In Lyon v Lyon, 2012 WL 1970363 (D.Kan.) petitioner Kevin Lyon filed a Verified Petition for Return of Child to England and Issuance of Show Cause Order seeking the return of his three-year-old son, F.M.S.L., to England under the Hague Convention. Mr. Lyon contended the respondent, Lisa Moreland, Lyon, the child's mother, unlawfully removed F.M.S.L. from England to Kansas in August 2011. Ms. Moreland-Lyon contended she did not wrongfully remove the child under the Act, that Kansas was the child's habitual residence, and that the Kansas state court had jurisdiction to determine the child's custody. She also argued that the well-settled exception applies, or that Mr. Lyon consented and acquiesced in F.M.S.L.'s removal. The court granted Mr. Lyon's motion and ordered that F.M.S.L. be returned to England.
Mr. Lyon and Ms. Moreland-Lyon met each other while she was on vacation in England in 1995. He was a citizen of the United Kingdom, and she was a citizen of the United States. By the end of 1997 or early 1998, Ms. Moreland-Lyon moved into Mr. Lyon's home in Prestwich, Manchester, England. After dating for four years, the couple married on October 28, 1999. For the next ten or eleven years, the couple lived in Prestwich. But it was normal for Ms. Moreland-Lyon to visit her mother in Kansas annually. While in England, Ms. Moreland-Lyon upgraded her academic qualifications in a school in the United Kingdom and obtained residency.
In March 2009, she gave birth to F.M. S.L. in Manchester. She stayed in the
United States for some of the pregnancy but traveled back to England in January 2009, in part to take advantage of England's universal healthcare system and so that F.M.S.L. would be eligible to receive "child benefit," which is provided to all children born in England. Half of this child benefit was deposited regularly into Ms. Moreland-Lyon's English bank account for F.M. S.L.'s benefit. Mr. Lyon has also deposited money in this bank account for F.M.S.L. for the last three years. Since birth, F.M.S.L. has lived in both the United States and England at various times. In the fall of 2009, Ms. Moreland-Lyon traveled with F.M.S.L. to the United States to attend the Renaissance Festival as she had done in the past. During their time in Kansas, they stayed with Ms. Moreland-Lyon's mother and stepfather in Overland Park, Kansas. Mr. Lyon visited for about a week in October. Ms. Moreland-Lyon and F.M.S.L. returned to England in early December. The couple spent Christmas in Manchester. From December 2009 to August 2010, Mr. Lyon, Ms. Moreland-Lyon, and F.M.S .L. lived in England in the couple's home and did typical family things. In early May 2010, the couple was outbid on a home they were looking at in Prestwich, which upset Ms. Moreland-Lyon. She was eager to move out of their home in Prestwich to this larger home nearby.
Ms. Moreland-Lyon and F.M.S.L. traveled back to Kansas for the Renaissance Festival in August 2010. The plan was for Ms. Moreland-Lyon to remain in Kansas for the duration of the festival and to return to England by October 28. She did not return by that date and decided to remain in Kansas longer. Ms. Moreland-Lyon's mother persuaded her to return to England with F.M. S.L. on May 11, 2011.
Ms. Moreland-Lyon visited the United States for the 2011 Renaissance Festival. She and her husband’s agreement provided that Ms. Moreland-Lyon would leave for the United States on August 4, 2011, and return to England on December 11, and that Ms. Moreland-Lyon and F.M. S.L. would return to the United States on February 1, 2012, and stay through August 14. Ms. Moreland-Lyon testified that she signed the agreement under duress because it was the only way she would get F.M.S.L.'s United States passport returned to her. On August 4, Ms. Moreland-Lyon and the child flew to Kansas. Mr. Lyon drove them to the airport and paid for the tickets. Mr. Lyon traveled
to Kansas in October. During the visit he met with Barbara Lyons, Director of the Johnson County Montessori Preschool and Day Care. The child was currently enrolled and attending the preschool. On December 9, Ms. Moreland-Lyon informed Mr. Lyon that she was not going to return to England on December 11 unless she had assurances from him that he would abide by the terms of the parties mediated agreement. Mr. Lyon provided several written assurances that he would abide by the agreement, yet Ms. Moreland-Lyon has refused to return to England with F.M.S.L.
The child was presently located in the District of Kansas, living with Ms. Moreland-Lyon in Overland Park. As in England, F.M. S.L. had a pediatrician and dentist in Kansas, and was flourishing in his environment. In December 2011, Ms. Moreland-Lyon initiated divorce proceedings against Mr.
Lyon in Kansas state court. The court entered Ex Parte Temporary Orders providing for rights of custody and access to Mr. Lyon and ordered the parties to participate in mediation to come up with a permanent parenting plan. A Decree of Divorce was entered in the case on April 16, 2012. The court found that Ms. Moreland-Lyon and the child "have been actual residents of the State of Kansas since August 3, 2010."The court stayed ruling on the custody of the child pending the outcome of the present Petition for Return of Child.
Mr. Lyon filed a Petition on March 23, 2012. The Court found that his habitual residence was England. F.M. S.L. had traveled back and forth from England to Kansas several times. Since birth he lived in England for approximately 16 months and Kansas for 14 months, not including the last 10 months since he was removed from England. The total number of months F.M.S.L. spent in each country was not determinative of the habitual residence issue. As such, the court had to look to the parents' conduct, intentions, and any agreements they may have made regarding the child's living arrangements before and after removal. It was clear from the testimony that England was the couple's home throughout their marriage. Ms. Moreland-Lyon lived in England throughout the marriage except during her trips to the United States to work at the Renaissance Festival and to substitute teach. But those trips were relatively short in duration. Mr. Lyon continued to live and work in England full-time and only traveled to the United States for brief vacations. Additionally, F.M.S.L. was born in England. He lived in England for the first five months of his life, and returned to the United States only for the Renaissance Festival in 2009, 2010, and 2011. During those three years the plan was that Ms. Moreland-Lyon would reside in the United States with F.M.S.L. during the Renaissance Festival as she had done in the past before he was born. Each year, Ms. Moreland- Lyon unilaterally extended those stays in the United States without Mr. Lyon's consent.
Ms. Moreland-Lyon's changed intentions were the sole reason F.M.S.L. was away from England for long periods of time, and this court found that her unilateral actions did not change F.M.S.L.'s habitual residence. See Mozes, 239 F.3d at 1077. Therefore, England was F.M.S.L.'s habitual residence.
