Facts
X. and Y. married in 2000 and have two children together, A. (born 1987) and B. (born 1998). In the divorce proceedings, the court of first instance awarded sole custody of B. to the mother, with visitation rights for the father. Both parties appealed against this arrangement for personal contact with the daughter. The father demanded a vacation right of three weeks, while the mother requested a limitation of the visitation rights to two days per month. The High Court dismissed both appeals.
The mother filed an appeal seeking the revocation of the visitation rights arrangement and the remittal of the case to the lower court for the taking of further evidence, in particular the hearing of B. The father waived the filing of a cross-appeal.
Considerations
The Federal Court states that orders concerning children generally require a personal hearing of the child by the court or an appointed third party, unless the child's age or other important reasons speak against it. In the present case, B. was seven and eight years old respectively at the time of the lower court rulings, so the exclusion ground of the child's age did not apply.
The Federal Court holds that a hearing by the judge himself and a hearing by an appointed third party are equivalent. A hearing by an independent and qualified professional may be preferable to a hearing by the judge if the professional has specific training and experience. However, a hearing for the sake of a hearing…