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Thursday, October 13, 2011

Rowe v Vargason, 2011 WL 4529341 (D. Minn.) [Australia] [Grave Risk of Harm] [Well Settled in New Environment] [Conditional order]

In Rowe v Vargason, 2011 WL 4529341 (D. Minn.) Petitioner, Kim William Rowe, filed a Petition for Return of Child to Australia on July 20, 2011. Petitioner and Respondent, Tammie Joan Vargason, were both citizens of Australia.
The parties met in Australia in 2005, when Respondent was 17 years old and the Petitioner was 30 years old. TJR was born in November 2006. In early 2007, they moved to Brisbane to allow Petitioner to find work different work. Petitioner found work but testified he was fired after a couple of weeks because Respondent was needy and would constantly call him at work and demand that he come home. Respondent testified that Petitioner was fired from his job because he repeatedly failed to go to work. When TJR was approximately three or four months old, Respondent began to engage in prostitution. Petitioner testified that it was Respondent's idea to become a prostitute, and that she placed an ad in the paper, announcing her services. Petitioner claimed that he did not want Respondent to engage in this activity, but that Respondent insisted. To ensure her safety, Petitioner testified that he went to "appointments" with Respondent, and waited for Respondent in the car with TJR. Respondent testified that Petitioner forced her into prostitution, that he placed the ads, collected the money and made all appointments. Respondent further testified that after just a few weeks, she arranged to move back into her mother's home so she would not have to prostitute herself anymore.
The parties returned to Dalby, where the parties were able to get their own apartment, next to Respondent's mother. A police report from October 2007 provided that there was a domestic disturbance involving the parties, and that Respondent told the police that Petitioner was domineering and controlling, and that he previously forced her into prostitution. Respondent also told the police that Petitioner would take Respondent's money, and would control what money she would receive. By May 2008, their relationship had completely deteriorated. On May 13, 2008, Petitioner came home to find that Respondent was talking with another man, her now husband, over the internet. An argument ensued, resulting in Petitioner being stabbed with a knife by Respondent. Petitioner claimed that they were arguing, and that Petitioner blocked the door to prevent Respondent from leaving with TJR. Petitioner claimed that Respondent then retrieved the kitchen knife to get Petitioner away from the door, and that during a struggle, Petitioner was stabbed. Respondent claimed that Petitioner got the knife from the kitchen and was threatening to kill her, but that she was able to get the knife away from Petitioner, and that Petitioner was stabbed during a struggle.
An Intervention Order was entered that prohibited contact. At that time, Petitioner agreed that Respondent would have custody of TJR, and that Respondent and TJR would live with Respondent's mother, as long as her mother did not drink any alcohol, as there were concerns the mother was an alcoholic. Because Respondent's mother began to drink, Respondent and TJR moved to Darwin, Australia, to live with Respondent's father. She did not notify Petitioner of this move.
Petitioner was able to locate Respondent, and the two began talking with each
other, despite the Intervention Order that prohibited such contact. Respondent
eventually moved to Morewell, Australia, after her current husband, Andrew Vargason
moved to Australia to be with Respondent. During this time, Petitioner did have not any
contact with TJR. Approximately one year later, Petitioner moved to Perth,
because he had lost his job and was unable to find another. Petitioner testified that he was also depressed, as he learned that Andrew Vargason, Respondent's husband, wanted to be TJR's father, and that he did not want Petitioner to have any contact with TJR. Petitioner testified that during this time period, he tried to commit suicide.
Petitioner testified that he tried to get the Intervention Order modified, but was
unsuccessful. Respondent testified that she received a call from Petitioner's mother, Christine Rowe, on December 19, 2009, during which Respondent was told that Petitioner was doing drugs and was planning on kidnaping TJR. In an application for an Intervention Order, Respondent made the following allegations: 1) that Petitioner's mother called and told her that Petitioner and his new girlfriend were planning on kidnaping TJR and that Petitioner was doing drugs; 2) "[Petitioner] found out I was talking to someone (my new husband) on the internet he yelled and choked me then pulled out a kitchen knife threatening to kill me while he was yelling at me I struggled to get the knife off him, he then lunged at me, it cut him (a small cut) I threw the knife, picked up my baby and ran to my mother's house down the street where I had the police called"; 3) Petitioner had raped her three times in 2006-07 in the State of Queensland; 4) Petitioner had been with girls under the age of 15 and that he is a pedophile; 5) Petitioner had forcibly shaken their son; 6) Petitioner was caught masturbating, while their son lay next to him on the bed.
