High Court of Australia

RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47

247 CLR 304; 87 ALJR 1; 292 ALR 617

7 Nov 2012

Case Number: B28/2012


French CJ, Hayne, Heydon, Crennan, Kiefel, Bell JJ


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 return order – Whether procedural fairness required children to have independent legal representation.

Words and phrases – "family consultant", "independent representation", "return order".

Family Law Act 1975 (Cth) – ss 62G, 68L, 68LA, 69ZT, 92, 111B.

Family Law (Child Abduction Convention) Regulations (Cth) – regs 14, 16, 19A, 26.

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