Soysa & Commissioner of Police

FAMILY COURT OF AUSTRALIA

SOYSA & COMMISSIONER OF POLICE

[2011] FamCAFC 39

FAMILY LAW - APPEAL – CHILD ABDUCTION – Hague Convention – Appeal from an order for the child’s return to Sri Lanka – Where orders providing for interim access to the father were made in Sri Lanka prior to the child’s removal – Whether the trial Judge erred in finding that the father had “rights of custody” and those rights were capable of being exercised immediately before the child’s removal from Sri Lanka – The expert evidence established that the father had a preferential right to custody of the child – The interim access order did not affect the father’s rights of custody under domestic law – The father had the right to determine the child’s place of residence and therefore had “rights of custody” within the meaning of the Family Law (Child Abduction Convention) Regulations 1986 (Cth) – The fact that the father was only seeing the child for a defined period each week did not mean that he was not exercising his rights of custody – The mother’s removal of the child from Sri Lanka was wrongful – Appeal dismissed – No order as to costs

Bader v Kramer 484 F.3d 666 (4th Cir 2007)
Director-General Department of Child Safety v Dally-Watkins [2005] FamCA 1409
Director General, Department of Community Services v Crowe (1996) FLC 92-717
Friedrich v Friedrich 78 F.3d 1060 (6th Cir 1996)
In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619
J v Director-General, Department of Community Services (2003) 211 FLR 235
McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551
MW v Director-General, Department of Community Services (2008) 82 ADJR 629
Wenceslas v Director‑General, Department of Community Services [2007] FLR 93-321

Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)

Convention on the Civil Aspects of International Child Abduction

APPELLANT:

Ms Soysa

RESPONDENT:

Commissioner of Police

FILE NUMBER:

PTW

2231

2010

APPEAL NUMBER:

2010

DATE DELIVERED:

2 March 2011

PLACE DELIVERED:

Perth

PLACE HEARD:

Sydney (by video link)

JUDGMENT OF:

May, Thackray, Ainslie-Wallace JJ

HEARING DATE:

9 December 2010

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

10 September 2010

LOWER COURT MNC:

[2010] FCWA 93

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr M Nicholls QC

SOLICITOR FOR THE APPELLANT:

Kavanagh & Padfield Legal

COUNSEL FOR THE RESPONDENT:

Ms C Thatcher

SOLICITOR FOR THE RESPONDENT:

State Solicitor's Office

Orders

The appeal be dismissed.
There be no order as to the costs of the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Soysa & Commissioner of Police 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: WA 20 L of 2010
File Number: PTW 2231 of 2010

Ms Soysa

Appellant

And

Commissioner of Police

Respondent

REASONS FOR JUDGMENT

The father and mother are the parents of the child, who is now 4 years of age.
The child’s mother brought him to Australia from Sri Lanka without his father’s permission in May 2009. On 10 September 2010, Moncrieff J made an order for the child’s return pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”). The mother now appeals that order.
The mother contends that at the time she removed the child from Sri Lanka, the father did not have “rights of custody” within the meaning of the Regulations, or if he had such rights they were not capable of being exercised.

Background

The father and mother were born in Sri Lanka and married there in April 2004. They separated in January 2006, six months before the child’s birth in July 2006.
In February 2007, the father commenced proceedings in the District Court of Colombo for divorce and full legal and physical custody of the child. The mother responded, seeking that she have custody of the child.
On 18 December 2008, an order was made in the proceedings in Sri Lanka. Moncrieff J described this as being “the first of several interim orders … which provided interim access to the father”. The order provided for the father to have access to the child from 10.00 am to 5.00 pm every Sunday.
On 8 May 2009, the mother and the child left Sri Lanka without the father’s permission. The father asserted that the mother was only able to do so by fraudulently obtaining a passport. The mother took up residence in Perth.
On 10 September 2009, the District Court of Colombo entered a decree nisi for the dissolution of the parties’ marriage and made orders granting the father legal and physical custody of the child. It is accepted that Moncrieff J was correct in finding this to be irrelevant, since he had to consider matters as they stood immediately prior to the child’s removal.
On 23 April 2010, proceedings for the child’s return to Sri Lanka were commenced in the Family Court of Western Australia by the Commissioner of Western Australia Police, who is the State Central Authority for the purposes of the Regulations. The matter proceeded to hearing on 6 August 2010 and judgment was delivered on 10 September 2010.
Moncrieff J ordered that the child be returned to Sri Lanka. The proceedings were then stood over to deal with the ancillary orders required to implement the order. The proceedings have since been stayed pending determination of this appeal, which was filed on 22 October 2010.

