Walker v. Walker

Filing 147

MEMORANDUM OPINION AND ORDER signed by the Honorable Matthew F. Kennelly on 3/16/2013: This Memorandum Opinion and Order constitutes the Court's findings of fact and conclusions of law. Because this Memorandum Opinion and Order is being issued on a weekend, when no Clerk's Office personnel are available to transmit the decision to the Court of Appeals, counsel are directed to promptly transmit it to the Court of Appeals for that court's consideration. (mk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

IAIN WALKER,
Petitioner,
vs.
NORENE WALKER,
Respondent.

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Case No. 11 C 2967

MEMORANDUM OPINION AND ORDER1
MATTHEW F. KENNELLY, District Judge:
In early May 2011, Iain Walker, a citizen of Australia, filed suit under the
International Child Abduction Remedies Act (ICARA), 42 U.S.C. § 11601, against his
then wife Norene Walker, a United States citizen, seeking to compel her to return their
three children to Australia. ICARA is a federal statute that implements the Hague
Convention on the Civil Aspects of International Child Abduction (Hague Convention).
Because the parties have the same last name, the Court will refer to them by their first
names.
In September 2011, another judge of this court conducted a bench trial on the
petition, and, on October 20, 2011, he ruled in Norene’s favor. The court of appeals

1

On Friday, March 15, 2013, the Court entered a brief order expressing its conclusions,
directing the entry of judgment in favor of petitioner, and ordering the children’s immediate
return to Australia. The order stated that a detailed explanation of the Court’s ruling would
follow. This opinion constitutes that explanation. The Court explained in the March 15 order its
rationale for directing immediate entry of judgment and thus need not repeat it in full here.
Among the reasons the Court cited was the fact that the oldest of the three Walker children was
about to “age out” under article 4 of the Hague Convention due to her impending sixteenth
birthday. The Court notes that the oldest child will turn sixteen on Monday, March 18, 2013.

summarized the prior district judge’s ruling as follows:
[The judge] found that notwithstanding the fact that the Walker family lived
in Australia from 1998 through 2010, the children’s habitual residence had
become the United States by the time Iain had filed his petition. In
addition, as the court saw it, Norene’s act of keeping the children in the
United States could not have been “wrongful” within the meaning of the
[Hague] Convention for two reasons: first, Iain was not exercising his
custody rights at the time; and, second, Iain had consented to the
children’s remaining in the United States permanently.
Walker v. Walker, 701 F.3d 1110, 1114 (7th Cir. 2012).
Iain appealed from the judgment, and the children remained with Norene here in
the United States while the case was on appeal. The court of appeals heard argument
in September 2012, and it decided the case in mid-November 2012. The court found
that the district judge had erred in certain respects. In particular, the court 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. Rather than reversing
outright, the court remanded the case for further proceedings. Near the end of the
court’s decision, it stated as follows:
Several crucial issues were not fully developed in the previous proceedings, and
these gaps in the record must be filled before a final decision is rendered. On
remand, the district court must resolve at least the following questions, taking
evidence as necessary:
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?
2

