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Four sisters ordered to be deported to Italy to their father – by midnight tonight


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#1 She-Ra

Posted 15 May 2012 - 09:40 PM

There’s an international custody drama unfolding in Qld that’s been getting quite a bit of media attention due to the savvy young girls and the blatant disregard for their human rights. The eldest is 15 and should be able to have a say, but that is being denied.

From what I have read, the Australian mother met the father in Italy and lived there with him and had the four children– (the children all have dual citizen ship.) It’s alleged that there were abusive episodes by the father towards the mother and the children, but the mother was discouraged from pressing charges. The mother (with the fathers consent) took the children on a holiday back to Australia but hasn’t returned. The father did nothing for two years, and has now started proceedings using the Hague convention. The mother has been ordered to go back to Italy (with the children) to face a trial. The children have apparently been taken by the great grandmother and have been in hiding for the last couple of days.

The mother has been ordered to be at Brisbane International Airport tonight at 1 minute past midnight.

There is a facebook page for people who want to support this cause and want info on it, https://www.facebook.com/kidswithoutvoices
-------------------------------------------------------
Posted on behalf of the National Child Protection Alliance
POSITION STATEMENT
REGARDING THE 4 `GARNING’ CHILDREN ORDERED TO BE DEPORTED TO ITALY TO THE CUSTODY OF THEIR FATHER

The four `Garning’ children who have been ordered to be deported from Australia and returned to their father’s custody in Italy.

Reasons for NCPA objecting to these Orders.
1. By the strength of their resistance to having to return to their father, it is clear that they will suffer severe emotional trauma if they are returned to him;
2. It is similarly clear that the girls’ views have not been taken sufficiently into account by the Court but have been summarily dismissed from the considerations;
3. The father - the Court accepted the mother’s evidence that the father had subjected her to serious physical, emotional, and verbal abuse. Since their separation in 2007 the father has subjected the mother to harassment and death threats;
It was also accepted that the father had subjected the children to physical abuse but which the Court dismissed as `Authoritarian parenting’;
The father suffers a serious mental disorder for which he has been hospitalised on three occasions and continues to receive outpatient treatment;
4. In 2010 the father took one of the children on his motorcycle without any protective headgear or clothing and he was on medication. He was speeding and crashed into a car in reckless disregard for his own safety and his daughter’s. Fortunately his daughter only suffered minor injuries for which she was taken to hospital by ambulance for treatment.

Article 13 of the Hague Convention states:

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that –
a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or
b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The judicial or administrative authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
In considering the circumstances referred to in this Article, the judicial and administrative authorities shall take into account the information relating to the social background of the child provided by the Central Authority or other competent authority of the child's habitual residence.

The NCPA position and recommendations:

It is the view of NCPA that insufficient consideration has been given to the provisions of Article 13 :
a) That there has been little or no assessment of the `social background’ of the child by a competent authority in the child’s habitual residence (in this instance adjudged to be Italy);
b) That insufficient consideration has been given to the age and degree of maturity of these children (the oldest almost 15 years) and the strength of the children’s individual and collective objections to be being placed in their father’s custody;
c) That the risk of physical and psychological harm to the children has not been fully and competently assessed in the light of the admitted physical abuse by their father and the potential for physical, emotional, and verbal abuse of which he has been shown to be capable.
In these circumstances the NCPA recommends that the proceedings in this matter are re-opened and :

1. The children are joined as separate parties to the proceedings under the Family Law Act 1975 Section 65 (a) and the Family Law Rules 2004 Regulation 6.03. The children are enabled to appoint their own legal counsel so they have full legal representation and legal aid, and an independent Child Advocate to act as their `Next Friend’ in the proceedings;

2. The risk of physical and psychological harm to the children be fully investigated and assessed by competent child protection specialists. Particular attention should be given to the father’s past and ongoing mental health problems and to his parenting capacities;

3. A full assessment be made of the `social background’ in which the children would be expected to live if returned to their father.

The Australian Federal Parliament gave very considerable consideration in 2011 to issues regarding domestic violence and the inherent abuse of children, and to the right of children to have their wishes and feelings placed as a major consideration in Family Law matters in accordance with the spirit and intent of the U.N. Convention on the Rights of the Child, which was ratified by Australia in 1991. In consequence, Parliament determined that the Family Law should be considerably amended and strengthened in regard to these matters – such amendments come into force in June 2012.
It would appear that the Family Court judiciary, including Chief Justice Bryant and Deputy Chief Justice Faulks, are insensitive to the strength of feelings and the intentions of the members of the Federal Parliament regarding these issues.


