International Child Abduction
By: Stacey Taylor, Lawyer, Family Law and Michael Nibaldi, Graduate, Mason Sier Turnbull
The Story of Four Italian Sisters
Four Italian sisters, aged between 9 and 15, left Italy to holiday with their mother in Australia. The holiday was only supposed to last for a month. Two years later, the children have been sent back to Italy by the Family Court of Australia, so that a court in Italy can determine their future living arrangements.
While this episode has unravelled, the father has remained in Italy, his plight evidencing the troubles that can occur when children are abducted by their own parents.
The parties separated in 2007 and agreed on joint custody of their children, an agreement that was designed to enable the father to spend time with his children.
The Hague Convention is an International Treaty, which aims to protect children who have been abducted and taken overseas by establishing procedures to return children to their home country. Australia and Italy are both signatories to the Hague Convention, meaning the Convention applies to the Italian sisters.
Utilising the Hague Convention, the father took the matter to the Family Court of Australia, requesting that his children be returned to Italy, where custody proceedings would take place to determine who the children should live with, and where.
After five months of legal battles, including an appeal to the High Court of Australia regarding the Family Court’s ability to hear the case, the Family Court has ordered the children be returned to Italy for the custody proceedings to take place. It seems the fight is just beginning for all involved.
Prevention
There are steps that can be taken to minimise the risk of parental child abduction occurring, such as applying to the Family Court of Australia for Orders that children are not permitted to leave Australia. To ensure that such Orders are complied with, the Court may make further Orders that:
- the children’s passports must be delivered to and held by the Court;
- a party is restrained from applying for a passport for the child; or
- place the children on the Federal Police’s Airport Watch List.
Depending on the circumstances, some or all of these Orders may be required to effectively enforce the Court’s Orders and keep children in Australia. Parents do not need to be separated or divorced to apply for the preventative measures listed above.
The situation becomes increasingly difficult if children have already been removed from Australia. If this happens, attempts can be made to utilise the Hague Convention, seeking the return of the children, as the father did in this case.
However, not all countries recognise the Hague Convention, and therefore it is not always of assistance. In cases where children are taken to a country that does not recognise the Convention, to return the abducted children, proceedings must be initiated in the Country where the children are currently living. In a foreign country, the laws are likely to be different and parties will need to engage foreign lawyers. The laws may also not support the return of the children as they may have if the proceedings were held in Australia.
Consequences
Despite being an offence under the Family Law Act, international parental abduction is not currently a criminal offence. In a recent decision of the Federal Magistrates Court, it was held that abduction of children does not constitute Family Violence within the meaning of the Family Law Act, either.
Penalties are imposed under the Family Law Act for contravening obligations imposed under a parenting order, such as taking a child overseas. Parental abductors who breach their obligations face imprisonment of up to three years, even if they only attempt to do so.
More important than the consequences for the abductor, is that of the consequences for the parent who is unsure of the location of their children, and that of the children. “Outcomes unfortunately … are really quite poor,” for children in these situations, who are deprived of valuable time with their parent.[1] Abducted children become traumatised, anxious and confused.
If you believe that there may be a risk of this situation occurring, or if your child is being taken overseas without your consent, you should contact one of our Family Lawyers on 8540 0200 to discuss your options. Early prevention and action will give you the best chance of success in preventing abduction, or finding your children quickly.
[1] Vincent Papaleo, Child Psychologist with 25 years’ experience, ‘Parental Abduction’ Insight, 1 May 2012, SBS. Transcript available at <http://www.sbs.com.au/insight/episode/transcript/471/Parental-Abductions>