It was undisputed (1) that the parties were married when Ms. Moreland-Lyon removed F.M.S.L. from England, (2) that Mr. Lyon is F.M.S.L.'s father, (3) that the parties divorced on April 16, 2012, (4) that no court has ordered custody in this matter, and (5) that the parties had an informal agreement regarding visitation. Mr. Lyon has rights of custody under English law under the Children Act 1989 and the Child Abduction Act 1984. Both acts provide that couples married at the time of a child's birth have joint parental responsibility for the child. Ms. Moreland-Lyon did not contest that her removal breached these custody rights. Therefore, Mr. Lyon had custody rights to F.M. S.L., and Ms. Moreland-Lyon's removal of the child to the United States violated those rights. It was also uncontested that Mr. Lyon was exercising his custody rights.
The Court rejected Ms. Morlands "well-settled" defense finding that the child was here less than a year. Regardless, the court was not persuaded that F.M. S.L. was well settled in Kansas simply because he had a doctor, dentist, a preschool, and people looking after him in Kansas. The facts indicated F.M.S.L. had those things in England too. There was no dispute that F.M.S.L. was doing well in Kansas or that he was acclimated to living there. But he also had acclimated to life in England, and he was young enough that he could grow accustomed to nearly any location within a short period of time. "[I]n the abscence of settled parental intent, courts should be slow to infer from [the contacts noted above] that an earlier habitual residence has been abandoned." Mozes, 239 F.3d at 1079. For these reasons, the court found that the well-settled exception did not apply.
The court observed that it was not required to return the child if it found that the respondent established that the petitioner consented to or acquiesced in the removal. The consent defense requires that the respondent show that the petitioner consented to the removal before the removal. Acquiescence focuses on the petitioner's conduct after removal. Mrs. Moreland-Lyon argued that Mr. Lyon consented to the removal in August 2011 because he drove her and F.M.S.L. to the airport when they left England. These actions did not indicate that Mr. Lyon consented to F.M. S.L.'s permanent removal from England. Rather, Mr. Lyon did not really have a choice in the situation. Under the mediation agreement, Ms. Moreland-Lyon and F.M.S.L. were scheduled to leave for the United States. Mr. Lyon merely did what was in his nature-he drove his son and wife to the airport because he believed it was the right thing to do.
Ms. Moreland-Lyon argued that Mr. Lyon acquiesced in the removal by meeting with the Montessori school in Johnson County. Yet this did not indicate Mr. Lyon's acquiescence to F.M.S.L. living permanently in Kansas. Mr. Lyon testified that he looked at the school and ultimately enrolled his son there so that he could benefit from the opportunities the school provided. Enrollment in the school only showed that Mr. Lyon was trying to do the best for his son despite the couple's marital problems. Thus, the acquiescence argument failed.
Monday, June 18, 2012
Uzoh v Uzoh, 2012 WL 1565345 (N.D.Ill.)) [England] [Grave Risk of Harm] [Unclean hands]
In Uzoh v Uzoh, 2012 WL 1565345 (N.D.Ill.)) petitioner Chizoba Christopher Uzoh was "the father," and respondent Chidinma Akachi Uzoh was "the mother of two young children who lived in the United States without the consent of their father, a Nigerian national who resided and practices medicine in England. The mother was a Nigerian national who resided with her husband in England until May 9, 2011. The mother overstayed her tourist visa to the United States; her visa expired on November 9, 2011 and she was subject to deportation. However, she filed an asylum claim after
deciding not to return to the family home in England. Her asylum request was initially denied on December 8, 2011, with the statement; Material inconsistency(ies) within your testimony. The mother's present legal residency was far from settled. This was apparently a preliminary rejection; the notice also stated: This is not a denial of your asylum application. A removal hearing was set on April 4, 2013.
On December 27, 2011, the court granted the father's request for a rule to show cause ordering the mother to appear before the court with the children. The mother and father are husband and wife. Both are Nigerian nationals. They were married in Nigeria in 2008, but their marital home was in Bristol, England, where the father practiced medicine with the National Health Service and the mother worked for a victims' rights organization.
Before the birth of their first child on August 31, 2009, the father arranged for the mother to fly from England to Denver, Colorado, where their daughter was born. The mother and infant stayed with the father's sister. On October 22, 2009, the mother returned to the family home in England with their daughter in accordance with the couple's plans. The agreed purpose for the trip was to provide the child with the benefits of United States citizenship. Family life resumed in England. In time, a second child was expected. The couple agreed to follow the same plan for the birth to take place in Denver in order to secure United States citizenship for the new baby. The father purchased round trip tickets, and again the father's sister was to host the wife and their children. The mother traveled from England to Denver on May 9, 2011, accompanied by their daughter. The couple's second child, a son, was born on June 25, 2011. The father expected his wife and children to return within several months of the baby's birth. There were cordial communications between the parents immediately after the baby's birth. The father repeatedly inquired as to when his family would return home. The couple's relationship turned sour on July 27, 2011, when the mother informed the father she was in no hurry to return to England with the children. The father responded with a series of emails, evidencing his anger and frustration. The early emails implored the mother to return with the children, and to at least "make sure you return my kids." At the same time, he threatened to cancel the credit card he had given her if she did not come home. Id. She did not respond. Three days later, he cancelled the credit card because, as he later told his father-in-law, she threatened him with not returning to the United Kingdom with their children.
On August 9, 2011, the mother abruptly left her sister-in-law's Denver home with the children. She did not inform the father or her sister-in-law where she was taking the children. The father's reaction to his wife's disappearance with the children was acute rage, evidenced by his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria. It was evident from the emails that the father believed his father-in-law was financially and emotionally supporting the mother's desertion of the marriage and abduction of their children. The father-in-law was an obvious advocate for his daughter. At trial, the father admitted that he "hacked" into his father-in-law's email account, deleting some communications with the mother.
At trial, the father admitted he sent the threatening emails. He explained he was outraged and depressed by the unexpected loss of his family and especially by his wife's refusal to communicate with him. The court found that the father's emails were inexcusably demeaning and threatening. Albeit, aggravated circumstances were involved: the sudden loss of his children and his wife's refusal to even inform him where their children were located. Given this situation, the father's bad behavior in sending emails to the mother and his father-in-law did not support a reasonable inference the
father has a proclivity for violent or abusive behavior. The mother terminated all contact with the father on October 31, 2011. A preponderance of the credible evidence established the mother unilaterally denied the father's parental and custody rights under English law.
