Aims of the Convention – Preamble, Arts 1 and 2
The United States District Court for the Northern District of California cited the Court of Appeals for the Sixth Circuit in Friedrich, where it stated that “[t]he affirmative defences…offer an opportunity, in extraordinary cases, for a court in the country of flight to consider the practical realities of the situation”.
However, in Friedrich it was noted “that in most cases the duty of that court, when the niceties of the Convention are met, is to return the child to the country of habitual residence for resolution of the custody dispute under the laws of that country”. See Friedrich v. Friedrich, 983 F.2d 1396 at 1403 (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142].
Consent – Art. 13(1)(a)
The Court found that the father had either implicitly or explicitly consented to the child’s removal to the United States of America by giving the child’s passport to the mother with the knowledge that she intended to take him to the United States of America.
One of his wife’s relatives had informed him of this intention prior to the transfer of the passport. The Court found that by this action the father had acceded to the child’s removal from Australia, as it would be unreasonable to give the child’s passport to the mother for any other reason.
Grave Risk – Art. 13(1)(b)
A return to Australia would expose the child to grave psychological harm arising from the discord and alleged abuse between the parties.
Although there was little evidence to suggest a risk of physical harm, the tempestuous relationship between the parents meant that a return would reinstate the child into a highly stressful and psychologically damaging environment. This was particularly the case because the mother had relatively little familial support in Australia.
Issues Relating to Return
The mother had argued that a return order would render her completely reliant on her estranged husband or the Australian state for support throughout the custody proceedings.
Authors of the summary: Jamie Yule and Peter McEleavy
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