Dorfman v Dorfman (Italy 2002) Trieste Juvenile Court No 57/2002 04 International Abduction [ITALY 2002] ========================================================== 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