USA – WALTON – 1996

USA – WALTON – 1996 (1996) (Return ordered) WALTON v WALTON, Mother took children to the United States. Father sought to have his child returned to Australia. (Mother had a son by a previous marriage) Court ordered the child returned to Australia.

Walton v Walton (S.D.Miss. 1996)925 F.Supp. 453






Dan M. Russell, Jr., District Judge

<* pg. 454> This cause is before this Court on the Plaintiff’s
Verified Petition and Request for Writ of Habeas Corpus pursuant
to the 1980 Hague Convention on the Civil Aspects of International
Child Abduction (“the Convention”) as implemented by the United
States Congress in the International Child Abduction Remedies Act
(“ICARA”), 42 U.S.C.  11601-11610.


Roy and Charlotte Walton met in Gulfport, Mississippi, in 1991
while both were employees of Waste Management of North America.
Charlotte subsequently quit her job with Waste Management, and on
June 15, 1991, the couple was married in Baldwin, Georgia.

There was one child born of this marriage, Lynley Walton, who was
born on December 16, 1991, in Stockbridge, Georgia. Mrs. Walton
has one child from a previous marriage, a boy, Christopher Lee
Cornett, who was born December 22, 1982.

Subsequently, the family moved to Houston, Texas, where Roy was
employed as a Division President with Waste Management of Texas.

According to Charlotte’s testimony, Roy informed her in June 1991,
prior to their marriage, that he had requested to be transferred
to Australia. The request was granted in September of 1994, while
they were living in Texas. Roy testified that he requested the
transfer in order to better his career and to allow his family to
see the world.

The parties’ testimony regarding the circumstances attending the
move to Australia is in dispute. Roy recalled that he and
Charlotte discussed the move and made the decision to do so
“jointly” with Charlotte participating in virtually every phase of
the move. He even testified that at a social gathering prior to
leaving Charlotte indicated that she was looking forward to the

To the contrary, Charlotte testified that the couple had been
experiencing marital difficulties since they lived in Georgia and
that she did not want to move to Australia and did not think it
was a good idea. She further testified that when she objected to
the move, Roy told her that he was going and intended to take
Lynley with him. In light of this, according to Charlotte’s
testimony, she decided to go with him.

Roy and Charlotte visited Australia briefly prior to the move and
in October of 1994 the family moved. Roy went first in September,
and Charlotte and the children followed in a short time after she
had tied up some loose ends in the States.

The Waltons initially relocated in Penrith, New South Wales, which
is near Sydney, where they resided for approximately six months.
Due to Roy being transferred, in April 1995, the family moved to
10 Moyston Court, Thornlands, Brisbane, where Roy is employed as
Disposal Manager at the Brisbane office of Pacific Waste

While in Brisbane the family leased a house and enrolled the
children in school and day-care. Both Roy and Charlotte obtained
driver’s licenses and operated vehicles in Australia, and
according to Roy’s testimony, the family went on vacations
together in Australia. Also, until their personal problems
worsened, the parties held a joint banking account in Australia

Specifically regarding Lynley, the testimony was uncontroverted
that she was covered by private health insurance obtained in
Australia and received medical treatment from Australian
physicians. It was further represented to the Court that the
family attended church together in Australia and that Lynley has
playmates there.

Although the specifics of their difficulties were not brought out
at the hearing, it is undisputed that the marriage further
deteriorated in Australia leading the parties to turn to the
Australian legal system. Roy <* pg. 455> appears to have sought
legal counsel first, and then Charlotte attempted to employ her
own separate counsel. Charlotte’s attempt was aggravated by the
fact that Roy stopped having his pay deposited in their joint
account, a move which he alleges was brought on by Charlotte’s
overdrawing the account. No further testimony was brought out on
this point; however, it is undisputed that the law firm which
Charlotte attempted to retain refused to assist her due to her
lack of funds.

After being denied assistance from the private firm, Charlotte
testified that she sought, without success, to obtain assistance
from Australian public legal services.

