Fiona (not her real name) came to Australia from New Zealand as a 19-year-old backpacker. Here, she met a man, got married and had two boys. The domestic violence began after her first son’s birth, and Fiona endured it for several years.
In 2017, when her children were eight and ten, Fiona summoned the strength to leave her husband. Not being an Australian citizen, she found she wasn’t eligible for government assistance, so Fiona fled back to New Zealand seeking protection and support.
Her husband immediately acted to have the children returned to Australia and, being a citizen, received free legal assistance from the government. Fiona was ordered to return her children to Australia.
This happened because under international law, Fiona’s case is considered one of “child abduction”. Under the Hague Convention on the Civil Aspects of International Child Abduction 1980, a child is considered “abducted” if he or she is removed by one parent without the other parent’s consent.
The Convention was drafted in the late 1970s to deal with fathers abducting their children across borders after losing custody of their children, or believing they would lose custody. It was never meant to be applied to cases involving mothers fleeing domestic violence.
The Convention makes no mention of domestic violence and has no protections for abused mothers. Despite this, for the past couple of decades, 70% of Hague cases have involved mothers fleeing domestic violence. When this law is applied to such cases, the outcomes can be catastrophic for abused women and children.
My research has explored how the Convention affects abused mothers who flee with their children across international borders. I have interviewed ten women, including Fiona, who were ordered to return their children to an abusive situation by Australian and other courts. All felt their voices were not heard and their domestic violence experiences not believed by the courts. They felt they were treated like criminals.
The Sydney Family Court, in 2008, ordered a 24-year-old woman to return her two young sons to the UK, where they had been born. The woman had fled with her children to Sydney where her family lived, after years of abuse. Shortly after her return, she fled again to a refuge with her children. On the way there, she was brutally murdered by her estranged husband, on a public street, in front of her children and mother.
When the Convention was drafted, abductors were assumed to be non-primary carers who were taking the law into their own hands after having lost a custody battle. But it’s now been recognised most so-called abductors are mothers who are the children’s primary carers.
The Convention is the main international agreement that covers international parental child abduction. It provides an expeditious process to have a child returned to their home country. A child must have been abducted to, or retained in, a Hague Convention member country for the process to work. Nearly 100 countries – including Australia, New Zealand, South Africa, the UK and the US – are signatories.
The Convention came into effect in Australia in 1987. It is implemented through the Family Law Act 1975 and the Australian Family Law (Child Abduction Convention) Regulations 1986. Australia’s Central Authority, which is part of the Attorney-General’s department, handles all cases of international parental child abduction to and from Australia. Its powers stem from the Convention and the Regulations are strictly enforced by the courts in all cases.
Some exceptions in Australia’s Regulations can be raised in dometic-violence related abduction cases. But lawyers I also interviewed in my research have said the bar has been set so high by the courts, these are too hard to meet. Also the “best interests of the child” test, which is applied in domestic family law cases, is not the test applied in Hague cases.
Fiona’s husband was provided with free legal representation. Experienced lawyers worked with their counterparts in NZ to return the children to their father in Australia and the New Zealand Family Court cooperated by ordering the children’s return.
Fiona told me that the Convention:
discriminates against mothers and kids … and the judges and lawyers don’t really consider the domestic violence the mothers have gone through and that the kids have witnessed.
Fiona and the children returned with just a bag of clothes. She received a small family assistance payment from Centrelink because the children were citizens, but no public housing, access to community services or free legal representation.
Fiona’s mother had to move from New Zealand to Brisbane to support her daugher and the children financially, emotionally, and physically. After one year, the Brisbane Family Court awarded Fiona’s husband full parental responsibility for the children. Fiona returned to New Zealand, broke and devastated.
To this day, she survives on the generosity of women she befriended on social media who also lost their children to abusive partners. She is still being financially and emotionally abused by her ex, and struggles with anxiety and depression.