Motte v Furlanis (Grenoble, France 2000)CASE No 00/00797; No of minute 372
9 International Abduction (FRANCE 2000)
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IN THE NAME OF THE OF PEOPLE OF FRANCE
CASE No 00/00797 Stamped date 30 March 2000
No of minute 372
APPELLATE COURT OF GRENOBLE
CHAMBER FOR EMERGENCY
ORDER DATED Wednesday 29 MARCH 2000
APPEAL of an order made by the High Court of GRENOBLE
(Case No 200000773)
Dated 17 February 2000, on a declaration of appeal dated 17
February 2000 and a request for emergency hearing dated 29
February 2000
APPEALING PARTY
Mrs. Virginie, Francoise, Marie-Solange TSOPELS born MOTTE.
Born 29 July 1969 in Chatou (78400), French citizen
67 Batiement Le Pre des Roches 38520 LE BOURG D’OISAN
Represented by the SCP GRIMAUD Solicitors to the Appellate
Court and assisted by Isabelle STAUFFERT GIROUD Lawyer to
the Bar of Grenoble
DEFENDANT TO THE APPEAL
MR. Fabrizio FURLANIS
Born 9 June 1965 in Mestre Italy, Italian Citizen.
4020 Ingraham Street – Apt B
SAN DIEGO CA 921O9 USA
Represented by the SELARD DAUPHIN NEYRET Solicitors to the
appellate Court and assisted by Me Veronique CHAUVEAU Lawyer
to the Paris Bar
IN THE PRESENCE OF:
Me Francoise LAUDET, lawyer for the interest of the child
SOLENE born the 1st of June 1993 in ROME.
The original has been delivered on the 30 March 2000 to SCP
CALAS, SCP GRIMAUD, Me RAMILLON, SCP PERRET et Pougnand,
SELARD DAUPHIN NEYRET
Composition of the court
During the debates and at the hearing when the order was
made:
Mrs. Marthie COMBE, Appellate Court magistrate, acting as
President
Mrs. Laurence HUSQUIN, Appellate Court magistrate
Mr. Michel REBUFFET Appellate Court magistrate
Mrs. PAVAN DUBOIS Public Prosecutor
Assisted by Mrs. Helene PAGANON Clerk during the debates
DEBATES
AT THE HEARING IN CHAMBERS DATED 22 MARCH 2000
AFTER THE FILE HAVING BEEN COMMUNICATED TO THE PUBLIC
PROSECUTOR
THE SOLICITORS AND LAWYERS HAVING BEEN HEARD IN THEIR BRIEF
AND PLEADING ARGUMENTS,
AND MRS. PAVAN DUBOIS PUBLIC PROSECUTOR IN HER REQUISITIONS
BY WRITING AND SPEECH
Fabrizio FURLANIS and Virginie MOTTE lived as co-habitees.
They bad a baby girl SOLENE, born 1st of June 1993 in Rome
They parted during the year 1995.
By an order made in San diego State of California( USA) on
the 20th of September 1996, Fabrizio FURLANIS has obtained
legal and physical custody of his daughter, whereas, by a
previous order dared 14 December 1995, the child bad been in
the care of her mother.
As the child had been taken to France by her mother on the
4th of June 1996, Fabrizio Furlanis filed in the Family
Court of Grenoble a request to obtain immediate return of
the child to the USA, in due application of the Hague
Convention.
By an order dated 17 February 2000, he was granted his
request, and the immediate return of the child SOLENE to her
father, in any place chosen by the latest, with immediate
enforcement and on minute if needed.
Virginie MOTTE was sentenced to pay to Fabrizio FURLANIS the
amount of 25.000 FF and the costs were to be paid by her.
On the 17 February 2000, Virginie MOTTE has regularly
appealed this order.
She had been given leave for emergency appeal by an order
dated 18 February 2000 for a fixed hearing dated 2 march
2000.
In order to give grounds to her appeal, as well as in her
request for emergency hearing, Virginie MOTTE state that in
the order made by the Superior Court of California on the
10th of September 1996 is in violation of the dispositions
of articLe 14 of the French civil Procedure code, as it has
been made in her absence; that this order had not been
served to her, therefore that she could not appeal it; that
this order has been obtained in fraud of her rights as, at
this time, she was in France with her daughter, and that
FURLANIS knew it as he came to join her.
Therefore that she has been denied an equitable trial.
She underlines that this order dated 2O September 1996 had
not been translated by an expert translator; that the fact
that Fabrizio FURLANIS’s lawyer explains this order is not
acceptable in France: that the order, made out of her
presence, is contrary to French Public Order: therefore that
these documents are to be set aside.
