P v S [1994] HCA 29

High Court of Australia Mason C.J. Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. P v S [1994] HCA 29

ORDER Appeal allowed. Order nisi for prohibition, certiorari and mandamus discharged. Set aside the orders of the Full Court of the Family Court and in lieu thereof order that—

1. the appeal to that Court be allowed;

2. the orders of Mushin J. be set aside.

Remit the matter to the Full Court of the Family Court to determine (or to make orders providing for determination of) the question whether, in accordance with the reasons for judgment of this Court, orders for the return of Dimitrios to Greece should be made pursuant to the father's application and, if that application be refused, to determine the matter of the mother's application for permanent custody.

Cur. adv. vult.

The following written judgments were delivered:—

June 29 Mason C.J., Toohey and McHugh JJ.

The appellant, who is the wife of the respondent, appeals against a number of orders made by the Family Court upon an application initiated by her in that Court for the custody of the child of her marriage to the respondent. The principal effect of the orders is that the husband and wife are to submit themselves to a court of competent jurisdiction in the Republic of Greece for the purpose of determining all issues relevant to the guardianship, custody and welfare of and access to the child. To enable that to be done the husband, at his expense, was ordered to purchase airline tickets for the wife, himself and the child to travel to Athens on the same flight. In addition, not less than forty-eight hours prior to departure, the husband was to pay the wife $5,000 "for her expenses of and related to her return to the Republic of Greece". One of the orders that was made was that "from 2 hours prior to the departure time" an interim custody order in favour of the wife was to be discharged. Another order gave custody of the child to the husband from that time. However, upon arrival in Athens that custody order was to be ipso facto discharged.