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Thursday, August 15, 2013

Walker v Walker, 2013 WL 1110876 (N.D.Ill.) [Australia] [Habitual Residence] [Age & Maturity] [Petition Granted]

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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