J v Director-General, Department of Community Services
[2003] FamCA 929
•18 September 2003
[2003] FamCA 929
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No. EA 24 of 2003
AT SYDNEY File No. SY 5416 of 2002
BETWEEN:
Ms J
Appellant Mother
- and -
DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES
Respondent
REASONS FOR JUDGMENT OF THE FULL COURT
BEFORE: Finn, Holden and Mushin JJ
DATE OF HEARING: 25 June 2003
DATE OF JUDGMENT: 18 September 2003
APPEARANCES:
Mr Brereton of Senior Counsel (instructed by Barkus Edwards Doolan) appeared on behalf of the Appellant Mother.
Mr Hill of Counsel (instructed by the Department of Community Services) appeared on behalf of the Respondent.
APPEAL SUMMARY
MATTER:J and Director-General, Department of Community Services
APPEAL NUMBER: EA 24 of 2003 (SY 5416 of 2002)
CORAM: Finn, Holden and Mushin JJ
DATE OF HEARING: 25 June 2003
DATE OF JUDGMENT:18 September 2003
TRIAL JUDGE: Rowlands J
ORDERS MADE: 7 March 2003
CATCHWORDS: INTERNATIONAL CHILD ABDUCTION – whether the removal or retention of the child was a removal or retention of the child within the meaning of Reg 16(2) of the Family Law (Child Abduction Convention) Regulations 1986 – whether the father was exercising, or would have been exercising, “rights of custody” (pursuant to Reg 3(1)) when the child was removed to Australia – three-stage approach adopted to determine whether the removal or retention was a removal or retention in breach of the rights of custody of the father (Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 and Re V-B (Minors) [1999] EWCA Civ 1013) – such rights as the father had under the law of Georgia (as determined on the basis of expert evidence) did not amount to “rights of custody” within the meaning of the Regulations.
Legislation considered:
Family Law Act 1975 - s 111B
Family Law (Child Abductions Convention) Regulation 1986 - Regs 3, 4, 13, 14 and 16
Hague Convention on the Civil Aspects of International Child Abduction
Georgia Family Code – Article 19-9-6(2)
Caselaw considered:
Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224
Re V-B (Minors) [1999] EWCA Civ 1013
S v H (Abduction: Access Rights) [1998] Fam 49
Re W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085
C v C [1989] 2 All ER 465
Re H (child abduction: rights of custody) [2000] 2 All ER 1
Appeal allowed and the application by the Central Authority for the return of the child to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 dismissed.
Costs certificate granted to the mother.
This is an appeal by Ms J (“the mother”) against an order made by Rowlands J on 7 March 2003. By that order his Honour dismissed an application by the mother for review of an order made by Judicial Registrar Johnston on 6 December 2002. The effect of the Judicial Registrar’s order was to require the return of the mother’s then five-year old daughter to the United States of America pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1986 (“the Regulations”).
The Regulations are made pursuant to s 111B of the Family Law Act 1975 (“the Act”) which provides for regulations to be made to enable the performance of Australia’s obligations under the Hague Convention on the Civil Aspects of International Child Abduction (“the Convention”).
History
The history of this matter as recorded by Rowlands J, and not challenged before us, can be stated briefly.
The child who is the subject of these proceedings was born in the United States of America on … July 1997. The child and both her parents are citizens of the United States.
In 1997 the father left the mother and the child in the State of Georgia, and moved to California. There is some dispute between the parties, which is irrelevant for present purposes, as to the date of separation of the parties.
However, very relevant for purposes of this appeal is the following order made on 2 November 2001 by the Superior Court of Dekalb County, Georgia (emphasis added):
“CHILD CUSTODY AND VISITATION
The Parties are awarded Joint Legal Custody of the minor child. The Plaintiff (the mother) is awarded sole physical custody with the Defendant (the father) being granted visitation rights in accordance with “Exhibit A” attached hereto and made a part hereof. The Defendant shall bear all expenses involved in exercising his visitation rights.
Further, the child shall not fly unaccompanied until she reaches the age of nine (9) years.
If the Parties are unable to agree on issues regarding child rearing, the Plaintiff, as primary physical custodian, shall have the right to make the decision.”
Less than a month after the orders of the Superior Court, the mother left the United States with the child and, travelling via Canada, arrived in Australia on 5 December 2001. They presently live in Sydney together with the maternal grandmother and her husband.
The application for the return of the child
Following the mother’s arrival in Australia, the father sought the return of the child pursuant to the provisions of the Convention, and accordingly a request was received from the United States Central Authority (established for the purposes of the Convention) by the Commonwealth Central Authority in Australia for an order for the return of the child to the United States.
Pursuant to the provisions of Regs 13 and 14 of the Regulations the Director-General of the New South Wales Department of Community Services (in his or her capacity of State Central Authority for New South Wales) filed an application in the Family Court on 18 September 2002 seeking an order for the return of the child. Relevantly for present purposes Regs 13 and 14 provide:
“13(1)If the Commonwealth Central Authority:
(a)receives an application in relation to a child who has been removed from a convention country to, or retained in, Australia; and
(b) is satisfied that the application is in accordance with the Convention and with these regulations;
the Commonwealth Central Authority must take action under the Convention to secure the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention.
…
(4)For the purposes of subregulation (1), action that must be taken by the Commonwealth Central Authority includes seeking:
…
(c) an order under Part 3.
14(1)In relation to a child who is removed from a convention country to, or retained in, Australia, the responsible Central Authority may apply to a court in accordance with Form 2 for:
(a)an order for the return of the child to the country in which he or she habitually resided immediately before his or her removal or retention…”
We mention at this point that there is no issue in this case but that the child was habitually resident in the United States prior to her removal to Australia.
The powers of the Court in relation to an application by the Central Authority for the return of the child
In relation to an application made under Reg 13 and/or Reg 14, Reg 16 sets out:
§ the circumstances in which the Court must make an order for the return of the child (Reg 16(1));
§ the circumstances in which the Court must refuse to make an order for the return of the child (Reg 16(2)); and
§ the circumstances in which the Court has a discretion to refuse to make an order for the return of the child (Reg 16(3)).
The precise terms of Reg 16 are as follows (with the presently relevant provisions emphasised):
“16(1)Subject to subregulations (2) and (3), on application under regulation 14, a court must make an order for the return of a child:
(a)if the day on which the application was filed is less than 1 year after the day on which the child was removed to, or first retained in, Australia; or
(b)if the day on which the application was filed is at least 1 year after the day on which the child was removed to, or first retained in, Australia unless the court is satisfied that the child is settled in his or her new environment.
