USA – FL – HAEFELI – 1989 (Return ordered) HAEFELI v WARREN. The father keeps the child in England following a scheduled visitation. The father takes the child to Israel, Egypt, and the United States. The court ruled that the child was wrongfully removed and ordered the child returned to Switzerland.
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Court: Circuit Court of the 20th Judicial District, CollierCounty, Florida.
Number: 89-0459-CA-01-CTC
Applicant: Katharina Haefeli
and
Respondent: Derek Warren
Date: 21 Feb 1989
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IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
IN RE: The Application of )
)
KATHARINA HAEFELI, )
)
Petitioner, )
)
and ) CASE NO. 39-0459-CA-01-CTC
)
DEREK WARREN, )
)
Respondent. )
_________________________________)
TRANSCRIPT OF PROCEEDINGS
Before the Honorable Charles T. Carlton, Judge of said Court,
at the proceedings in the above-styled cause on February 21, 1989,
commencing at 3:15 p.m., at the Collier County Courthouse, Naples,
Florida.
APPEARANCES:
For the Petitioner: EUGENE A. LOJEWSKI, ESQ.
5101 East Tamiami Trail
Naples, Florida 33962
For the Respondent: No Appearance
PROCEEDINGS
THE COURT: Be seated, please.
THE BAILIFF: No talking in the courtroom, please.
THE COURT: We are here this afternoon on the matter of the
application of Katharina Haefeli, Petitioner, and Derek Warren,
Respondent.
Are the parties ready to proceed?
MR. LOJEWSKI: Yes, we are, Your Honor.
THE COURT: Are you ready to proceed, sir?
MR. WARREN: Yes, sir.
THE COURT: Do you have an opening statement?
MR. LOJEWSKI: Yes, Your Honor, a brief opening statement, and
this is necessary to the nature of this case. There have been no
cases filed, in the State of Florida, with respect to the Hague
Convention Treaty.
On July 1, 1988, the Treaty went into law with United States
as ICARA, the International Child Abduction remedies Act.
By way of explanation, prior to the enactment of that Treaty,
if a child crossed international lines, there was very little way
to get expeditious return the child to the country where the child
habitually resided.
The Treaty was enacted and provides, among other things that
a person can apply privately, as she has; to the Court for relief
under the terms of the Treaty, that it can be done through a State
agency, if one exists, none exist in the State of Florida, and it
provides that the Court will take direct knowledge of the laws of
the other states. It provides further that any attachments to a
petition for the exercise of the Hague Convention powers, that any
papers attached to that are admissible in Court without necessity
of further proof.
It provides for a fast method for the Court to return the
child to the parent that was the residential parent of the child
in the other country. It further does provide in the United
States, as a mandatory thing, that all costs and expenses of the
petitioning party be borne by the Respondent. In other countries,
it’s at the option or the court; in the United States, it’s
mandatory. Part of the reason it is mandatory in the United
States is because of the fact that we don’t have a comparable
system, such as Great Britain does, where they provide the aid to
people in these kind of cases at no cost and no charges. Here,
expressly in our act, the petitioning party must bare all costs
and expenses, but has the right to have the Court order that the
Respondent to pay.
The requirements under the Convention are that you have to
prove that the taking was wrongful. You have to prove where the
habitual residence of the child was, and you have to prove that
there are no defenses to the taking of the child.
With those allegations being met, then the Court does not,
and expressly in the Federal Register and also the Court in the
contracting statements in this case, the United States, in
particular, Florida, does not make any custody determinations of
the child. It is left to the laws of the country in which the
custody proceedings can be brought. In this case, the country
that would be involved would be Great Britain. It is not totally
dissimilar from the UCCJA with the exception of those elements
that I mentioned. We do have, coming in from London, certified
copies of the decree of the courts of London.
One other thing, at the time of the divorce, there was no
award of custody made by the parents. Apparently this was not
unusual in London. Under the Hague Convention, additionally, which
is distinct from the UCCJA, terms of the Treaty do not require an
order of that state, of that country, in this case, Great Britain,
granted custody.
So, even if they had not given the order February 10 granting
her provisional custody, she still would be able to come in under
Hague Convention and petition this Cour for return of the child to
Switzerland. That is the opening statement.
THE COURT: All right, sir, do you care to make an opening
statement?
MR. WARREN: Yes, I will. Thank you.
