Custody Disputes

Posted on.
By Watkins Tapsell.

Unlike business and corporate oriented areas of law, there is no hiding from the underlying, and sometimes overwhelming emotions that can occur in family law proceedings.

Particularly in parenting matters, proceedings are often fraught with highly strung situations that don’t lend themselves to rational thinking or negotiation.
The media often takes an interest in these highly dramatic matters, none more so than the recent case involving four daughters, their mother in Australia and their father in Italy.

Late last week Brisbane judge Colin Forrest dismissed the mother’s last-ditch application to overturn an order for the Sunshine Coast girls to go back to their father.

What followed were dramatic scenes of the Australian Federal police forcibly removing the girls from their mother and being escorted onto a plane destined for Italy. In this emotional and moving scenario it is easy to jump to the conclusion that the Family Court somehow erred in judgment, tearing children from their mother without a justifiable reason.

Before jumping to this conclusion though it is important to understand why Judge Forrest made his decision:
The Judge was not asked to decide who was the better parent, or which country provides the better lifestyle, or even where the children would prefer to reside.
The judge’s decision was based solely on an international agreement Australia has made with a number of other nations to respect the rule that the place of the children’s habitual residence is the correct jurisdiction for deciding where the children should eventually reside. This agreement is known as the HAGUE convention.

While the Judge was aware that the girls did not wish to return to Italy he expressed the duty of the Family Court to uphold our obligations to the convention:
“Many Australian parents whose children are wrongfully removed or retained away from Australia every year benefit from the application of the provisions of the convention and have their children promptly returned to Australia,” he said.
“But for the existence of the convention and its observance by the courts . . . this might not happen.”

What this essentially means is that the correct forum for deciding where the girls should live, was Italy. When the mother elected not to return the children to the father after what was scheduled to be a short holiday, the father commenced proceedings to determine where the children should live and have the children returned to Italy for that determination.

What can you learn from this
There are two important lessons to be taken from this unfortunate event.

1. That Family Court Orders, in ANY jurisdiction, whether entered into by agreement or not, must be taken seriously, and must be complied with where possible.

2. That parents residing in different countries, or looking to relocate to a different country should carefully consider the application of the Hague Convention before taking any action. Not all nations are members of the Hague Convention so you should be aware of the risk of taking children to any particular country.

For further information contact our Family Law Team

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