(2)A court must refuse to make an order under subregulation (1) if it is satisfied that:
(a)the removal or retention of the child was not a removal or retention of the child within the meaning of these regulations; or
(b)the child was not an habitual resident of a convention country immediately before his or her removal or retention; or
(c) the child had attained the age of 16; or
(d) the child was removed to, or retained in, Australia from a country that, when the child was removed to, or first retained in Australia, was not a convention country; or
(e) the child is not in Australia.
(3) A court may refuse to make an order under subregulation (1) if a person opposing return establishes that:
(a) the person, institution or other body making application for return of a child under regulation 13:
(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 to the country in which he or she habitually resided immediately before the removal or retention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
(c) the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of the child's 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.
(4) 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.
(5) The court to which an application for the return of a child is made is not precluded from making an order for the return of a child to the country in which he or she habitually resided immediately before his or her removal or retention only because a matter mentioned in subregulation (3) is established by a party opposing return.”
The mother’s case in opposition to the application for the return of the child
It was and remains the mother’s case that the removal or retention of the child was not a removal or retention of the child within the meaning of the Regulations, and thus pursuant to Reg 16(2)(a) the Court must refuse to make an order for the return of the child to the United States.
Alternatively, the mother claims that the father had consented to or subsequently acquiesced in the child being removed to, or retained in, Australia, and thus she would seek the exercise in her favour of the discretion to refuse to make an order for the return of the child pursuant to the provisions of Reg 16(3)(a)(ii).
In order to understand the mother’s primary claim, being that the removal or retention in this case was not a removal or retention within the meaning of the Regulations, it is necessary to have regard first to Reg 3(1) which provides that a reference in the Regulations to “the removal of a child” is a reference “to the removal of that child in breach of the rights of custody of a person … if, at the time of removal, those rights … were actually exercised … or would have been so exercised but for the removal …”.
The precise terms of Reg 3(1) are as follows (emphasis added):
“3(1)A reference in these regulations to the removal of a child is a reference to the removal of that child in breach of the rights of custody of a person, an institution or another body in relation to the child if, at the time of removal, those rights:
(a) were actually exercised, either jointly or alone; or
(b) would have been so exercised but for the removal of the child.”
A somewhat unsatisfactory attempt at a definition or explanation of the concept of rights of custody is then to be found in Reg 4, which is in the following terms (emphasis added):
“4(1)For the purposes of these regulations, a person, an institution or another body has rights of custody in relation to a child, if:
(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 the convention country in which the child habitually resided immediately before his or her removal or retention.
(2) For the purposes of subregulation (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.
(3) 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.”
According to the mother, the removal of the child in this case was not a removal within the Regulations because under the terms of the order of the Georgia Court of 2 November 2001 (the text of which appears in paragraph 6 above), the father was not actually exercising (or would not have been exercising) rights of custody when the child was removed to Australia. Thus the removal was not a removal in breach of his rights of custody, and thus not “a removal” within the meaning of the Regulations having regard to the provisions of Reg 3(1).
The mother’s claims that the father had consented to, or subsequently acquiesced in, the removal or retention of the child are based essentially on the contents of correspondence between the parties.
The decision of Judicial Registrar Johnston
The application of the Central Authority for an order for the return of the child was heard by Judicial Registrar Johnston on 26 November 2002.
In his reasons for judgment, published on 6 December 2002, the Judicial Registrar concluded that “at the time the child was removed to, or retained in Australia, the father was actually exercising rights of custody in relation to the child within the meaning of the Regulations”, and thus that the Regulations applied in this case. The Judicial Registrar also concluded that the father had “not consented or subsequently acquiesced in, the child being removed to, or retained in Australia”. Thus the Judicial Registrar concluded that he was required to make an order for the return of the child to the United States. (See paragraphs 72 – 73 of the Judicial Registrar’s reasons for judgment.)
Following the making of the Judicial Registrar’s order for the return of the child, the mother filed an application for a review of the exercise of power by the Judicial Registrar. That application was heard by Rowlands J on 7 February 2003.
The decision of Rowlands J
In his reasons for judgment, published on 7 March 2003, Rowlands J concluded, similarly to the Judicial Registrar, that the father had “a right of custody which he was actually exercising at the time the child was removed” and that the father had not consented to or acquiesced in the child’s removal. (See paragraphs 43 and 45 of his Honour’s reasons for judgment.)
Accordingly, his Honour dismissed the mother’s application for review and ruled that the orders of the Judicial Registrar should “stand”. It is against his Honour’s order that the mother now appeals. (There appears to be no copy of any engrossment of his Honour’s order in the Appeal Book, but no issue was raised before us concerning that omission. It is sufficient that his Honour’s reasons are before us.)
The mother’s grounds of appeal in summary
The mother relied on seven grounds of appeal. Five of her grounds (Grounds 1 - 4 and 6) were directed to Rowlands J’s conclusions that the father had and was exercising rights of custody at the time of the child’s removal from the United States, and that the removal was therefore a removal within the meaning of the Regulations.
A further ground (Ground 7) is directed to his Honour’s finding that there had been no acquiescence on the part of the father to the retention of the child in Australia.
The remaining ground (Ground 8) challenges the adequacy of his Honour’s reasons for his conclusions on both the issue of the father’s rights of custody and on the issue of the father’s alleged acquiescence.
Ground 1
Ground 1 asserts that his Honour erred “in holding that an order for the child’s return should be made unless the discretionary relief in Regulation 16(3) operates, as Regulation 16(2)(a) expressly provides that a Court must refuse to make an Order for return if the removal or retention was not a removal or retention within the meaning of the Regulations (Regulation 3(2) and Regulation 4)”.
Throughout his reasons for judgment, Rowlands J appears to have approached the matter on the basis that both aspects of the mother’s case (that is, first whether the removal was in breach of the father’s rights of custody which were being, or would have been, exercised at the relevant time, and secondly, whether the father had consented to or subsequently acquiesced in the child being removed to, or retained in, Australia) were directed to the discretion conferred on the Court by Reg 16(3)(a)(i) and (ii) to refuse an order for return. On the basis of this approach his Honour concluded that the mother had “not established either of the matters referred to in Regulation 16(3)(a)(i) and (ii)”, and that “the discretionary issue in Reg 16(3)” did “not then arise”.
In approaching the case on the basis that it involved only the discretionary power contained in Reg 16(3), his Honour appears to have overlooked the fact that the mother’s case was based on the requirement which is imposed by Reg 16(2)(a). That requirement is that there must be a “removal” in accordance with the definition of that term in Reg 3(1) (quoted above). In accordance with that definition, unless it is established that the removal of the child was a removal in breach of the rights of custody of the father, which at the time of the removal, he was actually exercising, or would have been exercising but for the removal of the child, then the Regulations could not apply and the “…court must refuse to make an order…” for the return of the child.
