State Central Authority and Best (Quasi Enforcement of Safe Harbour Orders)

[2012] FamCA 770

FAMILY COURT OF AUSTRALIA

STATE CENTRAL AUTHORITY & BEST (QUASI ENFORCEMENT OF SAFE HARBOUR ORDERS) [2012] FamCA 770

FAMILY LAW – ENFORCEMENT – compliance with pre-conditions to return – registration of safe harbour orders

Convention on the Civil Aspects of International Child Abduction 1980
Family Law Act 1975 (Cth)
Family Law (Child Abduction Convention) Regulations 1986 (Cth)
Pennsylvania Custody Relocation Statute (United States of America)
Uniform Child Custody and Jurisdiction and Enforcement Act (United States of America)

APPLICANT: Ms Best

RESPONDENT: Mr Khirmani

RESPONDENT: State Central Authority

INDEPENDENT CHILDREN’S LAWYER Mr C Smith

FILE NUMBERS: MLC AND
MLC 3396 5624 Of Of 2012 2012

DATE DELIVERED: 6 September 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 3 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms J Stewart

SOLICITOR FOR THE APPLICANT: Barbayannis & Co Lawyers

COUNSEL FOR THE RESPONDENT FATHER: N/A

SOLICITOR FOR THE RESPONDENT FATHER: Forte Family Lawyers

COUNSEL FOR THE RESPONDENT STATE CENTRAL AUTHORITY: Ms R Stoikovska

SOLICITOR FOR THE RESPONDENT STATE CENTRAL AUTHORITY: Department of Human Services, Legal Services Branch

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: N/A

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

Orders

IT IS ORDERED THAT:

1. Pursuant to section 68L(2) of the Family Law Act 1975 (Cth) the interests of the children J Khirmani born … January 2005 and R Khirmani born … February 2007 be independently represented by a lawyer AND IT IS REQUESTED that Victoria Legal Aid arrange such representation and the independent children’s lawyer be appointed in sufficient time to be able to make recommendations about what interim parenting orders would be in the best interest of the children by the next return date.

2. I stand over the further hearing of the mother’s applications filed 20 August 2012 and the respondent’s responses thereto, to 19 September 2012 at 4.30 p.m. (“the adjourned date”).

3. Prior to the adjourned date, the lawyers for all parties confer and, if possible, agree on the outcome of the proceedings in Pennsylvania on 17 September 2012 and its consequences.

4. I reserve to the parties liberty to seek jointly that the matter be relisted before me urgently in the event that they all want to pursue direct judicial communication between the Court and a Court in the United States of America on the issue of registration of the safe harbour order.

IT IS NOTED that publication of this judgment by this Court under the pseudonym State Central Authority & Best  has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3396 of 2012 and MLC 5624 of 2012

Ms Best

Applicant

And

Mr Khirmani

Respondent Father

And

State Central Authority

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The mother makes two applications contending that the father has thwarted the registration of an interim parenting order of this court in Pennsylvania when registration is a pre-condition to her and the children returning to the United States. The father denies that he has done so and both he and the State Central Authority say that the mother ought to return the children to the United States without delay.  I heard the matter on 3 September 2012 and reserved my decision.  These are my reasons for decision.

Background

1. On 22 June 2012 I ordered the return of the children J Khirmani born in January 2005 (“the older child”) and R Khirmani born in February 2007 (“the younger child”) to the United States of America pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth) (“the Regulations”) which implement into Australian law the abduction provisions of the 1980 Convention on the Civil Aspects of International Child Abduction.  The return was to be in the presence of the mother, to occur within two weeks of a new passport issuing for the younger child and, be subject to the following conditions:-

   5.        The return of the children to the United States of America be and is hereby  conditional upon the father attending to the following :-

   (a)       Payment of US$35,000 in clear funds to the independent children’s lawyer to be held on trust for the mother and to be paid by the independent children’s lawyer to the mother, into a bank account nominated by the mother, such payment to be effected immediately after the mother has departed Australia bound for the United States and so as to be accessible to the mother upon her entering the United States;

