RCB as Litigation Guardian of Ekv, Cev, Civ and Lrv v The Honourable Justice Colin James Forrest etc

In RCB as Litigation Guardian of Ekv, Cev, Civ and Lrv v The Honourable Justice Colin James Forrest, one of the Judges of the Family Court of Australia [2012] HCA 47 (7 August 2012) the High Court dismissed a challenge to a Family Court of Australia order requiring the return of four children to the custody of their father in Italy.

Background

The order to return the children was made after the mother of the children who was divorced from the father and living in Australia had refused to return the children to their father, who had since moved back to Italy.

This refusal contradicted a consensual custody agreement between the parents that the children would habitually reside with their father. The order was made under provisions of the Family Law Act 1975 (Cth) which gives effect to the Convention on the Civil Aspects of International Child Abduction, a convention to which Australia is a party.

The provisions of the Convention did not provide for consideration of the merits of the custody arrangements but simply for an order to be made to return children who have been 'wrongfully' removed from their habitual country of residence to that country. The Court retains the discretion to refuse to make an order in certain circumstances which include where a child objects to the order.

In this case the plaintiff argued that a denial of procedural fairness had occurred because the Court had failed to give full consideration to the objections and to afford the children an opportunity to intervene as parties or to have independent legal representation.

The Courts Reasoning

In its decision the High Court noted that there had been appointed of a Family Consultant required to report to the Court and to the parties as to the nature and strength of the children's objections. The Family Consultant being an officer of the Court and “a person skilled in advising the Court on such questions could be relied on to inform the Court fairly and sufficiently on the relevant issues.” The majority of the Court also observed that, in addition to the Family Consultants evidence, the children’s mother had also had the opportunity to give evidence as to the children's objections from a psychologist.

Submission to the Court that resolution of questions about a child's objections always required separate legal representation for each child were rejected as incorrectly assuming that a child would always have “sufficient maturity to instruct a lawyer, and that only a lawyer could adequately determine the child's views”.

Holding

As a result of the above reasons a majority of the High Court also observed that no practical unfairness had resulted from the children's non-intervention as parties in the proceeding and accordingly the High Court concluded that there was no procedural unfairness to the children.

Legislation discussed: Family Law Act 1975 (Cth), ss 62G, 68L, 68LA, 69ZT, 92, 111B; Family Law (Child Abduction Convention) Regulations (Cth), regs 14, 16, 19A, 26

Meaning of the terms "family consultant", "independent representation" and "return order" considered.

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