Thus the assertion contained in Ground 1 is correct. However in our view the ground can have little real substance or effect unless one or more of the remaining four grounds of appeal directed to the issue of whether the father has rights of custody, such that the Regulations can be said to apply to this case, are also found to have substance. We now turn to consider those grounds.
Grounds 2, 3, 4 and 6
Grounds 2, 3, 4 and 6 are in the following terms:
“2.The learned Trial Judge erred in failing to conclude that the removal or retention of the child was not a removal or retention within the meaning of the Regulations (Regulation 3(2) and Regulation 4), such that a defence under Regulation 16(2)(a) operated.
3.The learned Trial Judge erred in finding that the father had and/or was exercising “rights of custody” in relation to the child within the meaning of the Family Law (Child Abduction Convention) Regulations 1986, having regard to:
a.the Order made 2 November 2001 of the Georgia, USA Court that granted the mother the right to make decisions on issues regarding child rearing where the parties were unable to agree;
b.the weight of the expert evidence and particularly that of Professor Paul Kurtz in relation to the Georgia Order.
4.The learned Trial Judge erred in accepting the evidence of Mr Erwin (sic) L Somerstein as constituting expert evidence and/or preferring it to that expert evidence filed on behalf of the mother, having regard to:
a.the absence of evidence as to Mr Somerstein’s experience and qualifications;
b.the bias evident in his reports.
…
6.The learned Trial judge erred in elevating the father’s right to consultation on child rearing matters under the Georgia Order, to amounting to rights of custody.”
In support of these grounds (which were largely argued together) Counsel for the mother submitted that in order to determine whether a removal or retention in any particular case was a removal in breach of the rights of custody of a person – in this case the father - with the result that the removal would be a removal for purposes of the Convention, the Court must follow a three stage process which, as described in Counsel’s written submissions, is as follows:
“5.5.1The first task is to establish, on the evidence before it, what rights, if any, the father had under US law in relation to the child at the time of [removal or] retention;
5.5.2The next stage is to resolve, as a matter of Australian law under the Regulations (being the law of the forum where the Convention has been invoked), whether they amount to ‘rights of custody’ within the meaning of the Regulations;
5.5.3Finally, the question is whether or not the [removal or] retention of the child was in breach of those rights. The answer to this final question determines whether or not the [removal or] retention was wrongful within the Regulations.”
In support of his contention for this three stage process Counsel relied on the English decisions of Re F (A Minor) (Abduction: Custody Rights Abroad) [1995] Fam 224 and Re V-B (Minors) [1999] EWCA Civ 1013. It must, of course, be remembered that the English decisions on Convention matters are concerned with an interpretation of the terms of the Convention itself, whereas in Australia it is the Regulations which have to be interpreted and applied. The equivalent articles in the Convention to the relevant Regulations in this case, being Regs 16, 3 and 4, are as follows:
“Article 12
Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child unless it is demonstrated that the child is now settled in its new environment. …”
“Article 13
Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that —
a the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention …”
“Article 3
The removal or the retention of a child is to be considered wrongful where —
a it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and
b 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. The rights of custody mentioned in sub-paragraph a above, may arise in particular 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 that State.”
“Article 5
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 or 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.”
In the course of his judgment in Re V-B Ward LJ (with whom Mantell LJ and Beldam LJ agreed) when discussing the proper approach to the construction and application of “custody rights” within Article 5 of the Convention, said:
“The starting point, as established by In re F. (Abduction: Custody Rights Abroad) [1995] Fam. 244, can be stated as follows:-
1. The first task of the court is to establish on the evidence before it what rights, if any, the father had under Dutch law in relation to his children at the time of their removal.
2. The next stage is to resolve, as a matter of English law, that being the law of the forum where the Convention has been invoked, whether those rights amount to “rights of custody” within Article 5.
3. Finally, the question is whether or not the removal of the children was in breach of those rights. The final answer determines whether or not the removal is wrongful within the meaning of Article 3 of the Convention.”
Counsel for the Central Authority did not challenge the correctness of the submission of Counsel for the mother in relation to this three-stage approach based on the English decisions of Re F and Re V-B. We note also that it was the approach adopted by Judicial Registrar Johnston (at paragraph 16 of his judgment). Accordingly, we are prepared to accept (at least as presently advised) that this three-stage approach is the appropriate approach to the application of Regs 3 and 4.
In relation to the first step in the process, being the determination of what rights, if any, the father had in relation to the child under the law of Georgia, it was the submission of Counsel for the mother, which we accept, that this was a question to be determined on the basis of the expert evidence before the Court.
In support of this submission Counsel relied on an English decision, S v H (Abduction: Access Rights) [1998] Fam 49, in which Hale J when faced with a conflict between legal experts as to foreign law in a case involving the Convention said (at p 52):
“It is regrettable, to say the least, that an English Court is faced with such a conflict between foreign lawyers on a point of such importance. I bear in mind the observation of Staughton LJ In Re B (A Minor) (Abduction) [1994] 2 FLR 249, 268 that we should resist the temptation to make our own findings as to foreign law and stick to the expert evidence. But where that evidence is in conflict we have to do the best we can…”
In the present case the evidence before Rowlands J in relation to the question of what rights the father had in relation to the child under the law of Georgia was as follows:
§ the orders and reasons for judgment of the Superior Court;
§ the relevant statutory provisions under Georgia law;
§ the evidence of the mother’s American Attorney, Mr Howard Gold;
§ the evidence of the father’s Attorney, Mr Evin Somerstein; and
§ the evidence filed on behalf of the mother by Professor Paul Kurtz.
The Judicial Registrar also had all of this material before him, except for the opinion of Professor Kurtz.
It will be recalled that the order of the Georgia Court (the text of which is set out in paragraph 6 above) provided that (emphasis added):
§ both parents were “awarded Joint Legal Custody”;
§ the mother was “awarded sole physical custody”;
§ if the parents were “unable to agree on issues regarding child rearing” the mother “as primary physical custodian, shall have the right to make the decision”.
The expression “Joint Legal Custody” is defined by Article 19-9-6(2) of the Georgia Family Code in the following terms:
“(2) ‘Joint legal custody’ means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training; provided, however, that the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.”
We understand it to be common ground that the expressions “sole physical custody” and “child rearing” are not defined in the legislation of Georgia. Nor, of course, are they explained in the order itself.