The mother attempted to justify her conduct by claiming the father physically and mentally abused her while she lived with him in England. She related three instances of physical abuse, claiming two happened while she was pregnant and one purportedly took place in the presence of their daughter, then less than two years old. The father denied her accusations. The court did not find credible or trustworthy the mother's testimony that she fled from England to the United States out of fear of her husband. The mother was a well-educated and well-spoken university graduate, and she worked as a banker in Nigeria before her marriage. During and after the claimed abuse, she was a divisional administrator for a charitable organization that assisted victims and witnesses of crime, including domestic violence, in England and Wales. She had regular and frequent contact with British law enforcement officers and social services agencies in the course of her work. Yet she never complained to a law enforcement officer or social services agency about mistreatment. This is astounding because she is a sophisticated person on abuse issues and victims' rights. She did not testify that she suffered any actual injury, nor did she seek medical treatment or counseling for the purported assaults. When the mother traveled to the United States with her young daughter, it was for the purpose of providing United States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time was that the mother would use the round trip tickets to return home as
soon as she and the new baby could do so. She traveled on a tourist visa that was to expire in November 2011. She did not resign from her job until January 2012. Her elusive conduct after her son was born is far more revealing than her trial testimony.
The mother's demeanor in relating the three purported instances of violence was akin to testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same may be said of the trial testimony of her own father. Although he never witnessed the father inflicting harm on the mother, the father-in-law testified that she told him about the husband's alleged abuse. The court does not find the father-in-law's testimony probative or reliable, given the lack of foundation and personal knowledge, as well as his close relationship with the mother. There was no reliable evidence proffered that these attacks happened. More importantly, there was no evidence that the father posed
any threat whatsoever to the safety of his children.
The Court observed that Habitual residence may be established by the shared actions and intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th Cir.2006). The mother and father lived together in England during most of their marriage. The family's home was in England. Both parents were legal English residents and were employed in England. The mother did not resign from her job in England until January 2012, more than six months after traveling to the United States. The mother had an English drivers license reflecting the address of the couple's Bristol home. Their daughter received medical care in Bristol. Pet. Ex. 11 (reflecting also the child's Bristol home address).
She was enrolled in a local nursery school. Overwhelming evidence established that the daughter, like her parents, habitually resided in the United Kingdom. The son was born in the United States. Due to his mother's unilateral decision to remain in the United States against the father's wishes, the son had not lived in England. Nonetheless, at the time of the son's birth, the established family home was in Bristol, England. The father consented to the son's birth in the United States with the joint understanding that his wife would return to England with their children within several months. He purchased round trip airline tickets. The parents' joint intent for the son to live with the family in England was established by a preponderance of the evidence. The mother testified that she traveled to the United States for the express purpose of obtaining United States citizenship for the baby. This reason may have been a ruse, or she may have changed her own intentions after the baby's birth. The mother's reluctance to return to England was not disclosed to the father until she was due to return, several months after the son was born. She did not deny that the family home was in England, and that she lived and worked in England during her marriage until May 11, 2011. The only reason the son has not actually resided in England was the mother's decision to retain the children in the United States.
Birth in the United States does not automatically render the son's habitual residence as the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (Infant born in the United States did not acquire a United States habitual residence when the mother's habitual residence was in Sweden). A preponderance of the evidence established that the shared actions and intent of the parents before the son's birth was that he would reside in the family home in England. This was sufficient to show that the son's habitual residence was in the United Kingdom. The mother's argument that her son's habitual residence is in the United States lacked merit, given that his residence in the county since birth was due to her wrongful retention.
The father's assertion of parental custody rights under English law was uncontested at trial. The mother and father had a joint parental responsibility for their minor children, including the joint right to custody. The evidence was uncontested that the father exercised his joint custody rights with respect to his daughter before she was wrongfully retained in the United States. The family lived together, he provided for his daughter, and the family engaged in regular outings. The father never had contact with his son, who is an infant and is thousands of miles away due to the mother's wrongful conduct. The father repeatedly sought the return of his children and vigorously continues to do so through legal processes. The mother frustrated the father's efforts to exercise his joint right to custody of his children. A preponderance of the evidence establishes that the father had taken every reasonable (and a few unreasonable) means to exercise his joint custody rights.
The mother claimed the children would be at a grave risk of harm because of the father's capacity for violence. The record did not support her argument. The three contested acts of domestic violence she relied on were not credible, much less clear and convincing. She did not claim she suffered any resulting injuries. She never sought law enforcement intervention or complained to a social services agency, despite her work with victims of domestic abuse. Her testimony was implausible, and her father's testimony was based on hearsay. In addition, the mother relied on the father's threatening language in emails after she abducted the children, as a predictor of his capacity for violence. The emails were evidence of bad judgment, a mean spirit, and anger control problems. But the emails must be considered in context. His wife had just abducted the children in a foreign country, for awhile he did not even know where she had taken them, his wife ignored his demand that she bring the children home, and his father -in-law appeared to be supporting her wrongful behavior. The threatening "get even" emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal intrusion into his father-in-law's email account evidence of a grave risk of harm to the children. The father's anger was out of control and his brutish emails were inexcusable. However, this remote form of misbehavior was not clear and convincing evidence of a proclivity for actual violence. There was no evidence to suggest that he ever abused the children or that he presents a grave risk of harm to them.
The mother argued that the father's petition should be denied on account of unclean hands, ie., his bad conduct. She relied on evidence that the father intercepted her emails, which allowed him to know she had applied for asylum. The father then sent an email to her asylum attorney, threatening to expose (what he saw as) the fraudulent nature of his wife's asylum claim. The father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that the father also accessed her checkbook in England and used her funds. She again cited his admitted intrusion into his father-in-law's email account. The Court noted that an action under the Hague Convention is purely jurisdictional, it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention. The Hague Convention does not recognize unclean hands as a defense. Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010).
