CCPR/C/120/D/2798/2016
complaints about community service providers, such as those who provide child protection
services, out of home care, disability services and supported accommodation and assistance
programme services.
4.8
The State party submits that, from the material available, it understands that, in
February 2005, the author sought to file a special leave to appeal application with the High
Court to challenge a single judge decision of the Family Court. According to the
information available, the High Court refused to accept that application on the basis that the
complainant had not exhausted her legal avenues of appeal through an appeal to the Full
Bench of the Family Court.
4.9
The State party notes that, according to the author’s submission, the State party
provided legal aid to the author to assist her financially with her family court proceedings.
The complainant’s submissions indicate that she was refused a further application for
Commonwealth legal aid on 20 June 2006. The author was also unsuccessful in her
attempts to secure legal representation through the New South Wales Legal Aid
Commission or her separate requests that the Commonwealth Attorney-General: (a) issue a
fiat; and (b) intervene in the complainant’s family law proceedings concerning her daughter.
4.10 The State party submits that the author does not provide any evidence to support her
claims that she lacks financial resources to exhaust domestic remedies and that the remedies
would not be effective. The State party submits that the legal remedies outlined above
would have constituted effective remedies to the author’s allegations, and that the author
has provided insufficient information on her attempts to pursue the available domestic
remedies outlined above. The State party considers that the domestic remedies that remain
available could have provided timely and effective relief or redress to the author. It also
considers that the author has not demonstrated that those remedies would be ineffective. In
consequence, the Committee should declare the author’s allegations inadmissible.
4.11 In regard to the author’s allegations with respect to article 14 (3) of the Covenant,
the State party submits that the proceedings to which the author refers — being civil
proceedings relating to familial custody, guardianship and child protection arrangements —
are not criminal proceedings and, as such, clearly fall outside of the scope of article 14 (3)
of the Covenant. The State party therefore considers that the author’s claims made under
article 14 (3) should also be dismissed ratione materiae.
4.12 The State party submits that the author’s allegations under articles 2, 7, 9, 12, 14, 17,
23, 24 and 26 of the Covenant are insufficiently substantiated to enable the State party to
respond and should be declared inadmissible pursuant to rule 96 (b) of the Committee’s
rules of procedure. The State party notes that the Committee has previously held that a
“claim” is not merely an allegation, but “an allegation supported by substantiating material”.
4.13 In that regard, the State party argues that the author has provided, by way of
attachments to her communication, documents purportedly supporting her allegations,
including but not limited to: affidavits made by the complainant and other persons in the
course of legal proceedings and extracts of the complainant’s legal applications and
submissions to the jurisdictions of the State party, including alleged independent witness
accounts of events. The State party indicates that, with the exception of one “minute of care”
order from the Children’s Court, one order and one interim order regarding parental
responsibility from the Children’s Court and one transcript of a closed court judgment, the
complainant has not provided the necessary hearing transcripts, judgments and final orders
made in each of the various legal care, custody and guardianship proceedings since 1996 to
verify her claims.6 The State party submits that the three orders and one transcript provided
are not sufficient to substantiate her claims. It further explains that the relevant New South
Wales authorities are not able to disclose relevant information to the Government of
6
The State party refers to the following, attached to the communication: the Minute of Care Order
dated 21 July 1997 from the Children’s Court at Campsie; an order for sole parental responsibility
made by the Children’s Court at Wyong, dated 18 September 2002; the transcript of a closed court
judgment by Judge Balla, dated 15 October 2003; and an interim order by the Children’s Court at
Wyong, dated 11 January 2005, by which the Court granted parental responsibility to the Minister on
condition that the mother not contact the child directly or through a third party.
7