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.
Id. at 1123.
The court issued its mandate on January 18, 2013 after it denied a petition for
rehearing en banc. The district judge who had conducted the prior bench trial
concluded that the case should be reassigned, and it was reassigned to the
undersigned judge on January 30, 2013. Because of the extended period the case had
been pending since its inception, and given the nature and importance of the
proceedings, the Court set the case for a prompt trial following consideration of
preliminary matters and allowing limited and expedited discovery.
The trial was conducted on Thursday, March 14, 2013, with closing arguments
the following day. The parties agreed that the Court could consider the testimony from
the previous trial and the exhibits admitted at that trial. The Court also heard further
testimony from Iain (who testified under oath by video from Australia), Norene, and their
three children. Thus the Court had the opportunity to observe, and has taken into
account, the demeanor of each of the witnesses, as well as other factors bearing on
their credibility. The attorneys made closing arguments on Friday, March 15, 2013.
In deciding this hotly contested matter, the Court has paid heed to the admonition
the court of appeals made in the concluding paragraph of its decision:
In returning this case to the district court, we emphasize again that this is
a dispute about which court system should resolve the underlying issue of
child custody; it is not a dispute about which parent is preferable or the
terms under which custody will be granted. We are confident that either
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the courts of Western Australia or the courts of Illinois are fully capable of
resolving these matters.
Id. at 1123-24. The following constitutes the Court’s findings of fact and conclusions of
law.
Discussion
A petition under ICARA is determined in accordance with the Hague Convention.
42 U.S.C. § 11603(a). Article 3 of the Hague Convention provides that a child’s removal
or retention is wrongful if:
a)
it is in breach of rights of custody attributed to a person . . ., either
jointly or alone, under the law of the State in which the child was habitually
resident immediately before the removal or retention; and
b)
at the time of removal or retention those rights were actually
exercised, either jointly or alone, or would have been so exercised but for
the removal or retention.
Hague Conv., Art. 3. This is a case of alleged wrongful retention, not wrongful removal.
See Walker, 701 F.3d at 1118. If a child has been wrongfully retained within the
meaning of Article 3, “the authority concerned shall order the return of the child
forthwith,” unless the petition was untimely, which is not the case here. Hague Conv.,
Art. 12. The Hague Convention also provides, however, that a court “is not bound to
order the return of the child” if the person opposing return establishes, among other
defenses, that party seeking return “was not actually exercising the custody rights at the
time of removal or retention, or had consented to or subsequently acquiesced in the
removal or retention . . . .” Id., Art. 13(a). In addition, a judge “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.”
Id., Art. 13.
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A.

Wrongful retention of the children
ICARA provides for the return of a child wrongfully retained in the United States

in violation of the Convention. 42 U.S.C. § 11603(b). Wrongful retention is defined as
retention in breach of rights of custody vested in the party who complains of the
retention. See Pielage v. McConnell, 516 F.3d 1282, 1286 (11th Cir. 2008); see also
Norinder v. Fuentes, 657 F.3d 526, 533 (7th Cir. 2011) (defining wrongful removal). “To
prevent forum shopping, rights of custody are defined according to the law of the
country that is the child’s habitual residence.” Norinder, 657 F.3d at 533.
The first step, therefore, is 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 is
“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. 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. (The Court will discuss this point in greater
detail below.) One conceivably could conclude that Norene retained the children in the
United States earlier, such as when Iain returned to Australia in July 2010 or when
Norene filed for divorce in Cook County, Illinois in early November 2010, seeking sole
custody of the children (although Norene denied that at the first trial). The analysis
would remain the same, however, and any earlier retention date would not result in a
ruling more favorable to Norene on the question of the children’s habitual residence at
the relevant time.2
2

The earlier the date, the closer the children’s connection to their Australian residence.

5

It is undisputed that the Walkers resided in Australia from 1998 through June
2010. Iain contends that Australia remained the family’s and the children’s habitual
residence as of the relevant time. Norene contends that at the relevant time, they had
abandoned their residence in Australia and established residence in the United States.
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 (internal quotation marks and
ellipsis omitted). “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.” Id. (internal quotation marks omitted).
Iain has 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 is not a close question, and the Court would make
the same finding even if Iain had a far more stringent burden of persuasion. The
proposition is 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 live, 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

