COMMISSIONER, WESTERN AUSTRALIA POLICE and GAYNOR

Case •

[2011] FCWA 20

•

17 MARCH 2011

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Judgment
Family Court of Western Australia
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COMMISSIONER, WESTERN AUSTRALIA POLICE and GAYNOR [2011] FCWA 20

Citation No:[2011] FCWA 20
WRITTEN SUBMISSIONS RECEIVED 1 FEBRUARY 2011
Coram:CRISFORD J17/03/11
PERTH
34Judgment Part:1 of 1
Not Reportable
Keywords:CHILD ABDUCTION - HAGUE CONVENTION
PDF Version
Parties:KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE
Applicant
AND
GAYNOR
Respondent

Catchwords:
Child abduction - Hague Convention - rights of custody - right of veto

Legislation:
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Convention on the Civil Aspects of International Child Abduction
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA ACT : FAMILY LAW (CHILD ABDUCTION CONVENTION) REGULATIONS 1986 (Cth) LOCATION : PERTH CITATION : COMMISSIONER, WESTERN AUSTRALIA POLICE and GAYNOR [2011] FCWA 20 CORAM : CRISFORD J HEARD : WRITTEN SUBMISSIONS RECEIVED 1 FEBRUARY 2011 DELIVERED : 17 MARCH 2011 FILE NO/S : PTW 6712 of 2009 BETWEEN : KARL JOSEPH O'CALLAGHAN COMMISSIONER, WESTERN AUSTRALIA POLICE
    Applicant

    AND

    GAYNOR
    Respondent

Catchwords:

Child abduction - Hague Convention - rights of custody - right of veto

Legislation:

Family Law (Child Abduction Convention) Regulations 1986 (Cth)


Convention on the Civil Aspects of International Child Abduction

(Page 2)

Category: Not Reportable

Representation:

Counsel:


    Applicant : Ms C Thatcher
    Respondent : Mr J Dorney

    (Page 3)


Solicitors:

    Applicant : State Solicitor's Office
    Respondent : Holden Barlow


Case(s) referred to in judgment(s):

Abbott v Abbott 542 F3d 1081 (5th Cir, 2010)
Croll v Croll, 229 F 3d 133 (2nd Cir, 2000)
DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 at 416
Duran v Beaumont, 534 F3d (2nd Cir, 2008)
Jagwani/Jagwani Case File No (RIT) C-2656, 4th Family Court of Santiago
MW v Director General, Department of Community Services (2008) 206 CLR 401
Re
    Application of Adan v Avans, 437 F3d 381 (3rd Cir, 2006)
Re D (A Child) [2007] 1 AC 619
State Central Authority v McCall (1994) 121 FLR 45
Wenceslas v Director-General, Department of Community Services [2007] FamCA 398


(Page 4)

1 Two brothers, [Marcus B], now 9 years of age, and [Stephen B], now 5 years of age, were brought to Australia from [overseas] on 27 August 2009 by their mother. She says the purpose was to visit her present partner’s relatives. Although the children were due to return overseas on or before 14 September 2009, they have remained in Australia.

2 The question in this case is whether the father has rights of custody in relation to his sons within the meaning of what is commonly known as the Hague Convention.

3 The Convention on the Civil Aspects of International Child Abduction 1980 is implemented in Australia by the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”).

4 The objects of the Convention as stated in Article 1 are -


    (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and

    (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.


5 When a child is abducted to Australia, an application for the return of the child is made to the Commonwealth Central Authority (“the Central Authority”). This authority must take action by applying under reg 14 of the Regulations for an order of the Family Court to secure the return of the child to the country in which the child was habitually resident before the wrongful retention.

6 The court to which the application is made must order the return of the child to the requesting state if certain pre-conditions are fulfilled and unless one or more of the exceptions to mandatory return are made out. If an exception does apply, there is a discretion not to return the child.

7 The Convention and Regulations are concerned with the appropriate forum for adjudication of parenting matters, including parental responsibility and relocation, rather than what is the immediate best interests of a child. Baron J in Re W [2004] 2 FLR 499 at [509] stated:


    In these cases, the authorities make it clear that in normal circumstances the courts of the country of habitual residence are best to determine issues relating to the welfare of the child, primarily because the best outcome for the child’s future will be identified by reference to past events and the physical, emotional, social and cultural milieu in which the family have lived. All these matters, including in particular any resolution of factual disputes relating to past events, are, prima facie, more easily addressed in courts of that state.

8 The father has requested the Central Authority to make this application for the return of the children overseas after what he alleges is a wrongful retention in Australia. The mother opposes their return. She says the father does not have rights of custody such that he is able to object to the children remaining in Australia

(Page 5)

Background

9 The mother, born overseas [in] January 1968, is currently aged 43 years. The father, born overseas [in] July 1969, is currently aged 41 years. The parties married [in] July 2001 and lived in [an overseas town]. Marcus was born in November 2001. Stephen was born in September 2005 (although this date is wrongly identified in the initiating application as 2006).

10 The mother lived in Australia between 1987 and 1997. She is an Australian citizen, as are both the children.

11 The parties disagree on the date of separation. The father says the parties separated in February 2007 and the mother deposes that separation occurred on 24 December 2005, when she and the children moved to live with her father in the south of the country. Nothing turns on that issue for present purposes.

12 The mother and [Mr Mackey] commenced cohabitation overseas in about December 2007. In July 2008 the children and the mother travelled to Australia with Mr Mackey for the purpose of a holiday. The mother deposes that this was with the father’s consent.

13 On 29 August 2008 the family court of [the town] made orders by agreement for the children to have “a direct and regular relationship” with the father. This included two weekends each month, a period of three weeks in the summer vacation and a week in the winter vacation. Christmas and New Year periods were to be shared on an alternating yearly basis. During the father’s weekend time with the boys he was to take care of the children’s school commitments. Orders were also made for the payment of maintenance by the father to the mother in a sum equivalent to 27% of his income.

14 In July 2009 Mr Mackey returned to Australia and obtained employment in Perth.

15 On 12 August 2009 the local family court dealt with the rights of personal care of the boys. It was ordered the mother exercise such rights. The court declared that parental authority for the boys would also be exercised by the mother.

16 On 24 August 2009 the parties jointly obtained a document entitled Travel Authorisation Abroad to Minors from a Public Notary office overseas. The authorisation was for the children to travel from overseas to Australia for the purpose of a holiday from 27 August 2009 until 14 September 2009. The children were authorised to travel with their mother.

17 The parties also entered into an agreement which was filed in the local family court on 3 September 2009 “about the extraordinary legal right that the father will have over the minors, Marcus and Stephen”. This document makes provision for additional time between the father and the boys on their return overseas on 14 September 2009. They were to see their father between 14 September 2009 and 20 September 2009, 15 October 2009 and 19 October 2009 and finally from 18 December 2009 until 27 December 2009.

(Page 6)

History of proceedings

18 The Central Authority filed its application in the Family Court of Western Australia for the return of the children on 21 December 2009. Over a year has elapsed. It is appropriate to set out the course of the proceedings in view of the delay.

19 After a number of procedural hearings before and after Christmas 2009 the matter was adjourned for argument on 16 March 2010. However, at that time the mother had not filed all her responding documents and the parties agreed that further time should be extended to her. In order to accommodate this a further date of 3 May 2009 was allocated for argument.

20 The mother’s original solicitors filed a Notice of Ceasing to Act on 8 April 2010. She engaged another firm of solicitors who, on 27 April 2010, filed an application to adjourn the hearing of 3 May 2010. The basis for the adjournment was there was to be a hearing in the local court on 19 May 2010, at which time it was anticipated there would be some pronouncement about the father’s rights of custody. Court proceedings had been ongoing overseas since 2007.

