In Walker v Walker, 2013 WL 1110876 (N.D.Ill.) in early May 2011, Iain Walker,
a citizen of Australia, filed suit against his then wife Norene Walker, a United
States citizen, seeking to compel her to return their three children to
Australia. In September 2011, another judge of the court conducted a bench trial
on the petition, and, on October 20, 2011, he ruled in Norene's favor. The court
of appeals in Walker v. Walker, 701 F.3d 1110, 1114 (7th Cir.2012), overturned
as insufficiently supported the district judge's determinations that the United
States was the children's habitual residence at the relevant time; that Iain had
abandoned the children and was not exercising his rights of custody at the
relevant time; and that Iain had consented to the children remaining in the
United States. The court remanded the case for further proceedings setting forth
in its opinion the crucial issues which were not fully developed in the previous
proceedings, and directed that the district court resolve at least the following
questions: 1. What was Iain and Norene's mutual intent regarding the trip to the
United States in June 2010? Was this intended as an extended vacation or as a
permanent move? 2. What has been the precise nature of Iain's participation in
the Illinois divorce proceedings, and to what extent, if at all, does this
participation indicate that Iain either consented to or acquiesced in the
children's retention in the United States? 3. To the extent the children have
"attained an age and degree of maturity at which it is appropriate to take
account of their views," [ Hague Convention] Art. 13, what is the children's
attitude to being returned to Australia? In conducting this inquiry, we caution
that the district court must be attentive to the possibility that the children's
views may be the product of "undue influence" of the parent who currently has
custody. 51 Fed.Reg. 10510.
The district court observed that the first step, was to determine the
children's habitual residence at the relevant time. As the Seventh Circuit
stated in its decision in this case, to prevail, Iain was "required to show that
Australia was the children's habitual residence at the time of their retention
in the United States." Walker, 701 F.3d at 1119. It found that the time of the
children's retention in the United States by Norene was, at the latest, late
January 2011. Norene testified that this was when she first formed the intention
to remain in the United States and not return the children to Australia. It was
undisputed that the Walkers resided in Australia from 1998 through June 2010. In
a case of alleged wrongful retention, a court determines a child's habitual
residence "by asking whether a prior place of residence was effectively
abandoned and a new residence established by the shared actions and intention of
the parents coupled with the passage of time." Walker, 701 F.3d at 1119."
Because the parents often dispute their intentions, the court should look at
actions as well as declarations in determining whether the parents shared an
intent to abandon a prior habitual residence." Iain had proven by a
preponderance of the evidence that the Walkers did not have a shared intention
to abandon their residence in Australia and establish a new residence in the
United States. This proposition was amply established by the testimony of both
parties as well as their earlier statements and actions and the circumstantial
evidence. Iain and Norene were married in Chicago, where Norene's parents lived,
in 1993. They lived in Seattle, Washington until 1998, and their first child was
born there in 1997. They moved to Perth, a city in Western Australia, in 1998,
when their first child was about one year old. Iain and Norene's two younger
children were born in Australia in 1999 and 2001. Norene testified that she and
Iain initially intended to live in Australia for five years and then relocate to
the United States. She testified that she agreed to marry Iain only on that
condition. They actually lived together in Australia, however, for twelve years,
until 2010. As the Seventh Circuit stated in its ruling, and as the evidenced
presented to this Court showed, [o]ver this period, they and their children
appeared to be well-settled: they owned a home, furniture, and a dog named
Chubba; the children attended school, had friends, and participated in
activities; and Iain worked as a software test engineer while Norene cared for
the children. Iain, Norene, and their children traveled to the United States in
June 2010. The Seventh Circuit stated, and the Court found based on the evidence
presented, that "[w]hen they left Australia, both Iain and Norene expected that
Norene and the children would remain in the United States for six months to one
year." Norene contended, however, that this trip was intended "as an extended
prelude to a permanent move to the United States." Norene testified that
she married Iain on the condition that after five years, they would relocate in
the United States. She contended that the June 2010 trip represented the
fulfillment of that condition, or at least the initial steps toward its
fulfillment. Iain contended, by contrast, that they intended for Norene and the
children to live with Norene's parents in Chicago while the family demolished
their house in Perth and built a new one, at which point Norene and the children
would return to Australia and resume living there indefinitely.
It was undisputed that their home in Perth was demolished and that
construction of two new homes on the property was to begin thereafter. Iain said
that the family planned to live in one; Norene said they planned to sell both.
The evidence overwhelmingly showed that Iain and Norene did not have a "shared
intention" to abandon residence in Australia and establish residence in the
United States at any time relevant to this case. The Court found credible Iain's
testimony that he did not intend to relocate himself or the family permanently
to the United States and that the purpose of the extended stay in this country
was to allow demolition and reconstruction of the family's home in Perth. The
Court also found credible Iain's testimony that he did not participate along
with Norene in what she described as initial efforts to look for a home in the
United States. The Court did not doubt that Norene may have wanted to eventually
establish residence in the United States. The Court found that Iain and Norene's
mutual intent regarding the June 2010 trip to the United States was that it was
not a permanent move or even a prelude to a permanent move. Rather, it was a
temporary stay. At most the trip was an extended leave of absence from Australia
with the intent to return to their permanent residence that country. There was
no shared intention to abandon Australia as their residence and establish
residence in the United States. The children's habitual residence was Australia
as of the time of the alleged wrongful retention.
