In the case of ZP v PS a seven-year-old child was abducted by his mother to Australia from Greece (then not a signatory to The Hague Convention)[1]. The mother on arrival to Australia applied for, and was granted, interim parenting orders by the Australian Family Court however this occurred concurrently with Greek Courts revoking the mother’s earlier (arguably favourable) Greek parenting orders (thus granting the father custody of the child[2]).   The Family Court subsequently made a summary judgement ordering the return of the child to Greece for the matter to be decided there, and significantly the mother refused to return[3]. The High Court heard the matter on appeal and explored firstly whether the Family Court was correct in making an order that a Greek Court should decide the matter, and secondly whether the Court in their decision had appropriately considered the child’s welfare[4] (in particular given the mother would not return to Greece).

The High Court majority[5] found that the Family Court had been mistaken in it’s judgement in that it considered both the forum non conveniens test[6] (commonly known as the inappropriate forum test) and the paramouncy principle (being the principle that the best interest of the child is paramount). The High Court here found that the Family Court must exercise its jurisdiction in line with s60CA of the Act and ensure that the best interest of the child is the paramount consideration in making any parenting orders. In that regard whether or not Australia was an inconvenient forum for the matter to be heard was beside the point[7].

This case was a move away from the case of Voth[8] which had relied on the forum non conveniens test and had been followed in the years between 1990 and 1994[9] . This was also a change in policy direction for Australia, and arguably caused it to become more difficult for unilateral relocation decisions involving non Hague Convention countries to be decided outside Australia[10]. The policy shift is unsurprising in and of itself, in particular given foreign jurisdictions do not all have principles akin to paramouncy (the child’s best interest is paramount) and therefore judges face the socio-legal conundrum of returning a child to a jurisdiction that may not prioritise the child’s interests in decision making . Given the geographic proximity of Australia to various non-Hague Convention countries[11] with very different parenting models (including for example countries that implement Sharia law)[12] the prevalence of the aforementioned policy is a testament to the fact that in Australia the concept of the best interest of the child is at the heart of parenthood.

The High Court in ZP v PS further stipulates a test for unilateral relocation of a child to Australia asking first whether it is in the best interest of the child to order a summary return[13] and second what order is in the best interest if summary return is not[14]. There is no structured guidance however, as to how to determine the best interest of the child and subsequent decisions have therefore lacked consensus.

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[1] The child, his mother and his father were all Australian citizens of Greek decent.

[2] The International Survey of Family Law, 1994, published by Kluwer Law International at 54.

[3] Although the mother at first said she would return to Greece for the purpose of participating in said proceedings, she later made clear that she would not.

[4] ZP v PS (1993) 181 CLR 639.

[5] Majority including Brennan, Dean, Dawson and Gaudron JJ; in dissent Mason CJ, Toohey and McHugh JJ: The International Survey of Family Law, 1994, published by Kluwer Law International 54.

[6] The forum non conveniens test cemented through the decision in Voth v Manildra Four Mills (1990) 171 CLR 538 is applicable to Family Law property settlement however.

[7] of ZP v PS (1993) 181 CLR 639 at 999.

[8] in Voth v Manildra Four Mills (1990) 171 CLR 538.

[9] including; In the Marriage of Scott (1991) FCL 92-241; In the Marriage of Erdal (1992) FLC 92-292; In the Marriage of Van Rensburg and Pacquay (1993) FLC 92-391; In the marriage of Gilmore (1993) FLC 92-391; and In the Marriage of Gilmore (1993) FLC 92-353, The International Survey of Family Law, 1994, published by Kluwer Law International at 53.

[10] The International Survey of Family Law, 1994, published by Kluwer Law International at 55

[11] Including for example Malaysia.

[12] See in the Marriage of B (Child Abduction) (1986) FLC 91-749. For comment on various aspects of this case, see F. Bates, “Child abduction: Australian Law in International Context (1988) 37 ICLQ 945, “the story of B; Australian family law in an Asian context (1994) 3 Asia Pacific LR 33).

[13] For example, to avoid alienation from home, family, friends and culture

[14] ZP v PS (1993) 181 CLR 639.