The evidence of the father’s attorney, Mr Somerstein – which was the expert evidence ultimately accepted by both Rowlands J and the Judicial Registrar in preference to the evidence of the mother’s witnesses, Mr Gold and also in the case of Rowlands J, Professor Kurtz – was contained in two statements dated 21 October and 1 November 2002. The core of Mr Somerstein’s evidence as to the father’s rights under the law of Georgia is to be found in the following paragraphs of his first statement (footnotes omitted but emphasis added):
“Georgia Law on moving residence
Georgia law requires that Ms. [J] [the mother] notify Mr. [P] [the father] 30 days in advance of any move she makes with his daughter and to provide him of the full address of any new residence.
As stated in Georgia Family Code O.C.G.A. §§19-9-1 c (3).
‘Except where otherwise provided by court order, in any case under this subsection in which a parent changes his or her residence, he or she must give notification of such change to the other parent and, if the parent changing residence is the custodial parent, to any other person granted visitation rights under this title or a court order. Such notification shall be given at least 30 days prior to the anticipated change of residence and shall include the full address of the new residence.’
Ms. [J] had a certified letter delivered to Mr. [P] on November 30, 2001 stating that she was going to visit Australia for a month, though she had previously shipped all of her household items, and left immediately thereafter. She enclosed no address or other information, and in fact only surfaced in Australia 10 days later after travelling through Canada to arrive there.
She has remained in Australia since that time, and steadfastly refused to return. It was not until mid-January 2002 that Ms. [J]admitted that she intended to stay in Australia permanently with [O].
Joint Legal Custody
Under the Legal Joint Custody terms of the divorce decree, Ms. [J] was obligated to consult with Mr. [P] in matters concerning child rearing and, thus, to inform him on all matters relating to the health, education and where the child is to live. This gives weight to Mr. ]P’s] opinion, and allows him to apply to the court for relief should decisions be made contrary to his wishes (see Georgia Family Code O.C.G.A. §§19-9-6) While the decree allows the joint custodial parent, Ms. [J], who has physical custody, to make the final decision in matters in the event that the joint custodial parents cannot agree on a matter, she has the obligation to inform him in matters affecting his daughter and to consult with him on her well being. This stipulation of the final decision resting with the physical custodian is commonly done in Georgia in the interest of timely decisions, not to abrogate rights of Legal Joint Custody. There had been no consultation with Mr. [P] in any matter relating to the well being or the location of his daughter since the decree.
In any case, the primary physical custodian does not have the right to violate the rights of visitation of the other parent who has Joint Legal Custody, as Ms [J] clearly has done by moving 20,000 kilometers away.”
In summary therefore, Mr Somerstein’s evidence was that under the law of Georgia:
§ the father had a right to be notified in advance of any change in the child’s residence;
§ the father had a right to be consulted and informed on all matters concerning “child rearing” (including where the child is to live);
§ the mother has the right to make the final decision on such matters;
§ the mother’s right of final decision making does not abrogate the father’s right of joint legal custody; and
§ the mother, as physical custodian, does not have the right to violate the rights of visitation of the father who has joint legal custody.
The evidence of the mother’s attorney, Mr Gold, was contained in two affidavits sworn 18 October 2002 and 18 November 2002. The core of Mr Gold’s evidence is to be found in the following paragraphs from his first affidavit (emphasis added):
“7.The Orders make no prohibition against [Ms J] [the mother] removing [O] from either the State of Georgia or the United States. Further, there is no residuary prohibition, under the statute law of Georgia, in [Ms J] removing [O] either from Georgia or the United States, without the consent of [Mr P] [the father], following the making of the Orders.
…
9.The Orders awarded [Ms J] “sole physical custody” of [O]. Under Georgian law, this gives [Ms J] the right to reside with [O] at a residence of her choice. Having regard to the making of that Order, [Ms J] did not breach any Order or the law of Georgia in relocating the child to Australia.
10.The Orders awarded each of [Ms J] and [Mr P] “joint legal custody” of [O]. “Joint Legal Custody” is defined in the Statute of Georgia O.C.G.A in 19-9-6 (2). …
11.However, it is very important to note that the Orders also provide that if [Ms J] and [Mr P] are unable to agree on issues regarding “child rearing”, [Ms J] “shall have the right to make the decision”. “Child rearing” is not a term defined under Georgian statute law. However, it is a term of common expression in family law proceedings in this State. “Child rearing” means, in my opinion, matters of significance to the long term care, welfare and development of a child and includes, for example, decisions in respect of a child regarding their residence, education, medical and surgical decisions, psychological counselling and decisions regarding religious training. Annexed … is a true copy of the Georgian Case of In Daniel v. Daniel, 250 Ga. App. 482, 552 S.E. 2d, 479(2001), in which the Court of Appeals of Georgia did refer to “child rearing matters” as important legal decisions relating to the child. The expression “child rearing” does not normally relate to minor matters going to relatively trivial or day to day issues.
12.The Order makes clear that the ultimate responsibility for making major decisions lies solely with [Ms J] in the event of any dispute. [Ms J] is effectively given a casting vote or right of veto on any major issue concerning [O].
13.Annexed and marked “G” is a true copy of the Georgian Case of Ormand v. Odom, 217 Ga. App. 780459 S.E 2d, 439 (1995). This case is authority for the proposition that relocation of a child in and of itself, is not a change in the child’s condition which is sufficient to warrant a change of custody. ”
In summary the evidence of Mr Gold was:
§ as sole physical custodian the mother can decide the place of the child’s residence;
§ there is no prohibition on the mother removing the child from Georgia or from the United States without the consent of the father; and
§ while the father has “joint legal custody”, the mother has the right to make the decisions on “child rearing” matters on which the parties cannot agree. “Child rearing matters” means important matters, including where the child will live.
The evidence of the mother’s other expert witness, Professor Kurtz, is contained in a nine-page report attached to an affidavit sworn by him on 30 January 2003. Notwithstanding the length of the report we will include the greater part of it in these reasons for judgment. We do so in order that the Professor’s reasoning and the decided cases on which he relied (and on which Counsel for the mother also relied in his oral submissions to us) can be fully appreciated. The relevant passages of Professor Kurtz’s report are as follows (with emphasis added):
“1. WHAT WAS THE MEANING AND IMPACT OF THE GRANT OF “SOLE PHYSICAL CUSTODY” OF THE CHILD TO NIRA IN DIVORCE DECREE?
The final judgment and decree issued by the Georgia trial court in November, 2001 granted “sole physical custody” of the couple’s minor child to [Ms J] (the mother), while father was given visitation rights according to a schedule. According to the law of Georgia, absent any provision in the decree qualifying the power of the physical custodian, a grant of sole physical custody is one which confers in the custodian the substantive right to determine the residence of the child. Thus, the grant of sole physical custody to the mother presumptively gives her the right to decide whether to continue to live with the child in DeKalb County, to move with the child to another area of Georgia, to move with the child to another state in the United States or to move with the child to another country.
