SHARMAIN & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES - [2009] FamCAFC 34

FAMILY COURT OF AUSTRALIA

SHARMAIN & DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITY SERVICES

[2009] FamCAFC 34

FAMILY LAW - CHILD ABDUCTION – HAGUE CONVENTION – Child brought to Australia from USA by wife - Appeal against orders made by trial judge for child to be returned to United States pursuant to Family Law (Child Abduction Convention) Regulations 1989 (Cth) – Meaning of ‘rights of custody’ and ‘enforceable rights of custody’ – Whether rights of custody recognised by the Convention must be rights of custody that could be enforced – Meaning of ‘habitual residence’ – Whether courts in USA could exercise jurisdiction over the child since the child had not been a resident in USA for a period of six months at the time of removal by the Mother – Whether the lack of jurisdiction for father in the USA illustrated that the father could not at the time enforce his rights of custody – Whether it is incumbent on an applicant seeking the return of a child to also establish that in the Convention country a court would have jurisdiction to enforce the rights of custody – Whether trial judge erred in relation to his findings with respect to the exercise of jurisdiction by a court in the USA – Appeal dismissed

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1989 (Cth)
Convention on the Civil Aspects of International Child Abduction
Family Law Rules (2004)
Uniform Child Custody Jurisdiction and Enforcement Act (1997) (United States)

MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1; (2008) 82 ALJR 629 at 639-640 [45]-[50].
Armendariz v The People of the State of Colorado 711P.2d 1268; 1986 Colo. Lexis 477
People of the State of Colorado v Haynie 826P. 2d371; 1991 Colo. App. Lexis 285
DP v Central Authority; JLM v NSW Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081
Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321
J and Director-General, Department of Community Services (2007) FLC 93-342
Re F (Child Abduction: Custody Rights Abroad) [1995] 2 FLR 31
Director-General Department of Community Services and Prokop [2002] FamCA 1515

APPELLANT:

Ms Sharmain

RESPONDENT:

Director-General, New South Wales Department of Community Services

FILE NUMBER:

SYC

707

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

13 March 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland, O'Ryan and Ryan JJ

HEARING DATE:

6 February 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 December 2008

LOWER COURT MNC:

[2008] FamCA 1114

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr R McKeand SC

SOLICITOR FOR THE APPELLANT:

Simon Diab and Associates

COUNSEL FOR THE RESPONDENT:

Ms S Christie

SOLICITOR FOR THE RESPONDENT:

New South Wales Department of Community Services, Legal Services Unit

Orders

The appeal by the Appellant Mother be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Sharmain v Director-General, Department of Community Services is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 12 of 2009
File Number: SYC 707 of 2008

Ms Sharmain

Appellant

And

Director-General, New South Wales Department of Community Services

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This is an appeal by Ms Sharmain (“the Mother”), against orders made by Rose J on 22 December 2008. The effect of the orders was to require the return of a child to the United States pursuant to the provisions of the Family Law (Child Abduction Convention) Regulations 1989 (Cth) (“the Regulations”). The Father of the child is Mr Sharmain (“the Father”).
The Regulations are made in accordance with s 111B of the Family Law Act 1975 (Cth) (“the Act”) which provides for regulations to be made to enable the performance of Australia’s obligations under the Convention on the Civil Aspects of International Child Abduction (“the Convention”). The Convention has been in force between Australia and the United States since 1 July 1988.
The subject child S (“the child”), who was born in December 2004 in Queensland. The child is a dual citizen of the United States and Australia. The child currently resides with the Mother in Australia.
The Mother has a child by a previous marriage, X, who was born in August 1999. The child X lives with the Mother and the child. His father is deceased.
On 26 June 2007 the Mother and the two children left the United States by air and travelled to Australia where they arrived on 28 June 2007. They have continued to live in Australia since that time.

