that approach but just trying to understand the way

in which the Full Court approached the matter.

MR CALLAWAY:  Your Honour, may I illustrate the submission

by asking the Court to turn to page 50 of the
application book and although it is reading back to
front, if Your Honours would look first at the foot
of page 50, the third last line, the Full Court

says:

Accordingly, we think that the forum non

conveniens rules should normally be applied by

s 3 5/9/91

this Court. To this extent we would therefore

differ with the views expressed in El Alami

and Taylor's case -

Now, what Their Honours ~ean by that is illustrated by a passage higher up on page 50, beginning at

about line 6:

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.

That is the question Their Honours pose.

This will be demonstrated by showing that the

welfare of the child requires that the

proceedings be determined elsewhere -

In our respectful submission, that is to put the

matter the wrong way round. The question, we would

submit the only question in custody proceedings is

the welfare of the child.

TOOHEY J:  The passage I had in mind, Mr Callaway, is on page 46 at the top of the page.

MR CALLAWAY:  Yes. Your Honour, we would submit in regard

to that and other passages concerning the child's

welfare in the Full Court judgment that

Their Honours must have taken an unduly narrow view

of the meaning of welfare.

TOOHEY J: Yes, I understand that submission.

MR CALLAWAY:  But the submissions are not connected, if

Your Honour pleases, because if one concentrates

on forum conveniens it moves the focus and the mind

is turned away from the welfare of the child. It

encourages a narrow view of welfare so that the

mind hastens to the question of injustice. So that in the passage on page 50, true it is Their Honours

having posed what we submit is the wrong question,
whether the Australian courts are clearly an

inappropriate forum, certainly then turn first, but unfortunately as a subsidiary issue, to the welfare of the child. But then Their Honours say, failing

that, the question is whether it is vexatious or

oppressive for proceedings to continue in the

Australian court.

If one focuses on forum conveniens it is not

surprising if it leads to a narrow view of the

welfare of the child and it is not surprising if

the mind hastens to questions of vexation and

s 5/9/91

depression which, of course, are of the essence of

forum conveniens in ordinary in personam litigation

but, in our submission, are really wholly

irrelevant in proceedings concerning custody. One

is not concerned with the relative position of the

husband and wife; one is concerned, and concerned

only, with the child.

Your Honours, on the first issue, the refusal to hear the case on the merits aspect, perhaps the best way in in these materials is to ask

Your Honours first to look at page 42 just to put

the matter in context. At the top of page 42 the
Full Court says:

In the proceedings before Treyvaud J, the wife sought custody of Jessica. His Honour

found it necessary to consider two matters

prior to dealing with that substantive

application.

So this is not a case where the judge has heard all

the evidence, heard all the submissions, and

decides that the welfare of the child dictates that

the Australian court make no order. That would be

totally different. We are not suggesting that an

Australian court must always make an order relating

to custody. What happened here was that as a

preliminary matter the learned judge decided that

it was not appropriate to embark on the hearing

and, indeed, that is the way His Honour put it. At

page 51 the relevant passage is set out in the Full

Court judgment. His Honour said:

I find it a waste of the parties' and/or the

community's financial and legal resources to

require this Court to embark on the exercise

of deciding the question of the custody of the

child -

and then His Honour refers to three of the

considerations that have moved him to that

conclusion. The reason we seek special leave is

not because we were not granted custody; the reason

we seek special leave is that we were not heard.

It is submitted that that, in itself, would be a

sufficient reason for granting special leave as it

was upheld by the Full Court of the Family Court.

But one is aware that the Court would not wish to

grant special leave in a case where the issue was

jurisprudentially important but arid in practical

results. What influenced the judges in the courts
below was the difficulty of enforcement in Egypt,

the difficulty of actually securing the return of

this little girl to Australia. But the judgments

show that there is a prospect of practical success

if, after a hearing, my client can persuade the

s 5 5/9/91

Family Court to make appropriate orders because the advice of the Egyptian attorney, which was set out at length in Justice Treyvaud's judgment, suggested

in effect that the husband should make application

to the Egyptian authorities, given the fact that

they would not accede to an application by the wife

on religious grounds.

Both husband and wife are in this country.

They are both amenable to the jurisdiction.	So
that if, after a hearing, the applicant can
persuade the Family Court that it is in the

interests of the child that she be returned to

Australia, appropriate coercive orders can be made

against the husband if necessary, requiring him to

take such steps in Egypt as may be necessary to

secure the release of the child. The practicality

of that course is illustrated by this very case

because, at an earlier stage, Justice Treyvaud had

given a direction addressed to both parties that

they take steps in Egypt to secure the custody of

the child.

So it is not an arid exercise. There is a

prospect of success at the end of the day. And there are cases in the Full Court of the Family

Court referring to the importance of parties being

in the jurisdiction and amenable to the

jurisdiction and there are cases in the Full Court

saying that though there may be difficulties of

recognition or enforcement in a foreign country, if
the parties are in the jurisdiction the court can

exercise its coercive authority.

BRENNAN J:  Mr Callaway, what is the term of the Egyptian

order thus far? Is the child's aunt presently

appointed as a guardian of the child?

MR CALLAWAY:  The child's aunt has been given custody. May

I take Your Honours to the Egyptian judgment,

because I would have to do so in any event.	A
translation is set out in the application book
beginning at page 82.	I should say there are two

typographical errors on page 82. It is the Family

Court of Damanhour Governorate, rather than

Government, and the date of the judgment was

28 January, not 28 February 1988.

In answer to the question of Your Honour the presiding Justice, the actual decision of the

Egyptian Court appears on page 89 and what it says

at line 24 of page 89 is:

This Court is now issuing this Order for

the Applicant -

that is the child's paternal aunt -

s 6 5/9/91

versus the absent Defendants for the removal

of the right of custody of -

my client -

of her daughter Jessica and for the custody to

go to the child's aunt -

So that is what the Egyptian Court has said -

and for the child to be prohibited from

travelling to Australia -

Your Honours, while the Court has the Egyptian

decision open before it, might I invite the Court's

attention to another aspect of it. If this

application is unsuccessful it will mean that the

wife's case - her submissions about the welfare of

her daughter - will not be heard by any court

because it is plain from the Egyptian judgment that

it would not be possible for the wife to go to

Egypt or make useful submissions to an Egyptian

court. The wife converted to Islam on marrying the

husband and then returned to her Christian faith;

then later converted again to Islam and then again

returned to her original faith. A very serious

view of that apostasy has been taken by the

Egyptian Court. If Your Honours would look first

at page 85 at line 27, reading at the end of that

line:

as the second defendant (the wife) has

forsaked Islam as she has admitted and has

done so freely and willingly she become

unqualified for the custody, ex jure she

should be jailed until going back to Islam or

die which does not enable her to care for the

child and looking after her needs as per law - Now, one does not have too much confidence in these

translations but the same thing is said on two

other occasions in the decision.

