RCB v The Honourable Justice Forrest

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.