October 3, 2012 - 4:18PM
A Family Court judge has ordered four sisters involved in an international custody dispute be returned to Italy "as soon as practicable".
Justice Colin Forrest took six days to consider his judgment, having previously told the concerned parties he was conscious of the court's obligations under the Hague Convention to make decisions promptly.
It took him just over an hour to read out his entire judgement and the girls' mother cried as the judgment was read out.
Justice Forrest ordered the children be returned to the care of a Department of Child Safety officer, known to the children, to accompany them to Italy.
The time and place of the girls' departure was to be determined by the department, but they were to be sent to Italy "as soon as practicable".
The mother and her family left court without speaking to media, the mother leaving by a side door. She has not given any undertaking as to whether she would return to Italy with her children, however in his judgement Justice Forrest said he hoped she would do so.
A warrant has been given to the Australian Federal Police for the return of the children.
The childrens mother wrote the childrens location on a piece of paper and handed it to the bailiff, so it was not revealed in open court.
Through her lawyers, the mother asked for an indulgence of a few days to explore any further legal avenues open to her, but Justice Forrest found that could delay the childrens return and rejected her appeal.
The mother also asked Justice Forrest to include orders that she be allowed to see her children while in the care of DoCS, however he ruled that was a matter for the childrens father, the department and her to work out.
Justice Forrest sought an undertaking by the childrens father that he will withdraw any criminal complaints against the mother in Italy and will not re-enliven any criminal complaints if she did return.
Barrister for DoCS, James Linklater-Steele saidevery effort will be made to return the children immediately, however no date was set in court.
Whether their mother returns with them was a matter between her, the children's father and the state central authority and DoCS.
After a brief adjournment, the court heard that undertaking had been given by father, who promised not to take any more action against the girls' mother.
There is not yet any indication of whether the decision will be appealed.
Justice Forrest's decision came after an application from the children's mother to have the return order discharged last week, a hearing which took all day and included an ultimately rejected bid for a further adjournment to the case.
The return order follows five months of intense legal wrangling in the Family Courts as the mother of the four girls and her family fought for her daughters to be allowed to stay in Australia.
The mother left Italy with the children and came to Australia in June 2010.
Soon after, the father enacted Hague Convention protections, an international legal treaty which requires signatory countries to make arrangements to return children who have been wrongfully removed from their country of primary residence, to have his daughters returned to Italy.
Under the terms of the return order, the children, aged between nine and 15, were due to fly back to Italy in May. They refused to go and their family went public with their story.
In an attempt to avoid the return order, the children went on the run with their maternal great-grandmother.
They were found soon after and placed into foster care until worries for their emotional well-being saw them returned to the temporary custody of their Sunshine Coast mother.
Since then, there has been a High Court challenge (essentially arguing minors were entitled to their own, separate legal representation in custody issues), which was rejected on the first day of the hearing, several adjournments and appeals.
Last week after hearing both the mother's barrister Jacoba Brasch and Mr Linklater-Steele on behalf of the Department of Communities (Child Services), argue their respective cases regarding the discharge application, Justice Forrest spoke of the protracted nature of the case and expressed his desire to have it resolved, legally, as soon as possible.
Last week, one of the mother's great-aunts told journalists outside the court,their family would abide by the court's ruling, even if that meant returning the children to Italy.
Any on-going custody or parental issues will be heard in the Italian courts.
And upon the giving of an undertaking to this Court by the father that he will withdraw any criminal complaint he has made to Italian authorities against the mother for her actions in wrongfully retaining their four children in Australia in 2010 and that he will not re-enliven any such complaint after the mother returns to Italy, if she does
It is ordered:
(a) that paragraphs 1 and 2 of the orders made by Justice Forrest on 4 May 2012 be discharged;
(b) that paragraph 5 of the orders made by Justice Forrest on 4 May 2012 be discharged, such discharge not to re-enliven paragraph 3 of the orders of Justice Forrest made 23 June 2011;
(c ) that paragraphs 4 to 11 inclusive of the orders made by the Honourable Justice Murphy on 6 July 2012 be discharged;
(d) that paragraph 1 of the orders made by Principal Registrar Filippello on 6 August 2012 be discharged;
(e) that paragraph 2 of the orders made by Principal Registrar Filippello on 6 August 2012 be discharged and in lieu thereof it is ordered:
(i) that subject to sub-paragraph (ii) below, the Commissioner of the Australian Federal Police and all Federal Agents of the Australian Federal Police retain the names of the respondent mother and the said children on the All Ports Watch Alert System at all international departure points in Australia;
(ii) that the said children, and the respondent mother be removed from the All Ports Watch Alert System by officers/agents of the Australian Federal Police upon receipt of a letter from an officer of the Court Services Unit, of the Department of Communities advising of the travel arrangements made for the said children to return to Italy from 12.00 am on the date nominated for the said travel in the letter;
(f) that a warrant (in accordance with Regulation 31 in Form 2C of the Family Law (Child Abduction Convention Regulations) issue authorising and directing the Marshal of the Family Court and the Commissioner and all federal agents of the Australian Federal Police and officers of the Queensland Police Service and all other police officers in all other States and Territories of the Commonwealth of Australia to take possession of the children E born June 1997, C born August 1998, D born December 2001 and L born May 2003 and deliver the said children to an officer of the Department of Communities, Child Safety and Disability Services or if the said children are located in another State or Territory of the Commonwealth, to a person nominated by the Director-General, Department of Communities, Child Safety and Disability Services, and that for the purposes of the exercise of the foregoing powers to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where the said children may be or where there is any reasonable cause to believe the said children may be;
(g) that the Registrar of this Court serve a sealed copy of the warrant on the Australian Federal Police forthwith;
(h) that the children E born June 1997, C born August 1998, D born December 2001 and L born May 2003 be returned to the country of Italy at a time and from a place to be nominated by an officer of the Department of Communities, Child Safety and Disability Services as soon as practicable and Ms T (an officer of the Department of Communities, Child Safety and Disability Services) or such other persons nominated by the Director-General, Department of Communities, Child Safety and Disability Services, shall accompany the children to give effect to their return to Italy;
(i) that the applicant do all acts and things necessary to coordinate the making of the arrangements that are necessary to give effect to the return of the said children to Italy.