6

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 shows,
[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.
Walker, 701 F.3d at 1114.
Iain, Norene, and their children traveled to the United States in June 2010. The
Seventh Circuit stated, and this Court finds 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.” Id. Norene contends,
however, that this trip was intended “as an extended prelude to a permanent move to
the United States.” Id. at 1115. As noted above, Norene testified that she married Iain
on the condition that after five years, they would relocate in the United States. She
contends that the June 2010 trip represented the fulfillment of that condition, or at least
the initial steps toward its fulfillment. Iain contends, 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. Id. at 1114-15. It
is undisputed that their home in Perth was demolished and that construction of two new
homes on the property was to begin thereafter. Iain says that the family planned to live
in one; Norene says they planned to sell both.
As noted earlier, the Court must determine whether Iain and Norene had a
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“shared intention” to abandon residence in Australia and establish residence in the
United States. The evidence overwhelmingly shows that they did not have a shared
intention to do so 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. Iain’s testimony was supported by the objective circumstantial evidence
surrounding the family’s travel. Each child traveled to the United States with a single
suitcase and backpack, and Norene likewise traveled with a single suitcase. They did
not at any time ship or arrange to ship any of their remaining property to the United
States. Rather, all of it remained in Australia. The family dog, Chubba, likewise
remained in Australia, without any arrangements made, at any time, to move him to this
country – for dog lovers, a rather clear indication of the owners’ intention to return
home.
Iain returned to Australia and to his work around a month after the family traveled
to the United States. This, too, is a clear indication of the absence of a shared intention
between Iain and Norene to abandon the family’s Australian residence. Iain never
made nor initiated arrangements to obtain the necessary documentation that would
permit him, as an Australian citizen, to work in the United States. Norene testified that
Iain agreed to look for work in this country and that they had discussed and looked into
getting a “green card.” That testimony, like a good deal of Norene’s testimony, was not
credible. Among other things, were it true, one would have expected some evidence or
testimony (even by Norene) that Iain, at some point, actually looked into job

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opportunities in the United States, but there was no such evidence. Nor is there any
evidence of any actual effort on Iain’s part to obtain permission to work in this country.
In this regard, actions speak just as loudly as words: Iain returned to Australia in July
2010 to resume work there.3
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 does not doubt that Norene might have made taken some relatively
minor initial steps to determine what the home market was like in Seattle and/or San
Francisco. The Court likewise does not doubt that Norene may have wanted to
eventually establish residence in the United States. The Court found no credible
evidence, however, that Iain participated in any steps to check the market or look for a
home in the United States or that he had any intention, at any relevant time, to consider
establishing residence in this country, either in 2010-11 or thereafter.
Norene testified that she and Iain made an agreement before traveling to the
United States in June 2010 that they would settle in this country and that the two homes
being built on their property in Perth would be sold and the proceeds used to buy
property in this country (preferably, she testified, in Seattle). This testimony lacked
credibility. The Court has already found that Iain had no such intention. But the
evidence also convincingly demonstrates that Norene herself did not have the intention
of abandoning the parties’ Australian residence when the family came to the United

3

During the evidentiary hearing before the previous district judge, the judge – an expert in
immigration law – pointed out that it would have been quite simple for Iain to obtain permission
to work in the United States given the fact that Norene is a U.S. citizen. The Court does not
question this. It is more significant, however, that there is no credible testimony or any other
evidence of any actual attempt, effort, or investigation by Iain (or for that matter Norene) in this
regard.

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States in June 2010. Among other things, any such contention is flatly contradicted by
Norene’s two written statements, made to Australian school authorities in May 2010,
that they would be overseas from June 2010 only through June 2011, “visiting
grandparents [and] relatives.” Petitioner’s Ex. 3; see also Petitioner’s Ex. 4 (“visiting
parents[‘] homes, visiting grandparents / family”). In addition to these written
statements, Norene admitted that she told the principal of the children’s school that they
family would be returning to Australia within six months or a year after June 2010. See,
e.g., Initial Trial Tr. 54. She also admitted that she had advised “any number of people”
that she was intending to return to Australia within six to twelve months. Id. 23-24. She
said just that in an e-mail she wrote to two friends in January 2010. Petitioner’s Ex. 5
(“We’re coming over this summer and the kids and I will stay until Christmas and
possibly til June 2011 (depends on the children keeping up with their Australian
studies).”)
Of at least equal importance is Norene’s own testimony regarding when she
formed the intention to remain in the United States. Norene testified several times
during the initial trial before the previous district judge that this did not occur until
January 2011. First, Norene unequivocally testified that she had never told Iain that her
intention was not to return to Australia:
Q: . . . Did you ever tell your husband when you were coming to America
on June 4th, 2010, that it was never in your intention to return to
Australia?
A: I mean, no. That all changed when he made me that offer letter.
Initial Trial Tr. 25 (emphasis added).4 She testified, equally unequivocally, that before
4

Norene’s reference to an “offer letter” is a reference to a letter she received from Iain dated
January 21, 2011.