Perhaps I can say first that, because I didn’t know about
this case until yesterday afternoon, a public holiday, I have had
no time to find an attorney who is briefed on what’s relatively
new law in this country, the Hague Convention, and introduced in
July of last year. Also, because of what’s been happening in the
UK, my assets have been frozen. I don’t have access to my bank
account, my credit cards have been withdrawn, and that makes it
even more difficult to retain an attorney in this country, but I
am prepared to make my own case, to represent myself, and I have
taken some legal advice.
The main points I would argue, as the attorney has
acknowledged, there was no custody order made. Therefor, in my
opinion, I had as much right to have my daughter with me as my
former wife had to go with her at the time she began traveling.
I think the other major point I would like to make is that if
she is returned to the custody of my wife, my ex-wife, that would
mean she would go to Switzerland, not to England, that was my
problem originally. I couldn’t get a court case in England where
the findings of that court would actually be complied with in
Switzerland. My access arrangements were being curtailed. I felt
very upset about that, and I tried every way I could, but was
unsuccessful while the child was in Switzerland.
I will contest that it’s her habitual residence. She is now
almost nine years old. She lived for six-and-three-quarter years
in England. She has also returned to England seven times since she
went to live in Switzerland.
THE COURT: Thank you. Call your first witness, please.
MR. LOJEWSKI: My first witness is Katharina Haefeli, the
Petitioner.
THE BAILIFF: Face the clerk and raise your right hand,
please.
WHEREUPON KATHARINA HAEFELI,
the Petitioner herein, having been first duly sworn, testified as
follows:
DIRECT EXAMINATION BY MR. LOJEWSKI:
Q Will you state your name, please?
A Katharina Haefeli.
Q I’ll call you Kathy, it’s easier, if you don’t mind.
Kathy, are you the Petitioner in the action to invoke the terms of
the Hague Convention?
A Yes, sir.
Q Kathy, have you read the Petition that was filed in this
particular case?
A Yes.
Q Do you know if the facts in it are true and correct?
A Yes, they are.
Q Could you tell me when you and your husband, ex-husband,
got divorced?
A Our divorce came through, it would be May, two year ago
in ’87.
Q When did you leave England?
A I left England the Christmas before, Christmas of ’86.
Q Did you leave England with your child?
A That’s right.
Q What were the terms of your leaving with the child? Was
the court there notified?
A Yes.
Q Was it with the court’s approval that the child was
removed to Switzerland?
A Yes.
Q How long did you reside in Switzerland with the child?
A Ever since now.
Q During that period of time, were visitation arrangements
made for the child to see the father?
A Yes.
Q What were these arrangements?
A Well, the arrangements were, basically, that Jessica
should go over to England four times a year, for a holiday, one to
two weeks, and that her father should also be able to come and
visit her, which he did, and that she should be able to write to
him, and they should be able to phone each other.
Q Was that, in fact, done?
A Yes.
Q Now, how did your ex-husband, the father of the child,
how did he obtain the child Christmas of 1988?
A I sent Jessica over on December 24th on a flight to
London for a holiday, which she was going to spend with her dad
for a week, the duration of the week.
Q Was he to return the child then at a date certain?
A No.
Q Was he to return the child back to you?
A Yes, he should have returned her on that January 1st.
Q What happened thereafter?
A I just received a message on that day that my daughter
wouldn’t be coming home.
Q Okay. Did you have any written communication from him?
A Yes, the week after, I did. There was also a phone call.
I tried to contact my ex-husband to find out what was going on. I
finally got to talk to him. He just said he wouldn’t return
Jessica for now; he wasn’t going to tell me where she was. I
should just wait until he sent me a letter, and I should just
wait and read the letter first, and then he would talk to me on
the phone again.
Q I am now showing you a copy of the letter, another copy
of which is filed with the court. Can you identify that letter?
A Yes.
Q Is that the letter that you received?
A Yes.
Q Without reading the whole letter, does that letter state
that he is not going to return the child?
A Yes. It actually states that he wasn’t happy with the
visiting arrangement, that he didn’t see enough of Jessica, and
that he was going to keep Jessica for a year, and he was planning
to travel probably in Africa.
Q Did he subsequently then go to Africa?
A As we did find out, yes, he did go to Egypt.
Q How did you obtain that information?
A Well, not right away, we found out. We asked the Swiss
Authorities to tap our phones, because we knew that he was going
to phone at a certain time, and the Swiss Authorities then found
out that the phone call was coming from Jerusalem, Israel.
