parental responsibilities and listed certain rights which are
considered to be "rights of custody" enjoyed by Petitioners
including "decisions about such things as education and
schooling, religious upbringing, medical insurance and
From the Australian judicial decisions sanctioning Petitioners'
exercise of their rights, the agreement between Respondent and
Petitioner John Beveridge, and the operation of Australian law as
evidenced by the clarifications of the Family Court and the
Australian Attorney General Petitioners derive significant
rights. The sizeable bundle of rights vested in Petitioners under
Australian law distinguishes this case from Croll, in which
petitioner possessed nothing more than the limited custodial
power arising by operation of a ne exeat clause in a custody
order granting respondent "sole custody and control." See
Croll, 229 F.3d at 135; see also Hague Convention, art. 5
("`rights of custody' shall include rights relating to the care
of the person of the child and, in particular, the right to
determine the child's place of residence") (emphasis added).
Thus, Petitioners possess "rights of custody," as understood
under the Convention and by the Second Circuit, of such magnitude
that this court is constrained to conclude that Respondent's
removal of the Children was "wrongful," in violation of those
Nonetheless, relief may not be afforded Petitioners if one of
the exceptions outlined in the Convention applies. While
separation from any parent and travel back to Australia may be
unsettling to these Children, Respondent has failed to prove by
clear and convincing evidence that return presents a grave risk
of harm. See Hague Convention, art. 13(b). The level of risk
and danger required to trigger this exception has consistently
been held to be very high. See Blondin, 189 F.3d at 249
(vacating judgment barring return and remanding for consideration
of remedies which would allow for return even when there was
convincing evidence of abuse of child); see also Friedrich v.
Friedrich, 78 F.3d 1060, 1068 (6th Cir. 1996) (defining standard
of risk as when return places child in imminent danger prior to
the resolution of the custody dispute, e.g., returning child to
war-zone, place of famine, or site of disease or in cases of
serious abuse or neglect, or extraordinary emotional dependence,
when courts in the country of habitual residence may be incapable
or unwilling to give child adequate protection). Respondent does
not suggest an Article 20 exception applies, nor does she allege
that the Children have settled into their new environs such that
return would be barred under the Convention. See Hague
Convention, arts. 20, 12.
Respondent does allege that Petitioners were not exercising
their "rights of custody" at the time of the Respondent's removal
of the Children. See id., art. 13(a). Respondent fails to prove
this allegation by a preponderance of the evidence. See
42 U.S.C. § 11603(e)(2)(B). The most generous reading of the record
in favor of Respondent shows that Petitioners have been active,
if not dogged, in their exercise of their rights of custody. As
discussed at length above, the Petitioners each participated in
decision-making regarding the education and social welfare of
their children, looked after their medical needs and participated
in the care of the person of each child. Finally, each Petitioner
contacted their children less then 16 days before their removal.
Christo Norden-Powers saw Aimee on September 3, 2000, and John
Beveridge had contact with John and Chloe on September 11, 2000.
As discussed previously, both Petitioners testified extensively
as to their recent exercise of their "rights of custody."
Further, the Australian Family Court record of actions preceding
the Children's removal is a testimonial to the ongoing efforts of
Petitioners, and indeed, Respondent, to exercise control over the
care and the persons of the Children. Hence, Respondent's
argument is without merit.
Lastly, the court "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 [the child's] views." The court
interviewed John and Chloe in camera with reference to their
feelings toward returning to Australia. Further, the guardian ad
litem representing all three Children submitted a report, (Exh.
7), documenting the concerns of Aimee, as well as John and Chloe.
In the interviews and the report the most significant issue was
the desire of all three Children to stay together. Each child
also expressed a desire to stay with Respondent. While this court
is sympathetic to the concerns of each child, their voiced
preferences did not rise to the level of an "objection to return"
as understood under the Convention. Thus, this court cannot
refuse to return under this exception.
Because Respondent's removal of the Children violated the Hague
Convention and no exceptions apply, this court must order the
Children be returned to Australia.
WHEREFORE it is hereby ORDERED:
that Aimee Angelique Norden-Powers shall be returned to
Australia forthwith in the custody of Christo Norden-Powers, and
that John Richard Luke Beveridge and Chloe Beveridge shall be
returned to Australia forthwith in the custody of John Beveridge.
IT IS SO ORDERED.