There has been much media coverage in relation to the children embroiled in the Italian/Australian International Custody battle

Original Orders

It started in June last year when the Family Court of Australia ordered the return of four children to Italy.  The children had lived in Italy for all of their lives until they were brought to Australia and retained here.

Background

The children were thought to have been brought to Australia for a four week holiday. When the father learned that the girls were not going to be returned to Italy by their mother, he invoked the provisions of the Convention of the Civil Aspects of International Child Abduction.  This Convention, also referred to as the Hague Convention, was signed at The Hague in the Netherlands in 1980.

Australia and Italy (among other countries) have signed the Hague Convention and enacted it into their own domestic law.  The Italian Government took steps to have the Australian Government bring proceedings in the Family Court of Australia for their return pursuant to that Hague Convention.

The Court’s Role

The Australian Court’s role was not to determine that it is in the children’s best interests to return to live in Italy.  The Hague Convention provides that when children are wrongfully removed or retained away from the country of their habitual residence, court proceedings to determine which parent they should live with should take place in that country of their habitual residence.

Appeals

The decision for the children to return to Italy was appealed to the Full Court of the Family Court.  The mother was not successful on appeal.  The mother then filed an application in the High Court for special leave to appeal against the Full Court’s decision to dismiss her appeal.  During this time, the Court’s orders of June 2012 were stayed.  The mother later withdrew her application for special leave to appeal to the High Court.

Then the children were taken into hiding.  The Court then ordered a recovery order.  The Court refused to hear the mother’s application whilst the children remained hidden.

Then the maternal great-aunt then made application directly to the High Court asserting constitutional invalidity of a provision of the Family Law Act.  The High Court dismissed the maternal great-aunt’s application.

Decision

The mother then again applied to Family Court of Australia for the discharge of the return order.  The State Central Authority filed an Application in a Case and successfully submitted that the Family Court of Australia should give effect to the order for the return of the children to Italy.

The girls then boarded a flight to Italy on 4 October 2012.

The decision can be read in full – reported as Department of Communities, Child Safety and Disability Services & Garning (Discharge application) [2012] FamCA 839 (3 October 2012) .