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“that” – her receipt of a letter from Iain in January 2011 proposing a divorce settlement –
she had not made up her mind about whether she would stay in the United States. Id.
26. And this was not just a passing reference in Norene’s testimony; she
unambiguously reaffirmed it later in her testimony, more than once:
Q: So, ma’am, you didn’t make up your mind that you were going to stay
in America until January 20 or 2011, is that correct, ma’am?
Excuse me. I apologize. You didn’t make up your mind that you were
going to stay in America until January 30th, 2011, isn’t that correct?
A: Is that the date – I just don’t know the date off the top of my head.
Q: Assuming that’s the date of the alleged offer letter.
A: When I received the offer letter.
Id. 27.
Q: Well, ma’am, you indicated yesterday that until June [sic] 21st of 2011,
you had no intention of staying in the United States permanently, isn’t that
correct?
A: Yes. That’s correct.
Id. 89. And finally, under questioning by her own attorney, Norene again repeated this
testimony:
Q: Now you previously testified that when you came back to the United States in
June of 2010, that you intended to return, is that correct?
A: Yes. That’s correct.
Q: And now you don’t intend to return, is that correct?
A: Yes. That’s correct.
Q: What happened that caused you to change your mind?
A: The letter I received of offer from Iain that he, you know, gave me residence
here. . . . .

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Id. 226.
One of the Walkers’ children likewise testified at the first trial that the family’s
intention was to take an extended vacation in the United States, which would include
them attending school here, and then return to Australia:
[A]t first, my dad didn’t want to come over with us to go on this vacation but then
he decided to, I think, and we had a great time. We went hiking in Seattle and it
was really, really fun. And he stayed with us a little bit during the summer and
then he left before we moved upstairs, I think, and – yeah. Then – yeah. He told
us that we were supposed to come back but mom said that we were supposed to
– I think they both said that we were supposed to stay here for a little bit of
schooling. This is what we were told before we came to Australia [sic].
Id. 203.
During her testimony at the trial before this Court, Norene initially reconfirmed,
several times, her testimony that she first decided to stay here after she received Iain’s
letter in January 2011 and that she first decided to live her permanently after getting that
letter. She then attempted to backtrack, however, stating that she had told Iain twice
when they came to the United States in June 2011 that she never intended to return.
This testimony, which directly contradicted her testimony at the earlier trial, was utterly
lacking in credibility, and it was thoroughly impeached. Norene’s attempt to shift
ground, together with her demeanor during that testimony and the corresponding
impeachment, seriously undermined her credibility. She ultimately confirmed – albeit
with some visible reluctance – that she had intended to tell the truth in her testimony on
these points at the initial trial, but the damage to her credibility was already done.
Now it is certainly possible, at least in theory, that the evidence that convincingly
demonstrates the parties’ shared intention that the entire family would be back in
Australia within six months to a year after June 2010 is still consistent with a shared

12

intention to later abandon their Australian residence and move permanently to the
United States. Norene’s counsel did not make this argument in his closing argument
before this Court. But even were the Court so to find, it likely would not assist Norene in
this case. What is relevant is the habitual residence at the time of the alleged wrongful
retention of the children – which took place in January 2011 at the latest. In addition,
however, such a theory is completely undermined by Norene’s repeated testimony that
she first formed the intention to stay in this country in late January 2011. In any event,
though Norene may have wanted to establish residence in the United States at some
point, what is controlling is whether there was a shared intention to establish residence.
The Court finds that there was no such shared intention.
To answer the first question that the court of appeals posed at the end of its
decision, 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. The Court is unsure whether the term “extended
vacation,” as used by the court of appeals, is a precise description, but 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. In sum, the Court finds
that Iain has proven that the children’s habitual residence was Australia as of the time of
the alleged wrongful retention.
The next question is whether Norene’s retention of the children was in breach of
Iain’s custody rights under Australian law. It is not seriously disputed that Iain had, at
the relevant time, the right of joint custody of the children under Australian law.