The reasons of the trial Judge

Given the narrow compass of this appeal, we need mention only a portion of the lengthy reasons delivered by the trial Judge. (Although Moncrieff J did not conduct a trial as such, it will nevertheless be convenient to refer to him as “the trial Judge”)
Having noted that Australia and Sri Lanka are signatories to the Convention on the Civil Aspects of International Child Abduction (“the Convention”), the trial Judge recorded that he was required to apply reg 16, which relevantly provides:
16(1) [When court must order child’s return]
If:
(a)       an application for a return order for a child is made; and
(b)the application … is filed within one year after the child's removal or retention; and
(c) the responsible Central Authority … satisfies the court that the child's removal or retention was wrongful under subregulation (1A);
the court must, subject to subregulation (3), make the order.
16(1A) [Wrongful removal or retention]
For subregulation (1), a child's removal to, or retention in, Australia is wrongful if:
(a)       the child was under 16; and
(b) the child habitually resided in a convention country immediately before the child's removal to, or retention in, Australia; and
(c) the person, institution or other body seeking the child's return had rights of custody in relation to the child under the law of the country in which the child habitually resided immediately before the child's removal to, or retention in, Australia; and
(d) the child's removal to, or retention in, Australia is in breach of those rights of custody; and
(e) at the time of the child's removal or retention, the person, institution or other body:
(i) was actually exercising the rights of custody (either jointly or alone); or
(ii)would have exercised those rights if the child had not been removed or retained.
…
16(3) [When court may refuse to order child’s return]
A court may refuse to make an order under subregulation (1) or (2) if a person opposing return establishes that:
(a)       the person, institution or other body seeking the child's return:
(i) was not actually exercising rights of custody when the child was removed to, or first retained in, Australia and those rights would not have been exercised if the child had not been so removed or retained; or
(ii) had consented or subsequently acquiesced in the child being removed to, or retained in, Australia; or
(b) there is a grave risk that the return of the child under the Convention would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or
...
(d) the return of the child would not be permitted by the fundamental principles of Australia relating to the protection of human rights and fundamental freedoms. …
16(5) [Where court not precluded from ordering child’s return]
The court is not precluded from making a return order for the child only because a matter mentioned in subregulation (3) is established by a person opposing return.
His Honour then recorded that the mother contended that immediately before the child’s removal:
The father either had no rights of custody, or if he had, he was unable to exercise them because his rights in respect of the child had been restricted by the District Court in Colombo to access rights, and as a consequence his other custodial rights had either been extinguished or suspended.
The trial Judge went on to record that Article 5 of the Convention describes rights of custody and rights of access as follows:
For the purposes of this Convention –
(a)‘Rights of custody’ shall include rights relating to the care of the person of the child and in particular, the right to determine the child’s place of residence;
(b)‘Rights of access’ shall include the right to take a child for a limited period of time to a place other than the child’s habitual residence.
His Honour then noted that for the purposes of the Regulations, “rights of custody” are defined in reg 4 as follows:
(1)For these Regulations, a person, institution or other 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 Australia or in the convention country in which the child habitually resided immediately before his or her removal or retention.
(2)For the purposes of sub‑regulation (1), rights of custody include rights relating to the care of the person of the child and, in particular, the right to determine the place of residence of the child.
Having made mention of s 111B(4) of the Family Law Act1975 (Cth) (“the Act”), his Honour referred to Australian and English authority concerning “rights of custody” under the Convention, including a very lengthy citation from the judgment of Baroness Hale of Richmond in In re D (A Child) (Abduction: Rights of Custody) [2007] 1 AC 619 (“In re D”). The judgment warranted citation because of its clarity and scholarship in dealing with concepts which are of central importance in this dispute. We set out below those paragraphs extracted by the trial Judge:
24. The world would be a simpler place if the Convention had provided that all removal or retention of a child outside the country where he or she is habitually resident without the consent of the other parent or the authority of a court is wrongful. But it does not. The Convention recognises that not all parents have the right to demand the automatic return of children who have been taken away without their consent. It does so by providing that the removal or retention of a child is only wrongful under article 3 if 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”.
These rights may arise “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”. In addition, those rights must actually have been being exercised at the time (or would have been had it not been for the wrongful removal). Article 5(a) provides that “ ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence”.
25. The Convention also obliges, in article 21, the central authorities to assist a “left behind” parent in realising his or her “rights of access”, not by securing summary return to the home country, but through promoting their peaceful enjoyment, removing obstacles to their exercise, and initiating or assisting the initiation of proceedings to protect them. Article 5(b) provides that “ ‘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”. Thus it was envisaged that the right to have the child to stay away from his home might still amount to ‘rights of access’ rather than ‘rights of custody’. It is quite clear from the Explanatory Report of Professor Elisa Pérez-Vera (April 1981) that the original parties to the Convention drew a deliberate distinction between rights of custody and rights of access and did not intend that mere rights of access should entitle a parent to demand the summary return of the child. As Professor Pérez-Vera pointed out, such an approach would ultimately lead to “the substitution of the holders of one type of right by those who held the other”: para 65.
26. Nevertheless it is common ground between all the parties to this case that they are not mutually exclusive concepts. A person may have both rights of access and rights of custody. The question is, do the rights possessed under the law of the home country by the parent who does not have the day to day care of the child amount to rights of custody or do they not? States’ laws differ widely in how they look upon parental rights. They may regard the whole bundle of rights and responsibilities which the law attributes to parents as a cake which can be sliced up between the parents: one parent having the custody slice, with the package of rights which that entails, and the other having the access slice, with the different package of rights which that entails. This is by no means an unusual way of looking at the matter. Alternatively, the state may regard the whole bundle of parental rights and responsibilities as inhering, and continuing to inhere, in both parents save to the extent that they are removed or qualified by the necessary effect of a court order or an enforceable agreement between them.
…
27. As Professor Pérez-Vera points out, following a long established tradition of the Hague Conference, the Convention does not define the legal concepts used by it. However, article 5 does make clear the sense in which the concepts of custody and access rights are used, “since an incorrect interpretation of their meaning would risk compromising the Convention's objects”: para 83. Custody relates to the care of the child’s person rather than his property. It is a narrower concept than that of “protection of minors” used elsewhere. It may, however, be jointly held. Access includes the right to “residential access” even across national boundaries.
28. In the absence of a supranational body to define and refine these autonomous terms, member states must strive for consistent practice—not in the content of their domestic laws but in the effect that they give to the particular features of one another’s laws. As Lord Browne Wilkinson said in In re H (Minors) (Abduction: Acquiescence) [1998] AC 72, 87 (albeit in the context of the meaning to be given to “acquiesced” in article 13(a) of the Convention):
“An international Convention, expressed in different languages and intended to apply to a wide range of differing legal systems, cannot be construed differently in different jurisdictions. The Convention must have the same meaning and effect under the laws of all contracting states.”
In that case, therefore, English concepts and English law rules about the meaning of acquiescence could have no direct relevance to the interpretation of the Convention. We must be equally prepared to resist projecting the view taken in English law of the rights of parents onto the Convention concepts as they apply to the laws of other member states which may take a different view.
29. There is no problem when return is requested by the parent with the right to the day to day care of the child—or in English terms the parent with whom it has been determined that the child is to live. The problem is with the characterisation of the other parent’s rights. If these amount to joint custody, there is equally no problem. The main debate has been over the effect of what are sometimes referred to as “travel restrictions”—either a court order prohibiting the removal of the child from the home country or a “right of veto” giving one parent, who may or may not also have rights of access, the right to insist that the other parent does not remove the child from the home country without his or her consent or a court order.
