Australian High Court rules no role for kids in custody rows. The High Court has dismissed an appeal that could have given children a greater and more direct say on custody arrangements in legal brawls between parents.
Family law experts yesterday welcomed the decision of the bench to throw out an appeal brought on behalf of four Italian sisters who claimed to have been denied natural justice because they were unable to represent themselves in a battle over their forced return from Queensland to Italy.
The Australian mother of the Italian-born girls, aged between nine and 15, was ordered by the Family Court to return the children to Italy, where she has joint custody with their Italian father. She has appealed that decision in the full court of the Family Court.
But the eldest daughter also sought to prevent her return and that of her sisters, obtaining lawyers through her aunt – their legislative guardian – to challenge the Constitution on the grounds that children should be able to participate in the legal battles of their parents.
Family Law Practitioners Association’s president Deborah Awyzio yesterday welcomed the decision of six High Court judges to reject that argument, declaring the ruling reinforced that the family law system was satisfactory. “I think that it just recognises that the existing processes in place are the correct ones and that there are already procedures in place to ensure that children are heard,” Ms Awyzio said.
“It is not in the child’s best interest to be directly involved in court proceedings because it subjects them to the direct conflict between their parents.”
The man who originally represented the girls’ father, Brisbane-based solicitor Giovanni Porta, said the decision was sensible because children should be sheltered from the psychological toll that comes with being active participants in their parents’ legal battles. “Children do not always know what is best for them,” Mr Porta said.
Speaking outside court, Tony Morris QC, who was acting on behalf of the girls and their legislative guardian, said he was disappointed by the ruling, which was handed down after less than two hours of deliberation.
“I would have personally been more comfortable if the court had recognised a greater set of rights for children and young people,” Mr Morris said. “Certainly the court has recognised on many occasions that adults should not have an order made against them unless they are given a fair opportunity to be heard; my argument was that children should have that same set of rights.”
The girls, who cannot be named for legal reasons and have dual Italian and Australian citizenship, travelled with their mother to Australia for a one-month holiday in 2010 but did not return to Italy.
Their father invoked the provisions of the Hague Convention on child abduction to demand their return.
Mr Morris told the court that if people-smugglers and criminals had the right to be heard in matters relating to their extradition, children should also have that right. “We would say that the position of the child is a far stronger position only because in the others we are talking about persons who are going to be expatriated for some wrongdoing,” he said.
But Mr Morris came under sustained questioning about the practical implications of his proposals from the bench.
Justice Kenneth Hayne asked: “What is a judge to do? Bring the child into the chamber, into open court? That is hardly a practical outcome, is it? What do you do?”
He earlier asked: “Does that mean a six-year-old has a right to be represented?”
Justice Virginia Bell raised concerns that the responsibility of the court was often to make decisions based on a child’s best interest, not rule on what a child wanted. “It seems to me that all your submissions fail to come to terms with the nature of the jurisdiction and the fact that we are dealing with children,” she said.
Mr Morris told the court he was conscious of the sensitivities that arose when children found themselves active litigants against one of their parents, but he said the psychological toll of that was arguably no less than the difficulties that arose when a child felt left out of a significant decision relating to their future.
Walter Sofronoff QC, acting for the Queensland Solicitor-General, said the prospect of children having to get into the witness box and give evidence in cases in which their parents were involved was “abhorrent”.
He said children were already represented through court processes and, unlike adults, they “lack the necessary development in thinking to meaningfully take part in litigation”.
Mr Sofronoff requested the six High Court judges to hand down their judgment promptly, if they had come to a view. Without publishing their reasons, the judges concluded that the girls suffered “no want of procedural fairness” and threw out the challenge with an order for the girls’ legislative guardian to pay costs. The matter will now return to the full Family Court for an appeal, where it will be determined if the girls will be forced to return to Italy.
Mr Morris conceded that the High Court appeal had been a “long shot” but he said the four girls were grateful to have the extra three months in Australia that the constitutional challenge had afforded. “It was the last resort; the day when we applied initially in the High Court, my understanding was that the girls would have been on a plane that evening if we hadn’t brought that application,” he said.
Decision protects kids from far greater hurt
- by: Chris Merritt, Legal affairs editor
ONE of the fundamental concepts underpinning family law has just dodged a bullet.
Had the decision gone the other way, children embroiled in break-ups could have carried the additional burden of being independent players in the destruction of their family.
They could have been afflicted with the worst of all rights: to instruct lawyers to defeat one of their parents.
Even worse, it could have opened the way for children to give evidence against a parent.
Counsel for the four girls at the centre of yesterday’s appeal argued they had been denied natural justice and had not been heard in the “true sense” of the word.
The Family Court already takes into account the views of children. But it does so using a procedure anchored in the concept that it is just one factor.
Courts make decision based on the best interests of the child – not what the child may want.
On those rare occasions when children are represented, it will be by an “independent children’s lawyer” whose duty is very different to that of other lawyers.
Their role can be described as akin to that of counsel assisting a royal commission. Instead of implementing the instructions of their clients, they are responsible for ensuring the court has all the information it needs to ensure a judge can decide on a course in the child’s best interests.
That may involve determining the views of the child. It may also involve commissioning an examination by a psychologist. The child’s views are not conclusive. The real benefit of this is that children, in later years, can be certain they were not responsible for a ruling that might have had shattering consequences for one parent.
The plight of the four girls is gut wrenching. But the High Court’s ruling is sensible.
Despite their defeat yesterday, the fight of these girls to remain in Australia is not over. It will now be fought out before the Full Bench of the Family Court.
All that happened yesterday is that the High Court rejected radical change and upheld legal orthodoxy. By doing so it protected children from even more damage.