13

Norene’s counsel contended in closing argument that under Australian family law –
counsel referred to “Article 66” – a person has custodial rights only if he is paying child
support. Norene made no attempt to establish this by testimony or other evidence, and
her counsel did not provide the Court with the Australian statute he cited. The Court
has attempted to track this down on its own. The current version of the Australian
Family Law Act that is available online is 736 pages long in the PDF version. Article 66
itself is quite lengthy, covering seventeen pages of single-spaced text. Norene’s
counsel made no effort to point the Court to the particular section(s) or provision(s)
upon which his argument was based. Based on the Court’s review, Article 66 appears
to concern child maintenance orders (i.e., child support), not custodial rights.
The Court considers 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 does not cut it. But even if
Norene’s counsel has correctly characterized Australian law, it does not help her in this
case. The evidence establishes that Iain continued to provide financial support to the
children throughout the relevant period, through January 2011. Specifically, the
testimony is uncontradicted that he wired or sent her the equivalent of $20,000 and that
she had free access to their joint credit card account through January 2011.
Norene’s counsel cited a line in the default judgment entered in her Illinois
divorce case in March 2012 as establishing that Iain had provided no support for the
children as of November 2010. Specifically, paragraph 3B of the default divorce decree,
which concerns custody of the children, states:
The Court finds that it is in the best interests of the children that the
petitioner be awarded sole custody of the children and that the children
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remain with the petitioner since the Respondent has abandoned the
children and has provided no support for the children since the filing of the
Petition.
Respondent’s Ex. 30, ¶ 3B. The Illinois custody order, however, has no force and effect
here, because under ICARA and the Hague Convention, the courts of Australia, the
children’s habitual residence at the time, had the rightful power to resolve the issue of
custody, not the courts of the United States. The Hague Convention does provide that
a court considering a petition challenging a child’s wrongful retention “may take account
of the reasons” given by a court ruling on custody in the country of retention. See
Hague Conv., Art. 17. But this particular “reason” – the purported absence of support
since “the filing of the [divorce] Petition” in November 2010 – is contrary to the
uncontested evidence before this Court. The Court also notes that the default divorce
decree was entered after the uncontradicted testimony before the previous district judge
in September 2011 that Iain had sent Norene a significant amount of money as
previously discussed and that she had use of their joint credit card through January
2011. One wonders what evidence or other basis Norene and her counsel provided the
Illinois state court judge to support the finding that Iain had provided no support for the
children since all the way back in November 2010. That aside, though this Court
certainly takes account of the state court order, it gives that order no effect in view of the
fact that it is contrary to the undisputed evidence presented before this Court.
In sum, the Court finds that Iain has 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.

15

The Court also finds that Iain was actually exercising his rights of custody up
through and at the time of Norene’s retention of the children.
The standard for finding that a parent was exercising his custody rights is a
liberal one, and courts will generally find exercise whenever a parent with de jure
custody rights keeps, or seeks to keep, any sort of regular contact with his or her
child. Indeed, a person cannot fail to ‘exercise’ [his] custody rights under the
Hague Convention short of acts that constitute clear and unequivocal
abandonment of the child.
Walker, 701 F.3d at 1121 (internal quotation marks omitted).
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 appears to have been based largely on evidence that the Seventh
Circuit concluded should have been excluded for this purpose. One way or another,
however, this Court respectfully disagrees with the previous judge. The admissible
evidence is all to the contrary. First, as of July 2010 and for a significant period
thereafter, Iain believed that Norene and the children would be returning to Australia
sometime between December 2010 and June 2011 (as did Norene, given her
testimonial and other admissions on that point). Thus his return to Australia cannot be
viewed as abandonment, any more than any parent who works in a separate city from
his children may be considered by that fact to have abandoned them. Nor does Iain’s
non-return to the United States between then and January 2011, the latest date on
which Norene’s retention of the children occurred, suggest abandonment. It is
undisputed that Iain was in frequent contact with the children during this period via
telephone and Skype, and for a good deal of it, he had no reason to believe that
anything had changed. The evidence is likewise uncontradicted, as the Court has
already discussed, that Iain sent money to Norene and that she had unrestricted ability
16