Egyptian Court speaks of the kind of persons who On page 87 the

are disqualified from the award of custody and

reading at line 55 or 56:

she also -

that is a woman granted custody -

should not be a religion diverter because a

diverter is a dishonest person who will be

jailed for divertion, thus becomes unable to

look after the child -

Their Honours then explain what is meant by a

diverter. Again, on page 88 at line - - -

s 7 5/9/91

BRENNAN J:  I think you have made your point about that.

What is the obligation on courts of this country

with respect to the recognition of the decree that

is at these pages?

MR CALLAWAY:  To take it into account, Your Honours, but it

is not in any sense conclusive and there is the

highest authority for that. The case frequently

cited is the decision of the Privy Council in McKee

v McKee, (1951) AC 352. That was a case where a

Californian court had made an order for custody.
The question came before an Ontario court and

Their Lordships held that whilst it was proper to

give weight to the foreign judgment, the Ontario

court bore its own responsibility for deciding what

should be done and Their Lordships emphasized that

the paramount consideration to which all else

yields is the welfare of the child.	The critical
passage is at page 365:

It is the law of Ontario (as it is the law of

England) that the welfare and happiness of the

infant is the paramount consideration in

questions of custody. So, also, it is the law

or Scotland and of most, if not all, of the

States of the United States of America.

I read that to Your Honours because it is relevant to another aspect of the submissions, the change in

direction, as we would submit, in the Full Court of

the Family Court of Australia. Their Lordships
continue:

To this paramount consideration all others yield. The order of a foreign court of

competent jurisdiction is no exception.

That was approved by this Court in Kades v Kades which, I am told, is not in the Commonwealth Law

Reports but was decided in 1961 and is reported in

35 ALJR 251. There, an order for custody had been

made in New York but at page 254, in the joint

judgment of the Chief Justice Sir Owen Dixon and

Justices McTiernan, Kitto, Taylor and Windeyer,

Their Honours said:

The courts in Australia have complete

jurisdiction over the question of the custody

of the child -

I should say that child was in Australia, as was

the child in Ontario, but Your Honour asked me the
question about the degree of recognition to give to

the foreign decree.

The order of the Supreme Court of New York is

a factor which must be considered but the

s 5/9/91

responsibility lies with the courts here and

the welfare of the child remains the paramount

consideration, McKee v McKee.

BRENNAN J:  I can understand that when the jurisdiction

undoubtedly attaches to the child present in the

jurisdiction but if the child is in Egypt, has been

there for some years, and there is a decree of an

Egyptian Court, is the situation the same?

MR CALLAWAY:  Your Honour, in our submission it is certainly

the same, that the Egyptian Court's decree is not
binding. There can be no decision binding

internationally in rem in respect of the custody of

a child. It is a matter to be taken into account

and given such weight as it deserves but - I do not

wish to labour the point - after a hearing on the

merits. It may be - we would hope to persuade the

Family Court otherwise - that after a hearing, the
Family Court considers that the sort of factors to

which Your Honour has just referred make it

appropriate to exercise its jurisdiction against

granting an order.	We would hope to persuade the
court not, but after a hearing.	The mere fact that

the child is in Egypt does not alter the non-

binding status of the foreign decree. After all,

the child is an Australian citizen. Both the

parents are Australian citizens.	She is separated
from both her parents.	She is certainly separated
in the most tragic sense from her mother.	They are

all the factors that need to be taken into account

before a decision can be reached, not in a
preliminary way, to say the difficulties of

enforcement are such that the parties' resources

and the public resources should not be wasted.

With respect, the public resources allocated to the

court system are for determining those issues.

If it takes time, and at the end of the day a decision is made that an order should not be made, those resources are not wasted because those

resources have been used for the purpose of

deciding, on the merits, what should happen to this

little girl.

DEANE J: Is what the trial judge said at page 51, namely

that the court would be required: to embark on the exercise of deciding the

qu~stion of the custody of the child, who has

lived in Egypt for the past five of her six

years' existence, in relation to whom nothing

affecting her welfare is known -

is that accurate?

s 9 5/9/91

MR CALLAWAY:  It depends on the view of welfare one takes,

Your Honour.

DEANE J:  Was there going to be any evidence about the

conditions she was living in and so on?

MR CALLAWAY:  As I understand it, that evidence was not

available. We do not have that kind of evidence,

Your Honours, but there is nevertheless material

about the child's welfare.	May I ask Your Honour
to turn to page 54.	At line 21, Their Honours say:

The remaining grounds of appeal -

that is the appeal from Justice Treyvaud -

concern discretionary matters. They attack

the exercise of his Honour's discretion on the

basis that he failed to give appropriate or

sufficient weight to Jessica's Australian

citizenship, the Respondent's conduct in
possibly taking Jessica to Egypt without the
Appellant's knowledge or consent, the

Respondent's failure to return to Australia with Jessica and the Appellant's attempts to achieve Jessica's return to Australia. In

this regard, his Honour made the following

finding:

"I find that the fact that the husband may
well have taken the child to Egypt without the

knowledge or consent of the wife and the fact

that the child has Australian, as well as

Egyptian, citizenship, are not factors which

now touch on the child's welfare."

Their Honours say:

On the facts of this case we respectfully

agree with his Honour's finding. We would

also place the matter of the Appellant's

attempts to secure the return of the child to

Australia in the same category. They also have no bearing on the issue of whether the

forum is clearly an inappropriate forum.

Your Honours, true it is we have difficulty in

leading evidence about the child's daily
conditions, her schooling, her clothing and so

forth, but we submit that it is an error of law to say that her citizenship is irrelevant and that it is an error of law to say that it is irrelevant

that her father, in Justice Treyvaud's words, may

well have taken her to Egypt without the knowledge

or consent of the applicant before this Court.

Those matters bear on a child's welfare. The

s 10 5/9/91

separation of a child from her parents bears on a

child's welfare.

