Child custody: a family law perspective

The mother (centre) of the four young girls at the centre of a custody dispute arrives at court hearing in Brisbane. AAP/Dan Peled

Last week’s Media Watch programme on the ABC discussed the role of the Australian media in the custody case of four Queensland children that has created headlines across the country over the past few months.

Host Jonathan Holmes attacked the media’s treatment of the case as “a disgrace” for “milking every extra day of these children’s distress”.

However, despite attracting widespread attention from both media and legal circles, the decision by the Family Court ordering the return of four Queensland children to Italy was not surprising to family law practitioners.

According to the news reports, the four children (all girls, now aged from nine to 15 years) in this case were born in Italy to an Australian mother and an Italian father. The children were “habitually resident” in Italy all their lives. Apparently two years ago, the mother took the girls to Australia on a holiday with the father’s consent but with the aim of staying here. When this aim became evident, this became “retention” under the Hague Convention and thereby became unlawful. The Hague Convention prescribes that action needs to be taken within 12 months of the unlawful removal or retention. The father in this case acted within time and the matter took some time to be heard and determined by the Family Court.

The Convention on the Civil Aspects of International Child Abduction, better known in family law circles as the Hague Convention was signed on October 25, 1980. Australia ratified the Convention in 1986 and enacted specific regulations which set out the appropriate procedure. Over 70 countries have ratified the Convention including the United Kingdom, the United States of America and many European countries including Italy.

The Convention applies to children under the age of 16 years who are “habitually resident” in one Convention country and wrongfully “removed” to or unlawfully “retained” in another Convention country. All these terms are defined in the Regulations and in case law. One underlying purpose of the Convention is to recognise and protect parental rights and domestic family law in the children’s home countries. The appropriate court to hear Hague Convention cases is the Family Court of Australia.

There are six grounds under the regulations on which the Family Court may exercise discretion and refuse to return a child to their home country. One ground is that there is a “grave risk” that returning the child would expose the child to physical or psychological harm. That is a question of the facts and evidence presented and it is not clear upon what evidence the mother in this case was relying.

On the basis of Italy being the children’s country of habitual residence, the Family Court ordered the return of the children to Italy. However, the order does not specify with whom the children should live nor who should be their guardian or custodian. Those issues are questions for the local Italian courts of competent jurisdiction. That avenue is still open to the mother in this case. She is free to return to Italy and seek custody of the children there. She is also free to seek permission in the Italian courts under Italian law to relocate with the children to Australia.

In this case, the mother could have applied for permission in Italy to relocate rather than removing the children on the pretext of a holiday and then unlawfully retaining them in Australia. Whether she would succeed or not depends on local Italian law and not on international law principles.

One of the girls struggles against police after the Family Court ordered they be returned to their father in Italy. AAP/Channel Seven

The best interests of a child is the paramount consideration in all family law proceedings. There were a number of issues in this case that appeared relevant to the determination of best interests. One issue was the apparent wish of all four children to stay in Australia. That needs to be examined. From the media reports, it seems that the girls wanted to be with their mother whether she lived here or abroad. That is understandable because for the last two years (if not longer), she has been their primary caregiver and clearly the parent with whom they have a primary attachment.

Further, they have interacted closely with their mother’s family and friends for the last two years and that again reinforces their attachment to their mother. According to the judge’s findings, this close relationship with the mother and her family negatively influenced the children against their father. When the original Family Court decision was made that the children return to Italy, someone placed the children into hiding in contravention of the court order.

Again, that is not just in contempt of a court order but clearly, on any interpretation of the facts, being on the run and involved in court proceedings and then in hiding is not in the children’s best interests.