She then adds that French Judicial authority of the
requested state is not bound to order the return of the
child if the person who opposes to the return establishes
that there is a grave risk that the child’s return exposes
the child to a physical or psychological danger or in any
other way places the child in an intolerable sitUation; that
Fabrizio FURLANIS pretends that it is due to her behaviour
that his order was made (as he states that she abducted her
child SOLENE in 1995 for one month to Italy, then in 1996,
in order to come to France; that all this is untrue; that at
this time she had physical custody of the child; that even
if is true that this order stated that no one of the parent
could leave the County of San Diego without the consent of
the other, or an order, Fabrizio Furlanis had left to Cuba
with the child without any problem whereas she had nor
agreed; that in 1996 when she came to Paris to see her
father, Fabrizio Furlanis knew it; that it is under these
circumstances that he has obtained the order dated 20
September 1996; that she had many times requested from the
American Justice to change the physical custody of her
daughter, or to allow her to come to France with her; that
this has always been denied to her, whereas she is French
and so is her daughter; that she entertains with the child
privileged links; that the separation would be intolerable
for them both; that she cannot come back to the USA as there
is against her a warrant and this could lead to her arrest;
that Fabrizio FURLANIS lives with a Brazilian woman and has
a child with her and may go to Brazil, country not signatory
of the Hague; that he does not justify having a residence
and a job in San Diego; that the child has no family in the
USA; that Fabrizio FURLANIS is unstable, having spent 6
mouths in South America without being satisfied; that he
even has asked leave to take the child to Brazil or Ivory
Coast, and that this has been denied by the American Judges.
She requests for the application of article 13 b of the
Hague convention, the child having reached a age and
maturity who allow to take into account her opinion and
estimates that a social welfare inquiry should be ordered to
hear the child and obtain informations on her situation.
She considers that the order from San Diego is contrary to
French Public Order; that the sole access obtain was a
reasonable one; that the UN Convention on children rights
states the right of the child to maintain relationship with
both parents; that is she had had an access right allowing
her to come on a regular basis to France with her child,
Fabrizio FURLANIS would not have been compelled to ask for
return of the child.
She state that in a first time, she bad been deprived of any
rights of access on her daughter SOLENE due to the violence
and alcoholism of Fabrizio FURLANIS.
She states that if the return of the child was order, she
would not see her again, as the father has leave to take the
child in any place he chooses.
In application of article 16 of the Convention she pretends
that the child has been living nine months in France with
her, that she is in primary school and that Fabrizio
FURLANIS forbid her to go to a French School, depriving her
of her roots; that she is remarried, has another child a
baby boy, and that SOLENE lives in a protected environment
with her sister and brother; that she benefits from medical
insurance whereas there is nothing as such in the USA; that
also she is free to take care of SOLENE and that is not, the
case of Fabrizio; finally she states that she had to come to
France as Fabrizio FURLANIS never satisfied his undertaking
that he would pay for her rent and alimony.
Fabrizio FURLANIS answers that the appealing act is void and
that therefore the appeal is not receivable; that Virginie
MOTTE did not state her DOB and her address, this meaning
her actual and real residence; that this omission is hurting
his case as, when the order was made, she has disappeared
from her domicile taking the children with her and, she
cannot be found whereas the Public Prosecutor and a private
detective he took never made research; that she cancels her
residence from him and the court, and that will make the
enforcement of the new order difficult and shows the
persistence of the violations of the law by Virginie MOTTE.
He also adds that pursuant article 961 of the New French
Civil Procedure code, her brief is not receivable as all the
notes compulsory under article 960 alinea 2 of the New Civil
procedure code, amongst which the address, are not given,
therefore her brief are to be put aside.
Subsidiarily, he states that he is an Italian Citizen, and
that he resides in San Diego, that he has obtained legal and
physical custody, pursuant illegal displacements of the
Child from the USA to France by Virginie MOTTE; that this
decision has been made within the frame of a long and
painful procedure, during which he had to come back to the
Family Court many times; that, during one access, Virginie
MOTTE has unlawfully displaced the child from the USA to
France, without leaving any address, and that he only found
his daughter after nine months, with the help of Interpol.
