An Australian baby could be “ripped away from her mother” and sent overseas into the care of her allegedly abusive father within hours due to an “archaic and draconian law” that is leaving vulnerable women and children at risk.
Jane*, an Australian First Nations woman who cannot be identified for legal reasons, travelled to Europe in 2019 when she was seven months pregnant after allegedly being coerced onto a plane by her abusive partner.
At the time, she intended to return home to give birth to her daughter, but was effectively trapped overseas due to a combination of serious medical complications – which she claimed was the result of abuse – escalating violence and the Covid pandemic.
Within days of the child’s birth, the mother began the process of applying for Australian citizenship on the child’s behalf, and she escaped on the “first flight possible” with her daughter, believing they would finally be safe once they reached home soil in 2020 when her daughter was seven months old.
The Australian, who cannot be identified, is child is set to be handed to her father within days. Picture: Supplied
But the nightmare facing the traumatised young mum – who claims her ex regularly threatened to kill her and her child – was only just beginning.
Her ex-partner applied for the now two-year-old child to be returned to him using The Hague Convention on the Civil Aspects of International Child Abduction, which is the main international agreement that covers international parental child abduction.
After draining her savings and spending years fighting for her daughter, this month, the Australian Family Court ruled that The Hague Convention must be upheld in this case, and that the child should be returned to her father – despite there being a current Apprehended Domestic Violence Order (ADVO) out against him.
Jane also recently lost her bid to have her case heard by the high court to prevent her daughter being returned to Europe, and she told news.com.au that she believed her ex-partner was currently en route to Australia and that she could be forced to hand over her daughter “within hours”.
Earlier this month, Attorney-General Mark Dreyfus announced that the law had been amended to ensure that “family and domestic violence can be considered before return orders are made for children under The Hague convention”.
The law has been slammed as ‘draconian’ and ‘archaic’. Picture: SuppliedJane is desperate to protect her baby. Picture: Supplied
However, it’s too little too late for Jane and her daughter, as the laws are not retrospective, meaning they will not be applicable in this case.
Jane described the experience as “crushing” and said she was afraid for her daughter’s life, especially considering the child has several serious health issues and is still breastfeeding.
She said the only chance of saving her daughter was if the government were to urgently intervene – something she said would be “easy” to do.
“It’s just an unbelievable law. It doesn’t matter how much you present to the courts about the injustice or what is in (the child’s) best interests – they just ignore it,” she said.
“It’s so sickening because we know the stats – the latest statistics from Globalarrk, which is an international organisation, shows that over 80 per cent of mothers in Hague cases have … received death threats or death ideation, and this is the treatment they get in the Australian courts.
“My ex told me he could bury me and get away with it, he said if he dies, he wants (my daughter) to go with him. Negligence doesn’t even cut it – in a matter of hours … I could be arrested for not delivering her to the man who threatened to kill us both, because of this failure of the courts, and the government knowingly being a signatory to this law that can be changed so easily.
Jane said she’s terrified for her daughter’s future. Picture: Supplied
“All they have to do is say that in Australia, the best interests of the child will be the primary consideration – all the government has to do is make a simple legislative change.
“There are so many avenues politicians could take to protect my little baby from her abuser and protect her from a life of torment and horror.”
Jane said The Hague Convention was being “weaponised” against mothers and children fleeing domestic violence, and said that as a First Nations woman, she saw her case as a “blatant continuation of the Stolen Generation”.
“My baby is going to be ripped from me, and I need government intervention. My baby needs government intervention,” she said.
She pleaded with the federal government, including the Immigration Minister, to intervene and “stop this man who has a current ADVO against him from entering Australia”.
Ashley, Francina, Leonard and Associates director Tony Nikolic, who is representing Jane, told news.com.au that this was a “plea for assistance” from government ministers, and claimed there were a number of ways the government could step in to assist women and children in matters relating to international affairs and allegations of family and domestic violence.
“If we can get support for the mother from Ministers it would give us time to understand how the complex interplay between Australian laws and our obligations under International Convention allows for the preservation of rights to be balanced in a manner that is consistent to Human Rights and other important conventions protecting women and children globally,” he said, adding that the NSW State Government, Attorney-General and Immigration Minister might all be able to intervene in various ways.
* Name has been changed for legal reasons