Findings of fact and Conclusions of Law Argentina through Austria

ARGENTINA

ARGENTINA-CANADA: (1997) (Return ordered) Matteo v Parodi. Child taken by the mother to Canada. Superior Court ordered return of child to Argentina. Court of Appeal upheld Superior Court's decision. ARGENTINA-ISRAEL: (2001) (Return ordered) ALTHEIM v ALTHEIM. The father took his son to Argentina. The mother files for his return under the Convention. The court found that the habitual residence was Israel and ordered the return. Concerned that conditions might get worse in Israel, the court postponed the return for two months.Note by Wm. M. Hilton: Pursuant to the letter of 15 Mar 2002 from the State of Israel, Ministry of Justice, to Edwin Freedman, Attorney, the minor child was given over to the custody of the mother on 05 Dec 2001 and returned to Israel. ARGENTINA-USA: (1992, 1993) (Return denied on appeal) Pefaur v Pefaur. Court ruled that the "home state" for the three children is Argentina and declined to except jurisdiction over the three children. On appeal, the court determined that the children were not wrongfully removed because of the threat of violence, and that the court did have jurisdiction. ARGENTINA-USA: (1993) (Return ordered) Lanzilotta v Tommaso, Two children taken to the USA by the mother and returned to the father in Argentina. ARGENTINA-USA: (1998) (Return denied) ZUKER v Andrews. Two children taken by their mother to USA. Judge ruled that Zuker's (the father) petition for return of child to Argentina is dismissed as without merit. Children not returned.