He precises that, at the first hearing in front of the
Judge, Virginie MOTTE had acknowledged that she took the
child during her access rights; that, nevertheless, none of
the parents was allowed to take the child out of California
with out the other’s consent; that, during the hearing, an
agreement was found between the parties, pending the order,
according to which he was to take the child in front of the
Church of Bourg d’Oisan and bring her back the next day;
that, as soon as he heard the content of the order, Fabrizio
FURLANIS asked to the head of School where his child was,
not to give the child to the mother; that nevertheless the
child left with her mother and sister and was not found;
that on the instructions of the Public Prosecutor, the
police forces entered Virginie Motte’s apartment and found
traces of quick departure; that this case comes to the
Appellate Court in this state, the child not being in school
since February.
He asks for personal appearance. of the parties, if the
Court decides that it is lawfully seized.
On the merits, he states that the mechanisms of the Hague
Convention is simple; that when a child is displaced from
his usual place of residence to be taken to another country,
called country of refuge, the judge of the said country
must, without any delay, send back the child to jurisdiction
of origin; that the displacement is illicit with the meaning
of the convention when all the bearers of custody with the
meaning of the Convention have not given their agreement for
such a displacement; that the order for return is in no way
an Order on the merits of physical custody no legal one;
that the best interest of the child has no influence in such
a frame.
He considers that the requested conditions for the
enforcement of the Convention are found; that he has
custody; that the displacement is illicit as Virginie MOTTE
had asked to take her daughter to St Barthelemy, that this
had been denied to her; that none of the parents could take
the child Out of California without the other’s consent;
that the habitual residence of the child is without any
contestation, in San Diego.
He estimates that the return of the child should be ordered,
none of the exceptions states in the legal text may be
granted; that he never acquiesced to the displacement; that
the return of the child to the USA will not incur for her
any grave risk, physical or psychological; that prior to
leave the USA, the child was in school; that the mother had
an access right; that he took good care of the child;
whereas Mrs. VIRGINIE MOTTE sometimes forgot her own child
in School; that also, two times, prior to the displacement
dated 1999, Virginie MOTTE displaced her residence,
depriving him of all contact with her, and he never ever did
it; that Solene does not oppose to her return and that also
she is too young to make such a decision.
He underlines that the order dated 20 September 1996 has
been produced in original and translated as well as all the
other documents, by a certified translator; that if this
order had been made our of V. Motte’s presence, she had
knowledge of it and bad the possibilities to ask for
modifications and that she has always been denied; that the
affidavit from Mrs. Maria Hart from the US State Department,
Central Authority, establishes that the displacement was
illicit.
He precises that the Assistant of the Public Prosecutor of
San Diego had established a report showing that Mrs.
Virginie MOTTE had already abducted the child; that
therefore it was not abnormal that the San Diego Judge
forbid the outgoing of the child from the jurisdiction to
prevent any new abduction; that he has never forbid mother
and child to have contact; that if the child was returned to
the USA, this would stop any proceeding against Mrs. MOTTE
in the USA; that she has the right to defend herself; that
also he has undertaken and again undertakes that Virginie
MOTTE will have access, of which the US Judge will organize
the organization; that also he offers that Virginie MOTTE
sees the child when ever he comes to Italy to see his
parents; that also Mrs. MOTTE may pursuant article 21 ask to
the Ministry of Justice to transfer to the US authority a
request for access; that also the risk for abduction to
Brazil as evoked by Mrs. V. MOTTE is not serious, whereas he
has always abide to the orders made; that this accusation
shows clearly the own behaviour of Mrs. V. MOTTE.
He opposes to the hearing of the child, which had not been
asked to the first judge, as it is not the desire of the
child that should be taken into account but the opposition
to return; that SOLENE is too young to be heard and has been
pressured in an important way from mid February and has
always been happy to see him.
He states that the convention of Children rights is without
any consequence on this case, as he never opposed to the
relationship between mother and child, but that it is
different with Mrs. V. MOTTE.
He states that the article 16 of the Convention allows, when
the parent responsible for abduction has filed a request
with the Family Court, to withhold the procedure until the
decision on return is made.
He asks for confirmation of the previous order, and also the
sentence of the defendant to 50000 FF of damages, including
costs, lawyer’s fees, solicitor in the Appellate Court,
usher, private eye as well as hotels and restaurants. He
also asks for the sentence of 20000 Frs for abusive appeal.
The Public Prosecutor to the appellate court requires that
the first order be confirmed, this only being possible to
restore a state of law deliberately violated by Mrs. MOTTE.
As an answer to the briefs of Fabrizio Furlanis, served on
the 17th of March, Virginie MOTTE has answered on the 21st
of March. She produces many affidavits and completes her
motivations. F. FURLANIS considers these evidence are not
acceptable, as violating the rule for contradiction, the
briefs and evidence not being an answer to his own
arguments.
