Judge slams media as international custody dispute returns to court

[SageDad]

An excellent case, context and legal analysis...

http://www.familylawweek.co.uk/site.aspx?i=ed98651

Social Media and the Voice of the Child in Hague Convention Cases

Emma Pinder, Solicitor, of Spring Law considers a Hague Convention case which has attracted extensive attention in Australia and analyses the potential wider impact of the coverage, especially that within social media.

Introduction
It is a story that, if taken at face value, would move all but the hardest of hearts.  Four young sisters who want to live with their mother in Australia are fighting to prevent their father from enforcing a judgment under the Hague Convention to have them returned, against their will, to Italy.   Fearful that their father might be successful and their wishes ignored, the sisters, aged between 8 and 15 years, have reached out to the online community.  They have started a Facebook page entitled "Kids Without Voices" and the site is gaining more and more support each day.

The girls' message is a powerful one that highlights some of the problems with Hague Convention applications and the unhappiness that they can lead to.  But is this internet exposure setting a dangerous precedent for those looking to use public opinion in order to influence the course of proceedings in their favour?

It is not suggested that these girls have no right to be heard or that their preferences and opinions should not be taken into account when important decisions about their future are being made.  Indeed there are provisions in the Hague Convention which allow for this to happen.  What is worrying is the potential for the girls' case to be misinterpreted and distorted through the media and, in particular, social media.  The news coverage and websites that have sprung up in support of these girls , and even many of the posts on the Facebook page itself, suggest a misunderstanding of the facts and the operation of the law.  In addition, much of the media attention this case has received has been one sided, favouring the mother's version of events over that of the father.  This raises further concerns as to whether the father's right to a fair hearing is being affected to his (and possibly the girls') detriment.

In fact, there is no guarantee that the girls themselves are behind the Facebook page which makes no attempt to hide the fact that posts are being censored (the Facebook page cites section 121 of the Family Law Act as justification for removal of all references to the Court documents.  This appears to be correct on the grounds that the court documents may reveal the identities of the parties).  The page states that the girls set it up but it appears that others are now maintaining it for them.  The page also provides supporters with the option to donate money to the girls' "fighting fund".  Again this could set a dangerous precedent for harnessing popular, political and financial support through a medium which does not and cannot  provide the full story.

Background
Under The Hague Convention on Civil Aspects of International Child Abduction, if a child has been removed by one parent, without the consent of the other parent, from a signatory state where they have been habitually resident, to another signatory state, then that child must be returned to the originating state.  There are exceptions to this rule.

In the case of the sisters now in Australia, the mother claimed that the father gave his consent for the mother to permanently re-locate to Australia with their four girls and that he changed his mind only subsequently.

The father claims that he gave permission only for the girls to go on a month long holiday with their mother and was expecting them to return.  When they did not, he started proceedings which came before the Family Court of Australia in May 2011, reported as Department of Communities (Child Safety Services) & Garning [2011] FamCA 485.  The judge found that the mother had wrongfully removed the children from their place of habitual residence, without the consent of the father, and ordered that they be returned to Italy.

The Mother's Case

The weaknesses in the mother's defence were numerous:

• She claimed to have a witness, a close friend, who was present when the father signed the passport applications and who would verify that he understood the move was to be permanent.  The mother was unable to produce the witness or an affidavit from them and provided no explanation as to why no affidavit could be produced. The judge drew adverse inferences from this as he was entitled to do under the Australian authority of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

• She also claimed that her actions had been sanctioned by the Australian government, but the documents she produced from the embassy in Rome did not support her case.  She had successfully established that the girls had Australian citizenship and were entitled to Australian passports, but she had been advised by the Australian authorities that she would need to obtain the informed consent of the father in order to permanently relocate the girls.

• The mother had been interviewed for a newspaper article entitled "Family Flees to Safety of Coast", in which she admitted that she misled the father as to her true intentions for going to Australia.  The mother subsequently claimed she was misquoted but offered no further explanation.

• Her case was also weakened by the fact that return tickets had been purchased. The explanation that they were cheaper than single fares was brought into question when it emerged that she had not been honest about the source of funds used to purchase the tickets.

• t became apparent that the children themselves had been told by the mother that they were only going on holiday and were expecting to return to Italy.  The judge was not convinced by the mother's explanation.  She claimed that she was concerned that the children would raise the matter with their father in a way which would lead him to change his mind about the move.