   (b)       Payment of the reasonable costs of airfares from Melbourne to Pennsylvania for herself and the children;

   (c)       Providing proof or purchase or lease of a motor vehicle available for the mother’s use to transport herself and the children in Pennsylvania;

   (d)       Providing proof of ongoing medical and health insurance coverage for herself and the children for three months;

   (e)       To cooperate with the mother to obtain registration or recognition of the Order by this Court made on 22 June 2012 in the proceedings between herself and the father in matter MLC 5624 of 2012 so that the Order is enforceable in Pennsylvania in the United States.

2. The parties to the Hague return proceedings were the applicant State Central Authority, the respondent mother and an independent children’s lawyer who represented the interests of the girls.  My reasons for decision are published at [2012] Fam CA 511 and I incorporate those reasons into these reasons.

3. The father, Mr Khirmani, was not a party to the Hague return proceedings but was a witness for the applicant State Central Authority. He observed the final hearing by video link from the United States and had sitting beside him his lawyer, Mr Daniel Marks of Law Firm D.

4. The mother volunteered to return to the United States in advance of the final hearing.  The final hearing concerned what, if any, pre-conditions should apply to the return.  Whereas the father has at all material times resided in Nevada,, the mother and children had not lived or returned there since November 2010.  From November 2010 until June 2011 the mother and children lived in the household of the father’s brother in Pennsylvania.  The mother describes this as having been a permanent or semi permanent change of residence on the basis that she and the father were separated and she and the children would not return to Nevada and hoped for a reconciliation.  The father describes it as temporary move such that the mother and children still really lived in Nevada.  A matter of dispute in the return proceedings was where the mother should live with the children immediately upon return to the United States.  The father said Nevada which the mother would not countenance.  The mother wanted Maryland where she had never lived before but which is where her aunt resides.

5. Whereas the 1980 Convention merely requires the return of the children to their country of habitual residence, it was necessary to place the family unit somewhere for the purpose of the parents obtaining orders which are enforceable and recognised in the United States and reflected the arrangements which they agreed should apply immediately upon the children’s arrival and until a court of competent jurisdiction is seized of the matter.

6. It was agreed between the parties to the return proceedings and the father that, immediately upon their return to the United States, the mother and children would settle, for the time being, in Pennsylvania.  This was without prejudice to the father’s right to seek custody of the children and that they live with him in Nevada and for the mother to seek custody of the girls and to relocate their residence to Australia.  It was also without prejudice to the right of the father to contend subsequently that Nevada was the home state for the purpose of the Uniform Child Custody and Jurisdiction and Enforcement Act (“the UCCJEA”) and for the mother to contend that Pennsylvania was the home state or, alternatively, that the children have no home state and that Pennsylvania should retain jurisdiction over the substantive custody proceedings because, inter alia, it is the state where the children lived for more than six months prior to their departure for Australia and the state with which the children have their most significant connections.

7. The immediate care arrangements for the children to which the mother and the father agreed were embodied in a minute which was signed by each of them (and returned electronically by the father) which they both asked that I make and I did so.  That Order is as follows:-

   1.      Pursuant to Part VII of the Family Law Act 1975 (Cth) it is ordered that until the court of competent jurisdiction in the United States of America otherwise orders:-

   a.The children [J Khirmani] born […] January 2005 and [R Khirmani] born […] February 2007 remain in the day to day care of the mother;

   b.The father be entitled to spend face to face time with the children as follows:-

   i.Upon providing to the mother 24 hours notice in writing for up to 7 consecutive days between the hours of 10am and 6pm; and

   ii.At such further or other times as may be agreed between the mother and the father and evidenced in writing;

   c.Upon the children arriving in the United States of America and then in Pennsylvania each of the mother and father be and are hereby restrained by themselves their servants or agents from causing, permitting or suffering the removal of the children or either of them from the state of Pennsylvania] without the prior written consent of the other;

   d.The father will not cause directly or indirectly any criminal prosecution or civil action to be taken against the mother arising out of her retention of the children outside the United States of America and nor shall he cooperate with any such prosecution or action or take any action which may give rise to such prosecution or action.