Site Moderator saidThe extensive discussion forum has a lot of background on this case and the site moderators remind all of the rules in publication that have been prescribed. No parties may be identified. No parties may be denigrated and moderators will remove any material deemed prejudicial to the respective parties. Please have some consideration for the girls and the parents at this particular time as the outcome is not what the mother and the girls expected
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Link to forum and initial case in the Full Court judgement of Bryant CJ, Faulks DCJ and Coleman J
Court orders sisters to return to Italy
The four sisters at the centre of an international custody dispute have been ordered to return to Italy.
The Family Court had previously ordered the girls, aged between 9 and 15, be returned to Italy under the Hague Convention, where divorce proceedings between their parents are underway.
Their Australian relatives challenged the order in the High Court but the full bench dismissed the appeal.
The matter was sent back to the Family Court where lawyers for the girl's mother challenged the order for their return to Italy.
They told the court the girls do not want to leave their mother, who faces possible criminal prosecution for failing to return to Italy with her daughters.
But Justice Colin Forrest today dismissed the application.
He has ordered that the children be taken into the custody of the Queensland Department of Communities and be returned to Italy as soon as possible.
The girls' mother left the court sobbing, with her family by her side.
Their father was not in court today as he recently returned in Italy.
The sisters have been living in Queensland with their mother for the past two years, after what their father says was supposed to be a short holiday in Australia.
They failed to board a flight back to Italy in May and went into hiding before being found by Australian Federal Police.
Their mother wants them to live with her permanently on the Sunshine Coast.
Family court orders that four sisters in custody case should return to Italy
By Ainsley Pavey
4 October 2012
The four sisters in the Italian custody case have been ordered to return.
A judge sending four Italian girls home against their wishes "sincerely hopes" their distraught mother will return with them after their father agreed not to lay criminal charges.
Handing down his long-awaited decision, Family Court judge Colin Forrest said the "sporty" siblings were all "born in Italy" and "did not know life in Australia" before being wrongfully retained here.
"The four girls were all born in Italy, well adjusted, compliant, talented in sport and made it to Italian competitive level," Justice Forrest told a packed hearing yesterday.
In giving his reasons, Justice Forrest sought an assurance from the father, who was back in Italy, not to lay criminal charges now or in the future against his ex-wife "should she determine to return to Italy as I sincerely hope she does".
The father's Italian-speaking lawyers stepped out of the hearing room to call the father and explain the custody deal before Justice Forrest issued the warrant to return the girls.
In a sign of the sensitivity of the case, Justice Forrest ordered lawyers for the relevant authorities to correct the spelling of one of the girls' names and to check their birth dates.
James Linklater-Steele, for the relevant authority, which is acting as the Sheriff to return the girls under The Hague Convention, said a federal police officer was waiting in the courtroom.
Mr Linklater-Steele also asked for the girls' current location to be written down and not read aloud.
The mother's lawyers failed to get another adjournment to seek a further stay.
"Every effort will be made to immediately return the children," Mr Linklater-Steele told Justice Forrest after he asked if the relevant authority would act "immediately" to send the girls back.
Justice Forrest told the hearing he did not "intend to grant a stay at this point in time" but said the mother "has her rights".
The mother broke down as the return orders were made and family members tried to comfort her.
Justice Forrest gave her a few moments to compose herself before she wrote down the address her children were staying at.
In a lengthy legal analysis, Justice Forrest rejected all three grounds argued by the mother for her daughters to remain in Australia.
Her arguments that it was "impractical" to send them back, that there were "exceptional circumstances" for them to stay, and it had been "12 months" since the return order was made were all rejected.
But Justice Forrest found the girls had been significantly influenced by the mother and those around her, including "extremely inappropriate and bizarre" views of their maternal great grandmother.
He told the hearing that when Queensland police found them in hiding, the great grandmother declared in front of them, "How exciting. Who is going to play you in the movie? They will have to find a good little dark-headed actress to play you".
Justice Forrest told the court he did not want to trivialise the threats of self-harm made by the second eldest daughter but found it was more attention-seeking and she never intended to carry it out.
He also found the lapse of 12 months under the legislation which would allow for a possible discharge of the return orders started at the point of the appeal in May, not June last year when return order was first made.
In his closing remarks, Justice Forrest indicated he would have used his discretion to send the girls back even if the mother's argument on the three legal points was successful.
"The evidence all points to the fact the girls all love their father, even if they do not want to return to Italy," Justice Forrest said.