AUSTRALIA

AUSTRALIA: Summary of several cases done in Australia. Many of these cases are on Bill Hilton's site in more detail. Check here to see if one of these cases will help you litigate. AUSTRALIA-AUSTRIA: (1992) (Return ordered) BROWN v BROWN, 1992. Father takes child to Australia. Child ordered returned to Austria. Judge had his decision and copies of various photographs sent to the Austrian authorities in order to determine custody. (See next case) AUSTRALIA-AUSTRIA: (1997) (Return denied) DIRECTOR-GENERAL OF THE DEPT. OF COMMUNITY SERVICES (for the father) v MOTHER, Mother took children from Austria to Australia. Father applied for their return. Return to Austria denied. AUSTRALIA-CANADA: (1988) (Return ordered) OTTENS v OTTENS, Mother took children to Australia. Mother is ordered to return the children to Canada. AUSTRALIA-CANADA: (1988) (Return ordered) COWARD v COWARD. Mother takes child to Canada. Court ordered the forced return of the child to Australia with the father. AUSTRIA-CANADA: (1997) (Return denied on appeal) HABSBURG v DONATH. Mother took the child to Austria. The lower court denied the return. The father appealed, the appeal was denied. AUSTRALIA-ENGLAND/WALES: (1994) (Return ordered) Lower court ordered child returned to Australia. Mother appealed, appeal dismissed, child ordered returned to Australia. AUSTRALIA-FRANCE: (1992) GAZI v GAZI AUSTRALIA-ISRAEL: (2002) (Return ordered by lower court, overturned on appeal) (Grave Risk) (War Zone) GENISH-GRANT v DIRECTOR-GENERAL DEPT of COMMUNITY SERVICES. This is an appeal by the mother against orders form the lower court ordering the return of the children to Israel. The appeal was allowed. AUSTRALIA-MALAYSIA-USA: (1997) STATE CENTRAL AUTHORITY (for the father, SMITH) v AYOB AUSTRALIA-NEW ZEALAND: (1993) (Return ordered) Mother took children to Australia from New Zealand. The mother claimed abuse by the father. Children were ordered returned to New Zealand. Mother appealed. Appeal dismissed. AUSTRALIA-NEW ZEALAND: (1993) POLICE COMMISSIONER OF SOUTH AUSTRALIA v BENNETT AUSTRALIA-NEW ZEALAND: (1994) (Return ordered) THE CENTRAL AUTHORITY FOR NEW ZEALAND (for the father, MADDEN) v HOFMANN: Child was taken by the mother to New Zealand. Child was ordered returned to Australia. AUSTRALIA-SCOTLAND: (1993) (Return Denied) (Consent) ZENEL v HADDOW. The mother took the child to Scotland. The father applies for the return under the convention. The mother and father were not married. The lower court ruled that the father had consented to the mother and child's return to Scotland if things did not work out. The decision of the court of First instance was upheld on appeal. AUSTRALIA-SWITZERLAND: (1988) (Return ordered) GSPONER v JOHNSTONE, Child abducted to Australia by his mother. Lower court orders the child returned to Switzerland. Mother appeals. Appeal dismissed. AUSTRALIA-UNITED KINGDOM: (1987) (Return ordered) HICKS v HICKS. Mother takes child to Australia. Court orders the child returned to the United Kingdom. Return is delayed until the mother has a chance to oppose the return under article 13. AUSTRALIA-UNITED KINGDOM: (1988) (Return denied based on age of maturity) The Mother consented to the child leaving England to visit the father. She also consented to the child residing permanently with the father in Australia. Judge ruled the child had reached an age of maturity and denied the return to England based on the child's wishes. AUSTRALIA-UNITED KINGDOM (1988) (Return ordered on appeal) (Undertakings) ENGLISH MOTHER v Australian father. mother takes child to England. English Judge refused to return child to Australia. Father appealed. Appeal allowed with Undertakings. AUSTRALIA-UNITED KINGDOM: (1988) (Return ordered on appeal) EVANS v EVANS. Father took one of his children to England. Lower court ordered the child returned to Australia. Father appealed. The Supreme Court of Judicature ordered the appeal dismissed. AUSTRALIA-UNITED KINGDOM: (1990) (Return denied) CURRIE v SLADE. Child born out of wedlock. Lower courts and appeals court denied return of the child from England to Australia. Removal was not wrongful because Australian law gives the unmarried mother sole custody and guardianship of her child. AUSTRALIA-UNITED KINGDOM: (1992) (Return denied on appeal) (Abduction and Acquiescence) Mother removed children from Australia to England. Lower court ordered the return of the two children to Australia. Mother appealed. Appeal allowed, returned denied. AUSTRALIA-UNITED KINGDOM: (1993)(Return ordered with undertakings) McOWAN v McOWAN, Mother took children to England. The Court ordered the mother to return with the children after the father agreed to a set of undertakings. Once in Australia, the father changed his mind and stated he would not honor the undertakings. Court addressed what happens when the children are returned under order of another country's courts. The Court also addressed the enforceability of undertakings. AUSTRALIA-UNITED KINGDOM: (1994) (Return ordered on appeal) (Acquiescence) (Abduction) Mother took children to England. Lower court ordered their return. Mother appealed, appeal was dismissed. AUSTRALIA-UNITED KINGDOM: (2000) (Return Denied, Return Ordered on Appeal) DEPERTMENT OF FAMILIES, YOUTH AND COMMUNITY CARE v BENNETT. Mother retains the child in Australia. Father files for return under the Hague Treaty. Lower court denies the return holding it would be "unwise" for the mother to travel to the UK (health reasons). With the mother not there, it would place the child in an 'intolerable