My authority for this position is a consistent line of case law in Georgia pointing to the plenary power of the physical custodian to choose the residence of a child in his or her physical custody. The seminal case in this line of authority is a decision of the Georgia Supreme Court in 1973, holding that a custodian’s move out of state was presumptively appropriate and not, in and of itself, a grounds to modify visitation rights, much less custodial rights in the child. Moore v. Wiggins, 230 Ga. 51 (1973). It should be noted that the Georgia Supreme Court, under our federal system of law, is the ultimate authority concerning the content of the law of the State. The Wiggins decision pre-dated the trend developed in the past 20 years in the United States of splitting post-divorce custodial rights in children into legal and physical custody and, thus, the court was addressing a situation where one parent had been granted simple “custody” of the child involved. The principle of presumptive power of a custodian to determine the residence of his or her child of whom he has physical custody has been reiterated as recently as this past fall in the Georgia Court of Appeals in Bodne v. Bodne, 257 Ga. App. 761 (2002).
In Bodne, the parents had agreed to joint legal custody with primary physical custody granted to the father. This, of course, is identical to the situation in the instant case. The only difference, in fact, is that the custodial arrangement in the case under consideration derived from court order after a contested hearing, rather than an agreement between the parties. In Bodne, approximately 15 months after the divorce the custodial father, after remarrying, decided to move the couple’s two children to Alabama. In responding to mother’s effort to change custody because of this move, the Georgia Court of Appeals reversed a trial court grant of change of custody to mother. The Georgia Court of Appeals wrote that:
In situations where one parent is designated as the primary physical custodian of the children and ‘the only change in the conditions surrounding the children is that the father remarried…and moved out of state, [r]elocating and remarrying are not in and of themselves sufficient changes in conditions to authorize a change in custody.
For other cases affirming the same principle, see Ofchus v. Isom, 239 Ga. App. 738 (1999); In the Interest of R.R., 222 Ga. App. 301 (1996); Ormandy v. Odom, 217 Ga. App. 780 (1995). It seems clear that those with physical custody of a child, unless there are specific constraints imposed in the original decree, are authorized to change their child’s residence, even to the extent of moving the child out of state. Viewed from the perspective of the non-custodial parent (the father in this case), under Georgia law there is no substantive right owned by the non-custodial parent of which he might be deprived by the fact that the child has been relocated outside of Georgia by the custodial parent. It should also be noted that the trial court order which granted sole physical custody along with its attendant rights to the mother in this case was not appealed to the Georgia Supreme Court, to which an appeal was available. GA. CONST. 1983, ART. VI, §VI, PARA. III.
It should be noted that the law of Georgia on this matter is not unique within the United States, either as a matter of statutory or case law. The California Family Code §7501 states:
A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
See Lasich v. Lasich, 99 Cal. App. 4th 702 (3rd Ct. App. 2002) (applying the presumption in a move-away to Spain in a situation where parties shared joint legal custody and joint physical custody); In re Marriage of Bryant, 91 Cal. App. 4th 789 (2nd Ct. App. 2001) (applying presumption in initial award of custody where custodial parent announced intention to move child out of state).
An almost identically worded statute is part of the law of Oklahoma:
A parent entitled to the custody of a child has a right to change his residence, subject to the power of the district court to restrain a removal which would prejudice the rights or welfare of the child. 10 Okla. Stats. of 1991 §19.
For a recent case interpreting this statute, see Kaiser v. Kaiser, 23 P. 3rd 278 (Okla. 2001) (summarizes statutes and cases in other states).
2. IS THE MOTHER’S PRESUMPTIVE POWER TO DETERMINE CHILD’S RESIDENCE EXPRESSED IN THE GRANT OF “SOLE PHYSICAL CUSTODY” MODIFIED WITHIN THE DIVORCE DECREE?
Having determined that the grant of sole physical custody granted the mother the power to determine the child’s residence unless such power is qualified or modified in any way, the next inquiry is to determine whether there is any such restriction, either in the trial court order itself or in Georgia statutory law. The first possible source of such modification might be the divorce order language granting “Joint Legal Custody” of the minor child to both mother and father. Upon first glance, when taken together with the statutory definition of joint legal custody, this designation in the decree might seem to modify and restrict mother’s power to determine the child’s residence. The Georgia General Assembly has defined this concept as follows:
“Joint Legal Custody” means both parents have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, and religious training…” Ga. Code Ann. §19-9-6(3).
Focusing on this section of the Georgia statutes, which defines the phrase used in the divorce order, it certainly would appear that both parties would have “equal rights” to make major decisions. The residence of the child would appear to be a “major decision” in the language of the statute. Thus, because each of the parents had an equal right to make such a decision a disagreement about whether the child should change her residence would result in no change from the residential status of the child at the time of the issuance of the divorce decree.
However, it is important to note the rest of the language of the statutory definition of “joint legal custody.” The legislative direction goes on to state (immediately after the portion of the statute cited above) that “the court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.” In my opinion, the trial court judge in the divorce action granted just such a power to the mother, the sole physical custodian in this case, by stating that if “the Parties are unable to agree on issues regarding child rearing, the Plaintiff… shall have the right to make the decision.” This has the effect of giving mother the ability to overrule the father in situations where the parents have a disagreement concerning the “child rearing” of their child.
This, of course, leads to the question of what is included within the concept of child rearing. An exhaustive search of Georgia statutes and case law has revealed no definitive answer to this question. While it is possible that custody agreements and divorce decrees are being written and operated within our state using this phrase, there simply has been no reported appellate litigation making any attempt to define what is and what is not included within this concept. A search of cases and statutes in other states similarly has not been especially fruitful in trying to isolate usage of this particular phrase. There is authority, however, for the proposition that the concept of childrearing includes the right to determine where the child should be raised. See Lane v. Schenck, 614 A.2d 786, 789(Vt. 1992) (“the place of residence for a family is central to childrearing, and thus that decision is understandably entrusted to the parent awarded parental rights and responsibilities”); see also Kaiser v. Kaiser, cited supra.
With the sparse authority which could be located both within and outside Georgia law, the best that can be done is to express an expert opinion on what a Georgia court would hold when asked to interpret this phrase. The best evidence of an answer to this question, I conclude, would be found in the cases cited in the context of the prior question. That is, by recognizing the physical custodian’s right to move the child even out of the state, the Georgia courts have made clear that at the heart of the ability to raise (or “rear”) one’s child is the ability to decide what kind of place and what specific place that rearing will occur.