The Court also rejected the mothers Article 20 defense. Article 20 provides that a court may refuse to grant a petition under the Hague Convention if the return of the child would violate the United States' principles of human rights and fundamental freedoms. The mother argued that Article 20 was applicable for two reasons: the risk of harm created by returning the children to their father, who she alleges is abusive; and the possibility that the mother returning to the United Kingdom with her children would threaten the mother's pending application for asylum in the United States. The court pointed out that Article 20 is rarely invoked. This defense has never been asserted successfully in a published opinion in the United States. Here, there was no evidence that the children's human rights and fundamental freedoms would be in jeopardy in England in any way.
Article 13 of the Hague Convention provides that an abducted child need not be returned if the complaining parent consented or subsequently acquiesced in the child's removal or retention in another country. The Court found that the father only consented to his daughter traveling to the United States to accompany his wife for the agreed purpose of giving birth to their second child.
He purchased round trip tickets. He demanded that the mother return the children to England when she first revealed she was "not in a hurry" to return. He forcefully and repeatedly reiterated his view that she did not have a right to retain the children in the United States. In asserting this defense, the mother relied on a single email, in which the father stated his exasperation over the situation to his father-in-law. He said he was finished with his wife, but his "children will remain his children" and his wife "can keep them for now." This email sharply contrasts the father's consistent objections to his family remaining in the United States. He had been steadfast in his attempts to ensure their return, as evidenced by his conduct and his credible testimony at trial. A preponderance of the evidence did not support the argument that the father either consented or acquiesced to the mother's wrongful retention of the children in the United States.
The mother raised the defense of abandonment. The court noted that the Hague Convention does not recognize abandonment as an affirmative defense to child abduction. Moreover, the record did not factually support a conclusion that the father ever abandoned his children. Quite to the contrary, the record suggested that the mother abandoned her husband, home and legal residence in England.
The petition was granted for the return to the United Kingdom of the parties' children, identified as "O.U." born in 2009 and "N.U ." born in 2011.
deciding not to return to the family home in England. Her asylum request was initially denied on December 8, 2011, with the statement; Material inconsistency(ies) within your testimony. The mother's present legal residency was far from settled. This was apparently a preliminary rejection; the notice also stated: This is not a denial of your asylum application. A removal hearing was set on April 4, 2013.
On December 27, 2011, the court granted the father's request for a rule to show cause ordering the mother to appear before the court with the children. The mother and father are husband and wife. Both are Nigerian nationals. They were married in Nigeria in 2008, but their marital home was in Bristol, England, where the father practiced medicine with the National Health Service and the mother worked for a victims' rights organization.
Before the birth of their first child on August 31, 2009, the father arranged for the mother to fly from England to Denver, Colorado, where their daughter was born. The mother and infant stayed with the father's sister. On October 22, 2009, the mother returned to the family home in England with their daughter in accordance with the couple's plans. The agreed purpose for the trip was to provide the child with the benefits of United States citizenship. Family life resumed in England. In time, a second child was expected. The couple agreed to follow the same plan for the birth to take place in Denver in order to secure United States citizenship for the new baby. The father purchased round trip tickets, and again the father's sister was to host the wife and their children. The mother traveled from England to Denver on May 9, 2011, accompanied by their daughter. The couple's second child, a son, was born on June 25, 2011. The father expected his wife and children to return within several months of the baby's birth. There were cordial communications between the parents immediately after the baby's birth. The father repeatedly inquired as to when his family would return home. The couple's relationship turned sour on July 27, 2011, when the mother informed the father she was in no hurry to return to England with the children. The father responded with a series of emails, evidencing his anger and frustration. The early emails implored the mother to return with the children, and to at least "make sure you return my kids." At the same time, he threatened to cancel the credit card he had given her if she did not come home. Id. She did not respond. Three days later, he cancelled the credit card because, as he later told his father-in-law, she threatened him with not returning to the United Kingdom with their children.
On August 9, 2011, the mother abruptly left her sister-in-law's Denver home with the children. She did not inform the father or her sister-in-law where she was taking the children. The father's reaction to his wife's disappearance with the children was acute rage, evidenced by his abusive and threatening emails to both the mother and his father-in-law, who lives in Nigeria. It was evident from the emails that the father believed his father-in-law was financially and emotionally supporting the mother's desertion of the marriage and abduction of their children. The father-in-law was an obvious advocate for his daughter. At trial, the father admitted that he "hacked" into his father-in-law's email account, deleting some communications with the mother.
At trial, the father admitted he sent the threatening emails. He explained he was outraged and depressed by the unexpected loss of his family and especially by his wife's refusal to communicate with him. The court found that the father's emails were inexcusably demeaning and threatening. Albeit, aggravated circumstances were involved: the sudden loss of his children and his wife's refusal to even inform him where their children were located. Given this situation, the father's bad behavior in sending emails to the mother and his father-in-law did not support a reasonable inference the
father has a proclivity for violent or abusive behavior. The mother terminated all contact with the father on October 31, 2011. A preponderance of the credible evidence established the mother unilaterally denied the father's parental and custody rights under English law.
The mother attempted to justify her conduct by claiming the father physically and mentally abused her while she lived with him in England. She related three instances of physical abuse, claiming two happened while she was pregnant and one purportedly took place in the presence of their daughter, then less than two years old. The father denied her accusations. The court did not find credible or trustworthy the mother's testimony that she fled from England to the United States out of fear of her husband. The mother was a well-educated and well-spoken university graduate, and she worked as a banker in Nigeria before her marriage. During and after the claimed abuse, she was a divisional administrator for a charitable organization that assisted victims and witnesses of crime, including domestic violence, in England and Wales. She had regular and frequent contact with British law enforcement officers and social services agencies in the course of her work. Yet she never complained to a law enforcement officer or social services agency about mistreatment. This is astounding because she is a sophisticated person on abuse issues and victims' rights. She did not testify that she suffered any actual injury, nor did she seek medical treatment or counseling for the purported assaults. When the mother traveled to the United States with her young daughter, it was for the purpose of providing United States citizenship by giving birth in Denver. The agreed intent of the parents at the relevant time was that the mother would use the round trip tickets to return home as
soon as she and the new baby could do so. She traveled on a tourist visa that was to expire in November 2011. She did not resign from her job until January 2012. Her elusive conduct after her son was born is far more revealing than her trial testimony.
