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October 4th, 2012 by Robert Franklin, Esq.
At last, after two years, an Australian court has ordered an Italian father’s four daughters to return to Italy.  Here’s an article reporting on this latest development in the case that’s garnered headlines on three continents (Brisbane Times, 10/3/12).

As I’ve reported before, the girls’ mother was born in Australia, but went to Italy to learn the language.  There she met the father, they married and had four daughters.  But all was not right in their world.  The mother rarely worked and pursued at least one extra-marital affair.  They separated and she got primary custody but he continued to play a big part in the girls’ lives.

Eventually, she announced her intention to take the girls to Australia for a holiday.  She got the father’s grudging acquiescence to the plan by showing him their return airline tickets that had them coming back to Italy in four weeks.  That of course was never her intention and documents produced in court suggest that the Australian embassy in Rome may have played a role in facilitating the children’s abduction.  That was in June of 2010.  The mother and the girls never returned.

The father enlisted the aid of the Australian government to bring an action under the Hague Convention on the Civil Aspects of International Child Abduction, and the battle was joined.  On the face of the matter, there was no way the mother could successfully defend against the father’s claim.  The Convention requires that signatory nations (both Italy and Australia have signed the Convention) return abducted children to their country of habitual residence.  The point is that, if there’s a custody issue, a domestic violence issue, an abuse issue, etc. the courts of the children’s home country are fully capable of sorting matters out.

But Australia, apparently alone among signatory nations, enacted a law that allows a judge in a Hague Convention case to thwart the ends of the treaty if “exceptional circumstances” exist.  Accordingly, from the start, the mother tried to get the Australian courts to believe that those circumstances existed in her case.  She leveled charges of abuse at the husband that were investigated and found to be baseless.  Then she and her mother, her grandmother and the children’s great aunt began a persistent campaign of alienation against the father.  That, together with her parallel campaign of legal delay, were designed to influence some judge somewhere some time to finally throw up his hands and say “the kids don’t want to live with their father and they’ve been in Australia so long, I refuse to disturb the status quo.”

It almost worked.  Back in May, a court ordered the children to be placed on a plane at Brisbane Airport and flown to Italy.  They didn’t show up.  In fact, the mother, working in concert with her various female relatives, had hidden them and taken their cell phones so they could neither contact anyone nor be contacted.  Incredibly, the mother claimed to the court that she had no idea where the girls were or, when they were found, who had secreted them away.  For having violated a court order and then flagrantly lied to the court, she was rewarded with custody.  The kids were unhappy in foster care and so a judge returned them to their mother whose most noteworthy feature to date had been her frank willingness to violate the law.

And sure enough, in the ensuing legal wrangling one judge wrote a sentence in his decision that made my blood run cold.  On June 15 of this year, in paragraph 48 of his order, the judge admitted that the Hague Convention assumes that the best interests of children are served by their speedy return to their home country.  He then questioned whether, since speedy return was no longer possible in this case, they should be returned at all.  It had always been my concern that the mother’s delay tactics would eventually prevail.  I’ve seen it far too many times in other cases, so I viewed the approach of the final hearing with considerable trepidation.

On September 27, a hearing was held on the mother’s last-ditch effort to convince the judge that his order returning the children to Italy should be vacated.  To his credit, he refused to do so.  One of the key roles in his decision was played by the court’s Family Consultant who interviewed the girls, the mother, her various relatives, the father, etc.  Out of that came the conclusion that the mother and her family were coaching the girls to say the wildest things about their fear of returning to Italy.  On more than one occasion, one of the children claimed she would “slit her wrists,” stab herself, and the like, if forced to return to Italy.  These were all swallowed hook, line and sinker by the Australian press that used the statements to pretend that the girls feared their father.

From the court’s decision, that apparently has never been the case.  Their concern – instilled in them by their mother – was that she would not return with them.  They didn’t want to lose her, and she hinted broadly that they would.  She also suggested to them that it was all Dad’s fault that she couldn’t return to Italy.  That’s because, according to her, he had filed criminal charges against her in Italy for abducting the children, when in fact he had done no such thing.  And it’s all but certain that the mother knew he hadn’t.  Indeed, documents received by the court from Italian authorities verified that (a) the father had never filed a criminal complaint against her, (b) if criminal charges were brought and she was convicted, she’d almost certainly be sentenced to nothing more than probation and (c) she probably wouldn’t even be charged.

None of that stopped Mom from leading the girls to believe that, if they were returned to Italy, she’d be unable to follow for fear of incarceration, and it was all Dad’s fault.  So it was no wonder the girls voiced their strong desire to remain in Australia.  To their credit, both the Family Consultant and the judge were able to read between the lines of the mother’s fiction.

It’s also to the judge’s credit that he refused to call the two years that have elapsed during the litigation of the matter “exceptional circumstances” that would warrant keeping the girls in Australia.  He rightly ruled that to do so would encourage others to pursue lengthy litigation for the purpose of thwarting the plain meaning of the Hague Convention.

All in all, it’s a win for this Italian father whom I’ve gotten to know somewhat over the course of my reporting on his case.  I know him to be a thoroughly decent man and loving father who’s been forced to expend enormous amounts of energy and money all to see justice done and get his children back.

It’s also a win for common sense.  As the judge pointed out, Australian parents rely on the Hague Convention to prevent the abduction of their children and to have them returned if they’re taken to a foreign country.  It would ill serve them to have a court rubber stamp an Australian mother’s kidnapping of her children.

What will the Italian courts do with this custody battle, when all parties return to Florence?  It’s hard to know, but to my mind, a mother’s two-year abduction of her children, during which they had little-to-no contact with their loving father counts as about 2 1/2 strikes against her.  It’s a classic case in which he should have custody and she should have closely supervised visitation until she proves she’s no longer a threat to his rights or her daughters’ relationships with their Dad.  We’ll see.

Thanks to Yuri for the heads-up.

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