As expected (at least by most Family Lawyers) the application was dismissed.
So now I'll need to wait until the transcript and judgement are published to hear all the arguments that were put forward. In the meantime, I am forced to rely on what the media has reported, which unfortunately in this case, has not always been 100% accurate.
According to ABC News "Justice Virginia Bell told the court a key element of the family law regime is that the best interests of the child may not always accord with what the child wants." (http://www.abc.net.au/news/2012-08-07/high-court-custody/4182818) This approach is certainly not surprising to those of us who practice in family law on a daily basis.
Another interesting point to note is that although the Family Court made it very clear it expected the mother to comply with her undertakings to the Court not to encourage or facilitate the children being involved in the media regarding the case (see the June Judgement), shortly after the hearing finished, the twitter account called "Voiceless Kids" (which was apparently set up by or on behalf of the 4 girls) posted links to reports in the media about the High Court dismissal. Their facebook page had similar posts.
There are now claims that children are being "denied a voice" by the Courts, but the fact remains that the children DID have an opportunity in this case to be heard. Rather than attend the Court room and be involved in the "fight", they met with an appropriately trained Family Consultant, without their parents present, and were able to put forward their views and concerns. These WERE presented to the Court and considered before the decision was made (see the original Judgement)
The Family Law Act, the Family Court and the Hague Convention may not be perfect, but the system is there for a reason. If we did not follow the principles set out regarding "child abduction", then we could be faced with an influx of parents unilaterally removing children from countries without the other parent's consent.
If as Australians we expect that a child who was raised in Australia and then taken by one parent to another country without consent (to Italy for example) should be returned to Australia, then we need to acknowledge the same will occur when children are brought to our country in similar circumstances.
Here is the actual quote from Justice Bell:
ReplyDeleteBELL J: You speak as though the informing principles are to pay no regard to the peculiar and historic nature of this jurisdiction. The reason that the lawyer appointed under section 68L of the Family Law Act is called the independent children’s lawyer, in part, is to avoid the risk that the child might misapprehend that the function of the lawyer is to advance the case that the child wants to advance. All of this against a background that the court is concerned generally in the exercise of its jurisdiction to make orders having regard to the best interests of the child, not something that will necessarily coincide with the child’s perception of its best interests. It seems to me that all your submissions fail to come to terms with the nature of this jurisdiction and the fact that we are dealing with children.
On Tuesday 7 August 2012 French CJ gave this brief judgment on behalf of The Court:
ReplyDelete"In this matter, the second defendant submits that steps taken by the principal parties to the action in this Court in proceedings in the Family Court of Australia have deprived the action in this Court of practical utility. Whether or not that is so, the Court is of the opinion that the plaintiffs have demonstrated no want of procedural fairness in the making of any of the challenged orders of the Family Court of Australia. To the extent to which the plaintiffs maintain to their challenge to the validity of section 68L(3) of the Family Law Act 1975, the Court is of the opinion that the challenge fails. The proceedings are dismissed. The Court orders that RCB as litigation guardian pay the costs of the fourth defendant. The Court will publish its reasons at a later date. The Court will now adjourn until 10.15 tomorrow morning."
Great post!! One needs to remember that for a successful resolution of a case you do not necessarily need to hire an expensive lawyer. Experienced lawyers can also deliver good results.
ReplyDeleteFamily Lawyers Northern Beaches