Case: Re K (1994) 117 FLR 63; (1994) 17 Fam LR 537; (1994) FLC 92-461
The 1994 Full Court of the Family Court decision in Re K remains one of the most cited authorities in Australian family law. Decided by Chief Justice Nicholson alongside Justices Fogarty and Baker on 10 March 1994, the case addressed the difficult question of how family courts should proceed when a parent faces criminal charges, and established comprehensive guidelines for appointing Independent Children’s Lawyers that are still applied today.
The Facts
On 11 December 1992, the wife died from a gunshot wound while in bed with the parties’ only child, then aged two and a half. The husband was subsequently charged with her murder and was awaiting trial at the time of the Family Court proceedings.
The child’s maternal aunt, who lived permanently in the United States, applied for guardianship and custody with permission to take the child to America. The paternal grandparents and paternal aunt (all living in Melbourne) made a competing application. The husband did not claim custody himself but supported his family’s application for “temporary custody” until the criminal proceedings were resolved.
The trial judge, Mushin J, found on the balance of probabilities that the husband had shot the wife. His Honour granted sole guardianship and custody to the maternal aunt and gave permission for the child to be permanently removed to America. The husband, grandparents, and paternal aunt appealed.
The Commonwealth Attorney-General intervened to make submissions about when a child should have separate representation, particularly where removal from Australia was contemplated.
The Key Holdings
1. Proceeding Despite Pending Criminal Charges
The Full Court held that the question of whether to make interim or final orders “depends ultimately upon the circumstances of the individual case” but “that decision is to be made solely against the criterion of the welfare of the child.”
Critically, the Court stated: “The circumstance alone that one of the parties has criminal charges pending would not justify an adjournment. In most cases the child’s welfare would not be served by his or her custody remaining in abeyance over what might be a substantial period of time pending the outcome of proceedings in the criminal courts.”
The Court emphasised that “any perceived disadvantage to the party is secondary to considerations of the welfare of the child.”
2. The Right to Silence
On the accused’s privilege against self-incrimination, the Court adopted the statement of Young CJ in Philippine Airlines v Goldair that “the ‘right of silence’ is a right which relates to criminal proceedings and it would need a very strong case indeed before the court should intervene solely on that ground to stay civil proceedings…”
The Court stated: “The exercise by a party of his or her right of silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue.”
3. The Finding of Involvement
The Court upheld the trial judge’s finding regarding the husband’s involvement in the wife’s death, distinguishing the High Court’s approach in M v M (1988) concerning sexual abuse allegations. Unlike cases where courts should refrain from making positive findings unless compelled, here the death of the mother and the circumstances surrounding it “were central to this case” and “it would have been artificial not to have recorded these basic facts.”
The Guidelines for Separate Representation (Now ICL Appointment)
Perhaps the most enduring contribution of Re K is its comprehensive guidelines for when a child should have independent representation. The Court noted wide variations across Australia in appointment rates and the absence of statutory criteria, and determined it was “appropriate that we should endeavour to give some assistance and guidance.”
The Court emphasised these are guidelines, not rigid rules: “it does not follow that a departure from them will necessarily vitiate a judgment, although judges, judicial registrars and registrars should, we think, give sufficient reasons for departing when they consider a departure is appropriate.”
The broad general rule: The court will make appointments “when it considers that the child’s interests require independent representation.”
Appointments should normally be made where:
(i) Cases involving allegations of child abuse, whether physical, sexual or psychological
The separate representative has an independent investigative role, can arrange for collation of expert evidence, and the child should have an independent person looking after their interests.
(ii) Cases where there is an apparently intractable conflict between the parents
The Court stressed “intractable conflict” — a high level of long-standing conflict where the child is “very much a pawn in the dispute and is often used as such by either or both parents.”
(iii) Cases where the child is apparently alienated from one or both parents
Where alienated from one parent, “this may or may not be for good cause and may have been largely brought about or contributed to by the conduct of the parent from whom the child is not alienated.” The representative can act as an “honest broker.”