Q So, he traveled from Egypt to Israel?
A No, he traveled from England to Israel, first, and then
on to Cairo, Egypt.
Q At any time during that period of time, did you have any
contact with your child?
A Yes, Jessica was allowed to phone, and she also wrote.
Q Okay. Was she allowed to tell you where she was?
A No.
Q What happened next?
A Well, INTERPOL Israel did trace him back and confirmed
that they were in the country, and they were also able to tell me
the date they arrived in the country. They promised me that they
would not be able to leave the country then.
The next thing that happened, we had a Telex from INTERPOL
again saying that Jessica was now in Cairo, Egypt.
Q How did you trace her to the United States?
A It was my lawyer in England finding out that the
daughters of my ex-husband’s girlfriend were going to meet her in
Miami.
Q Did you get any other letters from your former husband,
the child’s father?
A Yes.
Q Did any of those letters reflect that he was not going to
return the child?
A Yes.
Q Did they make any comments about where the child
belonged?
A That’s right. He wrote in his last letter that he was
certain that Jessica belonged to England, and that she ought to go
to school in England.
Q Is it costly for you to stay here in the United
States?
A Yes.
Q Is it necessary for you to return to Switzerland with the
child?
A Yes.
Q What about the family that you have in Switzerland; what
do you do with them?
A Well, it’s very difficult at the moment, because I do
have a nine-month old daughter from my second marriage now, and
she does need me. I have a very good friend looking after her at
the moment, but the sooner I can return, the better. I’ve also
got two stepsons, aged 12 and 8, and obviously, they miss me, too.
Q All right. So, your return to Switzerland, as soon as
possible, is very, very important?
A Yes.
Q Are you asking this Court to release the child in your
custody for return to Switzerland?
A Yes.
Q Have you filed an affidavit, at this time, with the Court
as to your expenditures at this time?
A That’s right.
Q Is it a complete affidavit?
A Yes.
Q Well, from the standpoint that you have more costs and
expenses that are not listed on that affidavit?
A It’s possible.
Q For example, I am showing you a copy. Is this the
affidavit that you signed? The original is with the Court file.
A That’s right.
Q Item 6 reflects that there are additional expenses. Are
you willing to provide them to the Court for consideration at a
future date?
A Yes.
MR. LOJEWSKI: Your honor, I have no further questions.
THE COURT: Would you care to ask any questions?
MR. WARREN: Yes. Thank you, Your Honor.
CROSS-EXAMINATION BY MR. WARREN:
Q Could you say what the original agreement was that we had
when you went to live in Switzerland with Jessica, how often I
would have access to her and what contact I would have with her?
A I think the original agreement was that Jessica should go
over to England five times a year, and that her dad should be able
to come to Switzerland to visit in between; obviously, too, that
they should be able to write to each other and to have phone
calls–
Q Did I say —
A — but, we also said that we would review the situation
after one year, because there was no telling how Jessica could put
up with traveling forwards and backwards to the United Kingdom
over time. As a matter of fact, it wasn’t possible for her to fly
over five times a year because of holidays. She only got a holiday
four times a year.
Q Could you say then what arrangements you proposed to
changing those access arrangements in June of last year?
MR. LOJEWSKI: Your Honor, respecfullly to the father of the
child, the issues under the Convention are restricted to wrongful
detention and any possible defenses for those which are not
dissimilar to the UCCJA. Quite frankly, Switzerland and England
and the United States are all signatory countries to the Treaty.
The rights are also covered under the Hague Convention, and can
easily be done between the countries of Great Britain and
Switzerland. In fact, the proper forum that would be the courts
of London or a transfer, for jurisdictional purposes, even though
jurisdiction is not in it, transfer to Switzerland if that state
has more in contention with respect to a custody dispute, but the
Hague Convention does address those issues, but between Great
Britain and Switzerland, not in this Court. He has not filed a
petition for enforcement in this court.
THE COURT: All right. I’m going to overrule the objection.
Go right ahead.
MR. WARREN: Thank you, Your Honor.
CONTINUED CROSS-EXAMINATION BY MR. WARREN:
Q Could you then say what the arrangements for access you
proposed in June of last year were?
A I’m very sorry, I haven’t got the paper on me.
Q Well, just from memory then.