21 This application to adjourn was opposed by the Central Authority. The Court refused the adjournment based on the argument about the proceedings overseas. However, just prior to the 3 May 2010 hearing the Central Authority filed a number of affidavits in response to the mother’s application. On the morning of the hearing it produced a further affidavit. The mother’s solicitors had no opportunity to either read the affidavit or obtain instructions in relation to it. The matter was adjourned in order for this to take place. The hearing was resumed four days later on 7 May 2010. At this hearing the Court was presented with starkly contrasting evidence about what rights the father had, according to overseas local law, at the time of the children’s retention in Australia.

22 Given the unsatisfactory state of the evidence, discussion took place about the possibility of a request under reg 17(2) of the Regulations. It was accepted further evidence was required.

23 Regulation 17 sets out as follows:


    (1) On application, a court may by order declare that:

    (a) the removal of a child from Australia to a convention country; or

    (b) the retention of a child in a convention country;

    was wrongful within the meaning of Article 3 of the Convention.

    (2) The court may ask a responsible Central Authority to arrange for the person, institution or other body making a request in relation to the return of a child under the Convention to obtain an order of a court, or a decision of a competent authority, of the country in which the child habitually resided immediately before his or her removal or retention declaring that the removal or retention was wrongful within the meaning of Article 3 of the Convention.

    (Page 7)

    24 On 17 May 2010 the State Solicitor’s Office, representing the Central Authority, sent correspondence to this Court signed by the parties’ solicitors seeking that the Court make a request under reg 17(2) to the Commonwealth Central Authority.


25 Due to an administrative error, initially within the State Solicitor’s Office, and later at the Court, this correspondence was not brought to the attention of the presiding judicial officer. The matter was listed before another judge on 14 June 2010. The error was discovered and rectified on the morning of the hearing. The Central Authority advised it had heard nothing from the overseas Authority and sought the matter be adjourned.

26 At this time, unbeknownst to the Court, on 11 May 2010 the Commonwealth Central Authority had already sent a request to the overseas Authority seeking an Article 15 declaration in relation to the father’s rights of custody. Article 15 provides as follows:


    The judicial or administrative authorities of a Contracting State may, prior to the making of an order for the return of the child, request that the applicant obtain from the authorities of the State of the habitual residence of the child a decision or other determination that the removal or retention was wrongful within the meaning of Article 3 of the Convention, where such a decision or determination may be obtained in that State. The Central Authorities of the Contracting States shall so far as practicable assist applicants to obtain such a decision or determination.

27 A judge of the local overseas family court (Case and Enforcement Unit Chief) sent a response dated 18 June 2010. This document and its translation was sent to the State Solicitor’s Office by the Attorney General’s Department in Canberra on 28 July 2010.

28 On 15 July 2010 the State Solicitor’s Office again wrote to this Court asking it to seek a declaration pursuant to reg 17(2). Again this correspondence was the subject of a typographical error on the part of that Office and it was placed on an unrelated file.

29 On 18 August 2010 the State Solicitor’s Office sent a correctly addressed letter informing the Court the Article 15 declaration it had received was inadequate. The Court was not aware such a request had been made. Of its own motion, the Court relisted the matter on 31 August 2010. The purpose of the relisting was to clarify what had been happening.

30 At the resumed hearing on 31 August 2010 the Court sought copies of the request for the Article 15 declaration and the declaration itself. These were sent to both the Court and the mother after the hearing on 31 August 2010.

31 The Article 15 declaration provides little assistance in clarifying the issues before the Court. It was a narrative account only of the local overseas proceedings. The parties were urged to consider any other options, including the appointment of a


    (Page 8)

    Single Expert. The Central Authority had already sought a further declaration from the overseas Authorities on 9 July 2010. In the meantime, the presiding judicial officer was absent on annual leave. Nothing further was heard from the parties and the Court, of its own motion, listed a further hearing on 29 October 2010. At that hearing the Court was provided with the second Article 15 declaration the Commonwealth Central Authority had requested from the overseas Authority. This was dated 18 October 2010 and was prepared by the Liaison Judge of the local family court. It simply sets out Article 49 of the Law No 16.618, which regulates the exit of minors from overseas and which will be referred to later in the judgment.


32 The Court is of the view neither document was particularly helpful. It was unlikely that the matter could be progressed further. Directions were made for the filing of any further documents either party sought to rely on. These directions were finally complied with by the parties by late January 2011.

33 As is often the case, a mix of related and unrelated events have culminated in delay.

34 The question of whether the manner in which the Article 15 declarations were sought was helpful or appropriate is not a matter I intend to consider here.




The relevant provisions of the Convention and the Regulations

35 In considering applications for return, the Court must apply reg 16 of the Regulations:


    Obligation to make a return order

    16(1) [When court must order child’s return]


      If:

      (a) an application for a return order for a child is made; and

      (b) the application (or, if regulation 28 applies, the original application within the meaning of that regulation) is filed within one year after the child's removal or retention; and

      (c) the responsible Central Authority or Article 3 applicant satisfies the court that the child's removal or retention was wrongful under subregulation (1A);

      the court must, subject to sub regulation (3), make the order.

      16(1A) [Wrongful removal or retention]

        For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:

        (a) the child was under 16; and

        (Page 9)

        (b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and

        (c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and

        (d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and

        (e) at the time of the child's removal or retention, the person, institution or other body:


          (i) was actually exercising the rights of custody (either jointly or alone); or

          (ii) would have exercised those rights if the child had not been removed or retained.

      16(2) [Application more than one year after removal: when court must order child’s return]

        …

      16(3) [When court may refuse to order child’s return]

        A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:

        (a) the person, institution or other body seeking the child's return:


          (i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or

          (ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or


        (b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or

        (c) each of the following applies:


          (i) the child objects to being returned;

          (ii) the child's objection shows a strength of feeling beyond the mere expression of a preference or of ordinary wishes;

          (Page 10)

          (iii) the child has attained an age, and a degree of maturity, at which it is appropriate to take account of his or her views; or


        (d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms.

      16(4) [Information on child’s social background]

        For the purposes of subregulation (3), the court must take into account any information relating to the social background of the child that is provided by the Central Authority or other competent authority of the country in which the child habitually resided immediately before his or her removal or retention.

      16(5) [Where court not precluded from ordering child’s return]

        The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
36 The matter before this Court revolves around an issue of narrow compass, namely, whether in regard to reg 16(1A)(c) the father, under overseas law, had rights of custody in relation to the boys immediately before their retention in Australia and whether that retention in Australia is in breach of these rights of custody. There is no dispute that the children’s country of habitual residence immediately prior to their removal was overseas.

37 The Convention and the Regulations deal with the term “rights of custody”.

38 Article 5 of the Convention describes rights of custody and access as follows:


    For the purposes of this Convention -

    (a) “rights of custody” shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence;

    (b) “rights of access” shall include the right to take a child for a limited period of time to a place other than the child's habitual residence.


39 Regulation 4 describes rights of custody as:

    Meaning of rights of custody

      4(1) [“rights of custody”]

        For these Regulations, a person, institution or other body has rights of custody in relation to a child if:

        (Page 11)

        (a) the child was habitually resident in Australia or in a convention country immediately before his or her removal or retention; and

        (b) rights of custody in relation to the child are attributed to the person, institution or other body, either jointly or alone, under a law in force in Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.


      4(2) [Care of the person of the child]

        For the purposes of sub regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.

      4(3) [How rights of custody may arise]

        For the purposes of this regulation, rights of custody may arise:

        (a) by operation of law; or

        (b) by reason of a judicial or administrative decision; or

        (c) by reason of an agreement having legal effect under a law in force in Australia or a convention country.

40 The notion of “rights of custody” in the Regulations is sui generis and has no necessary connection with rights of custody under Australian domestic law. (State Central Authority v McCall (1994) 121 FLR 45)

41 The duty of a “host forum” was considered in the United States by the Court of Appeals for the Third Circuit in Re:Application of Adan v Avans, 437 F3d 381 (3rd Cir, 2006):


    The duty of the host forum – in this case, the District Court – to make a threshold determination of custody rights under the country of origin’s laws is not novel; indeed, it comports with the federal courts’ frequent responsibility to examine the law and choice of law rules of another forum to determine the rights and duties of litigants. Such a determination does not, of course, bind the other forum to reach the same result in future litigation, nor does it run afoul of comity concerns. Article 3’s requirement that the host country determine custody rights under the country of origin’s law to ascertain whether removal was “wrongful”, and therefore whether the Convention applies, is a straightforward question of law of the sort federal courts routinely encounter, and thus presents no unusual burden on the competence of our courts.