BACKGROUND

There was no controversy before us in relation to the relevant background facts which appear in the reasons of the trial Judge.
The Mother was born in the Philippines. The Mother became an Australian citizen in January 1996 and is a permanent resident of the United States. The Father is a citizen of the United States and resides in the State of Colorado.
In July 2001 the Mother and the child X moved to Denver in Colorado in the United States.
In September 2001 the Mother and Father were married in Denver where they lived until September 2004.
In early March 2004 the Mother and the child X travelled to Australia. Within a short time the Mother purchased a house in Queensland. The Mother contended that the purpose of the purchase was to establish a residence for her and the child X when they eventually moved back to Australia. The Mother said that it was a long time plan of the parties for the family to move to Australia. The Father contended that he had not agreed with the Mother’s decision to purchase the property in Queensland.
At about the end of March 2004, the Mother and the child X returned to the United States. His Honour recorded that it was common ground that the Father informed the Mother that he was purchasing a house in the State of Montana in the United States and the Mother contended that she was surprised and “strongly objected” in view of “the plan to move to Australia”. The Father said that the parties had previously discussed the purchase of the property.
In April 2004 the Mother, Father and the child X moved to live in a town in Montana. The Mother subsequently fell pregnant.
In September 2004 the Mother and the child X returned to Australia for the birth of the child. In December 2004 the child was born in Queensland. The Father was in the United States.
In about February 2005 the Father was convicted of a felony and sentenced to 18 months imprisonment.
In late February 2005 the Mother, the child X and the child returned to Montana where they lived with the Father.
In mid-March 2005 the Father commenced serving his custodial sentence. He had been ordered to undergo a residential drug abuse program for alcoholism. While the Father was in prison, the Mother and the children continued to live in the Father’s home.
In August 2005 the Father was released from prison with a three year parole period. Upon the Father’s release he lived with the Mother and the children.
In September 2006 the Mother and Father agreed to sell the house in Montana and move back to Denver.
In his reasons the trial Judge said that in October 2006 the Father and the two children commenced living in Montana whilst the Mother remained in Denver for four months. We note [at Appeal Book 172] that the Father contended that in October 2006, the Father and the two children remained living in Montana whilst the Mother commenced living in Denver where she remained for four months.
When dealing with the relevant background his Honour said that in February 2007 the Mother, the Father and the two children moved to Denver and that in the period 1 March 2007 to 26 June 2007 the parents and the two children lived in Aurora in Colorado. Elsewhere in his reasons, his Honour said that there was a dispute as to whether the Mother and the Father, together with the children, moved to Denver in January 2007 or from 1 March 2007 but that this “aspect of the chronology” was irrelevant as the parents and the children continued to live in the United States.
On 8 June 2007 the Mother purchased one way air travel tickets for herself and the two children to travel to Australia. As seen the Mother and the two children left the United States on 26 June 2007 and arrived in Australia on 28 June 2007.
On 16 July 2007 the Father filed a Summons for Dissolution of Marriage in the District Court, Arapahoe County, Colorado (“the District Court”). The Father also filed in the District Court a Petition for Allocation of Parental Responsibilities in which he sought allocation of parental responsibilities in respect of the child X. We observe that in relation to the Petition for Dissolution of Marriage, attached to the Summons there are a number of automatic temporary injunctions including an injunction restraining both the Petitioner and the Respondent from removing their minor children from Colorado without the consent of the other party or an order of the Court. The injunctions came into effect upon the filing of the Petition or upon service of the Petition and Summons.
On 16 August 2007 the first trial hearing commenced in the District Court, with the Mother participating by telephone link-up from Australia. A jurisdictional issue was raised by the trial judge in respect of the Father’s application for “allocation of parental responsibilities”. Orders were made for the Father to have “telephone contact”.
On 1 November 2007 the Father completed a written application under the Convention for the return of the child to the United States.
On 10 December 2007 a telephone contact order was made in the District Court.
On 11 February 2008 an application was filed by the Director-General of the New South Wales Department of Community Services, in the capacity of the New South Wales Central Authority, seeking that the Mother make such arrangements as were necessary to ensure the return of the child to the United States forthwith in the company of such person and upon such conditions as the Court deemed necessary. The Application was made pursuant to reg 14(1) of the Regulations.
On 19 February 2008 an order was made in the District Court by District Court Judge Robert H Russell II dismissing the Petition of the Father for “allocation of parental responsibilities” in relation to the child X. The Court found that it did not have jurisdiction. On the same date Judge Russell also found and made an order that the District Court did not have jurisdiction over the child because Colorado was not the home state of the child for the six months preceding the filing of the Petition.
On 25 February 2008 a number of orders were made in the Family Court by Judicial Registrar Johnston including that until further order the Mother be restrained from removing the child from the Commonwealth of Australia; that the passports of the Mother and the child be surrendered to the Registrar of the Court and that the names of the Mother and the child be placed on the “P.A.S.S alert system at all Australian international arrival and departure points…”
