There has been a great deal in the press over the last week or so about the Family Court’s decision to send the four girls in Brisbane back to Italy.  The question has been asked, was it the correct decision?

 A lot of what has been reported in the press is inaccurate and misleading.  The brief facts, as determined by the court, are as follows.

The mother was born in Australia but went to study Italian language in Italy when she was 16 years old.  She fell in love with the father and married him when she was 17.  They had five daughters, one of which died as an infant due to birth abnormalities.  The surviving four girls are aged 14, 12, 9 and 8.  After the death of their third child the father experienced some mental health problems and became depressed.   This led to their separation in about January 2007.  There was some evidence of a serious domestic violence incident perpetrated by the father against the mother that precipitated the separation.

In November 2008 the parties entered into a “consensual separation agreement” with the sanction of the court in Italy.  This agreement provided for joint custody of the four girls and that the girls were to reside mostly with the mother with visitation rights to the father.  The visitation rights for the father included every second weekend from after school Friday until the commencement of school Monday.

Soon thereafter, the mother decided that she wanted to return to Australia with the girls and managed to persuade the father to sign a passport application so that the girls could obtain their passports.  The evidence of the father was that he understood that the mother was taking the girls to Australia for a holiday.  The mother denies this and says that she told the father she was returning to Australia permanently.  The mother had purchased return air tickets for a return to Italy on 20 July 2010.  Her explanation to the court was that her research revealed that return air fares were cheaper than the fares for one way tickets.

The mother also claimed in her evidence that she had the assistance of the Australian Embassy in Italy to secret the children out of the country.  On this aspect the Judge said:

“I have read through the hundreds of pages of the DFAT documents put into evidence by the mother and have found nothing that supports a finding that any Australian Government official somehow knowingly assisted the mother to do something that was wrong.  On the contrary, the documents support a finding that Australian Government officials repeatedly made it clear to the mother that a permanent return to Australia which involved relocation of the four girls to Australia would only be achieved with the informed consent of the father.”

The judge found that a “telling piece of evidence” was an article from the Sunshine Coast Daily newspaper that reported about the escape from Italy.  In the article the mother is quoted as saying, “After we divorced I knew I wanted to come back to Australia but it was so hard to escape

[the father].  He would not sign the girls’ passports and I had to coax him over time.  I convinced him to let me take the girls to Australia for a holiday and as soon as we got to Rome the Embassy looked after us and made sure we got out”.

The mother further told the court that she had a witness who could testify that the father had provided consent for relocation back to Australia.  Despite being afforded the opportunity to produce this witness to corroborate her evidence she was unable to do so.

The application made by the father was for an order for the return of the children pursuant to Family Law (Child Abduction Convention)Regulations 1986  otherwise known as the Hague Convention.  Various countries throughout the world (including Australia and Italy) have signed the convention and agree to be bound by the convention.  The convention generally provides that there should be a prompt return of an abducted child to its home country.  The mandatory return is subject to the discretion of the court not to order a return if the parent opposing the return can establish:

The other parent was not actually exercising rights of custody prior to the removal of the child;

  1. The other parent had consented to the removal of the child;
  2. There is a grave risk that the child would be exposed to physical or psychological harm;
  3. The child objects to the return but at the same time the strength of feeling is beyond mere wishes and the child has a level of maturity to be able to express such a wish.

The court found that the father was exercising his right to custody and that he had not consented to the removal of the children.

In relation to the grave risk issue the mother’s argument was that because of the fathers history of mental illness there was a risk to the children.  On this issue the Judge said:

“The mother gives evidence that since separation she has been subject to some harassment and further verbal abuse by the father and even death threats.  She does not assert that he has been physically violent to her since she moved away from the villa they shared in early 2007.  Of course, there can be no condoning of any ongoing harassment, threats or verbal abuse but the nature of these Hague Convention applications is such that a court in this country has, to a significant degree, accept the capacities of the Courts and the law enforcement agencies of countries, such as Italy from whence these children came, to provide suitable protection and remedies for the mother in such circumstances.  Conscious of this, I simply cannot accept the mother’s evidence that the Italian system is such that she cannot get such protection and remedial support.”

One of the key aspects of the Hague Convention is the protection of children from harm.  It is understood, therefore, that each country who is signatory to the convention will ensure that all children will be afforded such protection.  It is important that in Australia, we have confidence in other countries to ensure that this protection and support will be provided to the requisite standard.  If Australian courts question other countries ability to do so it will lead to a loss of confidence in that country to ensure that Australia will do the right thing when called upon to do so.  Consider, for example, that a child is abducted from Australia to Italy.   What if the parent opposing the return of the child to Australia suggested that our legal system was incapable of providing protection of the child from harm?  We would be outraged.  Just as we expect that Italy has confidence in our legal system we are obliged to have the same confidence in the Italian system.

There was also evidence given by the mother that she proposed that the father could spend holiday time with the children in Italy.    The court found that this proposal by the mother was inconsistent with her view that the children were exposed to a grave risk of physical or psychological harm.  The judge also said:

“Significantly on this point, although it was a course available to the mother, she had taken no steps prior to leaving Italy to seek to have amended the terms of the consensual agreement that was sanctioned by the [Italian] Court in November 2008, as a consequence of any concerns she held for the children’s wellbeing in the regular weekly care of the father assisted by his mother”.

Finally, there are the wishes of the children.  No doubt, you have seen the very disturbing images on the television of the children being physically dragged into a car by officials.  On the face of it, this shows strong objection by the children of a return to Italy.   During the course of the hearing the children were interviewed by a Family Consultant, who is an expert appointed by the court to provide an opinion.  The Family Consultant told the court that the children identified missing aspects of their lives in Italy, including school, friends and family members.  The Family Consultant’s expert evidence was that the basis for the girls’ objections to returning to Italy was predominantly related to their perception that their father had historically perpetrated violence against their mother.  The Family Consultant said that the two younger girls “lacked the cognitive sophistication for their views to be taken into account fully”.  As for the elder girls the Family Consultant said that they “would lack the ability to truly predict what impact their choices or views would have for their future relationship with their father”.

It is not hard to imagine that with all of the hype surrounding the case that the children have been influenced by the need to stay loyal to the wishes of their mother.  It was the mother’s considered view, borne out by her evidence that there was a grave risk to the children in the father’s care, despite the inconsistencies of her evidence set out above.  The children no doubt believed that there was a danger to them because of what they had been told by the mother.  But, does this mean that the children were able to make an informed decision about this?

The judge made it a condition that the father pay to the mother the sum of $8,000.00 for her and the children’s immediate support upon return to Italy.  Although the father had made the money available to the mother she decided that she did not want to take it because she had no plans to return to Italy.  For whatever reason, the mother was convinced that she would not get a fair hearing in an Italian Court upon her return and decided not to return to Italy with the children.

This case is a very clear example of the need to follow the proper steps when a parent is considering the relocation of children to another country.  There are many cases in the Australian courts and overseas each year which decide the fate of parents wishing to move their children across international borders.  Traditionally, in Australia the court determines these cases based on the individual merits of each case.

One thing, however, that is almost certain, is that if a parent wishing to move children overseas does not obtain the consent of the other parent or the court, it is most likely that the children will be ordered to be returned to their country of origin.*

 *There are presently 74 countries who are signatories to the Hague Convention.  It is not possible to invoke the provisions of the convention in a country who is not a signatory.  If you suspect your children are going to be removed to a country who is not a signatory you should seek immediate legal advice as to options available to you to prevent the removal from Australia.

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