Regarding her financial condition, Roy testified that he would
have given Charlotte money if she had asked for it and that, in
fact, he offered to make an account available to her but that she
declined the offer. Charlotte testified that in order to make
necessary purchases she sold her car and used the proceeds. The
specifics as to the time period during which she was essentially
without funds were not developed at the hearing; however, it is
undisputed that in order to return to the States, Charlotte sought
and obtained money from her mother who resides in Gulfport,

Notwithstanding Charlotte’s inability to obtain separate legal
counsel in Australia, the couple did enter into arbitration and
although Charlotte maintains that she did not seek a divorce in
Australia, it is clear that the parties did begin negotiating
regarding the terms of their intended separation and about custody
of the children.

During the time that the parties were trying to come to an
agreement as to separation and custody of the children, Roy took
possession of Lynley’s passport, apparently to prevent Charlotte
from taking the child out of Australia. The testimony also reveals
that from approximately February of 1996 forward, the parties
separated within the house and that Roy and Lynley engaged in
leisure activities apart from Charlotte and Chris.

During February of 1996, Charlotte withdrew both of the children
from public school and day-care without informing Roy and on March
19, 1996, Roy received a call from the office of the United States
Consulate in Brisbane, informing him that Charlotte was attempting
to obtain a new passport for Lynley. Roy testified that he told
the individual not to allow Charlotte to leave the country and
informed him that the parties were in the process of mediation as
suggested by the Australian family court. Roy received the call at
approximately 3:00 pm and testified that even though he obtained a
restraining order from the Family Court in Brisbane, he was unable
to have it served upon Charlotte prior to 5:30 pm that same day,
at which time she and the children departed on a flight to the

On March 22, 1996, Roy petitioned the Family Court of Australia at
Brisbane to be awarded custody of Lynley and was awarded “interim
custody of the child.” Although that court was not presented with
the issue of habitual residence, it nonetheless found that Lynley
was “for the purposes of [that] proceeding,…ordinarily resident
in Australia.”

Since arriving in the United States, Charlotte and the children
have resided with Charlotte’s mother in Gulfport, Mississippi;
however, as she has only recently obtained employment, Charlotte
depends upon welfare and food stamps.

In an attempt to obtain the return of Lynley, Roy contacted the
Center for Missing and Exploited Children in Arlington, Virginia,
who in turn attempted to contact Charlotte by mail to an address
in GulfPort, Mississippi. According to information brought out at
the hearing, the letter was sent to an incorrect address and
Charlotte never received the letter of March 26.

On April 5, 1996, Charlotte filed her Petition to Establish
Custody of Minor Child and Related Relief in the Chancery Court of
the First Judicial District of Harrison County, Mississippi. That
court issued an order granting Charlotte temporary custody of
Lynley pending a final determination.

On April 15, 1996, Roy filed the subject petition in this Court
and a Writ of Habeas Corpus was issued that day requiring
Charlotte to appear before this Court on May, 13, <* pg. 456>
1996, to show cause why Lynley should not be returned to

In addition to the foregoing facts presented to the Court at the
hearing, the evidence also established that:

(1) during the one and one-half years that the parties resided in
Australia, Lynley resided with them;

(2) on two occasions while in Australia, Roy considered resigning
from his job and returning to the United States; however, he only
informed his employer of his thoughts An one occasion; and

(3) notwithstanding his thoughts to the contrary, Roy has decided
to remain in Australia for at least the term of his current
contract which expires in September, 1997.

Discussion of the Law

The Court and the parties are in agreement that the proceedings
are properly brought pursuant to terms of the 1980 Hague
Convention on the Civil Aspects of International Child Abduction
which treaty became effective in the United States on July 1,
1988, and which was implemented under the terms of the
International Child Abduction Remedies Act set out at 42 U.S.C.

