The Australian "custody sisters"

[Charlie Wilkes]

But if the father had been the abductor, you'd have been fine with the screaming children being physically dragged away from him, right?

Not at all. No, no, no. If you think that, you misunderstand me completely. I would have felt exactly the same way. That is central to my thinking on this. I rate the feelings and preferences of these kids above all the blather going on around them. These kids are not toddlers. They are old enough to form opinions that matter. Physical force is not the way to resolve the question of which country they will live in and which parent they will live with.

And you have some scientific literature to back this sexist notion up? Charlie, you've never been a parent. The gender of the parent has nothing to do with their ability to provide a safe and loving home to a child.

Bah. Call me a sexist if you want. I don't care. I have observed parents and children and formed my own impressions, and I won't surrender them to somebody's wooden doctrine.

But my impressions are not rigid beliefs. I have seen situations where the father is the primary parent and does an excellent job. It's something I would weigh case by case, and I would start by paying damned close attention to what the kids have to say.

 

[ponderingturtle]

But my impressions are not rigid beliefs. I have seen situations where the father is the primary parent and does an excellent job. It's something I would weigh case by case, and I would start by paying damned close attention to what the kids have to say.

And ignoring evidence and law.

 

[smartcooky]

So you don't think what she did was illegal and therefore it shouldn't be punished in any way. The father has no parental rights that don't derive from the mother's graces.

In short, you're simply wrong.

At no time have I ever stated that parental abduction is not illegal, only that it is not a criminal offence. You do understand the difference, right?

Perhaps you don't. Like many others here, you appear not to understand the difference between offences that are "criminal offences" and those that are not. The difference is not moot, it is both established in law, and important.

Earlier, I quoted US Law for a couple of simple reasons.

a. it is much easier to research as there is more published material on the internet.

b. with the USA ( like NZ and Australia and seventy or so other countries) being a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the differences between the laws in the various countries differed only in some minor details; the kind of details that would have little impact at the level of debate on this forum.

So, for all you nitpickers out there who seem unable to do some simple English comprehension, here is what I could find with regards to the Australian Laws as regards the two different offences, served up for you on plate so that you don't have to think too hard for yourselves.

Kidnapping is referenced by the Section 63A of the Crimes Act 1958

Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).

Source: http://www.findlaw.com.au/articles/4861/kidnapping.aspx


Parental Abduction is referenced by Section 65Y and 65Z of the Family Law Act 1975

It is an offence punishable by imprisonment of up to 3 years to take or send a child out of the Australia without the consent (prescribed) of the other parent, or by order of the court.

Section 65Y applies in cases where a parenting order has been made and section 65Z in cases where parenting proceedings are pending. It is of no consequence if the substantive orders under Part VII (or pending proceedings) do not specifically prohibit the removal of a child from Australia, as sections 65Y and 65Z have a general application to parenting orders.

http://www.comlaw.gov.au/Details/C2013C00053


To summarize, for those who still don't get it;

► Kidnapping is a criminal offence under the Crimes Act punishable by a maximum of 25 years in prison
► Parental Abduction is an offence under the Family Law Act punishable by a maximum of 3 years in prison

Different laws
Different courts
Different Acts of Parliament
Different years of enactment
Different punishments

 

[ponderingturtle]

At no time have I ever stated that parental abduction is not illegal, only that it is not a criminal offence. You do understand the difference, right?

So a non criminal offense that can get you three years in prison? What exactly is your definition of criminal?

Clearly not all felonies in your world involve committing crimes or something.

 

[Dr. Keith]

So a non criminal offense that can get you three years in prison? What exactly is your definition of criminal?

Clearly not all felonies in your world involve committing crimes or something.

Its a crime, but not a criminal crime. It's not legitimate crime. The court has ways of dealing with that . . . or something.

 

[tyr_13]

At no time have I ever stated that parental abduction is not illegal, only that it is not a criminal offence. You do understand the difference, right?

Perhaps you don't. Like many others here, you appear not to understand the difference between offences that are "criminal offences" and those that are not. The difference is not moot, it is both established in law, and important.