Now, it is true that at the end of the day

after a hearing the material may be fairly sparse,

but it is still the only material on which the

welfare of the child can be determined. In a

different context, different in the sense that it

was not a forum non conveniens, in Smyth's case in

1983 or thereabouts, the Full Court of the Family

Court said that when you are dealing with custody

and the welfare of a child and the factors appear

to be evenly balanced, you do not then go and look

at some other factor - in that case it was the

alleged misconduct of one of the parties - what you

do is to go back to the drawing board and decide,

of the factors that appear to be evenly balanced,

which one should be given greater weight because

one must in the end decide, on however little

material may be available, what the welfare of the

child requires.

DEANE J:  Would your case, in so far as the principles of

law are concerned, be any different, putting to one

side your preference for an Australian court, by

reason of the religious consideration?

MR CALLAWAY: In the final analysis, Your Honour, it would

not be, because our final submission would be that

the Family Court is always obliged to hear a party

that has regularly invoked its jurisdiction.

DEANE J: That is the point, is it not? I mean, assume that

in this case the child had been in Egypt for six years by reason of the actions of one of the two parents and was there with the authority of that parent. Putting to one side the question of the religious problem in this case, it would seem to me

to be obvious to the state of being

incontrovertible that the Egyptian Court was the

appropriate court and the Australian Court was

clearly inappropriate as a forum for deciding

custody. Having put all that to you, is the

question at the forefront of this case that no
matter how completely inappropriate the Australian

Court is to deal with the custody of a child in the

jurisdiction of the courts of another country, if

the two parents happen to be in the country, the

Family Court has to go through the whole of the

hearing o.n the basis that it is deciding who has

custody of the child?

MR CALLAWAY:  Of course Your Honour's question is directed

only to the first issue, not to the Voth v Manildra

issue. In response to that - - -

s 11 5/9/91

DEANE J: Except they seem to me to be very closely related

in that if you cut out the religious problem, I
really do not see that you can isolate one from the

other.

MR CALLAWAY: 

We would submit, Your Honour, that unless

there is an abuse of process, if the jurisdiction
of the Family Court is regularly invoked, the

Family Court should hear the parties, just as any

other court should hear the parties if, without

abuse of process, they regularly invoke its

jurisdiction.

DEANE J: That means simply, in a case where the child is in

the jurisdiction of another country, if you happen to have the two parents within Australia or if you happen to have the respondent parent within

Australia - I am not saying it, I am asking you.

MR CALLAWAY: 

It depends on the facts, Your Honour. We are

not, of course, for a moment suggesting at the end
of the day the court must make an order; simply

that the court must hear the parties or the party

who wishes to make submissions in an Australian

Court about the welfare of the child. One can

conceive of facts in which it would be a patent

abuse of process to do that, but no one has

suggested that that is true in this case, and that

is not the basis on which the courts below

proceeded. They proceeded on a preliminary view
which turned on, first, a narrow view of the

welfare of the child; secondly, a very pessimistic
view without a full hearing of the difficulty of

actually getting the child back from Egypt; and

thirdly, an application of Voth v Manildra which

focused Their Honours' minds on forum conveniens

and deflected, with respect, Their Honours'

attention from the issue of the child's welfare. In a way, therefore, the first and second

issues are intertwined. Perhaps I was wrong to

understand Your Honour's question as directed only

to the first.

DEANE J: What is wrong with the Family Court saying, in a

case where the child has been living in another
country for five years under the authority of one

parent and we cannot have information about her

current welfare or living conditions, prima facie,

it is absurd to think that this Court should set

out on a custody adjudication unless there are very

special circumstances.

MR CALLAWAY:  Your Honour, I labour under the difficulty

that I do not know the detail of the evidence that

was proposed to be led, but evidence was proposed

to be led. It is a very strong thing for a court,

s 12 5/9/91

a fortiori, in a custody application to say we will

not hear the case.

TOOHEY J: Especially where the court did not say or did not

appear to say that its refusal to exercise

jurisdiction was based upon the unavailability of

material but rather upon the footing that any order

made by the court could not be enforced.

MR CALLAWAY:  Your Honour, yes, and in the Full Court the

heavy emphasis on forum conveniens.

DEANE J:  I thought that was precisely what His Honour said

at page 51 in the paragraph I directed your

attention to.

MR CALLAWAY:  I am sorry, I may have misunderstood

Justice Toohey. I thought that His Honour was

saying that the primary basis below was the

perceived difficulties in enforcement and true it

is, that is what weighed with both the courts below

but - - -

DEANE J: But His Honour is there saying, as I read it, not

only the problems in enforcement but I am not going

to have any evidence about the present

circumstances of the child.

MR CALLAWAY: But, again, Your Honour, that depends on a

very narrow view of welfare. It is not to be

supposed that the evidence that, perhaps, both

parties were proposing to lead was so ludicrous

that no sensible legal submission could be made at

the end, that it bore on the question of welfare in
the wider sense.

If welfare is taken to the extremely narrow sense that unless you can get custody reports, you

know nothing about welfare - welfare encompasses

the whole range of the child's connection with her

parents and country and so forth.	The difficulties
of enforcement have not hitherto been thought to

present a kind of insuperable bar, they have been

said to be matters to take into account which may

or may not be decisive. But in this particular
case the judgments actually set out the advice of
the Egyptian attorney as to how the difficulties -

not of enforcement, but the difficulties of getting

Jessica back to Australia might be overcome.	The
Egyptian lawyer goes out of his way to - - -

DEANE J:  Where is that, Mr Callaway?

MR CALLAWAY: Yes. Might I find it for Your Honours. It is

in the early part of Justice Treyvaud's judgment.

Perhaps if I read to Your Honours from the foot of

page 21. After the Egyptian attorney refers to the

s 13 5/9/91

religious disqualification, the second-last line

from the bottom of page 21, he continues, the

wife's:

position in regard of her switching between

Islam and Christianity is unlikely to be an

obstacle in an Egyptian Court if the request

for Jessica is submitted by -

the husband -

the father through an attorney.	The request
should ask for release of -

the -

daughter to him in Australia and (it would be

assumed) to his wife. Such an approach will

of course require his full cooperation, and an

agreement between him and -

his wife -

over the custody of Jessica once in Australia.

Or, one might add, appropriate directions from the

Family Court to the husband.

TOOHEY J: Well, you put the matter more strongly than that

earlier on, Mr Callaway. I thought you suggested

that the court had coercive powers to require the

husband to make application.