By including the provision granting the Mother the right to make the final decision on all matters of child rearing, the trial court judge can be seen as responding to the strong suggestion made by the Georgia Court of Appeals, in Daniel v. Daniel, 250 Ga. App. 482 (2002). In that case, the appellate court was very critical of a parental agreement, later incorporated into the divorce decree, which provided for joint legal custody but provided no mechanism for breaking any deadlock between the parents. In a unanimous decision, the appellate court wrote that “a joint legal custody award which fails to provide a method for resolving disputes … ignores the realities of life and guarantees future litigation” and agreements “which do not provide a reasonable procedure for resolving disputes in joint custody cases should not be approved by the trial court.” Just as agreements failing to provide a way to “break ties” should not be approved, likewise (and likely even more emphatically) orders in contested cases (such as the instant one) should provide a “reasonable procedure” to resolve disputes.
It is understandable that the trial judge would have chosen to resolve any deadlocks between these parents by giving the mother the power to determine, over the father’s objections, where their child should live. In this case, according to the finder of fact (an experienced trial court judge), the father had abandoned the child by moving across the United States when the child was less than 4 months old, the mother was the only custodian the child had ever known, the father was in “wilful contempt” for failing to pay over $7000 of court-ordered child support at the time of the divorce hearing and the father had announced through an email his threat to the mother to “fight [over custody] with every ounce of my strength from now until the day I die. You will have no peace in this lifetime.” Granting the mother the power to make the ultimate decisions about her child made sense in the context of the background facts of this case.
3. WHAT RIGHTS DID FATHER HAVE IN RELATIONSHIP TO THE CHILD ACCORDING TO THE ORDER UNDER GEORGIA LAW?
The question here is to determine the nature of the father’s rights created by the interaction between the decretal provisions creating:
1) the grant of sole physical custody to the mother and visitation rights in the father;
2) the grant of joint legal custody to both parents and
3) the grant of deciding power on matters of “child rearing” to the mother.
While no Georgia appellate case directly answers this question, it would seem that father would have the following rights under the decree:
1) the rights to visit the child according to the schedule attached to the decree and incorporated by reference therein (and the right to a reconfiguration of these visitation rights if there was a significant change in location of the residence of either child or father. See Ofchus v. Isom, 239 Ga. App. 738 (1999); Ormandy v. Odom, 217 Ga. App. 780 (1995);
2) the right to be consulted on “issues regarding child rearing;” and
3) if, and only if, there are concepts contained within the concept of Joint Legal Custody which are outside the general topic of “child rearing,” the right to participate in decisions on such matters.
Because I was unable to identify any case law in which a Georgian court (or any other American court) was faced with the interaction of joint legal custody and sole child rearing authority, I can only provide an expert opinion as to what residual power in the father might be found to reside in the grant of joint legal custody.
Because the order declared both joint legal custody and sole child-rearing authority, an appellate court will hold that both grants had legal efficacy.
In my expert opinion, an appellate court in Georgia, would hold, in light of the background facts of the case, the trial judge’s grant of child-rearing authority to the mother gave her absolute power to determine, ultimately, all matters concerning the couple’s child. After all, she had done so for the 3 ½ years prior to the issuance of the divorce decree. Under this interpretation, the court granted joint legal custody with the goal of facilitating consultation and discussion in hopes that at least on some matters there might be agreement. But at the same time the “tie-breaking” power in any disputes over child rearing was granted to the mother in the realistic assumption that this lengthy, and apparently bitter, dispute would continue into the future. On this basis, the father had no “rights of custody” at the relevant time.
The power to determine the residence of the couple’s child is ultimately delegated to the mother. There is no doubt that the trial court judge could have (and should have) made his intention clearer, but the order must be interpreted as written. A full understanding of that order requires not only analysis of what was included in it, but also reflection on and understanding of what was not included within it. This brings me to the next question.
4. COULD THE TRIAL COURT HAVE ORDERED THE MOTHER NOT TO LEAVE THE STATE OF GEORGIA FOR THE PURPOSE OF ESTABLISHING RESIDENCE ELSEWHERE?
The Supreme Court of Georgia has clearly held that a trial court in a divorce case has the power to prohibit the removal of a child from the United States, in order to preserve jurisdiction in the United States. Mitchell v. Mitchell, 252 Ga. 46 (Ga. 1984). While ordinarily the failure to include such a prohibition in the divorce decree might be attributed to the trial court judge’s inadvertence or a failure by the non-custodial parent to introduce evidence concerning the possibility of removal of the child from the state by the custodial parent, that appears not to have been the case here. While counsel for mother and father have different recollections of whether father and his counsel asked the trial court judge to impose a limitation on the mother’s ability to take the child out of the country, objective evidence that the matter had been raised before the court exists and has been previously submitted to the court. In a transcript of a 1999 hearing in this case in the DeKalb County Superior Court (which is annexed to Howard Gold’s affidavit of 18 November 2002), father is quoted as saying:
I am not going to agree to this unless there is some proviso about the passport. I will not allow her to take the child out of the country period. She can take the child out of the country and leave it with her mother. There is absolutely no way I am going to agree with that.
While my report is designed to be a report on law and not one resolving factual disputes such as whether father sought a restriction in the Georgia court proceedings on the mother’s travel with the child, the quotation from the father cited above (along with other statements in the materials reviewed) would render it very likely that such a restraint had been sought and implicitly denied by failure of the court to include the requested restraint which was clearly a legally authorized one, in light of the Mitchell opinion cited above.”
In summary the evidence of Professor Kurtz was that:
§ the grant of sole physical custody to the mother “presumptively” gives her the right to decide where the child will live, including outside the United States;
§ as joint legal custodian both parents have equal rights to make major decisions, such as where the child is to live, but the relevant legislation provides for the court to order that one parent may make certain decisions;
§ in this case the mother has the decision making power in “child rearing matters” which includes the matter of where the child is to live;
§ in addition to visitation rights, the father has only a right to be consulted on child rearing matters; and
§ the Georgia Court could have prohibited the removal of the child from the United States, but it did not.
Rowlands J in his reasons for judgment summarised the paragraphs which we have set out above from the opinions of both Mr Somerstein and Mr Gold. His Honour then provided a brief overview of Professor Kurtz’s opinion before making the following observations and reaching the conclusion that he preferred the opinion of Mr Somerstein:
“35Ultimately, he concludes, that guidance must come from the “cases cited in the context of the prior question” (the physical custodian’s right to move the child). The “seminal” case Professor Kurtz says is Moore v Wiggins 230 Ga. 51 (1973). It held that “a custodian’s move was presumptively appropriate, although, as he points out, this case predates the splitting of custody rights between legal and physical custody. The court, in that case, was addressing circumstances where a parent was simply given “custody”. It appears that definition of “joint legal custody” in the Code postdates the case.
