Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-00308-JJF Document 33 Filed 11/O1/2005 Paget of 2
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The Honorable Joseph J. Farnan, Jr.
United States District Court wasrcuusrma
District of Delaware
844 North King Street, Room 4209
Lock Box 27
Wilmington, DE 19801
Re: Baxter v. Baxter, C.A. No €l4~308 (JJF)
Dear iudge Farnan:
Enclosed is a proposed form of order for the return of Torin Baxter to Australia in the
referenced action. Regrettably, the parties were unable to reach agreement as to an appropriate
form of order, and the enclosed order therefore represents the version proposed by the Petitioner,
Mr. Baxter. Although it appeared at the onset that the parties would he able to agree on a
suitable form of order, differences arose which the parties ultimately were unable to resolve.
The following is a brief discussion ofthe remaining points of dispute.
l. The Date of Torin’s Return, The parties initially agreed that, with the inclusion of
certain provisions to help ensure Torin’s return, that Torin’s return should occur in rnid—
December, as that timeframe was believed by counsel for the parties to be the end of Torin’s
current semester of school and would thus pose as little interruption as possible to Torin’s school
schedule. During discussions between counsel as to the fomi of the order, however, counsel for
the Respondent informed us that Torin’s semester did not in fact conclude until the end of
January. The Respondent nonetheless suggested that the parties agree to a date for Torin’s return
in mid-December —~ a date prior to the end of Torin’s semester. At the same time, the
Respondent took issue with a paragraph of the proposed order submitted by Mr. Baxter, which
provided that the Respondent is to cooperate in 'l`orin’s return and in no way take steps to
interfere with his return. Specifically, the Respondent indicated that she would not agree to any
provision that would prohibit her from taking separate legal action with the help of her Michigan
attorney in an attempt to avoid or block the effectiveness of the Third Circuit’s ruling.
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Case 1:04-cv-00308-JJF Document 33 Filed 11/O1/2005 Page 2 of 2
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| luane Morris
100Lh Anniversary
The Honorable Joseph 5. Farnan, lr.
November l, 2005
Page 2
Because the parties now know that Torin’s semester does not end until the last week of
January and the parties agree that his semester will have to be interrupted for his return, we see
no need to wait until mid-December, As 42 U.S.C. § H602 makes clear, once the applicability
of the Convention is established, the return of a child should be prompt. Weeks have already
passed since the Tliird Circuit issued its ruling, and further delay is unnecessary and
unwarranted, especially given that the Respondent apparently is attempting to use the delay as a
defcrcto stay (to which she would not otherwise be entitled) of the Third Circuit's ruling while
she pursues other avenues of legal redress.
2. The Costs ofTorin’s Return. Because the Respondent has claimed to lack the
financial ability to bear the costs of Torin’s return, we proposed in our draft order that Jody agree
to provide a short sworn statement as to her financial position and a supporting document, such
as a pay stub. The Petitioner would then have used that information to obtain linancial
assistance for Torin’s return from the Australian Central Authority. However, the Respondent
has refused to provide any information whatsoever, taking the position instead that she will offer
no assistance because, as she alleges, the Petitioner has failed to provide any child support since
the time the Respondent brought Torin to the United States. As a result of the Respondents
unwillingness to provide information necessary for the Petitioner to obtain financial assistance
for Torin’s return, we must insist that the Respondent bear the costs of the return, as mandated
by 42 U.S..C. § ll607(b). Ironically, the iinancial information requested of the Respondent is
likely the very same information she would have to provide to meet her burden of establishing
that her bearing costs under § ll607(lJ)(3) would be “clearly inappropriate.?
Based on the foregoing, we respectfully request that the Court enter an order for TOI`l1'l’S
return in the form attached hereto. We are available at the Court’s convenience to discuss this
matter. a
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Enclosure
cc: Clerk of Court (by hmm')
Gerry Gray, Esq. (byfczcsimile)
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Case 1:04-cv-00308-JJF

Document 33

Filed 11/01/2005

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Case 1:04-cv-00308-JJF

Document 33

Filed 11/01/2005

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