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Italian girls High Court custody challenge

2012-12-12

What the media didn't tell you in this year's High Court Italian girls decision. Gordon Ainger provides us with some insight.

It's not often that a Family Law case makes national headlines, but that happened earlier this year when an Australian born mother defied an order of the Family Court and refused to return her four Italian born daughters to Italy.  The girls were taken into hiding, family members were interviewed on commercial television, a High Court bid failed, and the girls eventually returned to Italy in October 2012.

This case concerned proceedings under the Hague Convention, which applies where there are allegations of child abduction or over-holding in another country.  The convention rests on the assumption that it is better for arguments about children to occur where the children usually live.  For example, Australian children who are abducted to a signatory country are to be returned to Australia where any arguments between the parents can be determined by the Family Court.  Those Australian children would have friends and relatives in Australia,  teachers and doctors, and other professionals, all who would be in a better position to give evidence about the children and their interests, than people in the second country who will have known the children for a much shorter time, and whose view of the children and of the parental relationship may have been tainted by the abducting parent.  The convention is very technical, but there are exceptions an abducting parent can rely on to prevent a return order being made.

In the 2012 case, the four girls had all had lives as Italians, and had spent time with each of their parents under a parenting agreement made in November 2008.  The mother came to Australia for a holiday in 2010 and did not return.  As the trial judge said on 23 June 2011 when handing down his original decision:

"These four girls were all born in Italy and have lived in the same village since their birth until coming here to Australia.  They spoke little English before they arrived in Australia. They were, the evidence establishes, talented at [a sport, details omitted] having made it to national competition level.  When their family was intact they lived in the same villa as their paternal grandparents.  Since [the separation of their parents] they have had extensive weekly contact, including over weekends, with their father and paternal grandparents.  On the evidence they appear to be reasonably happy, fairly well adjusted young children who have coped remarkably well with their parents' separation in circumstances appearing to be of high family conflict."

The mother appealed that decision, and several other court applications were made attempting to ensure the girls remained in Australia.  All were ultimately unsuccessful.  Members of the maternal family took the girls into hiding and the 'media circus' began.  The legal processes took some time to complete.  The judge hearing the final case before the girls returned took a dim view of the actions of the maternal family and commented on 3 October 2012 before ordering the girls' return:

"the circumstances in which these girls have found themselves directly involved in the efforts of their mother, and other members of the mother’s extended family, to keep them in Australia, notwithstanding the decisions of the Court, have had a significant emotional impact upon the children. The very public nature of the campaign has been very disturbing. I am satisfied that they have definitely not been shielded from the dispute and have clearly, I find, been significantly influenced in their views and their conduct by their mother and other members of her family."

The mother is now free to commence action in Italy, where the original parenting agreement was made, to discharge or vary that 2008 agreement.

Please contact Gordon Ainger, Accredited Family Law Specialist at gainger@richbenn.com.au in the event you have any queries relating to this contact or Family Law matters generally. 

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