A First Nations mother is appealing to the federal government to intervene in an international custody dispute that has separated her from her two-year-old daughter.
The Aboriginal woman — who cannot be named for legal reasons — says she never intended to give birth outside of Australia.
She left Europe to return to Australia in 2020 with her seven-month-old daughter, alleging she was escaping domestic violence perpetrated by her then partner.
Her partner denies those allegations.
The Family Court later ruled the child was to return to Europe to be with her father under the Hague convention, an international treaty designed to prevent children from being abducted and taken overseas.
At that time, the mother lost her bid to keep her daughter in Australia in the Family Court and the child was flown out of the country on Christmas Day.
Her mother is concerned for the child's welfare.
"I don't know exactly where she is, but I know that she is not thriving," the mother said.
"Here in Australia, she is known as the bubbly happy, talkative little girl and suddenly she's not.
"Suddenly she's been put in a situation where she is not thriving and she's distraught and traumatised."
The mother is now appealing to the federal government to help her bring the child back to Australia, to ensure she has continued access to her community and culture.
"As a First Nations child, in my daughter's best interests, statutory law says that a First Nations child must have access to country and community and culture.
"All these things have now been ripped from her, things that are her right, as a First Nations child, things that are in her best interests.
"It's just been crippling, it's been ongoing trauma at every turn."
In a statement, Attorney-General Mark Dreyfus said there was no legal basis for him to intervene in the case.
When asked about the case, Prime Minister Anthony Albanese declined to comment on specifics, but said the government had recently made changes to the legislation.
"We have changed through legislation the law so that … courts can and should take into account issues like domestic violence and other issues are taken into account when considering what is best for a child," Mr Albanese said.
The mother is now preparing to return to Europe to try to regain custody of her daughter through the local courts, raising money for the legal battle through a crowdfunding campaign.
What is the Hague convention?
The Hague convention is an international treaty that was designed in the 1980s to prevent children being abducted and taken overseas.
Under it, judges are compelled to issue return orders for children to their country of habitual residence.
Dr Gina Masterton — a Gubbi Gubbi/Wakka Wakka woman and lawyer who has completed a PhD on the Hague convention — says the application of the law has drifted from what it was designed to do.
"It's a good law for what it's supposed to do, but it was never intended to be applied to cases involving domestic violence at all. So I call it a good law gone bad," she said.
International statistics show around three quarters of cases brought under the Hague convention are against mothers, and around 91 per cent of them say they had been fleeing domestic violence.
The federal government recently changed the wording of the legislation around Hague cases, meaning judges can now consider domestic violence before making return orders.
Dr Masterton says the changes aren't strong enough to compel judges to assess the risks of domestic violence.
"It doesn't go far enough," Dr Masterton said. "The wording of legislation is very important.
"So, 'can', 'may', 'shall', or 'must', they're all very important words when you're reading a piece of legislation.
"It would have been much better if they use the word 'must' because, I think, it would have really forced judges to really seriously consider how domestic violence affects children and their mothers," Dr Masterton said.
Concerns have also been raised about the impact of separating a First Nations child from community and country.
Dr Masterton says more should be done to keep Indigenous children in their communities.
"I think it's a continuation of the Stolen Generations because they're taking First Nations children from their First Nations mothers," she said.
"The government is not giving any serious consideration to the rights of First Nations children if they're going to allow this to happen."