30. The internal position in English and Scottish law is clear. Parents who share parental responsibility (that is all married parents and increasing numbers of unmarried parents) each have all the rights and responsibilities of parents. They retain those rights subject only to the practical limitations of any court order and can exercise them independently of one another unless this is inconsistent with a court order. While a residence order is in force, no person may remove the child from the United Kingdom without the written consent of each person with parental authority or the leave of a court: section 13(1)(b) of the Children Act 1989. In England, the person with the benefit of the residence order may remove the child for less than one month: section 13(2). Even if there is no residence order, it is a criminal offence for a parent to remove a child from the United Kingdom without the consent of each person with parental responsibility or the leave of a court (see sections 1 and 6 of the Child Abduction Act 1984; in England with the one month exception for people with the benefit of a residence order).
31. But the mere fact that English and Scottish parents enjoy such rights of veto does not of itself mean that they enjoy “rights of custody” within the meaning of the Convention. Hitherto, however, both in England and Scotland, the courts have regarded travel restrictions as giving rise to rights of custody. As long ago as C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, the Court of Appeal held that a court order prohibiting either parent from removing a child from Australia without the other’s consent gave the other parent rights of custody under the Convention. Lord Donaldson of Lymington MR observed, at p 664, that the right to determine the child’s place of residence “may be specific - the right to decide that it shall live at a particular address, or it may be general, eg ‘within the Commonwealth of Australia’. In In re W (Minors) (Abduction: Father’s Rights) [1999] Fam 1, I applied the same approach to rights of veto arising by operation of law. Both cases were relied upon by the Inner House of the Court of Session in AJ v FJ 2005 SC 428, where it was held that the right of veto enjoyed, by virtue of section 2(3)(6) of the Children (Scotland) Act 1995, by a parent with the right to contact amounted to ‘rights of custody’ under the Convention.
32. Mr James Turner, on behalf of the mother, has questioned whether a mere right of veto should amount to “rights of custody”. The reasoning is simple. If rights of custody “shall include” the right to determine the child’s place of residence, it is not enough that they include the right to determine for the time being the country where the child lives—it must mean the right to determine where the child actually lives. The Convention envisages a compendium of more than one right. Furthermore, the purpose of the right to determine the country where the child lives is simply to facilitate the exercise of the right of access—and that does not attract the right to demand summary return to the home country. Indeed, a person possessing a right of veto may have no access rights at all; whereas a person having access rights may have no veto right. It would be surprising if a parent who enjoyed a close and continuing relationship with his child might have no rights of custody whereas a parent who has not seen his child for years might do so.
33. Mr Turner is able to cite other jurisdictions in the common law world which have taken this view. In 2000, in Croll v Croll 229 F 3d 133, a majority of the United States Court of Appeals for the Second Circuit held that a ne exeat clause in a Hong Kong custody agreement giving custody, care and control to the mother did not give rights of custody to the father. That decision was followed in 2002 by the Court of Appeals for the Ninth Circuit in Gonzalez v Gutierrez 311 F 3d 942; and in 2003 by the Court of Appeals for the Fourth Circuit in Fawcett v McRoberts 326 F 3d 491 (referred to without comment but distinguished in 2006 in Bader v Kramer 445 F 3d 346). The majority in Croll relied on the deliberate distinction drawn in the Convention between rights of custody and rights of access, the lack of international consensus on the issue, and the published views of Professor AE Anton, chair of the Hague Conference Commission which had drafted the Convention (1981) 30 ICLQ 537, 546 referred to by my noble and learned friend, Lord Hope of Craighead, at p 627, para 12 above.
34. The majority in Croll were able to point to two decisions in the Supreme Court of Canada to demonstrate a lack of international consensus. In Thomson v Thomson [1994] 3 SCR 551, the court had held that removal in breach of a ne exeat clause in an interim custody order was in breach of rights of custody held by the court, in order to preserve its jurisdiction to make a final determination, but expressed the view that such a clause in a final order would not give the other parent rights of custody. In W(V) v S(D) [1996] 2 SCR 108, Thomson was relied upon a fortiori where any prohibition upon removal had been implicit in the custody order made in the United States.
35. However, in 2004 the United States Court of Appeals for the Eleventh Circuit in Furnes v Reeves 362 F 3d 702 rejected the reasoning of the majority in Croll v Croll in preference for the dissenting views of Sotomayor CJ. They pointed out that to order return of the child did not convert the other parent’s rights of access into rights of custody, because there was no obligation to return the child to that other parent. The object was to maintain the status quo and the jurisdiction of the home country over any disputes. The observations in both Canadian cases were obiter. Apart from them, known opinion elsewhere in the common law world was united. Thus the full court of the Family Court of Australia, in JR v MR (unreported) 22 May 1991, had followed the English decision in C v C (Abduction: Rights of Custody) [1989] 1 WLR 654, as did Lindenmayer J at first instance in Director General, Department of Families, Youth and Community Care v Hobbs [1999] FamCA 2059. The Constitutional Court of South Africa had reached the same result in Sonderup v Tondelli 2001 (1) SA 1171 (CC). The Israeli High Court, in Foxman v Foxman (unreported) 28 October 1992, had also held that rights of custody should include cases where parental consent is required to remove the child from the country of residence. To these might have been added New Zealand, which has gone further still and held that rights of access can in themselves amount to “rights of custody”: G v B [1995] NZFLR 49; D v C [1999] NZFLR 97; see also Hunter v Murrow(Abduction: Rights of Custody) [2005] 2 FLR 1119 (para 42 below).
36. I acknowledge the force of Mr Turner’s argument, especially when viewed against the original paradigm case of abduction by a non-custodial parent from the custodial primary carer. It is also the case that some parents who possess a right of veto have in fact very limited contact—if any—with their children, so that to force a child to return to the home country simply for the sake of obtaining permission to leave which will almost certainly be granted seems heavy handed. But the circumstances of families are infinitely various. It is an object of the Convention to enable such decisions to be taken in the courts of the home country where those circumstances can (in most cases) better be investigated and evaluated. It is not for the courts of the requested state to start making value judgments about the merits of the case, save to the very limited extent that the Convention permits this. As far as the convention is concerned, a person either has rights of custody or he does not—the quality of his relationship with the child is not in point. It would, at the very least, be an odd result if a Convention designed to secure the summary return of children wrongfully removed from their home countries were not to result in the return of children whose removal had clearly been in breach of the laws, court orders or enforceable agreements in the home country.
37. Therefore, in common with the understanding of the English and Scottish courts hitherto, and with what appears to be the majority of the common law world, I would hold that a right of veto does amount to “rights of custody” within the meaning of article 5(a). I see no good reason to distinguish the court’s right of veto, which was recognised as “rights of custody” by this House in In re H (A Minor) (Abduction: Rights of Custody) [2000] 2 AC 291, from a parental right of veto, whether the latter arises by court order, agreement or operation of law.
38. I would not, however, go so far as to say that a parent's potential right of veto could amount to “rights of custody”. In other words, if all that the other parent has is the right to go to court and ask for an order about some aspect of the child’s upbringing, including relocation abroad, this should not amount to “rights of custody”. To hold otherwise would be to remove the distinction between “rights of custody” and “rights of access” altogether. It would be also inconsistent with the decision of this House in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. There an unmarried father had no parental rights or responsibility unless and until a court gave him some; but he did, of course, have the right to go to court to seek such an order. This was held not to amount to “rights of custody” within the meaning of article 5(a). Nor could a subsequent order grant him such rights if by then the child's habitual residence had been changed.
Article 15
39. Article 3 makes it quite clear that, however wrongful the removal might be in the eyes of the English or Scottish laws of parental responsibility, what matters is whether it is “in breach of rights of custody attributed to a person . . . under the law of the state in which the child was habitually resident immediately before . . .” Plainly, therefore, the first question is “what rights does that person have under the law of the home country?” The second question is, “are those rights ‘rights of custody’ within the meaning of the Convention?”