    (Page 12)

    42 I intend to firstly consider what rights, if any, the father had under overseas law in relation to the children at the time of their alleged retention in Australia. I will then consider whether, as a matter of Australian law under the Regulations, the rights, if any, the father has amount to rights of custody within the meaning of the Regulations. Finally, I need to consider whether or not the children remaining in Australia after 14 September 2009 was in breach of any rights the father had.


43 There is some overlap between the first two matters I have identified.


What rights of custody, if any, did the father have according to overseas law at the time of retention?

44 It is common ground the mother has rights of custody over the children pursuant to the orders of the local family court dated 12 August 2009. These orders have been endorsed on the birth certificates of the children.

45 It is also common ground that the father has rights of access pursuant to the agreement the parties reached on 29 August 2008 and which was approved by the court. This agreement was modified by the parties and contained in an agreement presented at the local family court on 3 September 2009. It reflects additional or make-up access for the father and the children. This further agreement was reached in advance of the mother’s holiday in Australia with the children between 27 August and 14 September 2009. The mother’s holiday with the children was the subject of a notarised travel authorisation made on 24 August 2009.

46 The position of the Central Authority is that the travel authorisation required by Article 49 of Minors Law No 16.618 of the Overseas Code, and signed by the parties allowing the children to travel out of [the overseas country] for a period amounts to a right to determine the children’s place of residence. It says this right of veto on travel out of the overseas country constitutes rights of custody for the purpose of the Regulations.

47 The mother denies this assertion. Through her overseas solicitor, [Ms S], she says that according to local law there is no legal requirement for the mother to obtain any authorisation to travel at all. Ms S says this was only done for the purpose of “transparency” such that the father would know the whereabouts of the children. Thus, the mother’s position is the notarised authorisation is neither legally required or binding. It is argued for the mother that a parent who does not have personal care of children does not have a right to determine their place of residence, and thus has no rights of custody.

48 Both parties have referred to and relied upon various parts of the Local Civil Code as regulating these issues. Both refer to the same provisions, but differ in the interpretation of them. Relevantly:

49 Article 229 of the Local Civil Code reads as follows:

(Page 13)

The father or mother who does not have the personal care of a child shall not be deprived of the right nor shall be exempted from the duty to maintain a direct, permanent relationship with he/she, and to contact him/her as frequently and freely as agreed with his/her guardian or, otherwise, as determined by the judge as being in the best interests of the child.


    The exercise of this right shall be suspended or restricted when it is evidently detrimental to the child’s welfare, which fact shall be determined by the judge on reasonable grounds.

50 Article 49 of Minors Law 16,618 of the Local Civil Code reads as follows:

    The exit of minors from [the country] shall be subject to the regulations referred to in this section, without prejudice to the provisions in Law No 18,703.

    Should the judge have not granted the custody of a child to either parent or to a third party, the minor may not exit the country without the authorization of both parents, or from the one who had recognized him.

    Upon the custody being granted to either parent or to a third party, a child may only exit the country with the authorization of the person to whom his/her custody had been granted.

    Regulated the rights referred on Section 229 of the Civil Code by a Judicial ruling or an agreement approved by the Court, it will be also needed the authorization from the parent to whom this right had been established.

    The authorization referred to in the foregoing paragraphs shall be evidenced by a public deed or by a private deed certified by a Notary Public. Such authorization shall not be required should the minor leave the country together with such person or persons whose consent is required.

    If such authorization cannot be granted or if, without reasonable grounds, is refused by the person from whom it is required, it may be granted by the juvenile judge having jurisdiction over the place of residence of the minor. In order to authorize in these cases the minor’s leaving the country, the judge shall consider the benefits to the minor and shall indicate the period of time for which the authorization is granted.

    Upon expiration of the term referred to in the foregoing paragraph, should the minor unwarrantedly fail to return to the country, the judge may decree that the payment of maintenance allowance be suspended.

    In any other cases, in order for a minor to leave the country, the authorization of the juvenile court with jurisdiction over his/her residence shall be sought.

    (Page 14)

    51 The Central Authority, in its interpretation of overseas law, relies upon two affidavits sworn by lawyers working for the Central Authority in that country. [Mr A], Assistant Lawyer, gave an opinion on 27 April 2010 and [Mr B], Chief Lawyer, gave a further opinion dated 25 January 2011 (wrongly dated 25 January 2010 in the heading).


52 The mother relies upon affidavit evidence sworn 5 May 2010 by her solicitor, Ms S, who has represented her in the local domestic proceedings. She further relies on a legal opinion from an expert on local law, Ms H, which was provided in response to queries put to her by the mother’s solicitor on 15 December 2010.

53 On two occasions the Central Authority requested and received Article 15 declarations. The purpose was, apparently, to obtain an opinion on the domestic law of that country. Neither declaration provided that. The first declaration received simply sets out in narrative form a history of the local proceedings between the parties. The second declaration is in the form of a certificate setting out the content of Article 49, already referred to and which regulates the exit of minors from that country.

54 Mr B deposes to having knowledge of local Family Law, Procedural Law and the Hague Convention. He practices in these areas.

55 In summary and relevantly, he says that the father has the right to determine the children’s place of residence because of the right of veto contained in Article 49. He further reports:


    - the parties’ rights of both custody and access have been declared by a local family court;

    - rights of access amount to the right to determine the child’s place of residence by virtue of Article 49 of Minors Law 16,618;

    - rights of custody as prescribed by Article 5 of the Convention incorporate rights of access under local law;

    - Article 49 of Minors Law 16,618 requires both parents to authorise overseas travel, notwithstanding any judicial determination;

    - Article 222.2 of the Local Civil Code establishes a major legal duty on parents to act in the best interests of the child. This legal duty is not abrogated by parental authority, parental care and rights of access; and

    - the allocation of personal care to a parent does not abrogate the other parent’s rights as recognised by Article 49 of Minors Law 16,618, the right to discipline ones child, rights under Article 222 of the Local Civil Code and the right to consent to a child’s marriage when they have not reached the age of majority.

    (Page 15)

    56 He refers to a number of cases decided under the local law as providing support for his position. I found most of the cases referred to as equivocal. Not only was there some difficulty in understanding the translation provided, the information on the particular factual situation of each case and the respective rights of the parties was incomplete.


57 However, one case he did cite, Jagwani/Jagwani Case File No (RIT) C-2656, 4th Family Court of Santiago, decided on 22 December 2010, appears to support his position. Quoting from that case:

    …For al [sic] legal effects, it is stated that the place of habitual residence of the Child CMJJ is overseas, and that the permit for leaving the country that is being granted to him, does not authorise the change of residence to the United States of North America and that it is recognised to the mother of the Child CMJJ the rights of custody under the terms of Article 5 in relation to Article 3 of the Hague Convention of year 1980 and that in the event that the Child is retained by the father in the United States of North America or in another Contracting State, it authorises the mother to claim the wrongful retention of the Child…

58 Mr B explains the father had previously obtained an order for personal care of the child CMJJ by a decision of the local family court. The mother had access rights. Although this is a reversal of the situation before me, it ostensibly provides some support for the Central Authority’s position.

59 Professor H works in the post-graduate program in law conducted by the overseas University. She has worked there since 2002. She qualified as a lawyer from the Supreme Court of Justice in 1990. She has considerable academic experience in both teaching and research. She has been involved in numerous publications. It does not appear she has any particular experience in international child abduction matters.