The hearing of SOLENE was ordered the 22nd of March and has
been done immediately in due presence of the lawyer she had
asked for. The parties took knowledge of what she said on
the 22nd of March and were able to give their point of view.
MOTIVATION OF THE ORDER
1) On the procedure
It is showed by the documents given to the case that
Virginie MOTTE had indicated in her declaration of appeal,
her request for emergency bearing and her brief attached the
place of her domicile, whose existence is proven by a lease
contract, dated 17 Sep 1999 and the fact that her husband
still resided at this place on the beginning of March 2000.
Of Mrs. MOTTE has acknowledged having left this place with
the children and be hosted by friends in order to avoid the
enforcement of the order, this does not mean she had changed
her domicile. Therefore her request and brief will be said
acceptable. Whereas, it must be said that Fabrizio FURLANIS
has served his brief in answer on the 13th of March 2000 on
Monday.
Therefore, and whereas the hearing was set on the 22nd of
March 2000, the service of evidence done on the 16th of
March 2000 by Fabrizio FURLANIS, as well as the brief served
on the 21st of March 2000 will be set aside, as violating
the principle of contradiction.
2) On the merits
It is not useless – in order to decide on the appeal filed
by Mrs. Virginie MOTTE, to recall the judicial history of
the parties from 17 March 1995, as it is showed by the
numerous orders produced in the debates and from Mrs.
Partida’s report (Mrs. Partida is the Officer from the
Office of The Public Prosecutor from San Diego county dated
6 november 1990) and Marc Gotbaum, Counselor to the Family
Services of the Family Court of Superior Court of San Diego,
all these documents being lawfully translated.
The history. goes as follows:
17 april 1995: Order from the Court to grant joint legal
custody of Solene to both parents
Departure of Virginie MOTTE to Italy with her daughter
whereas the orders forbidden her;
l
28 April 1995: Legal custody of the child to both parents
but physical custody to Fabrizio Furlanis;
14 December 1995: the Superior Court of California County Of
San Diego, undertakes the fact that F. FURLANIS and V. MOTTE
have decided not to take the child out of the County of San
Diego without either the other’s consent or an order from
the Court; the Court decides to adopt the recommendations of
the Mediation applicable during six months and subject to
modification at one parent’s request, stating that both
parents should have legal joint custody, the main residence
of the child being at the mother’s, and the child being with
her father every Sunday from 11 to Tuesday 18h, and with the
mother the rest of the time. Each parent being granted two
holidays a year for 10 days.
17 July 1996: Order for localization of the Child SOLENE,
due to her departure with mother without the father’s
agreement.
20 September 1996: Order made by the Superior Court of San
Diego, after the hearing dated 4 September, at the request
of F. FURLANIS dated 8 July 1996, modifying the order on
custody in to order to grant the father with legal and
physical custody of the Child SOLENE, the mother being
entitled to reasonable access;
17 November 1997: Order for temporary restriction at the
request of Virginie MOTTE in order for Fabrizio FurLanis not
to be able to leave California with the child
18 November 1997: Order granting F. FURLANIS the right to
take his daughter to Italy from 19 to 29 November
24 December 1997 order for the mother to have the child from
every Friday afternoon until school on the next Monday (the
mother bringing the child to school);
6 March 1998: Order of the superior Court of california
County of San Diego, at the request of Virginie MOTTE:
custody to the father and sharing plan of the child on two
weeks, from Thursday to Saturday morning to the mother on
the 1st week, and from Thursday to Saturday of the next
week, on the report of mediation, recalling that the father
has legal and physical custody of the child after two
abductions of the child from the USA. The accusations of
alcoholism and drug abuse made by the mother did not showed
acceptable and the mother being quite unstable, her dream to
move to the Antillas do not show of a nature sufficient to
protect F. FURLANIS’s rights.
15 October 1998: The request filed by V. MOTTE to obtain a
variation of the order on custody and access is denied
11 March 1999: Order denying the request for variation of
the order on custody and access filed by Virginie MOTTE,
forbidding Mr. FURLANIS to take his daughter for holidays
out of the USA or in Mexico without the mother’s consent;
19 May 1999: The Superior Court of California County of San
Diego, seized by Virginie MOTTE, denies to her the right to
travel to France with the child and orders mediation
Friday 4th of June 1999: Virginie MOTTE abducts the
daughter to France without F. FURLANIS’s agreement.
