RCB v The Honourable Justice Forrest

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HIGH COURT OF AUSTRALIA

FRENCH CJ,
HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

RCB AS LITIGATION GUARDIAN OF EKV, CEV,
CIV AND LRV  PLAINTIFF

AND

THE HONOURABLE JUSTICE COLIN JAMES
FORREST, ONE OF THE JUDGES OF THE
FAMILY COURT OF AUSTRALIA & ORS  DEFENDANTS

RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest

[2012] HCA 47

Date of Order:  7 August 2012
Date of Publication of Reasons:  7 November 2012

B28/2012

ORDER

1.The proceedings be dismissed.

2.RCB, as litigation guardian, pay the costs of the fourth defendant.

Representation

A J H Morris QC with S J Williams for the plaintiff (instructed by Nicholes Family Lawyers)

Submitting appearance for the first defendant

W Sofronoff QC, Solicitor-General of the State of Queensland with G J D del Villar and M R Green for the second defendant (instructed by Crown Law (Qld))

J Brasch with R J Lyons for the third defendant (instructed by Barry Nilsson Lawyers)

P J Doherty SC with J P Lo Schiavo for the fourth defendant (instructed by Donnelly Lawyers)

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with R Graycar and B K Lim intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

M G Hinton QC, Solicitor-General for the State of South Australia with M J Wait intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor SA))

G R Donaldson SC, Solicitor-General for the State of Western Australia with C S Bydder intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor (WA))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Family law – Children – Family Law Act 1975 (Cth) – Family Law (Child Abduction Convention) Regulations (Cth) – Convention on the Civil Aspects of International Child Abduction – Wrongful removal – Order for return to country of habitual residence – Discretion to refuse to make return order – Objection of child to return – Ascertaining child's views and interests – Appointment of family consultant.

Practice and procedure – Procedural fairness – Mother removed children from country of habitual residence in Italy – Father sought children's return – Family Court has discretion not to make return order if person opposing return establishes child objects to being returned with strength of feeling beyond mere preference or ordinary wish and child has attained appropriate age and maturity – Family Court made return order notwithstanding children objected to their return – Family Court received evidence and report by family consultant about children's views – Children unsuccessfully applied at late stage to intervene by case guardian in proceedings between mother and father – No evidence of exceptional circumstances to suggest Family Court should have ordered independent representation for children under s 68L of Family Law Act 1975 (Cth) – Whether children denied procedural fairness in making of…

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Details
Case
[2012] HCA 47
Decision Date

CaseChat Overview and Summary

These proceedings concerned an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) for the return of four children to Italy, their country of habitual residence, following their removal to Australia by their mother. The application was made by the Director-General, Department of Communities (Child Safety and Disability Services) to the Family Court of Australia, seeking orders for the children's return. The Family Court made the return orders, which were upheld on appeal to the Full Court of the Family Court. The proceedings in the High Court were brought by the children's maternal aunt, as litigation guardian, who contended that the children had been denied procedural fairness.

The central legal issue before the High Court was whether the children had been denied procedural fairness in the making of the return order, specifically whether procedural fairness required the children to have independent legal representation. The applicant argued that natural justice would not have been afforded unless the children were represented by an independent legal practitioner obligated to act on their instructions and pursue their preferred outcomes. This contention was based on the assumption that each child could be equated with a capable adult and was capable of giving such instructions.

The Court reasoned that the assumptions underlying the applicant's contention were factually and legally flawed. Unlike capable adults, children are typically under the control of others who owe them legal duties, making them vulnerable to influence. Furthermore, the Court found that the conceptions underlying the Family Law Act 1975 (Cth) and the Regulations did not treat children as conventional parties to litigation between their parents, even if they possessed adult-like capacity. The Court noted that mechanisms such as adducing evidence from a psychologist commissioned by a party and directing a family consultant to report on relevant matters, as had occurred in this case, were sufficient to inform the Court of the children's views and interests. Given the steps taken by the primary judge and the mother to ascertain the children's views, the Court concluded there was no procedural unfairness.

The application was dismissed, and the litigation guardian was ordered to pay the costs of the fourth defendant.