60 In summary, Professor H concludes that Article 49 does not confer a right of veto such as to amount to a right of custody in a parent. She bases this on the fact that the mother has a right to approach the court to obtain authorisation to travel overseas if there is refusal from the father. She opines that Article 49 is only relevant in cases such as this to ensure that access rights of a party continue wherever the party with parental care of the children resides. She makes the following points in her opinion:


    - unless an agreement is reached between the parties to the contrary, personal care of the children vests with the mother (Article 225 of the [Local] Civil Code);

    - a judge can give custody to a parent when interest requires it (Article 225.3 of the [Local] Civil Code);

    - the mother has personal care of the children by way of judicial determination through a court order dated 12 August 2009;

    (Page 16)

    - the father has no legal rights of personal care of the children;

    - personal care relates to every single aspect of a child’s life and decisions concerning them;

    - a parent who does not have personal care of a child will not be denied the right to have a direct and regular relationship with their child and should exercise that right with the frequency and freedom agreed either between the parent with personal care of determined as convenient by a judge;

    - the right is not an absolute right and can be suspended or restricted by an order of a court if it is not in the child’s best interest;

    - a parent who does not have personal care does not have the right to determine a child’s place of residence. This right falls exclusively to the parent who has personal care of the children;

    - even if the children were to return overseas, the father would have no greater or additional rights in relation to them. He would only spend time with the children as agreed between the mother or ordered by the court; and

    - Article 49 of Minors Law 16,618 does not require authorisation to change a child’s country of residence.


61 She refers to the decision of Duran v Beaumont, 534 F3d (2nd Cir, 2008) as supporting her position and Mr B, in turn, refers to the decision of Abbott v Abbott542 F3d 1081 (5th Cir, 2010). I will refer in detail to both of these later in these reasons.

62 Article 49 states that children may only exit the overseas country with the authorisation of the person to whom their custody has been granted. This does not apply here as it is the mother to whom custody has been granted and she has exited that country with the children.

63 Article 49 relevantly follows on with the following clause:


    Regulated the rights referred on Section 229 of the Civil Code by a judicial ruling or an agreement approved by the Court, it will be also needed the authorisation from the parent to whom this right had been established.

64 Despite the somewhat awkward translation, that part of Article 49 anticipates that a person with rights of access given by a judicial ruling or an agreement approved by the court, as is the case here, must also give authorisation for the child to exit the overseas country. The father’s authorisation is needed.

65 The Article then goes on to detail how this authorisation is to be provided. This includes a private deed certified by a Notary Public. This form of authorisation was obtained in this case.

(Page 17)

66 Article 49 imposes restrictions on the exit of minors from an overseas country. Given the father’s rights of access, Article 49 grants him a further right to restrict the children’s travel from their home country.

67 I pause here to note that I do not accept that the travel authorisation here was simply entered into for matters of transparency or to appease the father. The mother swore four affidavits during these proceedings. She did not ever suggest the travel authorisation was done to mollify or appease the father. She simply makes no reference to it.

68 I am satisfied the authorisation was entered into pursuant to local law. The father’s right to restrict travel was acknowledged by both parties. A notarised agreement was entered into and it was filed at the local family court on 3 September 2009.

69 The question is how this travel restriction impacts on or expands the father’s existing rights of access. Before reaching a conclusion on this I will turn to the Regulations.




What rights of custody, if any, did the father have within the meaning of the Regulations at the time of retention?

70 Does the father’s right of veto under the local law which he exercised with the mother’s agreement; create in the father, rights of custody which warrant the protection intended to be given under the Convention.

71 Whether rights of veto, potential rights of veto or ne exeat rights constitute “rights of custody” within the meaning of the Convention has been the subject of comment in both domestic and international child abduction cases. At times there appears to have been a lack of international consensus and not infrequently persuasive dissenting judgments are produced.

72 Before turning to some of the judgments, including recent ones, it is important to consider the nature of various travel restrictions in legal proceedings, as gleaned from the decided cases.

73 An “ne exeat right”, in the family law context is a right restraining a person from leaving, or removing a child or property from the jurisdiction.

74 A right of veto effectively gives one parent, who may or may not also have rights of access, the right to insist that the other parent not remove the child from the home country without his or her consent or a court order.

75 A potential right of veto is generally where the parent who does not have the child living with him or her has a right to approach a court and seek an order about some aspect of the child’s upbringing including, but not limited to, a potential relocation.

76 I will firstly address the manner in which others courts both nationally and internationally have dealt with this issue.

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77 In Re D(A Child) [2007] 1 AC 619the House of Lords determined an appeal by a mother that a child be returned to Romania.

78 Baroness Hale of Richmond in Re D (A Child) (supra)conducts a helpful analysis of the decisions of various jurisdictions and the need for the court of a requesting state to refrain from making value judgments about the merits of the case, save to the very limited extent that the Convention permits.

79 Her Ladyship considered the concept of rights of custody, rights of access and rights of veto relevantly for this case as follows:


    29. There is no problem when return is requested by the parent with the right to the day-to-day care of the child—or in English terms the parent with whom it has been determined that the child is to live. The problem is with the characterisation of the other parent’s rights. If these amount to joint custody, there is equally no problem. The main debate has been over the effect of what are sometimes referred to as ‘travel restrictions’—either a court order prohibiting the removal of the child from the home country or a ‘right of veto’ giving one parent, who may or may not also have rights of access, the right to insist that the other parent does not remove the child from the home country without his or her consent or a court order.

    30. The internal position in English and Scottish law is clear. Parents who share parental responsibility (that is all married parents and increasing numbers of unmarried parents) each have all the rights and responsibilities of parents. They retain those rights subject only to the practical limitations of any court order and can exercise them independently of one another unless this is inconsistent with a court order. While a residence order is in force, no person may remove the child from the United Kingdom without the written consent of each person with parental authority or the leave of a court (Children Act 1989 s 3(1)(b)) In England, the person with the benefit of the residence order may remove the child for less than one month: (s 13(2)). Even if there is no residence order, it is a criminal offence for a parent to remove a child from the United Kingdom without the consent of each person with parental responsibility or the leave of a court (Child Abduction Act 1984, 1 and 6; in England with the one-month exception for people with the benefit of a residence order).

    31. But the mere fact that English and Scottish parents enjoy such rights of veto does not of itself mean that they enjoy ‘rights of custody’ within the meaning of the convention. Hitherto, however, both in England and Scotland, the courts have regarded travel restrictions as giving rise to rights of custody. As long ago as C v C (Abduction: Rights of Custody [1989] 1 WLR 654, the Court of Appeal held that a court order prohibiting either parent from removing a child from Australia without the other’s consent gave the other parent rights of custody under the convention. Lord Donaldson MR observed at p 664 that the right to


      (Page 19)

      determine the child’s place of residence ‘may be specific, the right to decide that it shall live at a particular address, or it may be general, eg “within the Commonwealth of Australia’. In Re W. In Re B (Child Abduction: Unmarried Father) [1998] 2 FCR 146, I applied the same approach to rights of veto arising by operation of law. Both cases were relied upon by the Inner House of the Court of Session in J, Petitioner [2005] CSIH 36, 2005 GWD 15-251, where it was held that the right of veto enjoyed, by virtue of s 2(3) and (6) of the Children (Scotland) Act 1995, by a parent with the right to contact amounted to ‘rights of custody’ under the convention.

80 A contrary argument that has long been advanced is that if rights of custody include the right to determine a child’s place of residence, it must mean the right to determine where a child shall actually live. It is not enough that it simply provides a right to determine for the time being the country where the child lives or can visit.

81 In the case before me both parties refer to decisions of Courts in North America which deal with foreign law. In Duran v Beaumont (supra) the United States Court of Appeal dismissed a father’s appeal to have his daughter returned from the United States to her country of habitual residence.

82 The majority referred to and relied upon Croll v Croll,229 F 3d 133 (2nd Cir, 2000) in their judgment, when finding that violating a ne exeat right is insufficient to qualify as a violation of rights of custody.

