Judge orders children to Italy

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This was published 11 years ago

Judge orders children to Italy

By Marissa Calligeros and Freya Petersen

A judge presiding over an international custody case involving four missing sisters has refused to hear any applications as part of a last-ditch attempt to keep the siblings in the country.

The Australian-born mother of the girls, all dual Australian-Italian citizens aged from nine to 14, had been seeking to keep them in Australia permanently since bringing them here on holiday two years ago.

The four Sunshine Coast girls, now missing, with their great-grandmother.

The four Sunshine Coast girls, now missing, with their great-grandmother.Credit: Cade Mooney / Sunshine Coast Daily

The Family Court earlier ruled they must return to Italy for custody proceedings there, however the four instead went into hiding with their great-grandmother.

With the help of a great-aunt, the eldest girl applied to the court this morning for a stay of proceedings. The presiding judge, who cannot be named for legal reasons, said he was concerned about hearing the application while the children remained hidden by the adult members of their family.

This afternoon, the judge refused to hear any applications by the eldest daughter, her great-aunt or her mother, saying he suspected the children's relatives were in contempt of court in helping the children to hide.

"I do not for one moment even begin to consider that the girls are in hiding without the help of ... persons unknown to the mother," the judge said.

He said the mother had failed to produce evidence showing she had exhausted every resource available to her to locate her children.

"There is absolutely no evidence about her knowledge ... or lack of knowledge about there whereabouts," he said.

"I'm highly suspicious that the mother is in contempt."

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He said the applications could not be heard while the children were still at large in contravention of the court's orders.

He said his orders made yesterday to have the children returned to Italy still stood.

The judge further ordered that the children's grandmother and great-grandmother be brought before the court to answer questions under oath about the siblings' whereabouts. The warrant for the childrens' recovery still stands.

It is understood if the children were found and taken into the care of the Department of Child Safety, the mother could make another appeal, because she could then be considered to be compliant with the court's orders.

Outside court, the children's mother said: "Justice has not been served as far as I'm concerned."

The tearful mother said she had spoken to her mother this afternoon by phone, who told her the children were being aided by a person overseas.

"Apparently someone outside Australia is assisting these girls," she said.

She said her grandmother had spoken to the children by phone today.

"They say that if they have anything to say they will communicate that to my uncle, who is the administrator of their Facebook page, Kids Without Voices," she said.

"They don't want to come out until someone promises them that they're not going to be taken away from mum ...

"My case has been dismissed completely, which means the girls have not had a chance to intervene, which means their voice remains unheard still."

The mother said she understood that her children would be handcuffed and dragged onto a plane to Italy, if they resisted complying with the court's orders.

She said she saw no avenue under which she could safely return to Italy with her children.

"I'd be physically at risk. The children would be at risk ... I'd be threatened to be jailed if I went back to Italy," she said.

"He [the girls' father] would be pressing charges for international child abduction."

Reporting comes under fire

Earlier, the presiding judge blasted some media outlets for their coverage of the case.

‘‘It has become patently clear to me over the past few days that a particular media outlet in this city ... has clearly identified ... the people who matter most in this case, the children,’’ he said.

‘‘That particular media outlet based in this city has clearly broken the law,’’ he said.

Although not named in court today, The Courier-Mail yesterday and today published photographs of the girls on its front page.

In a written statement, Courier-Mail editor Michael Crutcher said: "The newspaper has had no contact from any legal authorities in relation to The Courier-Mail’s coverage of this story."

The judge said he was concerned to see some media outlets had reported the case without having read his original orders or considering the real issues.

He said the children - aged nine, 10, 13 and 14 - were obviously being helped to hide by adults and that those adults had a duty to surrender the girls.

He added that the mother of the girls appeared to have breached his previous order that she surrender them into their father’s care at Brisbane Airport at midnight this morning.

He said it was the mother’s choice not to return to Europe with her children, and that decision meant the girls would now live with their father until any further custody disputes could be finalised in the Italian courts.

However, legal representatives said neither the mother or the aunt had any knowledge of the children’s whereabouts.

Legal arguements

Barrister Timothy North, SC, representing the eldest girl and her great-aunt, said the young girls would come out of hiding only if they were guaranteed their individual pleas would be heard in court.

The court was told the children were not made aware of the court order instructing their return to Italy until May 4 this year, nearly 11 months after the original ruling was made.

The children refused to board a plane to Italy with their father at midnight yesterday and remain in hiding.

Mr North requested leave to lodge an application on behalf of the eldest child to have an order instructing their return to Italy be stayed.

"The children are aware of the order and are resistant to it, but they are not in contempt [of court]," Mr North said.

"If the children are heard and are confident they will be heard ... they will come out of hiding ... The children ought to be heard and have a right to be heard.

"There had been no separate representation of the children."

Mr North told the court the eldest child had contacted his instructing solicitor yesterday, but had not disclosed her whereabouts. He said the childrens' maternal great-aunt was also unaware of their location.

The presiding judge said he knew children ran away from home, but they did not usually do it with the assistance of adults.

"They're not living under a bridge," he said.

"They are being hidden by adults aiding them."

The judge noted the youngest child had told a psychologist, engaged by the childrens' mother last year, she wanted to "go home to Italy".

Barrister Graeme Page, SC, representing the girls' mother, who was not present in court, requested leave to lodge an application to have the "return order" discharged.

He reiterated that the mother did not know the whereabouts of her children and was therefore not in contempt of the judge's order.

"She went to the airport [last night]. The children were not with her on the basis she did not know their location," he said.

The judge adjourned the matter until 2.15pm, when he is expected to decide whether to hear both applications while the children are in hiding.