• She tried to argue that the children would be in grave risk from the father if they were returned to Italy and yet she had previously signed a contact agreement with the father and had subsequently offered him contact with the children in Italy for one month each year.  The judge concluded that, in such circumstances, she could not be that fearful of the children having contact with their father.

• The mother's case did not stand up to scrutiny.  The judge alludes to the mother's own desperate desire to return to Australia as justification for her actions: "When a person becomes desperate, whether with objective justification or not, they can sometimes consider that the desired end result justifies all means, however desperate" (para 52).
  
  Subsequent Developments
  Two days before the children were to be delivered by the mother to Brisbane Airport, an emergency application was brought by the State Central Authority, reported as Department of Communities (Child Safety Services) & Garning (No 2) [2012] FamCA 353.  The mother's relatives had stepped in and the girls could not be found.  Their maternal great-grandmother had taken the girls into hiding whilst the mother tried to put together her appeal case.  It was under these circumstances that the Facebook page was set up.
  
  What you will not find on any of the websites, or in newspaper articles is the full reason why the authorities were brought in to locate the children and put them into care, an unusual step as the deadline for taking the children to the airport had not yet passed.  According to the judgment in the emergency proceedings, the girl's grandmother contacted the mother's senior counsel and informed him that she was going to murder the girls and encourage the mother to kill herself.  This is a shocking statement given that part of the mother's initial defence was that the children would be in grave danger from the father if returned to Italy.  The girls have since been found and are currently in foster care.
  
  An application has now been made by the girl's great-aunt on constitutional grounds that the girls were denied natural justice as they were unrepresented throughout the proceedings.  This application has been allowed and will be heard in the first week of August.
  
  Misconceptions and Misunderstanding
  The wealth of online media and social media coverage has thrown up a number of misunderstandings and misconceptions about the facts of the case and the application of the law:a. There is a great deal of compassion and support for the girls who, it has been reported, are being separated from their mother and forced to return to their "abusive" father.  This is incorrect as the Hague Convention is designed to rectify child abduction and not decide residence and contact battles which, it is deemed, should be determined in the state where children are habitually resident (in this case, Italy).  The mother would have to return to Italy in order to have access to her children. This may seem harsh, but her unilateral actions have forced the father to travel to Australia to see his children and fight for their return home to Italy.  The Australian courts even ordered the father to pay a lump sum to the mother to allow for her to return to Italy with the girls.b. You would also not know from the girls' Facebook page that the father could have legally removed the girls at any time but agreed that he would not do so until the matter had been resolved.  Nor has it been reported that there is a large family in Italy which has expressed a desire to see the girls returned to their country of birth.  The Italian family has also attempted to use social media to communicate its position although without the same level of media support.c. The father has been painted by the mother and the media as an abusive and violent workaholic (the "Family Flees…" article is particularly damning).  The father has strongly denied the allegations in a statement he felt compelled to make in the wake of the publicity this case has generated.  His initial failure to respond to and engage with the media and, in particular, social media in relation to this case had been interpreted by many as indifference and guilt but might as easily have been the actions of a man who wished to keep his private life private.  The judge at the hearing in May 2011 did consider the father's behaviour and mental state and concluded that he did not pose a risk to the children.  Further, the judge reiterated that if the mother had been fearful of the children's safety then the authorities in Italy were more than capable of dealing with the matter. d. The girls claim that they have not been given any voice in these proceedings and yet they were interviewed by a family court consultant and their views were presented to and considered by the judge at the hearing in May 2011.  It appears that the weight given to their wishes and their lack of separate representation before the courts, are the real motivation behind their campaign.
  
  The Wishes of the Children
  The Hague Convention allows for the views of the children to be taken into account by virtue of Article 13.  In England and Wales, this has been considered by Baroness Hale in Re D (A Child) [2006] UKHL 51, [2007] 1 FLR 961where she stated that there should be a "presumption that the child will be heard unless this appears inappropriate".  An enquiry should be made at the outset to determine the most appropriate manner in which the child's views should be conveyed to the court.  There are three options: interview with a CAFASS officer; direct meeting with the judge; or legal representation.
  
