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Author Topic: Kidnapped to Australia - Hague hearing went against us & the ACA declines to app  (Read 1809 times)

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Offline Nadomichele

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I'm new to this forum, so please bear with me.  I know this sounds like an overly dramatic soap opera but it's all true and we need help.
 
My daughter (K) married an Australian here in the U.S. in March of 2008 when they found out they were expecting a baby.  Because health care in AU is free, they moved there to deliver the baby in November 2008.  She hated it there so they moved back home in June 2009, only to get pregnant again at the end of 2009 so they moved back to AU to deliver the 2nd baby in June of 2010.  By Oct 2010, they'd moved back to the U.S. and remained here until Sept 2011.  My son-in-law (B) applied for and was granted both a green card and a U.S. Social Security card during this time but felt he could make more money in AU, so they returned there until Sept 2011.  His family is very wealthy and very prominent in their (very) small town and his parents were drugging my daughter to keep her compliant (stepfather owns pharmacies, mother is a nurse).  They tried to have her committed to a mental facility and I was actually on the phone with her when the staff from the mental hospital came to try to commit her.  It was agreed that she and the kids would come back to the U.S. and that she would try to get treatment - although she was adamant to them that she was homesick, not clinically depressed, and that there was no pill or cure for homesickness.
 
After returning home, she realized she could never be happy in AU and told her husband that.  He never asked that she return, or that the children return, and sent her money sporadically for their expenses here.
 
He came over in April 2012 to finalize his green card and brought the kids back to AU with him for an agreed-upon month-long visit.  They returned to the US as scheduled.
 
In July 2012 he started asking that she send them for a 4 month visit, starting at the end of Aug to encompass Christmas.  We have emails from the stepfather (P) assuring us that he would see it it that they returned to the US, and texts from B promising that "we won't keep them, we're good people, we just want them over Christmas".
 
Christmas came & went, and emails & texts were exchanged.  Some said "come get your kids, what kind of a mother lets her children go for 4 months", others said "we're never letting them go".  P recanted his promise to see to it that they would come home and so K went there in Mar 2013 with the intent of bringing her kids home.
 
P called Customs in AU & warned them that K was on her way in to the country and was smuggling drugs (not true) and she was detained for 7 hours on arrival.  She was released, finally, and no charges were ever filed but that set the tone.  There was an argument that night, B pushed K out of the house & locked her out.  She accidentally broke a window trying to climb back in and they called the police & pressed charges against her for malicious vandalism.  B's late father was a police officer in this small town & his picture hangs on the wall - can you guess where their allegiances might lie?  P applied for, and was granted, a restraining order on B's behalf although B told K the next day or so that he had asked that it be dismissed.
 
B & K reconciled after a fashion and continued to live in the house together (living under the assumption that the restraining order had been dismissed) until May 2013, when B had the children removed from their preschool without notifying K and refused to tell her where they were.  She was frantic, naturally, and P & B were taunting her that she wouldn't ever know where they were.  There was a physical altercation and B punched K in the cheekbone, nearly fracturing it.  I was getting hysterical phone calls from her during this entire event & you can imagine my feeling of helplessness from 9,000 miles away.
 
It turned out that the restraining order had never been dismissed, and because of the physical altercation - even though K was the one physically injured (B is 6'5", 200 lbs.  K is 5'5", 125 lbs), she was arrested and taken to jail!  I continued to get hysterical phone calls from her & contacted the Embassy on her behalf - which was just about useless.  They told me they'd fax her a list of attorneys in the area.............where?  In the jail cell???  She was allowed to keep her cell phone & sent me photos of her swollen face & was able to keep me posted as to what was going on.  She was finally released after several hours.
 
I left here the next day & flew to AU to take care of my daughter, and to see if I could help to bring the kids home, only to find that all 4 of their passports were locked away in the safe at P's pharmacy and they were refusing to allow us to bring them home.
 
At a hearing held in the local court in July 2013 on the altercation event in May, B testified that he had detained the kids beyond the agreed-upon visit dates and that he hadn't consulted with K in making that decision.  K's Legal Aid attorney asked him the question several times, in several ways, and each time his response was the same.  He testified that she had had no input into the decision, that he & his parents had made that decision, and that he knew that it violated the agreement they'd had about how long the kids were going to stay. 
 
Upon my return to the U.S., I filed a Hague application on K's behalf (I have her Power of Attorney), including the transcript of B's testimony, and it was ultimately accepted by our State Department and sent to Australia, where it was also accepted.  Based on his testimony and the other evidence we provided, we were pretty confident that the Hague decision would go our way.
 
The Hague hearing was originally scheduled in Federal Court in Sydney - P was able to have it moved to Family Court in Brisbane...........where he'd bragged for years about his influence on lawyers & judges (he's a multimillionaire).  The judge in the hearing started out by declaring that this was the clearest case of Hague he'd ever seen - FOR THE FATHER!!  His stance was that we'd kidnapped the children when they & K returned to the US in Nov 2011........even though B had never once asked for their return or ever filed anything making that claim.  In other words, the judge bent over backwards to give B something he'd never even asked for.
 