   2.      The mother and the father forthwith do all acts and things necessary to register these orders in the state of Pennsylvania. 

   3.      The parties are hereby relieved from filing any formal application or response and from otherwise complying with the Family Law Rules 2004 and that the file be created by the Registry which will travel with proceedings MLC3396/2012. 

   4.      The father’s address for service be noted in the records of the Court as [Property A], Nevada, United States of America and the mother’s address for service be noted as Barbayannis Lawyers PO BOX 323, Surrey Hills, VICTORIA, 3127.

   5.      The oral application of the mother is otherwise dismissed and removed from the docket of the Honourable Justice Bennett.

NOTATION:
And it is noted by the Court that, for the avoidance of doubt, the registering of these orders in Pennsylvania is not to be construed as consent by the father or an endorsement by this Court as to:-

a)      The long term arrangements for the children including any state in which they are to live

b)      In which state the parents or either of them may issue proceedings in relation to matrimonial property, financial matters or children’s issues; and

c)      Which state in the United States of America (if any) has jurisdiction to determine the jurisdiction of any question;

It being the case that the father contends that Nevada is the appropriate state of jurisdiction and the mother intends that Pennsylvania is the appropriate case of jurisdiction.

1. The Order is in the nature of a safe harbour order which is an order or measure required to be made as enforceable in the requesting state of habitual residence (in this case the USA) to safeguard the welfare of the children and/or returning parent before the requesting state (in this case Australia) will order the return of a child under the 1980 Convention. For ease of reference, I will refer to it as “the safe harbour order”.

2. In the Hague return proceedings I also reserved to each party “liberty to have the matter relisted before me in the event of there being any difficulty with registration of the said Order made 22 June 2012 in the United States of America or with implementation of this Order generally”.

3. No party appealed the orders in either proceeding or has now sought leave to file a notice of appeal out of time.

The position of each party

1. The mother now returns the matter to court urgently contending that the father has blocked the registration and enforcement of the safe harbour order and requiring him to desist. In fact, by her applications filed 20 August 2012 the mother seeks rafts of orders quite in excess of those necessary to secure registration and enforcement of the safe harbour order, namely:-

   a)As against the applicant State Central Authority in proceedings MLC 3396 of 2012, the mother seeks that the return orders be discharged, alternatively that the children not be returned until the father has complied with the safe harbour order save that instead of the payment of $35,000 (receipt of which she acknowledges) the father be required to pay $100,000;

   b)As against the father in proceedings MLC 5624 of 2012, the mother seeks:-

   i)copy documents for the custody proceedings which the father has caused to be issued in Nevada;

   ii)interim orders that the girls reside with the mother in Pennsylvania and that the father be restrained from removing the children from the care of the mother and from Pennsylvania and from engaging Linda Shay Gardner as  his lawyer because she has previously advised the mother;

   iii)that the father perfect registration in Pennsylvania of the safe harbour order;

   iv)that he father immediately withdraw his custody proceedings in Nevada and his objections to registration of the safe harbour order in Pennsylvania..

   c)Costs.

2. Counsel for the mother clarified that her client is prepared to return to the United States as soon as the safe harbour order is implemented.

3. Counsel for the mother did not seek to proceed with her application extra funds or for a discharge of the return order. There was no attempt to invoke Reg 19A of the Regulations which sets out the circumstances in which a return orders can be discharged including that circumstances of an exceptional nature have arisen since the order was made or it is now impracticable.

4. By a response filed today, the father seeks a declaration that he has complied with his obligations under the relevant orders insofar as registration of the safe harbour order is concerned, that the mother’s application for injunctions and variation of conditions to return be dismissed and costs.

5. By a response filed today the State Central Authority seeks declaratory relief to the same effect as that sought by the father but no costs.