  For a child to be given separate legal representation before the courts of England and Wales is rare, the presumption being that a CAFCASS interview should be sufficient.  Baroness Hale set out the test in Re M (Abduction: Zimbabwe) [2007] UKHL 55, [2008] 1 FLR 251 saying that the court must consider whether separate representation will add enough to the court's understanding of the issues to justify "the intrusion, the expense and the delay that may result."
  
  Once the views of the child are before the court, the court will consider them and determine whether or not they should affect the outcome of the hearing.  It is not enough for the child merely to state a preference to remain in the new jurisdiction, the objection must have a sufficient strength of feeling which goes far beyond the ascertainment of the child's wishes; see Re R (A Minor: Abduction)[1992] 1 FLR 105.
  
  Finally the court must consider whether the child has attained a level of maturity so as to have their view taken into account.  English case law suggests the views of the child are more likely to be taken into account today than in previous decades, explained in part by the increased influence over the years of the UN Convention on the Rights of the Child 1989.  In Re W (Abduction: Child's Objections) [2010] EWCA Civ 520, [2010] 2 FLR 1165, the English Courts considered the views of a six year old child.
  
  The judge in the matter of these girls went through the steps set out above at the initial hearing in May 2011, having determined at a preliminary hearing that an interview with a family court consultant would be sufficient to determine and convey the girls' views.  As a result the judge determined that, whilst the children did object to the return to Italy, they did not do so with sufficient strength of feeling beyond a mere preference.  Further, the judge concluded that the children had not reached the appropriate level of maturity so as to have their views taken into account.  This is curious as the ages of the children at the time ranged from 7 to 14 years and does not appear to fit with the analysis of the English authorities set out above.  The Australian judge did not refer to case law when considering the children's objection to returning to Italy.
  
  The longer these proceedings go on, the more difficult any return will be for the sisters.  Accordingly, there might be perceived to be a benefit in dragging out proceedings so that the girls become more settled and more mature in their reasoning so that there is a greater chance that their preference to stay in Australia will be upheld by the courts.  This raises more concerns as to the operation of the Hague Convention which is supposed to minimise risk of harm to the abducted child by offering a mechanism for a swift return to the state he / she was resident in.  After the initial decision in May 2011, a stay of the girls' return was agreed to by the father followed by further appeal applications by the mother.  When the Australian courts consider this matter again in August 2012, 15 months will have elapsed since the first hearing.  This will have given the children time to mature and their views will need to be considered afresh.  It is in this context that the girls' social media campaign could be considered as evidence of the "strength of feeling" of their objection to being returned. The dangers of reliance on such evidence cannot be ignored. The extent to which the girls' views have been shaped by the mother and her family remains unclear and cannot, and should not, be determined by reference to social media and the internet.
  
  It is important that a child's wishes should be taken into account but within the confines of the law, with trained professionals able to provide an unbiased opinion on the child's wishes and full comprehension of the consequences of those wishes being granted.  Where too much weight is given to the child's wishes this may inadvertently put pressure on the child to choose one parent over the other which could damage the future relationship between the child and their parents.
  
  Conclusions
  There are obvious dangers of allowing social media to participate in the justice system; it is easy to present a compelling case for just about anything online.  It is not possible to ascertain the exact level of involvement that the sisters have had in starting up and maintaining the Facebook page.  The fact that the Facebook page includes details of a bank account where supporters can donate money to create a fighting fund for the girls, also suggests a possible ulterior motive for the campaign. 
  
  What is also worrying is the precedent that could be set if the mother is successful in keeping the girls in Australia, despite failing to prove her case that the father consented to the permanent move.  That a child's wish, communicated and augmented by online activities, could  be enough to validate an unlawful abduction is concerning and may weaken the protection that Hague Convention offers in preventing future abductions.  It may also encourage abducting parents to put undue influence on the children in question. 
  
  There are provisions to take the views of the child into account in these circumstances, and to suggest that the Australian sisters were excluded completely from the process would be untrue.  What has yet to be determined is whether the consideration of their view was adequate and may lead to a further evolution in the way in which wishes of children are considered under the Hague Convention.  Again, the appropriate forum for such issues to be resolved is a court room and not a chat room.
  