The hearing on Respondent's application was held on January 8, 2010. Petitioner did not attend the hearing, although he did receive notice. An Intervention Order was entered on that date, prohibiting all contact between Petitioner and Respondent and TJR through January 7, 2012. The Order noted that Petitioner did not agree to the Order being made. After the January 2010 Intervention Order was entered, Petitioner filed a passport alert with the Australian passport authority. Shortly thereafter, Respondent filed an application for a passport for TJR. Around this time, Respondent had given birth to a daughter, and in her passport application indicated that she and her husband wanted to travel to Minnesota to visit her husband's grandmother. Respondent noted in the application that she planned on being in the United States for three months. Notwithstanding the alert filed by Petitioner, Respondent was able to obtain a passport for TJR without Petitioner's consent, under the "special circumstances" exception due to the allegations of abuse and the Intervention Order.
Respondent, with her husband and both children, left Australia on July 19, 2010.
After learning that Respondent and TJR were in the United States, and that
Respondent did not plan to return to Australia, Petitioner instituted proceedings for the
return of TJR with the Central Authority in Australia, which lead to the Petition being
filed electronically on July 19, 2011 and entered into the court docketing system on July
20, 2011.
Petitioner asserted that at the time of removal, he had rights of custody to TJR and was exercising or attempting to exercise those rights, citing to the Australia Family Law Act 1975 (Commonwealth) ss 60CA, 60CC and the Family Court Act of 1997 (State of Western Australia) 66A, 70A and 66C. Petitioner also submitted an affidavit of applicable law in accordance with the Hague Convention, executed by a lawyer of the Australian Capital Territory Supreme Court, which stated that section 69 of the Family Court Act 1997(WA) and 111B(4)(a) of the Family Law Act of 1975 is that "both parents of a child retain joint parental responsibility under Australian law and 'rights of custody' for purposes of the Convention for their child until their child reaches the age of 18 years, unless parental responsibility has expressly been taken away by an order of the court."
The Court reviewed the Intervention Order dated January 8, 2010, and
found that the Order in no way addressed parental responsibility or rights of custody. It was temporary in nature, and it responded only to specific threats alleged by the
Respondent, that were unchallenged by Petitioner at the time of issuance. Accordingly,
the Court found that the Intervention Order did not terminate Petitioner's rights of
custody to TJR.
The Court declined to find that in issuing a passport to TJR, the Australian
passport authority made a de facto determination as to Petitioner's parental rights for
purposes of a claim under the Hague Convention. There was nothing in the record
to support Respondent's assertions that the passport authority made any de facto
custody determinations for purposes of a claim under the Hague Convention.
Respondent argued that even if Petitioner did have rights of custody under the
Convention that were breached, Petitioner did not plead that he was exercising those
rights at the time and had not plead that he had or sought regular contact with TJR.
The Court observed that in determining whether a petitioner is exercising rights of custody for purposes of a claim under the Hague Convention, other courts have interpreted "exercise" very broadly. Respondent admitted that Petitioner provided support for TJR on at least one occasion. Petitioner testified that he provided regular support payments, and had made sporadic attempts to contact Respondent over the last two years. Petitioner filed a passport alert, to prevent the Respondent from obtaining a passport for TJR without his consent. While these attempts did not establish regular contact with TJR, they demonstrated that Petitioner did not clearly and unequivocally abandon his custody rights to TJR. The Court found that for purposes of Petitioner's claim under the Hague Convention, Petitioner had custody rights that he was attempting to exercise at the time, Respondent removed TJR from Australia, and that such removal was in breach of Petitioner's rights. Accordingly, the Petitioner established a prima facie claim for return of TJR to Australia.
Respondent argued that there was a grave risk that TJR's return to Australia would expose him to physical or psychological harm or otherwise place him in an intolerable situation. Respondent claimed that Petitioner physically and psychologically abused her when they were together. Respondent testified that early in their relationship, Petitioner raped her on three occasions; once when she was three months pregnant with TJR. Respondent further alleged that Petitioner was very controlling; that he would isolate her from family and friends, and that he would control the money she received from the government, and that he forced her into prostitution. Respondent also testified that Petitioner abused her emotionally by telling her she was fat or that she looked too old. Respondent also claimed that Petitioner choked her and threatened to kill her with a knife. Respondent further alleged that on three occasions, she witnessed Petitioner shake TJR. Respondent further testified that Petitioner had inappropriate contact with minor girls on numerous occasions, and that she believed Petitioner sought out 11 year old prostitutes when he told Respondent he was going out to get food for TJR.
In support of her claim that TJR would face a grave risk of harm if returned to
Australia, Respondent presented expert testimony from Dr. Jeffrey Edleson and also offered an expert opinion from Dr. David Matthews. In response to questions from the Court, both Dr. Edleson and Dr. Matthews conceded that they did not have complete information before them concerning the abuse inflicted by Respondent's current husband on both Respondent and TJR. Respondent did not dispute that she suffered serious abuse at the hands of her husband, and evidence had been submitted showing that she had a protection order against him. Respondent testified to the fact that her husband had physically abused her, and that for a time, she and TJR could no longer live in the home she shared with her husband and her in-laws. Because neither expert had complete information before them concerning the abuse by Respondent's husband, Respondent's new relationship, and TJR's current living arrangements, the Court found their expert opinions unreliable.