6. Whereas the father and the State Central Authority each seek declaratory relief, neither could identify the source of declaratory power.  The State Central Authority is a model litigant whose frequent task is to prosecute return applications.  It is reasonable to expect that counsel for the State Central Authority should be able to identify what power the court has to make the relief she seeks. In the circumstances, I take the applications of the father and the State Central Authority to be that the mother should return forthwith to the United States on the basis that the conditions precedent to return have been satisfied.  If they wanted that to occur in immediately, it would have been prudent to provide a flight schedule but none was provided.  The mother conceded that she would return when required and had the father’s credit card details to purchase tickets.

7. Before leaving the father’s position, I note that a further pre-condition to the children’s return is that the father provide “proof or purchase or lease of a motor vehicle available for the mother’s use to transport herself and the children in Pennsylvania” but he has not done so.  His lawyer, Ms Campbell, says that she advised the father to “hire” a car instead.  That is interesting advice in light of an order which requires acquisition of the car by purchase or lease.  Ms Campbell explained that she thought it would be more convenient for the mother to be able to collect a station wagon or large hire car at the airport upon her arrival rather than have the father chose a car for her before her return.  There is some merit in that position and it may be that, in due course, the parents reach an accommodation in that regard. However, until or unless they do, the conditions imposed at the final hearing remain unchanged and it is encumbent upon the father to provide proof of purchase or lease of a motor vehicle available for the mother’s use to transport herself and the children in Pennsylvania and, by implication, for that vehicle to be available at the airport.  This aspect is notable because, prima facie, it is indicative of the father having retreated into his corner, so to speak, rather than discussing the matter openly and sensibly with the mother.  If he is unable to speak to the mother himself, I note that each parent has a lawyer in the United States as well as in Australia.  The lack of dialogue is conspicuous, it resonates with the predicament which the parties have created for themselves about the registration of the safe harbour order.  This lack of communication does not bode well for the capacity of the parents to deal with one another in the future and in relation to their children.

8. The independent children’s lawyer appeared but sought no specific orders.  I have a lingering concern that Ms Smith’s appointment may have lapsed upon the final orders being pronounced. For the avoidance of doubt and noting that her attendance at Court today was necessary, I will make a request that Ms Smith be reappointed.  The independent children’s lawyer supports the execution of the return order as soon as the safe harbour order is properly implemented.

Conduct of the proceedings

1. Ms Stewart of counsel appears for the mother who attended court.

2. Ms Stoikovska of counsel appears for the State Central Authority.

3. Ms Campbell, solicitor, appears for the father.  The father was linked into the proceedings by telephone and listened throughout.

4. Ms Smith appears as the independent children’s lawyer.

5. The matter has proceeded today as one hearing of both applications on submissions only.  The proceedings between the parents, being matter MLC 5624 of 2012, were subsidiary proceedings to those between the State Central Authority and the mother in matter MLC 3396 of 2012.  It is appropriate that the mother’s current applications be heard together.  I accept submissions made in one matter as submissions made in the other matter as well.  My order and these reasons will appear on both files.

6. I asked Judge Mary Sheffield, a judge designated to the International Hague Network for the United States to put me in contact with Judge Coonahan of the Court of Common Pleas of M County, Pennsylvania.  This was done with the consent of the parties and in a manner consistent with the recent  publication (April 2012) by the Permanent Bureau of the Hague Conference on Private International Law of Emerging Guidance Regarding the Development of the International Hague Network of Judges and General Principles for Judicial Communications, Including Commonly Accepted Safeguards for Direct Judicial Communications in Specific Cases, within the Context of the International Hague Network of Judges[1]  Whereas at the final hearing there was detailed information from Judge Callahan from Maryland about Maryland practice, the safe harbour orders were arrived at and made without the benefit of input via direct judicial communications from a judge(s) in Nevada and/or Pennsylvania.  There is probably a lesson to be learned from this case.

   [1] Exhibit “C6” in the proceedings of 22 June 2012.

