High Court of Australia rejects legal representation for children claim

Crown Law’s unique role in the Queensland legal system was again demonstrated when our lawyers appeared in a matter concerning children at the centre of an application made under the Hague Convention on the Civil Aspects of International Child Abduction.

This case brought together the legal skills and expertise of our Constitutional Law and Advocacy Teams to resolve what was a sensitive legal issue involving a family. The issues arose when the children were brought to Australia by their mother and their father applied under the Hague Convention for a court order for their return to Europe.

Crown Law appeared in the matter as the legal representative for the State Central Authority (SCA).

“The SCA has defined duties to give effect to the wishes of those seeking the return of their children to their country of origin,” Principal Lawyer with the Advocacy Mackenzie Chambers Kevin Parrott said. “In this matter, Justice Forrest had originally ordered on 23 June 2011 that the children be returned to Europe.”

In August 2012, Justice Forrest agreed to hear an application to discharge that order, with no steps to be taken to enforce the children’s return to their home country in Europe before that date.

“The hearing on 16 August followed an unsuccessful challenge to the constitutional validity of s 68L(3) of the Family Law Act 1975 (Cth), brought by the children’s litigation guardian in the High Court,” Senior Principal Lawyer with our Constitutional Law Team Felicity Nagorcka said.

The effect of s. 68L(3) is that in Hague Convention matters, an ‘independent children’s lawyer’ may only be appointed in ‘exceptional circumstances’. In this case, Justice Forrest had not ordered that an ‘independent children’s lawyer’ be appointed.

In the High Court, lawyers for the children’s litigation guardian argued that this meant the children had been denied procedural fairness in the original hearing before Justice Forrest and that Justice Forrest’s orders should therefore be set aside.

Queensland Solicitor-General Walter Sofronoff QC, who appeared for the SCA in the High Court, said the notion that the children had been denied procedural fairness could not be substantiated as all of the material concerning their wishes relating to return, including a family report prepared for that purpose, had been placed before Justice Forrest.

Mr Sofronoff also noted that the proceeding in the High Court lacked utility as a number of applications to discharge Justice Forrest’s order had been made.

“The complaint here is that Justice Forrest should have entertained a third party, namely the children, by their own lawyer yet an application to that very effect has been made and dealt with and refused on the merits,” Mr Sofronoff said.

“This Court is being asked to decide something that has really been overtaken by events, namely by the fresh applications that have been made and determined by Justice Murphy,” he said.

The High Court made orders in August dismissing the proceeding, finding that the children had not been denied procedural fairness in the proceeding before Justice Forrest and that the challenge to the validity of s 68L(3) failed.

Kevin said Justice Forrest also had ordered the children be re-interviewed by a family consultant to ensure their wishes were understood.

The proceedings in the Family Court under the Convention are yet to be finalised. Justice Forrest will now consider further evidence, including the new report, and determine whether the order for the return of the children to Europe should be discharged.

The information in this publication is provided for general purposes only. It is not to be relied on as a substitute for legal advice. Crown Law and the Department of Justice and Attorney-General accept no liability for losses caused by reliance on the material in this publication. Formal legal advice should be obtained for particular matters.

Published: 3 October 2012