Orders

Orders of the court

1. The proceedings be dismissed.

2. RCB, as litigation guardian, pay the costs of the fourth defendant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

As set out above, there are criteria in reg 16(3), including grave risk of psychological harm to the child and the child's objections to return, which, if established by a person opposing the return, will enliven a discretion on the part of the court to refuse to make a return order. It is the objections of the children in the present case and the conveyance of those objections to the Court which assumes relevance in these proceedings.There are a number of mechanisms by which the court can be informed of matters relevant to these criteria and by which children may participate in so informing the court.A party adduces evidence A party to the proceedings may provide evidence to the court of the child's views. Evidence of those views was adduced by the mother in the proceedings before Forrest J. The evidence took the form of a report prepared by a psychologist who had been commissioned by the mother and interviewed the children in three separate sessions. The report elicited that three of the children wished to remain in Australia and to return to Italy for holidays. The fourth child was content to return to Italy. Importantly, the psychologist observed:"This difference in choices has been influenced by the fact that [EKV, CEV and CIV] took into consideration also their mother [sic] wellbeing based on their knowledge of how she felt living in Italy and how she is feeling now living in Australia, while [LRV's] choice was based solely on her personal preferences related to her memories of her childhood in [P]." As to the admissibility of such evidence, s 69ZT of the Family Law Act disapplies provisions of the Evidence Act 1995 (Cth) ("the Evidence Act") dealing, inter alia, with hearsay evidence[40]. The Court has a discretion to apply such provisions[41]. Even if the Evidence Act does apply, that Act provides for exceptions to the rule against hearsay. Evidence of a child's previous representation may be admissible under one of the general exceptions covering first-hand hearsay[42]. In the case of a child lacking capacity, such evidence may be admissible as a contemporaneous representation of the child's feelings[43].[40]Family Law Act, s 69ZT(1)(c).[41]Family Law Act, s 69ZT(3).[42]Evidence Act, Pt 3.2, Div 2.[43]Evidence Act, s 66A.Family consultant The court may also, as Forrest J did, direct a family consultant to report on such matters as are relevant to the proceedings and as the court considers to be appropriate. Regulation 26 authorises the court to do so[44]. The family consultant may include, in addition to the matters required to be included in the report, any other matter relating to the care, welfare or development of the child[45]. The power thus conferred on the court is similar in terms to the general power conferred on the court by s 62G(2) of the Family Law Act, to direct a family consultant to give the court a report on matters relevant to proceedings before it as the court thinks desirable. Plainly enough the views of a child and, in particular, objections he or she may have to returning to the country from which he or she was removed, are matters which a family consultant can consider in the preparation of his or her report.[44]Regulations, reg 26(1)(a).[45]Regulations, reg 26(2).

Decision

Reasons for decision

FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ HEYDON J
Having regard to the nature and purpose of the proceedings in the Family Court and the steps taken by the primary judge in obtaining a report from a family consultant, and by the children's mother in adducing evidence from a psychologist, there was no procedural unfairness to the children.Conclusion For the above reasons the application was dismissed and the plaintiff ordered to pay the costs of the fourth defendant. These proceedings concern an application under the Family Law (Child Abduction Convention) Regulations 1986 (Cth) ("the Regulations"). The Regulations were made under s 111B of the Family Law Act 1975 (Cth) ("the Act"). Their function is to enable Australia to perform its treaty obligations in relation to international child abduction. The application arose out of a claim that a mother took her four children from their ordinary residence in Italy to Australia and then unlawfully refused to return them to their father in Italy. The application was made by the Director-General, Department of Communities (Child Safety and Disability Services), as the office was styled in these proceedings. The application was made to the Family Court of Australia under reg 16 of the Regulations. It sought orders that the mother return the children to Italy. The Family Court of Australia (Forrest J) made those return orders. An appeal by the mother to the Full Court of the Family Court of Australia failed. An application for special leave to appeal to this Court was discontinued. The proceedings in this Court were brought by the children's maternal aunt as litigation guardian. She made but later abandoned various allegations. Three allegations remain. Underlying those allegations is a contention the plaintiff advanced in written submissions concerning natural justice. She contended that natural justice would not have been afforded to any of the children involved in this case unless they were represented by "an independent legal practitioner" who was "under [an] obligation … to act on the particular child's instructions, … to pursue the outcome which the particular child desires[,] to challenge evidence and submissions advanced against the child's preferred outcome, [and] to advance evidence and submissions in favour of the child's preferred outcome." This contention assumes that each child can be equated with a capable adult. It assumes that each child was capable of giving instructions to the ends described in the contention. These assumptions are factually false in respect of many children. And they are legally incoherent in respect of most children. Contrary to the assumptions, unlike most capable adults, a child is almost invariably under the control of other people who owe the child legal duties. Inevitably, that child is vulnerable to their influence. Further, the assumptions do not fit in with the conceptions which underlie the Act and the Regulations. Under those enactments, even children whose capacity can be equated with that of a capable adult are not generally to be treated as persons who can become conventional parties to litigation between their parents. Some specific provisions in the Act reinforce that conclusion. One example is s 60CE of the Act. It provides that children cannot be compelled to express their views, whether by being called as witnesses or otherwise. Another example is s 100B of the Act. It provides that children are not to be called as witnesses, or to be present in court, unless the Court makes an order permitting it.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, HAYNE, CRENNAN, KIEFEL AND BELL JJ, HEYDON J

Full text does not contain this section.