Due to intense media coverage, the Family Law Practitioners’ Association of Queensland (FLPA) has issued an outline of the law and relevant case history of the international custody matter involving four girls on the Sunshine Coast.
FLPA president Deborah Awyzio said in reviewing the case it was important to clarify the laws around the Hague Convention and international parental child abduction laws.
“The principles that apply under the Hague convention are different to the law that applies in Australia when a court is required to make parenting orders,” said Ms Awyzio.
“It is about respecting other countries’ laws and ensuring that the country in which the children were living prior to their wrongful removal, is the country that makes a decision about what is best for the children.
“It is about avoiding parents taking matters into their own hands and ‘forum shopping’ for the best jurisdiction (country) that suits them to make a decision about parenting arrangements for their children.”
Details regarding the current law and a relevant timeline to the case are as follows:
- The law that applies in the decision about whether the children should return to Italy or remain in Australia is the Family Law Act (Child Abduction Convention) Regulations 1986 (Cth).
- The Regulations give effect to Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
An application was made for the children to be returned to Italy. In order to be successful what needed to be established was:
- The application was made within one year of the children being removed.
- The removal was wrongful (without the consent of one of the parents and in breach of another parents rights of custody).
The second point was established by the Central Authority so the return order was required to be made unless a defence to the removal could be established by the mother that either:
- There is a grave risk that the return of the children to Italy would expose them to physical or psychological harm or otherwise place them in an intolerable situation; or
- The children object to being returned and their objection shows a strength of feeling beyond the mere expression of a preference or ordinary wishes and the children are of an age and maturity where it is appropriate to take into account their views.
- January 2007- mother and father separated in Italy
- 27 November 2008 – mother and father entered into consent orders in Italy for children to live with the mother and spend weekend overnight time with the father
- July 2010 – mother failed to return the children to Italy after a four week holiday in Australia
- 18 February 2011 – an application was made under the Hague Convention for the return of the children to Italy
- 16 May 2011 – the application for return of the children to Italy was heard by Justice Forrest
- 23 June 2011 – a decision was made by Justice Forrest for the children to be returned
- 5 August 2011 – an appeal was filed by the mother
- 5 September 2011 – the appeal was heard by the Full Court of the Family Court of Australia
- 9 March 2012 – the Full Court of the Family Court of Australia delivered their decision.
For further information, please contact:
Merrett Pye on 0422 096 049 or Caroline Thurlow on 0414 565 575
The Family Law Practitioners’ Association of Queensland is the leading professional association for the family law sector in Queensland.