On 5 March 2008 a Motion was filed by the Father in the District Court for reconsideration of the order made on 19 February 2008 in relation to the child X. The same day the Father filed a separate Motion in the District Court for reconsideration of the order made 19 February 2008 in relation to the child. In both Motions it was recorded that on 19 February 2008 an order was made that the District Court did not have jurisdiction because Colorado was not the home state of either child for the six months preceding the filing of the Petition.
On 8 April 2008 the Motion of the Father to reconsider the orders made on 19 February 2008 in relation to the child X was dismissed by Judge Russell. In a short judgment Judge Russell found that Colorado was never the home state of the child X and that he had only lived in Colorado for four months prior to filing the Petition and never made any substantial connection with Colorado.
On 11 April 2008 an Answer and Cross Application was filed by the Mother in the Family Court and she sought that the Application by the Director-General be dismissed.
On 14 April 2008 the Motion of the Father to reconsider the orders made on 19 February 2008 in relation to the child was dismissed by Judge Russell. Insofar as jurisdiction was concerned the findings of Judge Russell replicate those made in the reasons given in relation to the Motion in respect of the child X.
The hearing before Rose J commenced on 24 April 2008. The trial Judge said that in view of the pending proceedings between the parents in the District Court in which the Father’s application for permanent orders had been set down for 10 October 2008, he was concerned to have before him a copy of the orders which may be made and any further written submissions in that regard. He said that whilst that had the consequence that a prompt decision could not be made within 42 days of the Application being filed, to have done otherwise would have resulted in an “inadequate, albeit prompt, disposition, of the application upon a patently imperfect record” and by footnote referred to “MW v Director-General Department of Community Services [2008] HCA 12”: see MW v Director-General of the Department of Community Services (2008) 39 Fam LR 1; (2008) 82 ALJR 629 at 639-640 [45]-[50].
The trial Judge later received a “Statement of Agreed Facts” dated 12 November 2008 in which is was stated that:
1.The proceedings before the Court on 10 October 2008 were proceedings for dissolution of the parties’ marriage and incidental relief.
2.Relevantly, the Court made the following findings of fact, conclusions of law and issued the following orders and decree:
The Court has previously ruled in this matter that it has no subject matter jurisdiction over the minor child. The Court will not enter any allocation of parental responsibilities order.
On 22 December 2008 his Honour gave judgment and made the following orders:
(1)Declare that the removal by the mother of the child [S] born December 2004 from the United States of America on 26 June 2007 and the retention of the child by her in Australia was wrongful within the meaning of Article 3 of the Convention.
(2)That the applicant make such arrangements as are necessary to ensure the return of the child [S] born December 2004 to the United States of America forthwith in the company of her mother [Ms Sharmain] and her son [X].
(3)That Order (2) is stayed until further order and pending submissions in relation to the conditions, if any, that should be attached to that Order.
On 7 January 2009 the trial Judge made the following orders:
1.That the mother file and serve a statement of her financial circumstances on or before 4pm 16 January 2009.
2That the applicant cause a statement of the father’s financial circumstances be filed and served on or before 4pm 16 January 2009.
3.Counsel for the parties are to lodge and serve an outline of submissions in relation to the conditions if any that should be ordered in relation to the return of the child to the United States of America on or before 4pm 19 January 2009.
On 15 January 2009 there was filed by a solicitor on behalf of the Director-General an affidavit to which material received from the Father was annexed. Written submissions were also filed by the Director-General as to the conditions, if any, which should attend upon the orders for the return of the child. It was submitted that it was not necessary to make any conditions as a consequence of the orders made on 22 December 2008 and that the stay should be lifted.
On 21 January 2009 an affidavit was sworn by the Mother in which she gave further evidence in relation to her financial circumstances. Written submissions dated 22 January 2009 were provided by the Mother as to the conditions, if any, in relation to the orders for the return of the child and in support of a stay of the orders pending an appeal by the Mother.
The matter then came before Rose J on 22 January 2009 and included in the Supplementary Appeal Book is a transcript of the proceedings on that day. On 22 January 2009 his Honour delivered an ex-tempore judgment and then made the following orders:
1.That order 3 made 22 December 2008 is discharged.
2.That there be a stay of proceedings of Order 2 made 22 December 2008 pending determination of the Respondent’s application for an extension of time to lodge an appeal and, if such application is successful, until determination by the Full Court of the proposed appeal or as it may otherwise order.
3.That the Respondent do all things necessary to ensure that the proposed appeal, if leave is granted, is prosecuted expeditiously and the Respondent is in a position to be represented or to appear if unrepresented at the earliest date that may be fixed by the Full Court, regardless of the convenience of solicitor or counsel for the Respondent.
4.That the pending proceedings for determination of the conditions if any that should be attached to the order for return of the child are dismissed.
Notation
A.That the members of the Full Court are requested to consider expedition of the proposed appeal by the Respondent and that dates for hearing be fixed as a matter of priority.
No appeal has been filed against Order 4 of 22 January 2009 and no submissions were made on behalf of the Mother in relation to the order.
On 23 January 2009 Boland J ordered that the hearing of the appeal be expedited.