In dealing with what Baroness Hale described as “the first question”, the trial Judge referred to the expert evidence provided by the Central Authority concerning the domestic law of Sri Lanka. This was the only expert evidence before the Court, as the mother had elected to file no evidence. His Honour found that the father had what, in Sri Lanka, are called “preferential rights of custody over the child”. He further found that a mother seeking an order for custody in Sri Lanka carries the burden of establishing that the child’s best interests require that the father be deprived of custody. Unless she is able to discharge that burden, the father is entitled to custody.
His Honour relied upon the evidence of two attorneys practising in Sri Lanka in arriving at these conclusions. One of these, Dulani Nicholas, deposed in the following terms:
6. Under our Common Law, during the subsistence of marriage, the father has a preferential right of custody to the child. However, the Court, as the Upper Guardian of Minors, exercises a supervisory jurisdiction over minors. The Court will accordingly interfere with the father’s preferential right to custody where it is necessary in order to give effect to the best interests of the child.
The other attorney, Emil Perera, deposed as follows:
9.I state that under the system of common law applicable to the parties (Roman-Dutch law), the right of custody of minor children includes legal custody and physical custody. Legal custody would encompass the right to consent to medical treatment of the child and to decide in matters pertaining to the child’s education. Physical custody would include the right to physical possession of the child and to control the day to day life of the child.
10.Therefore custody is more than simply who the child lives with, and connotes a broader concept of parental responsibility. It would appear that the right to determine the child’s place of residence would be an aspect of legal custody as it is not a routine day to day matter.
11.In view of the practice here in Sri Lanka when a dispute arises over custody of a minor, although the father has the preferential right to custody by operation of the law, the father too will institute a legal suit in the relevant court against the spouse seeking a court order or a judgment in relation to the custody of the minor child.
Turning to the circumstances of this case, Attorney Perera went on to say:
14.Since both the father and the mother of the said minor child are seeking the custody of the said minor child as aforesaid, the court until the final order / judgment entered in the said case, as an interim settlement, ordered [the mother] to hand over the said child… to [the father] from 10:00 a.m. to 5:00 p.m. every Sunday
…
15.This order has been made by way of an interim order in order to avoid any unnecessary disputes over the access to the minor child until the final judgment is entered and this order is only an arrangement regarding the access to the child. However it can be stated that this settlement does not affect the preferential right pertaining to the child’s custody that [the father] has by operation of law as natural father of the minor child.
…
18.Therefore, although the mother exercised physical custody of the child, this was by consent of the father. Furthermore, the father continued to have the legal custody of the child, which would include the right to decide on the child’s travel overseas, since this would not be a day-to-day matter that would be caught up within the scope of physical custody. It would follow that the father could veto the relocation of the child to another country.
The trial Judge accepted the mother’s submission that no authority had been given in support of what Attorney Perera had said in paragraph 18 above. He noted it was the mother’s submission that “the only right that the father had was a right of access” pursuant to the interim order of 18 December 2008.
In dealing with that proposition, to which he returned later in his reasons, his Honour said:
42This is not a situation whereby two parents separated and the father, who has preferential rights of custody of the child, acquiesced to the mother having physical custody of him. At the time of separation the child was not born.
43Mr Nicholls QC submits that the interim order, giving access rights to the father, extinguished any custodial rights that he may have. However in a situation where the parties never cohabitated during the child’s life time, distinction must surely be drawn between this set of events and the situation where parents separated after the birth of their child. The interim orders gave the father access to his son, something which prior to the existence of the order he did not have because the child had been in the mother’s company since his birth. It would be a most obscure set of circumstances if, following the birth of the parties child, the father demanded and enforced his preferential right of custody over a newly born baby, taking him away from his mother, with whom so much literature persuades us, he has formed a primary attachment.
44The orders made by the Sri Lankan Court on 18 December 2008 were interim orders only, pending the final determination in relation to the parties’ child. Both parties were actively involved in litigation in the Sri Lankan judicial system and the mother can not be said to have been unaware of the proceedings relating to the child’s custody.
After referring to further Australian and overseas authority concerning the meaning of “rights of custody” and the policy underpinning the Convention, the trial Judge turned to consider whether the father had “rights of custody”.
In considering whether the father had such rights by operation of law, his Honour said:
59As I have already stated, the Central Authority filed affidavits of Messers [sic] Nicholas and Perera, whose contents were not rebutted, nor alternate evidence on the custodial system in Sri Lanka provided, and which evidence I have proposed to accept.
60Mr Nicholls QC correctly brought to the Court’s attention the lack of authority for the proposition put forward by Mr Perera, that the physical custody by the mother of the child was only at the consent of the father and that legal custody did not extend to the mother, that is, the father held the power of “veto”.
61For this proposition (that physical custody amounts legal custody [sic]), Mr Nicholls QC sought to rely on the authority of MW v Director- General, Department of Community Services (supra).
62In that case the court order was silent on parental custody of a child and was limited to access time only.
63Unlike MW v Director-General, Department of Community Services (supra), where much contention surrounded the relationship of the child’s parents, which is in part determinative of custodial rights in New Zealand, in this case the father has preferential custody rights to the child which can be extinguished by a court order based on the evidence of the mother.
64An order that is silent cannot be said to deprive one parent, who at law has preferential rights, in favour of the parent who holds the burden of proving that it is in the child’s best interests that the father be deprived of custody.
65As Mr Perera stated in his affidavit, custody in Sri Lanka goes further then [sic] a child’s physical presence with a parent. Legal custody connotes a broader concept of parental responsibility and as the interim court order on 18 December 2008 remained silent in relation to custody, it can not be said that the custody of the child was transferred from the father to the mother in silence.
66As I have already observed in these reasons, the best court to decide the rights of custody of the child are those courts in Sri Lanka, not this Court in Australia.
We assume that his Honour’s reference in paragraph 66 of his reasons to “rights of custody of the child” related to the determination of the substantive dispute about which parent should have custody of the child in the future, since it was clearly his Honour’s obligation to determine who had “rights of custody” under the Regulations. This issue fell to be determined pursuant to the law of Australia, albeit in making its determination the Court must have regard to the law of Sri Lanka: McCall and McCall; State Central Authority (Applicant); Attorney-General (Intervener) (1995) FLC 92-551 at 81,517 and MW v Director-General, Department of Community Services (2008) 82 ADJR 629 at [72] (hereafter “MW”).
His Honour next turned to discuss whether the father had rights of custody by “judicial or administrative decision”. This involved consideration of the mother’s contention that the access order of 18 December 2008 suspended/extinguished the father’s right of custody (and the associated contention that the interim nature of the order was irrelevant).
His Honour recorded that the mother had relied in support of her argument on the High Court’s decision in MW. In that case, decided under the Regulations, an access order had been made in favour of a father in proceedings in New Zealand, from where the child had been removed. The trial Judge quoted a portion of the judgment of the majority in MW (Gummow, Heydon and Crennan JJ), who noted that “the starting point must be the text of the Access Order”. His Honour went on to find, however, that whilst the terms of the access order may have been the “starting point” in MW, the order was ultimately “not definitive to the outcome”, and that it was implicit in the decision of the majority that the access order did not extinguish, nor suspend, any right the father might have if he was found to be a guardian of the child under the relevant New Zealand legislation. His Honour also noted it seemed that MW could be distinguished because the orders in that case appeared to operate as “final or ongoing orders that determined the relationship between the parties”, whereas in the present matter the custody proceedings were ongoing.
Having determined that MW did not support the mother’s contention, his Honour continued:
81Significantly, in my view, the evidence of Mr Perera that the right to determine a child’s place of residence would be an aspect of legal custody as opposed to a routine day to day matter was not disputed, and such a view sits comfortably with modern jurisprudence about the regulation or interaction in relationships between parents and children.
82The question then ultimately becomes one of determining whether or not those rights were extinguished or suspended by the operation of the orders made in December 2008.
83The orders made in December 2008 determined on an interim basis, pending the final resolution of the matter, the time that the child was to spend with the father. There are no express words that extinguish the father’s right of custody which is a preferential right that the mother carried the burden of discharging.
84There is no evidence that she had discharged that right or that that right did not include the right to determine a child’s place of residence.
85It is correct, in my view, to have as a starting point the terms of the order. For as much as the order may specify the time that the child is to spend with the father, what is significant is what it does not specify, and that is the extinguishing of a preferential right, which, by the natural inference of such a preferential right and the relevant authorities and commentary referred to by Messrs Perera and Nicholas, must be expressed to be extinguished or otherwise cease in its operation. Absent that specific elimination of that right I am not satisfied that the inference should be drawn that it has ceased to exist or ceased in its operation.
86The submission by Mr Nicholls QC that the father’s custody rights had been restricted by the access order must, in my finding, fail, and similarly any argument that absent an expression in the order of a restriction on the mother’s right to choose the place of residence of the child, the mother was not so restricted, must also fail.
87Further, the father was at the relevant time actively pursuing a final determination of the parties’ competing claims for sole custody of the child. In those circumstances I am not satisfied that it could be said, or that the mother could demonstrate, as she must, that the father was not exercising a right of custody.
88Whilst the access order may have been determined [sic] in the day to day arrangements for the interrelationship between the parties and the child, it was not, in my finding, determinative of the ultimate rights of the parties and the child, or the extent to which they may be exercised. A distinction is there to be drawn between the observations made by the plurality in MW v Director-General, Department of Community Services (supra), where the relationship between the parties had been settled by the orders made in 2000. However, what was the overarching significance of the decision of the plurality was the acceptance of the proposition, it would seem, that the statutory conferred rights of the father could co-exist with the order if those rights were found to be in place. It was the absence of that finding that was ultimately determinative of the rights of the father in MW v Director-General, Department of Community Services (supra).
Having next referred to Canadian authority concerning rights of custody that may be held by a court which has made only an interim custody order, his Honour went on to say that the effect of an interim order is the same in Sri Lanka as it is in Australia, namely it is “an order made pending a further or final order”. He also observed that in the present case “not only was the order interim but it remained silent on the custodial rights over the child… Silence in an order of a court does not always rebut a presumption at law”.
His Honour then discussed the law relating to rights of custody held by courts, but noted such rights were not relied upon in the present matter, “where the father’s own preferential rights of custody have been breached by the mother’s wrongful removal of the child”.
His Honour concluded that the father’s “preferential rights of custody” had not been extinguished by judicial or administrative decision, nor had the mother gained legal rights of custody by judicial or administrative decision. He therefore made the order for return which is the subject of this appeal.

