Tuesday, 22 May 2012
There has been extensive media focus on a recent decision by Justices Bryant CJ, Faulks DCJ and Coleman J in Garning & Director-General, Department of Communities (Child Safety Services)  on 9 March 2012.
On appeal from the Family Court, the Justices of the Full Court of the Family Court of Australia considered submissions made by Ms Garning to challenge the decision in the original hearing in June 2011, where it was decided by Forrest J that the Father did not consent to the Mother permanently relocating the children to Australia at any time, nor consent to the children’s wrongful retention in Australia after 30 July 2012 following the Mother’s cancellation of the children’s return airfares to Italy.
It was the unanimous decision of the Full Court to dismiss the appeal and uphold the orders of Forrest J, namely that Ms Garning must return her four children to Italy, pursuant to Australia’s obligations as a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
Ms Garning’s appeal was largely based on her argument that Forrest J had wrongly rejected evidence in the form of an Affidavit from a witness who allegedly overheard the Father agreeing that the children could permanently reside in Australia. Ms Garning made submissions to the Court that if the Full Court were to allow the admission of this evidence it would demonstrate that the Order of Forrest J under appeal was erroneous and would require a re-hearing on the issue of the Father’s consent to the children’s relocation to Australia.
In the Judgment, the Full Court observed that “the problem which the mother must overcome in this case is that what is sought to be put before the Court is not evidence in an admissible form... It would not conceivably have been difficult in the time since the hearing for the document to have been in an admissible form. Yet it was not, without explanation.”
It was decided that even if the evidence of the proposed witness was accepted, the trial Judge’s findings of fact would not be rendered erroneous, nor would any inferences he drew, or conclusions he reached in reliance upon those findings.
What is the Hague Convention?
The decision of Forrest J considered Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“The Convention”). This is an international treaty that ensures that children who are wrongfully removed or wrongfully retained by a parent in another country, will be returned as quickly as possible to the country in which they habitually reside, so that issues of parental responsibility can be resolved by the relevant Courts in that country.
The Convention assumes that the Courts in the children’s habitual residence country are best able to make decisions about the best interests of the child. The Convention also allows parents to make an application to seek assistance in obtaining the Australian equivalent of a “spends time with and communicates with” Order for children living overseas with the other parent.
The Convention sets up a Central Authority in each country to deal with requests for the return of children to each country. Currently, 86 countries are parties to the convention (“Convention Countries”) and Australia is contracted with 76 of these countries directly, including Italy.
How can the Court order an Australian Mother to return her children to Italy?
Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”) implement the Hague Convention in Australia. These Regulations give the Court the power to make a return Order, or any other Order that it considers to be appropriate, to give effect to the Hague Convention. To implement such an Order, the Court needs to be satisfied on the evidence before the Court, that the conditions of the regulations are met to impose such an Order.
Justice Forrest specifically considered the Court’s obligation to the Regulations under Regulation 16(1), as well as each of the arguments raised by the mother under Regulation 16(1)(3) to oppose the return of her children.
Step One: Consideration of the Conditions in Regulation 16(1)
Regulation 16(1) states that the Court must make an order to return the children, if the following three conditions are satisfied:
- an application for a return order is made; the Court held this was satisfied by the Father;
- the order is filed within one year after the children’s removal or retention; the Court held this was satisfied; and
- that the children’s removal or retention was wrongful under Sub-Regulation (1A) of Regulation 16(1).
For sub-regulation (1A), a child’s removal to, or retention in, Australia is wrongful if:-
- the child was under 16; the Court held this was not in dispute; and
- the child habitually resided in a convention country immediately before the child’s removal to, or retention in, Australia; the Court held this was not in dispute; and
- the person, institution or other body seeking the child’s return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child’s removal to, or retention in, Australia; the Court held this was not in dispute; and
- the child’s removal to, or retention in, Australia is in breach of those rights of custody; this point was considered in depth by Forrest J and held to be satisfied; and
- at the time of the child’s removal or retention, the person, institution or other body: (i) was actually exercising the rights of custody (either jointly or alone); or (ii) would have exercised those rights if the child had not been removed or retained; this point was considered by Forrest J and held to be satisfied.
On Justice Forrest’s examination of the evidence before him, he found that the conditions of Regulation 16(1) were satisfied, and accordingly found that an Order must be made by the Court to return the children, unless one or more matters in sub-regulation (3) of Regulation 16 apply.
Step Two: Do any matters in Regulations 16(1) Sub-Regulation (3) Apply?
Regulation 16(1) is made subject to the conferral of a discretion of the Court not to order the return of the children if the person opposing the return of the children establishes one or more matters in sub-regulation (3) of regulation 16.