Earlier, I quoted US Law for a couple of simple reasons.

a. it is much easier to research as there is more published material on the internet.

b. with the USA ( like NZ and Australia and seventy or so other countries) being a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the differences between the laws in the various countries differed only in some minor details; the kind of details that would have little impact at the level of debate on this forum.

So, for all you nitpickers out there who seem unable to do some simple English comprehension, here is what I could find with regards to the Australian Laws as regards the two different offences, served up for you on plate so that you don't have to think too hard for yourselves.

Kidnapping is referenced by the Section 63A of the Crimes Act 1958

Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).

Source: http://www.findlaw.com.au/articles/4861/kidnapping.aspx


Parental Abduction is referenced by Section 65Y and 65Z of the Family Law Act 1975

It is an offence punishable by imprisonment of up to 3 years to take or send a child out of the Australia without the consent (prescribed) of the other parent, or by order of the court.

Section 65Y applies in cases where a parenting order has been made and section 65Z in cases where parenting proceedings are pending. It is of no consequence if the substantive orders under Part VII (or pending proceedings) do not specifically prohibit the removal of a child from Australia, as sections 65Y and 65Z have a general application to parenting orders.

http://www.comlaw.gov.au/Details/C2013C00053


To summarize, for those who still don't get it;

► Kidnapping is a criminal offence under the Crimes Act punishable by a maximum of 25 years in prison
► Parental Abduction is an offence under the Family Law Act punishable by a maximum of 3 years in prison

Different laws
Different courts
Different Acts of Parliament
Different years of enactment
Different punishments

Which means absolutely nothing to anything. It's still a crime. How should it be punished? You don't think anything should be done about this crime? What other crimes are alright if the person doing them is a mother?

If these children had to be separated from her children because of her committing some other crime and they threw a fit, would it still be barbaric to separate them? What other crimes should be excuse to keep children with their mother? Does the same apply to fathers?

This is entirely of her doing. There is no shifting the blame to someone else.

 

[smartcooky]

My parents divorced when I was a child and the emotional pressure I was under to not see my father was incredible, as a result I have no relationship with him, and probably now never will have. Children are pawns in this game and much as 'let the children decide who they want to see/live with' might sound like a fair solution, it isn't, unless there is a damn good reason why either parent shouldn't see the child access for both parents needs to determined without the child having to feel that they are being forced to choose between or hurt either parent.

The mother has unilaterally cut the children's ties to their father and the judges comments leave me in no doubt that the children feel themselves to be in a situation where being seen to want to know their father would hurt their mother, it's a feeling I recall all too well although it was almost four decades ago. I don't think anyone who hasn't been through it could know how easily a child's feelings can be used against the other parent in this kind of situation to exactly the effect being seen here, it doesn't even have to be deliberate (although in this case it seems likely to be). I believe that the Australian judge has done completely the right thing and I hope these kids have an outcome where they can grow up knowing both their parents, but at the moment the mothers actions show that they should be with their father until the courts can reach a long term decision.

I am truly sorry for the terrible situation you found yourself in through no fault of your own.

Unfortunately, these types of situations are not a "one size fits all". Everyone's experiences are unique.

While I was lucky enough to have had my parents stay together for all of their lives, my wife was not so lucky. Her parents split when she was 11, and she initially ended up with her father in the same house and town she had lived in all her life. Then the mother went for custody and won.

She was forced, at the age of 13, and against her will, to go to a strange town (Tokoroa), where she had no friends, to live with her mother. This was in spite of the fact that she didn't want to go and in spite of the fact that she made it clear that she was frightened of her mother's new boyfriend and his two teenage sons (15 and 17). She was very, very upset by what had happened and felt that no-one had listened to her or had cared about what she wanted. Just like these girls, she made a real scene at the courthouse, but it was no use. As in your case, the mother cut ties with the father. She would not permit any contact.

Two years, several broken ribs, and at least one broken arm later, and after numerous consultations with doctors (who discovered numerous bruises, which were cunningly inflicted in places that were difficult to see; upper thighs, upper arms, under armpits etc) and with the recommendation of the Department of Social Welfare (as it was called then) her father finally convinced the courts to take her away from her mother.