situation". The decision was reversed on appeal and the child was ordered returned to the UK. The court felt that the courts of the UK were able to handle any concerns raised by the mother. AUSTRALIA-USA: (1989) (Return denied) GOLLOGLY v OWEN, Mother took four children to Australia. Return requested and denied. The application by the Director-general is dismissed. AUSTRALIA-USA: (1989) (Return ordered) BECKER v BECKER. Father takes children to USA. Judge ordered the return of the children to Australia. AUSTRALIA-USA: (1993) (Return ordered) BAXLEY v BAXLEY. Mother takes children to Australia. Judge orders the return of the children to USA. AUSTRALIA-USA: (1994) (Removal was wrongful) LEIGH v UNDERWOOD. Mother took the children to USA. Husband applied to the Australian Court for a judgment that the removal from Australia was wrongful. The Judge issued an order that the removal was indeed wrongful. There was no appearance for the mother in court. The courts of the USA would handle return. AUSTRALIA-USA: (1994) (Return Ordered on Appeal) KEEN v COFFIELD. Lower court ordered the child returned to Australia with the mother. Father appealed, lower court order was affirmed, the child was ordered returned. AUSTRALIA-USA: (1994) (Return denied) FEDER v EVANS-FEDER, Mother takes child to the USA. The court ruled that the habitual residence of the child is the United States and the petition to have the child returned to Australia is denied. Father appeals. (See below) AUSTRALIA-USA: (1995) (Return ordered on appeal) FEDER v EVANS-FEDER. Court of Appeals reverses the lower court and finds that Australia was the habitual residence of the child. AUSTRALIA-USA: (1995) (Return ordered) (there is a great discussion of "Grave Risk" on pages 12-16) KARIDES v KARIDES, Mother took child to Australia. Court rules that the child should be returned to the United States. AUSTRIA-USA: (1996) (Return denied) DICKBAUER v DICKBAUER. Mother took child to United States. Father asks that the child be returned to Austria. The Court determined that the habitual residence of the child was the United States and that New York was the proper forum to hear all matters concerning custody and visitation. AUSTRALIA-USA: (1996) (Return ordered) WALTON v WALTON, Mother took children to the United States. Father sought to have his child returned to Australia. (Mother had a son by a previous marriage) Court ordered the child returned to Australia. AUSTRALIA-USA: (1997) (Return ordered) STATE CENTRAL AUTHORITY (for the father, SMITH) v AYOB, Mother takes child to Malaysia, a Non-Hague country. Mother goes to Australia to visit. The State Central Authority requests return to USA. Child ordered returned to the United States. Judge allowed the parents counseling and maybe alleviate the necessity for the return. AUSTRALIA-USA: (1997) (Return ordered on appeal) SMITH v SMITH, Mother took child to the United States and failed to return him. Father seeks return. Court orders return of the child to Australia. This case was appealed. Appeal failed, child ordered back to Australia. AUSTRALIA-USA: (1998) (Return to Australia allowed) (Relocate) CONDON v COOPER. Lower court allowed the mother to take the children back to Australia. This decision was appealed and the appeals court issued instructions to the lower court to incorporate the mother's concession of continuing jurisdiction of the CA courts into its order, allowing the mother to return with the child to Australia. In other respects, the terms of the judgment are affirmed USA-UNITED KINGDOM: (1992) CROFTON V CROFTON. (Return ordered) Mother removes the children from the United Kingdom to USA. Father seeks relief pursuant to the Hague Convention. Children are ordered returned to the UK by the New York court. AUSTRALIA-USA: (1999) (Return Denied) (Habitual Residence) KANTH v KANTH. The mother takes the children to the United States. The father applies for their return under the convention. The court ruled that the habitual residence of the children is the US. The father's petition for return is denied. AUSTRALIA-ZIMBABWE: (2002) (Returned Denied) (Diplomatic Immunity) CENTRAL AUTHORITY v PROKOP. The mother takes the children to Australia for a visit and refuses to return to Zimbabwe. The Central Authority applies for their return. The court ruled that because diplomatic Immunity exists the courts in Zimbabwe would not be able to hear custody matters. (See notes by Bill Hilton)

AUSTRIA

AUSTRIA-CANADA: (1997) HABSBURG v DONATH AUSTRIA-USA: (1994) (Children placed under the protection of the courts) BROWN v BROWN, 1994, Mother took child to California to visit relatives. Father followed. Based on pictures taken by the mother, it was ordered by the court that the child not be returned to Austria. The court relied on an Article 13 (b) defense. Mothers petition to return the child to her habitual residence was dismissed. (See below) AUSTRIA-USA: (1996) (Return denied) DICKBAUER v DICKBAUER. Mother took child to United States. Father asks that the child be returned to Austria. The Court determined that the habitual residence of the child was the United States and that New York was the proper forum to hear all matters concerning custody and visitation. AUSTRIA-USA: (1999) (Return allowed) BROWN v BROWN, 1999, In 1995 the Juvenile court decided that the child no longer needed supervision and the mother went back to Austria. Then, Austria denied the fathers petition to return the child to California. This court affirmed the lower court order and gave full faith and credit to the Austrian court's orders.