A High Court bid to allow four Queensland school girls at the heart of an international custody row to remain in Australia has failed.
But the girls’ future is still uncertain with an appeal pending in the full Family Court.
Six judges in the High Court this afternoon dismissed the appeal, and will publish their reasons at a later date.
The girls are expected to remain with their mother in the meantime, pending the outcome of the Brisbane court case.
Earlier lawyers for the aunt of four sisters told the High Court the children were unfairly denied a legal voice.
But lawyers for the Queensland government say it would be “abhorrent” to create a situation allowing vulnerable children to become legally embroiled in courtroom brawls between their parents.
A full bench of the High Court in Canberra today heard a bid from the girls’ aunt, acting as their litigation guardian, to quash orders sending the children back to live with their father in Italy.
The four girls, aged between nine and 15, were born in Italy and hold dual Italian-Australian citizenship.
In June 2010 the girls and their mother returned to Australia ostensibly for a one-month holiday.
But they have been in the country ever since, and their father sought their return under The Hague Convention’s anti-abduction provision.
In February 2011 the Queensland Department of Communities’ Child Safety and Disability Services branch sought to force the girls’ return under child abduction laws.
And in June last year a judge of the Family Court ordered the girls to be sent back to Italy.
However, the mother appealed and today a high-profile legal stoush has now found its way to the highest court in the land.
Lawyers for the girls’ aunt say the Family Court judge should have given the children the opportunity to have their own legal representation.
According to laywers’ submissions the High Court had previously ruled a child should ordinarily have separate representation if they were at an appropriate age and degree of maturity.
In 2000 amendments to the federal Family Law Act effectively turned that presumption on its head, restricting separate representation to “exceptional cases”.
The aunt’s counsel, Anthony Morris, QC, said any person, regardless of age or disability, should have the right to present a case or respond to a case concerning their interests.
“There is, as it were, a prima facie right to be heard in the full sense,” he said.
Mr Morris argued procedural fairness should be the “gold standard”.
But Walter Sofronoff, QC, Queensland’s Solicitor-General, said the position of children involved in litigation between parents could not be compared to that of capable adults.
He said children might lack legal standing and “may lack the necessary development in thinking to meaningfully take part in litigation”.
“And indeed their development may be such that it would be abhorrent to consider them persons who would normally become parties to litigation between their parents,” he said.
The Solicitor-General said the judge had considered the best interest of the children by reading a family consultant’s report.
But Mr Morris said while the report was admissible as evidence, it should not be considered an alternative to separate advocacy.
The court also has the power to appoint an independent children’s lawyer.
Mr Morris, however, said such a lawyer could not be considered a real advocate for the interests of the child.
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