R v Bell; Ex parte Lees [1980] HCA 26

High Court of Australia Gibbs, Stephen, Murphy, Aickin and Wilson JJ. R v Bell; Ex parte Lees [1980] HCA 26

ORDER Application for a writ of prohibition refused. No order as to costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 5 Gibbs J.

This is an application for a writ of prohibition directed to a judge of the Family Court of Australia, Bell J.

Proceedings are pending in the Family Court between Mr. and Mrs. McJarrow in respect of the custody of a child of the marriage. On 31st August 1979 a judge of the Family Court made an ex parte order that the wife be granted custody, and on 6th September 1979, in compliance with the order, the husband delivered the child to her. On 7th September 1979 another judge ordered that the application for custody be placed on the contested list, and further ordered that the husband should have interim custody. The evidence before each judge may of course have justified the order made, but so rapid a reversal of fortune must have been unsettling both to the child and to the parents. That does not excuse what the wife did next: she disappeared, taking the child with her. On 11th September 1979 a further order for custody in favour of the husband was made and it was ordered that a warrant be issued directing the Deputy Marshall of the Family Court and all officers of police, Commonwealth and State, to take possession of the child and deliver her to the husband. However, the child has still not been found.

On the hearing on 7th September the wife was represented by a solicitor, Mr. Hulett. On 13th September she gave instructions to another solicitor, Mr. Lees, who is the prosecutor in the present proceedings, to protect her interest as joint tenant in the matrimonial home. She gave no instructions to Mr. Lees to act in the custody proceedings, and indeed did not mention them. She told Mr. Lees of a method by which he could get in touch with her, and expressly requested that this method be kept confidential.