The mother's demeanor in relating the three purported instances of violence was akin to testimony by an aggrieved spouse in an acrimonious divorce proceeding. The same may be said of the trial testimony of her own father. Although he never witnessed the father inflicting harm on the mother, the father-in-law testified that she told him about the husband's alleged abuse. The court does not find the father-in-law's testimony probative or reliable, given the lack of foundation and personal knowledge, as well as his close relationship with the mother. There was no reliable evidence proffered that these attacks happened. More importantly, there was no evidence that the father posed
any threat whatsoever to the safety of his children.
The Court observed that Habitual residence may be established by the shared actions and intent of the parents, coupled with the passage of time. Koch v. Koch, 350 F.3d 703, 715 (7th Cir.2006). The mother and father lived together in England during most of their marriage. The family's home was in England. Both parents were legal English residents and were employed in England. The mother did not resign from her job in England until January 2012, more than six months after traveling to the United States. The mother had an English drivers license reflecting the address of the couple's Bristol home. Their daughter received medical care in Bristol. Pet. Ex. 11 (reflecting also the child's Bristol home address).
She was enrolled in a local nursery school. Overwhelming evidence established that the daughter, like her parents, habitually resided in the United Kingdom. The son was born in the United States. Due to his mother's unilateral decision to remain in the United States against the father's wishes, the son had not lived in England. Nonetheless, at the time of the son's birth, the established family home was in Bristol, England. The father consented to the son's birth in the United States with the joint understanding that his wife would return to England with their children within several months. He purchased round trip airline tickets. The parents' joint intent for the son to live with the family in England was established by a preponderance of the evidence. The mother testified that she traveled to the United States for the express purpose of obtaining United States citizenship for the baby. This reason may have been a ruse, or she may have changed her own intentions after the baby's birth. The mother's reluctance to return to England was not disclosed to the father until she was due to return, several months after the son was born. She did not deny that the family home was in England, and that she lived and worked in England during her marriage until May 11, 2011. The only reason the son has not actually resided in England was the mother's decision to retain the children in the United States.
Birth in the United States does not automatically render the son's habitual residence as the United States. Kijowska v. Haines, 463 F.3d 583, 587 (7th Cir.2006) (Infant born in the United States did not acquire a United States habitual residence when the mother's habitual residence was in Sweden). A preponderance of the evidence established that the shared actions and intent of the parents before the son's birth was that he would reside in the family home in England. This was sufficient to show that the son's habitual residence was in the United Kingdom. The mother's argument that her son's habitual residence is in the United States lacked merit, given that his residence in the county since birth was due to her wrongful retention.
The father's assertion of parental custody rights under English law was uncontested at trial. The mother and father had a joint parental responsibility for their minor children, including the joint right to custody. The evidence was uncontested that the father exercised his joint custody rights with respect to his daughter before she was wrongfully retained in the United States. The family lived together, he provided for his daughter, and the family engaged in regular outings. The father never had contact with his son, who is an infant and is thousands of miles away due to the mother's wrongful conduct. The father repeatedly sought the return of his children and vigorously continues to do so through legal processes. The mother frustrated the father's efforts to exercise his joint right to custody of his children. A preponderance of the evidence establishes that the father had taken every reasonable (and a few unreasonable) means to exercise his joint custody rights.
The mother claimed the children would be at a grave risk of harm because of the father's capacity for violence. The record did not support her argument. The three contested acts of domestic violence she relied on were not credible, much less clear and convincing. She did not claim she suffered any resulting injuries. She never sought law enforcement intervention or complained to a social services agency, despite her work with victims of domestic abuse. Her testimony was implausible, and her father's testimony was based on hearsay. In addition, the mother relied on the father's threatening language in emails after she abducted the children, as a predictor of his capacity for violence. The emails were evidence of bad judgment, a mean spirit, and anger control problems. But the emails must be considered in context. His wife had just abducted the children in a foreign country, for awhile he did not even know where she had taken them, his wife ignored his demand that she bring the children home, and his father -in-law appeared to be supporting her wrongful behavior. The threatening "get even" emails to his wife and father-in-law were not violent behavior, nor was his possibly illegal intrusion into his father-in-law's email account evidence of a grave risk of harm to the children. The father's anger was out of control and his brutish emails were inexcusable. However, this remote form of misbehavior was not clear and convincing evidence of a proclivity for actual violence. There was no evidence to suggest that he ever abused the children or that he presents a grave risk of harm to them.
The mother argued that the father's petition should be denied on account of unclean hands, ie., his bad conduct. She relied on evidence that the father intercepted her emails, which allowed him to know she had applied for asylum. The father then sent an email to her asylum attorney, threatening to expose (what he saw as) the fraudulent nature of his wife's asylum claim. The father sent a copy of this email to the Federal Bureau of Investigation. The mother testified that the father also accessed her checkbook in England and used her funds. She again cited his admitted intrusion into his father-in-law's email account. The Court noted that an action under the Hague Convention is purely jurisdictional, it is not appropriate to consider the details of the parties' messy domestic disputes beyond their relevance to those defenses explicitly provided by the Hague Convention. The Hague Convention does not recognize unclean hands as a defense. Karpenko v. Leendertz, 619 F.3d 259, 265 (3d Cir.2010).
The Court also rejected the mothers Article 20 defense. Article 20 provides that a court may refuse to grant a petition under the Hague Convention if the return of the child would violate the United States' principles of human rights and fundamental freedoms. The mother argued that Article 20 was applicable for two reasons: the risk of harm created by returning the children to their father, who she alleges is abusive; and the possibility that the mother returning to the United Kingdom with her children would threaten the mother's pending application for asylum in the United States. The court pointed out that Article 20 is rarely invoked. This defense has never been asserted successfully in a published opinion in the United States. Here, there was no evidence that the children's human rights and fundamental freedoms would be in jeopardy in England in any way.
Article 13 of the Hague Convention provides that an abducted child need not be returned if the complaining parent consented or subsequently acquiesced in the child's removal or retention in another country. The Court found that the father only consented to his daughter traveling to the United States to accompany his wife for the agreed purpose of giving birth to their second child.
He purchased round trip tickets. He demanded that the mother return the children to England when she first revealed she was "not in a hurry" to return. He forcefully and repeatedly reiterated his view that she did not have a right to retain the children in the United States. In asserting this defense, the mother relied on a single email, in which the father stated his exasperation over the situation to his father-in-law. He said he was finished with his wife, but his "children will remain his children" and his wife "can keep them for now." This email sharply contrasts the father's consistent objections to his family remaining in the United States. He had been steadfast in his attempts to ensure their return, as evidenced by his conduct and his credible testimony at trial. A preponderance of the evidence did not support the argument that the father either consented or acquiesced to the mother's wrongful retention of the children in the United States.