THE REASONS OF THE TRIAL JUDGE

In his reasons, the trial Judge stated that the Director-General contended that:
·the child’s removal and retention in Australia by the Mother was wrongful;
·at the time of removal the child was habitually resident in the United States;
·the United States is a signatory to the Convention;
·the child is under the age of 16 years;
·the Father is a person who had rights of custody in respect of the child immediately prior to her wrongful removal and retention;
·the Father is a person with parental responsibility for the child pursuant to Colorado law;
·the Father was a person who was exercising his rights of custody at the time of the child’s removal by the Mother to Australia; and
·an application for return was made within one year of the date of retention.
There was no issue that the United States is a signatory to the Convention; that the child is under the age of 16 years and that the application for return was made within one year of the removal of the child from the United States.
The trial Judge said that the case for the Mother was that the child’s habitual residence at the relevant time was in Australia not the United States; that the Father did not have rights of custody; that the Father consented to the Mother’s removal of the child and that the “grave risk” ground pursuant to reg 16(3)(b) of the Regulations was established. In a written summary of argument filed on behalf of the Mother for the purpose of the trial before Rose J, it was submitted that five issues arose and in relation to the defence of grave risk it was contended that if a return order was made the child would be exposed to physical or psychological harm and be placed in an intolerable situation.
The trial Judge observed that there were significant conflicts in the evidence of the Father and the Mother in relation to material facts relevant to the issues. However, neither counsel for the Director-General nor the Mother sought to cross-examine the Father or the Mother.
The trial Judge then dealt with the issue in relation to habitual residence and concluded that the habitual residence of the child, at the time of her removal by the Mother from the United States on 26 June 2007, was in the United States