It results from these facts, whereas all the orders have not
been filed, that:
The initial order dated 20 September 1996 has
not been varied in its principle, whereas
numerous requests for variation have been filed
by Virginie MOTTE from then to May 1999, and
that therefore she cannot pretend that she has
not be present to the hearing after which this
order had been made, whereas also at this time
she was in France where she took her daughter
unlawfully;
Fabrizio FURLANIS had custody of the child, Virginie MOTTE
was not granted with leave to take the child to France and
therefore such an abduction is illicit, with the meaning of
article 3, Virginie MOTTE having taken the child during her
access rights;
There is no immediate grave risk that the return of the
child exposes her to a physical or psychological danger or
to place her into an intolerable situation, with the meaning
of article 13b of the Convention. As a matter of fact the
child lives as a principal residence with her father since
September 1996 and all the elements contained in the
judicial file have never shown against Mr. Fabrizio
FURLANIS, whereas, on the 3rd of March 1999, the
Headmistress of Solene’s schooL in San Diego underlined that
when the child was with her mother, she frequently missed
school or arrived late, or that the mother picked her up
late from school, or even once, had not shown up, whereas F.
FURLANIS was unreproachable. Mrs. V. MOTTE’s instability
has been underlined many times and she does not guarantee
the relationship of the daughter and father, as shown with
the same act done three times.
There is nothing such as an opposition of the child to her
return, the latest being heard and having only showed a
preference to live in France but never opposed to her
return.
Also, there is no other elements allowing to say that the
order of the American authorities could be contradictory to
French Public Policy, nor that the return of the child would
be an attempt to the human rights or fundamental freedom,
whereas the mother bad a normal access right on the child
and has been able to exercise it. It should be underline on
this point that Fabrizio FURLANIS FN01 has not told the US
Judges that she was willing to live in France and that
therefore her access should take this into account, but
simply bad asked leave to take her daughter to France to see
her grand parents.
Also the article 16 forbid as a matter of facts the French
authorities to rake an order on custody unless is is showed
that conditions for return are not fulfilled.
This is why the first order can only be confirmed being only
precised that the child should return with her father to the
USA and not in any place chosen by the father.
This being said, it is undertaken by F. FURLANIS that he
promises to take the child to France four times a year for
at least one week without undertaking that he will leave the
child sleeps at her mother’s, and he undertakes also that
the mother will be able to see SOLENE under the same
conditions when he comes to Italy.
Therefore, and as F. FURLANIS has also undertaken the fact
that he will let the USA judge be informed of such
undertakings, it belongs to Virginie MOTTE to asks for
access on her daughter, being stated that the Court has
heard the parties and the child and estimates that this
right is needed by the child, truly attached to both
parents, and that the periods for the child to be with her
mother should be at last of 15 days, serene and profitable
relationships being difficult to establish for a lesser
period.
IN due application of the articLe 26 of the Convention, V.
MOTTE shall be sentenced to pay to F. FURLANIS the amount of
35000 FF, she will also stand for the costs of appeal.
THIS IS WHY
THE APPELLATE COURT
In a pubLic and contradictory hearing
After deliberation
Declares the appeal receivable
Sets aside as violating the contradiction of the debates,
the evidence filed on the 16th of March by F. FURLANIS, the
brief filed by Mrs. MOTTE on the 21 March 2000 and the one
filed by F. FURLANIS
Say acceptable and regular the petition and briefs filed by
V. MOTTE
Confirms in all its dispositions the order deferred to the
court with the exceptions of the amount of the sentence
pronounced in application of article 26 of the Hague
Convention.
Precise that the child should return to the USA with her
father and not in any place chosen by him
By a new order
Sentences Mrs. MOTTE to pay to F. FURLANIS the amount of
35.000 Frs
And adding to it:
Undertakes that F. FURLANIS has promised to take his
daughter to France four times a year for one week at least,
without undertaking that he will Let her sleep at her
mother’s, and to let SOLENE see her mother under the same
conditions whenever he comes to Italy.
Precise whereas that the Court, which has heard the parties
and the child, estimates that this right is necessary for
the child who is obviously attached to her mother and father
and that the stays with the mother should be at least of 2
weeks each time, the relationship being difficult to
establish in a serene and profitable way in inferior in
length.
Sentence Mrs. MOTTE to the expenses and costs of the appeal.
Order made In the hearing of this day, signed by Mrs. COMTE,
Counselor, acting as President, and Mrs. PARAGNON Clerk.
Footnotes
————————
01. Mistake of the court, obviously it should be read
here V MOTTE