#2 BetteBoop

Posted 15 May 2012 - 10:08 PM

It's a complex situation. From what I've read, the mum took the girls to Australia a couple of years ago for a holiday but never brought them back. She hasn't behaved ethically and possibly not lawfully (some call it abduction) so she's not on the best footing with the Family Court.

The violence that is alleged by the father has not been documented so from a court's perspective, it's hard to take that into account.

I think the 15 yo has won the right to stay though.

#3 Princess.cranky.pants

Posted 15 May 2012 - 10:15 PM

..

Edited by Princess.cranky.pants, 15 May 2012 - 10:16 PM.


#4 She-Ra

Posted 15 May 2012 - 10:15 PM

Yes, it is complicated. She didnt return the children from the holiday, so technically she did abduct them. But it looks like she did it to protect the kids as no-one seemed to be helping them over there.
He has also waited for two years to take any action. The kids are settled and happy here and the eldest should have a say. There was a court case and she was severely let down by legal aid and she was forced to self represent.

This is the response from the Attorney Generals Office:

Australian Government refuses to help 4 girls in family court ordered deportation to their Father in Italy case - please see the below media release from the Attorney General
---------------------------------------------

UNCLASSIFIED

THE HON JASON CLARE MP
Acting Attorney-General
Minister for Minister for Home Affairs
Minister for Justice
Minister for Defence Materiel

STATEMENT ON FAMILY COURT MATTER IN QUEENSLAND
15 May 2012

Family law matters involving children are often very difficult and I feel for everyone involved in the current matter in Queensland.

As this is a Family Court matter, it is not appropriate for me to comment on the details of this case.

The family courts in Australia makes decisions independent of Government.

In this particular case, the Family Court and the Full Bench of the Family Court have both considered the matter in detail.

The Government has received advice from the Attorney General's Department that it does not have the power to become involved in family law proceedings where the outcome has been finally determined by the family courts.

Australia is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. By being a signatory to this convention, Australian parents who claim their children have been abducted overseas by their other parent can seek their return to Australia so that child custody disputes can be resolved by the courts in Australia. The same principle applies if parents from another country claim their children have been brought to Australia from overseas without their permission.


Contacts:
Attorney-General’s office: Chris Owens 0409 945 476

#5 Leafprincess

Posted 15 May 2012 - 10:16 PM

What gets me upset about this case is that the girls are old enough to have their wishes heard and it appears no one is listening to them.

I can understand the use of the the Hauge convention in cases such as a Sydney father Ken Thompson-  he came home to find his exwife had taken their son overseas to Europe. He self funding a search mission to find him, it took him years. It was only last year he managed to locate them., after cycling 6000 km across Europe looking for them.

http://www.abc.net.au/7.30/content/2010/s3010634.htm

In the case of these four girls it is entirely different and I think the Hauge convention is not being correctly applied in this circumstance.

The protection of the girls rights should come before anything else.

#6 jordiegirl

Posted 15 May 2012 - 10:22 PM

How is it different? The mother's claims against the father are unsubstantiated currently and have not been heard in the original jurisdiction - Italy.

She abducted them and must return to Italy to sort it out.

I would hate to ever be in that situation, but it's the way it is.

#7 She-Ra

Posted 15 May 2012 - 10:25 PM

I'm suss on that Ken Thompson case. The woman fled because the courts didnt believe her when she raised allegations that he was abusing their child. What happened when he finally found them was unbelievably horrible for the child. Mum was thrown in jail, child (4 years later at age 6 I think) was put in a detention centre for 6 weeks then deported back to Australia to live with a stranger (the father) who could very well be an abuser.

The courts do get it wrong, and what choices do people have to protect them, when the protectors wont?





#8 Marmaladie

Posted 15 May 2012 - 10:26 PM

Were they in fact ordered back to his custody or just ordered back to Italy? The mother can always return with them to Italy. I read some of the judgement and it appears that she had agreed to joint custody with the father before she came here.

#9 Charlies Angel

Posted 15 May 2012 - 10:27 PM

We can't pick and chose when we want The Hague Convention to apply.

#10 Marmaladie

Posted 15 May 2012 - 10:31 PM

In the Ken Thompson case there were allegations of abuse also.

#11 BetteBoop

Posted 15 May 2012 - 10:37 PM

QUOTE (She-Ra @ 15/05/2012, 10:25 PM) <{POST_SNAPBACK}>
I'm suss on that Ken Thompson case. The woman fled because the courts didnt believe her when she raised allegations that he was abusing their child. What happened when he finally found them was unbelievably horrible for the child. Mum was thrown in jail, child (4 years later at age 6 I think) was put in a detention centre for 6 weeks then deported back to Australia to live with a stranger (the father) who could very well be an abuser.

