Morgan v Morgan, 2017 WL 4512487 (N.D. Texas, 2017) [Australia][Habitual residence][Petition denied]

In Morgan v Morgan, 2017 WL 4512487 (N.D. Texas, 2017) the petition seeking the return of the minor child T.P.M. to Australia was denied. Petitioner, Edward Tyler Morgan (Tyler), and Respondent, Lesli Kay Morgan (Lesli), were both citizens of the United States. The district court found that Lesli and Tyler were married in Texas, in 2012 and resided their entire lives in the United States prior to 2013. In 2013 Lesli and Tyler, along with A.K.S., Lesli’s minor daughter from a previous relationship, moved from the United States to Australia after Tyler received a job offer in that country. Tyler signed an employment contract with Stryker Australia for a 3-year commitment, and Australia issued a 4-year visa to Tyler, Lesli, and A.K.S.  Lesli and Tyler informed their family and friends that they were temporarily moving to Australia for a 3-year period due to Tyler’s employment opportunity. While living in Australia, Lesli and Tyler voted in at least one United States election and certified to the government of the United States that they were residents of this country. .P.M. was born in July of 2015 in Hobart, Tasmania, Australia. T.P.M. was not an Australian citizen. T.P.M. was a United States citizen. T.P.M. did not have his own visa. Lesli and Tyler never took any steps to apply for citizenship for T.P.M. or to otherwise make T.P.M. a lawful resident of Australia.  During the majority of their time in Australia Lesli was increasingly anxious to return to the United States as she and Tyler had agreed at the inception of their move. Lesli was scheduled to return to the United States with A.K.S. and T.P.M. for a wedding in March of 2017. Tyler purchased airline tickets for their travel. On or about February 26, 2017, Lesli and Tyler fought about Lesli’s intention to remain in the United States permanently following the wedding. On February 28, 2017, Lesli packed bags for herself and the children while Tyler was at work and drove to stay at a hotel. Lesli sent Tyler a video informing him that she and the children were safe but that she intended to return to the United States.  Lesli and the children went to the airport on March 1, 2017, and were temporarily detained by Australian immigration authorities while attempting to leave the country. Immigration authorities informed Lesli that T.P.M. did not have a valid visa and was in the country illegally. They informed Lesli that T.P.M. would not be allowed to return to Australia without a visa. Lesli, A.K.S., and T.P.M. returned to the United States at the beginning of March 2017.

The district court observed that the United States Court of Appeals for the Fifth Circuit has said that “[t]he inquiry into a child’s habitual residence is not formulaic; rather it is a fact-intensive determination that necessarily varies with the circumstances of each case.” Delgado, 837 F.3d at 578. The Fifth Circuit has adopted an approach to determine a child’s habitual residence “that begins with the parents’ shared intent or settled purpose regarding their child’s residence.” (quoting Larbie v. Larbie, 690 F.3d 295, 310 (5th Cir. 2012)). The shared intentions of the parents are dispositive when the child is so young that he cannot decide the issue of residency for himself. In this case, T.P.M. was 23 months old and  incapable of deciding the issue of residency for himself. The intention of his parents regarding his habitual residence was therefore dispositive. Delgado, 837 F.3d at 578. The court found that Lesli and Tyler intended to move to Australia for a 3-year period and intended to return to the United States upon the expiration of Tyler’s employment contract. This was supported by (1) the testimony of people they told this to; the conduct of Lesli and Tyler in not obtaining lawful residency status for T.P.M. in Australia after his birth; Lesli’s and Tyler’s assertions to the United States government regarding their residency when voting in a United States election. Lesli and Tyler never reached a definitive agreement to extend their stay in Australia and had not demonstrated a fixed intention to remain there beyond the expiration of their current visa. Lesli and Tyler never reached any agreement to make Australia the habitual residence of T.P.M. and did not take any actions consistent with an intent to make Australia the habitual residence of T.P.M. T.P.M. was not legally residing in Australia prior to his removal to the United States and was not legal to return to Australia as of June 12, 2017. The Court held that Australia was not T.P.M.’s habitual residence and dismissed the petition.