The Grounds of Appeal

We have already noted that the mother did not seek to adduce any evidence at the hearing before the trial Judge. Nevertheless, after filing her Notice of Appeal, the mother obtained further expert evidence concerning Sri Lankan domestic law. This was received on the hearing of the appeal, by consent.
The original Grounds of Appeal sought to impugn the finding that at the time of the child’s removal from Sri Lanka the father had a “preferential right of custody” (Ground 1(a)). The mother also sought to impugn the finding that the father’s rights of custody included a right of veto on his removal from Sri Lanka (Ground 2(a)). In light of the further expert evidence, neither of those propositions could be sustained. Grounds 1(a) and 2(a) were therefore abandoned.
Only two grounds were left for consideration, namely:
1(b)The learned Judge was wrong to find as a fact that the father’s rights of custody (including any right of veto on [the child’s] removal from Sri Lanka) were capable of actually being exercised immediately before [the child’s] removal from Sri Lanka on 8 May 2009.
2(b)That the learned Judge was wrong in law to characterise any right of veto on [the child’s] removal from Sri Lanka which the father might have had on 8 May 2010 [sic] as being a “right of custody” for the purposes of Regulations 4(1)(b) and 16(1A)(c) of the Family Law (Child Abduction Convention) Regulations 1986.
Queen’s Counsel for the mother informed us at the commencement of the oral argument that Ground 2(b) was not pressed because it had become apparent from the Summary of Argument that the Central Authority did not rely on the father’s right of veto in seeking to establish that the child’s removal was in breach of the father’s rights of custody. In reply, counsel for the Central Authority pointed out that it was not so much what the Central Authority relied upon that was important, but rather what the trial Judge had relied upon. The position adopted by counsel for the Central Authority needs to be understood, however, in the context of her Summary of Argument in which the following was said concerning Grounds 2(a) and 2(b):
17.The Judge did not find as a fact that, under the law of Sri Lanka, the father’s rights of custody immediately before [the child’s] removal from Sri Lanka on 8 May 2009 included a right of veto on [the child’s] removal from Sri Lanka. Neither did the Judge characterise any right of veto on [the child’s] removal from Sri Lanka which the father may have had on 8 May 2010 [sic] as being a right of custody for the purposes of regulations 4(1)(b) and 16(1A)(c) of the Regulations.
18.The only reference in the Judge’s decision to a right of “veto” is in accepting Mr Nicholls QC’s submissions in relation to a number of matters: AB 31 paragraph [60]. The father had preferential custody rights broader than a mere right of veto. Accordingly, the question of whether or not a mere right of veto is a “right of custody” does not arise in this case. (footnote omitted)
Although the sole remaining complaint, Ground 1(b), appeared by its terms to accept that the father did have rights of custody, the ground was argued on alternative bases – namely that because of the terms of the interim access order the father did not have rights of custody; or, if he did have such rights, they were not capable of being exercised.

