Recent Hague Convention District Court Cases - Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022)

[Australia.] [Petition denied]

In Livingstone v Livingstone, 2022 WL 3699832 (District Court, D. Colorado,2022) the  Court concluded the children were habitually resident in Australia at the time of their removal. Petitioner failed to establish the other two elements of a prima facie case by a preponderance of the evidence. First, Petitioner failed to show what custody rights, if any, he retained under the Australian Family Law Act while the protection order was in effect—a prerequisite to establishing that the children’s removal was in breach of such rights. No evidence or testimony was offered at the hearing as to this matter. Given the breadth of the protection order, the Court declined to assume that such remaining rights were substantial enough that Respondent’s removal of the children breached his rights. Second, Petitioner failed to show he was exercising his custody rights at the time of removal. The Court acknowledged that a petitioner’s burden of proof on this element is minimal in the ordinary case. See Friedrich v. Friedrich, 78 F.3d 1060, 1066 (6th Cir. 1996) (“[I]f a person has valid custody rights to a child under the law of the country of the child’s habitual residence, that person cannot fail to ‘exercise’ those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.”). And the Court found there was no evidence that Petitioner ever clearly and unequivocally declared any intention to abandon the children. However, in addition to failing specify what custody rights he still retained, Petitioner  also failed to explain how he could exercise such rights while maintaining one hundred meters of separation between him and where the children live, work, or frequent, and without contacting them or arranging for others to contact them (other than through a lawyer) for a five-year period. Given this looming impossibility, the Court found that  Petitioner’s contention that he would continue to be exercising his custody rights but for Respondent’s wrongful removal and retention of the children was a fiction. In fact, because of the protection order, he was no longer exercising his custody rights at the time of removal.