Family Law

Grave Risk of Harm and Hague Convention: Judge orders girl back to Australia

By Jeremy Morley

A Sheridan (Wyoming) woman who fled Australia with her young daughter a year ago must -- according to the rules of an international treaty -- return the child on April 8 to that country where her convicted rapist father is in jail, according to an order by Chief U.S. District Judge William Downes.

"To be absolutely clear, the Court is not discounting Respondent's (the mother's) allegations of rape or ignoring Petitioner's (the father's) constant pattern of extremely poor behavior," Downes wrote in the March 10 order. "Ordering the return (of the child) to Australia is the sad duty of this Court, but it is clearly required by law. If harm should come to (the child) and her mother because the Petitioner is lawless and indifferent to the orders of any judge, the fact that this Court obeyed the law will be cold comfort," Downes wrote after considering arguments at a Feb. 28 hearing by attorneys for Jill Maloy and Robert Charles Wilesmith. Downes also implored the Australian judicial system to ensure the child's and mother's safety.

Meanwhile, Maloy has filed an emergency motion to stay -- or stop -- the order to return the child, and soon will file a notice of appeal to the 10th U.S. Circuit Court of Appeals in Denver, her attorney Jeremy Morley of the International Family Law Office, based in New York, said Tuesday.

Wilesmith filed the petition to return the child on Oct. 24 through the Central Authority of Australia under the Hague Convention on the Civil Aspects of International Child Abduction, which requires courts to act quickly. Wilesmith is represented by attorney Todd Ingram of Clapp & Associates in Casper.

This unique and troubling case, Morley said, highlights a stark problem with the Hague Convention. The United States, as a signer of the treaty, is obligated to honor quickly such requests to return abducted children as other countries would be obligated to honor a request from the United States. Custodial rights are the responsibility of the country from where the child was removed, according to the Hague Convention's Web site, www.hcch.net.

But the treaty allows countries to refuse the request under two narrow exceptions: If the parent opposing the child's return can prove the other parent was not exercising custody rights, or "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation."

The case centers on the nature of "grave risk," according to attorneys for both parents. That risk is obvious, wrote Morley and Maloy's Sheridan attorneys, Jonathan and Rene Botten. Wilesmith, they wrote, has been convicted of multiple crimes: three counts of rape and one count of unlawfully depriving a person of personal liberty, illegal possession of brass knuckles and a pistol crossbow, assault, violent juvenile offenses in the 1980s, current incarceration because of violating a stalking order, attempted hiring of hit men to kill his ex-wife and burn down her and her family's homes, road rage, and other offenses. Morley has seen difficult cases before, but never like this, he said. "What struck me is the judge expressed in extreme language the disgust of the father, yet he's nonetheless ordered the child to his (the father's) place of residence," Morley said. "I think it's outrageous." Morley's firm has handled hundreds of child abduction cases through the Hague Convention, which is a good treaty, he said. "But if it's applied too rigidly, it creates an injustice."

Both Morley and Ingram generally agree the girl's "habitual residence" was in Australia, according to court documents. Maloy stated in her affidavit she lived by herself in an apartment in Australia from December 2001 to April 2002, when she and Wilesmith lived together until December 2002. They returned to Sheridan in January 2003 to have the child, and he returned Australia 10 days later when he raped his ex-wife. Maloy returned to Australia in February. From late January to April 2003, Maloy lived alone while Wilesmith was in jail, according to Maloy's account of their relationship.

Wilesmith was out on bail from late April to early July, and lived with Maloy and their daughter. He returned to jail in July 2003 until mid-June 2006. After his release, they lived in RunawayBay on the Gold Coast in Queensland until she left Australia on April 27, 2007, after he raped Maloy earlier that month, according to court documents.

Both sides gave contradictory accounts of events, especially about whether Wilesmith gave her permission to leave the country with their daughter, when she decided to press rape charges, and how long she would stay in Australia after she returned the child to authorities. Like Morley, Ingram said he believes the case centers on the meaning of " grave risk." Proving grave risk requires "clear and convincing evidence," Ingram wrote.

At the Feb. 28 hearing, Ingram questioned Maloy's credibility about why she stayed so long with Wilesmith. But under cross-examination, Maloy told her attorney Rene Botten about her fear of him. Maloy offered accounts of Wilesmith's behavior including abusive treatment of her, but no direct evidence he hurt their daughter or will do so because he is currently in jail, according to the transcript. Eleven days later, Downes agreed.

"This is not a situation where a court is ordering a child returned to the custody of an abusive parent. Rather, this Court is ordering the child's return so an Australian court can make a determination regarding (the child's) custody," the judge wrote. "Petitioner's (Wilesmith's) abuse of his former wife and (Maloy), though absolutely abhorrent, does not put (the child) in grave risk of harm should she be ordered to return to Australia," Downes wrote.

By TOM MORTON Star-Tribune, Wednesday, March 19, 2008

Full post as published by International Family Law on March 20, 2008 (boomark / email).