The trial Judge then dealt with the issue as to whether the Father had rights of custody in relation to the child. This is the significant issue in this appeal. Before the trial Judge there were two issues raised in relation to whether the Father had rights of custody. These were identified in the written summary of argument that was filed on behalf of the Mother for the purpose of the trial and also in the final oral submissions by the Mother’s counsel. The first matter raised was that there was nothing in the evidence to indicate what was meant by rights of custody under the law of Colorado, and in particular, nothing in the evidence to indicate that such rights of custody the Father had under the law of Colorado complied with the requirement of reg 4(2) of the Regulations. It was submitted that it had not been established by evidence that the rights of custody the Father had under the laws of Colorado included the right to determine the place of residence of the child. The second matter raised was that the evidence established that the courts of Colorado had no jurisdiction and accordingly the opinion evidence provided by the Father’s United States attorney concerning custodial rights of parents under the law of Colorado was irrelevant. Further, even if the lack of jurisdiction under the law of Colorado did not invalidate the custodial rights of parents under the laws, such rights must be “matched by a corresponding duty” and the Regulations in requiring rights of custody “as a pre-requisite for there to be wrongful removal, would not and could not have in mind rights of custody that are incapable of enforcement.”
His Honour said that as the application for return of the child was made within one year of the removal of the child from the United States, reg 16(1) of the Regulations applied and as a consequence, should the Director-General satisfy the Court that the child’s removal or retention was “wrongful” pursuant to reg 16(1A) then a return order for the child must be made subject to the Court being “satisfied” of a matter that arises for determination pursuant to reg 16(3). His Honour set out in full the terms of reg 16(1A) and put emphasis on reg 16(1A)(c) which provides that for reg 16(1) a child's removal to, or retention in, Australia is wrongful if: “(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”.
His Honour said that it is important to consider the explanation of the expression “rights of custody in relation to the child” as provided in reg 4 of the Regulations, the terms of which he set out in full in his reasons. He said that it was common ground that the issue of the rights of custody of the Father immediately prior to the Mother’s removal of the child from the United States arose by operation of law, namely the law of the United States. His Honour acknowledged that his determination could not bind the appropriate forum in that country: see M W v Director-General of the Department of Community Services (supra) at paragraph 73 per Gummow, Heydon and Crennan JJ. The critical time for the purpose of considering “wrongful” removal in accordance with reg 16(1A)(c) related to the Father, who sought return by the Central Authority, having rights of custody.
His Honour identified the evidence of the law of the United States as comprising annotations to legislation in the State of Colorado; similar material in relation to the State of Montana; annotated United States Federal Law being the Uniform Child Custody Jurisdiction and Enforcement Act (1997) and two Affidavits of Ms D, an attorney who was a member of the Colorado State Bar, sworn on 9 January 2008 and 7 February 2008 respectively. Ms D was also the Father’s attorney in the United States.
His Honour referred to a discussion he had with counsel about the desirability of appointing a single joint expert in relation to the relevant law in the United States, for reasons he described, and said that it seemed desirable for an independent expert witness to be appointed. His Honour, after discussion about the relevant Family Law Rules which encouraged the appointment of an independent single joint expert, and the attitudes of the Director-General and the Mother, concluded that he would determine the issue, notwithstanding his concern about the limitations of the evidence placed before him.
His Honour then proceeded to consider the first matter raised by the Mother in relation to her contention that the Father did not have rights of custody at the time of removal of the child. After consideration of a judgment of the Supreme Court of Colorado sitting as an appellate court dated 13 January 1986 in Armendariz v The People of the State of Colorado 711P.2d 1268; 1986 Colo. Lexis 477, a judgment of the Court of Appeals of Colorado Division 1 delivered on 12 September 1991 in the People of the State of Colorado v Haynie 826P. 2d371; 1991 Colo. App. Lexis 285, the relevant Federal law of the United States, the joint judgment of Gaudron, Gummow and Hayne JJ in DP v Central Authority; JLM v NSW Department of Community Services (2001) 206 CLR 401; (2001) FLC 93-081 at pa 27 and the judgment of Kirby J in MW v Director-General of Department of Community Services (supra) his Honour concluded that the Father did have “rights of custody” in relation to the child immediately prior to her removal by the Mother from the United States on 26 June 2007. His Honour also found that the Father was exercising these rights of custody in that he and the Mother were living together with the chid in the same house.
His Honour then dealt with the second matter raised by the Mother in relation to the rights of custody of the Father, namely that there was an absence of jurisdiction in the State of Colorado to enable enforcement of any rights of custody that the Father had. His Honour said:
112.As Exhibits 5 and 6 make clear it is agreed that on the 19 February 2008 and 10 October 2008 Russell J in the District Court dismissed the application of the father for “allocation of parental responsibilities for want of jurisdiction”. As a result the submission by counsel for the mother was made.
113.Notwithstanding the limitations in the evidence of the father’s attorney and the absence of more extensive expert evidence in relation to both the Federal USA law and the applicable law in the State of Colorado, I have concluded that the appropriate court in either the State of Colorado or the State of Montana may be persuaded to exercise jurisdiction for the following reasons. Each of those States, or indeed another State with which there may be “a connection” established by either of the mother and father and the child, may be persuaded that it has jurisdiction which should be exercised, given not only the “Home State” provisions, but also having regard to the court’s parens patriae jurisdiction and/or the power to deal with “emergency situations”. I accept the submissions made on behalf of the applicant that the relevant State court in the USA is not prevented from considering those issues in any subsequent parenting proceedings. The material before me, either by way of evidence or in counsel’s helpful written submissions, does not refer to there having been any determination made in relation to all or any of those issues. That may be due to there having been a lack of submissions made to the court in relation to those issues.
His Honour dealt with the contention of the Mother that the Father consented to her leaving the United States with the two children on 26 June 2007 in order to travel to and live in Australia. He concluded that the Father did not provide either an express or implied consent to the Mother removing the child from the United States on 26 June 2007 and retaining her in the Mother’s care in Australia for the subsequent period.
His Honour then dealt with the Mother’s contention that his Honour exercise the discretion conferred by reg 16(3)(b) of the Regulations and refuse to make an order for the return of the child because it was established that there was a grave risk that the return of the child would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.
The Mother relied upon the alleged conduct of the Father as set forth in her affidavit sworn on 11 April 2008. The Mother contended that the Father regularly consumed alcohol to the point that he became intoxicated and had often been violent and abusive towards her. The trial Judge observed that there was no allegation made by the Mother that the Father acted in any violent or abusive way towards the child or the child X. However, his Honour said that it was implicit that the Mother alleged that both children were in the premises occupied by the Mother and Father at the time of the relevant occurrences and consequently, were or may have been affected by the Father’s behaviour.
During his consideration of the evidence in relation to the reg 16(3)(b) issues, the trial Judge made a number of findings. For example he found that the Mother and Father had a volatile relationship during the course of their cohabitation which was marked by the Father at times consuming intoxicating liquor to excess and arguments and abusive behaviour between them. However, ultimately his Honour was not persuaded, on the balance of probabilities, that the Mother had discharged the onus of proof. Although his Honour was satisfied that the Father may conduct himself in a way which may alarm the child, he concluded that he was unable to be satisfied that the Mother’s evidence in relation to the Father’s alleged violent and abusive behaviour to her implicitly amounted to a “grave risk” of the child being exposed to harm, whether physical or emotional, or that the child may be placed in an “intolerable situation”.
The Mother also contended that the child would be placed in an “intolerable situation” due to the financial circumstances that the Mother would face if ordered to return with the child to the United States. His Honour considered the issue on the assumption that the Mother would return to the United States with the child in the event that orders were made as sought by the Director-General. His Honour then dealt with the relevant evidence of each of the Mother and the Father and concluded that he did not accept the Mother’s case that the child would be placed in “an intolerable situation” in accordance with reg 16(3)(b) of the Regulations. The trial Judge said that having regard to his findings of fact it followed that he was not persuaded that a grave risk of exposure to future harm or that the child would be placed in “an intolerable situation” in accordance with reg 16(3)(b) had been established due to a lack of “clear and compelling evidence” to satisfy him on the balance of probabilities. Accordingly, the Mother was not able to successfully rely upon reg 16(3)(b).
His Honour concluded by making findings in favour of the Director-General that immediately prior to the removal of the child by the Mother from the United States on 26 June 2007 the child habitually resided in the United States being a Convention Country; the Father had rights of custody in relation to the child under the law of the United States; the child’s removal to and/or retention in Australia had been in breach of those rights of custody and that at the time of the child’s removal or retention the Father had been actually exercising those rights of custody jointly with the Mother or alternatively would have exercised those rights if the child had not been removed or retained. He declared that the Mother’s retention of the child in Australia was wrongful in accordance with Article 3A of the Convention.
His Honour said that he had not received submissions in relation to conditions, if any, that should be the subject of orders in relation to the return of the child to the United States and that he would stay the order for the return of the child pending submissions in relation to that matter.

