.ITALY – DORFMAN – 2002 (Return Ordered) DORFMAN v DORFMAN The mother takes the children to Italy. The father applies for their return. The court ruled that the children were wrongfully removed and that the father was exercising his rights of custody at the time of removal.
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Dorfman v Dorfman (Italy 2002)Trieste Juvenile Court No 57/2002
04 International Abduction [ITALY 2002]
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TRIESTE JUVENILE COURT
No. 57/2002
18 Mar 2002
The Court, in Chambers with the following Judges:
Alessandra Bottan President
Silvia Balbi Judge
Luciano Peloso Honorary Judge
Franca Armione Honorary Judge
issued the following
DECREE
001 We reviewed the application received on February 12,
2002 in which the Public Prosecutor, having received a
request dated February 5, 2002 from the Central Authority,
asked that a hearing be scheduled pursuant to art. 7 of Law
64/94 to issue a return order for the minors Efrem Dorfman
(born on May 22, 1994 in Amsterdam, the Netherlands) and
Viviana Dorfman (born on October 12, 1996 in Burlinghton,
USA) to their father Myron Dorfman residing in Vermont, USA.
002 At the hearing of March 6, 2002 we questioned both
father and mother of the minors, Marjike Russo. At the
hearing today we also questioned the witnesses that the
Court had indicated.
003 We received the necessary information (see documents
sent from U.S. Central Authority on March 12, 2002).
004 We reviewed the final claims of the parties, as
summarised in the minutes of the hearing.
005 First of all, the exception of Mrs. Russo’s attorney,
that her client did not attend the hearing today (as
originally it was scheduled only to interrogate the
witnesses) is ungrounded. In fact, pursuant to art. 7 of
Law 64/94 the mother of the minors has been regularly
questioned by the Court at the past hearing. She was duly
informed of today’s hearing and she was free to attend it.
In any event she was duly represented by her lawyer during
today’s hearing.
006 The further request of Mrs. Russo’s attorney to take
a drug test on Mr. Dorfman is to be rejected. In fact there
is no evidences that leads us to believe that Mr. Dorfman
makes use of drugs. On the other hand, Mr. Dorfman cannot
be obliged to take such a test and he could therefore
legitimately refuse it.
007 Based on the information received from the U.S.
Central Authority and on the results of the interrogations
we believe that the case can be concluded. As already
decided on March 6, 2002 it is not appropriate to
interrogate the minors considering their young age.
Particularly Efrem could not express a free opinion,
considering that he did not receive sufficient and correct
information (see the father’s declaration at the hearing of
March 6, 2002 stating that the mother informed Efrem that
they would stay in Trieste only until the little brother
will be born and the grandfather’s statement confirming that
Mrs. Russo told the children they would go to Italy for a
trip).
008 We believe that the information received firmly
confirm the first requirement of art. 3 of the Hague
Convention , i.e. that the minors have been wrongfully
abducted to Italy on December 31, 2001 by their mother.
009 In fact there are objective facts evidencing that
mother and children suddenly left their habitual residence
without informing the father (see declaration made at the
hearing and letter of Mrs. Russo dated January 2, 2002),
that a house was purchased in Trieste (see documents in
file) that the children have been enrolled in the Trieste’s
school: such circumstances exclude that it was a temporary
transfer to Italy.
010 In addition there are no Court orders limiting or
suspending Mr. Dorfman’s parental rights as the spouses
were not judicially separated (see declarations made by the
parties and divorce application filed by Mr. Dorfman
subsequently to the abduction – doc. no. 9 attached to the
brief dated March 2, 2002). In addition the father was
fully and effectively exercising his parental rights (art. 3
b) as Mrs. Russo confirmed that, even when they were not
cohabiting, the father was visiting the house every morning
at 6:30 to dress the children up for school and bring them
to the bus stop and used to take the children with him
overnight every week-end (see also declarations made by
Mario Russo and Rochelle Dorfman at the same hearing).