The courts do get it wrong, and what choices do people have to protect them, when the protectors wont?


Yes it's not the feel good story the media lead us to believe. The father said his ex has a mental illness and genuinely believed he abused their son.

The mother stayed in prison rather than agree to shared custody arrangements. She seems to firmly believe he abused their child. The child in all of this has been tossed around from parent to parent and country to country.

All in all, a very sad story.

#12 Marmaladie

Posted 15 May 2012 - 10:48 PM

The more I read about this case the more I believe the mother has done the wrong thing in this scenario. It appears they had joint custody before they left the country and from what I can make out they would not be forced to go into the father's sole custody but they would have to return to Italy either with or without the mother. I saw the ACA interview online and the children seemed more concerned about missing their mother and being looked after by the grandparents while the father worked than anything else; they did mention violence but it seemed kind of scripted. I really don't know what to think.

#13 She-Ra

Posted 15 May 2012 - 10:53 PM

That ken Thompson case was at the height of Howards Family Law reforms. The father wagered a huge media campaign with the fathers rights groups. My gut feeling (along with researching the case) felt that he was the opposite of the real deal, and it was verrrrry creepy and disconcerting.

It's so hard to know with this sort of thing. Especially when the media steps in.

And yeah, the poor kid, was/is a by product of the circus. So much for best interests of the child.

#14 MrsLexiK

Posted 15 May 2012 - 11:26 PM

QUOTE (jordiegirl @ 15/05/2012, 10:22 PM)
14579052[/url]']
How is it different? The mother's claims against the father are unsubstantiated currently and have not been heard in the original jurisdiction - Italy.

She abducted them and must return to Italy to sort it out.

I would hate to ever be in that situation, but it's the way it is.

This

QUOTE (Charlies Angel @ 15/05/2012, 10:27 PM)
14579066[/url]']
We can't pick and chose when we want The Hague Convention to apply.

and this

#15 I'm Batman

Posted 15 May 2012 - 11:40 PM

I agree with She ra about this case. These children are old enough to have their allegations tested and interviewed here in Australia, there is supporting evidence that he has mental health issues given his crash was under the influence. There is also that the italian legal system is not as straight forward as the Australian one.

#16 Marmaladie

Posted 16 May 2012 - 04:22 AM

I feel sorry for these girls as the have now been put in this circumstance by the mother. From what I have read the mother was happy for the father to have them weekends and one night during the week so she obviously had no fear of them being harmed. She decided she wanted to come back to Australia and brought the children here illegally pretending to be taking them on a holiday. The children obviously are more attached to the mother and just want to be with her. The mum wants to be in Australia so they want to be in Australia. If the mother moved back to Italy they would be happy to return I'm sure. This is so damaging to them to be put in this position.

#17 Drowninginferal

Posted 16 May 2012 - 07:55 AM

QUOTE (I'm Batman @ 15/05/2012, 11:40 PM) <{POST_SNAPBACK}>
There is also that the italian legal system is not as straight forward as the Australian one.


That might be true but you can't pick what legal system works your case. The alleged abuse happened in Italy, the custody arrangements were done in Italy. Australia has no jurisdiction to investigate the claims. The mother should return with her children to Italy and sort it out there. They need not live with him that way. But as it stands, not only is the father being denied his parental rights but he is also being denied his opportunity to confront his accuser and defend himself. If he is in fact guilty of abuse, I would welcome the family back to Australia but running away with the kids because it was easier than going through the courts wasn't the way to do it.

#18 Kay1

Posted 16 May 2012 - 08:32 AM

QUOTE
We can't pick and chose when we want The Hague Convention to apply.


This!!

This is the risk you take when you have children with a citizen of another country and raise them in that country - you can't just disregard the legal system of that country because its not convenient for you.

#19 muddocswife

Posted 16 May 2012 - 08:40 AM

I read the judgement last night from the Family Court and she is bending the truth in some areas. I feel for her but as others have said here, we have a process that everyone has to follow.

#20 opethmum

Posted 16 May 2012 - 09:01 AM

If what the girls are saying is true then they deserve to be heard and the family court must take their accounts in to consideration. The mother acted unlawfully and who knows she maybe making unsubstantiated allegations just to get back at the father.
I agree with pp in that we can not pick and choose when the Hague Convention applies. I feel sorry for the children who are left paying for their mother's mistake.
I am sure us in EB land would condemn a father for taking his children os without the mother's consent.
Whilst I support a humanitarian approach to this situation, the law is the law and it is their for everyone to follow. Due process must be done to ensure that justice is done legitimately. I think the mother knew what she did was wrong and to live in a fantasy world that everything would not catch up with her ultimately hurts her children. She must account for her actions whether we agree with them or not.