Contrary to the very narrow confines of a Hague hearing, the judge allowed B's attorney to grill K on alleged drug use that even their side admitted had allegedly ended 3 years before they ever met.  They've made these claims througout all of the various visitation hearings, and even though K provided her U.S. medical records dating back to her childhood, they've been allowed to continue to make the allegations.  It's very obvious that, while in the U.S., you are innocent until proven guilty, in AU, the opposite is true and somehow you are guilty unless you can prove you're innocent and even then, you're guilty.
 
Because she continues to deny the drug allegations, she's been branded a liar and the judge's ruling says that if/since she's lied about that, she must be lying about everything else and therefore his ruling is in favor of B!
 
There's also a question of habuitual residence - which, as you all know, is a grey area in the Hague Convention.  Although we provided a table clearly showing that the majority of the children's lives had been spent here up until the time of the abduction, the judge said he went back to the last place K&B had agreed to live and that would be AU.
 
The ACA reviewed the decision and, 3 weeks later, sent K an email saying that they declined to appeal it.  They also told her that the law is you have 28 days after the decision is rendered to file an appeal - so, since they'd held it for 3 weeks, she had 1 week to find another attorney and to file an appeal.
 
Our contact at the State Dept has been mostly unresponsive - even though she'd chastised us earlier for reaching out to the ACA directly.  Our last 4 emails to her have gone unanswered and we're about at the end of our rope.  My daughter has now been there for over a year and refuses to leave without her children but we can't believe that this is now her life.
 
I was told about this group last night and am hoping somebody has some advice/guidance/direction/anything that can help me to bring my family home.  The kids are 5 and 3 and tell me in our daily conversations that they "want to come home to Mimi's house".  They know that Daddy has their passports but don't understand why Mommy & Mimi can't just get new ones.
 
If only it were that easy.
 
Thanks so much for reading through to the end of our drama - I look forward to any glimmer of hope you may be able to offer.
 
Michele

Offline rmakielski

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What you refer to as “dramatic soap opera” is common reality. In any high conflict custody fight the losers are always the children. Being in high conflict custody dispute myself, I can empathize with any parent that is denied rightful access to their children. The element of violence makes it even worst.
You mentioned there was some type of agreement. Was Hague application requesting for return or access. Was there a court ordered custody prior to the Hague application, if so, from which country. From your narrative, this is not a wrongful removal. This eliminates any US law enforcement involvement. For a return application, The Hague court in AU will then need to determine habitual residence, if the children are wrongfully retained, and if there is an exception to their return. Overall they are going to decide which country has jurisdiction over child custody. While the Hague process is ongoing, AU cannot make a ruling on custody. Depending on the facts there may be a chance that custody can be ordered in the US. Likely, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) will be used to determine the “home state” of the child i.e. jurisdiction. It could go either way. If habitual residence is determine to be AU and the children are ordered to remain with the father, then your daughter can apply for access rights. I am no attorney, so please consult one before taking any irreversible action.
From my personal experience, your daughter has many advantages as opposed to the case of my children’s abduction. If she is still on speaking terms with the father, I urge her to take the peaceful path of mediation. It is better for the children. But whatever path she chooses, I offer this advice I received from my attorney: “what you do and say will be used against you”. Be a model international citizen.  Once the fate of the children is placed in the hands of a court there is no negotiation. For your grandchildren and daughter’s sake, I hope for an amicable solution as it would be best for all.
I place the my children rights above my own; Children have the right to have a relationship with both parents; I stand against domestic violence and child abuse; The amicable return of Abducted children is the best solution; I will obey the laws of the United States

Offline Nadomichele

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I appreciate your response and will try to address some of the points you've raised:
1.  There was no court order in place (from either country) when the children went for the "visit" in Aug 2012.
2.  The Hague application was a request for their return - we were completely unaware of the access request until the judge mentioned it in the Hague hearing in Mar 2014.  At no time did our point of contact in the U.S. State Department ever mention it to us.  As we're doing this on our own without legal assistance here in the U.S., we relied on her for that information.
3.  The question of habitual residence is a grey area and difficult to determine.  We were able to provide documentation that the kids had spent the bulk of their lives here in the U.S. (27 months vs. 14).
4.  I plan to spend the weekend familiarizing myself with the UCCJEA.
5.  She and the father are definitely not on speaking terms, and the transfer of the children is done between she and her mother-in-law.  I wish that mediation (or any peaceful avenue) were available to her but it's never going to happen.  They, particularly the father-in-law, have expressed over & over that they don't care about the kids - it's all about crushing my daughter.
 
I wish you luck with your situation - nobody should ever have to go through this.

Offline rmakielski

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It’s a shame OCI did not give you more information. Do expect much from OCI. They fall under consular affairs and really of not empowerment whatsoever other than to monitor your application submitted to a foreign central authority. They could of at least advised you that there were two options for the under The Hague. But perhaps it may be a good tactic to avoid or delay a custody determination in AU. Without a previous court order combined with the length of time the children spent in each county habitual residence is a grey area. I am sure you have a better chance with the rule of law in AU as opposed to some of us that have our children abducted to model banana republics. With all the ugliness, I encourage your daughter to take the high road. Hopefully she can find legal counsel that can help without be excessively costly. The sad thing is that the children are ones damaged.
I place the my children rights above my own; Children have the right to have a relationship with both parents; I stand against domestic violence and child abuse; The amicable return of Abducted children is the best solution; I will obey the laws of the United States