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International Family Law

The leading authority on international family law

15 APR 2013

RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47; (2013) ICLLR 001

Joint custody under - failure to return children - representation

High Court of Australia


The case concerned four sisters who resided in Italy under a joint custody order between their parents. In June 2010, the mother took the girls to Australia for a 1 month holiday. She failed to return to Italy at the end of the holiday and the father initiated return proceedings through the Queensland Central Authority. On 23 June 2011, the Family Court of Australia ordered the return of the siblings to Australia. The return order then stalled as the mother exhausted her rights of appeal. On 4 May 2012, the mother was ordered to deliver the children to Brisbane airport, which she failed to do. Two weeks later, on 16 May 2012, the mother applied for discharge of the return order. At the same time, the eldest child sought leave to intervene in the proceedings and for the appointment of her maternal aunt as her litigation friend. All of the applications were dismissed. The aunt then applied for judicial review of this decision and made a renewed application for discharge of the return order on behalf of her sister.


1)            The aunt's applications were dismissed and she was ordered to pay costs. The child's views had been adequately presented to the court through the mother's representatives and did not require separate representation. Under s.68L(2) of the Family Law Act, separate representation of children in child abduction proceedings should only be considered where there are exceptional reasons for doing so.

2)            The child's specific objections to returning had been presented in a report by a psychologist and a family court advisor. Again, representation by a lawyer would not have added anything in addition to this evidence.

3)            The aunt was not a suitable person to act as the child's litigation friend. Under the Family Law Rules, the litigation friend should not have any interest in the proceedings; the aunt did not fall into this category.

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