GROUNDS OF APPEAL

In the Notice of Appeal there were three grounds of appeal relied upon. First, that the trial Judge erred in finding that the removal of the child from the United States was a wrongful removal pursuant to the provisions of the Regulations. Second, that the trial Judge failed to make findings with respect to the significant allegations made by the Mother as to the grave risk of harm that the child would be exposed to or otherwise placed in an intolerable situation if the child was returned to the United States. Third, that the trial Judge had no jurisdiction to order the Mother or the child X to accompany the child to the United States.
In relation to the first ground of appeal, in the Notice of Appeal particulars were provided. First, it was contended that the trial Judge erred in finding that the State of Colorado may be persuaded to exercise jurisdiction in relation to the child given that the District Court had found that it had no jurisdiction. Second, it was contended that the trial Judge erred in finding that the State of Montana or another state of the United States may be persuaded that it has jurisdiction. Third, it was contended that the trial Judge erred in finding that the Father had rights of custody. It was contended that rights of custody under the Regulations must be rights of custody that are enforceable by the laws of the Convention country pursuant to the laws of that country. There was insufficient evidence before the trial Judge to establish that any court of the United States would enforce the custody rights of the father.
In the Summary of Argument of the Mother dated 3 February 2009 notice was given that the second and third grounds of appeal were abandoned. This was confirmed by senior counsel for the Mother at the commencement of the hearing before us. As well, in discussion before us, it was confirmed that the only matter complained of by the Mother related to the findings by the trial Judge in relation to the second limb of the argument before the trial Judge with respect to the rights of custody of the Father. That is, the Mother did not challenge the findings of the trial Judge that according to the law of Colorado the Father had rights of custody that included the right to determine the place of residence of the child.
It is convenient to repeat what was submitted in the Summary of Argument of the Mother:
1.Accepting that under Colorado law both parents are entitled to joint custody by Colorado law, it is submitted that for the purposes of regulations 4 and 16(1A) of the Family Law (Child Abduction Convention) Regulations, 1986 (“the regulations”) the “rights of custody” must be enforceable at the relevant time of removal or retention.
2.The Colorado court had ruled “that it has no subject matter jurisdiction over the minor child”. That was on an application for an order for “allocation of parental responsibility.”
3.The affidavit of [Ms D] of 7 January 2008 establishes that the “allocation of parental responsibilities” includes the rights referred to in regulation 4(2) as included in “rights of custody.”
4.If the mother had taken the child and lived with her elsewhere in Colorado, according to the Colorado court rulings it would not have had jurisdiction to make orders as to “allocation of parental responsibilities.”
5.It cannot have been the intention of the Convention or the regulations that the entitlement to an order for return of the child from a foreign country arises in circumstances where the other parent would be unable to enforce a right of custody in his or her own “country”.
6.Further, or alternatively, the words “exercising” and “exercised” in 16 (1A (e) imply that an entitlement to exercise the right by enforcement exists. In this case it did not, for the reason that there was no jurisdiction. [footnotes omitted]
Before us, senior counsel for the Mother said that paragraph 6 of the Summary of Argument was not relied upon.
On behalf of the Mother it was submitted that there were two “elements”. First, that the rights of custody as defined in reg 4 of the Regulations must include or imply enforceable rights of custody. In the alternative, reg 16 provides as one of the conditions of the grant of a return order, that it be established that the child’s removal to or retention in Australia was in breach of those rights of custody. Focussing on the word “breach”, even if the rights of custody for the purposes of reg 4 were necessarily shown to be enforceable, nevertheless to establish a breach of them must imply enforceability. It was submitted that the lack of enforceability for any reason, and in this particular case a lack of jurisdiction, was the finding that was wanting from his Honour’s judgment. It was submitted that it was a finding that was available by the evidence and even if it was not dictated by the evidence, the Director-General had the onus of establishing both of those elements: rights of custody and breach of the rights of the custody at the time of removal.
On behalf of the Director-General it was submitted that the fact that the District Court declined to hear proceedings concerning the child after the child was removed was not material to the question of whether the Father had and was exercising rights of custody immediately prior to the wrongful removal. As his Honour observed in his reasons [at 94]: “The critical time for the purpose of considering “wrongful” removal in accordance with Regulation 16(1A)(c) relates to the person, in this case the father, who seeks return by the Central Authority, having rights of custody immediately before the removal of the child”.
Regulation 29 of the Regulations deals with evidentiary provisions. Regulation 29(5) provides that the Court may take judicial notice of a law in force in a Convention country and a decision of a judicial or administrative character made by a judicial or administrative authority of a Convention country. It was submitted that the Father had rights of custody by operation of law (reg 4(3)(a)) and that evidence of that was before the trial Judge in the manner identified in paragraph 50 of these reasons.
It was submitted that factually, the circumstances in the present case differed markedly from those in J and Director-General, Department of Community Services (2007) FLC 93-342 (Finn, Holden & Mushin JJ), since in that case the “rights” of the parents arose under a Court order and effectively vested sole physical custody and ultimate decision making responsibility in the mother. It was submitted “[h]owever, the procedure for determination of whether a removal was wrongful set out in the decision is not in question”. In Wenceslas and Director-General, Department of Community Services (2007) FLC 93-321 Finn J, referring to J and Director-General, Department of Community Services, said at 81,527:
22. …[t]he Full Court accepted … that in determining whether a child’s removal to Australia is wrongful because it was in breach of the rights of custody which the person (or institution) seeking the return of the child had in relation to the child under the law of the country in which the child habitually resided immediately before the removal:
·       the first task of the court is to establish, on the evidence before it, what rights, if any, the parents seeking the return had under the law of the foreign country in relation to the child at the time of the removal;
·       the 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 those rights amount to ‘rights of custody’ within the meaning of the Regulations; and
·       finally, the question is whether or not the retention of the child was in breach of those rights, and therefore whether or not the removal was wrongful within the Regulations.

It was submitted that, to the extent that the Mother argued that to validly have “rights of custody” the Father must have enforceable “rights of custody”, there was no evidence that as at the date of removal the Father’s “rights of custody” were not enforceable. This was because his application for parental responsibility had been filed on 16 July 2007, decided on 14 April 2008 and confirmed on 10 October 2008 and was thus after the removal of the child.
Counsel for the Director-General submitted that it was an agreed fact that the child had been resident in Colorado since February 2007. At the time of the removal on 26 June 2007 the child had been resident in that state “for just shy” of six months, although the Mother had been in Colorado for longer than six months. From 28 February 2005 until February 2007 the child lived in Montana, a period of about two years.
It was submitted for the Director-General that the act of removal of the child from the jurisdiction of the State of Colorado impacted upon the enforceability of the Father’s “rights of custody”. Had the child been in Colorado, the brief reasons given by the District Court Judge could not have included the observation that: “The Petitioner filed his Petition on July 16, 2007, the Respondent and the minor child did not reside in the State of Colorado at the time of filing” (emphasis in original). Further, the decision of the District Court Judge “is a discretionary one and the reasons for judgment were not lengthy”. It was submitted that it could not be said that the same result would have been achieved if the child, the Mother and the child’s half sibling had been present in Colorado at the time of the filing of the petition. Nor could it be said that the same result would have been achieved had the petition been filed in Montana.
On behalf of the Director-General it was submitted that by the same argument sought to be advanced on behalf of the Mother, she did not have rights of custody at the time the child was removed either. Counsel for the Director-General submitted that the correct position was that both parents enjoyed rights of custody by operation of law which were being exercised until the time of removal, without the need to resort to legal enforcement.
It was submitted that the Director-General demonstrated by reference to the relevant statute law that there was a basis upon which to invoke jurisdiction in the United States to enforce the Father’s rights of custody immediately prior to the time of removal; and that a Court in the Convention country had jurisdiction to hear and determine proceedings should the child be returned. However, this could only go to the issue of defences, not the subject of the appeal, and not the question of wrongful removal.