83 In Duran v Beaumont (supra) the child lived with the mother and the father had visiting rights to the child. The parents had never married, although they had cohabited for some three years. Under the local law the mother could not remove the child from the overseas country without the father’s permission. The father refused that permission. However, the local court issued a court order authorising the mother to travel with the child to the United States of America for a three month period. The child was not returned. The sole custody of the child had at that time not been finally determined. The court said:


    The Hague Convention distinguishes between rights of custody and rights of access. It defines the latter as “the right to take a child for a limited period of time to a place other than the child’s habitual residence.” Hague Convention, art. 5, 51 Fed.Reg. at 10,498. Although remedies exist in the event that a child is removed in breach of access rights, recourse for such removal does not include an order of return to the child’s place of habitual residence. See id. art. 21, 51 Fed.Reg. at 10,500. In such situations, district courts may fashion a remedy ordering the custodial parent who has removed the child to allow and financially provide for periodic visits by the non-custodial parent.

    ……..

    We now turn to the primary issue of this case, that is, whether Appellant has rights of custody. Under [local] law, when parents live separately, the

    (Page 20)

    responsibility for the personal care of their child rests with the mother. See CODE CIVIL Section 225. However, the other parent still has a ne exeat right: the right to determine whether the child will leave the country. See MINORS LAW 16,618 art.49. Although Appellee was granted permission by order of the [foreign] court to leave the country with the child for three months, violate of the conditions of that order can be a violation of Appellant’s ne exeat right.

    In interpreting the Hague Convention, this Court has held that violating a ne exeat right is insufficient to qualify as a violation of custodial rights. See Croll, 229 F.3d at 138-140. In Croll, we found that a ne exeat clause does not create rights of custody within the meaning of the Hague Convention. 229 F.3d at 135. We explained that “custody of a child entails the primary duty and ability to choose and give sustenance, shelter, clothing, moral and spiritual guidance, medical attention, education, etc., or the (revocable) selection of other people or institutions to give these things.” Id. at 138. We have reasoned that custody under the Hague Convention “references a bundle of rights … and is in some tension with the idea … that one can have custody by holding a single power such as the veto conferred by a ne exeat clause.” Id. at 139. Furthermore, we have said that although a ne exeat right limits a custodial parent’s power to expatriate a child, it does not amount to a power to determine where the child will live. Id. at139. To hold otherwise would be “unworkable” because the Hague Convention assumes that “the remedy of return will deliver the child to a custodial parent who (by definition) will receive and care for the child. It does not contemplate return of a child to a parent whose sole right-to visit or veto-imposes no duty to give care. Id. at 140.


84 Their Honours considered the rights afforded to the father, particularly the absence of any rights save and except visiting rights at specified times:

    At oral argument, the district court attempted on a number of occasions to elicit what rights Appellant has that he claims would amount to custody. However, Appellant was unable to offer anything more than the language of Article 229, visitation rights, payment of some expenses and possibly registering the child for school. As the district court stated:

      I don’t see where he had rights. The one document that you showed me gave him a very specific right …. It said one very specific thing. On Sundays, from 10 to 8 or 10 to 10, depending on season, he got to see the child. It didn’t say, and by the way, these are a list of the other things you get to decide in the child’s life. You get to decide, as I said, what school the child goes to. You get to bring the child to school every day or pick the child up from school every day or make determinations about what classes the child will take or what extracurricular activities the child will be in. Those are

        (Page 21)

        the kinds of things that would lead me to say he was given custodial rights versus he was given access. I don’t see any of that.
    On the other hand, Appellee has the authority to make all these crucial decisions for the child. The only restrictions on Appellee’s decision-making power under [foreign] law are that she has to allow Appellant his scheduled visitations and she cannot take the child out of the country without either Appellee’s permission or a court order.”

85 In 2010 the Supreme Court of the United States of America in Abbott v Abbott (supra) realigned that country with most other Contracting States in holding that a ne exeat right is a right of custody within the meaning of the Convention. The majority of six held that the father who had direct and regular visiting rights with his son had a right of custody. A minority of three found otherwise.

86 Whilst Abbott v Abbott (supra) is not binding authority, it is by all means persuasive. The case concerned a father’s application to have the child returned from Texas to his habitual country of residence. The mother had rights of custody over the child whilst the father had visiting rights and a ne exeat right or right of veto.

87 The majority held at [6]:


    “The interpretation of a treaty, like the interpretation of a statute, begins with its text.” Medellín v. Texas, 552 U. S. 491, 506 (2008). This Court consults [foreign] law to determine the content of Mr. Abbott’s right, while following the Convention’s text and structure to decide whether the right at issue is a “righ[t] of custody.”

    [Foreign] law granted Mr. Abbott a joint right to decide his child’s country of residence, otherwise known as a ne exeat right. Minors Law 16,618, art. 49 (Chile), App. to Pet. for Cert. 61a, 62a, provides that “[o]nce the court has decreed” that one of the parents has visitation rights, that parent’s “authorization . . . shall also be required” before the child may be taken out of the country, subject to court override only where authorization “cannot be granted or is denied without good reason.” Mr. Abbott has “direct and regular” visitation rights and it follows from [local] law, that he has a shared right to determine his son’s country of residence under this provision. App. 9. To support the conclusion that Mr. Abbott’s right under [local] law gives him a joint right to decide his son’s country of residence, it is notable that a [foreign] agency has explained that Minors Law 16,618 is a “right to authorize the minors’ exit” from [overseas] and that this provision means that neither parent can “unilaterally” “establish the [child’s] place of residence.”

    ………

    The Convention recognizes that custody rights can be decreed jointly or alone, see Art. 3(a), Treaty Doc., at 7; and Mr. Abbott’s joint right to determine his son’s country of residence is best classified as a joint right of

    (Page 22)

    custody, as the Convention defines that term. The Convention defines “rights of custody” to “include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence.” Art. 5(a), ibid. Mr. Abbott’s ne exeat right gives him both the joint “right to determine the child’s place of residence” and joint “rights relating to the care of the person of the child.”

    Mr. Abbott’s joint right to decide A.J.A.’s country of residence allows him to “determine the child’s place of residence.” The phrase “place of residence” encompasses the child’s country of residence, especially in light of the Convention’s explicit purpose to prevent wrongful removal across international borders. See Convention Preamble, Treaty Doc., at 7. And even if “place of residence” refers only to the child’s street address within a country, a ne exeat right still entitles Mr. Abbott to “determine” that place. “[D]etermine” can mean “[t]o fix conclusively or authoritatively,” Webster’s New International Dictionary 711 (2d ed. 1954) (2d definition), but it can also mean “[t]o set bounds or limits to,” ibid. (1st definition), which is what Mr. Abbott’s ne exeat right allows by ensuring that A. J. A. cannot live at any street addresses outside of [the overseas country]. It follows that the Convention’s protection of a parent’s custodial “right to determine the child’s place of residence” includes a ne exeat right.

    Mr. Abbott’s joint right to determine A.J.A.’s country of residence also gives him “rights relating to the care of the person of the child.” Art. 5(a), Treaty Doc., at 7. Few decisions are as significant as the language the child speaks, the identity he finds, or the culture and traditions she will come to absorb. These factors, so essential to self definition, are linked in an inextricable way to the child’s country of residence. One need only consider the different childhoods an adolescent will experience if he or she grows up in the United States, Chile, Germany, or North Korea, to understand how choosing a child’s country of residence is a right “relating to the care of the person of the child.” The Court of Appeals described Mr. Abbott’s right to take part in making this decision as a mere “veto,” 542 F. 3d, at 1087; but even by that truncated description, the father has an essential role in deciding the boy’s country of residence. For example, Mr. Abbott could condition his consent to a change in country on A.J.A.’s moving to a city outside [the overseas country] where Mr. Abbott could obtain an astronomy position, thus allowing the father to have continued contact with the boy.

    That a ne exeat right does not fit within traditional notions of physical custody is beside the point. The Convention defines “rights of custody,” and it is that definition that a court must consult. This uniform, text-based approach ensures international consistency in interpreting the Convention. It forecloses courts from relying on definitions of custody confined by local law usage, definitions that may undermine recognition of custodial arrangements in other countries or in different legal traditions, including the civil-law tradition. And, in any case, our own legal system has adopted conceptions of custody that accord with the Convention’s broad definition.

