Pascarl v Oxley

PASCARL
v
OXLEY
[2013] HCASL 195
B46/2013

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.
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.
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.
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.
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.
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

CaseChat Overview and Summary

In Pascarl v Oxley, the applicant, the father of a child born in 1997, sought various contact orders with his child. The applicant and his child are UK citizens, while the respondent, the child's mother, and the child themselves reside in an unknown location. The applicant, currently incarcerated in Australia, filed four applications for parenting orders, which were dismissed by the Family Court of Australia in 2011. The Full Court of the Family Court of Australia dismissed the applicant's appeal in 2013, holding that while it had jurisdiction to decide the matter, the exercise of jurisdiction was not in the best interests of the child.

The legal issues before the High Court of Australia were whether the Full Court correctly exercised its jurisdiction and whether the Full Court erred in not making orders to establish the present location of the child. The Full Court found that it had jurisdiction to decide the matter, as the test to be applied was whether the exercise of jurisdiction would be in the best interests of the child, which is the paramount consideration. However, the Full Court did not consider the orders sought to be in the child's best interests, and therefore dismissed the appeal.

The High Court of Australia found that the Full Court correctly exercised its jurisdiction and applied the appropriate test. The Full Court did not err in not making orders to establish the present location of the child, as it was not in the child's best interests to do so. The High Court of Australia held that there was no utility in granting the applicant an extension of time to commence his application for special leave to appeal, as the grounds relied upon by the applicant did not disclose any reason to doubt the correctness of the decision of the Full Court.

The High Court of Australia dismissed the application and directed the Registrar to draw up, sign and seal an order dismissing the application. The Full Court's decision was affirmed, and the applicant's appeal was dismissed. The child's best interests were found to be paramount, and the Full Court's decision to not exercise jurisdiction was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established