…because the kids sided with the mother causing them to strongly object to returning to Croatia
The Full Court of the Family Court has upheld Justice Watts’ decision to allow a mother who abducted her two children aged 12 and 13 (without their father’s consent) back to Australia (from Croatia where they were ‘habitually resident’), to keep them here in Australia.
When a child is abducted from a country that is a signatory to the Hague Convention, there is an obligation to return the children to their habitual residence, which in this case, was Croatia, unless there is:
A grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
Each of the following applies
- the child objects to being returned;
- the child’s objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;
- the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views.
In this case the trial judge, Justice Watts in Sydney, found the exceptions applied, and could not be forcibly returned to Croatia.
Interestingly, the family consultant stated that whilst the children had firm, lengthy, possibly plausible reasons for their objection to being returned (to the extent that the eldest was threatening self-harm if forced to return to Croatia away from his mother), such express wishes were likely a result of their over-identification with/enmeshment with the mother who had abducted them to Australia. The family consultant indicated that despite their ages, the children’s emotional maturity had been compromised by their relationship with their mother and her involvement of them in adult conflicts.
It is a common problem faced by judges in family law decisions that the best interests of children who have taken one parent’s side in the adult conflict are inseparable from the interests of that parent.
Read the full case here: http://www.austlii.edu.au/au/cases/cth/FamCAFC/2016/79.html