Neither is it subject to dispute that the terms of the Convention,
specifically Article 3 thereof, dictate the issues to be decided
by this Court, to wit:

The removal or the retention of a child is to be
considered wrongful where–

(a) it is in breach of rights of custody attributed to a
person, an institution or any other body, either jointly
or alone, under the law of the State in which the child
was habitually resident immediately before the removal
or retention; and

(b) at the time of removal or retention those rights
were actually exercised, either jointly or alone, or
would have been so exercised but for removal or

The Court further notes that although the Convention terms provide
for the consideration of circumstances which, if properly
presented, would allow this Court to decline to return the child
to his or her state of habitual residence, as the
defendant/respondent herein has not raised those conditions, this
Court mill not herein address same.

I. Habitual Residency

Notwithstanding the seeming yet misleading apparent simplicity of
the task before the Court, this Court is compelled to comment upon
what it is prohibited from doing: Inquiring into and considering
the fitness of the parent into whose hands we must deliver a child
and in this case a parent whose Estates of residence is so far
removed both geographically and legally as to prohibit any
oversight by this Court.

The Court does not mean to suggest that Roy Walton is an unfit
parent or that Australian domestic law is inferior. What is meant
is that in matters dealing with welfare of children it is both
customary and desirable for the court which has taken jurisdiction
of the matter and which has issued orders regarding the child’s
welfare to retain such jurisdiction so that in the event that
circumstances present themselves indicating that a modification of
the previous order is appropriate, an order may in fact be issued
and enforced. Such inquiry is not allowed under the terms of the
Convention and if the foregoing conditions are met by a party,
unless the presiding court is the court in whose jurisdiction the
prevailing party resides and in which court the matters of custody
will be decided, the court will, in the event of a mistake-in-fact
though not in law, be powerless to effect a remedy. This being
said, this Court proceeds to act according to the terms of the
Convention as guided by opinions of other courts both here and

The principal difficulty presented to this Court is that of
deciding the habitual residences of the child, Lynley Walton, a
child who in less than five years has resided in three states of
the United States of America and in two states of Australia. Her
state of longest residence appears to have been Texas, with the
shortest time being spent in Mississippi. With respect to
Australia, she lived in New South Wales for approximately six
months and in Queensland for approximately a year. During all
those periods and in all of those locations Lynley, not
surprisingly, lived where she lived because that is <* pg. 457>
where her parents lived, with the exception of Mississippi where
she now resides for the first time with her mother.

Against the aforestated backdrop and with only the facts as set
forth previously, this Court is required to determine Lynley’s
“habitual residence.” The task is not made any easier by the
statement regarding such which is set forth in In re Bates, No.
CA122.89 at 9-10, High Court of Justice, Fam. Div’n Ct. Royal
Court of Justice, United Kingdom (1989):

No definition of Habitual residence has ever been
included in a Hague Convention. This has been a matter
of deliberate policy, the aim being to leave the notion
free from technical rules, which can produce rigidity
and inconsistencies as between legal systems.

. . .

It is greatly to be hoped that the courts will resist
the temptation to develop detailed and restrictive rules
as to habitual residence, which might make it as
technical a term of art as common law domicile. The
facts and circumstances of each case should continue to
be assessed without resort to presumptions or

See Friedrich v. Friedrich (6th Cir. 1993) 983 F.2d 1396.

Although the court in In re Bates, in stating that the facts and
circumstances of each case should be assessed, it would appear to
recognize a degree of discretion to be accorded the courts in
deciding the question, it is also quite clear from the case law
that the rights and wrongs of the actions of the respective
parents are not before us for disposition on the merits.”
Friedrich, at 1402.

Probably the most confusing, though often quoted, statement
regarding how one determines habitual residence is that penned by
the Friedrich court, to wit: to determine the habitual residence,
the court must focus on the child, not the parents, and examine
past experience, not future intentions. Id. at 1401. Of somewhat
greater help is that court’s statement that “[o]n its face,
habitual residence pertains to customary residence prior to the
removal. The court must look back in time, not forward.” Id.

In an effort to defeat the seemingly inescapable conclusion; under
Friedrich, that Queensland is the state of habitual residence, the
defendant/respondent relies upon In re Ponath (D. Utah 1993) 829
F.Supp. 363, 367, wherein the court, citing to In re Bates, supra,
at 10, stated that “[t]he concept of habitual residence must, in
this court’s opinion, entail some element of voluntariness and
purposeful design. Indeed, this notion has been characterized in
other cases in terms of ‘settled purpose.'”