By then, unfortunately, the damage had already been done. Not just the physical damage, but the emotional trauma of feeling trapped with no-one to turn to, of abandonment, of feeling that no-one cared about her, and that she had simply been left to die.

The physical scars healed in due course, although she still suffers aches and pains that both her and her doctor attribute to the frightful beatings she took. However, the emotional scars have never healed. Even now, 40+ years later, she still has nightmares about it.

When she heard from her aunt in 2009 that her stepfather had died, she wept tears of joy... This event did more to heal her than anything that psychologists or counsellors were able to do. I still remember what she yelled on the phone when her aunt told her... "Yes! Yes" Yes" The bastard is dead!!!"

If only the courts had listened to her and acted on it when she was 13!!!

 

[brodski]

At no time have I ever stated that parental abduction is not illegal, only that it is not a criminal offence. You do understand the difference, right?

Perhaps you don't. Like many others here, you appear not to understand the difference between offences that are "criminal offences" and those that are not. The difference is not moot, it is both established in law, and important.

Earlier, I quoted US Law for a couple of simple reasons.

a. it is much easier to research as there is more published material on the internet.

b. with the USA ( like NZ and Australia and seventy or so other countries) being a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, the differences between the laws in the various countries differed only in some minor details; the kind of details that would have little impact at the level of debate on this forum.

So, for all you nitpickers out there who seem unable to do some simple English comprehension, here is what I could find with regards to the Australian Laws as regards the two different offences, served up for you on plate so that you don't have to think too hard for yourselves.

Kidnapping is referenced by the Section 63A of the Crimes Act 1958

Whosoever leads takes or entices away or detains any person with intent to demand from that person or any other person any payment by way of ransom for the return or release of that person or with intent to gain for himself or any other person any advantage (however arising) from the detention of that person shall, whether or not any demand or threat is in fact made, be guilty of an indictable offence and liable to level 2 imprisonment (25 years maximum).

Source: http://www.findlaw.com.au/articles/4861/kidnapping.aspx


Parental Abduction is referenced by Section 65Y and 65Z of the Family Law Act 1975

It is an offence punishable by imprisonment of up to 3 years to take or send a child out of the Australia without the consent (prescribed) of the other parent, or by order of the court.

Section 65Y applies in cases where a parenting order has been made and section 65Z in cases where parenting proceedings are pending. It is of no consequence if the substantive orders under Part VII (or pending proceedings) do not specifically prohibit the removal of a child from Australia, as sections 65Y and 65Z have a general application to parenting orders.

http://www.comlaw.gov.au/Details/C2013C00053


To summarize, for those who still don't get it;

► Kidnapping is a criminal offence under the Crimes Act punishable by a maximum of 25 years in prison
► Parental Abduction is an offence under the Family Law Act punishable by a maximum of 3 years in prison

Different laws
Different courts
Different Acts of Parliament
Different years of enactment
Different punishments

In that case the judge really screwed up, as the father was only required to make an undertaking that he would not bring any criminal charges against the mother.

Either that or parental abduction is a crime and the judge knew what he was on about.

 

[smartcooky]

So a non criminal offense that can get you three years in prison? What exactly is your definition of criminal?

Clearly not all felonies in your world involve committing crimes or something.

Still don't get it?

Speeding is illegal, but is it a crime?
Jaywalking is illegal, but is it a crime?
Drunkenness is illegal, but is it a crime?
Giving a false statement of age is illegal, but is it a crime?
Hosting a party that breaches the nose abatement laws is illegal, but is it a crime?
Smoking in a non-smoking public place is illegal, but is it a crime?
Littering is illegal, but is it a crime?
Creating a public disturbance is illegal, but is it a crime?

Not all things that are illegal are criminal offences

 

[brodski]

BTW Smartcookie, did you read the note to sections 65y and z of teh 17 act? It sates
"The ancillary offence provisions of the Criminal Code, including section 11.1 (attempts), apply in relation to the offence created by subsection (1)."

So, even the reading most favorable to your position means that those who aid and abet parental abduction are committing a crime (but for some reason the person who commits the main offence isn't a crime)

Also the 1958 crimes act does not distinguish between criminal and non criminal offences, using the term offence
http://www.austlii.edu.au/cgi-bin/s...882/s464.html?stem=0&synonyms=0&query=meaning

can you point to an Australian legal source which distinguishes the two?