Developments since the final hearing

1. I profess no significant knowledge of domestic family law in force in Pennsylvania or Nevada so, in advance, I apologise any awkward expression and infelicitous language as pertains to those jurisdictions. It will also become apparent that I am not versed in the nuances of child custody jurisdiction across the United States. However, all that is now necessary is that the children be returned home under the immediate protection of the safe harbour order.

2. By Praecipe[2] filed by the mother in the Court of Common Pleas of M County, Pennsylvania in proceeding No. 12-18218 dated 9 July 2012 the mother sought registration of the safe harbour order.

   [2] Mothers’ affidavit sworn 16 August 2012, annexure page 8

3. Upon the filing of the mother’s request, the Prothonatory of the M County Court, Mr L, sent a notice to the father, in Nevada, informing the father that he could contest registration of the safe harbour order which is referred to therein as “a child custody determination” and the consequences if he does not do so. The notice specified that:-

   (1)a registered child custody determination issued by another state is enforceable as of the date of the registration in the same manner as a determination issued by a court of this Commonwealth;

   (2)a hearing to contest the validity of the registered determination must be requested within 20 days after service of this notice; and

   (3)failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.

4. By letter dated 11 July 2012[3] from Mr Clifford to Mr Marks, the mother notified the father of her intention to relocate the children back to Australia and purported to do so pursuant to the Pennsylvania Custody Relocation Statute. This has subsequently been withdrawn.

   [3] Annexure to father’s affidavit sworn 30 August 2012 page 9

5. On 27 July 2012 and through an attorney, Linda Shay Gardner of Law Firm G, Pennsylvania, the father entered an appearance in the M County Court and filed a Preliminary Objection to Registration of Foreign Custody Determination, a brief in support and a counter affidavit opposing relocation[4].  He requested an opportunity to advance oral argument. Specifically, the father seeks that the safe harbour order “which was filed in this Court on July 9, 2012 is hereby vacated” and seeks that the Court “vacate the registration” of the safe harbour order.

   [4] Annexure to mother’s affidavit pages 12 to 38 

6. In his preliminary objections[5] the father makes a number of assertions which his attorney, Ms Gardner, verifies on his behalf as being “true and correct”:-

   d)The mother “resides at [Property A], Nevada”[6] and that her stay with the father’s brother in […] Pennsylvania from November 2010 to 16 June 2011 was “temporarily staying”.

   e)The “Father contests the registration of the Australian Order of Court on June 22, 2012, which the mother filed in the M County Court of Common Pleas on July 9, 2012, on the basis that Pennsylvania lacks jurisdiction over this custody matter”[7] and that “the state of Nevada should exercise jurisdiction over this custody proceeding”[8]. (my emphasis).

   [5]  Annexure to mother’s affidavit pages 17 to 26

   [6] Annexure to mother’s affidavit page 17 [2]

   [7] Annexure to mother’s affidavit page 19 [21]

   [8] Annexure to mother’s affidavit page 20 [23]

7. On 27 July 2012 the father also entered a Counter-Affidavit Regarding Relocation in M County[9] to the effect that he objects to the relocation and modification of the custody order and requested to be heard.  This is presumably in response to the mother’s notification of 11 July 2012.

   [9] Annexure to mother’s affidavit pages 37 to 38

8. The mother has made known her objection to Ms Gardner acting as the father’s attorney on the basis that she sought advice from her.  This court regulates the conduct of officers of the court, including lawyers (attorneys) before the court. However, it would be wholly inappropriate for me to accede to the mother’s application to restrain Ms Gardner, an attorney practising before a court in the United States.

9. On 1 August 2012 the father served the wife, through their attorneys in the United States, with a Complaint for Divorce dated 25 July 2012[10] filed on his behalf by Mr Marks in the District Court of Clark County, Nevada in Case No. D-12-467065 Dept. No. H.  In the complaint the father seeks a divorce and also that he have “sole legal and physical custody of the minor children in the State of Nevada”, that the mother pay child support and an equal division of community property and community debts.  In the father’s affidavit in support of his divorce complaint, the father deposes, inter alia, as follows:-

   [10]  Annexure to mother’s affidavit pages 43 to 49

   18.That the Australian court ordered [the mother] to return to the United States.