36It is not as clear to me, as it appears to be to the Professor, that the deadlock provision is a delegation of sole power within the meaning of the statute.
37Further, his analysis of the phrase “child rearing” does not appear to take the matter beyond the meaning of the word ‘rearing’ as found in an American English dictionary. Such a definition has been earlier mentioned.
38Assuming the status of the mother as “physical custodian” and as one of the “joint legal custodians” albeit with a “casting vote”, this does not deny the father’s status as a “joint legal custodian”. As Professor Kurtz says “both grants have legal efficacy”.
39Perhaps a legal observer is entitled to say the mother stands in a strong position in the Georgian court, that be is as may be, under the existing law in Australia (flowing as it does from an implementation of the treaty into our own law) it is an issue for that court to determine and not this one. It is not to the point to say that the mother is likely to succeed in Georgia. I do not, and indeed should not, speculate as to what the Superior Court would do in the light of the changed circumstances following the mother’s flight to Australia with the child.
40The issue is whether or not the father has, in law, a right of custody not whether or not he will on any particular issue ultimately prevail. (Certainly the law as discussed by the Professor does not suggest that the Superior Court is constrained to reach a conclusion adverse to the father.) In the ultimate the discretionary issue should be determined within the jurisdiction in which the child is an habitual resident.
41 As the Judicial Registrar said at paragraph 35 of his decision:
“What purpose would there be in the Superior Court on the one hand giving the father rights of custody under the order awarding him the joint legal custody of the child only to take the entirety of those rights of custody away under the “child rearing” orders contained in the same set of orders? In my view, it would defy logic and common sense.”
42Accordingly I prefer the opinion of Mr Somerstein that the order for joint legal custody gave the father a right of custody. It accords with the language of the Superior Court’s order and is supported by an analysis of the situation.”
Before us Counsel for the mother submitted that his Honour should not have accepted the opinion of Mr Somerstein over the opinions of Mr Gold and Professor Kurtz for a number of reasons. Those reasons included the fact that unlike Mr Gold and Professor Kurtz, Mr Somerstein had provided no evidence to the Court of his qualifications and experience.
Furthermore, Counsel for the mother submitted (relying on the decision of the Full Court in Re W and W: Abuse Allegations; Expert Evidence (2001) FLC 93-085 at paragraphs 149 – 182) that the two reports provided by Mr Somerstein contain, in the words of Counsel, “numerous pejorative statements that demonstrate that he is not an independent expert, but instead an Attorney who has entered the arena as an advocate for the father” (see written submissions paragraphs 5.11.1 and 5.11.2). The following examples of such statements by Mr Somerstein were then provided by Counsel:
“5.11.2.1“During that length of time, it was apparent to me that there were many instances where the Georgia Court, some of the most conservative in the United States, failed both Mr [P] and his daughter, [O], in its duty to provide protection and equitable treatment” (Appeal Book 2 p271);
5.11.2.2“By my own observation, Ms [J] had a pattern of thwarting when possible Mr [P’s] relationship with his daughter, culminating in the snatching from Georgia of [O] by Ms [J] last December 1” (Appeal Book 2 p271);
5.11.2.3“However, no matter how one sided the final divorce decree was in favour of Ms [J] …” (Appeal Book 2 p271);
5.11.2.4“Ms [J’s] duplicitous move to Australia has effectively contravened the visitation rights granted to Mr [P]” (Appeal Book 2 p273);
5.11.2.5“The secrecy and deception with which it [the move to Australia] was executed” (Appeal Book 2 p273);
5.11.2.6“The Judge, who was in his 80’s and in poor health, did not pay any attention to the recommendation” (Appeal Book 2 p276);
5.11.2.7“Ms [J’s] surreptitious move from Georgia to Australia” (Appeal Book 2 p279);
5.11.2.8“Ms [J’s] blatant violation of this statute” (Appeal Book 2 p279).”
These matters of the absence of evidence concerning the experience and qualifications of Mr Somerstein (which was a matter raised on behalf of the mother before Rowlands J) and “the bias evident in his reports” are the subject of Ground 4. We would say at this point that we consider that there is substance in that ground.
Given the lack of evidence of the qualifications of Mr Somerstein and the partisan quality of his report on the one hand, and given on the other hand the evidence available concerning Professor Kurtz’s qualifications (set out at the commencement of his report) and the overall quality of his report (in the sense of depth of reasoning and reliance on authorities), we consider that it was Professor Kurtz’s opinion which should have been accepted by his Honour. In reaching this conclusion we have had regard to the observations of Hale J in S v H (quoted in paragraph 38 above) concerning the approach which an English Court should take when confronted with a conflict in expert evidence in relation to foreign law.
Professor Kurtz’s ultimate conclusion was that despite being designated as a joint legal custodian, the father’s rights in relation to the child were, in addition to visitation rights, otherwise limited to a right to be consulted. If the father’s rights did extend beyond a right to be consulted, those rights did not include the right to determine where the child would live. The sole right to determine where the child lived, whether it be in the United States or in another country, was vested in the mother. This, in our view, was the answer which should have been given to the first question which the Court had to answer, being what rights did the father have under the law of Georgia in relation to the child.
It is also important that we record in this context that when in the course of his oral submissions, Counsel for the Central Authority was asked by a member of this Bench whether he accepted the proposition put forward by Counsel for the mother (on the basis of Professor Kurtz’s opinion and the authorities to which he referred) “that sole physical custody enables the mother to choose the place of residence [of the child] at least within the United States”, Counsel for the Central Authority responded “[a]t least within the United States, yes” (at Transcript, 25 June 2003, p 67 line 38).
But it must also be recorded that Counsel for the Central Authority strongly resisted the proposition that sole physical custody would enable the mother to remove the child unilaterally from the United States. This was for the reason that such a move would place the child beyond the jurisdiction of the courts of the United States. However Counsel was unable to direct us to any authority to support such a distinction in the rights of a sole physical custodian between a move within the United States, and a move beyond the United States. Having regard to the opinions expressed by Professor Kurtz in the last section of his report based on the decision in Mitchell, we are not satisfied that the distinction sought to be drawn by Counsel for the Central Authority between a move within the United States and a move abroad, has any validity.
The second question that must be addressed in determining whether there is in this case a removal within the meaning of the Regulations, is whether such rights as the father had in relation to the child under the law of Georgia, amount to “rights of custody” within the meaning of the Regulations.
It might perhaps be thought that the fact that the father has been designated joint legal custodian under the law of Georgia would be sufficient to conclude that for purposes of the Regulations he has rights of custody.
