Wednesday, 1 July 2015

Withdrawing Children From Holiday Contact

In what became known as the case of the four Italian sisters, the parents and the sisters were resident in Italy. The parents separated and divorced. In November 2008 in Italy the parents agreed to have joint custody of their four (4) daughters. They made a consensual separation agreement to that effect.

On 23 June 2010 the four sisters were all below 16 years of age and resident in Italy. Their mother took them with her to Australia, ostensibly for a one (1) month holiday. Their father remained in Italy. Since arriving in June 2010 until a Court ordered their return to Italy in 2012, the sisters remained in Australia.

These actions by the mother involved some significant planning and deception on her part.

It took legal proceedings by the father, which were protracted by the mother, for the four sisters to be returned to Italy and his care. (See RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47 (7 November 2012))

In Hunter & Morrison (contravention) [2014] FamCA 198 the father learned that the mother made statements about her suicidal tendencies to and in the presence of the children. It resulted in him reconsidering the safety of the children in her presence. The father was concerned as to whether the mother presented a physical and emotional risk to the children by virtue of her alleged suicidal ideation and he withheld the children from their holiday contact with the mother in order to protect them from risk of harm.

Once the suicidal ideation claim was made it enlivened the prospect that the mother should seek professional medical and mental health assistance. That is the case irrespective of whether it was made in the presence of the children.

The Court supported the father writing “to seek clarification of the opinion of the treating psychologist of the mother specifically in relation to the prospect of the mother experiencing and, if she experienced, entertaining, suicidal ideation whilst having the children in her care” (See para [52]) and withholding the children from their holiday contact with the mother in order to protect them from risk of harm (See para [55]).

If a parent in the position of the father of the four Italian sisters was possessed of knowledge of the intentions of the mother prior to her leaving Italy with the four children, he may be able to take some action to prevent the removal of the children from Italy. Writing a letter to the mother in a manner comparable to that written by the father in Hunter & Morrison is one such action. If the father does not get satisfactory answers from the mother, he might withhold the children from the holiday contact with the mother. The mother may then need to go to Court to demonstrate the bona fides of her proposed holiday with the children.

A seemingly well-planned separation and divorce, coupled with suicidal ideation are very good reasons to be circumspect about a proposed overseas holiday. If the parent is not proactive before the proposed overseas holiday, it may be too late once the children have left the country to take action to return them.