    (Page 23)

    Joint legal custody, in which one parent cares for the child while the other has joint decision making authority concerning the child’s welfare, has become increasingly common….

    Ms. Abbott gets the analysis backwards in claiming that a ne exeat right is not a right of custody because the Convention requires that any right of custody must be capable of exercise. The Convention protects rights of custody when “at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” Art. 3(b), Treaty Doc., at 7. In cases like this one, a ne exeat right is by its nature inchoate and so has no operative force except when the other parent seeks to remove the child from the country. If that occurs, the parent can exercise the ne exeat right by declining consent to the exit or placing conditions to ensure the move will be in the child’s best interests. When one parent removes the child without seeking the ne exeat holder’s consent, it is an instance where the right would have been “exercised but for the removal or retention.” Ibid

    The Court of Appeals’ conclusion that a breach of a ne exeat right does not give rise to a return remedy would render the Convention meaningless in many cases where it is most needed. The Convention provides a return remedy when a parent takes a child across international borders in violation of a right of custody. The Convention provides no return remedy when a parent removes a child in violation of a right of access but requires contracting states “to promote the peaceful enjoyment of access rights.” Art. 21, id., at 11. For example, a court may force the custodial parent to pay the travel costs of visitation, N. E. 2d 241, 249–250 (1993), or make other provisions for the noncustodial parent to visit his or her child, see §11603(b) (authorizing petitions to “secur[e] the effective exercise of rights of access to a child”). But unlike rights of access, ne exeat rights can only be honored with a return remedy because these rights depend on the child’s location being the country of habitual residence.

    Any suggestion that a ne exeat right is a “righ[t] of access” is illogical and a textual. The Convention defines “rights of access” as “includ[ing] the right to take a child for a limited period of time to a place other than the child’s habitual residence,” Art. 5(b), Treaty Doc., at 7, and ICARA defines that same term as “visitation rights,” §11602(7). The joint right to decide a child’s country of residence is not even arguably a “right to take a child for a limited period of time” or a “visitation righ[t].” Reaching the commonsense conclusion that a ne exeat right does not fit these definitions of “rights of access” honors the Convention’s distinction between rights of access and rights of custody.


88 The three dissenting justices in Abbott v Abbott (supra) held that a return order was contrary to the Convention’s text and purpose:

    When the drafters of the Convention gathered in 1980, they sought an international solution to an emerging problem: transborder child

    (Page 24)

    abductions perpetrated by noncustodial parents “to establish artificial jurisdictional links . . . with a view to obtaining custody of a child.”

    …..

    The drafters’ primary concern was to remedy abuses by noncustodial parents who attempt to circumvent adverse custody decrees (e.g., those granting sole custodial rights to the other parent) by seeking a more favourable judgment in a second nation’s family court system.

    ……

    The drafters determined that when a noncustodial parent abducts a child across international borders, the best remedy is return of that child to his or her country of habitual residence—or, in other words, the best remedy is return of the child to his or her custodial parent. Id., ¶18, at 430. The drafters concluded that the same remedy should not follow, however, when a custodial parent takes a child from his or her country of habitual residence in breach of the other parent’s visitation rights, or “rights of access” in the Convention’s parlance. Id., ¶65, at 444–445.The distinction between rights of custody and rights of access, therefore, is critically important to the Convention’s scheme and purpose. It defines the scope of the available Convention remedies.

    ……

    Article 3 of the Convention provides that the removal or retention of a child is “wrongful,” and thus in violation of the Convention, only when the removal “is in breach of the rights of custody.” Art. 3(a), ibid. The fact that a removal may be “wrongful” in the sense that it violates domestic law or violates only “rights of access” does not make it “wrongful” within the meaning of the Convention.

    Only when a removal is “wrongful” under Article 3 may the parent who possesses custody rights force the child’s return to the country of habitual residence under the Convention’s remedial procedures, pursuant to Articles 8 through 20. For those removals that frustrate a noncustodial parent’s “rights of access,” the Convention provides that the noncustodial parent may file an application “to make arrangements for organizing or securing the effective exercise of rights of access”; but he may not force the child’s return. Art. 21, id., at 11. A parent without “rights of custody,” therefore, does not have the power granted by Article 3 to compel the child’s return to his or her country of habitual residence. His rights are limited to those set forth in Article 21.


89 Subsequent to the Supreme Court’s findings in Abbott v Abbott (supra) the matter of Duran v Beaumont (supra)was remitted to the United States Court of Appeal for reconsideration and it was there accepted by their Honours that a ne exeat right was a right of custody within the meaning of the Convention. The matter was then

    (Page 25)

    remanded to the District Court for further consideration of the exceptions to the making of a return order.


90 Croll v Croll (supra), to which the Court in Duran v Beaumont referred to and relied upon, was also overturned by Abbott v Abbott (supra). SotomayerJ, a dissenter in the first of those cases, was in the majority in the last. In Croll v Croll (supra) he found a ne exeat clause was a right of custody within the meaning of the Convention. He set out some analysis of what is commonly referred to as the Pérez-Vera Report (The Explanatory Report on the 1980 Hague Child Abduction):

    Contrary to the majority's position that "[n]othing in the Hague Convention suggests that the drafters intended anything other than this ordinary understanding of custody," ante at [15], the Convention and its official history reflect a notably more expansive conception of custody rights. The report containing the official history and commentary on the Convention clarifies that "the intention [of the Convention] is to protect all the ways in which custody of children can be exercised." Elisa Pérez-Vera, Explanatory Report to the Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, para. 71 (1980) (emphasis in original) ("Pérez-Vera Report"). This broad notion of custody rights is also consistent with Article 3, which provides that "rights of custody" may arise from a variety of sources, including by "operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of [the child's country of habitual residence]." Hague Convention, art. 3, 51 Fed. Reg. at 10,498. In this way, the Convention plainly favors "a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration." Pérez-Vera Report, para. 67.

    Consequently, in determining whether the rights arising under a ne exeat clause constitute "rights of custody" under the Convention, I discern an intent of inclusion rather than exclusion, so as to effectuate the drafters' goal of making the treaty applicable to all possible cases of wrongful removal.

    Although the treaty does not generally define its legal terms, see Pérez-Vera Report, para. 83, the risk that "an incorrect interpretation of [custody and access rights] would . . . compromis[e] the Convention's objects" led the drafters to include Article 5, which offers further guidance on the meaning of the term "rights of custody." See Pérez-Vera Report, para. 83. I note, however, that the provision was left deliberately vague due to the drafters' failure to agree on a more precise definition. See Pérez-Vera Report, para. 84 ("[S]ince all efforts to define custody rights in regard to [particular situations] failed, one has to rest content with the general description given [in the text]."). Article 5 provides that:

    For the purposes of this Convention -

    (a) "rights of custody" shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of

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    residence; . . . Hague Convention, art. 5, 51 Fed. Reg. 10,498 (emphasis added); see also Pérez-Vera Report, para. 84 (noting that under Article 5, "rights of custody" include those rights relating to the care of the child, and that the Convention seeks to clarify this otherwise general definition "by emphasizing, as an example of the `care' referred to, the right to determine the child's place of residence.").

    As I interpret the Convention, rights arising under a ne exeat clause include the "right to determine the child's place of residence" because the clause provides a parent with decision making authority regarding a child's international relocation. Thus the ne exeat clause vests both Mr. C. and the Hong Kong court with "rights of custody" for the purposes of the Convention. See Hague Convention, art. 5, 51 Fed. Reg. at 10,498.

    A parent's ne exeat rights fit comfortably within the category of custody rights the Convention seeks to protect. The Convention states at its outset that its object is, along with returning children wrongfully removed from their habitual residence, "to ensure that rights of custody . . . under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1, 51 Fed. Reg. at 10,498. The Pérez-Vera report explains that the problem with which the Convention deals . . . derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links [in the new country] which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a judicial decision favourable to him. [Such a decision] bears a legal title sufficient to `legalize' a factual situation which none of the legal systems involved wished to see brought about. Pérez-Vera Report, para. 15.

