FiLiA

#175 The Women Lost Everything: The Hague Convention in Australia

April 27, 2022 FiLiA Podcasts Episode 175
FiLiA
#175 The Women Lost Everything: The Hague Convention in Australia
Show Notes Transcript

Lawyer and academic Gina Masterton became an activist when her sister had a Hague case brought against her. That story has a (rare) happy ending but Gina continues to campaign to get the Convention amended. In this episode, she talks about the harshness of the Australian courts and the extent to which the law is failing both mothers and their children.

Ruth:  Hello, this is Ruth with the fourth in our Hague Mothers series of podcasts. The Hague Mothers project is intended to raise awareness about the impact of The Hague Convention legislation on mothers and on their children.

Over 100 countries have signed up to the convention, including the UK, the USA and Australia. The latter is known for its particularly narrow interpretation of the law and its disinclination to consider the circumstances which might lead to a mother fleeing across international borders with her children.

But to be fair, it's not alone in this. To find out more about the Australian context, I'm absolutely delighted to be talking with Gina Hope Masterton who is working with us on The Hague Mothers project. 

Welcome Gina. 

Gina: Hi Ruth. And thank you for inviting me to be a part of this podcast. 

Ruth: An absolute pleasure. So a little bit about Gina.

She trained as a barrister. She's currently a post-doctoral researcher at the Queensland University of Technology in Brisbane. Her research involves looking at transportation justice for indigenous women in Australia who are DV victims, domestic violence victims, and identifying obstacles to justice.

 Both Gina's Masters and her PhD, were focused on The Hague Convention and its effects on women and children. And she is absolutely passionate about righting the wrongs with this legislation. 

In a recent email to me, she wrote: ‘No law, which abuses women and children should be left unchallenged. I will do whatever is in my power to get this convention amended. It should have happened decades ago.’

 We agree Gina. And if this wasn't a podcast, you'd see me punching the air. Could you tell us how you came to be interested in The Hague? What drives you?

Gina: In 2013, my own sister, Rebecca was ‘Hagued.’ That's what I call it when women go through the Hague legal process and come out the other end what they'd been in is a washing machine and, you know, they're left kind of wondering what happened.

So she was Hagued by the Australian family court actually, she'd been married to an American citizen for a couple of years and had a child. However, after secretly suffering years of DV perpetrated by her child's father, she fled back to Australia, which is her home country with her infant child.

Her husband then used the Convention against her and filed a Hague Return application with the Australian government. And without knowing anything about him or the circumstances around why my sister fled, the Australian family court, ordered her to return her child to the USA in effect to her abusive husband.

And I'd been a lawyer for about 13 years at that time. And I'd never even heard of The Hague Convention until my sister got persecuted under this law. 

Ruth: I think that's a common experience. We've been talking to lots of people to lawyers, to academics, to domestic violence professionals, to Hague mothers, themselves. And very few of them have ever heard of the Convention until they're caught up in it. As you said, it's like being put through a washing machine and wrung out and you come out the other end thinking what just happened.

 I know we're going to hear from your sister, Rebecca, in a future podcast because you're going to do the interview with her for this project.

Okay. So, this is personal as well as professional.

Gina: It is. When I found out just how far the tentacles of this convention reach and the absolute devastation it can wreck on women and their children, I will continue to work to make it a better law for women.

Ruth: So I've suggested that Australian courts are particularly rigid in their approach to The Hague. Do you think this is a fair assessment, Gina? 

Gina: Yes, I do, ever since the convention came into force in Australia on the 1st of January, 1987, it's been applied strictly in all cases, even in cases where domestic violence is raised. It's still very strictly applied with, by the family law courts.

I did my Masters on The Hague Convention itself and its background and the way it operates. And I came across a case from 2008 called Papastavrou and it involved a Greek woman, who was living in Greece with our husband, but I think she had Australian citizenship as well, and he'd been violent to her for several years.

And she fled to Australia where she had family with her child, her son at the time, he was also autistic. She just had to get away from her husband because the abuse was ongoing and she went through a Hague case here in Australia. And it was one of very few cases where I've seen the grave risk of harm defence exception raised and been successful. 

And it was only because she had suffered such extreme physical abuse, resulting in brain damage where she was having seizures and she had vertigo and she had a lot of brain damage that the family court said here that along the lines, something along the lines of, they wouldn't normally allow DV to satisfy the grave risk exception. However, in this case, the woman was so badly affected that they upheld her grave risk of harm exception. 

