High Court bid over sisters could be game-changer
A HIGH Court of Australia challenge in an international custody dispute could have far-reaching legal consequences if it is successful, a family law expert says.
Four sisters, aged between nine and 14, have been trying to avoid a family court order to return to Italy with their father.
The girls’ aunt has launched a High Court challenge in a bid have the order quashed.
The aunt’s barrister says he is challenging the federal law that says children can only have their voice heard in custody disputes under exceptional circumstances.
The Family Law Practitioner’s Association of Queensland says if the challenge is successful, it could entirely change the way courts deal with children in similar custody disputes.
The association’s president Deborah Awyzio says it has been a longstanding practice that children in custody disputes are not directly involved in court proceedings because they are considered too young.
Instead they are interviewed out of court by a social worker or psychologist who provides a report to the judge.
Ms Awyzio said if the High Court upheld the current challenge, it would effectively be saying the usual process was not enough to afford natural justice to children.
She said it would have long-reaching consequences for family law.
“It will mean there will have to be a review of the process that’s currently in place for having children’s views presented to the court,” she told AAP.
“It will have to be adapted.”
She says it probably would only affect similar international disputes rather than ordinary custody disputes.
It is understood that if the High Court challenge is successful the case will go back to the Family Court, where the sisters will be given an opportunity to have their wishes heard.
It will then be up to the Family Court to make a final decision about whether they can stay in Australia.
The court last year ruled the girls must be returned so the matter could be settled by the Italian courts, in line with the Hague Convention on the Civil Aspects of International Child Abduction.
Ms Awyzio says it is possible that if the case goes back to the family court, the court could change its ruling to allow the girls to stay in Australia.
She says the Hague Convention would still apply but new, stronger evidence may be presented to the court regarding the girls’ wishes to stay in the country.
She says the sisters will also be older, and therefore the judge more likely to take their wishes into account.
As a rule of thumb, a child of 13 or 14 is usually considered old enough to have their wishes taken into account but it is up to the discretion of the judge.
“The main thing is the evidence will be different than what was relied upon in the initial hearing,” she said.