habitual residence during the eleven months he lived there.
The Ponath decision is more persuasive than the Roszkowski decision and is closer to the facts of this case. Mrs. Feder's testimony regarding her extreme reluctance to move herself and her son to Australia is credible and consistent with her actions. Faced with a choice between abruptly ending her marriage and remaining in an unfurnished home with no visible means of support for herself and her son or following her husband to Australia in a last attempt to keep her family together, Mrs. Feder moved to Australia. Her move was on a temporary, trial basis only. Unlike her husband, she refused to surrender her Pennsylvania driver's license and took no steps herself to become a permanent resident of Australia. Because her marriage worsened rather than improved in Australia, she never developed a settled purpose to remain. In fact, in less than six months she decided that her marriage could not be saved. With this decision, she ended her trial period in Australia and returned with Evan to the United States, where they are both citizens. She travelled back to Pennsylvania with her son because that was and is their home, where Evan spent the vast majority of his life, and where their family and friends are located.
Mr. Feder argues that Evan himself was habitually resident in Australia because he attended an Australian pre-school a few days each week and had made some friends there. While this court must, of course, decide the habitual residence of the child, a child of four years cannot decide for himself or herself where that habitual residence will be. Such a child does not think about the subject and takes no voluntary or purposeful actions in this regard. Of necessity, we must evaluate the objectives and actions of the parents. As the Ponath court similarly explained, "the desires and actions of the parents cannot be ignored" in making a determination in such a case. 829 F. Supp. at 367. Evan's father and mother viewed Australia differently during the short time they were there. Mr. Feder may have considered and even established Australia as his habitual residence by June of 1994 despite his history of frequent relocation, but Mrs. Feder assuredly did not. Significantly, she and Evan spent less than six months in Australia before they left. Under the circumstances here, Mr. Feder has not proven that Evan's habitual residence in the United States as of January 8, 1994 had changed to Australia by the time Mrs. Feder refused to return him from Pennsylvania in the summer of 1994.
Even if Mr. Feder had established that Evan was habitually resident in Australia, that would not end the analysis. The Hague Convention does not require a court to return a child if the respondent demonstrates by clear and convincing evidence that "there is a grave risk that [the child's] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Hague Convention, Article 13(b). This court heard evidence regarding this subject at the October 14, 1994 hearing. In light of its decision regarding Evan's habitual residence, the court need not resolve this question.
This court finds and concludes that the habitual residence of Charles Evan Feder is in the United States of America and that his mother has not wrongfully retained him here. The petition of Edward Feder to have the child returned to the Commonwealth of Australia is denied.
AND NOW, this 31st day of October, 1994, based on the foregoing findings of fact and conclusions of law, it is hereby ORDERED that the petition of Edward M. Feder pursuant to the Hague Convention to compel the return of Charles Evan Feder to Australia is DENIED.
Judgment is entered in favor of the respondent, Melissa Ann Evans-Feder, and against the petitioner, Edward M. Feder.
BY THE COURT: arvey Bartle III J.