Court finds mother abducted children

Date: Aug 01, 2011

The family court has recently passed judgement on a mother's decision to travel to Australia with her children for a holiday, then refuse to return them to their father in Italy.

Ms Garning told the court that she had travelled to Italy when she was a teenager. While there she married her husband - known to the court as Mr V - at the age of 17.

An Australian citizen, Ms Garning made the decision to stay in Italy and raise a family with Mr V, living in a villa shared with her husband's parents.

The partners had five children together, the third of whom died. The court heard that it was at this time that Mr V developed mental health issues, which contributed to the breakdown of the couple's relationship.

Ms Garning applied for a "consensual separation agreement" from the Italian authorities in 2007. This granted the parents shared joint custody of their children.

In 2010 the mother began applying for citizenship for her children through the Australian consulate in Rome. The court heard that it was Ms Garning's intention at the time to move herself and her children to Australia permanently.

Part of the application process required Mr V's consent to issue passports to the children. The court then found that the mother - while not impinging on Mr V's rights of custody in visiting Australia - was breaking the terms of the child custody agreement by keeping their children from him.

The mother claimed that during the process of signing the documents, Mr V was aware of her plans to reside in Australia with their children. But during the court proceedings she was unable to supply the judge with sufficient evidence to support her claims.

Justice Colin Forrest said in his findings that - while the father may have expressed consent for Ms Garning to travel to Australia - as the co-provider of custody to the children he was able to revoke his decision.

In the public court release the judge said, "I do not accept ... the proposition that once acquiescence is demonstrated, no matter how fleeting, it cannot be withdrawn".

He then directed the mother to return the children to the care of their father within 30 days, as they were not of an age to have their views "taken into account".

While the mother may still be able to appeal this decision, she would do well to seek an experienced family lawyer to guide her through the process. 

We note that the parties might have rights of appeal. The full decision can be viewed at:
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCA/2011/485.html?stem=0&synonyms=0&query=garning