MR CALLAWAY:  Yes, Your Honour, I did, and I do not reside

from that submission. An illustration of the sort

of order that might be made appears in the

judgments below on page 14 in Justice Treyvaud's

judgment and set out also in the judgment of the

Full Court are the terms of orders and directions

that His Honour made at an earlier point in this

story. Page 14, there was an order:

That the husband and wife have the joint

guardianship and joint custody -

followed by a direction:

That the husband and wife do all acts and sign

all documents necessary forthwith to institute

and expeditiously prosecute in the appropriate

court or courts in Egypt, an application

seeking the following:

(a) an order for joint guardianship or custody

of the said child;

s 14 5/9/91

(b) an order requiring and/or permitting the

said child forthwith to leave Egypt and return

to the Commonwealth of Australia in particular

to the State of Victoria, where the parties

reside.

It is our submission that the court could make a

similar order against the husband, if it were

persuaded to do so after a hearing, so that he

could take the steps recommended by the Egyptian

attorney.

BRENNAN J:  Why was not this order enforced?

MR CALLAWAY:  I do not know, Your Honour. The parties were

also directed to seek legal aid and it was pursuant

to that direction that they obtained the advice of

the Egyptian attorney which is set out. But why

the order was not further proceeded with, I do not

know.	Of course, it was an order against them
jointly.	We do not know the answer to

Your Honour's question.

BRENNAN J: Is this order still extant?

MR CALLAWAY: 

It would have fallen with the order of the

Full Court, I think, Your Honour, because all
orders would have fallen with the order of the Full

Court .

BRENNAN J: 

Why is that?

MR CALLAWAY: 

I am told the Full Court order discharged all

the extant orders. The Full Court order is set -

yes, Your Honour, at page 58, paragraph 3(b) of the
Full Court order:

That the following orders of and undertakings given to the Court be and are hereby

discharged:

. . . .

guardianship and custody of and access to the

(b) any order or undertaking relating to the

child of the marriage -

Justice Treyvaud's earlier order would be just such

an order because it began by awarding joint custody
and ancillary to that directed the parties to take

proceedings in Egypt. So, the order is not extant

since the order of the Full Court.

TOOHEY J:  Was it an order that was the subject of challenge

in the Full Court?

MR CALLAWAY:	To its validity or appropriateness?
TOOHEY J:	Yes?

s 15 5/9/91

MR CALLAWAY:  I do not think it was discussed at all in the

Full Court except recorded as part of the history,

Your Honour.

TOOHEY J: It just seems curious that the order of the

Full Court should be taken to discharge an order

made on some earlier occasion that does not seem to

have featured in the appeal to that court.

MR CALLAWAY:  Well, there were other orders extant. The

proceedings had been going on for some time,

Your Honour, there was an incrustation of orders.

The Full Court does say the parties were ad idem as

to the sort of orders that should be made if the

Full Court upheld Justice Treyvaud.

DEANE J:  Mr Callaway, could I just ask you one other

question and that is I understand your point that

forum non conveniens, or whichever way one puts it,

is not a relevant consideration in a custody

application. Now, if, contrary to your view, the correct approach was that if the Australian court

is a clearly inappropriate forum for dealing with a

custody application it is entitled to take the

approach the Family Court has taken, where would

this case go then in terms of an appeal to this

Court?

MR CALLAWAY:	Your Honour, assuming that it is proper for the court to refuse to grant a hearing. If we are
wrong about that, and there are circumstances other
than abuse of process - - -
DEANE J:	I mean, assume that there had been a summons in

the Family Court for a stay on forum non conveniens

grounds and the court had made the formal order of

staying the proceedings.

MR CALLAWAY:  Our principal submission in regard to that,

Your Honour, would be that on such a summons the

court ought not to apply the test in Voth v

Manildra, but if there is jurisdiction to say this

matter should not be heard in Australia, in a

preliminary way, on a stay application, that
question should be decided also by reference to the

welfare of the child.

In El Alami, the 1987 Full Court decision, the

Full Court expressly said that in determining

whether or not to exercise jurisdiction - but, in

fairness, Their Honours mean the ultimate order -

in respect of a child outside the jurisdiction, the

paramount consideration is the welfare of the child

and the issue of forum non conveniens is not the

same as in an action in personam. They referred,

with approval, to what Mr Justice McLelland had

s 16 5/9/91

said in a judgment in the prerogative jurisdiction

in McManus v Clouter.

What Mr Justice McLelland had said is that

forum conveniens issues may arise in connection

with custody but they are different from the way

they arise in actions in personam. His Honour gave

this illustration: where a foreign court had

already made an order at the instance of the

applicant in Australia, an ordinary in personam

forum conveniens cases, that would be fatal as to

the applicant saying, "I am now entitled to
litigate in Australia", and "Australia is the

appropriate forum" and so forth, but His Honour

said, "That would not be so in custody" because in

custody the only question would be the welfare of

the child and the conduct of one party having

already initiated other proceedings - even obtained

an order in a foreign tribunal - would be

irrelevant.

It is submitted that that example is correct

and it illustrates that there must, in logic and
principle, be a difference between the Voth v

Manildra test and the appropriate test to apply on

the sort of stay application that Your Honour
hypothesizes. So, if we are wrong about our abuse
of process argument and if it is possible to issue

a summons and to ask for a stay, the Full Court

would still have erred by saying that the test on

such a stay is Voth v Manildra. It is submitted

that that is not surprising because as this Court

explained in Voth v Manildra -

DEANE J: But you are eliding things to some extent.

MR CALLAWAY:  Not deliberately, Your Honour.

DEANE J:  I appreciate that. To say that different

consideration would be relevant is a quite
different thing to saying whether the Voth test is

clearly inappropriate forum in a simple contest	an appropriate test. considerations which would make the Family Court a I mean, it may be that
between adult parties may have very little
significance when the question is who has custody of the child, but it does not follow that the test
whether the Australian court is a clearly
inappropriate forum is not the correct test.

MR CALLAWAY:  Your Honour, it is our respectful submission

that it is not the correct test in custody matters

because in Voth v Manildra the Court explained that

the significance of clearly inappropriate forum is
that that is how the party seeking a stay makes out

the requirements of oppression or vexation, in a

sense that those words were explained by the Court.

s 17 5/9/91

But there is no issue of oppression or vexation in

custody proceedings. It is completely irrelevant.