CONCLUSION

For present purposes it is not necessary to discuss each of the relevant regulations and general principles of law applicable to applications pursuant to the Regulations: see for example MW v Director-General of Department of Community Services (supra) per Gummow, Heydon and Crennan JJ at 8-27. However, reg 16 of the Regulations is a key provision in the Regulations dealing with applications for orders for the return of a child under the Convention. If an application for a return order for a child is filed within one year after the child's removal or retention; and the responsible Central Authority satisfies the court that the child's removal or retention was wrongful under subreg (1A); then the court must, subject to subreg (3), make the order. Regulation 16(1A) sets out what is required to be established in order to find that for subreg (1), a child's removal to, or retention in, Australia is wrongful. It must be established that:
(a)     the child was under 16; and
(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.
In the circumstances of this matter the focus was on paragraphs (c) and perhaps (d). The contention is that the rights of custody which the Father had must be rights which he was able to enforce.
For the purpose of the Regulations, the question of whether rights of custody exist is to be determined by reference to the point immediately before the removal or retention of the child. In DP v Commonwealth Central Authority; Department of Community Services (supra), Gaudron, Gummow and Hayne JJ considered the issue of what constitutes “rights of custody” for the purposes of the Regulations and said [at 412]:
Several aspects of the Regulations must be noted. Regulation 14 provides for applications to a court in relation to a child who is removed from a Convention country to, or retained in, Australia. The meaning of references to “removal” and “retention” is given in reg 3 and in each case it turns on a breach of the “rights of custody” in relation to the child if, at the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised but for the removal or retention. The rights of custody to which reg 3 refers are rights “of a person, an institution or another body”. A person, an institution or a body has rights of custody if rights of custody in relation to the child are attributed to the relevant person, institution or body, either jointly or alone, under a law in force in the country in which the child was habitually resident immediately before removal or retention (reg 4(1)). The rights are further identified by reg 4. They “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”(reg 4(2)). They may arise by operation of law, by reason of a judicial or administrative decision, or by reason of an agreement (reg 4(3)).
Their Honours went on [at 412] to state clearly that neither a court order nor any form of judicial decision is necessary in order to establish that one parent had custody rights over the child at the time of removal:
Nothing in the definitions of “removal” and “retention” or of “rights of custody” requires that, before removal or retention, there shall have been any judicial decision about rights of custody and nothing in those definitions requires that at some later time there be any application to a court to determine who shall have future rights of custody in relation to the child. All that the definitions require is that by the law of the place of habitual residence immediately before removal or retention, the child's removal to Australia or the child's retention in Australia is in breach of the rights of custody of some person, institution or body. Often enough, that will be so where, by operation of the law of the place of habitual residence, both parents have joint rights of custody of children of their union. Sometimes, before any application to the courts in Australia, the parent who has not removed or retained the child will have approached the courts of the place of habitual residence for interim or permanent orders about custody of the child but that will not always be so.
See also Re F (Child Abduction: Custody Rights Abroad) [1995] 2 FLR 31 per Butler-Sloss LJ.
The issues raised in this appeal can be dealt with shortly. It is a narrow issue that requires consideration of whether the trial Judge made an error in relation to his findings with respect to the exercise of jurisdiction by a court in the United States.
The contention of the Mother is that the child had not been resident in Colorado for a period of six months at the time of removal by the Mother and thus there was no court in that state that could exercise jurisdiction over the child. Because of this lack of jurisdiction the Father could not at that time enforce his rights of custody. The rights of custody recognised by the Convention must be rights of custody that could be enforced.
The trial Judge was aware of the issues in relation to exercise of jurisdiction by the courts of Colorado. He had before him evidence of the rulings made in the District Court in relation to the exercise of jurisdiction with respect to applications that had been filed after the removal of the child. However, he was satisfied on the evidence that was available that there were at least three possible reasons why jurisdiction may be exercised namely, the “home state” jurisdiction, the “parens patriae” jurisdiction or the power to deal with “emergency situations”.
We accept that the Director-General demonstrated by reference to the relevant statute law that there was a basis upon which the Father could invoke jurisdiction in the United States to enforce his rights of custody immediately prior to the time of removal. Further, that a Court in the United States has jurisdiction to hear and determine proceedings should the child be returned. As was submitted to the trial Judge by the Director-General, the jurisdiction could be the “home state” provisions in the Uniform Child-Custody Jurisdiction and Enforcement Act (1997) or the “catch all” provisions in that Act. As well, the District Court would have jurisdiction six months after the child returned to that state, assuming no allowance was made for absence because of the removal of the child.
Thus we have come to the conclusion that the appeal should be dismissed. We do not accept that his Honour was in error in relation to his findings as to the exercise of jurisdiction by the courts of Colorado. However, there may be another reason why the appeal should be dismissed that does not necessitate any consideration of issues as to the exercise of jurisdiction by courts in the United States.
