Only some have to play by The Rules. Apparently.

I take a deep breath as I start to write this.  I’m wading in, where many have been this week, and hope I don’t end up in over my head.

Yes, I’m talking about the 4 Italian sisters from the Sunshine Coast.  The 4 young girls and their family at the centre of a Family Court matter that has suddenly become very loud and very public.

Our laws in the Family Law Act are specifically designed to protect families from the very public scrutiny that has happened for this family.  I expect that this very public uncovering of a bitter family feud has felt a little bit like walking outside your house to find your neighbours standing in their front yard hurling abuse at each other.  Normally, Family Court disputes, like your neighbours’ arguments, are kept indoors.  In the Family Court.  This family decided they weren’t going to play by That Rule and brought other people over, effectively to film and replay the argument.

If you’re reading this for a blow by blow discussion of the law, you should move on now.  I’m leaving that for others.  But I don’t think I can properly explain the questions I’m wrestling with, without setting up the scene.  The short version of the law here is that a bunch of countries around the world have signed the Hague Convention about a ton of things.  One of those things says “if kids are taken from a country, then any family law disputes, will be heard in the country they came from”.  There are, of course, conditions and definitions and many more finer details.  But generally, that’s the deal.  Parenting disputes are to be heard and dealt with in the country the children came from.

This case, that has captured so much of the public’s attention this week, is incredibly sad.  As are all Family Court disputes.  For this family, the first decision was made in June of last year. A Judge of the Family Court heard the evidence, considered the law, and decided that the children must be returned to Italy.  Not necessarily that they have to live there forever.  He simply decided that the Hague Convention applies, which means the children need to go back to Italy and their mother needs to raise her concerns there and apply to move to Australia with the children.  You know, follow The Rules.

The mother obviously wasn’t happy with this decision and she lodged an Appeal.  As she is entitled to do.  An appeal asks another Judge, and sometimes a panel of Judges, to review the decision of the first Judge.  To check that the first Judge didn’t make a mistake with the law.

In this case, the months trundled by, and the Appeal was heard.  The decision of the first Judge was “reviewed” by the Appeal Judges, who decided that he had applied the right law, using the right tests, and that his decision was sound.  This meant that the Order that the children return to Italy was, essentially, reinstated.

Then the media blasts us from every direction.  And here is where my questions begin.  I understand that the mother of these children is upset.  She wants to stay here in Australia with the children.  She made her arguments to the Court, and then to an Appeal Court, and the Court decided against her.  Like the Court does every single day, in every Courtroom around the country.

Every single day decisions are made by Judges that at least one party (if not both parties!) do not like.  And that’s me putting a polite lawyer spin on it.  They “do not like the decision” is probably something more like they cannot believe that anyone in their sane mind would have made that decision.  Ever.

After all, most of the families wind their way slowly, ever so slowly through the family law system.  So by the time they end up in front of a Judge who is ready to hear their matter and make a final decision, they’re usually pretty convinced that what they want is THE only fair decision that could be made.  And every day, in every Courtroom, Judges listen to 2 (or more) people who are utterly convinced that what they want is right.  But the Judge has to decide on only one outcome.  Someone “wins” and someone “loses”.  The winner often feels like they’ve lost as well, but that’s another post for another day.

So everyday, there are people walking out of Courts, all around the country feeling like they’ve lost.  Like they haven’t been heard.  Often Ordered to do things that they are so strongly opposed to, that they’ve stood in a queue for a year or more to fight against that very thing happening.

Our system, our society, relies on those people, those people who have lost and whose hearts have been broken, to follow The Rules.  To follow the decision of the Court.  To allow time (and therapy of many forms) to begin to heal their wounds.

Why has the media chosen to engage the public in support of a family who are refusing to play by The Rules?  Do The Rules not apply to them?  If not, why not?  Is it because the girls (who we saw on the front page of a capital city newspaper) are pretty.  Is it because they are girls?  Is it because their father isn’t Australian?  Who knows.

If they do not have to follow The Rules, then why should anyone else?  And yet, changes to law and to our society and to the behaviours we tolerate only happen when people stand at the edge and say “I won’t follow That Rule” any more.  It always looks like it made sense when we look backwards.  But how that does look at the time?  Does it look like this?  How do we work out which Rules can be broken, and when they can be broken, and which ones must be followed, no matter what we feel about them.