    At its core, therefore, the Convention's return remedy targets those individuals who cross international borders, presumably in search of a friendlier forum, flouting the custody law of the child's home country in the process. See Blondin v. Dubois, 189 F.3d 240, 245-46 (2d Cir. 1999) (describing the Convention's purpose as "`preserv[ing] the status quo and . . . deter[ring] parents from crossing international boundaries in search of a more sympathetic court.'") (quoting Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir. 1993)).

    In light of the Convention's broad purpose, the concept of "wrongful removal" clearly must encompass violations of ne exeat rights. When a parent takes a child abroad in violation of ne exeat rights granted to the other parent by an order from the country of habitual residence, she nullifies that country's custody law as effectively as does the parent who kidnaps a child in violation of the rights of the parent with physical custody of that child. Moreover, where, as here, the parent seeks a custody order in the new country, she seeks to legitimize the very action-removal of the child-that the home country, through its custody order, sought to prevent. To read the Convention so narrowly as to exclude the return remedy in such a situation would allow such parents to undermine the very purpose of the Convention.

    (Page 27)

    B. The Majority's Approach

    In reaching the opposite conclusion, the majority contends that "rights of custody," as used in the Convention, refers to a "bundle of rights" of which a parent must possess a certain portion in order to be protected by the Convention, and that possession of only one of those rights - in this case, the "right to determine the child's place of residence" by exercising and leveraging a veto power over the child's international relocation -is insufficient to confer custody on the party possessing that power. See ante at [16]. In my view, however, the Convention's definition of "rights of custody" contemplates a bundle of rights that are protected regardless of whether a parent holds one, several or all such custody rights, and whether the right or rights are held singly or jointly with the other parent. In fact, the Convention expressly protects joint custody rights, see Hague Convention, art. 3, 51 Fed. Reg. at 10,498, which may assume a number of forms, including situations in which one parent possesses sole physical custody of the child but shares certain decisionmaking authority with the other parent. The Convention contains no indication that in such an arrangement, a parent must possess some minimum number of rights of custody in order to qualify for protection.

    The majority also maintains that a parent's ne exeat right does not equate with Article 5's "right to determine the child's place of residence" because the latter right necessarily entails "specific choices" regarding the child's living situation rather than simply decisions regarding the country in which she lives. See ante at [16-18]. Like the majority's definition of "custody," however, this conclusion ignores the basic international character of the Hague Convention. While such "specific choices" certainly constitute facets of custody, the broader decision as to whether a child will live in England or Cuba, Hong Kong or the United States, is precisely the kind of choice the Convention is designed to protect. See Pérez-Vera Report, para. 56 ("Although the Convention does not contain any provision which expressly states the international nature of the situations envisaged, such a conclusion derives as much from its title as from its various articles. . . . [T]he international nature of the Convention arises out of a factual situation, that is to say the dispersal of members of a family among different countries."). The Hague Convention provides a remedy not when a parent moves the child from city to suburb or from home to boarding school, but when he or she transports the child across national borders. In light of this international context, the term "place of residence," as used in the Convention, logically contemplates decisions regarding international relocation. Accordingly, the right to choose the country in which a child lives, like the authority over the child's more specific living arrangements, constitutes a "right to determine the child's place of residence" under Article 5, and thus a "right of custody" under the Convention. []


91 The High Court of Australia considered rights of access and rights of custody in MW v Director General, Department of Community Services (2008) 206 CLR 401. The matter concerned an application for return on behalf of the New

    (Page 28)

    Zealand Central Authority in relation to a child born to parents who were not married. Although it was unnecessary to determine whether rights of veto amount to rights of custody in the particular circumstances of that case, the majority did consider whether a right of veto can be a right of custody:


      75 The starting point must be the text of the Access Order. This comprised orders as follows:
      "1 [The child] will be in his father's care every second weekend (beginning 1-3 December 2000) 5.00pm Friday to 5.00pm Sunday

      2 [The child] will be in his father's care half the school holidays with the Christmas holiday period he is with his father between 4-25 January

      3 At all other times [the child] will be in his mother's care

      4 Father will provide transport collecting him from his mother's home at 5.00pm and returning him at 5.00pm

      5 Weekend access is suspended during the school holiday periods (access weekend to recommence 2-4 February 2001)".


        76 These orders answer the description in reg 2(1) of "rights of access" because they provide for the father to take the child to a place other than that of his habitual residence with the appellant. But do they confer "rights of custody" because they confer upon the father "the right to determine the place of residence of the child" (reg 4(2)).

        77 Some difficulty arises from the use of the term "right" in the expressions in reg 4 (and in Art 5) "rights of custody" and "right to determine". Even when used in a broad sense, to speak of a "right" in one person suggests a correlative duty, obligation, disability or liability in others. Regulation 4 is so drawn that "rights of custody", and, by inference, those of determination of place of residence, may arise by reason of a judicial decision (reg 4(3)(b)). Here, the Access Order gave rise to rights in each parent with correlative duties or obligations in the other parent to observe the requirements of the Access Order.

        78 But unlike the court orders in some of the cases arising directly under the Convention or specific provisions made for parental rights and duties by legislation considered in other cases, the Access Order was not addressed to and imposed no prohibition on, in the absence of consent by both parents, the removal of


          (Page 29)

          the child from the jurisdiction of the New Zealand court which made the order. (emphasis added)


        79 A "right of veto" of that nature may give rise to a right in each parent to determine that there be no change in the "place of residence", using that phrase to refer to the Convention country where the child habitually resides; the right of each is attended by the correlative obligation of the other party to observe the status quo and the observance of the obligation will attract whatever remedies are given by the judicial or administrative authorities of that Convention country of habitual residence. That power of prohibition of change may answer the phrase in reg 4 (and in Art 5) "the right to determine ...". The majority of the Full Court referred to decisions in Australia and other Convention countries in which that proposition found favour and Finn J was prepared to accept them. The Authority supported this line of authority. (emphasis added)

        80 The appellant pointed to several difficulties in its acceptance. One fixed upon the distinction between a restriction upon change of the status quo and an active power to choose and change at will the country of residence of the child. In that respect the appellant relied upon a line of authority including the majority of the Court of Appeals for the Second Circuit in Croll v Croll.

        81 A distinct difficulty would arise where, as in Croll v Croll itself, the source of the power of veto was found not in the terms of a court order or in statute but merely in an agreement between the parents. There, as the appellant correctly submitted, the "right of veto" would be at best a potential right, dependent upon a successful application to the relevant judicial or administrative authorities for its enforcement by creation of a presently imperative bar to removal. The "right to determine" spoken of in reg 4 (and Art 5) is more than an expectancy or potential right.

        82 Putting that distinct difficulty to one side, it is unnecessary to decide on this appeal which of the above lines of authority concerning the "right of veto" should be accepted as indicative of the proper construction of reg 4(2). This is because, as we have indicated, the access rights provided for the father by the Access Order conferred no "right of veto" in any sense discussed in the authorities.

92 The Central Authority sought to rely on s 80 of the Care of Children Act 2004 (NZ), which makes it an offence for a person, who knows that there is a court order in place which gives to any other person “the role of providing day-to-day care for, or contact with, the child”, to take the child out of New Zealand without the leave of the court. The majority however found that the access order did not give the father such a sufficient role as contemplated by s 80 and furthermore that the mother did not knowingly breach the access order:

(Page 30)

84. The Authority fails in its reliance upon the Access Order as the source of custodial rights of the father because its argument does not adequately observe the distinction drawn in the Regulations and in the Convention between rights of custody and those of access. The importance of the preservation of the distinction in construing the Convention was, with respect, correctly emphasised by the House of Lords in In re D (A Child) (Abduction: Rights of Custody). Reference was made by the Authority to the "frustration" of the rights of access given the father pursuant to the Access Order, by removal of the child from New Zealand. But that description of the events that happened does not translate the rights of the father to a right of determination of the place of residence of the child and thus to a right of custody.


