C & C

The parties in this matter were C and C. The dispute concerned an application for leave to appeal against a decision of the Family Court of Australia. The application was heard by the Full Court of the Family Court of Australia.

The central legal issue before the Full Court was whether the primary judge had erred in law by failing to consider the impact of a proposed parenting order on the child's right to be heard, as guaranteed by Article 12 of the United Nations Convention on the Rights of the Child. The court was also required to determine whether the primary judge had adequately discharged their duty to ascertain the child's views.

The Full Court reasoned that Article 12 of the UNCRC, while not directly enforceable in Australian domestic law, informs the interpretation of domestic legislation, including the *Family Law Act 1975* (Cth). The court held that the primary judge had a positive obligation to ensure the child's views were ascertained and considered in the context of the parenting orders being made. The failure to do so, particularly where the child's wishes were known and relevant to the proceedings, constituted an error of law. The court emphasised that the weight given to a child's views is a matter for the court, but the opportunity for those views to be expressed and considered must be afforded.

The Full Court granted leave to appeal, set aside the orders of the primary judge, and remitted the matter to the Family Court for redetermination.