After that we can get onto the law in Italy.

 

[ponderingturtle]

Still don't get it?

Speeding is illegal, but is it a crime?
Jaywalking is illegal, but is it a crime?
Drunkenness is illegal, but is it a crime?
Giving a false statement of age is illegal, but is it a crime?
Hosting a party that breaches the nose abatement laws is illegal, but is it a crime?
Smoking in a non-smoking public place is illegal, but is it a crime?
Littering is illegal, but is it a crime?
Creating a public disturbance is illegal, but is it a crime?

Not all things that are illegal are criminal offences

Many of those are crimes, and none of them are punishable by up to three years in prison.

 

[brodski]

Still don't get it?

Speeding is illegal, but is it a crime?
Jaywalking is illegal, but is it a crime?
Drunkenness is illegal, but is it a crime?
Giving a false statement of age is illegal, but is it a crime?
Hosting a party that breaches the nose abatement laws is illegal, but is it a crime?
Smoking in a non-smoking public place is illegal, but is it a crime?
Littering is illegal, but is it a crime?
Creating a public disturbance is illegal, but is it a crime?

Not all things that are illegal are criminal offences

In most common law jurisdictions, when the sanctions for breaking the law is imprisonment, then it rises to the level of a criminal rather than civil offence.

 

[brodski]

Many of those are crimes, and none of them are punishable by up to three years in prison.

In systems more closely to English law they aren't ciminal offences, they are civil offences- but you're right, they don't lead to gaol time (athough tehre are usually associated criminal offences which can be prosecuted in egregious cases- such as dangerous Driving rather than speeding).

 

[smartcooky]

In that case the judge really screwed up, as the father was only required to make an undertaking that he would not bring any criminal charges against the mother.

Either that or parental abduction is a crime and the judge knew what he was on about.

Could that be because taking them from Italy under these circumstances was a criminal act under Italian law?

Could it be that it was not the parental abduction that was the criminal act, but that failure to comply with an Australian Court order was?

Remember, I am arguing against the assertion made by kerikiwi et al, that kidnapping and parental abduction are one and the same offence

I have provided Law references and the text and names of the actual Acts of Parliament governing them that unequivocally prove beyond any doubt whatsoever that they are NOT the same.

They are covered by different laws, enacted under different acts of parliament, in different years, are heard in different courts, have different scales of penalties and punishments. In short.....

KIDNAPPING ≠ PARENTAL ABDUCTION!!!

 

[ehcks]

KIDNAPPING ≠ PARENTAL ABDUCTION!!!

http://www.fbi.gov/about-us/investigate/vc_majorthefts/cac/family-abductions

Family Child Abductions
It happens: a parent kidnapping his or her own child and fleeing for parts unknown, often overseas.

 

[ehcks]

www.altalex.com/index.php?idnot=36773

Art. 574.
Sottrazione di persone incapaci.

Chiunque sottrae un minore degli anni quattordici, o un infermo di mente, al genitore esercente la patria potestà, al tutore, o al curatore, o a chi ne abbia la vigilanza o la custodia, ovvero lo ritiene contro la volontà dei medesimi, è punito, a querela del genitore esercente la patria potestà, del tutore o del curatore, con la reclusione da uno a tre anni.
Alla stessa pena soggiace, a querela delle stesse persone, chi sottrae o ritiene un minore che abbia compiuto gli anni quattordici, senza il consenso di esso per fine diverso da quello di libidine o di matrimonio.
Si applicano le disposizioni degli articoli 525 e 544.

Google translating the first paragraph:

Anyone who removes a child under fourteen years of age or a mentally ill person, the parent who guardian, the guardian, or trustee, or to whom he has supervision or custody, which it considers contrary to the will of the same, shall be punished, a complaint by the parent who the guardian, the guardian or curator, with imprisonment from one to three years.

In Italy, parental abduction is a criminal offense.

That was far more difficult than it should have been.

