The family of a New Zealand woman allegedly murdered by her husband in Australia must apply for an urgent court order to take their children overseas for her funeral.
Arona Peniamina, who is charged with stabbing his wife Sandra to death in the driveway of her Brisbane home last week, has refused to allow their four sons to return to New Zealand with her body for a memorial service.
Peniamina, as their only living biological parent, has this right under Australian family law.
The dead woman’s relatives have engaged a Brisbane lawyer and called for a change to the commonwealth law around custody in an online petition that has been signed by almost 6,000 people.
Her sister Carnetra Potter said the boys, aged 4 to 11, who are in the care of her father’s Australian-based relatives, were “distressed” and “broken” by the tragedy.
“[Their father] is a living parent and still has a say on where his kids go,” she told Newshub.
“So he’s not letting us bring the boys home to New Zealand to say goodbye to their mother.”
Family law practitioner Kay Feeney said it was expected that the father retained parental rights under Australian law in which “biology trumps extended family” in the first instance. Australian family law was not unique in this respect, Feeney said.
However, it was open to the children’s relatives to make an urgent legal application to the family court or federal circuit court for temporary custody to attend the funeral, Feeney said.
“I would expect the court to be extremely accommodating,” she said.
“They just simply ask for the children to be in their day to day care between this date and that, and that they be permitted to take them outside the jurisdiction of Australia for the purpose of attending their mother’s funeral.
“It’s a quick, short, easy affidavit – not a hard job.”
In the event of such tragedies, the Family Law Practitioners Association would routinely put out a call for a lawyer to step in urgently and act for free on behalf of families in financial distress, Feeney said.
She said the family’s outrage that the father has “authority at all” was understandable “but law isn’t determined by outrage”.
“The father still has parental rights and in the absence of a judge’s order, his consent is required and he’s withholding it,” she said.
“That would be what you’d expect to be the situation at law because at the moment he’s not convicted and so he’s the only biological parent available and biology trumps extended family.
“So what the family needs to do is either bring an urgent ex parte application to the court or they need to bring an urgent application and have him served.
“Biology is given great weight – however, the [legal] test is the wellbeing of the children.”
Pending the outcome of the murder charge, relatives could apply for extended custody in what could become a contested matter between the two sides of the family.
“Of course conviction is very strong evidence but the simple fact he’s on remand and if he is not going to be bailed – and you’re unlikely to get bail for a murder charge – then the reality is he’s unable to meet the day to day care needs of the children,” Feeney said.
“Somebody else will have to step into that role. It’ll either be someone talks to [the father] pleasantly, calmly and without the high emotion that must be running or the family will have to seek an urgent order.
“The court would be most willing, I would expect, to empower a carer to be able to fulfill all the functions of a parent.”