  21.6.12

[SageDad]

Of particular interest in the above article is the line:

"What you will not find on any of the websites, or in newspaper articles is the full reason why the authorities were brought in to locate the children and put them into care, an unusual step as the deadline for taking the children to the airport had not yet passed.  According to the judgment in the emergency proceedings, the girl's grandmother contacted the mother's senior counsel and informed him that she was going to murder the girls and encourage the mother to kill herself."

A fine piece of journalistic chivalry on behalf of the kidnappers.

I dare say that if the father had threatened to murder a ham sandwich it would have been published in the newspapers.

[SageDad]

Girls can live with mother in lead-up to High Court hearing
Amy Remeikis
July 6, 2012 - 4:54PM

http://www.brisbanetimes.com.au/queensland/girls-can-live-with-mother-in-leadup-to-high-court-hearing-20120706-21l9i.html#ixzz1zrtegnR5

A Queensland judge has ordered four girls, embroiled in an international custody battle, can be returned to their mother until a High Court hearing next month.

They will be reunited with their mother at 7pm tonight.

The judge said he made the interim order with “great reluctance’’ and has granted the girls' father visitation rights.  But he had been firmly persuaded on the balance that it was better for the children to be returned to their mother, rather than the four sisters remaining in foster care.

He was worried about the escalation and manifestation of the children’s mental and emotional distress at being separated from the parent who had been their primary carer since their parents’ separation in 2007.

The mother sobbed quietly as the judge made his order and the mother’s legal representative, Dr Jacoba Brasch, leaned over and squeezed her hand in support.

The judge granted the girls' father access from after school Fridays to 5pm Sundays on the weekends of July 13 and 20 and August 3 and 10. He will also have phone contact on Wednesdays between 7pm and 8pm.

The Department of Community Services will transport the children from their mother's Sunshine Coast home to where their father was staying in Ashgrove.

Earlier, the judge took aim at the “morons’’ who exposed four sisters to the media, saying those involved should be ashamed.
The case returned to the Family Court in Brisbane today, where applications surrounding legal representation and custody were under consideration.

The sisters say they want to remain in Australia with their mother despite an order by the Family Court to have them returned to their birthplace of Italy to have custody proceedings heard there, in accordance with the Hague Convention.

The custody battle, involving an Italian father and his Australian-born ex-wife, gained national media attention in May when the four girls went into hiding with a relative.

In court today, the girls’ mother has denied having anything to do with the children being secreted away or exposing them to the media.

The judge took aim at whoever was involved in exposing the four sisters to the media.

He said it had left the children open to being identified by their peers and the community, warning “when morons seek to involve children in disputes with their parents publicly’’ identification was one of the risks.

“They should hang their heads in shame,’’ he said.

The judge has already ruled the children can not have their own legal representation as their views had been heard in the documents before the court.

"There can, in my view, be no doubt that their voices are heard," he said.

The four sisters are currently in foster care but this matter was determined this afternoon.

Their mother applied to be restored as their primary carer or alternatively, for a maternal aunt to take on the role.

But the Department of Communities and Michael Wilson, the legal representative for the children’s father, opposed the application.

The Department of Communities argued the “lesser of two evils’’ was for the children to remain in foster care.

Mr Wilson attempted to make an oral application to have children stay with their father in Australia until their case is heard in the High Court on August 15.

This was rejected by the judge so the father’s legal counsel said they also believed remaining in foster care would be best.

Legal counsel for the mother, Dr Brasch, read part of a letter from one of the older children: “Dear someone, if you ask me there is nothing I want more in the whole world than just to be home with my mum and back at school with my friends again''.
She wished for a “miracle from God, Mary, Jesus and all the angels’’ to make that happen.

The mother cried in court as the parts of the letter were read out.

Dr Brasch pointed to affidavits from the department's case workers where the girls reported feeling nauseous, anxious and dizzy.

The same girl -  who wrote the letter submitted today to court - refused to get on a plane to Italy, writing “foster care is changing who I am’’.

The judge said the role of the court was to determine what was best for the children and its primary concern was their welfare.
The judge’s biggest fear was that “these children, probably because of what they have been subjected to by whoever, may do something silly to draw attention to themselves’’ and “that frightens the life out of me’’.

[SageDad]

A father's heartbreak in 'land of injustice'

July 8, 2012 by Cosima Marriner

http://www.smh.com.au/national/a-fathers-heartbreak-in-land-of-injustice-20120707-21nzq.html

AN INTERNATIONAL custody battle playing out in Australian courts has left the Italian father at its heart feeling abandoned by the federal government and discriminated against because he is not the mother.