And that's a very high bar set by the Australian family court that, if you can show your brain damage from physical abuse, then we may consider this grave risk of harm argument that you're making and quite, quite seriously I haven't seen any other case since then and that was 2008. So it was quite a while ago, 2008, 2009.

 It's not like that set a precedent. And evidence of DV has not been allowed to satisfy the grave risk of harm exception. 

Ruth: So even that high bar is not being followed through in any way.

Gina: No, I sat in on another case a couple of years ago in Brisbane and the mother was from a South American country and her husband was running a drug cartel and. She had clear evidence from the courts there, that he was a violent criminal. She had domestic violence orders against him. He was 10 or 15 years older than her, sort of coercive control and threats, threats to kill her family.

And yet the, the Brisbane family court ordered her to return her five-year-old son to that country. And she went with the son and apparently went into hiding and I never heard from her again. But I hope that they've been safe ever since then, but this is the type of thing. I mean, you can come with boxes of evidence of showing that if you return, if your child's returned that physical harm could occur and yet the courts will be so reluctant to not make a return order. 

 I was just flabbergasted after that case. I didn't know what you had to do to be able to have a finding made in your favour. 

Ruth: I know that in Australia, as elsewhere, concerns about the injustices perpetrated by The Hague are regularly being raised obviously by you, but also by other lawyers and academics. And even by Diana Bryant, the former Chief Justice of the Family Court, and indeed The Hague itself. I'm just wondering if any of this has changed anything.

Gina: I respect Diana Bryant a lot because she was the former Chief Justice of the Family Court. And she was part of the HCCH committee that looked at this back in 2017 and they put out another guide to domestic violence related cases.

And well, that was the first time they actually acknowledged this as an issue, as a problem. It's a growing problem. But they didn't take that opportunity to go look by again and really make change here. We're going to amend it, or we're going to like tell signatory countries that they should really look at their own laws and maybe add some kind of DV defences into your own laws so that these cases are handled differently.

They kind of just put out another guide which said to judges ‘do what you think is right.’ Kind of thing to nutshell it. And that's not really telling judges that this is an important issue and they really need to look at the facts of domestic violence related hate cases. So that was kind of a wasted opportunity and I was very disappointed in that. 

The only good thing about that, The HCCH has acknowledged four years ago that domestic violence related Hague cases are growing in number. Nothing really changed here. 

Ruth: I'm really interested in your approach going through stories. So getting to the real human heart of the matter rather than sort of staying at the legal level; Some of those stories I'm sure have been. profound in their impact on you. 

Do you want to give us some examples of women who’ve tried to flee with their children and been sent back?

Gina: Well, what I found Ruth with the 10 women I interviewed was they all had tried to access help in their countries with the authorities there before, before any notion of leaving occurred to them.

They got domestic violence protection orders. They sought legal advice. They went to Doctors and psychologists, and they tried to get the help they could through the available resources they had until it came to a point. And at some of these women were abused for years.  And then it came to a point where I found that when it really started affecting their children, was when they realised they had to get out of it some way. They had to put physical distance between themselves and their abusers.

 So it was roundabout when their children became school age that they, I found there was this pattern where the women would finally decide that they had to physically remove themselves and their children from this toxic environment.

9 out of the 10 women had professional or academic qualifications were running businesses or working in professional jobs. They were intelligent and accomplished women who just ended up finding themselves in a situation with their partners becoming abusive and it gradually getting worse over time.

They had some similarities like that. They had tried to utilise the system to protect themselves and their children before eventually leaving. But then when they do leave and they're in a situation where they're going through The Hague process, particularly in Australia,

 I found that the judges here were very harsh. They were very judgmental. They took it very personally. It wasn't just an administrative type matter, which The Hague is, it's administrative, it's civil, it's not criminal. But the judge is here really did treat the women like they were child abductors that they had done something criminal and the women felt that way too.

It's just devastating. They lost everything. They lost their homes, they lost their incomes. They lost their careers. They lost most of their personal affects, they lost relationships, but pretty much lost everything. And some of them even lost contact with their children. Some of them lost their liberty, some threatened with going to jail if they didn't cooperate with the authorities. 

So there's a lot on the line when you cross an international border with your child. So these decisions are not made lightly. But judges don't seem to take that into account in Australia. They kind of just look at you as someone depriving a father of time with their children, which is a very narrow view to take. 

Ruth: Yes, it is. Indeed. So have there been any successes in terms of women being Hagued as you so beautifully put it and actually managing to not return with their children? 

Gina: No. They all had to return. What is good news is 3 out of the 10, once you do return and you abide by the Hague order to return your children they don't return. They don't order the mother to return. They can't do that. They order the child to be returned and then the mothers go with the children because they want to, they choose to, and then once they do, they have to then deal with the domestic family court in their jurisdiction to then deal with child custody issues and parenting issues.