011 As a result, since Mr. Dorfman was fully exercising
his parental rights, it is to be excluded the application of
the first exception mentioned in article 13, lett. a of the
Hague Convention. Also the exception of acquiesce provided
by the same art. 13 a does not apply considering that Mr.
Dorfman immediately activated the Hague procedure, even
before the January 4 decision of the Vermont family Court
that declared that there had been a wrongful abduction.
012 Finally the exception mentioned in article 13 b does
not apply whereby it states that the children must not be
returned to their habitual residence when there is a real
risk of physical or psychical danger or to expose them to an
intolerable situation. In fact all the negative allegations
made by Mrs. Russo against Mr. Dorfman have not been proved
and have been instead proved untrue following the
investigations made and by the information provided by the
U.S. Central Authority (as requested by last paragraph of
article 13 of the Hague Convention) that excluded any
hypothesis of physical violence, unfair behaviour, use of
drugs. The information received described the children as
happily involved in their environment and did not disclose
that there were third parties living in the house.
013 Apart from the above information, the exception of
art. 13 b was not even proved by the declarations of Mrs.
Russo and her relatives, that excluded that the father may
have been physically abusive with the children. They
acknowledged that, after the separation, the father
continued to visit and daily care the children. Any claim
towards the father could only be referred to the inevitable
conflicts existing between separated spouses.
014 As to the alleged use of drugs by Mr. Dorfman,
pursuant to Mrs. Russo’s declaration it appears that such
drugs were already in use when the spouses were living
together and she used to tolerate it. As a result, the use
of drugs, that has not been proved in any way, cannot be a
potential danger connected to the return of the children.
015 It is to be noted that the current happy situation of
the children in Italy (as referred by Mrs. Russo and their
relatives) and their presumable suffering connected to their
separation from the mother, that is as consequence to the
breakdown of the marriage, are circumstances that must be
considered when a decision will be made as to custody of the
children and access of the non custodian parent (and
therefore within another proceeding). As a result such
circumstances cannot be used as an article 13b exception.
016 As to the petitioner request that a new hearing be
scheduled immediately following the birth of the third child
(of whom Mrs. Russo is pregnant) it is sufficient to observe
that the baby to be born is not legally protected and in any
event his birth in the Italian territory will exclude the
application of the Hague Convention. As a result the
request must be rejected.
017 Finally it is also to be rejected the mother’s
request to postpone the return order to a date subsequent to
the birth of the third child, as it is an hypothesis that is
not included in the Hague Convention.
018 It is important to advice Mr. Dorfman and his
relatives to be co-operative, also through the Social
Services, for the purposes of enforcing the return order
taking into account the sensitiveness of the children, whom
must receive a clear and comprehensible explanation of the
present situation and future perspectives, also with
reference to their future relationship with the mother.
019 The claim for reimbursement of litigation expenses
has been dropped at today’s hearing and we must therefore
not decide about it.
FOR THE ABOVE REASONS
020 Pursuant to articles 7 of Law no. 64/94 and art. 8 of
the Hague Convention, in substitution to the Order dated
March 6, 2002, having rejected the requests of Mrs. Russo’s
for new evidences
THE COURT ORDERS
021 The immediate return to U.S.A. of the minors Efrem
Dorfman born on May 22, 1994 in Amsterdam (The Netherlands)
and Viviana Dorfman, born on October 12, 1996 in Burlington
(USA)
DECLARES
022 That Mr. Dorfman’s request to schedule a new hearing
to decide about the new-born child is not admissible.
023 No decision is to be taken with respect to the
expenses.
024 This order is immediately enforceable.
025 Copy to the Court’s Clerk to be communicated and to
the Public Prosecutor to be enforced.
Trieste, March 15, 2002
The Judge: Silvia Balbi
The President: Alessandra Bottan
Filed in Court on March 18, 2002