The mother raised the defense of abandonment. The court noted that the Hague Convention does not recognize abandonment as an affirmative defense to child abduction. Moreover, the record did not factually support a conclusion that the father ever abandoned his children. Quite to the contrary, the record suggested that the mother abandoned her husband, home and legal residence in England.
The petition was granted for the return to the United Kingdom of the parties' children, identified as "O.U." born in 2009 and "N.U ." born in 2011.
Nixon v Nixon, --- F.Supp.2d ----, 2011 WL 7972481 (D.N.M.) [Australia] [Grave Risk of Harm]
In Nixon v Nixon, --- F.Supp.2d ----, 2011 WL 7972481 (D.N.M.) Petitioner Mark Nixon was Australian and Respondent Gail Nixon was from the United States. On or about November 24, 2007, Mr. and Mrs. Nixon were married in Aztec, New Mexico. ON December 25, 2007, Mr. and Mrs. Nixon left for Sydney, Australia, where they lived together ever since. On or about July 15, 2010, in Australia, their son, Aidin Casey Nixon, was born. Aidin did not leave Australia until on or about July 2, 2011, when Mr. and Mrs. Nixon and Aidin traveled to New Mexico to visit Mrs. Nixon's family, who lived in Aztec. The parties had planned that Mr. Nixon would return to Sydney on July
10, 2011 because of work obligations, and that Mrs. Nixon and Aidin would stay on until August 31, 2011 with Mrs. Nixon's parents. Mrs. Nixon had a return ticket booked for August 31, 2011. On August 16, 2011, however, Mrs. Nixon canceled her return flight. On or about August 29, 2011, Mrs. Nixon filed a divorce action in the Eleventh Judicial District Court of New Mexico. On or about August 31, 2011, Mrs. Nixon informed Mr. Nixon by telephone that she was not coming back to
Australia, and that she had filed a divorce action in order to simplify custody.
On September 29, 2011, Mrs. Nixon's counsel advised Mr. Nixon's counsel that she would return to Australia. On October 4, 2011, however, Mrs. Nixon's counsel advised Mr. Nixon's counsel that Mrs. Nixon had changed her mind and intended to remain in New Mexico. Mr. Nixon did not consent to Mrs. Nixon's retention of Aidin in the United States. On October 5, 2011, Mr. Nixon filed the Petition, seeking, inter alia, an order directing that federal marshals and/or other law enforcement personnel be ordered to assist in picking up Aidin and returning him to the custody of Mr. Nixon,
allowing the prompt return of Mr. Nixon and Aidin to Australia, directing that Aidin's travel documents be surrendered with him, and requiring Mrs. Nixon to pay Mr. Nixon's costs and attorney fees. The Court granted the petition.
Mrs. Nixon argued that the United States, rather than Australia, was Aidin's habitual residence, because she never intended to be domiciled in Australia, but rather always intended to move back to Aztec, and, at some point in the past, believed that Mr. Nixon agreed to move to the United States. According to Mrs. Nixon, because Aidin was so young, his habitual residence was connected to his mother, and because she intended to move home to Aztec, Aztec was Aidin's habitual residence. Neither the evidence nor the relevant case law supported Mrs. Nixon's position. It was undisputed that, since their marriage, Mr. and Mrs. Nixon lived continuously in Australia. Mrs. Nixon was a permanent resident of Australia. Aidin was born in Australia and never left Australia until this trip to New Mexico. Mr. Nixon testified that it was never his intent to move to the United States. Mrs. Nixon admitted in her testimony that although she wanted to move back to Aztec at some point in the near future, Mr. Nixon did not share the same intention, and told her in no uncertain terms that he did not wish to relocate there. Mrs. Nixon further admitted that she is presently in the United States for what she intended to be a two-month vacation, and it was not until she had been here for six weeks that she decided not to return to Australia. Mrs. Nixon actually had a ticket to return to Australia with Aidin on August 31, 2011.
Considering Aidin's past experiences and the parties' shared intentions, it was clear that Australia was the only place where Aidin had been physically present for an amount of time sufficient for acclimatization, and which had a "settled purpose" from his perspective. Mr. and Mrs. Nixon had no shared intention that Aidin reside in Aztec, New Mexico. Although the parties brought Aidin to the United States, the trip was intended by both of them to be of a specific period of two months. The fact that Mrs. Nixon unilaterally changed her intentions six weeks into the visit was insufficient to alter Aidin's habitual residence. Aidin was born in Australia and resided exclusively in Australia until Mrs. Nixon retained him in the United States. The Court found that Aidin was a habitual resident of Australia at the time of his retention in the United States.
Because Australia would apply its own laws in this case, Mr. Nixon's "custody rights were determined by Australia's Family Law Act 1975, of which [this Court] may take notice directly." Under Australia's Family Law Act 1975, "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."(Family Law Act 63(F)(1), 63E(1) and (2)). As there were no court orders to the contrary, Mr. Nixon had joint custody and control of Aidin. Accordingly, Mrs. Nixon's unilateral decision to retain Aidin in the United States was in breach of Mr. Nixon's custody rights under the laws of Australia, the state of Aidin's habitual residence.
The evidence demonstrated that, far from abandoning his child, Mr. Nixon lived with Mrs. Nixon and Aidin "as a family." When Aidin was born, Mr. Nixon took four weeks leave from work to care for him. Mrs. Nixon testified that when she was at work every Friday, Saturday and Sunday evening, Mr. Nixon watched Aidin and put him to bed. Mr. Nixon similarly testified that he helped Mrs. Nixon "as much as possible, in terms of raising Aidin," which involved "doing anything from looking after Aidin, ... taking him for walks, bathing him, putting him to bed, reading him stories, playing with him." Accordingly, the Court found that Mr. Nixon was exercising his custodial rights at the time of Mrs. Nixon's retention of Aidin in the United States.
