Grave Risk – Art. 13(1)(b)
Frequently moving home from one state to another and the possibility that the father might move again from his present home in Nebraska was not sufficient to amount to a grave risk of physical or psychological harm to the children. The moves had been with the acquiescence of the mother, had involved the whole family and were for the purpose of upgrading accommodation or otherwise benefiting the family. Past or future moves were to be considered under the best interest of the child test.
The mother alleged that the father slapped and spanked the children in an uncontrolled manner and that he shouted at her and called her names in front of them. Furthermore, she alleged that in 2002 the father had pushed her down the stairs while under the influence of alcohol, that he had choked her on 24 August 2008 following an argument, and that on one occasion he had wielded a knife over his daughter as she slept.
In summer or September 2008, the mother alleged that the father threw her against the kitchen counter in the presence of her son. This caused bruising to her wrist and abdomen. The next day the father was alleged to have sexually assaulted her. The facts and time of the incident were disputed by both the father and the son. The father was also alleged to have prevented her from leaving by taking her car keys and cell phone and disabling the car.
The Court held that the spanking of the children, the choking of the mother and the knife incident were not credible. Furthermore, these allegations should have been referred to in affidavit #1 and not in affidavit #2 as they related to the children.
It was found that there was an altercation between the father and mother in summer or September 2008 but dismissed the son’s account as unreliable and having been influenced by other people. It was inconsistent with the mother’s version of events. The mother had not proved on the balance of probabilities that returning the children to the USA exposed them to a grave risk of psychological or physical harm or otherwise placed them in an intolerable situation.
The Court ordered the return of the children to the USA subject to undertakings. Save for the divorce, the father was to set aside the order of the Texas Court granting him custody of the children and the mother supervised access.
Furthermore, he was to commence proceedings in the Texas Court following the children’s return so that it could determine the custody dispute afresh. He was to pay the children’s air fare to the USA and to provide funds to the mother for their support. Finally, he was to allow the mother to care for the children pending the custody application.
Issues Relating to Return
The father no longer lived in Texas from where the children were wrongfully removed and now lived in Nebraska. The Court ordered that the children be returned to his home in Nebraska. Citing Murray v. Director, Family Services, the Court stated that Article 12 of the Convention did not prescribe the place to where the children should be returned (1993 FLC 92-416).
The Court stated that the policy of the Convention permitted it to return the children directly to the father regardless of where he now resided. The Convention was sufficiently flexible to allow the return of the children to a State other than that of their habitual residence or to a different place in the State of habitual residence.
Authors of the summary: Jamie Yule & Peter McEleavy