I don’t have answers.  Just more questions.  Maybe you can help me.

K xxx

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About Kathryn Hodges

Hi! I'm Kathryn. I have many hats in this life. I am a daughter, a sister, a wife, a mother (of 4!), a friend, a keen try-er of yoga, a lawyer, a business owner, an avid reader and a lover of this electronic world and it's connections. As the Principal of a wonderful law firm on the Sunshine Coast, Qld, Australia, I focus on seeing my clients as people going through change and I am committed to practising mindfully that I am dealing with people and their families. Precious stuff, hey! I hope you enjoy learning more about the things that impact on me, my life and my practice. Please leave me a comment, as I'm sure you have something you can show or teach me. We're all in this learning thing, called life, together xx Oh, and my professional obligations mean I have to remind you that my opinions are my own.
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7 Responses to Only some have to play by The Rules. Apparently.

  1. shoesandyoga says:

    This is a hard one for me firstly because I have never practiced family law but secondly because a really good friend of mine from the lost a similar Hague Convention case about 5 years ago.

    To me looking at the case as it unfurled the most difficult part was watching my friend be torn apart firstly by an abusive ex-partner, secondly by the judge and thirdly by her own solicitors. The fight was one that she had, in conscience, to put up but the cost was horrific.

    Now she is in a better place. She volunteers to help women in abusive relationships, has taken up martial arts so that she can block her ex-partners attacks and has built up a very successful business for herself.

    The thing that hurt her most was that playing by the Rules opened her up to the opprobrium of the judge for removing her child from danger. It was unnecessary and cruel she felt.

    In playing by the rules we expect fair and respectful treatment. Sadly not all family court justices remember this.

    • Kathryn Hodges says:

      Thank you for reminding me that it really never is as simple as it seems.
      My simple question doesn’t have a simple answer.
      Life and it’s complexities!!
      K xxx

  2. Vanessa Moore says:

    Hi Kathryn, finally catching up on your posts and this is a subject that fires me up. I was a victim of the family law system in its very early days and even though I love where my life is today I often wonder “why my voice as a child was ignored and custody awarded against my wants” but as you say, that’s for another time.

    I think there are so many questions about these laws and they will probably never be answered. There are so many situations that unfold in families that it would probably be impossible to create a system that works for everyone as there are really no tangibles like a crime has (does that make sense).

    My hope has always been that as these laws change the voices of the children are heard. My dream if I had all the money in the world and lots of time would be to lobby for the kids, teach the parents and try to create a process that restricts the damage and has a positive outcome.

    I think you should be proud of who you are and the contribution you make (based on your previous blog). There are no rules so make yours for how you practice yourself. A bit like my coaching, yes we have a system, however I have adapted it to work for who I am as a coach and how I believe I can make a difference.

    I have really enjoyed catching up on your posts and please, keep writing, I love it.

    Vanessa xoxo

    • Kathryn Hodges says:

      Hey Vanessa!!
      So lovely to hear from you, and thank you for your kind comments about my writing.
      I hear you about the “children’s voices”. I believe the challenge is to learn to hear the children, our children, without putting adult responsibilities on their shoulders.
      So many questions. So many views.
      Surely we can find a better way.
      K xxx

  3. Chriso says:

    Very nicely written. Logic of the family law court is always one sided. The side that gets what they want. I think the law has been applied correctly. There are many Australian children in other countries with estranged partners who hide the the children from their Australian partner and we fight to get them back here. We are lucky we live in a very good democracy.

  4. Aroha @ Colours of Sunset says:

    When you put it like that, I think they should be going back. But the fact that the kids so desperately don’t want to makes me worry for them. What was so terrible back there that they are this upset about having to go back? Are they not old enough to tell the court what they want? Was there a hearing in Italy before they came here and they didn’t like that decision so they fled, thinking they’d be safe? And since reading your blog, I wonder how many other families are in the same position but not in the media at all? I hope the girls are safe, and heard, back in Italy.

  5. Jen says:

    I can only imagine here in the States we would make it into a national event. We frequently say we have a “legal” system not a “justice” system. If the law was held up by a 2 court decision where does the media have the credentials to throw the gauntlet down. Is there coverage really done fo the “justice” of the children, mother, father or the law or merely to boost ratings and sell papers? I hope they all get the emotional help they need and the privacy to work through what I can only image is devastating for all sides.

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