This Court does not find the Ponath case to be factually close
enough to the case at bar to warrant its adoption as authority for
the defendant’s argument. In Ponath the child and mother were
clearly only visiting in Germany and the child had extensive
connections with Carbon County, Utah, up until the time of the
“visit” to Germany. In addition, it is also clear that the
mother’s attempt to return to the States was initially frustrated
by verbal, emotional and physical abuse by her husband.

Clearly, even if we accept Mrs. Walton’s statement that she did
not wish to move to Australia, it cannot be seriously argued that
the move was portrayed to her as a mere visit. Neither does the
testimony justify a finding that Mr. Walton coerced her to stay,
save possibly in the end, and then not in the way presented in

In short, the evidence does not support a finding that the
Waltons’ life in Australia, as well as that life experienced by
Lynley while in Queensland, lacked “settled purpose.”

In addition to the foregoing and in light of the undisputed fact
that Lynley has never, prior to her removal to Mississippi,
resided in this state, this Court cannot declare Mississippi to be
the state of “habitual residence.” Thus it seems clear that only
Texas and the State of Queensland are the only plausible
alternatives. However, as no evidence is before the Court which
would justify a finding that Texas qualifies as Lynley’s state of
habitual residence, the only legally justifiable alternative is

Having been compelled by the law and facts to find that the state
of habitual residence for Lynley was, prior to her removal <* pg. 458> to Mississippi, Queensland, Australia, it only remains for
this Court to determine whether the second prong of Article 3 of
the Convention has been satisfied. More specifically, in order to
finally determine whether the removal and retention of Lynley was
Wrongful, the Court must determine if, under Australian law, Roy
was entitled to exercise custodial rights with respect to the

II Custody Rights

The United States Court of Appeals for the Third Circuit, while
examining a district court opinion in a similar case, set forth in
Feder v. Evans-Feder (3rd Cir. 1995) 63 F.3d 217, 221, as follows:

The conflict of laws rules as well as the international
law of the child’s habitual residence apply in
determining a parent’s custody rights. Elisa Perez-Vera,
Explanatory Report by Elisa Perez-Vera, in 3 Actes et
documents de la Quatorzieme session 426, 445-446 (1982).
(Footnote omitted).

The Feder case, as it involved a child determined to be an
habitual resident of Australia whose petitioning parent asserted
custodial rights under Australian law, is both instructional and
relevant. Continuing, the Feder court set forth as follows:

We must, therefore, initially determine what law
Australia would initially apply in this case. Among the
documents included in the minutes of the discussions of
the Fourteenth Session of The Hague Conference are a
“Questionnaire on international child abduction by one
parents, and the “Replies of the Governments to the
Questionnaire”. 3 Actes et documents de la Quatorzieme
session 9, 9-11, 61, 61-129 (1982) [“Convention
Documents”]. Australia’s reply to questions 17 and 18,
which ask respectively “[w]hat are your choice-of-law
rules in child custody cases?”, and “[a]re there any
norms of constitutional or other fundamental law in your
country which override the usual choice-of-law rules in
custody cases?”, Convention Documents at 11, provides in
pertinent part that Australian courts apply Australia’s
Family Law Act 1975 to custody questions:

Under the Family Law Act [1975], if the court has
jurisdiction to hear an application for custody of, or
access to, a child … it applies the provisions of the
Act governing the determination of custody and access
applications regardless of the nationality or place of
domicile or habitual residence of the child.

Convention Documents at 65.

Id. at 225.

Continuing, as to that petitioner’s rights, the Feder court
further stated:

Thus, Mr. Feder’s custody rights are determined by
Australia’s Family Law Act 1975, of which we may “take
notice directly … without recourse to the specific
procedures for the proof of that law….” Hague
Convention, Article 14. Under the Act, in the absence of
any orders of court, each parent is a joint guardian and
a joint custodian of the child, and guardianship and
custody rights involve essentially the right to have and
make decisions concerning daily care and control of the
child. Family Law Act 1975 s 63(E)(1)-(2), (F)(1). See
also Hague Convention, Article 5a. (Footnote omitted).