Speaking publicly for the first time since he came to Australia in May to fight the case, the father told The Sun-Herald he was worried his Australian ex-wife would go into hiding with his children after a judge granted her interim custody on Friday before a High Court ruling next month.

The 35-year-old has been in Queensland fighting for access to his children, aged nine, 10, 13 and 14, whom he had not seen since 2010 when their mother brought them to Australia on the pretext of a holiday. The High Court will decide if the family must return to Italy for a custody hearing. No names of those involved in the Family Court matter can be published.

The father said yesterday he believed his children would one day understand his actions.

''I'm here risking everything I've got for these girls,'' he said through an interpreter.

''I hope my children get that message - even if they don't understand that now, they'll understand it when they're older. I'm here because I love them and I want them in my life.''

The father said he still had faith in the Australian legal system but felt ''abandoned'' by the federal government for not doing more to support him against his ex-wife's ''defamatory'' allegations that he was an abusive father who would take the children back to Italy and not let them see their mother.

''I believe if an Australian had gone to Italy something completely different would have happened.''

He said Australia would have treated him ''very differently'' if he was the mother rather than the father at the centre of the custody dispute. ''You tend to favour the mother over the father in this country. In Italy people have consideration for both parents, the mum and the dad.''

The Italian said he was ''very, very angry'' a Brisbane Family Court judge, Peter Murphy, ruled that his children go back to their mother's care without any supervision while they await the High Court decision.

Justice Murphy said he granted the mother interim custody with ''great reluctance'' but had been firmly persuaded that it was better for the children to be returned to their mother, rather than the four sisters remaining in foster care.

The girls were placed in foster care in May after their mother's family took them into hiding in defiance of a court order that they return to Italy for a custody hearing.

At the time, the children's Australian grandmother said of their mother: ''She loves those children and will do anything to protect them.''

Although the father is pleased the Family Court has granted him visitation rights, he is concerned his former wife will try to hide the children from him again. ''Given the precedent of the last two years, I am seriously worried about what could occur to my children,'' he said.

''The whole family of [my ex-wife] collaborated to hide the children … The mother has always played dirty, that's why I'm worried.''
Lawyers for the mother said she could not comment as she was legally prevented from doing so.

In Australia without any family or friends to support him, the father said the drawn-out custody battle had taken a big emotional and financial toll, but emphasised his daughters were the ones suffering most.
''I get my strength from believing in my daughters' love.''

In court on Friday, the mother's lawyer read from a letter written by one of the girls in which she spoke of wishing for a ''miracle from God''.

''If you ask me there is nothing in the whole world I want more than just to be home with my mum and back at school with my friends again,'' the teenager wrote.

The father said he was embittered by the ''distorted depiction'' of him by his ex-wife in the media and the courts.

Despite the family breakdown, he still believes the custody battle can be resolved so the children can have both their mother and father in their lives.

''I will obviously fall in with whatever my daughters' wishes are, but I can't believe the idea that they want to stay in Australia is their wish and not somebody else's,'' he said.

''I want the children to be able to enjoy both families, the Italian and the Australian. I want them to understand there is a father in their life … It is unacceptable for my daughters to be over here and have no relationship whatsoever with Italy or with me.''

[SageDad]

Child stealing accusation in Italian custody case

by Rory Callinan
July 9, 2012 - 12:00AM

http://www.smh.com.au/national/child-stealing-accusation-in-italian-custody-case-20120708-21pmk.html

THE Italian father involved in an international custody battle over his four daughters has lodged an official complaint of child stealing against the girl's Australian great-grandmother.

The complaint came as The Age learned that New South Wales-based federal MP Craig Kelly offered to arrange free legal advice to the girls' mother, according to emails obtained by the Italian father's lawyers.

The 35-year-old Italian father has been fighting for access to his children, aged nine, 10, 13 and 14, whom he had not seen since 2010 when their mother brought them to Australia on the pretext of a holiday.

The High Court is to decide if the family must return to Italy for a custody hearing. No names of those involved in the Family Court matter can be published.

Late yesterday the father went to Maroochydore police station on Queensland's Sunshine Coast to make an official complaint against the girl's great grandmother, alleging the woman had taken the children without permission when they were supposed to have been handed over to him just before leaving to travel to Italy.

