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

This matter came before the High Court of Australia concerning an application for special leave to appeal and an application for writs of certiorari and mandamus directed to Justice William Brian Treyvaud, a judge of the Family Court of Australia. The applicant sought to challenge a decision of the Full Court of the Family Court, which had upheld Justice Treyvaud's refusal to hear a custody application on its merits. The respondents, the Chief Justice, Justice Barblett, and Justice Mushin of the Family Court, did not wish to appear and would abide by any order of the Court.

The primary legal issues before the High Court were twofold. Firstly, whether the Full Court of the Family Court had erred in affirming Justice Treyvaud's decision to decline jurisdiction and not hear the custody application on its merits. Secondly, the applicant contended that the Full Court had incorrectly applied the principles established in *Voth v Manildra Flour Mills* to a child custody dispute, arguing that this case, which concerned justice between a plaintiff and defendant, was inapposite to the paramount consideration of a child's welfare. This application of *Voth* also represented a departure from earlier Full Court decisions in *El Alami* and *Taylor*, which had prioritised the welfare of the child over concerns about enforcement difficulties.

The applicant argued that the Full Court's decision to uphold the refusal to hear the custody application, particularly given the child's prolonged separation from both parents, raised important questions warranting the High Court's intervention. The applicant submitted that the Full Court's adoption of a test asking whether the Australian court was "plainly inappropriate" represented a misapplication of *Voth* and contradicted established Family Court precedent that viewed the child's welfare as the overriding consideration. The transcript indicates that the Court was considering whether the primary judge had indeed erred in failing to treat the welfare of the child as paramount.