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August 9th, 2012 by Robert Franklin, Esq.
The case of the Italian father stuck in Australia fighting for return of his four daughters who were abducted there by their mother two years ago has taken a new turn.  The High Court has dismissed the last-ditch effort by the girls’ aunt to keep them in Australia, paving the way for their return to Italy with their dad.  Read about it here (Yahoo, 8/7/12).

I’ve reported on this case here and here.  The Australian mother moved to Italy as a young adult to study the language.  There she met and married the man and they had four daughters.  Three years ago, under the pretense of taking the children on a holiday, the mother took the children to Australia and never returned.  The father initiated proceedings under the Hague Convention on the Civil Aspects of International Child Abduction to which the mother responded claiming abuse on his part. At some point she apparently also claimed that she had taken the children at the agreement of their father.  The Australian court investigated those claims, found them to be meritless and ordered the children returned to Italy.  After long legal delays, Mom, with the assistance of her sister and mother, succeeded in hiding the children from authorities for several months, but eventually they were discovered and once again ordered to be returned to Italy.  Enter the aunt, with a claim to the High Court that the children’s interests hadn’t been represented in any of the previous court hearings.  The Court accepted the case and scheduled it for a hearing at which it dismissed the aunt’s claim.

The only remaining legal impediment to the girls’ returning to Italy appears to be a fairly pro forma appeal in the Family Court.  Then the mother and father can sort out their post-marital issues in Italian courts as should have happened two years ago.

However, please notice that I said “legal” impediment.  The mother and her co-conspirators, otherwise known as her female relatives, have proven before that they are ready, willing and able to ignore the law.  I won’t be surprised to see them do so – or attempt to do so – again.  After all, the list of their crimes is already extensive.  Mom violated international law and the laws of Italy, when she abducted the children.  Then she lied to the Australian court about (a) abuse of the children and (b) the father approval of her abduction.  Then she and her mother and sister kidnapped the children again and hid them in violation of a court order.  Into the bargain, the grandmother has been quoted as saying that Mom should murder the children and commit suicide rather than let Dad have them.  Who is this woman, Ma Barker?

The aunt’s petition to the High Court was never likely to go very far.  Its entire claim was that the children’s interests weren’t represented in the previous hearings and so the courts should do the whole thing over again, this time with an attorney for the kids (or may four attorneys, one for each child).  That notion is pretty obviously flawed.  After all, from the beginning, the girls were always going to either stay in Australia with their mother or return to Italy with their father.  The mother had an attorney arguing for the first alternative and the father had one arguing for the second.  Those attorneys effectively represented the interests of the girls.  In short, whether specifically so denominated or not, the kids had legal representation at all times.

Queensland’s solicitor-general, Walter Sofronoff QC, told the court the Family Law Act presumes children do not have the same capacity as adults, partly to protect them from having to oppose their parents in litigation…

The University of Sydney’s family law specialist Patrick Parkinson says the High Court bid was never likely to succeed.

“Even defendants in criminal trials don’t have an absolute right to legal representation at the tax payers’ expense. And certainly in civil cases they don’t,” he said.

“So to say that children have a constitutional entitlement to be represented independently of their parents did seem to me to be a very tough argument to try to run.”

In short, the effort by the aunt was a delaying tactic and nothing more.  So is the appeal in Family Court.  Mom and her relatives are doing everything in their power to make her abduction of the children a fait accompli.

The simple fact is that Australia is a signatory nation to the Hague Convention and as such is required to abide by its terms.  The fact that this case has dragged on for two years is nothing but an abuse of the system that seeks the return of children within 60 days.  However slowly, the Australian courts have done their job under the law; they’ve ordered the return of abducted children to their parent in their home country.  So among other things, the case is a study in how unwilling parents can effectively thwart the clear intention of the law.

One reason the mother, her mother and sister have been successful in doing so is that the courts refuse to punish people who abuse the process.  Surely the courts noticed, as I and so many others did, that the mother and her relatives have violated many different laws, including child kidnapping statutes at least twice, perjury statutes and probably false imprisonment statutes while they kept the girls in hiding.  Then there is at least one court order that they’ve violated.  But not one of those violations has been met with any form of punishment or sanction by the courts or police.  It’s as if everyone agrees that returning the children to the father is in some way “punishment enough” for anything and everything the mother has chosen – or may yet choose – to do.

So the mother’s unlawful behavior is not only predictable, but predicted.  I predict that, before the children finally get on a plane to Italy, she and her co-conspirators will violate the law at least once more.

We’ll see.

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