But the girl's great-grandmother last night denied the allegations.

"I just looked after them. I got a call to go to a place and when I got there the girls were already there and everybody left. I didn't have a toothbrush or anything. I was there for eight days. It's a beat-up. He [the father] will end up with egg on his face."

Yesterday Mr Kelly confirmed he offered to help because the mother had "been rejected" for legal aid. "Without taking sides there was one side having legal representation and one side that wasn't."


Read more: http://www.smh.com.au/national/child-stealing-accusation-in-italian-custody-case-20120708-21pmk.html#ixzz203WbNLK0

[SageDad]

Australia once again shows that it's one of the best legal jurisdictions in the world with regard to the Hague Convention.  With this decision they have rightly rejected the criteria used by a Mexican High Court to overturn and remand the return order for my son.

High Court throws out Italian girls case
by: Anna Caldwell From: The Courier-Mail August 07, 2012 3:42PM

http://www.couriermail.com.au/news/high-court-hearing-into-custody-case-told-children-should-have-right-to-litigate/story-e6freon6-1226444725122

THE High Court has rejected a bid for four Sunshine Coast sisters at the centre of an international custody dispute to have their own legal representative in the case.

The case has been referred back to the full court of the Family Court, to consider the appeal on the original decision.

Outside court, Tony Morris QC said his clients, four Sunshine Coast siblings, had reached “the end of the road” for proceedings in the High Court.

He said the appeal in the full court of the Family Court looked like the “last chance for the girls”.

“One’s always disappointed when one loses, but more generally I would have personally been more comfortable if the court had recognised a greater set of rights for children and young people but they’re the High Court of Australia, they’ve made their decision and I respect that,” Mr Morris said.

When asked how the girls were coping, he said: “All the reports I have received are that they were grateful at least to have had an extra three months in Australia, but they realise this case could go either way”.

Regarding the appeal to the Family Court, Mr Morris said he wouldn’t be bringing the proceedings unless there was a reasonable cost of success, but added “you wouldn’t bet your house on it”.

Earlier, Tony Morris QC addressed the full bench of the High Court, arguing that for the concept of natural justice to be given full weight, each person must have the right of a citizen to litigate the courts.

Justices of the High Court quizzed Mr Morris about the ability of a child to form a view in such cases, and whether a child was of an appropriate age to form a view.

Mr Morris said that was putting the "cart before the horse" and that individuals had a prima facie right to be heard.

He said his view was that children must have the opportunity for representation, but must not be obliged to take it.

Justice Hayne was concerned the view placed children "in a box" where they were an active litigant against parents.

Mr Morris said he was aware of the sensitivities arising in making a child an active litigant against parents.

The case, held in Canberra, could become a landmark ruling on Hague Convention and anti-abduction regulations, considering whether children be allowed their own legal representation in the disputes.

During submissions from Mr Morris, Justice Bell said: “It seems to me that all your submissions fail to come to terms with the nature of the jurisdiction and the fact that we are dealing with children”.

Queensland Solicitor General Walter Sofronhoff QC said children were considered to lack the necessary development in thinking to meaningfully take part in litigation.

He said children were "not presumed" to "have capacity" as adults.

He said it could be considered “abhorrent” for them to give evidence against their parents in a witness box.

Mr Sofronhoff said children could be subject to control and could be vulnerable.

He argued that the notion the sisters in this case had been denied procedural fairness couldn’t be sustained.

Mr Morris responded, saying it was “erroneous” to assume the interests of children and their mother were the same, arguing the children needed independent representation.

Mr Morris said that if it was indeed “abhorrent” in a particular case for a child to receive separate representation – for example, he said, if a child is vulnerable – then they did not need to be forced to have representation.

He insisted the law should give children the option, saying that the gravity of the issue “cries out” for the “highest degree of procedural fairness”.

[SageDad]

Robert Franklin of Father's and Families has also written about this case (and continues to provide some of the best commentary available on ICA cases):


http://www.fathersandfamilies.org/2012/08/09/australian-high-court-paves-way-for-return-of-four-girls-to-italy-with-dad/

[M.Capestro]

Another Malicious Mother Rewarded: Italian Father Gives Up Custody Battle
http://www.f4e.com.au/blog/2012/08/20/another-malicious-mother-rewarded-italian-father-gives-up-custody-battle/

The Italian father embroiled in an international custody battle has left Australia after giving up hope he will win his legal fight to get his daughters back to Italy.
 