Id. at 225-226.

Although the testimony and exhibits establish that the orders were
entered in the Family Court of Australia at Brisbane, and
specifically, Order 22.3.96 on March 22, 1996, granted Mr. Walton
custody of Lynley, such order was not granted prior to the child
being removed from Australia by Mrs. Walton. Thus, even though
neither order, both of which reference Family Law Act 1975
generally, hurt Mr. Walton’s case, they are not relevant to this

As it cannot be seriously disputed that under the applicable law
and facts before this Court Roy Walton enjoyed custodial rights as
to Lynley and that he was exercising those rights up until the
time that the child was removed to Mississippi, the
plaintiff/petitioner has met both requirements under Article 3 of
the Convention.

III. Stipulations

At the conclusion of the hearing on the merits, the
plaintiff/petitioner, upon consider- <* pg. 459> ing the financial
condition of the defendant/respondent, agreed that should this
Court find for him, he would waive the requirements regarding
costs and attorneys fees which would normally be imposed by the
Court pursuant to the terms of 42 U.S.C.  11607 (b)(3).

The petitioner further agreed to provide Mrs. Walton with air fare
to Brisbane to be used at her discretion, whether to appear to
contest any proceedings regarding Lynley or otherwise. Although
additional details were not made of record, it is the perception
of the Court that the offer was for only one trip. Mr. Walton also
agreed to pay the fees owed by Mrs. Walton to the law firm of
Clayton Utz of Brisbane, Australia, in the amount of five hundred
(500) Australian dollars.


Based upon the law and facts properly before this Court, the Court
finds that the child, Lynley Walton, was wrongfully removed and
retained by her mother, Charlotte Cornett Walton, and that said
child shall be returned to her state and country of habitual
residence, Queensland, Australia, without delay.

In order to facilitate the Court’s ruling in this matter, counsel
are hereby instructed to submit a Final Judgment forthwith.






This cause having come on for hearing before this Court on the
Plaintiff’s Verified Petition and Request for Writ of Habeas
Corpus pursuant to the 1980 Hague Convention on the Civil Aspects
of International Child Abduction as implemented by the United
States Congress in the International Child Abduction Remedies Act
(“ICARA”), 42 U.S.C.  11601, et seq., and the Court having
considered the evidence in the matter before it finds that it has
jurisdiction of this cause and of the parties and has rendered its
written opinion, and in accordance with said opinion enters its
Final Judgment as follows:


Australia was the habitual residence of the minor child of the
parties, Lynley Claudette Walton, immediately prior to her removal
to Mississippi from Australia.


Charlotte Cornett Walton shall immediately return the child to Roy
Walton for return to the child’s habitual residence in Australia.


Lynley Claudette Walton shall be permitted to return immediately
to Australia in the custody of Roy Walton in whose care and
control she shall remain pending a final finding as to custody by
a court of proper jurisdiction.


Return of Lynley Claudette Walton shall take place at the United
States Courthouse, One Government Plaza, 2nd Floor, 13th Street
and 30th Avenue, Gulfport, Mississippi, on Thursday, May 16, 1996,
at 1:30 p.m.


Pursuant to Roy Walton’s stipulations made in open court, Roy
Walton shall (1) provide Charlotte Cornett Walton, upon her
request, with either airfare or an airline ticket to Brisbane,
Queensland, Australia, and (2) pay the attorneys’ fees owed by
Charlotte Cornett Walton to the law firm of Clayton Utz of
Brisbane, Queensland, Australia, in the amount of $500


Roy Walton has waived any right he may have under ICARA for
reimbursement by Charlotte Cornett Walton of the expenditures and
attorneys’ fees incurred by him as a result of the wrongful
removal from Australia and retention by Charlotte Cornette Walton
of the child i Mississippi.

SO ORDERED this the 15th day of May, 1996.

Dan M. Russell, Jr.