It is quite irrelevant that one party may be

proceeding vexatiously against the other.	What
matters is the welfare of the child.

So, the ultimate reason why we submit that clearly inappropriate forum is not the right test

is that Voth v Manildra shows that it is directed

to an inter partes issue. But there is no inter

partes issue in a custody dispute including a

dispute as to whether the Australian court should

hear the case.

DEANE J:	I follow the way you put it.
MR CALLAWAY:	In Voth v Manildra the Court said that the issue was the avoidance of injustice between the
parties. Well, we submit that that is just not the
appropriate ground from which to take the test and
that it is not an abstract jurisprudential problem
but it focuses the mind on the wrong issue.

BRENNAN J: Well, you have taken us to that argument.

MR CALLAWAY:	Yes, Your Honour.
BRENNAN J:	Have you anything significant to add to what you

have already said?

MR CALLAWAY:  On the special leave application, Your Honour,

only to say that at the end of the day, even if

Voth v Manildra were appropriate, the reasons given

by the Full Court work a, with respect, manifest

injustice because they fail to weigh the advantages

and disadvantages of proceedings in this country
and Egypt.

Now, the application for the order nisi was

intended only as an ancillary application to the

special leave application, for this reason, and

persuade the Court that this case raised issues of	this reason only, I am told, that if we fail to	general importance, we would then make the
submission that because the learned primary judge
refused to hear the case, that decision being
upheld by the Full Court, it would be appropriate
to grant mandamus or an order nisi for mandamus.
We ask for certiorari because there are extant
orders but the primary remedy we would seek in that event is mandamus.

But our primary application this morning is

for special leave because parts of the injustice

which, we submit, we suffered, we submit that there

are important issues of principle for the

s 18 5/9/91

administration of the Family law and the custody of

children.

BRENNAN J:  If you are granted special leave you would not then seek the prerogative writ?

MR CALLAWAY:  We would not, Your Honour, no. Your Honour,

unless there is something else I could add that

might assist the Court, those are our submissions.

BRENNAN J:  Yes, thank you, Mr Callaway. Yes, Ms Baczynski?

MS BACZYNSKI:  Your Honour, very briefly, it is my

submission - it is submitted on behalf of the

respondent that the Full Court was not wrong, that

it applied the correct principles.

First of all, the principles that were applied

were the welfare of the child and then the issue of

the forum was looked at. It is my submission that

in relation to procedure in front of the Family

Court, all material should be on affidavit, and the

material that was before the Full Court, the
affidavit material, did not disclose anything about

the child other than what had happened between

husband and wife in 1975, and those matters are at

issue. In other words, the husband maintained in

his earlier material that he went to Egypt with the

consent of the wife. The wife had deposed in her

early material that they had discussed going back

to Egypt but that she had changed her mind later.In

her material, she stated the husband went there

without her consent. So that issue is still alive

in terms of what, in fact, happened earlier in

1985.

But in relation to the child or the living

conditions or the welfare of the child or anything

about the child, nothing was submitted by way of

affidavit by either the husband or wife. The

husband, that is the respondent, set out that the

child had been living in Egypt; that he had written to the child and his sister asking her to send the	child back and she refused, and she refused because
her argument was, "Why should I send back a child
to a situation where you are fighting with your
wife? The child is living with her family, the
extended family in Egypt, who are citizens who are
well respected in Egypt, in a Moslem household
where her welfare is looked after. If she goes
back to'you in Australia, you are going to put her
in a position where you are going to fight with
your wife and you can't guarantee that it is not going to cause friction for the child." That was
the reason that the sister gave for not returning the child to Australia.

s 19 5/9/91

The material from the husband discloses that

she stated that if he came to Egypt with or without

his wife he could then have the child in Egypt.

TOOHEY J:  Ms Baczynski, are you saying that all that

material was before the primary judge?

MS BACZYNSKI:	Yes, and the Full Court, because all the material that has been filed was on file. It is
unfortunate that you only have the judgment but not
the primary material.  I do have all the affidavit
material and a history is set out. For example,
there is a history set out that the husband
requested - I call him the husband, I should call
him the respondent. Forgive me if I keep calling
him the husband.  The husband and wife were
directed to make an application for legal aid to
attempt to bring the child back to Egypt. A
question was asked by this Court why that was never
carried out.  The position was the husband was
restrained from leaving Australia.  He, in fact,
requested an opinion from an Egyptian lawyer. The
parties fought for about a year as to which Egyptian lawyer should be engaged to give an
opinion on the merits of this case.
DEANE J:	Did you say the husband was restrained from

leaving - - -

MS BACZYNSKI:	Yes, in 19 - - -
DEANE J:	He still is?
MS BACZYNSKI:	He still is restrained. There is an ex parte

order that was taken out - - -

DEANE J:	By - - -?
MS BACZYNSKI:	By the wife.
DEANE J:	By the wife.

MS BACZYNSKI:  Yes. The husband has not been allowed to leave Australia since 1986. The material discloses

that when he returned - I think it is in the

application book - to Australia there was a warrant

for his arrest. He was brought before the

Family Court. His passport was impounded and,

indeed, every effort the husband has made to try

and go back to Egypt to see if he can try and bring

the child back has been opposed by the appellant

wife. She has not allowed him to leave Australia.

TOOHEY J:  The difficulty about all of that is that it does

not seem to have figured in the approach taken, at

least by the Full Court.

s 20 BACZYNSKI 5/9/91

MS BACZYNSKI: Well, the Full Court - sorry, in relation to

his restraining orders?

TOOHEY J: Well, just generally, this information that you

are giving us now about the situation in which the

child was living.

MS BACZNYSKI:  It is in the early material. The early

TOOHEY J: Yes, I am not suggesting it is not in the

material. It does not seem to have played any part

in the decision of the Full Court.

MS BACZYNSKI:  No, only that Justice Treyvaud stated that,

"If I take the wife's case at its best - let's

assume that I find that the husband acted against

your wishes and took the child to Egypt" - that is

what His Honour has stated, that if he assumes that

the child was taken by the husband against the

wife's wishes - it is my submission that his

judgment states that that just had no bearing on

the welfare of the child now. The position is that

the actions between husband and wife have no

bearing in relation to the welfare of the child in

that "welfare of a child" is wider than just

behaviour between husband and wife. Of course,

that may be a consideration, how one behaves

towards the other, but the wellbeing of a child

entails more than just interpersonal behaviour. It

entails the prosperity, the wellbeing of the child

in terms of education, religion, morality, many

more factors than just that behaviour between one

party towards the other.