A matter of jurisdiction

This morning, brisbanetimes.com.au reported comments from legal experts who said the girls were not being forced to travel to Italy to live with their father, as reported in some sections of the media, but rather to have the case heard under Italian jurisdiction.

Family Law Practitioners Association of Queensland president Deborah Awyzio said the court's decision was not for the children to go live with their father, as had been reported.

“The decision is for the children to return to Italy in the company of the mother if she chooses, and for the father to pay for the expenses of the children and the mother to return to Italy,” she said.

Ms Awyzio said, as a signatory to the Hague Convention, Australia must show “a respect for other countries' laws, to avoid people taking matters into their own hands and deciding which country's law suits them the best for their particular situation”.

The girls' mother, who according to court documents met her husband during a study tour in Italy at age 16 and married him at age 17, had moved out of the couple's family villa in 2007 after the death of the their third daughter.

Under a “consensual separation agreement”, the pair shared custody of their remaining four children until the mother brought them to Australia, purportedly on holiday, in June 2010.

Their father has since invoked the Hague Convention, an international treaty against child abduction, in an effort to have them returned until custody issues could be settled under Italian law.

Court application lodged

Outside court this morning, the girls' great-aunt told media an application had been lodged by the eldest daughter along with another great-aunt.

"We're hoping that the order that has been put in place, ordering the children to come home to Italy, to be stayed for the moment, so that they can receive a fair trial," she said.

"We're just hoping to get fair proceedings.

"She has made a separate application and that is also going before the courts for all four girls this morning.

"(Their mother) is a mess. What can you expect? She's got four little children. She's frightened. She knows that they'll be anxious. They haven't seen their mum for a couple of days. They should be with their mum.

"We haven't heard any word at all, except that we did hear them on ABC television last night.

"They're little Aussie kids. We just want the best for them.

"We love them dearly. Love you girls."

The Hague Convention

Alison Ross, a family law expert at Brisbane firm Hopgood and Ganim, said the Hague Convention had simply decided “the forum where the issue should be determined”, rather than dictate the girls return to care of their father.

Ms Ross said that despite the mother's protestations that her daughters' wishes to live in Australia hadn't been considered, a family report would have been obtained which “is the children's means of talking to the court”.

“These views would have been before the court ,” she said.

Ms Awyzio was unequivocal about the options facing the mother and her children.

“The avenue they travel down is that they return to Italy and the Italian courts make a decision based on all the evidence available to them,” she said.

“These children have grown up in Italy. They've only come to Australia in 2010 against the consent of their father. The mother suggested that the father consented. The court found that he did not consent to them coming to live in Australia. He consented to them coming to have a holiday in Australia and they failed to be returned after that holiday.

“So the Italian courts will make a decision based on all that evidence that the mother has to provide to court and they'll make a fully informed decision.”

Ms Awyzio also pointed to the custody arrangement spelled out in the Family Court decision.

“What has to be remembered is prior to them coming to Australia the mother and father had entered into consent orders in Italy which provided for the children to live with the mother in Italy and to spend every weekend with their father," she said.

“So those orders had already been made by consent by these parents before the action was taken for them to remain in Australia against one of the parents' wishes.”

One of the girls told a Brisbane radio station on Tuesday that she was seeking help to “stop my dad from taking me and my sisters away from my mum. He's going to take us back to Italy”.

However, Ms Awyzio said the decision of the full bench of Family Court to adhere to the Hague Convention – to which Australia and Italy are signatories - and return the children to Italy had been misinterpreted in the coverage of the case.

“So it really is return to Italy so that the proper jurisdiction can be used to decide this dispute. It's not pre-deciding it,” he said.

Ms Awyzio said that the Family Court decision was likely based on a review of all available evidence and interviews with the children by a court-appointed officer.

She said the Hague Convention clearly stated that unless one of several exceptions applied – including grave risk of physical or psychological harm, or “a strength of feeling beyond the mere expression of a preference” on behalf of the children to remain in Australia – the children wrongfully removed from a country must be returned there.

“The only version that you have at the moment is the version of the mother,” Ms Awyzio said.

“In court there's always two sides to a story. The court had access to evidence from both sides and they made the decision that they did based on that evidence.”

Federal government 'powerless'

Yesterday, Prime Minister Julia Gillard said it was “not appropriate for me, or for other politicians” to comment on the Family Court decision.

“I feel for everyone involved in this distressing case, as it is obviously a very difficult and complex family matter,” Ms Gillard said, adding that she hoped the matter was resolved quickly “for all parties”.

Acting federal Attorney-General Jason Clare said while he felt for everyone involved, Australian family courts made decisions independent of the government.

“In this particular case, the Family Court and the full bench of the Family Court have both considered the matter in detail,” he said in a statement.

“The government has received advice from the Attorney-General's Department that it does not have the power to become involved in family law proceedings where the outcome has been finally determined by the family courts.”

Going public

The girls' grandmother said her daughter – their mother – had turned to the media “as a last resort” and had been overwhelmed by the attention.

The woman said her daughter had been driven to the brink by the legal battle but she believed her grandchildren to be healthy.

She said the family was now relying on public pressure to turn the tide their way.

“We can't say let's hope, it absolutely has to work and if that means that we need the support of this entire nation, fine,” she said.

“We have the fuel [to see this through]. People are looking at the tip of about a two year iceberg [for us].”

The Department of Foreign Affairs and Trade last night confirmed the Australian Embassy in Rome had provided consular assistance between 2007 and 2010 to an Australian woman and her children, all of whom resided in Italy.

"Consular officials in Canberra provided consular assistance to the woman's family in Australia," a DFAT spokeswoman said.

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"Passports were issued with the consent of both parents."

- with Amy Remeikis

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