   19.That the Australian court stated that it does not have jurisdiction to order which city and state the [mother] must return to but gave [the mother] the choice of where she would like to return in the United States.  Initially, [the mother] choose Maryland, but then the Australian judge said that Maryland would not have jurisdiction and that she should go to Pennsylvania.  [The mother] then decided upon Pennsylvania.

   20.That I believe the proceedings in Australia were biased in that the court would not consider my position because the Attorney General in Australia did not put my position properly before the court.  That Nevada (sic)

   21.That throughout the entire Hague Convention proceedings I was never allowed and/or given direct contact with the Attorney General’s office in order to ensure that they were aware of my position.

   22.That the return of my children to the United States has been hindered because the Attorney General’s office would not allow [the mother] to renew [the younger child’s] passport.

   23.That even though return has been ordered, we must now wait for [the younger child’s] US passport to be renewed before they can come back.

   24.That I believe [the mother] is using this additional time to request relocation from a court in Pennsylvania in the hopes of not having to return to the United States.

   25.That I am requesting that this Court enter an Order that [the mother] return to [Nevada] with our children immediately and grant temporary physical custody to me.  Once the children are returned, [the mother] and I should be ordered to attend FMC to formulate a parenting agreement.

10. No doubt there will be many factual disputes between the parents as and when this matter finally gets to a court of competent jurisdiction (somewhere) in the United States.  I accept that people can have very different recollections of the same events.  However, notably:-

    a)The Family Court of Australia is a superior court of record exercising specialist jurisdiction in family law matters. All proceedings are transcribed and the transcript can be purchased by a party to the proceedings.

    b)The court did not say “that [the mother] should go to Pennsylvania”.

    c)The father and his attorney, Mr Marks, attended the final hearing by video link and, save for a few minutes when the link failed, saw the proceedings entirely.

    d)The father and his attorney, Mr Marks, actively participated in the proceedings in which the safe harbour order was made by conferring privately with counsel for the State Central Authority over its terms on two occasions and then the father initialled each page of the typed minute and transmitted it back to the court.

    e)The father consented to the safe harbour order in the presence of his attorney, Mr Marks.

    f)At no point did the father or Mr Marks seek to be heard on the terms of the safe harbour order or otherwise.

    g)It was open to the father to appeal return order if he considered that the State Central Authority failed in its duty to prosecute the return case adequately or without proper regard to his interests but he has not done so.

    h)The father was linked into today by telephone to listen to all of the proceedings and was represented by his Australian lawyer, Ms Campbell. No application was made for me to recuse myself on the basis of apprehended bias.

11. The father deposes at [6] that “I would frequently fly out to Pennsylvania to visit with my family”.  In the Hague returning proceeding it was common ground that the family lived in Nevada for a little over two years prior to the mother and children going to Pennsylvania.  Further, that during the seven months that the mother and children lived in Pennsylvania, from 10 November 2010 to 16 June 2011, the father visited on only three occasions and the family met once in London in March 2011.  The mother and children did not return to Nevada.  This was the context in which the mother volunteered to return to the United States but evinced her intention not to return to Nevada.

12. By letter dated 3 August 2012[11] the mother’s attorney in Pennsylvania, Mr Daniel Clifford of Law Firm W, notified the mother’s lawyers in Australia inter alia that:-

    [The father] is objecting to having the Australian Order registered in [Pennsylvania on the basis that he believs Pennsylvania does not have jurisdiction over the custody matter.

    It is my opinion that [the father] could have permitted the Registration to be filed with the Court and still preserved his objections with regard to jurisdiction in Pennsylvania. This would have at least provided compliance with the [safe harbour order] for Registration and permitted the Court here to then proceed to determine custody jurisdiction as between Pennsylvania and Nevada.