We do not propose to analyse the considerable body of case law that has dealt with the meaning of rights of custody nor the special provisions in s 111B of the Family Law Act which specify when a person has custody of, and access to, a child for the purposes of the Convention in light of the fact that the notions of custody and access are no longer part of the law under Pt VII of the Act. There is nothing in the Regulations that speaks of the need for an applicant to establish as a threshold requirement that he or she had a right to approach a court in the Convention country. Put another way, there is nothing in the Regulations that requires that any rights of custody must be enforceable in the Convention country. There is nothing in Art 5(a) of the Convention, from which reg 4(2) is derived, that supports such a gloss on the meaning of “rights of custody”.
We were not referred to any authorities in the Summary of Argument or oral submissions that supported the submissions put in relation to the necessity for enforceable rights of custody. In Director-General Department of Community Services and Prokop [2002] FamCA 1515 Le Poer Trench J refused to make an order for the return of children to Zimbabwe, being their place of habitual residence, in circumstances where the father, who was posted to the United States Embassy in Harare, could claim diplomatic immunity. There were other relevant facts which we need not repeat. However, the decision ultimately rested on his Honour’s acceptance that, in the circumstances of that case, to order the return of the children to Zimbabwe would place them in an intolerable situation within the meaning of reg 16(3)(b) of the Regulations. There is no doubt that circumstances may arise where, for example, there has been a complete breakdown of law and order in the Convention country by reasons of which the defences provided by reg 16(3)(b) and (d) may become available. That circumstance may be relevant to issues raised in relation to the exercise of discretion pursuant to reg 16(3) but not to the issue of rights of custody at the time of the removal of a child. In this case the Director-General submitted that a court in the United States had jurisdiction to hear and determine proceedings should the child be returned and that any issues in relation to jurisdiction could only go to the issue of defences, not the subject of the appeal, and not the question of wrongful removal. However, perhaps as a consequence of the facts as his Honour determined them to be, before us, the Mother did not contend that these defences were available to her.
In DP v Commonwealth Central Authority (supra) Gaudron, Gummow and Hayne JJ also discussed [at 412] the circumstances, as set out in reg 16, in which a court may refuse to make an order for return. In the context of a discussion of whether return poses a grave risk of harm, their Honours stated (at 414) that the Court should not proceed on the basis that the courts in the child’s habitual place of residence will conduct a hearing into what is in the child’s best interests upon return (footnotes omitted):
The content of those exceptions must be understood against the other provisions of the Regulations which, as has earlier been pointed out, make plain that there may be an order for return with no expectation that there will be any judicial process in the country to which the child will be returned in which any question about what is in the best interests of the child will be raised or addressed. Often enough, of course, there will be proceedings pending or anticipated in the country to which an order for return is sought. Many cases have been decided under the regulations, and under equivalent provisions applying in other Convention countries, in which that has been so. If, on return of the child, there will be a court hearing that will decide what arrangements for custody of and access to the child will be in that child's best interests, an Australian court, exercising a discretion under the Regulations, will no doubt take that into account. But the construction of the Regulations cannot proceed from a premise that they are designed to achieve return of children to the place of their habitual residence for the purpose of the courts of that jurisdiction conducting some hearing into what will be in that child's best interests. As the Regulations recognise, questions of rights of custody in the country to which return is sought are regulated in some cases by operation of law, by administrative decisions, or by agreement. There may be neither occasion nor opportunity for any engagement of the judicial processes of that country.
In our view, although what their Honours said was in the context of the defences in reg 16(3) of the Regulations, it is apposite to the discussion of rights of custody at the time of removal of a child. In this case both parents had rights of custody by operation of law which they were exercising until the time of removal of the child. In the result, although for the purposes of this appeal it is not necessary for us to form a concluded view, we are of the opinion that it is not incumbent on an applicant seeking the return of a child to also establish that in the Convention country a court would have jurisdiction to enforce the rights of custody. The formal order will be that the appeal be dismissed.

COSTS

There will be no order for costs since counsel for the Director-General advised that she was instructed not to seek costs in the event that the appeal was dismissed.

CONDITIONS

On 22 January 2009 Rose J made an order that the pending proceedings for determination of the conditions if any that should be attached to the order for return of the child be dismissed. In discussions on 22 January 2009 his Honour said (transcript 5-6) that if the appeal was unsuccessful then the question of conditions could be raised with the Full Court and that if this Court decided that it had insufficient evidence to make orders for conditions for return then the matter could be remitted.
Neither party filed a Notice of Appeal against his Honour’s order for dismissal. There are no pending proceedings. Further, no submissions were made in relation to the issue by senior counsel for the Mother. In the circumstances, we do not propose to make any order in relation to conditions, if any, to be attached to the order for return of the child. We note that some of the orders made by the Judicial Registrar on 25 February 2008 will have to be discharged.

I certify that the preceding eighty seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court Boland, O’Ryan and Ryan JJ.

Associate:

Date: 13 March 2009