TOOHEY J: But are not these matters then that the primary

judge ought to have taken into account in the

exercise of his jurisdiction? The complaint here

is that there was no exercise of jurisdiction.

MS BACZYNSKI: Well, that is not correct in that the trial

judge had before him all the material. The

practice of the Family Court has been, of recent

times, that you are not allowed to go over material

that is already filed in your affidavit material.

Trial is by way of affidavit, and the wife would

have set out in her affidavits the history that she

maintained had occurred.	The husband would have
put his version.	And that was all before both the

trial judge and the Full Court who had all the

affidavit material.

TOOHEY J: Did counsel address the primary judge?

MS BACZYNSKI: In relation to the merits of the behaviour?

TOOHEY J: Well, just generally in relation to custody.

s 21 BACZYNSKI 5/9/91

MS BACZYNSKI:  The position was that we both came before the

trial judge and both invited His Honour to make

preliminary points on the jurisdiction. It was not

opposed. In fact, it was raised by the applicant

wife. The question the applicant wife asked His

Honour was, "Do you have jurisdiction and should you exercise it?" That was asked by the applicant

wife as a start.

Now, what is happening, the applicant wife is

saying, "Well look, I don't like what His Honour

has stated. I now want to change the position. He

shouldn't have done that.", having asked him to do

that.

TOOHEY J:  It does not seem to be the way in which it

surfaced in the Full Court. That is not intended
as a criticism of anyone but certainly you would

not get that impression from a reading of the

judgment of the Full Court.

MS BACZYNSKI: No, that is correct. It does not read like

that. For example, in 1989 the matter came before

a trial judge and it is referred to in terms of

what counsel for the wife said. The trial judge

was invited by the respondent husband to hear this

matter, that there had been so many delays, and he

was invited to finally hear this matter. The wife,

who had the material before her, asked him not to

and submitted through her counsel that there was no

point in making any order because it would never be

enforced. Yet, the wife argued at the same time

that there has never been an order. That was two

years ago, and it is referred to by the Full Court

in their decision. Perhaps if I just invite you to

have a look at that. It is at page 53.

For example, that sets out a paragraph but you

do not get the whole history of what, in fact,

happened.	Can I invite the Court to have a look at
page 53.

BRENNAN J:  I am not sure that I am following what happened

here, Ms Baczynski. When I look at page 29 of the

application book, it seems to me that what

His Honour is saying is that, "Looking at the

evidence, there is nothing to show me what the

welfare of the child requires and that being so it

is not appropriate for me to exercise the

jurisdiction." Not that, "I haven't got any

jurisdiction", but, "I'm now going to exercise it."

MS BACZYNSKI: That is correct.

BRENNAN J:  Is that the way in which you put it?

s 22 BACZYNSKI 5/9/91

MS BACZYNSKI:  Yes, because the first argument was, before

Mr Justice Treyvaud, "Do you have jurisdiction?",

and we both conceded that he did have jurisdiction;

that the parties were all Australian nationals;
that we were resident here and the court had

jurisdiction. The question then became, should he

exercise that jurisdiction given that there was no material, nothing known about the child at all and

that no order would ever be enforced.

TOOHEY J:	But can I just stop you there? That would be an odd proposition coming from the husband. If the
husband was in a position, through his sister, to
provide information as to the welfare of the child,
it would be an extraordinary argument for the husband to say, "Well, you shouldn't embark upon
the question of custody because you know nothing of
how the welfare of the child will be best served."
MS BACZYNSKI:	No, but the husband does not want his sister

to have the child. The husband would prefer to

have the child himself. His sister will not

relinquish the child to him. All the husband knows

is that the child is living with his sister. He

knows what school the child goes to. That was not

in the affidavit material, I concede, but the

husband, in his affidavit material, did set out

where the child was living; that she was living

with the sister. But there was nothing set out by

either the wife or the husband as to what had

happened to the child in terms of schooling, apart

from where she lived.

TOOHEY J: But I would have to say, reading the passage that

Justice Brennan directed your attention on page 31

at line 15 where the primary judge said:

I find it a waste of the parties' and/or the

community's financial and legal resources to

require this Court to embark on the exercise

of deciding the question of the custody -

one is left, very clearly, with the impression that
no exercise of jurisdiction was effected.	Now, if

that is right, the whole thing may have gone off

right at the very beginning and perhaps because of the way in which the parties put the matter to the

primary judge.

BRENNAN J:  Do you have a copy of the transcript before the

trial judge?

MS BACZYNSKI:  Yes, it was before the Full Court.

BRENNAN J: Perhaps Mr Callaway has. Mr Callaway, do you

have a copy of the transcript before the primary

judge?

s 23 5/9/91

MR CALLAWAY:  I do not. I believe there was none. We do

not, Your Honour. My learned junior believes there

was no transcript before Mr Justice Treyvaud.

MS BACZYNSKI: Justice Treyvaud maintained that he had

jurisdiction and that is referred to by the Full

Court. They agreed with his submission that he had

jurisdiction and that was not opposed at any time.

TOOHEY J:	But nobody has suggested he did not.
MS BACZYNSKI:	That is right.

TOOHEY J: But he said, "I'm not going to exercise it."

MS BACZYNSKI: That is correct.

TOOHEY J:  "I'm not going to inquire into the welfare of the

child."

MS BACZYNSKI: Well, it is my submission that he did that

because the material was all before him. All the

material that he had was already filed before him.

The wife did not seek to file any extra material

and neither did the husband at that stage, and the

reality is that nothing more will be filed. It is

all very well for the wife to say, "Look, please

have a hearing. Let me have a hearing." The end

result is that there will be no new material filed.

The husband may be able to get some information as

to what is happening to the child. He is here in

Australia. All he can get is material from his

sister, whatever she will provide him with.	He is
not free to travel to Egypt to find out.	The wife

has not sought to go to Egypt. She has relatives

in Egypt. Nothing has been filed since then.

BRENNAN J:	Who restrained him from going to Egypt?
MS BACZYNSKI:	The wife.

BRENNAN J:	How?
MS BACZYNSKI:	She has maintained that he should never leave

Australia.

BRENNAN J: But is there an order?

