In the ABC’s “World Today” last week we heard of the Judge in the Brisbane Registry of the Family Court censuring “Mother over custody orders.’
On 23 June 2011 Justice Forrest made orders pursuant with the Hague Convention for the return of four children to Italy who have been kept here since 2010 by their mother, without the consent of their father. The father has had joint custody for the children in Italy since 2008. The father believed the girls were going to Australia for a holiday in 2010 and denies the mother’s claim that he knew it would be permanent. One of the mother’s complaints against the father was that he made the children do ‘chores.’
The Court’s initial findings included that the mother had purchased return tickets prior to leaving Italy; the Father was exercising his rights of contact with the children at the time of the mother’s retention of them in Australia; the children were habitual resident’s of Italy when the mother retained them here; an Italian court was the appropriate court to hear any lawful application the mother might want to make to have the children relocate lawfully from Italy.
The mother appealed to the Full Court. On 5 August 2011 Forrest J stayed the Order for the children’s return, pending the outcome of the appeal. On 9 March 2012, the Full Court dismissed the mother’s appeal. It made no orders that varied or modified the original return orders. That is, the stay order was no longer operative.
On 23 March 2012 the mother’s solicitors advised the father’s representative of the mother’s intention to make an application to the High Court of Australia for Special Leave to Appeal the decision of the Full Court. The mother subsequently did not seek leave to appeal to the High Court.
On 4 May 2012, Forrest J ordered the mother deliver the children by 16 May 2012, to Brisbane Airport at a time as directed by the father’s rep. On 14 May 2012 a recovery order was made because Forrest J was satisfied that there appeared to be a real risk that the children were going to be taken into hiding.
At Court on 16 May Forrest J was informed that the children had not been delivered to Brisbane airport pursuant to orders of 4 May 2012, and that the children have not been recovered pursuant to the recovery warrant issued on Monday 14 May 2012.
The mother said that she did not know where the children were. His honour:
‘Prima facie, I am satisfied that the mother is in contravention of this Court’s orders.’
His honour concluded that he would not hear the mother’s application to have the return order to Italy set aside, nor the application by the maternal aunt to intervene as case guardian on behalf of the children.
The writer believes that there this case poses several important questions of public policy and law:
- What kind of message of deterrence should Forrest J be sending to the community? Less than a fortnight ago on ‘Insight’ we were told that Australia has the highest rate per capita in the world of international child abduction?
- Would the public outcry be louder, if the roles revered and it was the father hiding the children?
- What of the use of taxpayer’s money. In Family Court proceedings costs generally are paid by each party. If there was ever a case justifying a costs order, surely this is one of them?
- Should the mother’s lawyers be put in the witness box and cross examined as to their knowledge of the whereabouts of the children?
- Surely this is a case warranting the Court publishing the identity of the parties so that community assistance can be sought to identify and locate these children?
- If the maternal grandmother and maternal aunt are complicit and aiding and abetting the hiding of the children in contravention of the Forrest J’s orders, is reform to the Family Law Act required to extend the reach of the Court to send them to gaol as well?
The case returns to the Family Court this week.