On Appeal from the United States District Court for the District of Delaware D.C. Civil Action No. 04-cv-00308 (Honorable Joseph J. Farnan, Jr.).
The opinion of the court was delivered by: Scirica, Chief Judge.
Submitted Pursuant to Third Circuit LAR 34.1(a) May 26, 2005
Before: SCIRICA, Chief Judge, ALITO and GARTH, Circuit Judges
This is an appeal from the denial of a petition for the return of a child to Australia under the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, 19 I.L.M. 1501. The principal issue is whether the District Court correctly held the petitioner consented to the removal or retention of the child under article 13(a) of the Hague Convention, defeating his claim for return. See Baxter v. Baxter, 324 F. Supp. 2d 536, 538 (D. Del. 2004). We will reverse and remand.
Henry G. Baxter initiated this proceeding on May 13, 2004 by filing a petition in the District Court of Delaware seeking the expedited return of his five-year old son Torin to Australia. The petition alleges that his wife, Jody Amanda Baxter, wrongfully retained Torin in the United States under the Convention, and that Torin's custody should be decided by an Australian court.
Although the parties disagree on the reasons for Mrs. Baxter and Torin's trip to Delaware, the factual background is straightforward. On September 2, 2003, Mrs. Baxter and Torin traveled to the United States from Australia without Mr. Baxter. They took up residence at the home of Mrs. Baxter's mother and sister in Selbyville, Delaware.*fn1 Within two weeks of her arrival, Mrs. Baxter commenced a relationship with Kelly Stidham, a local contractor working on a project at her mother's house. Fourteen days later, Mrs. Baxter and Torin moved in with Mr. Stidham. A few days thereafter, Mrs. Baxter telephoned her husband in Australia and demanded a divorce. Mrs. Baxter and Torin have since been living in the home of Mr. Stidham.
Before September 2003, Torin and his parents lived together as a family in Australia.*fn2 Their lifestyle was itinerant. During the first four years of Torin's life, the family lived in several remote settlements in the Australian outback, and also spent a year in Ireland. Mr. Baxter moved from job to job, and the family moved from place to place. The Baxters' last home together was on Bathurst Island, an aboriginal community in the Tiwi Islands, in Australia's rugged Northern Territory. By all accounts, their stay there was short and troubled. The community was beset with problems, including petrol sniffing and domestic violence. The couple eventually decided the environment was unsuitable for their child, and that Mrs. Baxter and Torin should leave Bathurst Island and travel to the United States to visit Torin's grandmother and aunt, whom the child had never met.
The parties dispute whether the purpose of the trip to Delaware was to relocate definitively in the United States or to visit relatives for a time while giving the family an opportunity to plot a new course. The evidence demonstrates that Mrs. Baxter and Torin flew to the U.S. on one-way tickets, and that Mrs. Baxter took with her important personal and family documents.*fn3 At the same time, they left behind in Australia with Mr. Baxter a large number of possessions, including personal effects and toys.
The District Court conducted a full evidentiary hearing where the parties and other witnesses testified. Affidavits were entered into the record without objection. Mr. Baxter testified that before learning of his wife's affair with Mr. Stidham, he had planned to rejoin his family in Delaware for the Christmas holidays. He sent a letter to his employer on the Tiwi Islands asking for leave in December, and purchased an airplane ticket to the United States. Mr. Baxter testified that he was open to the idea of looking for work in the U.S. during the trip, but that it might not prove feasible. Otherwise, he claims the plan was that the family would probably return to Australia, once he found a new job and a new place for them to live. The parties agree there was no talk of divorce or separation prior to Mrs. Baxter and Torin's departure.
For her part, Mrs. Baxter testified that the idea of the trip was to escape the troubled community on Bathurst Island while Mr. Baxter tried to establish a new business selling solar-powered water purifiers to remote outback dwellings. She testified that the move to the United States was "permanent, because [Mr. Baxter] didn't want to worry about us." On the other hand, she admitted that the plan was for Mr. Baxter to rejoin her and Torin in Delaware over Christmas. She also testified that "it wasn't until [she] met Mr. Stidham that everything changed and [she] decided to end [her] marriage and live with Mr. Stidham."
The testimony from Mrs. Baxter's family is also inconclusive about the trip's purpose. Her sister testified, based on telephone conversations prior to Mrs. Baxter and Torin's arrival, that the primary goal of the trip was to visit family, and that exploring the possibility of a move to the U.S. was secondary. Her mother, on the other hand, testified that "[Mrs. Baxter] and Torin were coming over to live, and to establish a home, education." Mrs. Baxter's mother enclosed a ...