The Court found that Norene's retention of the children was in breach of
Iain's custody rights under Australian law. It was not seriously disputed that
Iain had, at the relevant time, the right of joint custody of the children under
Australian law. The Court considered Norene to have forfeited this argument due
to the utter absence of any reasonable effort by her counsel to support it;
leaving it to the Court to wade through a complex and detailed 700-plus page
statute did not cut it. The Court found that Iain had met his burden of
providing that Norene's retention of the three children, which took place at the
latest in late January 2011, breached his rights of custody under the law of
Australia, which is where the children were habitually resident immediately
before the retention. The Court also found that Iain was actually exercising his
rights of custody up through and at the time of Norene's retention of the
children.
The district judge who conducted the first trial concluded that Iain had
abandoned the children after returning to Australia in July 2010 and at the
latest in January 2011. This conclusion appeared to have been based largely on
evidence that the Seventh Circuit concluded should have been excluded for this
purpose. One way or another, however, the Court disagreed with the previous
judge. The admissible evidence was all to the contrary. There was no abandonment
of the children by Iain, and he was actually exercising his custody rights at
the relevant time. The Court concluded that Iain established the necessary
elements of a claim of wrongful retention under article 3 of the Hague
Convention.
Norene contended that Iain had consented to, or subsequently acquiesced in,
the retention of the children by Norene in the United States. She failed to
prove either by a preponderance of the evidence, and the evidence was not close.
Iain took prompt steps to seek relief via the Hague Convention.He has
consistently and diligently pursued his petition for relief under the Convention
and ICARA ever since that time, through the present day. In arguing
acquiescence, Norene relied on Iain's participation in the Illinois divorce
proceedings, and perhaps on his later non-participation in those proceedings.
Iain participated in the Illinois divorce proceedings via counsel until
approximately the end of January 2012. Nothing about his participation in the
case suggested acquiescence in the children's retention in the United States.
There was nothing about Iain's actions that suggested that this represented
acquiescence in the children's retention in the United States. Even while
ceasing participation in the Illinois divorce case, Iain continued to pursue
vigorously in the court and on appeal his challenge to Norene's retention of the
children.
The third question posed by the court of appeals involves the application of
the child objection provision of the Hague Convention. Article 13 of the Hague
Convention states that a judicial authority "may also refuse to order the return
of the child if it finds that the child objects to being returned and has
attained an age and degree of maturity at which it is appropriate to take
account of its views."Hague Conv. art. 13. During the initial trial before the
previous judge, each of the three children was questioned in the presence of
counsel but not the parties, informally, while sitting around a table. The Court
followed the same practice at the trial just conducted. The three children were
a fifteen year old girl who would turn sixteen on March 18 of that year, a
thirteen year old boy who would turn fourteen in August, and an eleven year old
girl who would turn twelve in June.. The older daughter had a sheet of
handwritten notes that she consulted from time to time. All of the children were
doing well in school, better than they were doing during the period shortly
after they first came to the United States. All of them were involved in
activities here. They expressed the view that there were better opportunities
here than in Australia. The children all reported that they like living here and
with their mother. They also all reported that they had frequent contact with
their father by telephone and Skype. The oldest daughter still had contact with
some of her friends from Australia, and all of them remembered living there and
that they liked it when they were there. The middle child stated that he was a
bit angry with his father and disappointed that his father had "ordered a
retrial," which he said he had learned from his mother. (The Court attempted to
explain to him that the "retrial" had been ordered by judges, not by his
father.) All three of the children expressed their desire to remain in the
United States, with their mother. The Court found that the two older children
had reached an age and maturity at which it was appropriate to take account of
their views. The Court assumed for purposes of discussion that the younger
daughter likewise has reached a sufficient age and maturity for the article 13
provision to apply.
It observed that a court must take care not to give significant weight to a
child's views if the child has been unduly influenced by the respondent parent.
See, e.g., Walker v. Kitt, --- F.Supp.2d ----, 2012 WL 5237262, at *5 (N.D.Ill.
Oct. 24, 2012) There was evidence of that here. First, as indicated earlier, the
middle child's apparent anger with his father arose rom his mother having told
him that his father "ordered a retrial." Second, each of the children made
reference to better "opportunities" for education and otherwise, using very
similar terminology. The Court might have regarded this as independently derived
had it come only from the Walkers' oldest daughter, a high school sophomore, or
perhaps from their son, an eighth grader. After the two older children spoke,
however, the youngest child, after some initial introductory questions, began
her statement about the relevant topics by talking about better education and a
lot more opportunities here than in Australia. Given the three children's
remarkably similar statements in this regard, the Court was constrained to
conclude that their statements were subject of some degree of influence, and it
was reasonable to infer that this was from their mother. Even were that not the
case, although the Court found the children quite likeable and respects their
views, the circumstances did not warrant giving their views controlling weight.
As of the date of the trial, they had been in the United States for just three
months short of three years. They had become acclimated to living here, and they
had become settled in. It was both understandable and predictable that they did
not now wish to relocate. It wsa likewise understandable and predictable that
they had a far closer connection with their mother, with whom they have lived
for this extended period, than with their father. But all of this was, at least
in significant part, a direct result of their wrongful retention here by Norene.
As the Third Circuit noted in Yang,"[a] lengthy wrongful retention could enable
the child to become comfortable in his or her new surroundings, which may create
a desire to remain in his or her new home." Yang, 499 F.3d at 280. In such a
case, "application of the exception ... would reward [a respondent] for
violating [a petitioner's] custody rights, and defeat the purposes of the
Convention."
The Court entered judgment in favor of the petitioner and directed the
respondent to immediately return the parties' three children to petitioner in
Australia.
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