The father – who cannot be identified for legal reasons – flew out of Australia on Friday morning without telling any of his local supporters he was leaving. He contacted them from a stopover in Abu Dhabi to tell them he had “had enough”, and was on his way back to Italy.
 
The 35-year-old has been in Australia since May trying to engineer his daughters’ return to Italy. Born and raised there, the sisters, aged nine, 10, 13 and 15, were brought to Queensland by their Australian mother two years ago on the pretext of a holiday – and stayed.
 
Supporters said the “very emotional and angry” father made the snap decision to abandon his fight for custody after his daughters made it clear on Wednesday they would resist any court orders to return them to Italy for a custody hearing.
 
The Sun-Herald has been told the sisters said authorities would have to handcuff and drug them to get them on a plane to Italy and, once there, they would simply run away.
 
The sisters went into hiding in May when the Family Court first ruled they must go back to Italy so courts there could settle the custody dispute in accordance with Australia’s obligations as a signatory to the Hague Child Abduction Convention.
 
But the father despaired of this ever happening, after a Family Court judge agreed on Thursday to hear an appeal to dismiss his original order the girls be sent back to Italy. The application to discharge his ruling will be heard on September 27.
 
The judge also ordered the girls be interviewed again by an independent consultant to ensure their wishes were understood, noting their desire to remain in Australia could have intensified since his first order was made.
 
It is understood that the father has spent €120,000 ($142,000) on the custody fight and has been on unpaid leave from his job for months.
 
Although he declined to comment on why he decided suddenly to leave Australia, supporters said he had grown increasingly frustrated with the way his former wife had used the Australian legal process to evade the Italian courts.
 
The father has publicly accused the mother of playing “dirty tricks” to win custody.
 
A spokesman for the father said he could not continue to fight for the children under circumstances that constantly thrust them into situations that were not in their best interests emotionally or psychologically.
 
”He loves and cherishes his daughters and always will,” he said. ”He will never give up on them.”
 
The spokesman also said Australia had little respect for the Hague Convention and international child abduction laws.
 
The father said last month that he felt discriminated against because he was a man and not Australian.
 
While the custody case dragged through the courts, the girls have been living with their mother and attending school on the Sunshine Coast. Their father had been granted regular access pending the final decision on whether the family must return to Italy.
 
The girls hold dual Italian-Australian citizenship.
 

[SageDad]

A sad ending to a sad story, but I suppose after everything that had happened it would have been naive to expect anything else.  These children were recruited in a war against their father and probably told that they were fighting for themselves and other children everywhere, so that they may stand up and demand to have the views they've been indoctrinated with heard.  We now routinely demand children stand up and "be heard" and pat ourselves on the back with how progressive we are as a society.  Someday we may rediscover the fact that most times children don't want to be heard.  They don't want to pick sides or be used as a weapon in the war of their parents.  Until that time courts will continue to create incentives for children to be poisoned by rewarding the ones who administer it.  Parents will continue to compete with one another to be their child's "best friend" rather than good parents.

[SageDad]

Apparently the news that the father has abandoned the Hague case are false according to sources close to the father on Facebook:

"A message from Italy:

The father has returned home pending the next step in the court proceedings, as he needs to attend to his job. He was originally led to expect he would only need to be in Australia for one or two days to recover his children (as per court orders).

He has now been made aware that certain elements of the media are referring to this as him having 'given up'.

Please be advised that:

- The newspaper reports that the father has "given up custody battle" are incorrect.
- The father has not spoken to any newspaper or reporter, and he has absolutely not authorised any "spokesperson" to do so on his behalf.
- He did not have a stopover in Abu Dhabi as was reported.
- He is not “giving up hope” and he has faith that Australia will eventually uphold the law of the Hague Convention.
- He will consider legal action about these claims, which have either been made by some person falsely pretending to represent him, or have been invented by the reporter.
- He loves his daughters with all his heart, and always will.
- The father has recently received personal threats and has been the subject of false claims and police complaints. These matters are in the hands of the Qld police and his own lawyers.

We want to clarify that the newspaper reports are completely false.

We request that these matters are not discussed further."