    [11] Annexure to mother’s affidavit pages 40 to 41

13. Notably, there is no expert evidence from the father or from the State Central Authority which contradicts Mr Clifford’s opinion that “[The father] could have permitted the Registration to be filed with the Court and still preserved his objections with regard to jurisdiction in Pennsylvania”.

14. By a Praecipe to Withdraw filed in the M County proceedings on Thursday 13 August 2012, the mother withdrew her intention to relocate which had been notified to the father by the letter of 11 July 2012.

15. The father’s proceedings before the District Court in C County Nevada, for divorce, an immediate change of custody in his favour and property settlement were returnable before the Court in Nevada on Wednesday 12 September 2012. By a Notice of Vacating Hearing dated 27 August 2012[12], the father’s lawyer represents that the “motion will be re-noticed and will be set for hearing once Defendant has resided in the United States for thirty (30) days after her return from Australia, in compliance with the Australian court’s order …”

    [12]  Annexure to father’s affidavit sworn 30 August 2012 [38] to [40]

16. On or about 27 August 2012 the mother filed an Averment of Consolidation[13] in the M County Court proceedings in which she stated, under the heading “Registration of the Australian Order in Pennsylvania”:-

    Mother acknowledges Father’s argument that the registration of the Australian Order in Pennsylvania does not amount to a final determination regarding which state, if any, has jurisdiction over this custody matter.

    [13] Annexure to father’s affidavit sworn 30 August 2012 at pages 23 to 36 [27]

17. The mother’s proceedings are returnable before the M County Court of Common Pleas, Pennsylvania on Monday 17 September 2012.  It is common ground that the mother will seek to confirm the registration of the safe harbour order and the father will seek to vacate the registration.  If the mother succeeds there will, presumably be a safe harbour order.  If the father prevails there will be no safe harbour order.

18. The younger child’s new passport was issued in mid-August 2012.  Absent the father’s challenge to the registration of the safe harbour order and the issue of the proof of acquisition of a motor vehicle for the mother’s use in Pennsylvania, the mother would have to return forthwith to the United States.

19. The mother says that she is prepared to return promptly once she knows that the safe harbour order is enforceable in Pennsylvania and will remain in force  until a court in the United States makes interim parenting orders having assessed the matter on its merits and with regard to the best interests of the children.  Counsel for the mother states that her client is fearful of the father proceeding to obtain orders which will compel her to deliver the children to him immediately they disembark in the United States which would be contrary to the safe harbour orders to which the parents agreed but consistent with his application to the District Court in Nevada that “this Court enter an order that [the mother] return to [Nevada] with our children immediately and grant temporary physical custody to me.”

Discussion

1. It is submitted on behalf of the mother that she is not trying to avoid the return of the children to the United States but that she seeks an orderly return with a modicum of security.  She also seeks a delay of the return for two weeks or immediately after the proceedings are returnable in Pennsylvania by which time she expects to know if the registration of the safe harbour order is confirmed.

2. It is submitted on behalf of the father that, for the time being, the safe harbour order is registered and enforceable and the mother must return the children immediately.  It is submitted that it is immaterial that, when the matter comes before the Court in Pennsylvania on 17 September 2012, registration of the order may not be confirmed and/or it may be vacated.  Ms Campbell contends that all the father was required to do was to cooperate with the registration of the safe harbour order as opposed to confirmation of registration.  I do not accept that submission.  The safe harbour order is, expressly and by implication, an order which will remain in full force and effect in Pennsylvania and elsewhere until such time as a court in the United States makes a further interim order setting out the parenting arrangements for the children which supersedes the safe harbour order.  On the facts and law presented to me currently, it appears inappropriate for the father to cause or permit the displacement of the safe harbour order otherwise than in favour of a superseding order made by a court which has had due regard to the interests of the children. That said, I am not confident that I have a comprehensive appreciation of the legalities of jurisdiction between the United States.