Sub regulation (3) of regulation 16 states that a Court may refuse to make an order under sub-regulation (1) or (2) if a person opposing return establishes that:
- the person, institution or other body seeking the child’s return: (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; each point considered by Forrest J and held not to have been satisfied;or
- there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; point considered by Forrest J and held not to have been satisfied; or
- each of the following applies: (i) the child objects to being returned; (ii) the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes; (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; each point considered by Forrest J and held not to have been satisfied; or
- the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms; considered and held and held not to have been satisfied.
Accordingly, it was Justice Forrest’s view that none of the matters in sub-regulation (3) of Regulation 16 were satisfied by the evidence produced by Ms Garning. The Court therefore ordered that the children be returned to Italy, so that issues of parental responsibility in relation to Ms Garning’s children can be resolved by the Courts in Italy.
Forrest J in his decision states, “These four girls were all born in Italy and have lived in the same village since their birth until coming here to Australia... In my opinion, the mother’s unhappiness with the parenting arrangements that pre-existed her return to Australia should, most appropriately, be dealt with, if at all, through the courts of Italy where the family habitually resided. I would, in all the circumstances, order the return of these four girls to Italy even if my discretion not to was enlivened”.
Due to the intended brevity of this article, specifically focusing on the law on point, I have summarised the salient facts of the case generally, for further reading hereunder.
Ms Garning was born, in Australia.
Ms Garning moved to Italy, aged 16.
Ms Garning married an Italian man, at the age of 17.
The couple had four girls together; the children grew up in Italy.
The mother and father separated.
The mother and father agreed to “joint” custody of the four girls by way of an agreement with the approval of the relevant Italian Court.
The mother commenced regular contact with Australian Consular Staff to seek their assistance to obtain Australian citizenship for the four children.
Father’s version of events: the father agreed that the girls could go on a month long holiday to Australia, the girls were to return before the September semester of school resumed - the father signed the passport applications on this understanding.
Mother’s version of events: the father agreed that the girls could relocate to Australia permanently and subsequently signed their passport applications.
Mother and daughters arrive in Australia on a flight from Rome Airport to Brisbane - they have with them return tickets to Italy booked for 20 July 2010.
Mother’s version of events: Return tickets were only booked because they were cheaper than one way tickets.
Father’s version of events: Mother phoned to say they would not be returning. The father confirmed with the airline that the return tickets had been cancelled.
Article appears in Queensland newspaper titled “Family Flees to Safety of Coast” which describes a “delicate mission as Ms Garning planned a secret escape from Italy with her girls. It took three years and the help of the Australian Embassy in Rome to get the family out. ‘He would not sign the girl’s passports and I had to coax him over time. I convinced him to let me take the girls to Australia for holiday and as soon as we got to Rome the Embassy looked after us and made sure we got out’ ”. Mother’s version of events: Court should not rely on the newspaper article or quote as evidence of truth; it was taken out of context and misquoted.
July 2010-May 2012
Father looks to remedies available to return the four children to Italy under the Hague Convention and pursues this over a period of ten months, arguing the mother’s wrongful retention of the children in Australia.
The first hearing is held in the Family Court of Australia at Brisbane, the father seeks the return of the children.
Judgment delivered by Family Court of Australia in Brisbane.
Appeal heard by the Full Court of the Family Court of Australia in Brisbane.
Judgment of the Full Court delivered.
Urgent applications dismissed by the Family Court in Brisbane and further significant media attention is drawn to the case by the Mother and her family.
Children and maternal great-grandmother still remain “at large”. The mother remains in breach of an Order of the Court requiring her and the children to return to Italy.
Wiltshire Lawyers can assist you with any of your concerns in relation to the following:-
- Steps you can take to prevent your child or children from being taken out of Australia without your consent;
- Any questions you may have about taking your child or children to another country; and
- Steps to take if your child or children have been abducted and you require assistance in seeking their return to Australia.
For assistance with these, or any family law matters, please contact our reception to make an appointment for your free initial consultation with a member of our team (07) 5554 1555.
Junior Family Lawyer
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This article should not be considered as either formal or informal legal advice. This article should only be read as general information relating to the particular subject matter it is written about. The information may or may not apply to the reader's particular circumstances. Wiltshire Lawyers only purport to provide legal advice to clients who have provided detailed instructions and who have formally retained our services.
 FamCAFC 35 (9 March 2012).
 Publication of the judgment by the Court was done so under the pseudonym Garning v Director-General, Department of Communicates (Child Safety Services).
 Department of Communicates (Child Safety Services) & Garning  FamCA (23 June 2011).
 Garning & Director-General, Department of Communities (Child Safety Services)  FamCAFC 35 (9 March 2012) at 65.
 Ibid at 67.
 Ibid at 73.
 Website of the Australian Government Attorney Generals Department: ‘About international parental child abduction’.
 Department of Communities (Child Safety Services) & Garning  FamCA (23 June 2011) at 125.
 Ibid at 127.
 Garning & Director-General, Department of Communities (Child Safety Services)  at 61.
 [Ibid]at 62.
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