MS BACZYNSKI:	Yes.
BRENNAN J:	By whom?
MS BACZYNSKI:	By the Family Court when the wife made an

application in 1986 after the warrant was issued

that his passport be impounded. There was an order

that his passport be given to the wife to use to

bring back the child. Indeed, that passport was

s 24 5/9/91

never used by the wife and never returned. When

the Full Court made orders discharging that order, the wife, in fact, still retained the passport and

sought an ex parte order still restraining the

husband from leaving Australia. In fact, it was

submitted by counsel in front of Justice Treyvaud

the husband should never be free to leave

Australia, ever, and my submission is that the wife

has stopped the husband from going to Egypt to try

and do what he can and at the same time says,

"Well, look, he should be forced to do something."

DEANE J:  Has he applied to get his passport returned to

him?

MS BACZYNSKI:  Yes, and each time the court has said, "The

matter cannot be dealt with until there is a final

hearing, the wife needs it." In fact,

Justice Haese who heard the matter in 1989 agreed

that the wife should retain the passport because it

was a very complex matter and the husband should

not be free to leave. The application has been put

several times and it has been refused each time.

There is a transcript in relation to what was

before Justice Haese, not the transcript before

Justice Treyvaud.

BRENNAN J: Well, let us not complicate it too much.

TOOHEY J: But it cannot be left in this unsatisfactory

state, Ms Baczynski. It may be that the only way

in which it can be resolved is by this Court

hearing it as an appeal, whatever the consequences

may be. It may be, in the end, that all that will

happen is that it would go back to the primary

judge to exercise his jurisdiction. It does not
follow, I suppose, that he has to make an order of

custody in favour of either party. At least he has

to look at the situation.

MS BACZYNSKI: Well, with due respect, Your Honour, he did

because he had all the affidavit material setting

out all the history.

TOOHEY J: Well, yes, I know he had all the material there

but certainly a reading of his judgment suggests

that he was not embarking upon an exercise of

jurisdiction.

MS BACZYNSKI: Well, Your Honour, it is submitted that he

did because he had all the material there and he

had looked at it. If there was material that he

could have used to make a decision as to the

welfare of the child, he would have exercised his

discretion.

s 25 BACZYNSKI 5/9/91

Your Honour, can I please just make one point

in relation to the comment that was made by my

learned friend about the arid result which is

really what this case is about because no one knows

who is going to get custody. The Egyptian position

is not as dramatic or as Draconian as at first

appears. In Egypt, if one looks at the opinion

from the Egyptian lawyer, it appears that the

custody automatically goes to a female. The father

has no rights. It is the mother and if she is not

a Moslem, that is irrelevant. She can be Jewish

and she can be Christian, the mother automatically

has custody of the child.

The problem in this case is if you are a

Moslem, as was the case here with the wife because she had converted twice specifically to allow the

child to be brought up as a Moslem - if you are a

Moslem and you have converted away from Islam, you

are regarded as unfit to have custody. The next

person in line then is the female kin of the wife, of the mother. The husband's family has no rights

as such initially. The first person is the - - -

BRENNAN J:  We are not going to deal with the merits of the

case.

MS BACZYNSKI:	No, I do not seek to go into that but the point was made that the wife has no rights at all.
The practical result is the husband should make
application. The wife had a sister who went to
Egypt who made no application.  The wife has family
in Egypt.  No application has been made on her
behalf there either.  The wife would have female
relatives who would have priority over the
husband's sister. And I simply make that point,
that the husband would have no rights before the female line of the wife's family.
Does Your Honour wish me to go through all the points that Mr Callaway made, that I - - -
BRENNAN J: Well, you have to deal with whatever you wish to

deal with on Mr Callaway's argument, his argument

being that there was a refusal of jurisdiction here

on the basis that is untenable.

MS BACZYNSKI: With due respect, my submission is that the

jurisdiction was properly invoked by the court and

not refused by the court.	The jurisdiction was not
refused.	What was refused was the discretion to

embark into the merits of this case and the

principles applied by the Full Court were not

incorrect. There have been many cases previously

where there have been children who were not in the

jurisdiction where the courts have dealt with them

s 26 5/9/91

and cases where they have not dealt with it. This

is not - - -

DEANE J: Well now, the Full Court has upheld the trial

judge on the basis that, in effect, on the material
before the trial judge the Family Court was a
clearly inappropriate forum to determine the

question of custody of this child and that being

so, the trial judge was entitled to take the course

he did and say, "Well, I won't be making orders as

to custody here because it's clearly inappropriate

that this court decides the custody of this child."

MS BACZYNSKI: That is correct.

DEANE J: Well now, do you uphold that?

MS BACZYNSKI:  I do. What the Full Court then went on to

say was that his decision was right but some of the

principles that he used were wrong because the

first principle should be the welfare of the child

which he did not consider or did not give due

regard to, and then agreed with him that there was

no material on which he could make a decision or it may be unhelpful, that that was the first principle

that he should apply and the second principle was

the issue of the forum.

Your Honours, it is my submission that it is,

in reality, if one looks at it in a practical

sense, that if you come back to a hearing it is

going to be an arid and - it is going to be a

hypothetical decision.	The husband may get
custody - the wife.	The court may be in exactly
the same position, it just does not know.	The

reality is how can the child be brought back to

Australia? Custody can be reopened at any time.

If the child were to come back to Australia at any

time there will be no prohibition on any party -

either of the parties bringing an application for

custody.

It is my respectful submission that the

Full Court, in an unanimous decision, were right and applied the correct principles. This case is not unique. Unfortunately, a lot of these cases

have come before the court before. There has been

Taylor's case, Soares case, there are referred to

in the decisions in the Full Court and, indeed,

they involve situations where children have been in Egypt. There is one case where the child, in fact,

was in Egypt. There are cases where the

Family Court here did not embark on a case where

the children were sent back to Chile. It is not a

unique case. These cases arise all the time and

one has to look at the merits of that particular

case.

s 27 5/9/91

There was a lot of material. There are two

volumes of material filed in this case as to the

history. That was before the trial judge and it

was before the Full Court as well. With due

respect, it is my submi5sion that the whole history

is not contained in these judgments, that they have

selected and have selected favourably towards the

wife.