The submissions of the mother

Queens Counsel for the mother accepted that the father had “preferential rights of custody” under the domestic law of Sri Lanka, but submitted it was necessary to consider what rights the father had that were “actually capable” of being exercised immediately before the removal, and then to consider whether those amounted to “rights of custody” for the purposes of the Regulations. It was submitted that the effect of the interim access order “reduced the exercisable rights to a point below which they no longer amount to rights of custody” for the purposes of the Regulations.
In his written Summary of Argument, counsel for the mother took issue with the assertion made by Attorney Perera that, following the making of the interim access order, although the mother was exercising physical custody, the father continued to have legal custody. It was submitted that none of the legal authorities provided by the attorney mentioned the concept of custody being divided into “physical” and “legal” custody. We presume this proposition was abandoned in light of the further expert evidence obtained by the mother in which it was said, inter alia, that “Legal custody includes physical custody unless the Court orders otherwise”.
In any event, it was further submitted in the Summary of Argument that:
… a legal custodian must be able to determine where a child lives, and how often and in what circumstances he sees or cares for him (or someone else does). Plainly, the father could not do that. So either he had no “legal” custody rights or they were so constrained by the access order that he was unable to exercise an essential element of those rights, the right to determine where [the child] was to live.
Counsel for the mother went on to submit:
In the context of whether the father’ [sic] rights on 8 May 2009 constituted “rights of custody” within the meaning of the Regulations, the views of the United States Court of Appeals for the Second Circuit in the case of Croll v Croll and [sic] as to what constitutes “custody” in respect of a child are helpful: there is a serious danger that too generous a view of what constitutes a “right of custody” for the purposes of the Regulations will erode the difference between custody rights and access rights altogether. (footnotes omitted)

Counsel for the mother supported this proposition by reference to the following paragraph from the decision of the majority in MW:
84.The Authority fails in its reliance upon the Access Order as the source of custodial rights of the father because its argument does not adequately observe the distinction drawn in the Regulations and in the Convention between rights of custody and those of access. The importance of the preservation of the distinction in construing the Convention was, with respect, correctly emphasised by the House of Lords in In re D (A Child) (Abduction: Rights of Custody). Reference was made by the Authority to the "frustration" of the rights of access given the father pursuant to the Access Order, by removal of the child from New Zealand. But that description of the events that happened does not translate the rights of the father to a right of determination of the place of residence of the child and thus to a right of custody. (footnotes omitted)
In his oral submissions, counsel for the mother described reg 4(2) as the crucial provision for the purposes of this appeal, and cited the decision of this Court in J v Director-General, Department of Community Services (2003) 211 FLR 235 (“J v DOCS”) at [63] as authority for the proposition that rights of custody under the Regulations must include the right to determine where the child is to live. In support of that proposition, counsel for the mother also relied upon the decision of this Court in Wenceslas v Director‑General, Department of Community Services [2007] FLR 93-321 (“Wenceslas”) (subsequently known as “MW” after the matter went to the High Court).
The majority of this Court in Wenceslas followed the decision in J v DOCS and found (at [167]) that “the right to determine the place of residence of the child is not just sufficient, but necessary to establish ‘rights of custody’ for the purposes of the Regulations”. Although the decision in Wenceslas was overturned by the High Court (Gleeson CJ and Kirby J dissenting), there was no criticism of the principle stated in J v DOCS. It should also be observed that Finn J, whose dissenting judgment in Wenceslas found favour with the majority of the High Court, had also found (at [45]) that there was no reason to depart from the decision in J v DOCS.
Counsel for the mother submitted that the fact the father might be “labelled as a joint legal custodian” did not necessarily mean that he had the right to determine the child’s place of residence. In summarising what he described as the crucial part of his argument, counsel said:
The father had … what the Americans would call visitation rights. He had an access order which permitted him, and obliged the mother to comply, with [the child] being with him for specific periods of time on specific days. Beyond that, he had no right to determine [the child’s] place of residence. He couldn’t, for example, tell the mother that she must go and live somewhere. He couldn’t tell the mother that [the child] was no longer going to live with her, but was going to live with him, or his mother, or anybody else. He had no right – the crucial right is: can you determine a place of residence?
And the answer is: no, he can’t. So either that right was suspended by necessary inference – necessary implication by the access order. Or alternatively, that right was simply unable to be exercised.
In the course of argument, we suggested to counsel for the mother that some of his propositions were contrary to the further expert evidence which he had placed before us, which concluded by saying:
27. In the circumstances our opinion is that;
(i)the acceptable view is that the father has the custody of the child unless varied by Court
(ii)Legal custody includes physical custody unless the Court orders otherwise
(iii)The Order of access does not affect the rights of custody of the father
(iv)Legal Custody gives the right to veto the relocation of the child to another country
We suggested to counsel for the mother that the expert evidence indicated that under the laws of Sri Lanka the concept of “custody” includes the whole bundle of rights that any parent could have in relation to a child, which must include the right to determine where the child resides. At this point, counsel for the mother accepted that the father may have had rights of custody, but submitted that was not the same as being actually able to exercise those rights.
Counsel for the mother indicated that he was unaware of any Australian authority directed to the issue of what is meant by “actually exercising rights of custody”. We informed him that our own researches indicated that the matter had been considered by Warnick J in Director-General Department of Child Safety v Dally-Watkins [2005] FamCA 1409 (“Dally-Watkins”). Warnick J’s orders were the subject of an appeal to this Court, but on a different issue than his Honour’s findings about what constitutes exercising rights of custody. In dealing with that issue, Warnick J said:
42. The mother’s argument in effect is that the father was not caring for the child. In my view, where the parents are cohabiting with the child as a member of the household, the question of whether or not the father is exercising rights of custody does not fall to be determined upon the degree to which he was involved in the day to day tasks of child raising. At the very least the father was, whether alone or jointly, providing a residence and parental presence for the child. As was said by Boggs CJ in Friedrich and Friedrich 78F.3d 1060 (Sixth cir.1996) a decision of the United States Court of Appeals, sixth circuit, at page 1064:
“The only acceptable solution, in the absence of a ruling from a court in a country of habitual residence, is to liberally find ‘exercise’ whenever a parent with ‘de jure’ custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.”
43. This reasoning is also consistent with the conclusions reached by the Full Court of this court in Director-General, Department of Community Services v Crowe (1996) FLC 92-717, a case in which a mother was found to be exercising rights of custody even though the child had not been living with her for some time.
In the case of Friedrich v Friedrich 78 F.3d 1060 (6th Cir 1996) (“Friedrich”), to which Warnick J referred, the father had only had one access visit (albeit he had more planned) and yet was found to be exercising his “rights of custody”. We drew that fact to the attention of counsel for the mother, who responded by submitting that the approach apparently adopted in Friedrich was contrary to the reasoning in Wenceslas, because in that latter case there had been no suggestion that the father was not trying to keep in touch with his child (and yet he had been unable to obtain an order for the child’s return). With respect to counsel for the mother, this response was not really to the point, since the fundamental issue in Wenceslas/MW was not whether the father was exercising rights of custody but whether he had such rights in the first place.
In any event, counsel for the mother accepted as correct our further proposition that the father in the present matter was doing much more than trying to keep in touch with the child, and was in fact pursuing a formal order for custody. Counsel pointed out, however, that the making of an application does not of itself confer rights of custody on the father. Whilst this is true, we suggested to counsel that Friedrich (and other authorities to like effect) may be seen as standing for the proposition that a person with rights of custody can only be said not to be exercising them where there is a complete abandonment of all responsibility and contact with the child.
Counsel submitted in response that it was not a question of abandonment but rather a question of whether the father’s rights of custody could be exercised. He then returned to his fundamental proposition that the father did not have rights of custody because he did not have the right to determine the child’s place of residence, since he had consented to an order by which he was given only access to the child. He characterised that order as the father’s preferential rights of custody having been “regulated by the court as the upper guardian” in a way which had deprived the father of the ability to choose his child’s place of residence.