to use their joint credit card. Nothing changed in this regard changed between
November 2010, when Norene filed for divorce, and late January 2011. Norene still had
access to their credit card,5 and Iain remained in frequent contact with the children, as
he does to this day. There was no abandonment of the children by Iain, and he was
actually exercising his custody rights at the relevant time.
For these reasons, the Court concludes that Iain has established the necessary
elements of a claim of wrongful retention under article 3 of the Hague Convention.
2.

Exceptions / defenses to return of children
Norene has asserted certain exceptions under the Hague Convention that

authorize a court not to order the return of a child wrongfully retained or removed. See
Hague Conv. art. 13. Defenses under the Hague Convention are construed narrowly
“so their application does not undermine the express purposes of the Convention.”
Yang v. Tsui, 499 F.3d 259, 278 (3d Cir. 2007); see also, e.g., Larbie v. Larbie, 690
F.3d 295, 308 (5th Cir. 2012); De Silva v. Pitts, 481 F.3d 1279, 1285 (10th Cir. 2007);
Rydder v. Rydder, 49 F.3d 369, 372 (8th Cir. 1995). Norene bears the burden of
proving any such defense by a preponderance of the evidence. 42 U.S.C. §
11603(e)(2)(B).
Norene appears to contend, at least implicitly, that Iain was not actually
exercising custody rights at the time of the retention. See Hague Conv., art. 13(a). The
Court has already found that Iain has proven that he was, in fact, exercising those
rights. For the same reasons, Norene has failed to prove otherwise by a
preponderance of the evidence.
5

The credit card was later cancelled, but not by Iain. Rather, the evidence is uncontested that
the bank that issued the card terminated it due to fraudulent charges made in the New York
area.

17

Norene also contends that Iain had consented to, or subsequently acquiesced in,
the retention of the children by Norene in the United States. She has failed to prove
either by a preponderance of the evidence, and again, the evidence is not close. Iain
took prompt steps to seek relief via the Hague Convention. See Walker, 701 F.3d at
1115. 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 relies 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. He answered the divorce petition in August 2011. In late
December 2011, Iain filed a motion for summary judgment in the Illinois divorce case,
arguing, based largely on Norene’s September 2011 testimony in the present case, that
the Illinois court lacked jurisdiction because neither of the parties was a resident of
Illinois (as Illinois law defines that term) at the time Norene filed the divorce petition.
Nothing about this or any other aspect of his participation in the case suggests
acquiescence in the children’s retention in the United States.
In late January 2012, Iain’s Illinois attorney withdrew from the divorce case at his
request. Iain testified that he ceased participating in the Illinois divorce proceedings
because he believed the Illinois court lacked jurisdiction but would not give him or his
arguments fair consideration. Even if his belief was incorrect, and even if one might
argue that it did not warrant a cessation of his participation in the Illinois divorce case,
there is nothing about Iain’s actions that suggests that this represented acquiescence in
the children’s retention in the United States. Even while ceasing participation in the

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Illinois divorce case, Iain continued to pursue vigorously in this court and on appeal his
challenge to Norene’s retention of the children. The Court finds based on the evidence
that Iain’s ongoing challenge to Norene’s retention of the children has been part of a
genuine and good faith effort to assert and seek appropriate adjudication of his
custodial rights. In case the point needs to be made even clearer, the Court finds that
Iain has not challenged the children’s retention here simply to give him a bargaining
chip in the parties’ divorce proceedings. The admissible evidence does not support
such a conclusion.
Nor did Iain consent to the children’s retention in the United States in the first
place, to the extent that remains an issue. As the Court has already discussed at length
in connection with the habitual residence and wrongful retention issues, the parties’
mutual intention was that the children would return to Australia within six to twelve
months after their arrival in the United States in June 2010. As the Court has stated,
the evidence overwhelmingly supports this finding. Things changed, as Norene herself
testified, only months later, in January 2011. The evidence does not support a
conclusion that Iain consented at any time before that to the children’s retention in the
United States.
Norene also cites the fact that Iain obtained, at Norene’s request, school records
for the children to facilitate their enrollment in school here. This does not support a
contention that Ian consented to or acquiesced in their retention here. First, this
appears to have occurred in September 2010, before Norene wrongfully retained the
children here and even before she filed for divorce. See Respondent’s Ex. 49. At that
point, getting the school records was completely consistent with the parties’ shared

