Forced to return or are they?

Family Law: 23 March 2019

Newspaper headlines have been flooded with the recent decision of the Full Bench of the Family Court of Australia  where four sisters having lived with their Mother in Australia for the last two years, have been ordered to return to Italy to live with their Father under the Convention on the Civil Aspects of International Child Abduction (the "Hague Convention).

Australia and Italy are amongst 72 other member States who are parties to the Hague Convention The Hague Convention seeks to protect children from being wrongfully removed from or retained outside their country of habitual residence except in circumstances where there is a grave risk that the return would expose them to harm. 

The objects of the present Convention are -

(a)    to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and
(b)    to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States

The decision has been perceived to be a controversial one and many commentators', and indeed the Mother of the children has said the children are being 'forced to return without their voices being heard'. However, much turns on the facts and the interpretation and the application of objects of the Hague Convention.

The facts have now been tested and the Courts are of the view that consent had not been provided by the Father and therefore the children have been wrongfully removed from their country of habitual residence, Italy.  In making this determination, the Courts have had the benefit of the evidence before them, including the views of children and the parents. The Courts do not take their decision making lightly or their obligations as a signatory to the Hague Convention. 

On Wednesday, after six days of deliberation, Justice Forrest ordered the prompt return of the children to Italy being the proper jurisdiction to determine the child custody issues.

If your ex partner has relocated to another country with your children or you are concerned about their intentions to relocate to another country or you have intentions to relocate on a permanent basis to another country with your children, please contact our Family Law Team for a confidential discussion about your legal options.