11 October 2012
Family Law Solicitor Hannah Cornish discusses International Custody Dispute
Recently, four Italian/Australian sisters have been the subject of a high profile international custody dispute. The sisters grew up in Italy and went on a holiday with their mother to Australia in 2010, which should have been just for one month, but never returned. In 2011 Australia issued a Family Court Order that the custody dispute must be resolved in Italy. In May this year, the mother failed to put the girls onto a plane by a court-imposed deadline and the girls were later found in hiding.
The girls were forcibly removed from their mother by Australian authorities last week and driven to Brisbane airport where they were returned to their father’s care. Disturbing scenes captured by the Australian media show the girls being removed and their mother collapsing in the road hysterical. The mother asserts she cannot return to Italy to be with her daughters as she is on a student visa in Australia and has no money. She says she would also receive a frosty reception from the paternal family. Hours prior to the removal, Brisbane Family Court Justice Colin Forrest ruled the girls must be returned to Italy. A lot of the focus in the court proceedings has been on whether the girls’ wishes and feelings had been properly considered. Justice Forrest found the girls had been “significantly influenced” by their mother. The girls certainly expressed a clear wish to stay with their mother in the footage, but Australia is a party to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“The Hague Convention”). The removal or retention of a child from a Hague Convention country would be considered child abduction and therefore liable to be put right if it breached rights of custody attributed to another person, institution or body under the law of the state where the child lived before the removal (Art 3 of the Hague Convention). The Judge found the girls’ desire to stay in Australia did not override the international obligations imposed by the Hague Convention. Australians have expressed their anger and dismay at the shocking scenes.
But despite the awful scenes the mother arguably should not have taken the law into her own hands and abducted the girls. The mother made a unilateral decision to relocate with the girls when legally she should have sought the consent of their father or the Italian court. Some would argue she has prevented them from having a meaningful relationship with their father over the past couple of years. They will no doubt have a very fraught relationship with him right now in Italy. If you find yourself in an international relationship careful planning is a must if you have Children.
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