The Italian Job…what actually happened in the return of the four sisters to Italy.
By Adam Bak, Solicitor, Farrar Gesini Dunn
The Family Court has endured heavy media scrutiny recently in a case in which a Judge ordered the return of four sisters, then aged between 8 and 14, to Italy.
The brief facts of the case were that the mother, reported as Ms Garning, was born in Australia but moved to Italy when she was 16. She fell in love with the father, reported as Mr V, and they married and had children in Italy. Ms Garning and Mr V separated in 2008. In 2010 Australian passports were issued for the four children and Ms Garning brought the children to Australia. They remained in Australia for 2010 and 2011.
Australia is a signatory to the Hague Convention. The Hague Convention is an international treaty which, in summary, provides that each signatory will enforce and assist in the application the laws of the other countries.
Relevantly for international parenting matters, any dispute as to living arrangements or other matters relating to children should properly be determined in the country in which the children were habitually resident before the removal or retention to another country.
In this case there was no doubt that the children lived in Italy before their removal.
The mother’s resistance to the children being returned to Italy was based on a number of grounds. Those included that the children were settled in Australia, that the father did not have and was not exercising rights of custody in Italy, that the father had consented or acquiesced to the girls coming to Australia, and that there was a grave risk to the children of being returned to Italy.
The Judge, in an articulate and fairly lengthy 129 paragraph Judgement, addressed each in turn.
Much of the media attention since has focussed on the wishes of the children. Criticisms made of the Family Court focus on the Court not giving sufficient weight to the views of the girls.
Pursuant to the Family Law Act, the views of children are a relevant consideration. The Court is to take into account any factors, such as the child’s maturity or level of understanding, that the Court thinks are relevant to the weight it should give to the child’s views.
We often advise clients that weight can be given to the views of a very mature 8 year old and is rarely not given to the views of a very immature 12 year old. That age range is commonly and generally expressed as the age when children’s views become significant.
It is not uncommon to hear about teenagers who prefer to spend time with the parent who lets them have their bedroom door shut whilst spending time with their boyfriend or girlfriend, or to hear about children who align with the parent that is not so fussy about homework and eating vegetables. The law requires the Court to forensically examine the level of sophistication behind the children’s views.
Getting That Evidence
The law makes provision for children to have their own lawyer appointed. Independent children’s lawyers are specially trained in dealing with children and can elect whether or not to meet directly with the children to obtain their views, or whether to review the evidence and make their own informed assessment.
In most parenting cases, the Court insists on evidence being provided from a child psychologist or similar expert, who prepares a report or gives evidence about the child’s views and the nature of the relationship that the child has with each parent. This is independent and at arms length and endeavours to move away from each parent giving favourable evidence about their own relationship with the children.
The Italian Case
In this case, the Court found that the girls’ objection to being returned to Italy was no more than the mere expression of a preference or of ordinary wishes. Matters under the Hague Convention require that the views be stronger than that. The expert evidence was that each girl missed aspects of their lives in Italy.
The evidence was that the mother had instilled fear in the girls by telling them that if they returned to Italy she would be arrested. The Judge found this to be untrue. Mr V promised not to lodge any formal complaint. He offered, and was ordered, to pay the mother $8,000 so that she could fly back to Italy with the girls and be comfortable upon her return.
The Court did not order that the children live with the father. The Order made was essentially that the proper jurisdiction to determine the case was the Family Law of Italy. Indeed, that was where the children were born, lived and where the father lives
It is peculiar, in my view, that most of the criticism seemed to focus on the Family Court and the family law system in circumstances where findings were made that the mother had abducted the children from Italy to Australia and subsequently taken steps to influence their views and alienate them from their father.
This is another situation where if the mother had sought and followed advice from an experienced family lawyer, the situation could have been better managed. When the matter is determined in Italy, there is little doubt that her decision to abscond with the children to Australia will be a very significant factor working against her.
If you wish to discuss this article or require any Family Law advice, contact Adam Bak at Farrar Gesini Dunn on (02) 6257 6477