Respondent's sister-in-law, Ashlee Fairbanks-Vargason, testified that she witnessed Respondent's husband's abuse towards Respondent and her children. She said she witnessed both TJR and his younger sister being injured by Andrew Vargason and that on occasion, Respondent would vent her frustration on TJR. One evening, Andrew Vargason had hit TJR with a belt, and later in the evening, Ms. Fairbanks-Vargason observed bloody welts on TJR's buttocks. She also recounted conversations she had with Respondent concerning Respondent's relationship with Petitioner. Respondent told her that the parties argued a lot, and were not good together, but that Respondent was not scared of Petitioner however, was afraid of her husband, Andrew. Ms. Fairbanks-Vargason also testified that Respondent had told her that she lied about some documents in order to get a passport for TJR, and that she indicated that the allegations of prostitution was one of the false documents, as was the contention that Andrew's grandmother was dying. Ms. Fairbanks-Vargason testified that Respondent had, before this Petition was filed, told her that she considered trying to work out an agreement with Petitioner to allow them to share custody of TJR and Respondent talked about sending TJR to Australia full- time. She was also aware that the parties spoke frequently on the telephone. Ms. Fairbanks-Vargason also testified that Respondent had been involved with another man, Jonathan Jackson, since March or April, 2011. Ms. Fairbanks-Vargason testified that in May 2011, Andrew's mother asked both Respondent and her son to leave her home. Respondent and TJR left the Vargason home, without her young daughter, and went to Jackson's home on a reservation near Detroit Lakes. Respondent had called her and asked her to pick up TJR, because she did not believe TJR was safe there, and that child protection had been there. TJR was retrieved from the Jackson home, but Respondent remained there with Mr. Jackson, instead of leaving with TJR. Respondent also told her that Mr. Jackson was very controlling and that he had pushed her and has gotten physical during arguments.
The District Court observed that in determining whether the Article 13(b) exception applies, the Court must also take into consideration "the people and circumstances awaiting that child in the country of [the child's] habitual residence." Nunez-Escudero 58 F.3d at 378. Petitioner informed the Court that he currently lived in Perth, Australia, in a home with his fiancee and their child, and that TJR would have his own room in this house. The evidence shows, however, that TJR had never visited Perth, and had not met any of Petitioner's family or his fiancee.
The Court noted that Respondent told her sister-in-law that she was not scared of Petitioner, and that she considered sending TJR to Australia during summers, or during the school year, or even full-time. The fact that Respondent did not fear Petitioner was further supported by the fact that, despite Intervention Orders prohibiting contact, the parties frequently contacted each other, and Respondent never reported such contact to the police.
Although there was evidence that while they were together, the parties had a contentious relationship, and that Petitioner physically and emotionally abused Respondent, the Court stated that the Article 13(b) exception applies only where the evidence is clear and convincing that the child is subject to a grave risk of physical or psychological harm or would otherwise be placed in an intolerable situation, if returned to Australia. On the record before the Court, the evidence did not meet this threshold.
The Court observed that Article 12 of the Hague Convention provides that where the petition is filed more than one year after the alleged wrongful removal of the child, return is not warranted if it is demonstrated, by a preponderance of the evidence, that the child is now settled in his new environment. In this case, the Respondent left Australia on July 19, 2010. Counsel for Petitioner submitted the Petition, Exhibits and IFP Application to the Clerks Office on the evening of July 19, 2011, but the case was not opened until July 20, 2011, pursuant to the Electronic Case Filing Procedures for the District Court, Section II(A)(2)(d). Assuming, without deciding, that the action was filed more than a year after the wrongful removal and the well-settled exception applied, the Court found that at this time, Respondent failed to establish that TJR was well-settled in Minnesota. TJR was almost five years old, and he left Australia at age three. Respondent admitted that her husband was physically abusive towards her, and there was testimony that her husband physically abused TJR as well. Respondent was now separated from her husband, but was involved with another man, who, as told to Respondent's sister-in-law, was controlling and physical during arguments.
Respondent testified that she had since moved into a safe, undisclosed location, had separated from her husband, and had enrolled TJR in school and was trying to obtain employment. This evidence, was not enough to show that at this time, TJR was
well-settled, given the uncertainties that existed due to Respondent's pending divorce,
potential custody issues concerning Respondent's young daughter, and Respondent's
unemployed status.
The Court observed that despite the fact that the parties had been apart since May 2008, and Intervention Orders have been entered, neither party commenced family court proceedings in Australia to make the appropriate custody determinations concerning TJR. The Court believed that such proceedings must be commenced in Australia, prior to TJR's return, to ensure that the Australian court system will be able to assert jurisdiction over the parties and TJR, and to enter the appropriate orders providing for a swift resolution of custody issues and to see to TJR's well-being. The Court granted the Petition, contingent upon Petitioner providing proof to the Court, within thirty days of the date of its Order, that he had commenced child custody proceedings in Australia.