A Yes. From memory, I think we said four times a year that
she could come over, and that we always agreed on alternative
Christmases. That’s another thing.
Q Maybe I could rephrase the question. Could you tell us
what were the major changes in your proposal to the access
arrangements from what they were originally to what you were then
proposing?
A The major changes were we realized that it wasn’t
possible if Jessica came for Christmas, then she should come over
five times. That was impossible, because she didn’t have enough
holidays to come over five times, so we said four times a year.
We said, really, three times a year plus alternate Christmases.
Q What about phone calls?
A And we did say that it was too much if you phoned every
week.
Q What were you proposing?
A I was proposing once every fourth night (Editor’s note:
Probably every fortnight [14 days])–
Q Sorry, your memory has slipped.
A — once every fourth —
Q You were asking, proposing, once every month. Anything
else you can remember about what you were proposing?
A No, I’m sorry, I don’t.
Q Can you remember what you said would happen if I didn’t
agree to those proposals that was also written in the proposal
that you handed to me?
A Yes, we did say that we would go before the Swiss court.
Q No, sorry. Can you say what you proposed would happen in
terms of my access to Jessica if I didn’t agree?
A That we would cut down.
Q In what way?
A That you wouldn’t be able to see her, because you did not
agree to that.
Q Do you think that sounds like a mutual agreement over
access to Jessica?
A No, it wasn’t a mutual agreement. You never agreed to it.
That’s why we then called in the international social people to
help us out and to talk about it.
Q Who called in the International Social Services?
A You did. That’s right.
Q I’m sorry to raise this. Can you say whether you feel
Jessica gets along well with your new husband?
A Yes.
Q You feel she does?
A Yes.
Q Do you feel she is scared of him?
A No.
Q Do you feel that she has been scared about the problems
raised when I phoned, because of his reaction?
A Yes.
Q Why do you think that is?
A Because you have been intruding into our family life.
Q I ‘m talking about when I have phoned as we have agreed?
A No, it was not a problem when you phoned as it was
agreed. It was not a problem.
Q When would you say we stopped complying with the original
agreement for phone calls to be every week with me phoning
Switzerland one week, and Jessica phoning England on alternate
weeks?
A I don’t remember, and I don’t think that’s relevant at
this point.
Q I think it is.
MR. WARREN: Okay. Thank you very much, Your Honor.
MR. LOJEWSKI: I have no further questions, Your Honor.
THE COURT: You may step down. Call your next witness,
please.
MR. LOJEWSKI: Your Honor, we do not have a next witness.
We are ready to rest out case and make a short, brief closing.
THE COURT: All right, sir. At this time, you have an
opportunity to present witnesses or make any statement under
oath, if you so desire.
MR. WARREN: I would like to make a statement, and I will
keep it as brief as possible. May I make it from here?
THE COURT: Yes, sir.
Swear the witness, please,
WHEREUPON DEREK WARREN, the Respondent herein, having been first
duly sworn, testifies as follows:
MR. WARREN: There arc several inaccuracies, first of all,
that I would like to point out in the Petition that is before the
Court. If I could refer, Your Honor, to specific sections of it.
On the first page, Count One, No. 4, “The Petitioner has a
right of custody,” of the child’s mother, under the meaning of the
Convention. In my opinion, as the attorney said right at the
beginning, no custody order was ever made in the UK. When our
divorce settlement went through, because the Court knew in
advance that Jessica was going to be leaving, with my consent, to
live in Switzerland, and therefore going outside the Courts
jurisdiction, they made no custody order, and they gave no order
of parental power. [Editor’s Note: Guardianship, Legal Custody]
What they did agree to was a Section 41 certificate, which
says that the Court recognizes that the arrangements made for the
child are adequate, and that they have been agreed to by both
parents. We agreed on an affidavit, presented by my former wife,
laying out access arrangements, which I reluctantly agreed to, and
it provides that we will review it after one year, and the
affidavit launched [Editor’s note: Should this be “lodged?”] by
me with the Court in England said that will be happy to have it
reviewed after one year, because I would consider in that time the
access arrangements should be improved.
I thought it was important for the first year, when she was
going to live in a new country, learn a new language, that I
shouldn’t be too disruptive, but then my access to her in the two
years previously, when we have been separated, have been very
good, and I would like to see it returned to something like that,
although the problems with living in two countries would have
to be taken into account.
