The appalling tally of Australian women who have died at the hands of violent partners includes those who are murdered overseas. Among the many things that number cannot convey is how the Hague Convention can impede their attempts to escape.
American Jesse Nicholas Jones called the emergency number 911 in Florida on April 9 this year to report that he had fatally stabbed his wife, 33-year-old Meaghan Bowler. Their two children, aged nine months and two, were in the house at the time.
Bowler was the 22nd of 55 Australian women killed so far this year as a result of domestic violence, according to Australian Femicide Watch and The Red Heart Movement.
Jones is now in jail awaiting trial for murder, and Bowler’s family are raising money to bring the children back to Australia. In Florida, Bowler had been isolated from her family; her father said he did not even know she was pregnant until the children were born.
But if Bowler had attempted to leave Jones and bring the children back to Australia herself, she could have been the one facing criminal charges. Under the Hague Convention on the Civil Aspects of International Child Abduction, she could have been forced to return the children, even if there had been evidence of abuse. And she could have been prosecuted upon re-entering the United States with them.
The convention is an excellent example of something developed for a particular purpose that has failed to adapt to a rapidly changing world. Signed in 1980, it was meant to protect the rights of custody and access to children in cases of marriage break-up. In the late 1970s and early ’80s, custody was frequently given to mothers and there were increasing instances of fathers who, when faced with being unable to see their children, removed them overseas. The convention, to which more than 100 countries are now signatories, was created to act quickly on a principle of return.
Today, more than 73 per cent of parents removing their children are women, and the majority of them say they left to escape a violent partner. Legal experts such as Dr Gina Masterton from the University of the Sunshine Coast say the Hague Convention has been weaponised by abusive fathers seeking the return of their children.
The convention is an excellent example of something developed for a particular purpose that has failed to adapt to a rapidly changing world.
When a parent crosses international borders with their children to escape domestic violence, they are accused of abduction rather than provided with protection and support. Often, they have sacrificed everything – their homes, their careers, their incomes – in order to protect their children. In the majority of cases, because they are seen as abductors, they then risk losing their children too.
If a return order is made, the court can provide recommendations, but the details of custody and shared care are left to courts in the country of “habitual residence”. The parent often returns with their children, right back into a situation of domestic violence. In some countries, such as the United States, they return to criminal charges for having taken the children in the first place. In other situations, such as that of Cassandra Hasanovic, the outcome is even grimmer.
A 24-year-old Hasanovic left her husband in the United Kingdom in 2007, alleging abuse, and moved with her two boys to Australia. Her estranged husband, Hajrudin Hasanovic, filed an application for the return of the children to the UK, with his legal costs covered by the Australian government. He was successful.
The evidence of violence and threats towards his wife included a phone call in which he said, “When you come back, I’m going to chop you up into little pieces and post you back to each one of your family members.” Nevertheless, the UK was deemed the place of habitual residence and Cassandra was forced to return the children. She accompanied them. There, after more threats from Hajrudin, Cassandra requested a police escort to a women’s refuge and was refused. Her mother was driving her to the refuge in July 2008 when Hajrudin dragged Cassandra out of the car and stabbed her to death in front their two sons and her mother.
In the decision to return the Hasanovic children to the UK, Australian Family Court justice Mark Le Poer Trench said: “There are a number of actions the mother could take to protect herself and the children from the violence of the father. Those actions would be invoked by her making applications to courts and authorities in the United Kingdom to assist in her protection and the protection of the children.”
Under the convention, an exception to return is allowed where there’s “a grave risk” that it “would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation”. This determination has been left up to the courts, however, and violence against mothers is frequently not treated as relevant unless it is extreme and well documented.
Gina Masterton says it is exceptionally difficult to prove grave risk to a child. She can recall one case in particular, where the mother had been so badly beaten by the father of her children that she developed a medical condition. He had also abused one of the children.
To research my novel about international child abduction, I sat in on cases where women were required to send their children back to fathers they alleged were dangerous, and where evidence of abuse against the mother was not sufficient to suggest a serious risk of harm to the child. I also learnt how catastrophic these return decisions can be.
American citizen Narkis Golan fled Italy to the US in 2018 with her two-year-old son to escape his father, who abused and threatened to kill her. Her estranged husband filed a Hague petition for the return of his son to Italy, and Golan fought it all the way to the US Supreme Court, which unanimously ruled in her favour in a decision authored by Justice Sonia Sotomayor. However, a federal district judge later ruled that Golan would have to send her son back to Italy, since it was his habitual residence. During the appeal of that decision, she was found dead in her apartment.
Domestic violence is taken very seriously by the Family Courts in Australia, but they treat Hague cases differently. The courts assume the allegations of family violence can be dealt with by the legal and criminal justice systems in the country of habitual residence.
In December 2022, the Australian government amended the law to enable the courts to consider the risk of family violence – including emotional, psychological and economic abuse – when making orders for the return of a child under the Hague Convention. However, Masterton says this step did not go far enough as such considerations are not obligatory, and the decision is left up to the courts.
One of the great imbalances of Hague cases is that the parent who has taken the children – considered the abductor and typically the mother who alleges abuse – receives no help with legal fees and is almost never eligible for legal aid. The parent who has been left has their legal costs covered by the country to which their partner has brought the children.
In a sliver of good news, however, in mid 2024, a legal financial assistance scheme from the Australian government provided parents contesting return applications in Australian courts access to some public funding for legal representation.
As the Australian government considers fresh action in the latest 10-year plan to end violence against women and children, it is clear more must be done to extend protection to Australians abroad.
The Hague Convention should be protecting the most vulnerable, not further empowering those who already have too much.
National Domestic Family and Sexual Violence Counselling Service 1800 737 732 (1800RESPECT)
Lifeline 13 11 14