The children, both girls, were four and thirteen at the date of the alleged wrongful retention. They had lived in the United States for the majority of their lives. The parents, both American citizens, were married and had joint rights of custody.
In 1997 the family moved to Australia to enable the father to take up a job there. In June 1999 the family travelled to the United States for a vacation. The father returned to Australia alone in July. The mother and children stayed because of concerns over the health of the paternal grandfather. A few weeks later the mother filed for divorce in the United States and refused the father’s request to return the children to Australia.
The father filed a Convention return application in the District Court in Texas. Following a finding by an Australian court that the children were habitually resident in Australia, the Texas court heard the return application.
However, it refused to make a return order, finding that the older child would suffer psychological damage and indeed objected to going back. The younger child would not be returned as the court did not want to separate the children. The father appealed.