Prior to my former wife moving back to Switzerland, Jessica
has spent every other weekend with me, half of all her school
holidays, and also, fairly frequent visit during evenings of the
week when my former wife was working, and I was in Oxford as part
of my job. So, I had very frequent access to her, and I would
like to see that continue.
So, I would certainly challenge thee is any right of custody.
In my opinion, I never gave up any rights to my daughter; I never
wanted to give up any rights to my daughter. I wanted to have as
much involvement in her life as possible, and I wanted to be, as
far as possible, in the circumstances, a full partner in her
up-bringing. I certainly did not intend ever to forego any rights
of custody or parental power.
The second inaccuracy, as far as I am concerned, in here
would be on Page 2, Count One, No. 5, “Pursuant to said Court
orders, Petitioner is the custodial parent of the minor child.”
For the same reason, I would not accept that that is correct. On
the same page, under No. 6, “at which time he notified the
custodial parent that he was emigrating to Africa.” That is
simply not the truth.
Your Honor, you have before you, I think, a copy of my letter
which I sent explaining what I intended to do. I said I would be
traveling and working for a period of a few months. There was a
very specific reason for that apart from anything else, my
intention was to take my daughter back to school in England, since
she had been in Switzerland for two years, living and working in
school in Germany. I felt she needed some time to catch up, and
my intention was to work on a free-lance basis and to spend time
with her as her personal tutor, which I have done. I have all the
books, textbooks; I have the work she’s done in the six or seven
weeks she has spent with me. I have the timetable that we agreed
between us to work to, and I had several discussions with schools
and teachers in England before I left to make sure that when we
went back, she would be at the required standard when she went
back into school. I am happy to lay before the Court all the work
she has done in the previous seven or eight weeks.
On the same page, No. 7, “habitually a resident of
Switzerland,” I am not sure of a definition, under the Convention
“habitually a resident,” but she spent far more of her life in
England than she has in Switzerland.
Under No. 8 on the same page, “Respondent has traveled
extensively throughout the world in his attempt to elude the
authorities.” I went to Israel, where I spent five weeks living in
an apartment in secure surroundings doing some work where Jessica
had a base in which we could do some work, a study room in which
she could work independently. I then left Israel, purely, to get a
Transatlantic flight. It’s much cheaper to do that from Egypt than
from Israel. I traveled to Cairo, were I spent three days booking
a flight on Transatlantic on route to Mexico to do some more work,
where we had an apartment planned, where we had some work to do,
exactly the same circumstances.
The reason for coming into the United States is again,
because it’s much cheaper to fly in the United States. I would
also — my partner’s sister lives here in Naples, and we came to
visit, to give her an opportunity to see her children on route to
Mexico. So, I think the tone, the impression, that that gives,
that I was somehow Jetting from place to place to avoid people
contacting me is not correct.
I think those are the main points I would pick out in terms
of purely inaccuracy in the Petition that is before you. The major
points I think I want to make are that the Hague Convention
certainly says that signatory countries should try to insure
custody, but it also has a duty to try and insure access.
I feel that my access rights have been severely curtailed,
and I should add that I feel very strongly, on the basis of the
time I’ve spent with my daughter, that she would feel much more
comfortable living in England. She would prefer to do that. She
loves her mother very much. She doesn’t want not to see her
mother. But, she would feel happier, more content, living in
England, living with me. I would be very happy to go with
extremely liberal access rights, including the right to phone
anytime, et cetera, the rights I would like to have had.
In that respect, I don’t believe Your Honor is in the
position to make that order today, but I think it worth noting,
and I thank that’s the case. The other point, of course, is I
don’t believe any custody order was ever made, and therefore, I
cannot be accused of having absconded with my daughter. I feel I
have every right to take her with me.
There is a lot of history, I think, that I could go back over
that might throw light on the case, but I think, at this point,
unless Your Honor would like to hear more about what I consider to
be the problems involved, then I will stop. One, perhaps, two
very brief points I would like to make.
One is that the papers that I referred to, for instance, the
letter I was given in the middle of last year stating new access
rights would be imposed on me and that if I didn’t agree —
perhaps I could actually tell you exactly what it did say. If I
didn’t agree to the access arrangements being proposed, that no
future international phone calls would be allowed, and Jessica
would not be allowed to come to England, and I would lose any
rights to come and visit her. That’s if I didn’t accept the new
conditions.