3. I am not persuaded of Ms Campbell’s assertion that the father had no choice but to contest registration of the safe harbour order on the basis that, if registration of the safe harbour order is confirmed, the State of Pennsylvania will be permanently seized of custody jurisdiction.  The father has not adduced expert evidence on that point despite having a lawyer in Pennsylvania (Ms Gardner) and one in Nevada (Mr Marks), let alone independent expert evidence.  The father deposes that[14] “I do not oppose the registration of the Austrlian Orders in Pennsylvania.  I oppose the mother seeking to achieve a strategic jurisdictional advantage through their registration.”  However, there is no evidence of the “strategic jurisdictional advantage”.

   [14] Father’s affidavit sworn 30 August 2012 [3]

4. It was submitted on behalf of the State Central Authority that “there is nothing to stop the mother for applying on 17 September 2012 for interim parenting orders from the court in Pennsylvania in the same terms” as the safe harbour orders.  That submission is even more flawed than the father’s position.  First, it is common ground that the hearing on 17 September is to confirm or to vacate the registration of the safe harbour order and not a merit based hearing about child custody or visitation.  Second, in the event that the registration is vacated or discharged and jurisdiction is not permanently seized for Pennsylvania by the M County Court, presumably, the mother would not be in a position to seek any parenting orders from the M Court at all.  Third, and very significantly, the purpose of the safe harbour order was to obviate the need for either parent to seek urgent holding orders pending an interim determination by the court of competent jurisdiction in the United States of parenting orders.

5. The father and the State Central Authority join in an allegation that the mother is delaying the return of the children to the United States.  I pause to reflect that, currently, that is not my impression.  The mother volunteered to return subject to appropriate conditions.  During the proceedings, she returned to the United States of her own volition to preserve her eligibility for employment within that jurisdiction.  She sought to get the younger child’s passport renewed to facilitate the return and desisted only at the insistence of the State Central Authority.  At the final hearing she had considered and detailed proposals for setting up her household in Maryland, near her aunt, including the location of an apartment and a nominated school for the children.  She engaged lawyers in the United States promptly after the final hearing and attended to registration of the safe harbour orders, to the extent that she was able, without apparent delay.

6. I note that the mother was advised by her lawyers in writing that the father was objecting to registration of the safe harbour orders by letter dated 3 August 2012 and her applications which are now before the Court were not filed until 20 August 2012.  In that respect, I understand that there was an earlier attempt by the mother’s practitioners to have the matter listed which failed but which was known to all parties.  When a matter comes back to my Chambers the return date is determined by my staff and not at the behest of the applicant party. Finally, it is notable that these proceedings were initiated by the mother and not any other party.

Conclusion

1. I am not persuaded to make any orders sought by the mother at this time.  Ms Stewart of counsel confirms that her client can be ready to leave on short notice but she would like a fortnight’s grace after everything is in place to do so.

2. Neither the father nor the State Central Authority have satisfied me that a condition precedent to return, namely registration of the safe harbour order, has been appropriately attended to by the father and that he is not the party who is, in point of fact, thwarting the exercise.  I may have concluded otherwise if the position of the father and/or the State Central Authority had been supported by expert evidence but that was not the case.

3. Absent some proactive step by the parents jointly, it appears that the optimal outcome is that the registration of the safe harbour order is confirmed on 17 September 2012 in terms that permit the parents to litigate the jurisdictional issue of which is the home state or the most appropriate state for custody proceedings to take place and for proceedings to ensue in whatever state that is found to be.

4. The proactive step that the parents could take, jointly, is to authorise direct communication between myself and a judge in the M County Court in Pennsylvania to ascertain how to bring about effective operation of the safe harbour order whilst preserving the rights of each parent to argue which state has jurisdiction. This is an opportunity for the parents.  It is not compulsory.  No communication will occur without their consent and the consent of the State Central Authority and I will not be critical of a party who does not wish to avail themselves of it.  However, absent some such step, I cannot see any point in relisting the matter before 19 September 2012.

5. For the above reasons, I will simply stand the matter over to 19 September at 4.30 p.m. and reserve liberty to the parties to list the matter for mention in the meantime.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 5 September 2012.

Associate: 

Date:  6 September 2012