This week the Family Court ordered four young girls back to their father in Italy after a series of battles, including to the High Court. Unlike most family disputes, this was played out before the world’s eyes through international media.

The most important thing. Pic: News.com.au

The case reference for the Italian children court case is innocuously abbreviated to [2012] FamCA 839. It represents the best and worst of international and family law, where each case may have no real winners and if there were, the system would be broken.

The Italian Children saga is about a mum who took four kids on a month’s holiday to Australia from Italy and never returned home.

Back in 2011, the courts did ask the girls what they wanted. This was done through an outside of court process. The trial judge was not persuaded that there was an exceptional circumstance and ordered the girls home.

As interest in the case grew, this became a problem because the girls did not actually appear in court to be heard and cross examined. Four vulnerable girls not having their day in court struck a chord with the Australian public.

As allegations of a bad dad swirled, it only grew more salacious. It is easy to think of a man inflicting his ways on his girls. Yet the court records simply suggest a dad desperate to get his kids back.

A lawyer close to the case explained that the Convention of the Civil Aspects of International Child Abduction (the Hague Convention) has some basic principles. First and foremost: if your child is a habitual resident of one country, they cannot be wrongfully retained in a country that is not their permanent home. So by mum not returning the kids, the Hague Convention was triggered, as Australia and Italy are both signatories to it.

The second important part of the Hague Convention is that the legal fight is meant to be in the country of primary residence. In other words, mum should have been litigating this in Italy, not sunny Queensland.

The trial judge bluntly makes the point on why the Hague Convention is so important in his judgement when he says:

Many Australian parents whose children are wrongfully removed or retained away from Australia every year benefit from the application of the provisions of the (Hague) Convention and have their children promptly returned to Australia. But for the existence of the Convention and its observance by the Courts of the signatory states throughout the world, this might not happen.

For this compelling reason alone, the intriguing tale of a mother, a complicit great-granny and four young girls who don’t at times like dad or Italy should have been tossed out of the courts. While the mum’s love of the kids is not in question, her desire to win this fight on foreign soil was a bridge too far. 

Then there has to be some exceptional circumstances as to why the children are not promptly returned home. For three of the children, the evidence suggested a geographic preference; a desire to live in the lucky country and for dad to visit. This does not meet the high bar of an exceptional circumstance, and nor should it as turning the Hague Convention on its head for this reason sets a dangerous precedent.

At the gritty and dark side of this legal battle, that seemed doomed before it started, was one child’s viewed that returning to Italy was escalating her anxiety.

At a direct shot in the arm for the brainwashing allegations against the immediate family, the trial judge said the young girl “has probably been subjected to considerable influence by persons close to her”.

Australian Courts by definition are adversarial. A Family Court judge has the tough job of determining who wins or loses in the entrails of broken love. After all, the Family Court is place where compromise is seldom the winner and where all litigants can roll snake eyes in the craps game of love litigation.

There are four young girls, a mum, a dad and an extended family who will need to have exceptional character to put this behind them. That alone is tragic.

What this case shows is that the system, however brutal, works. If an ex-love runs off to another Hague Convention country with your kids, grand-kids, nieces or nephews, the system allows for them to be returned home as quick as possible.

There are no real winners and if there were, the system would be broken.

You can chat (or yell) at Miles on Twitter @Masterhef

Due to the sensitive legal nature of this case comments are closed.

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