Again, if you look at what the wife has

submitted: there has been a change of heart by the

wife.	I was going to refer you very quickly, in
finishing, at page 53.	The wife, two years ago,

made this submission through her counsel. It was

quoted by the Full Court who quoted

Justice Treyvaud who quoted another judge.	What
the wife is doing is arguing it all ways and,

indeed, the wife knows full well that the child

will not leave Egypt, and it is not the husband's

fault because the position is that no proceedings

have been taken in Egypt by either the wife or the

husband. The Family Law opinion in Egypt shows

that at this stage the husband and wife will not

get custody of the child. That is not to say that

the wife's family would not if she proceeded in

Egypt, but the wife has made no efforts to do.

She has not even shown how the husband could succeed. There is clear material before this

Court, and the only material, that the husband

himself would not succeed.

BRENNAN J: Thank you, Ms Baczynski. Mr Callaway.

MR CALLAWAY: Your Honours, just very briefly. It is always

unfortunate when counsel have different

recollections of what happened. I say this only

lest our silence be taken against us at some other

time. My learned junior, Mr Thompson, who appeared

before Justice Treyvaud is clearly of the

recollection that it was His Honour who raised at	the outset both the question of jurisdiction and
the more important question of whether he should
embark on the inquiry. It was not raised by either
of the parties.

The only other submission I would wish to make

is that what other counsel for the applicant may

have said in 1988 cannot be relevant to the welfare

of the child in 1991, nor does it impinge on the correctness or otherwise of the legal principles

expressed in the Full Court judgment.

Your Honours, unless there is anything else I

can add, that is all I wish to add by way of reply.

s 28 5/9/91

DEANE J: It could be relevant though - I mean, if, in 1988 your client pressed upon the Family Court the view

that it should not embark on the merits of the

custody proceeding, it could be relevant to the

question whether two or three years later it was an appropriate forum to investigate that very question at the instigation of that very party.

MR CALLAWAY: Relevant in the course of a hearing,

Your Honour, but not to a quasi stay.

DEANE J:	I follow the way you put it.
MR CALLAWAY:	And, of course, having no bearing on whether

we are right or wrong about Voth v Manildra.

DEANE J:  But it seems to me it is relevant to the

Full Court's consideration of the question of forum

non conveniens as Their Honours saw it.

MR CALLAWAY: Well, as Their Honours saw it, Your Honour,

yes. But we would respectively submit that it is

the kind of factor which experience shows should

not be given too much weight.	One never knows on
what instructions these things are said.	May it
please the Court.

BRENNAN J: Further hearing and consideration of this matter

will be adjourned until 2.15 pm.

MR CALLAWAY: If the Court pleases.

AT 12.13 PM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.18 PM:

BRENNAN J:  What I am about to say represents the views of

Justice Deane and myself; Justice Toohey dissenting.

The applicant seeks special leave to appeal

from a judgment of the Full Court of the

Family Court of Australia dismissing an appeal from

an order of Mr Justice Treyvaud which was expressed

in its ~elevant parts as follows:

I make no order pursuant to the cross

applications for guardianship and custody of

the child of the marriage, Jessica born on the

10th of November 1983.

s 29 5/9/91

The application for special leave is founded on the proposition that Mr Justice Treyvaud and the

Full Court both wrongly declined to exercise the

jurisdiction which the Family Court of Australia

concededly possessed under section 63B of the

Family Law Act, 1975 (Cth) to hear and determine proceedings between the parties to the marriage for

the custody of Jessica, the child of the marriage.

The declining of jurisdiction was, in substance, a determination that no order should be

made and that determination, far from being a

declining of jurisdiction, represented the

considered view of the Family Court as to the

manner in which the cross applications for custody

should be disposed of.

The real question is whether there was any

error of principle which affects the determination

of the Full Court of the Family Court and which, if
rectified, might lead to the making of a different
order. Some reliance was placed by the Full Court

on the "clearly inappropriate forum" test adopted

in a different context by this Court in Voth v

Manildra Flour Mills Pty Ltd, (1991) 65 ALJR 83. Although the difference in context between the

litigation in Voth v Manildra Flour Mills Pty Ltd

and the present case are manifest, we see no error

of principle in the refusal by the Family Court to

make an order in a custody case when it is clearly

inappropriate in the circumstances of the

particular case for the Court to make an order.

Nor is there any error in taking account of the

welfare of the child so far as it can be known and
taken into account in determining whether any order

should be made.

In all the circumstances of this case, where

the child was out of the jurisdiction and had been

living in Egypt apart from her parents for some

years past and with a paternal aunt, under an order	for custody made by an Egyptian court, it was right
for the Family Court to reach a decision not to make an order without engaging in a full-scale inquiry into all aspects of the child's welfare.

Whatever further information as to the child's

welfare may have emerged in a full inquiry, it

could not have affected the decision not to make an

order which, whether on the approach of
Mr Justice Treyvaud or on the approach of the

Full Court, the Family Court was entitled to make.

Mr Justice Treyvaud said, in a passage cited

and found to be factually correct by the

Full Court, as follows:

s 30 5/9/91

"Remaining, then, is the issue of whether

there is a likelihood that any order here made

will be enforced by the Egyptian courts. I

find that there is no such likelihood. There

is no reciprocity between courts in Egypt and

Australia; there is already in existence an

Egyptian ex parte order whereby the paternal

aunt has obtained custody of the child; the

evidence of the Egyptian legal experts

satisfied me that as an apostate, the wife

would not obtain custody of the child in an

Egyptian court.

I find it a waste of the parties' and/or the

community's financial and legal resources to

require this Court to embark on the exercise

of deciding the question of the custody of the

child, who has lived in Egypt for the past

five of her six years' existence, in relation

to whom nothing affecting her welfare is

known, and in circumstances where no order of

this Court would be recognised and/or enforced

by courts in Egypt."

The Full Court, though disagreed in one

respect with His Honour's approach, held that the

result at which he had arrived was correct.

As the case, on analysis, is not truly a case

of refusing to exercise jurisdiction but rather a

refusal to make an order in the exercise of

jurisdiction, the applications for orders nisi for

mandamus must be refused. And as the determination

not to make an order in the particular

circumstances of the case is not attended with

sufficient doubt to justify the grant of special

leave to appeal, special leave should be refused.

Accordingly, the application for mandamus is

dismissed, and the application for special leave is

refused.

MS BACZYNSKI:  I ask for costs in this matter.

MR CALLAWAY: In the special leave matter, Your Honour, we

do not resist that.

BRENNAN J: In the special leave matter, the special leave

application will be refused with costs.

AT 2.24 PM THE MATTER WAS ADJOURNED SINE DIE

s 31 5/9/91