The submissions of the Central Authority

Counsel for the Central Authority submitted that the mother’s proposition was that were it not for the access order, the father’s preferential rights of custody under Sri Lankan law would constitute rights of custody for the purposes of the Regulations. Counsel submitted, however, that the access order could not have had the effect on the rights of the father contended for by the mother. It was submitted that:
An order that is silent cannot be said to deprive one parent, who at law has preferential rights in custody, in favour of the parent who holds the burden of proving that it is in the child’s best interests that the father be deprived of custody. Access and custody rights can co‑exist, which the Judge found in this case.
Counsel for the Central Authority noted there were no express words in the access order extinguishing the father’s rights of custody. It was submitted that, in attempting to ascertain the effect of that order, his Honour had been correct in placing weight on the fact that the parties had never cohabited during the child’s lifetime. It was further submitted his Honour was correct in finding that the access order did not discharge the father’s “rights of custody”, and that the father was exercising those rights by prosecuting the proceedings in Colombo.
In her oral submissions, counsel for the Central Authority submitted that the question for determination was not whether the father’s rights of custody were capable of being exercised at the relevant time, but whether, firstly, the father was actually exercising those rights, either jointly or alone, or secondly, whether he would have exercised those rights if the child had not been removed. It was submitted that the Central Authority had made it clear before the trial Judge it was relying on the second of those propositions. It was submitted that whilst the court in Sri Lanka had the right to interfere with the father’s preferential right of custody, there was no evidence that any court order made in that country had interfered with that right. It was further submitted that the mother’s own expert evidence confirmed that fact.
In response to the proposition that the access order extinguished or suspended the father’s custody rights, counsel for the Central Authority placed emphasis on the finding of the trial Judge that the mother had gained no “legal rights of custody” as a consequence of the order, since the order was “silent on the custodial rights of the child”. Counsel also drew attention to the expert evidence which established that although the father had underlying rights of custody, he was nevertheless legally unable to remove the child from the mother’s care (since Sri Lankan law does not permit even a person having legal custody to remove a child from the care of another without consent). The evidence established that the correct method of enforcing the right of custody was by making application to a court, which the father had done.
Finally, it was submitted that the effect of the removal of the child from Sri Lanka was that the Sri Lankan court was unable to “impart the remedy that the father was entitled to, and that the father had sought”.
In reply to the final proposition advanced on behalf of the Central Authority, it was submitted on behalf of the mother that a right to go to court to ask for something is a potential right, but it is not a custody right, because anybody with sufficient standing can approach a court seeking an order in relation to a child. The father’s entitlement to have the child live with him was dependent upon the court being persuaded to make an order for custody and therefore, so it was argued, the father did not have “rights of custody” because he was unable to determine the place of residence of the child. It was submitted in effect that only the Sri Lankan court had “a custody right” because it now controlled the residence of the child.
Counsel for the mother agreed with the proposition that “custody consists of a number of things, a number of powers”. He submitted that, notwithstanding the access order, the father still possessed some of those powers – for example the power to give or withhold consent to medical treatment and the right to consent to the marriage of a child. However, because of the access order, the father did not have the power to insist on having the child live with him during any period other than the time permitted by the order, and hence it could not be said that the father had the power to determine the child’s place of residence.

Discussion

It is common ground that in order to have “rights of custody” within the meaning of the Regulations, the father must have had the right to determine the place of residence of the child immediately prior to his removal from Sri Lanka. It is not sufficient that the father had “custody” of the child pursuant to the laws of Sri Lanka, unless his status as custodian carried with it the right to determine the child’s place of residence.
The expert evidence, properly accepted by the trial Judge and now confirmed by the further evidence obtained by the mother, makes clear that the father had a preferential right to custody of the child not only during the marriage, but also following its breakdown. The evidence also established that the access order did not affect the father’s rights of custody under domestic law. Under the law of Sri Lanka the concept of custody “connotes a broader concept of parental responsibility”; it involves “more than simply who the child lives with”; and it gives the custodian the right to veto the removal of the child to another country.
The affidavit evidence of Attorney Perera, which post-dated and was somewhat more detailed that that of Attorney Nicholas, asserted that although the mother had “physical custody of the child, this was by consent of the father”. This proposition was contained in paragraph 18 of Mr Perera’s affidavit, which his Honour repeated in his judgment. His Honour did not recite the paragraphs immediately preceding, and following, paragraph 18. In order to provide context for the important proposition contained in that paragraph, we set out below paragraphs 17 to 19 inclusive of Mr Perera’s affidavit:
17. Although the Order of the District Court of Colombo dated 18.12.2008 granted the father right of access to the child, this Order has to be looked at in the light of the background facts. In this regard, it should be noted firstly that while the mother had the physical custody of the child at the time of the institution of the divorce proceedings, both parties in their respective pleadings prayed that Court grant them the legal and physical custody of the child. As a matter of convenience until the case was heard and concluded, the father consented to this arrangement continuing, subject to being granted the right of access to the child. Therefore, the Court Order granting access to the father did not amount to converting the father’s preferential right of custody to a right of access only, nor did it amount to awarding custody (interim or otherwise) to the mother.
18.Therefore, although the mother exercised physical custody of the child, this was by consent of the father. Furthermore, the father continued to have the legal custody of the child, which would include the right to decide on the child’s travel overseas, since this would not be a day-to-day matter that would be caught up within the scope of physical custody. It would follow that the father could veto the relocation of the child to another country.
19. In those circumstances I state that at the time of the abduction of the said minor child by [the mother] as aforesaid, [the father] had the legal and physical custody of the [child] under the laws of Sri Lanka.
We should observe that whilst the other expert witness, Attorney Nicholas, did not expressly state that the mother had physical custody of the child by consent of the father, there is nothing in his affidavit evidence which is inconsistent with that proposition. In fact, like Attorney Perera, he concluded (in paragraph 13 of his affidavit) that at the time of the removal of the child, the father not only had legal custody of the child but also physical custody.
We further observe that there was nothing contained in the opinion of the attorneys subsequently engaged by the mother which indicated any disagreement with the proposition that the mother had physical custody of the child by the consent of the father. We acknowledge that their terms of reference did not expressly refer to that topic; however, they joined with Attorneys Perera and Nicholas in concluding that the father had custody of the child, which they said included physical custody unless the court otherwise ordered. They expressly concluded that the access order had not affected the father’s rights of custody. They also accepted that the father’s legal custody gave him the right to veto the relocation of the child to another country.
Since all of the attorneys who have provided expert evidence are agreed that the father had physical custody as well as legal custody of the child at the time of the child’s removal, logic suggests that the mother could only have had physical custody (in the sense of possession) of the child with the consent of the father. That is, of course, unless the father had requested the child be placed in his care, and the mother had refused, but there was no evidence of this having ever occurred. On the contrary, the evidence indicates that whilst the father had applied for an order for legal and physical custody of the child, he had never asked the mother for anything other than access to the child. Even with the benefit of an order for physical and legal custody, it would be open to the father to permit the child to live primarily with the mother.
As further evidence of the fact that the mother had physical custody/possession of the child with the father’s agreement, we note that the interim access order of December 2008 was made by consent. Whilst the father’s motivations in consenting to that order are not known, they are also not relevant. The fact is that he had legal standing to consent to an interim arrangement which would determine where the child would reside, and he did so.
In the absence of any evidence to the contrary, the trial Judge was entitled to accept (as he did in paragraph 59) all of the evidence of Attorneys Nicholas and Perera. We acknowledge that his Honour (in paragraph 60) accepted the submission of counsel for the mother that Mr Perera had provided no authority for the proposition that the mother had physical custody of the child only with the consent of the father; however, we consider that his Honour’s discussion makes clear that he accepted Mr Perera’s evidence on that point, notwithstanding the lack of reference to authority.
The expert evidence established that at the time of the child’s removal from Sri Lanka, the mother’s only legal right was to have the child in her care for that period of time in which the father was not entitled to have the child pursuant to the interim order. She had no rights of custody under the law of Sri Lanka, albeit she was making application to the court to have such rights conferred upon her. All other rights in relation to the child were held by the father, albeit it is true that those rights could be extinguished or varied by order of the Sri Lankan court when it next dealt with the competing claims. The fact that there was no evidence that the mother was constrained from choosing where she would live in Sri Lanka (and hence where the child would live) does not mean, in our view, that she had the right to determine the child’s place of residence within the meaning of the Regulations.