The sole defense argued by Mrs. Nixon was that Aidin would be exposed to a grave risk of harm if returned to Australia. Mrs. Nixon alleged that Aidin would suffer grave harm if he were taken from his mother, as she is still nursing him. Mrs. Nixon alleged that Mr. Nixon was diagnosed with ALS and suffered from obsessive/compulsive disorder, both of which conditions called into question his ability to care for Aidin Finally, Mrs. Nixon alleged that Mr. Nixon informed her that upon her return to Australia, he would take sole custody of Aidin and that she could live "somewhere," perhaps with her brother who lives five hours away from the marital residence, which would be an intolerable situation for Aidin. Mrs. Nixon testified that several times, Mr. Nixon held Aidin and fallen over, and she was worried that he would again hold Aidin and fall. She also testified that Mr. Nixon was controlling and rigid, and disagreed with her as to issues such as Aidin's feeding and sleeping schedules. Additionally, Mrs. Nixon testified that when she asked Mr. Nixon what would happen if she returned to Australia, he "made it clear that [she] might be able to live with him, maybe not." She further testified that, when she asked him where she was supposed to live, he responded, "I don't know, but we'll figure it out," and indicated that he could take leave from work and have primary custody of Aidin for a period of time. Based on this conversation, Mrs. Nixon became afraid that Mr. Nixon expected her to "land in Australia, hand Aidin over, and be basically on the streets." Mrs. Nixon testified: [I]t's still very alarming to fly halfway across the world, get off a plane, and not know where you're going to live and how you're going to be supported, especially with an infant that I'm still breast feeding. That is unacceptable and intolerable for myself and for our son."
The Court observed that federal courts uniformly note that "[t]he bar for proving the 'grave risk' exception is set exceptionally high." Krefter v. Wills, 623 F.Supp.2d 125, 135 (D.Mass.2009). The Court found that Mrs. Nixon's allegations fell short of establishing a grave risk of harm if Aidin was returned to Australia. Mrs. Nixon intended to return to Australia along with Aidin. Accordingly, any danger that would result from Aidin's separation from his mother would not come to pass. Notably, an order that Aidin be returned to Australia is not the equivalent of an order that Mr. Nixon is entitled
to sole custody of Aidin. Mr. Nixon testified that it was not his intention to take sole custody of Aidin upon his return to Australia. He explained that he had the opportunity to take five months paid leave to care for Aidin, so long as "he is designated the primary caregiver," and that this is "an option for discussion with [Mrs. Nixon]." Further, Mrs. Nixon's concerns about Mr. Nixon's fitness as a parent were unsupported. Mr. Nixon testified that he had not been officially diagnosed with ALS, and Mrs. Nixon presented no evidence that any doctor has ever advised him that it is unsafe for him to care for Aidin. Mr. Nixon had been in counseling for years for his emotional issues, and he had never been advised by a counselor that his OCD interferes with his ability to care for Aidin. Until they left for the United States, Mrs. Nixon routinely entrusted Aidin to Mr. Nixon's care. Mrs. Nixon's testimony as to her experience of Mr. Nixon as controlling did not rise to the level required to establish that Aidin's return to Australia will expose him to a grave risk of harm. While her testimony demonstrated parenting and personality differences, such differences were not uncommon, and certainly did not demonstrate that Mr. Nixon posed a danger to his son. Finally, courts routinely have held that financial concerns are insufficient to establish an "intolerable situation." Krefter, 623 F.Supp.2d at 136-37; Wilchynski v. Wilchynski, No. 3:1-CV-63, 2010 WL 1068070, *9 (S.D. Miss. Mar. 18, 2010). Accordingly, Mrs. Nixon's fears about her ability to support herself and maintain a home where she could nurse and properly care for Aidin did not meet the standard necessary to show a risk of grave harm. Because Mrs. Nixon failed to establish a valid defense to her wrongful retention of Aidin in the United States, Aidin had to be returned to Australia.
The Court accepted Mr. Nixon's proposed undertakings, and ordered that Mrs. Nixon will continue to live in the marital residence, and Mr. Nixon will provide Mrs. Nixon with maintenance and support, until such time as the courts in Australia make other arrangements for the parties.
10, 2011 because of work obligations, and that Mrs. Nixon and Aidin would stay on until August 31, 2011 with Mrs. Nixon's parents. Mrs. Nixon had a return ticket booked for August 31, 2011. On August 16, 2011, however, Mrs. Nixon canceled her return flight. On or about August 29, 2011, Mrs. Nixon filed a divorce action in the Eleventh Judicial District Court of New Mexico. On or about August 31, 2011, Mrs. Nixon informed Mr. Nixon by telephone that she was not coming back to
Australia, and that she had filed a divorce action in order to simplify custody.
On September 29, 2011, Mrs. Nixon's counsel advised Mr. Nixon's counsel that she would return to Australia. On October 4, 2011, however, Mrs. Nixon's counsel advised Mr. Nixon's counsel that Mrs. Nixon had changed her mind and intended to remain in New Mexico. Mr. Nixon did not consent to Mrs. Nixon's retention of Aidin in the United States. On October 5, 2011, Mr. Nixon filed the Petition, seeking, inter alia, an order directing that federal marshals and/or other law enforcement personnel be ordered to assist in picking up Aidin and returning him to the custody of Mr. Nixon,
allowing the prompt return of Mr. Nixon and Aidin to Australia, directing that Aidin's travel documents be surrendered with him, and requiring Mrs. Nixon to pay Mr. Nixon's costs and attorney fees. The Court granted the petition.
Mrs. Nixon argued that the United States, rather than Australia, was Aidin's habitual residence, because she never intended to be domiciled in Australia, but rather always intended to move back to Aztec, and, at some point in the past, believed that Mr. Nixon agreed to move to the United States. According to Mrs. Nixon, because Aidin was so young, his habitual residence was connected to his mother, and because she intended to move home to Aztec, Aztec was Aidin's habitual residence. Neither the evidence nor the relevant case law supported Mrs. Nixon's position. It was undisputed that, since their marriage, Mr. and Mrs. Nixon lived continuously in Australia. Mrs. Nixon was a permanent resident of Australia. Aidin was born in Australia and never left Australia until this trip to New Mexico. Mr. Nixon testified that it was never his intent to move to the United States. Mrs. Nixon admitted in her testimony that although she wanted to move back to Aztec at some point in the near future, Mr. Nixon did not share the same intention, and told her in no uncertain terms that he did not wish to relocate there. Mrs. Nixon further admitted that she is presently in the United States for what she intended to be a two-month vacation, and it was not until she had been here for six weeks that she decided not to return to Australia. Mrs. Nixon actually had a ticket to return to Australia with Aidin on August 31, 2011.