The major points of contention was phone calls, where the
original agreement was once a week; it was being reduced to once a
month. I feel that was extremely unreasonable for a eight-year old
child. That’s a very long time. That would mean I would lose
contact with her, when I feel I have had an extremely strong
relationship with her. I would urge, Your Honor, if it’s possible
to do that, to talk to people from social services and to talk to
my daughter, herself, to get some impression. She is an
articulate, intelligent child. She would be very happy to talk to
you and to tell you what she feels, and I would urge you to do
that before you make any decision.
The other point I would raise is that she has extensive
family in Britain, not just myself. During her formative years,
she was extremely close to my brother’s family and her cousins and
her paternal grandmother. All of whom live in Wales. But, each
time she comes to England, almost, we take her to visit, because
she is very close to them. Any denial of access rights which make
her visits to England less frequent makes it more difficult for
them to keep in contact with her. And, I think that would be,
from her point of view, a great disappointment, and I think it
would be to her detriment if that were to happen.
I think that’s all I want to say at this time. Thank you,
Your Honor.
MR. LOJEWSKI: Your Honor, I have no need to cross-examine
him.
THE COURT: All right. Do you have any rebuttal testimony?
MR. LOJEWSKI: No rebuttal testimony, Your Honor. We are
ready to close.
THE COURT: Any closing arguments?
MR. LOJEWSKI: Yes, Your Honor.
I am going to read from the Federal Register, Volume 51,
Number 58, Wednesday, March 26, 1986, at Page 10,505. It says,
“Predecree Removals or Retentions: Children who are wrongfully
removed, retained, prior to the entry of a custody order are
protected by the Convention. There need not be a custody order in
effect in order to invoke the Convention from (sic) [Editor’s
note: this should read: . . .the Convention’s return . . .]
return provisions. Accordingly, under the Convention, a child
would be ordered returned to the person with whom he or she was
habitually resident in predecree abduction cases, as well as in
cases involving violations of existing custody orders.”
The Convention, because of the fact that in some countries,
there might be what we call a custodial parent without the
necessity of court order, the Convention directly addresses that
that is what happened in this particular case. The child went to
Switzerland with approval of both parents. Switzerland became the
habitual resident place of the child, and these are Hague
Convention terms, a custody order has, Your Honor, been
subsequently entered, but the testimony both by the mother and by
the father indicates that the child has resided in Switzerland,
and in the case further, that the child was, just for a short
period of time, to be in England for the holidays.
The father of the child, Mr. Warren, has used the Convention
terms of access rights. He, apparently, has read the Hague
Convention, because this is the terminology utilized under that
Convention. It does protect his access rights, too, but this forum
is not the right forum to do it in. The forum to do it in would be
the place where the child habitually resides, which is
Switzerland. So, his referral to the use of the Convention for
that purpose should be over there. The courts in this country are
limited, basically, to determine that there was wrongful taking,
and a wrongful taking as also defined as one in which the child
has not returned after visitation. That’s in the Federal Register
on the next page.
In this particular case, the evidence is quite replete by
both parties that the child went to visit, that the child did live
in Switzerland, and the child was not returned. As such, all of
the terms of the Convention are met, and the remedies are to
return the child to the person with whom the child habitually
resided, which, in fact, is the mother of the child. We are,
additionally, asking, since this is an international case, return
of the passport, which we believe in possession of the father.
THE COURT: Do you care to make a final argument, sir.
MR. WARREN: Yes, I would. Thank you Your Honor. I think
when I allowed my daughter to go Switzerland, I did that in good
faith, expecting the agreement we had made would be complied with.
It was only when they were not complied with, which, in my
opinion, made them no longer valid, that I decided to take some
action. I would stress very strongly that my former wife has made
very clear that if Jessica is released into her custody, she will
return to Switzerland.
My major problem, in over a year-and-a-half, is trying to do
something about my access arrangements, because it is not possible
to do that in Switzerland, where the rights of the father are not
recognized. The order, as I understand it here, the one you have
before you from the Court in England is actually, apart from
anything else, the two aspects of the order are, in fact, in
direct contradiction of one another, which I feel strongly should
make the order invalid, or should at least make Your Honor
question strongly which of the aspects of the order should be
taken.
The order before you from the High Court in London says, “It
is ordered that the Defendant, Derek Warren, do return or cause to
be returned, Jessica Warren, to the jurisdiction of England and
Wales forthwith, and return the said minor to the care and control
of the Plaintiff.”