We consider the trial Judge was right in concluding, as we accept he did, albeit not expressed in precisely this way, that the father had the right to determine the child’s place of residence. He had exercised that right by agreeing that pending a final hearing in Sri Lanka, the child would primarily reside with the mother. His Honour was also right in determining that the interim consent order, which conferred a right on the father to have the child in his physical possession at specific times, but which conferred no rights on the mother, and contained no express diminution of the father’s preferential rights, could not be interpreted as derogating in any way from the father’s rights. All the order did was to give the father the right, which he otherwise could not have enforced, notwithstanding his preferential status, to require the child to be delivered into his care for a stipulated period of time each week.
If the father had the right to determine the place of residence of the child, which we have accepted he did, the fact he was only seeing the child for a defined period each week did not mean that he was not exercising his rights of custody. We have earlier referred to the citation by Warnick J in Dally-Watkins of the decision of the United States Court of Appeals sixth circuit in Friedrich where Chief Justice Boggs said:
The only acceptable solution, in the absence of a ruling from a Court in a country of habitual residence, is to liberally find “exercise” whenever a parent with “de jure” custody rights keeps, or seeks to keep, any sort of regular contact with his or her child.
This proposition has been repeatedly applied in the United States – see for example Bader v Kramer 484 F.3d 666 (4th Cir 2007), a decision of the fourth circuit of the United States Court of Appeals, delivered on 18 April 2007. The proposition is also consistent, as Warnick J found, with the decision of this Court in Director General, Department of Community Services v Crowe (1996) FLC 92-717. In that case it had been argued that the mother, in placing her child in the care of the child’s grandparents, was not actually exercising her rights of custody at the time of the removal of the child by the father. The Full Court rejected this proposition. The Court found (at 83,637):
The mother, in this case, in August 1989, made proper arrangements to have the grandparents care for C. By so doing, she was arranging to have them discharge, on her behalf, her duty to C. It would not have been

open to the trial Judge, in our view, to find that by so doing, she was surrendering, abandoning, waiving or giving away her rights to custody or conferring such rights upon the grandparents, nor would it have been open to him to find that she was conferring such rights upon the father. Thus on this basis, in our view, the mother was, at the time of the retention, actually exercising rights of custody in relation to C.
We therefore conclude that not only did the father have rights of custody within the meaning of the Regulations, but that he was actually exercising those rights at the time of the child’s removal. The mother’s removal of the child from Sri Lanka was therefore wrongful within the meaning of the Regulations and his Honour was obliged to make the order for the return of the child to Sri Lanka.
In making the order he did, his Honour was giving effect to Australia’s obligations under the Convention. In this regard, it is important we note that his Honour had not been asked to exercise the discretion conferred by reg 16(3) to refuse to make an order for return in certain circumstances, such as those set out in reg 16(3)(b) and reg 16(3)(d). It is important we record this because we acknowledge the disquiet that may be felt concerning an order requiring a child to be returned to a country where the law privileges one parent solely on the basis of their gender. However, we also note that notwithstanding the gender bias underpinning the domestic law, there is authority suggesting that the judiciary in Sri Lanka are able to apply a “best interests” test in determining custody disputes.
In any event, Australia must honour its obligations under the Convention (at least to the extent reflected in the Regulations). On occasions, this will mean that children are returned to a jurisdiction whose domestic law, or legal processes, are different to the laws and processes with which we are more familiar. This is the price that those responsible for making the laws of this country considered worth paying in order to secure the inestimable benefits associated with combating international child abduction. We expect, and commonly receive, similar cooperation from other Convention countries to which Australian children are wrongfully removed.
Because of the way the appeal was conducted, and given the conclusions we have reached concerning the father’s right to determine the child’s place of residence, it has not been necessary to discuss whether the father’s right to veto the child’s removal from Sri Lanka (which it was accepted he possessed) in itself amounted to “rights of custody”. Baroness Hale has most eloquently explained why courts seeking to apply the Convention should find that a right of veto amounts to rights of custody. As her Ladyship pointed out in In re D, this was the view adopted in all common law countries, save in North America, where conflicting views had been expressed by appellate courts. Since then, the controversy in the United States has been resolved by Abbott v Abbott, 560 US (2010), where the Supreme Court held that a “ne exeat” right amounts to rights of custody under the Convention.
The majority of this Court in Wenceslas adopted Baroness Hale’s approach. Finn J, although dissenting on the outcome, was prepared to follow suit. When allowing the appeal, the majority of the High Court found it unnecessary to accept (or reject) that approach, since it held the father did not possess a right of veto. It may be that the High Court will be called upon to determine this issue authoritatively in the future, but in the meantime, this Court has not been called upon to reconsider the view expressed in Wenceslas.

The outcome and costs

For the reasons given, we find no merit in the appeal and it will therefore be dismissed.
Counsel for the Central Authority advised that if the appeal was dismissed, no order for costs would be sought against the mother. There will accordingly be no order as to costs.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Thackray & Ainslie-Wallace JJ) delivered on 2 March 2011.

Associate:

Date:

[2011] FamCAFC 39

2 March 2011

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Appeal

Custody Rights

Child Abduction

Hague Convention