Children and arranged marriages- Madley v Madley

Publications > Children and arranged marriages- Madley v Madley

 

January 2012

In a recent family law decision of the Federal Magistrates Court, a 16 year old girl was able to restrain her parents from removing her from Australia for the purposes of entering into an arranged marriage.

 

Facts:

• A 16 year old girl had been arranged to marry a man she had met once;
• The man lived in a non-Hague Convention country;
• Should she have been forced to leave Australia, there would have been no way of preventing the marriage from proceeding;
• She applied to the court for her name to be placed on the Airport Watchlist; and
• Her application was brought without the knowledge of her parents.

 

Law
In order for the application to be brought without her parent’s knowledge, the court must have ensured that legislative tests had been satisfied and the consent of the child was given.  Further, the court noted that the child was able to seek an order on her own behalf with regards to her care, welfare and development.

 

The Family Law Act is concerned with the rights of children, as opposed to the right of parents.  The child had a right to express her concerns and to be treated independently of her parent’s wishes.  She made clear her wishes that she did not consent to this marriage and feared the reactions of her parents when they found out about the application.

 

The court commented that if the marriage were to be arranged to take place in Australia, the marriage, without the consent of the child, would be void. 

 

The court was required to consider the psychological harm to the child were she to be forced to marry.  The court was satisfied that there was a psychological risk to the child and that it was the duty of the court to protect the child from this harm by ensuring that she didn’t leave the jurisdiction.

 

Decision?
Ultimately, the court gave weight to the views expressed by the child and ordered that the parents were restrained from removing their daughter from Australia and had to surrender her passport.

 

Helena Redmond
Trainee Solicitor, Family Law