However, reference to the somewhat unsatisfactory definition of rights of custody in Reg 4 (set out in paragraph 17 above), and also to the language of Article 5 of the Convention (set out in paragraph 34 above) suggest that “rights of custody” under the Regulations, or under the Convention, must include the right to determine the child’s place of residence. Support for such an interpretation can be found in the following passage from the judgment of Lord Donaldson MR in C v C [1989] 2 All ER 465 at 473:
“‘Custody’, as a matter of non-technical English, means ‘Safe keeping, protection; charge, care, guardianship’ (I take that from the Shorter Oxford English Dictionary); but ‘rights of custody’ as defined in the convention includes a more precise meaning, which will, I apprehend, usually be decisive of most applications under the convention. This is ‘the right to determine the child’s place of residence’. … If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention.”
For present purposes, some assistance can also be gained from the following passage from the judgment of Ward LJ in Re V-B, which was a passage on which Counsel for the mother relied before us:
“…a right to be consulted does not amount to a right relating to the care of the person of the child. The father’s response to the consultation cannot force any change to the pattern of the children’s care … The most it gives the father is the right to seek a ruling from the court as to where the children are to live. The right to be consulted is not a right of veto. The mother was not bound to take his objections into account nor even to explain why she would not do so. She was free to leave the Netherlands without the father’s permission and without the court’s permission. If she was free to decide where the children were to reside, and he could not object, then it seems to me he had no right to determine the children’s place of residence. The attempt to elevate a right to consultation to a right of custody is to eradicate the crucial distinction between custody and access. The broad purpose of the Convention is to maintain that distinction.”
The decision in Re V-B was referred to by Lord Mackay of Clashfern in his judgment in Re H (child abduction: rights of custody) [2000] 2 All ER 1 at 27 in the following terms:
“In that case it was held that a right merely to be consulted on residence, or any other issue, without an associated right to object did not amount to a right relating to the care of the person of the child. While consultation was of considerable importance, it had little legal effect and did not amount to a veto. As the Dutch order left the mother free to decide where the children were to reside, and the father could not object, it followed that the father had no rights of custody.”
Once it is accepted that the concept of “rights of custody” under the Regulations must include the right to determine where the child was to live and that in the present case the father had no more than a right to be consulted in relation to the question of where the child was to live, then, in our view, it has to be concluded that the father did not have rights of custody under the Regulations notwithstanding that he was a joint legal custodian.
We would also in this context say that we agree with the following submission made by Counsel for the mother in his written submissions (albeit by way of footnote):
“While the learned Trial Judge did not refer to the decision of V-B, it was considered (and distinguished) by the Judicial Registrar … on the basis that in the case of V-B, the mother had, as a matter of Dutch law, the sole custody of the children, whilst in the present case there was a joint legal custody award. The Judicial Registrar did not, with respect, take into account the tie-breaker Order in favour of the mother, which it is submitted, makes the present case analogous with V-B (minors)”
Further, in relation to the passage from Re V-B, it will be seen that Ward LJ referred to the need to maintain the distinction between custody and access for purposes of the Convention. The importance of this distinction was emphasised by Hale J in the previously mentioned decision of S v H. We think it important to draw attention to this distinction in the context of the present case where the father has access or visitation rights which are likely to have been rendered virtually nugatory by the removal of the child to Australia. Having regard to the reasoning of Hale J in S v H, the father’s rights of visitation in this case could not be said, in our view, to amount to rights of custody within the meaning of Reg 4. Indeed we did not understand Counsel for the Central Authority to make any submission to this effect.
Given our conclusion that such rights as the father had under the law of Georgia do not amount to “rights of custody” within the meaning of the Regulations, the third question, being whether the removal was in breach of such rights, does not arise for consideration.
Conclusion in relation to the application of Regulations to the removal in this case
It will be clear from our discussion of Grounds 2, 3, 4 and 6 that we consider all those grounds have substance and that his Honour erred in failing to conclude that the removal in this case was not a removal within the meaning of the Regulations.
It must be remembered that there was an onus on the Central Authority to provide evidence that the father had rights in relation to the child under the law of Georgia, which would amount to rights of custody under Australian law. The evidence before the trial Judge did not support such a conclusion.
It should also be noted that we raised the availability of Reg 17(2) with Counsel for the mother during the hearing of this appeal. That Regulation empowers the Court to request the Central Authority to “… obtain an order of a court … 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.” Neither Counsel sought to avail himself of that suggestion.
Given that the appeal must be allowed on the basis of Grounds 2, 3, 4 and 6 (as well as Ground 1) it is unnecessary to consider the grounds which challenge the adequacy of his Honour’s reasons or his conclusion on the question of acquiescence.
Proposed orders
The consequence of the appeal succeeding on the basis that it has, being that the removal in this case was not a removal within the meaning of the Regulations, means that not only must the orders of Rowlands J and of the Judicial Registrar be set aside, but also that the application by the Central Authority for an order for the return of the child should be dismissed.
The mother also seeks that an order restraining her from removing the child from Australia, which was made by Judicial Registrar Loughnan on 19 September 2002, together with orders made on 26 September 2002 by Judicial Registrar Johnston concerning the surrender of the child's passport and the placing of the child's name on the PACE alert system, should be set aside. In addition she seeks an order for the return of the child's passport which is held by the Registrar of the Sydney Registry of the Family Court. We consider that the appropriate course is for the mother to make an application at first instance for such orders but with such application to be made only after the expiration of 28 days from the date of our orders.
Costs
At the conclusion of the hearing of the appeal we invited and received submissions in relation to the costs of the appeal. In the event that the appeal succeeded Counsel for the mother sought a certificate under s 9 of the Federal Proceedings (Costs) Act 1981. Counsel for the Central Authority did not seek costs nor, at least as we understood his position, a costs certificate.
We consider it appropriate in the circumstances of this case to grant the mother the costs certificate which she has sought.
Orders
That the appeal be allowed.
That the order of the Honourable Justice Rowlands made on 7 March 2003 be set aside.
That the order of Judicial Registrar Johnston made on 26 September 2002 be set aside.
That the application for the return of the child, [O] born 23 July 1997, to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 be dismissed.
That the mother be at liberty to apply at the expiration of 28 days from the date of these orders to a Judge or Judicial Registrar at the Sydney Registry of the Family Court of Australia for the discharge of the orders made by Judicial Registrar Loughnan on 19 September 2002 and of the orders made by Judicial Registrar Johnston on 26 September 2002.
That the Court grants to the mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the mother in respect of the costs incurred by the mother in relation to the appeal.
I certify that the preceding 74 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court
Associate
0
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