As overseas travel becomes more accessible, so too does the possibility of love blossoming with someone who is a resident of a foreign country. As a result an Australian citizen may marry or form a serious relationship and the parties may choose to continue to reside outside Australia. If the parties have children, the question may arise “What happens if the relationship ends and one of the parties wants to return to Australia with the parties’ children?”
In a recent case that has been overwhelmingly publicised which involves four Italian children who had been detained in Australia is one such example. The facts of this case were the mother travelled to Italy when she was just 16 years of age on a study trip. At 17 the mother married an Italian man and they had four daughters to their marriage.
Their marriage ended in 2007. Orders in relation to the living arrangements for the children were made in the Italian Courts allowing for the children to live with the mother and to spend time with the father. The mother subsequently was living by herself with their children in a country with no members of her maternal family.
The mother travelled to Australia with the children and never returned to Italy. The father subsequently had to file an Application with the Court for the children to be returned. The mother’s evidence was that the father gave her permission to move back to Australia with the children to be with her family. The father maintained he did not ever agree to such suggestion.
After numerous applications by the mother to Australian Court to have the children remain living in Australia, the final judgment was delivered on 3 October 2012 by a Judge of the Family Court. Whilst His Honour was aware of the girls request to stay in Australia, the International obligations of the Hague Convention overruled that request.
This was not a decision that the children should live with their father, but a decision that the children should be returned to Italy so that the living arrangements of the children could be determined by the Italian Court system.
Australia is a signatory to the Hague Convention, which is an agreement with many countries outlining rules concerning what is required to be considered if a child is abducted from certain countries. Italy also is a signatory to the Hague Convention. Both countries need to abide by that Convention when a child has been wrongfully removed or abducted from their home country.
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