    85 Moreover, the avenue which may have been open to the father to approach a New Zealand court to obtain an order barring removal of the child from New Zealand without his consent, in some of the cases dubbed a ne exeat order, did not, without more, render him a person with presently subsisting rights of custody.

93 In MW v The Director General, Department of Community Services (supra) where the father had possible rights of custody the court was not satisfied this would be sufficient to secure a return.

94 Kirby J dissenting, held that the father did have rights of custody within the meaning of the Convention:


    214 The definition of "rights of custody" in reg 4 of the Regulations recognises that it is sufficient that such "custody" exists "in relation to" the child. It is not confined to custody "of" or "over" the child. Moreover, reg 4(2) makes it clear that "rights of custody" include "rights relating to the care of the person of the child". This the father certainly enjoyed at the times identified in the NZ court order. During the identified times, the father indisputably had the "right to determine the place of residence of the child". Moreover, that right is not the primary criterion for the type of "rights of custody" that engage the Regulations. The Regulations (and the Convention) recognise that "rights of custody" may arise by operation of law, judicial decision or agreement. Given particularly the specificity of the NZ court order relating to commitment of K to his father's care over weekends, the inference is inescapable that it was intended that the order would be complied with within New Zealand. Save for exceptional occasions where the parents agreed between themselves, or where leave was so provided by the New Zealand court, the child was to remain in New Zealand where, alone, the terms of the NZ court order could be fulfilled.

    215 The mother's removal of K from New Zealand, and his retention thereafter in Australia, deprived the father of his rights under the NZ court order. Effecting that removal without any leave of the New Zealand court, and obviously against the father's wishes, was a breach of rights under that order. The order gave the father


      (Page 31)

      exclusive rights of "care" during the nominated periods. Moreover, it impliedly gave the father a right to veto the mother's unilateral alteration of the child's place of residence from New Zealand to Australia where, necessarily, the NZ court order could not be fulfilled according to its tenor.


    216 Rights of custody by court order: As the beneficiary of the NZ court order, the father therefore had "rights of custody" of the kind referred to in reg 4(2) of the Regulations. The right under a court order to refuse consent to removal (in effect, a "right of veto" over a change of residence to another country) has been recognised in courts of high authority as amounting to "rights of custody" within the meaning of Art 5 of the Convention, and hence within the terms of reg 4(2).

    217 In In re D (A Child) (Abduction: Rights of Custody), Lord Hope of Craighead explained why this was so. As his Lordship pointed out, the words "rights of custody" are used in the context of the Convention to "define the circumstances in which the removal or retention of a child is to be considered wrongful – 'wrongful' because the Convention proceeds on the assumption that welfare issues are best dealt with in the state where the child is habitually resident". His Lordship went on:


      “A right to object to the child's removal to another country is as much a right of custody, for [Convention] purposes, as a right to determine where the child is to live within the country of its residence."
    218 This analysis is clearly correct. In giving effect to the Regulations, designed to fulfil Australia's obligations under the Convention, there are strong reasons why this Court should adopt the same construction – in particular where it represents an interpretation designed to fulfil the purposes of an international treaty addressed to a major international problem rendered more urgent by the advances in the modern means of travel.

95 MW v The Director General, Department of Community Services (supra) was an appeal of the decision of the Full Court of the Family Court of Australia in Wenceslas v Director-General, Department of Community Services [2007] FamCA 398. The majority (May and Thackray JJ) adopted Baroness Hale’s approach. Finn J in her dissent on outcome followed the majority on this point. As can be discerned from the majority decision in MW v The Director General, Department of Community Services (supra) , it was unnecessary for them to deal definitively with this matter one way or another.

(Page 32)

Discussion

96 It is not in dispute that the husband possessed a right of veto according to local law. On the expert evidence available to the Court there is some divergence of view as to whether this right of veto amounts to rights of custody under the Regulations.

97 I am more persuaded that the right of veto provided by the travel authorisation in this case is a right of custody rather than simply a right of access under local law. I am satisfied that the evidence of Mr B is not only more current, but reflects a greater working knowledge of how the legislation has been applied locally. My reasons for this include:


    • that Mr B has appropriate experience in the area of international child abduction and has had recent involvement in this area. Whilst Ms H has an array of academic qualifications, I was not satisfied she has an up to date and working knowledge of the actual application of this law;

    • the interpretation of local law by Mr B is in line with the evidence provided to the United States Supreme Court in the case of Abbott v Abbott (supra), which specifically dealt with the question of international child abduction and rights of veto in the context of overseas law; and

    • Ms H refers to a case which is no longer reflective of current law in the United States of America.


98 It is, of course, important to marry this finding with how the Regulations are to be interpreted by this Court.

99 I have canvassed how other international courts have dealt with the matter. I am satisfied the general view is that such rights of veto do constitute rights of custody under the Convention. The cogent reasoning of Baroness Hale of Richmond in Re D (A Child) (supra) has been adopted and applied in a number of countries. The Supreme Court of the United States of America has now fallen into line with this view.

100 As far as Australia is concerned, the pronouncements of the Full Court in Wenceslas v Director-General, Department of Community Services (supra)provide additional support for the fact that a right of veto or a ne exeat right constitutes rights of custody under the Regulations in this particular forum. MW v The Director General, Department of Community Services (supra) does not take this matter further.

101 Despite all this authority, it is of the utmost importance to consider the actual factual situation here, once again. The right of veto the father had was not simply a potential right. It was a concrete right under local law. It was a right that was acted upon by both parties. The father had a right to object to the children exiting from overseas. This right went beyond, simply, a right to be consulted about the mother’s movements with the children.

102 Both parties complied with the overseas legislation in obtaining the appropriate travel authorisation. The authorisation was registered with the court. I am not satisfied that the mother was in any doubt about the agreement she had entered into and the import of it. The father had the right to determine where the children should live. He curtailed the amount of time they were to reside out of that country.

(Page 33)

103 The right the father had was to determine the issue of residence or where the children could live. It was not simply a right relating to that determination.

104 I am satisfied the father had rights of custody within the meaning of reg 4 of the Regulations.




Are the children remaining in Australia in breach of the father’s rights?

105 The simple answer to this question is yes.




Exercise of discretion reg 16(3)(b)

106 The mother’s counsel in his final submissions puts her case in the alternative:


    126. In the event the Court does find the Father had custodial rights, the Court should refuse to order the Children’s return pursuant to Regulation 16(3)(b), on the basis that the Children would be removed from the family environment in which they have lived for a significant period and such dramatic change would not only remove their financial support, but likely cause psychological harm to the Children.

107 The mother’s first affidavit sworn 12 March 2010 details some difficulties she says she would have in returning overseas. These difficulties are addressed by the Central Authority in affidavits that were subsequently filed. I am not satisfied this addresses what is anticipated by reg 16(3)(b) which stipulates the exceptions to the mandatory return of the children.

108 The mother bears the onus of proof of establishing one of the discretionary grounds for declining to order the return of the children. (DP v Commonwealth Central Authority; JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401 at 416 at [39] per Gaudron, Gummow and Hayne JJ at 442 at [133] per Kirby J at 455 at [185] per Callinan J).

109 The Court has not been provided with any evidence it accepts that the children face a grave risk on a return overseas. It is not persuaded there is a grave risk that would expose the two boys to physical or psychological harm or otherwise place them in an intolerable situation.

110 I am not satisfied the mother has discharged her onus of proof in this regard.




Orders

111 The mother seeks further orders in the event the children are to return overseas. Given that these are the orders I intend to make, I will hear further from both counsel in this regard.

(Page 34)

I certify that the preceding [111] paragraphs are a true copy of the reasons for


judgment delivered by this Honourable Court


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Cases Citing This Decision

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DP v Commonwealth Central Authority [2001] HCA 39
SZHUH v Minister for Immigration [2008] FCA 1893
Wenceslas & Director-General, Department of Community Services [2007] FamCA 398