(iv) Where there are real issues of cultural or religious difference affecting the child
An increasing feature in our community where the child is “often very much torn between the contesting parties.”
(v) Where the sexual preferences of either or both parents or some other person having significant contact with the child are likely to impinge upon the child’s welfare
To ensure the impact of a party’s sexual preference “can be properly and dispassionately assessed for its relevance to the court’s inquiry.”
(vi) Where the conduct of either or both parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child’s welfare
This includes serious family violence, extending “beyond actual physical violence to circumstances where there is a history of serious threats or psychological and emotional abuse.”
(vii) Where there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the children
(viii) Any case in which, on the material filed by the parents, neither seems a suitable custodian
(ix) Any case in which a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent
The Court was “particularly mindful of the important ‘honest broker role’” in these cases.
(x) Where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for practical purposes exclude the other party from the possibility of access to the child
The Court accepted the Commonwealth’s argument that permanent removal “has such drastic implications for the welfare of the child that a separate representative should normally be appointed.”
(xi) Cases where it is proposed to separate siblings
“Such a step is most serious from the point of view of the respective children” and a representative “should be appointed at an early stage of the proceedings.”
(xii) Custody cases where none of the parties are legally represented
“In such circumstances we consider it imperative that the child’s interests be protected as soon as is practicable.”
(xiii) Applications in the court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not adequately represented by one of the parties
The Court noted these categories are “not intended to be exhaustive” and the guidelines “are not intended to inhibit the discretion of judges” but to give assistance in exercising it. The guidelines were developed with regard to Articles 9 and 12 of the UN Convention on the Rights of the Child.
Enduring Significance
Re K has been cited in over 175 subsequent decisions and remains a cornerstone authority in Australian family law. Its two key contributions—the paramountcy of children’s interests over prejudice to parties, and the ICL guidelines—continue to be applied in courts across Australia.
The Paramountcy Principle in Practice
The principle that a child’s best interests take precedence over any perceived prejudice to a party—including prejudice arising from concurrent criminal proceedings—is frequently invoked.
As recently as Tichy & Tichy [2025] FedCFamC1F 654, Justice Brasch observed that “children’s best interests prevail over any perceived prejudice to a party.” This principle was similarly applied in Baaimen & Lesauvage [2025], Stavrou & Theodore [2023], and Trott & Bligh [2023].
In Bebic & Bebic [2025] FedCFamC1F 541, Justice Simpson applied Re K together with Langley & Tarelli (No 2) [2020] FamCAFC 126, refusing to delay final parenting proceedings pending criminal charges. The Full Court in Langley & Tarelli powerfully reaffirmed Re K, warning that delaying family law proceedings would be “discouraging for the victims of crime, including family violence.”
In Marchant & Bethune [2024] FedCFamC2F 1432, Judge McGinn quoted Re K directly: “The exercise by a party of his or her right to silence or privilege against self-incrimination in civil proceedings is a matter of decision by that party. Its exercise should not ordinarily determine whether the proceedings in this Court should continue.”
The ICL Guidelines in Contemporary Application
The Re K guidelines remain the standard framework for ICL appointments. In Mertz & Mertz (No 2) [2024] FedCFamC2F 53, Justice Mansfield expressly referenced the guidelines in ordering ICL appointment where there was intractable conflict, parental alienation, and sibling separation.
In Kennedy & Peyton [2022] FedCFamC2F 366, Judge Brown noted that while Re K predates modern information-sharing initiatives between family courts and child protection authorities, its guidance on the ICL’s independent investigative role in abuse cases remains central: the representative can “highlight the issues, cross-examine the witnesses and assist the court in assessing the weight to be given to the evidence.”
The case has also been referenced in numerous academic publications examining family violence in the courts, children’s rights, and the evolution of Australian family law.
Conclusion
Re K illustrates the profound challenges courts face when the welfare of a child must be determined against the backdrop of alleged serious criminal conduct by a parent. Its principles continue to guide Australian family law practitioners and judges in navigating these exceptionally difficult cases, where the paramount consideration—the child’s best interests—must be determined amidst incomplete information and competing legal processes.