Convention binds judges' hands
More distressing scenes in Brisbane.
This time it was four young girls, crying and kicking, as they were escorted by federal police to the airport for a trip back to Italy.
They had been abducted by their Australian-born mother and brought to Queensland more than two years ago.
Illustration: Simon Letch
The parents' relationship seems to have broken down after the death of another daughter. The mother moved out of their Tuscan villa in 2007 and the care of the children became a shared responsibility under a consensual separation agreement.
In June 2010 the mother took the children to Australia, with the consent of their father, for what purportedly was a holiday.
The departure of the children from Australia on Wednesday was the culmination of an extended legal struggle with at least two rounds in the Family Court, another Family Court appeal and two abortive adventures in the High Court.
At the heart of the legal toing and froing lay the Hague Convention, which has been misconceived in some emotive media reports.
The convention created a protocol among signatory states on how to handle child abductions. Essentially children are to be returned to the place of their ''habitual residence'' and in this case, all things being equal, Italy is not necessarily the worst place in the world in which to habitually reside.
The court in Australia was not deciding custody between the parents or even the care and welfare of the children. It was deciding upon the jurisdiction in which those things would be determined - Italy.
Justice Colin Forrest of the Family Court made orders in May last year to return the children to their habitual residence. As he said in reasons published in June of that year, he did not determine that the children are better off living with their father, or even that it was in their best interests to return to Italy.
Those determinations, in accordance with the convention, are up to the Italian courts.
That is not to say that he did not take into account the wishes of the children, more of which in a minute.
The mother, who cannot be named for legal reasons, appealed against the return order and so it was stayed pending an appeal.
The Full Family Court (which I always think is an unfortunate description) dismissed it so it was off to the High Court. The special leave application was withdrawn but there was another application made on constitutional grounds, which was dropped at the start of the hearing.
Justice Forrest politely described this series of events as ''unusual''.
The children disappeared for a while, apparently in hiding under the direction of members of the mother's family.
After their whereabouts was discovered the case came back to court late last month and the judge made another return order on Wednesday, resulting in the trip to the airport with the tearful children, at least one of whom was forcibly hauled onto the Emirates flight by the police.
This is a ghastly set of circumstances, but Justice Forrest cannot be made into a bloodless villain. If anything he was restrained and did not pursue contempt proceedings that harder judges might have entertained.
His hands are tied by the convention, key elements of which are enshrined in Australian law.
The mother had repeatedly said she would not be returning to Italy, so the youngsters were accompanied on the flight by a government-appointed carer. Maybe her steadfast refusal to return could in part be seen as some sort of leverage.
However, there were behind the scenes negotiations and the father gave undertakings to the court that he will withdraw any criminal complaint against the mother of his children and not seek to make a further complaint if she does return to Italy.
The judge did examine whether there are ''exceptional circumstances'' which would militate against remaking a return order.
This largely involved an examination of the expressions of the children's wishes and intentions, and here is where it gets disturbing.
One of the children, while living with a government-appointed foster carer, wrote a letter in June to ''Dear Someone''. It said: ''I'd refuse to get on the plane to Italy, I'd do absolutely everything to stay here.''
The maternal great-aunt deposed that the oldest child (aged 15) had said she ''wouldn't even go in the car to the airport … they would have to drug and handcuff me''.
There was evidence that the second eldest child, now aged 14, told a family consultant she would ''probably end my life'' if forced to return to Italy.
The same child who wrote the ''Dear Someone'' letter said: ''I don't think I could even survive in Italy. I would just cry all day. I'd die of pain.''
The youngest child, now aged nine, told an Italian-speaking expert in May last year that she wanted to return to Italy because her friends were there and she enjoyed life in Tuscany. Later she told a family consultant: ''Italy's a scary place. I don't feel comfortable.''
The judge was not surprised by this turn of events. He thought their desire to stay in Australia increased the longer they spent ''enjoying the lifestyle'' of the Sunshine Coast.
There was also a strong influence at play from the mother's family.
One instance in the judgement came from the maternal great grandmother who said to the police, in the presence of the children: ''He [the father] doesn't love them. He just owns them. They're chattels … he is a liar and all Italians are bloody liars.''
What has been striking is the campaign by parts of the media. A parochial press hitching its circulation drive to an emotional play of the plight of a fearful mother and distressed children.
Indeed the family pitched its case to the media once it ran out of legal juice.
Not all the facts were available to those reporting on the saga. No matter it was still a tear jerker of a story.
From July 2010 to May this year there were 179 applications made by Australia in other countries under the Hague Convention. It would be interesting to see how the local media milked the cases in those exotic jurisdictions.