#21 Lightning_bug

Posted 16 May 2012 - 09:22 AM

The Judgement is interesting reading.  The abuse is not the issue, regardless of wanting to make it one.  

The manner and legality of leaving is.  The mother claims she had permission and the father states he didn't give it...  If she were just running away why would she lie about having permission and not admit it were a lie to get away from him?  And if she had permission, why buy return tickets?

http://www.austlii.edu.au/au/cases/cth/FamCAFC/2012/35.html


HIS HONOUR: The mother also said somewhere in her material that when she got the signature of the husband - the ex-husband on the passport applications it was then that he knew he was signing for her to leave permanently with the girls. His signature was witness [sic] by another person.

HIS HONOUR: And the mother said that that other person would swear an affidavit to that same effect.

HIS HONOUR: And we haven’t seen an affidavit from any such other person.

MR GREEN: No, your Honour. And can I indicate, your Honour, as your Honour has raised that - - -

HIS HONOUR: Well, I raise it. Do you make a submission in respect of that, that I should make anything of that?

MR GREEN: Your Honour, we haven’t heard any explanation at this point. These are matters about which - I was going to wait to hear, but since your Honour has prompted the question - with respect, your Honour, actually I would rather hear what - if your Honour were to put that to [Ms Garning].

HIS HONOUR: Okay.

MR GREEN: I would rather wait to make a submission about that when I hear what [Ms Garning] explains. But other than to record that your Honour granted an extension to [Ms Garning] to file further material and I understand, although I wasn’t in court on the day, made clear that the extended date was D day for the filing of material. And notwithstanding that the Central Authority was served with material as late as last Friday and it did not include an affidavit from, I think, what’s called the guarantor or, effectively, the person who witnessed the father’s signature. ...

His Honour raised this issue with the mother in the following passages (Transcript 16 April 2011, page 77, lines 10-39):

HIS HONOUR: See, the problem for you is that you don’t have any other evidence that he actually consented to them coming permanently, save for you saying that he did.

MS GARNING: Yes, it is my word.

HIS HONOUR: There’s not one piece of other evidence, save for you saying, “He consented to me coming permanently.”

MS GARNING: It is my word against his.

HIS HONOUR: But the extraneous evidence gives greater support to his view of that – to his evidence of that, being that he only consented to them going on a holiday. And you’ve some of the things that Mr Green has pointed to; the extraneous evidence that I’m taking about is, for example, return tickets being booked. Right? And I understand what you say about that but nevertheless return tickets being booked suggests exactly what that means. Return tickets, you know – there was an expectation of return

Edited by Lightning_bug, 16 May 2012 - 09:31 AM.


#22 Bam1

Posted 16 May 2012 - 09:42 AM

I would bet that if it was the other way around with an Australian mother fighting through the courts for her daughters who were taken by their Italian father to Italy to holiday, the OP may believe that the Hague convention should actually apply!

Or should the Hague convention only help mothers and especially Australian Mothers.

As someone else has said you can't pick and choose when to apply it. The mother in this case did do the wrong thing with regards to custody and needs to sort it out in Italy

#23 Marmaladie

Posted 16 May 2012 - 09:56 AM

Prior to leaving Italy they had joint custody with the children spending every weekend there; the mother never sought to change this. It appears she wanted to live in Australia for mainly financial reasons. The judgement is not saying they have to live with the father it is saying they have to return to Italy. By leaving Italy in this way the mother has forced the childrens' hands to choose who they want to live with and obviously they are closer to the mother. It is not surprising they are acting desperately to stay here as the mother has not indicated she will not travel with them to Italy. Why does she not return with them??

#24 Lightning_bug

Posted 16 May 2012 - 10:02 AM

QUOTE (Marmaladie @ 16/05/2012, 09:56 AM) <{POST_SNAPBACK}>
By leaving Italy in this way the mother has forced the childrens' hands to choose who they want to live with and obviously they are closer to the mother. It is not surprising they are acting desperately to stay here as the mother has not indicated she will not travel with them to Italy. Why does she not return with them??


Not to mention what those poor children have been told.

i would think getting a psycological report of the children's status would help things.

#25 Jess1

Posted 16 May 2012 - 10:04 AM

I believe she can't return as she would be arrested in Italy for kidnapping and face up to 20 years in jail.

There is no doubt that the mother has legally done the wrong thing.  Whether the reasons she did this are true or not is the question.  The father could be abusive or he could be a wonderful man who has had his children taken away.




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