Mother in Family Court to keep her children in Australia – Children and Divorce

This week, Australia’s attention has been drawn to the plight of one Australian-Italian family, where a mother is fighting desperately to keep her four children in Australia after bringing them here on holidays more than two years ago. The children’s father, residing in Italy, has claimed that the girls, whom he shares custody of, were taken overseas against his will and has demanded their return.

Earlier this month, the Family Court ordered the four girls, aged between nine to 14, to return to Italy for custody proceedings. The girls failed to board their court ordered flight back to Italy and have now gone into hiding with the alleged assistance of their great-grandmother. The mother has made a final desperate plea to keep the girls in Australia permanently.

It’s a story made for news headlines, and indeed has received ample coverage by media outlets as the dramatic tale unfolded.

What are the international laws in play?

Relocation and “tug-of-love” battles are among the most challenging cases to decide in Australian Family Courts, and the situation only worsens when international borders come into consideration.

Each Court under the Hague Convention is obliged to ensure that when a child is wrongfully removed or retained in its jurisdiction against the other parent’s consent, that the child be returned to their place of “habitual residence”. The test is where were the children habitually residing before they were removed unilaterally by the other parent. The convention would apply if a child or children were taken to another country with the other parent, by consent, for a “holiday” and then that parent refused to return the child or children to the place of “habitual residence”. A determination to return the children to the place of “habitual residence” then enables the law of the country of “habitual residence” to then consider the application of both parties to the question of whether it is in the best interests of the children to move to the new country in a “relocation case”. The purpose of the convention is to stop the chaotic situation where parents abscond with children overseas, rather than relocating with the consent of the other party or in accordance with a Court Order following a fair hearing.

An Order for the return of a child to the country of “habitual residence” under the Hague Convention does not finally determine that dispute. The parent can prosecute an application to relocate to their country of choice.

 

There are a few exceptions to the mandatory return requirement. Often a parent opposes the return to the country, demonstrating a “grave risk that the child’s return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. Article 13(b) permits a Court to make that finding and order that the children not be returned under the Convention.

It is important to remember that the burden of proof to demonstrate “grave risk” to psychological or physical harm lies with the opposing parent. The mother has alleged that the father is violent and has struck her and the children on multiple occasions. The Court must assess those allegations and make a determination that the children would not be protected from the physical or psychological harm if they were returned to the original country.

Can the children have a say?

In each Hague Convention application in Australia, the Court orders a Family Consultant suitably qualified to report to interview the parties and the children and provide a report to the Court. This is one of the pieces of evidence that is considered by the Court in addition to the testimony of each of the parents. The children are also represented by an Independent Child’s Lawyer, with whom the children have access.

Earlier this week, the eldest sister aged 14 made an application for a stay of proceedings which can temporarily have the legal process halted. No doubt further evidence will be led before the Court so that the Court can consider that evidence. If all of the evidence does not persuade that the children are in the “grave risk” category, then the Court will be required to comply with the Convention.

It is important to note that her sisters have not been covered by that stay of proceedings.

It will be interesting to see how the rest of this particular case pans out. It is the policy of the Australian Courts that it be considered a Court which complies with the spirit and the law of the Hague Convention. There are some countries which are not signatories to the Hague Convention and there are some countries which are, while being signatories to the Hague Convention, are not compliant with the Hague Convention.

What do you think?

UPDATE: The High Court in Brisbane has ruled that the girls will remain in Australia until as late as August before being sent back to Italy to their Father. Is this in their Best Interests? Have your say.