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NORDEN-POWERS v. BEVERIDGE

December 22, 2000

CHRISTO NORDEN-POWERS, PETITIONER,
V.
INGA KARIN LORETTA BEVERIDGE, A/K/A INGA NORDEN A/K/A INGA NORDEN-POWERS, RESPONDENT. JOHN BEVERIDGE, PETITIONER, V. INGA KARIN LORETTA BEVERIDGE, A/K/A INGA NORDEN A/K/A INGA NORDEN-POWERS, RESPONDENT.



The opinion of the court was delivered by: Garaufis, District Judge.

MEMORANDUM AND ORDER

John Beveridge and Christo Norden-Powers ("Petitioners") petitioned this court on December 18, 2000 for the return of their respective children under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11670, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,494 (1986) (the "Hague Convention" or "Convention"), implemented by the International Child Abduction Remedies Act ("ICARA"), 42 U.S.C. § 11601-10 (1988). Petitioner John Beveridge is the father of John Richard Luke Beveridge, born February 11, 1987, and Chloe Beveridge, born November 2, 1988. Petitioner Christo Norden-Powers is the father of Aimee Angelique Norden-Powers, born July 7, 1994. Inga Karen Loretta Beveridge ("Respondent") is the mother of all three children. Petitioners seek an order returning John, Chloe and Aimee (collectively the "Children") to Australia, which is their undisputed country of habitual residence under the Convention, for further custody proceedings.

I. FACTUAL BACKGROUND

Petitioners' applications to this court (Exhs.1, 2), including appended declarations, documentation and testimony at a hearing before this court on December 21, 2000 allege the following undisputed facts. The Children resided with Respondent in Australia until September 18, 2000 pursuant to orders of the Australian Family Court. (Exhs.1, 2.) Petitioner John Beveridge enjoyed certain parental visitation rights and was considered a joint guardian under a 1994 Consent Order and Australian Family law. (Exh. 1.) Petitioner Christo Norden-Powers also enjoyed parental rights and visitation rights under a 1999 Family Court Order and Australian Family law. (Exh. 2.) On September 18, 2000 Respondent removed the Children to Long Island, New York, from their residence in Australia without the Petitioners' knowledge or consent. (Exhs.1, 2.) Shortly before their departure Respondent, a citizen of the Republic of Germany, secured German passports for the Children in Sydney, Australia. (Exhs.1, 2.) Upon learning of the Children's disappearance, Petitioners separately petitioned the Australian Family Court ex parte for relief.*fn1 (Exhs.1, 2.)

The Family Court requested the Australian Federal Police to investigate and locate the whereabouts of the Children and return them to Australia. (Exhs.1, 2.) The location of the Children in the Eastern District of New York was ascertained through investigation by Petitioners with the aid of the Australian Federal Police. (Exhs.1, 2.) It was further discovered that Respondent had purchased, in Australia, one-way plane tickets for herself and the Children departing Sydney on September 18, 2000 for New York and continuing on to Frankfurt, Germany on December 23, 2000.*fn2 (Exhs.1, 2.)

Petitioners also applied to the United States Department of State and the Australian Attorney General's Office, which have been designated pursuant to the Convention as the Central Authority for each of these respective countries. By letter dated December 20, 2000 Jennifer Degeling, the Principal Legal Officer in the Australian Central Authority for the Hague Convention, set forth the Australian law concerning Petitioner's rights in regard to their children pursuant to the procedures under Article 15 of the Convention. (Exh. 4.) That letter was supplemented at the request of this court by letter dated December 22, 2000 stating, in pertinent part: "[u]nder the Family Law Act of 1975 [as amended], both parents retain parental responsibility for their children until they reach the age of 18. . . . In effect, this means that each parent is jointly responsible for decisions about such things as education and schooling, religious upbringing, medical insurance and treatment." (Exh. 5.)

Petitioners filed this petition December 18, 2000 before this court seeking, ex parte "warrants in lieu of writ of habeas corpus" and temporary custody of each child by the respective father pending further proceedings in this court under the Hague Convention for the return of the Children to Australia. This court issued an Order and Warrant in Lieu of a Writ of Habeas Corpus on December 20, 2000 ordering Respondent to appear and show cause why a writ of habeas corpus should not issue and why the Children should not be returned to Australia. A Hague Convention hearing was held on December 21 and 22, 2000.

II. APPLICABLE LAW

The Hague Convention entered into force on October 25, 1980 "to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence." Hague Convention, Preamble. Both Australia and the United States are signatories (or "contracting states") to the Hague Convention. See Hague Convention, List of Signatories; see also Brooke v. Willis, 907 F. Supp. 57, 59 (S.D.N.Y. 1995). Under ICARA, state courts and United States district courts have concurrent original jurisdiction of actions arising under the Convention. See 42 U.S.C. § 11603(a).

To prevail in a Hague Convention proceeding a petitioner must prove by a preponderance of the evidence that the child has been "wrongfully removed or retained within the meaning of the Convention." 42 U.S.C. § 11603(e)(1)(A). In deciding a claim of wrongful removal under the Convention, a federal district court may not reach the merits of the underlying custody dispute. See Brooke, 907 F. Supp. at 59-60. The court may only address the merits of a wrongful removal and whether or not the Children should be returned to their place of habitual residence. See Blondin v. Dubois, 189 F.3d 240, 245 (2d Cir. 1999). Article 3 of the Convention provides that:

the removal or the retention of a child is to be considered wrongful where:
(a) it is in breach of rights of custody attributed to a person . . . 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 . . . or would have been so exercised ...

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