In some cases, the fathers have already gone to court and gotten full custody of the child while the mother was in the other country, like in her absence, they managed to go to court and get orders, giving them full custody of the child. So once the mother comes back with the child, the father's allowed to swoop in and take the child and the mother doesn't go to jail, then that's a positive, but then she's left, like I said, without anything and starting your life over again. 

But three of them that I interviewed, three of the women got relocation orders. So they were able to, which took a lot of time and a lot of money. To get orders, allowing them to relocate back to their country with their child, which is what they did in the first place. They had to get returned and then do the relocation application. So, yeah, it's a big circle, but three of them got to go back to their home countries with their children.

And what I can say about all of them is none of them returned to their abusive partner. So that's a bonus. I was happy for them that they didn't have to do that. But their lives are forever altered, forever changed and not in a good way. I mean, they carry that with them, for the rest of their lives, this whole Hague experience.

Ruth: Absolutely. Yes, it has a profound impact and of course, an impact on the mother has a huge impact on the child, which is the other aspect that The Hague doesn't seem to take into account that being parted from your mother, your primary carer, has an impact. 

Gina: Absolutely. 

Ruth: The more I hear about The Hague, the more I wonder if it's beyond redemption or if anything can be done to make it a viable piece of legislation, what do you think?

Gina: Well, I think that it works extremely well for the cases that it was designed to deal with, and that is cases involving non-custodial fathers who kidnapped their children from their mothers and their homes and take them to other countries. And that's what it was drafted for. And I think it works very well for those types of cases.

However, when it's applied to cases involving abused mothers who are fleeing domestic violence as a last resort with their children, it completely fails. It fails the mothers; it fails the children. It just needs to be amended. It needs to be amended in by the HCCH and all it would take is the insertion of a few specific domestic violence related defences added to the convention.

If it can't be done there, if it's too hard, then each signatory country really needs to look at their own law, their own Hague law and their own Hague regulations and add their own domestic violence defences into their own laws because this cannot continue. 

And the HCCH in 2017 finally got together and met. It was a seventh meeting of the special commission on the practical operation of The Hague convention. And they realised, they acknowledged that domestic violence related cases are, a big issue and they're happening all the time. And yet all that came out of that was yet another book of guidelines.

That's a step in the right direction that they're acknowledging that this is an issue, however, that's where it finished. So I think it's up to each country now to recognise this is a problem and to take steps by amending their own laws to better protect women and children.

Ruth: That's an interesting approach because the idea of sort of tackling the hundred plus signatories to the convention all at once is quite an overwhelming idea., but if each country can do something towards this, that might help. 

Last question, Gina, thank you so much for all your input and your expertise and your passion. 

What do you hope The Hague Mothers project might achieve and what made you decide to be part of it?

Gina: Well, I am honoured to be a part of this amazing project with all the amazing women who are putting their hands up to try to make change in this area. And I just really hope that our combined voices and experiences will be heard and understood by those who have the power to end the suffering of women and children who are damaged by the convention.

I want to continue the fight for this change in recognition of my own sister who went through it, the 10 mothers I interviewed for my PhD project. And for all the mothers who are getting Hagued every single day around the world, who we don't hear in the media, there's no statistics kept, who are another Hague story not everyone will get to know about.

If we have to battle the patriarchy to get this changed, to make life better for abused women and children, then I feel it's the least I can do. And as a feminist human rights lawyer, I owe a duty to women who find themselves facing this convention. And I'll take every opportunity offered to me to work towards getting the changes made.

Ruth: Thank you so much, you are an inspiration you truly are. 

I actually came across you several years ago when I met a Hague mother and I was reaching out across the world to try and find out who might help. And I reached out to you and you immediately replied with such warmth and compassion.

I thought, this is a woman I want to work with. So it's fabulous to be working on this together with you. Thank you so much. And thank you for taking part in this podcast. Thank you for working on The Hague Mothers project with us. And also we look forward very much to hearing from some of the women whose voices you've had helped amplify in our future podcasts.

I know you're going to be interviewing some of them as part of this project, so that will be fantastic. And I hope we hear from you too, in the future as we progress and hopefully make the changes you suggested.

Gina: Thank you Ruth, and I'm happy to do whatever I can to get this all happening.

Ruth: Wonderful. Thank you Gina. 

We need to raise awareness about The Hague Convention. Please help us by sharing this podcast and others in the series. If you have experiences or expertise to contribute, please get in touch with us at FiLiA.