Considering Aidin's past experiences and the parties' shared intentions, it was clear that Australia was the only place where Aidin had been physically present for an amount of time sufficient for acclimatization, and which had a "settled purpose" from his perspective. Mr. and Mrs. Nixon had no shared intention that Aidin reside in Aztec, New Mexico. Although the parties brought Aidin to the United States, the trip was intended by both of them to be of a specific period of two months. The fact that Mrs. Nixon unilaterally changed her intentions six weeks into the visit was insufficient to alter Aidin's habitual residence. Aidin was born in Australia and resided exclusively in Australia until Mrs. Nixon retained him in the United States. The Court found that Aidin was a habitual resident of Australia at the time of his retention in the United States.
Because Australia would apply its own laws in this case, Mr. Nixon's "custody rights were determined by Australia's Family Law Act 1975, of which [this Court] may take notice directly." Under Australia's Family Law Act 1975, "in the absence of any orders of court, each parent is a joint guardian and a joint custodian of the child, and guardianship and custody rights involve essentially the right to have and make decisions concerning daily care and control of the child."(Family Law Act 63(F)(1), 63E(1) and (2)). As there were no court orders to the contrary, Mr. Nixon had joint custody and control of Aidin. Accordingly, Mrs. Nixon's unilateral decision to retain Aidin in the United States was in breach of Mr. Nixon's custody rights under the laws of Australia, the state of Aidin's habitual residence.
The evidence demonstrated that, far from abandoning his child, Mr. Nixon lived with Mrs. Nixon and Aidin "as a family." When Aidin was born, Mr. Nixon took four weeks leave from work to care for him. Mrs. Nixon testified that when she was at work every Friday, Saturday and Sunday evening, Mr. Nixon watched Aidin and put him to bed. Mr. Nixon similarly testified that he helped Mrs. Nixon "as much as possible, in terms of raising Aidin," which involved "doing anything from looking after Aidin, ... taking him for walks, bathing him, putting him to bed, reading him stories, playing with him." Accordingly, the Court found that Mr. Nixon was exercising his custodial rights at the time of Mrs. Nixon's retention of Aidin in the United States.
The sole defense argued by Mrs. Nixon was that Aidin would be exposed to a grave risk of harm if returned to Australia. Mrs. Nixon alleged that Aidin would suffer grave harm if he were taken from his mother, as she is still nursing him. Mrs. Nixon alleged that Mr. Nixon was diagnosed with ALS and suffered from obsessive/compulsive disorder, both of which conditions called into question his ability to care for Aidin Finally, Mrs. Nixon alleged that Mr. Nixon informed her that upon her return to Australia, he would take sole custody of Aidin and that she could live "somewhere," perhaps with her brother who lives five hours away from the marital residence, which would be an intolerable situation for Aidin. Mrs. Nixon testified that several times, Mr. Nixon held Aidin and fallen over, and she was worried that he would again hold Aidin and fall. She also testified that Mr. Nixon was controlling and rigid, and disagreed with her as to issues such as Aidin's feeding and sleeping schedules. Additionally, Mrs. Nixon testified that when she asked Mr. Nixon what would happen if she returned to Australia, he "made it clear that [she] might be able to live with him, maybe not." She further testified that, when she asked him where she was supposed to live, he responded, "I don't know, but we'll figure it out," and indicated that he could take leave from work and have primary custody of Aidin for a period of time. Based on this conversation, Mrs. Nixon became afraid that Mr. Nixon expected her to "land in Australia, hand Aidin over, and be basically on the streets." Mrs. Nixon testified: [I]t's still very alarming to fly halfway across the world, get off a plane, and not know where you're going to live and how you're going to be supported, especially with an infant that I'm still breast feeding. That is unacceptable and intolerable for myself and for our son."
The Court observed that federal courts uniformly note that "[t]he bar for proving the 'grave risk' exception is set exceptionally high." Krefter v. Wills, 623 F.Supp.2d 125, 135 (D.Mass.2009). The Court found that Mrs. Nixon's allegations fell short of establishing a grave risk of harm if Aidin was returned to Australia. Mrs. Nixon intended to return to Australia along with Aidin. Accordingly, any danger that would result from Aidin's separation from his mother would not come to pass. Notably, an order that Aidin be returned to Australia is not the equivalent of an order that Mr. Nixon is entitled
to sole custody of Aidin. Mr. Nixon testified that it was not his intention to take sole custody of Aidin upon his return to Australia. He explained that he had the opportunity to take five months paid leave to care for Aidin, so long as "he is designated the primary caregiver," and that this is "an option for discussion with [Mrs. Nixon]." Further, Mrs. Nixon's concerns about Mr. Nixon's fitness as a parent were unsupported. Mr. Nixon testified that he had not been officially diagnosed with ALS, and Mrs. Nixon presented no evidence that any doctor has ever advised him that it is unsafe for him to care for Aidin. Mr. Nixon had been in counseling for years for his emotional issues, and he had never been advised by a counselor that his OCD interferes with his ability to care for Aidin. Until they left for the United States, Mrs. Nixon routinely entrusted Aidin to Mr. Nixon's care. Mrs. Nixon's testimony as to her experience of Mr. Nixon as controlling did not rise to the level required to establish that Aidin's return to Australia will expose him to a grave risk of harm. While her testimony demonstrated parenting and personality differences, such differences were not uncommon, and certainly did not demonstrate that Mr. Nixon posed a danger to his son. Finally, courts routinely have held that financial concerns are insufficient to establish an "intolerable situation." Krefter, 623 F.Supp.2d at 136-37; Wilchynski v. Wilchynski, No. 3:1-CV-63, 2010 WL 1068070, *9 (S.D. Miss. Mar. 18, 2010). Accordingly, Mrs. Nixon's fears about her ability to support herself and maintain a home where she could nurse and properly care for Aidin did not meet the standard necessary to show a risk of grave harm. Because Mrs. Nixon failed to establish a valid defense to her wrongful retention of Aidin in the United States, Aidin had to be returned to Australia.
The Court accepted Mr. Nixon's proposed undertakings, and ordered that Mrs. Nixon will continue to live in the marital residence, and Mr. Nixon will provide Mrs. Nixon with maintenance and support, until such time as the courts in Australia make other arrangements for the parties.
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