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intention to have the children stay in the United States for six months to a year and then
return. In any event, a parent’s cooperation in making sure his children are properly
educated can hardly be viewed as indicating acquiescence in their wrongful retention in
another country.
In sum, Norene has failed to support her defenses under article 13(a) of the
Hague Convention. And to make clear this Court’s answer to the court of appeals’
second question at the end of its decision, Iain’s participation and non-participation in
the Illinois divorce proceedings does not indicate that he either consented to or
acquiesced in the children’s retention in the United States.
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.
“As with any of the affirmative defenses under the Convention, this defense is to
be construed narrowly.” Yang, 499 F.3d at 278; see also England v. England, 234 F.3d
268, 272 (5th Cir. 2000). “The exceptions are construed narrowly so their application
does not undermine the express purposes of the Convention.” Yang, 499 F.3d at 278
(internal quotation marks omitted). In addition, application of the child objection
exception is discretionary. Specifically, even if the exception is proven, a court has the
discretion to order the return of the child if it would further the aim of the Convention,
which is to provide for the return of a wrongfully removed or wrongfully retained child.
Silva, 481 F.3d at 1285; see also Yang, 499 F.3d at 278.

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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. This Court followed the same practice at the trial just conducted.
The three children are a fifteen year old girl who will turn sixteen on March 18 of
this year, a thirteen year old boy who will turn fourteen in August, and an eleven year
old girl who will turn twelve in June. All three are bright and pleasant children, and they
were all responsive to questions, though the two girls appeared a bit more outgoing
than the boy. The older daughter had a sheet of handwritten notes that she consulted
from time to time.
All of the children are doing well in school, better than they were doing during the
period shortly after they first came to the United States. All of them are 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 has contact with some of her friends from Australia,
and all of them remember living there and that they liked it when they were there. The
middle child stated that he is 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 finds that the two older children have reached an age and maturity at
which it is appropriate to take account of their views. This is arguably a closer question

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for the younger daughter, but the Court will assume for purposes of discussion that she
likewise has reached a sufficient age and maturity for the article 13 provision to apply.
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) (citing Dept. of State,
Hague International Child Abduction Convention: Text and Legal Analysis, 51 Fed.
Reg. 10494, 10510 (Mar. 26, 1984); In re Robinson, 983 F. Supp. 1339, 1343 (D. Colo.
1997). There is evidence of that here. First, as indicated earlier, the middle child’s
apparent anger with his father arises from 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 is constrained to
conclude that their statements were subject of some degree of influence, and it is
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 do 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 have become acclimated to living here, and they

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have become settled in. It is both understandable and predictable that they do not now
wish to relocate. It is likewise understandable and predictable that they have a far
closer connection with their mother, with whom they have lived for this extended period,
than with their father. But all of this is, 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.” Id.
In determining custody, the Australian courts no doubt will take account of all the
relevant circumstances, including the fact that the children have all been in school in the
United States for an extended period, have friends here, and are involved in activities
here. But given the strong likelihood that the children’s wishes arise in significant part
from the extended time they have spent here already, the direct result of their wrongful
retention by Norene, the Court will not decline to order their return to Australia based
upon their wishes to remain here.
Conclusion
For the reasons stated in this Memorandum Opinion and Order and in the Court’s
order dated March 15, 2013, the Court has entered judgment in favor of the petitioner
and has directed the respondent to immediately return the parties’ three children to

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petitioner in Australia.

________________________________
MATTHEW F. KENNELLY
United States District Judge
Date: March 16, 2013

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