 

[banquetbear]

Could that be because taking them from Italy under these circumstances was a criminal act under Italian law?

Could it be that it was not the parental abduction that was the criminal act, but that failure to comply with an Australian Court order was?

Remember, I am arguing against the assertion made by kerikiwi et al, that kidnapping and parental abduction are one and the same offence

I have provided Law references and the text and names of the actual Acts of Parliament governing them that unequivocally prove beyond any doubt whatsoever that they are NOT the same.

They are covered by different laws, enacted under different acts of parliament, in different years, are heard in different courts, have different scales of penalties and punishments. In short.....

KIDNAPPING ≠ PARENTAL ABDUCTION!!!

...earlier in the thread you wrote this:

Most importantly, Parental Abduction is not a criminal offence.

I thought that you were citing another source and simply neglected to cite them, however it now appears that you had decided to plagiarize other sources and that this sentence is something you invented. Is that correct?

What is your source of the "Parental Abduction is not a criminal offence" statement? Are you still standing by that statement? Is the thrust of your argument now not what is best for the girls, but the definition of words? And do you think that writing things in bold and in all caps will make us forget what you wrote earlier?

 

[katy_did]

At no time have I ever stated that parental abduction is not illegal, only that it is not a criminal offence. You do understand the difference, right?

Perhaps you don't. Like many others here, you appear not to understand the difference between offences that are "criminal offences" and those that are not. The difference is not moot, it is both established in law, and important.

Earlier, I quoted US Law for a couple of simple reasons.

LOL. So you found out you were wrong about US Law, since parental kidnapping is a criminal offence there as in many other countries, and switched to Australian law where it's a civil offence. Nice moving of the goalposts there.

None of which is relevant, since the children were taken from Italy and the mother would be prosecuted under Italian law.

 

[smartcooky]

...earlier in the thread you wrote this:



I thought that you were citing another source and simply neglected to cite them, however it now appears that you had decided to plagiarize other sources and that this sentence is something you invented. Is that correct?

What is your source of the "Parental Abduction is not a criminal offence" statement? Are you still standing by that statement? Is the thrust of your argument now not what is best for the girls, but the definition of words? And do you think that writing things in bold and in all caps will make us forget what you wrote earlier?

You are misrepresenting what I have said, either deliberately or otherwise.

FIRST
I have always argued, right from my very first post in this thread, that I believe what happened when the girls were dragged away from their mother was wrong. IMO, it was handled appallingly by all concerned, including the police. That is an opinion I will never change. There is never any justification for the use of violence with children. Don't much care who is to blame for the situation that this family has ended up in. The mother may well be a *********** pig, or a *********** dog or a *********** bitch or any of the other disgusting terms that some posters here have used to describe her. Perhaps she really doesn't deserve to have them. The father may well be all sweetness and light and a real angel in disguise, who only wants what's best for his kids, and perhaps he is the best choice as the custodial parent. Irrespective of ANY of all this, the use of violence with children is always wrong!!

SECOND
The argument about criminality or non criminality is a side issue that I argued PURELY to refute those who maintain that kidnapping by a stranger for ransom or for other nefarious purposes is exactly identical to abduction by a parent in a custodial dispute. They are not the same, period. I have proved conclusively that they are covered by different laws and different acts of parliament. If you can show me ONE SINGLE CASE (with proof) in any of the jurisdictions involve in this case the case where the offending parent in a parental abduction case has been charged with a criminal offence and been found guilty and been sentenced to 25 years in prison, then I will recant my position.

Nuff said.

 

[smartcooky]

LOL. So you found out you were wrong about US Law, since parental kidnapping is a criminal offence there as in many other countries, and switched to Australian law where it's a civil offence. Nice moving of the goalposts there.

None of which is relevant, since the children were taken from Italy and the mother would be prosecuted under Italian law.

Nice selective quoting there.

You (deliberately) left out the part where I explained why I quoted US Law.

Clever girl, you should take up journalism, or you could drive a cherry-picker, you'd be good at that too!!

PS: You should realise, I was criticised for quoting US Law. So, I corrected the issue and quoted Australian Law, then you have a go at me for "moving the goalposts"

Ever heard of Joseph Heller?