If you release her to the care of her mother, she will go to
Switzerland not to the jurisdiction of England and Wales. I would
be very happy to go back to England or Wales and to raise my case
in the courts there. I have never had the opportunity to do that,
I will not have the opportunity to do that if you release her to
her mother, because she will go to Switzerland, and I will not
have access to her.
Thank you, Your Honor.
THE COURT: Anything further?
MR. LOJEWSKI: Anything further has already been stated
previously, Your Honor.
THE COURT: All right. Well, the Court today has been called
upon to make a legal decision whether or not the Hague Convention
does apply to this particular case. The Court feels that it does.
The Court is bound by the rules of this international treaty.
I have heard the facts today, and based upon that, I feel
that there has been an illegal abduction of the child, and that
the child should be returned to the mother who may take the child
to England or to Switzerland or wherever she may reside.
This is not to say, sir, that you do not have legal rights.
Your legal rights are not in this country. They’re in the courts
of Europe, not in the courts of the State of Florida. In what you
have told me here today, it can certainly be litigated in that
country.
The Convention was designed to prevent things like this from
happening. Instead of going through the court system to have an
orderly resolution of this matter, you seemed to take matters into
your own hand without having a prior approval to do so, so the
Court is going to order the child returned and refer the matter to
the courts for their resolution.
MR. LOJEWSKI: Your Honor, I have a proposed order that
reflects that the passports be returned to the mother, and
provides similar to what you have said.
What you did not cover in your order is where it specifically
says that he shall pay all costs of travel and other incidence.
It is mandatory, under the implementing legislation, which is in
H.R.3971, it says, “Any Court ordering the return of a child
pursuant to an action brought under Section 4 shall order the
Respondent to pay necessary expenses incurred by of on behalf of
the Petitioner, including Court costs, legal fees, foster home, or
other care during the course of the proceedings in the action and
transportation costs related to the return of the child.”
THE COURT: All right. I have read this order, and I feel it
is an appropriate order, and the Court has executed the same.
MR. LOJEWSKI: Thank you, Your Honor.
THE COURT: Anything further?
MR. LOJEWSKI: No, Your Honor.
THE COURT: Stand in recess.
(Whereupon, at 4:10 p.m., the hearing concluded.)
—————————————————————–
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA
IN RE: THE APPLICATION OF:
KATHARINA HAEFELI
Petitioner
CASE NO. 89-0459-CA-01-CTC
and
DEREK WARREN
Respondent
____________________________/
ORDER ON PETITION FOR RETURN OF CHILD
THIS CAUSE having come before me on this 21st day of
February, 1989, and the Court having heard testimony of the
parties, and being otherwise fully advised in the premises, it is
hereby
ORDERED:
1. That Petitioner, KATHARINA HAEFELI has invoked the
jurisdiction of this Court pursuant to the International Child
Abduction Remedies Act.
2. This Court determines, upon testimony, that the
Respondent, DEREK WARREN, has wrongfully removed and retained the
minor child, JESSICA WARREN, from the care and control of the
Petitioner, KATHARINA HAEFELI.
3. This Court finds that the habitual state of residence of
the minor child, JESSICA WARREN, is the country of Switzerland.
4. This Court orders that the child, JESSICA WARREN, be
returned to the care and control of her mother for the return to
Switzerland. The Respondent, DEREK WARREN, shall immediately
return the passport of the child to the attorney for the
Petitioner.
5. This Court, pursuant to PL 100-300, the International
Child Abduction Remedies Act, expressly finds that Respondent
shall pay all costs of travel, incidental costs, and legal fees
incurred by the Petitioner, KATHARINA HAEFELI, in this action.
The Petitioner to this action shall file her affidavit with
respect to all costs and fees incurred for a further Order of this
Court.
DONE AND ORDERED in Chambers, Naples, Collier County,
Florida, this 21 day of February 1989.
/s/ Charles T. Carlton
_____________________________
CHARLES T. CARLTON
CIRCUIT COURT JUDGE.
[Editor’s note: In a subsequent order of 01 May 1989, the Court
order DEREK WARREN to pay the sum of $9318.46 for fees and costs.]
=================================================================
Counsel:
Applicant Respondent
Eugene A. Lojewski, P.A. Derek Warren
Attorney At Law In propria persona
5101 E. Tamiami Trail, No. 204
Naples, Florida 33962
(813) 793-1010