*Jane pleaded with the courts to save her child from an allegedly abusive father. Now she's distraught.

Content warning: This story includes descriptions of domestic violence that may be distressing to some readers.

Last week Jane*, an Australian First Nations woman, was pleading with the federal government to stop her young daughter from being sent overseas into the care of her allegedly abusive father – Jane's ex-partner.

There was a flurry of petitions and calls for the government to intervene. Then on Christmas Day, Jane's daughter was taken out of the country. 

It comes down to a treaty known as the Hague Convention on the Civil Aspects of International Child Abduction, an international agreement that enacts the return of a child who has been 'internationally abducted' by a parent from one member country to another.

Under the Hague Convention, a child is considered abducted if they are taken across an international border by one parent without the consent of the other parent. 

Yet around three-quarters of all cases filed under the Hague Convention are against mothers – many of whom are fleeing alleged domestic violence or seeking to protect their children from alleged abuse. 

Watch: Sally Faulkner on the moment her kids were torn away. Post continues below.

Mamamia spoke to Jane, who cannot be identified for legal reasons. 

Jane met her ex-partner while travelling. She is from Australia, a proud Indigenous woman, and he is from Europe. We won't name the specific country for legal reasons.

"Our relationship had a lot of domestic violence and coercive control. He was just being really, really abusive," Jane told Mamamia.

In 2019, Jane discovered she was expecting a baby. She planned to stay in Australia and raise the child here but she says her then-partner "coerced" her into flying to Europe. 

"He coerced me onto that plane even though I didn't want to get on the plane. [Soon after arriving in the European country in question] I then tried to come back home because I was still booked to give birth at my local hospital. It was then that he became really violent. He came over to the bed, punching the pillow next to my head, threw a suitcase at me while I was pregnant." 

It was at this point that Jane experienced serious contractions and bleeding. Doctors told her she couldn't fly home to Australia to give birth for risk to her and her unborn baby's health. Add in the implications of the COVID pandemic beginning to emerge, and Jane gave birth to her daughter in a foreign country.

Days after her daughter's birth, Jane began the process of applying for Australian citizenship on the child's behalf, determined to get back home. But for seven months, Jane was stuck in Europe with her ex-partner.

"A tree branch fell on top of my daughter and I, and I shielded her with my body, which resulted in a bad shoulder injury. He just looked at us coldly and said 'shame it didn't do a better job, that would have fixed my Australian problem'. There were times he would yell in her face or pick her up and just shake her violently. I was trapped," Jane said. 

"He also once told me that he knew he could bury me and get away with it. He also said if he dies, he wants [our child] to die with him."

Image: Supplied.

In 2020, Jane left her ex-partner, and when she and her daughter landed on home soil in Australia, Jane said it was a major relief. But what has followed is two "terrifying" years of court cases, stress and anguish.

Jane's ex-partner applied for the now two-year-old child to be returned to him using The Hague Convention on the Civil Aspects of International Child Abduction, arguing that since the child was born in Europe, that she should legally be in his care.

As a result, Jane has spent a large amount of money and years fighting to keep her daughter in Australia. This month, as per news.com.au, the Australian Family Court ruled that The Hague Convention must be upheld in this case, and that the child should be returned to her father.

Jane told Mamamia she has a current Apprehended Domestic Violence Order (ADVO) out against this man.

Recently, Jane lost her bid to have her case heard by the High Court to prevent her child from being returned to Europe. As a result, her ex-partner was legally now allowed to come to Australia and take his daughter. 

When Mamamia spoke to Jane, it was understood the ex-partner was en route to Australia. By December 22, it was reported that Jane's daughter was taken from her by Department of Communities and Justice officials and handed to the ex-partner.

Nessa Turnbull Roberts, a Bundjalung woman, lawyer, social worker and First Nations advocate, then shared an update on Christmas Day.

"It is with deep sadness, heartbreak and pain that I share the following. On Christmas Day she was taken out of the country. I spent Christmas evening yarning to mum. She hasn't left her own mother's bed. She's in pain, she's distraught. But I see the strength in her eyes, I see the fight."

Earlier this month, Australia's Attorney-General Mark Dreyfus announced that the law had been amended to ensure that "family and domestic violence can be considered before return orders are made for children under The Hague convention". However, it's come too late for Jane as the change to the law will not be applicable for her as it is a retrospective matter.

"My child has no voice. I want people to know that there is a great injustice happening. This little girl is going to suffer because this law change hasn't been made retrospectively," she said to Mamamia.

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A post shared by Nessa Turnbull Roberts (@nessaturnbullroberts)

"I have a current ADVO out against him. As parents as well, I want them [the ministers] to protect my daughter and look at the evidence. 

"I also want to point out that my daughter is a First Nations child – it is in the best interests of a First Nations child to remain on country, to celebrate culture and community. With her rights being taken away from her, it's just a blatant continuation of the Stolen Generation."

A spokesperson for the Attorney-General told Mamamia that "there are no legal grounds for the Attorney-General to intervene in this case".

"The Albanese Government has amended the law to make it clear that allegations of family and domestic violence can be considered before return orders are made for children under The Hague Convention. The amendments demonstrate the Albanese Government's commitment to an effective, accessible, fair and safe family law system that supports victim-survivors of family and domestic violence," the spokesperson said in a statement. 

Ashley, Francina, Leonard and Associates director Tony Nikolic, who is representing Jane, told news.com.au they are pleading with the federal government and its ministers to act on this case immediately. 

"If we can get support for the mother from ministers it would give us time to understand how the complex interplay between Australian laws and our obligations under International Convention allows for the preservation of rights to be balanced in a manner that is consistent to Human Rights and other important conventions protecting women and children globally," he said in a statement.

Nessa Turnbull Roberts has since organised a GoFundMe and a petition.

"National and international community, we are all urgently calling on you. Calling on human rights commissions, Aboriginal peak bodies and those who continue to advocate and share the importance of ending domestic and family violence and protecting children and human rights," she said.

"This legal battle will take a whole community. Empower a woman, empower a nation."

If this has raised any issues for you, or if you just feel like you need to speak to someone, please call 1800 RESPECT (1800 737 732) – the national sexual assault, domestic and family violence counselling service. 

Mamamia has reached out to Immigration Minister Andrew Giles for comment. If/when a comment is received, we will include in this article. 

*Jane's identity is known to Mamamia, but has been kept anonymous for legal reasons.

This article was originally published on December 21, 2022 and was updated on December 27, 2022.

Feature Image: Supplied/Instagram @nessaturnbullroberts.