SUPERIOR COURT OF NEW JERSEY Courthouse, CN 900 Morristown, New Jersey 07960-0900 (201) 285-6434 Chambers of: David S. Cramp, Judge. August 28, 1989 Dalena, Dalena & Allocca, Esqs. Jacoby & Myers, Esqs. 181 Main Street 26 Park Place Madison, NJ 07940 Morristown, NJ 07960 Re: Becker v. Becker Docket No. FD-14-14-90 Gentlemen: This will constitute the decision in this matter. This is an application by plaintiff, Julie Ann Becker in accordance with the terms of The Convention on the Civil Aspects of International Child Abduction, done at The Hague on October 25, 1980 (The Hague Convention). On July 1, 1988, The Convention became effective between the United States and Australia. Jurisdiction is conferred upon this Court by the International Child Adduction Remedies Act of April 29, 1988, Pub. L. No. 100-300. 42 U.S.C.A. Sec. 11601, et seq. Section 4(a) of that statute states that the Courts of the States and the United States District Courts shall have concurrent original jurisdiction of actions arising under The Convention. The facts are not in dispute. It appears that the parties were married on February 18, 1978 in Medford Lakes, New Jersey and were, at that time, residing in Cherry Hill, New Jersey. They lived in the State of New Jersey from 1978 to 1985. In July, 1985, the parties moved to Australia. Plaintiff is an Australian citizen, born on February 14, 1949; defendant is an American citizen born on April 19, 1948. Defendant has permanent residency status in Australia. Two children were born of the marriage, Annamarie, born March 3, 1980 and Karl, born October 20, 1981. Both children lived with their parents, first in New Jersey, then in Australia until December 15, 1988. At that time, defendant left Australia, ostensibly to vacation in the United States. It had been planned that all of the family would participate in the vacation; however, marital difficulties arose before they were to leave on the vacation, and it was decided that plaintiff would remain in Australia. While there is no evidence that defendant intended not to return to Australia, he ultimately determined that he and the children would stay in the United States. Shortly after defendant advised plaintiff that he would not be returning to Australia with the children, she made an application in accordance with The Hague Convention on March 13, 1989. On March 14, 1989, she also applied to a Family Court in Australia for custody and on that same date, she was granted temporary custody. Defendant filed for custody in this Court on June 21, 1989. On July 6, 1989, plaintiff filed for custody by way of Order to Show Cause. The original application sought custody and also sought to bar consent of defendant, an Order was entered prohibiting defendant from removing the children until further Order of the Court. On July 17, 1989, plaintiff petitioned the Court for the return of the child pursuant to the Hague Convention. One of the primary objects of The Hague Convention is "to secure the prompt return of children wrongfully removed to or retained in any Contracting State", Art. I(a). The first question to be answered under The Convention is whether the removal or retention of the children was wrongful. Art. III of The Convention states that the removal or retention is to be considered wrongful where "it is in breach of rights of custody attributed to a person either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention. In this case, the children were habitually resident for a period of three and one-half years in Australia immediately before they were removed. To constitute a wrongful removal or detention does not require that the applicant must show any any Criminal wrongdoing. Rather the thrust of The Convention is that the act is wrongful in the civil sense; that is, the interference with custody by taking and/or retaining the children from the country in derogation or the remaining spouse's rights. Here, as parents without any court order, both parties would have joint custody. Under Australian law, according to an affidavit filed by an attorney practicing in Australia, both parties in this case would be entitled to joint custody and guardianship. They were living together and both exercising custody. Had he not removed the children, both would still be exercising custody. While the evidence does not suggest that the removal here was wrongful, this Court is convinced that the retention of the children against the will of plaintiff was wrongful within the intended meaning of Art. III of The Hague Convention. There are certain exceptions that must be taken into consideration in interpreting The Hague Convention. Art. XIII(a) provides that a Court of the requested State is not bound to order the return if the person seeking the return of the child was not actually exercising the custody rights at the time of. removal or retention, or has consented to or subsequently acquiesced in the removal or retention. In this case, the facts are not in dispute; plaintiff was actually exercising custody, Jointly with defendant, and while she may have acquiesced in the removal, she does not acquiesce and did not acquiesce in the 'retention. Under the Convention, defendant would have the obligation of proving this exception by a preponderance of the evidence. He has not done so. The second exception is under Article XIII(b) wherein it is stated that a Court of the requested State is not bound to order the return of the child if there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. Defendant would be required to prove those facts by clear and convincing evidence under the terms of the Convention. Again, defendant has failed to do so; indeed, there is no suggestion whatsoever of any harm to the children if they were to be returned to Australia. There is another exception in Article XX of The Convention, but it simply does not apply in this case. Accordingly, the Court is satisfied that plaintiff has established the right to return of the children to Australia under the terms of The Hague Convention. What is left to determine is whether that right has been waived by plaintiff's having conferred jurisdiction upon this Court to decide the issue of custody. The Hague Convention is clear that The Convention applies irrespective of substantive aspects of the underlying custody dispute. Consequently, it is clear that The Convention would require the return of a child even though the requested State may have entered an Order granting custody to the person who has removed the child. However, it is not altogether certain from the terms of The Hague Convention whether the voluntary conferring of jurisdiction upon the Court of the requested State by both of the parties to decide the issue of custody would constitute a waiver of Convention rights. Both of the Complaints in this action ask this Court to decide the issue of custody. While it is a fact that plaintiff has sought to confer jurisdiction on this Court, it would also appear that the act of conferring jurisdiction on this Court was not intended to forego any rights under The Hague Convention, nor to actually seek a custody determination by this Court. Rather, as plaintiff's counsel has indicated, the custody action here was an "alternative" action. While its purpose is not altogether clear, there is some support that it was brought to prevent the removal of the children to Florida. The Court notes that the application under the Hague Convention was initiated in March of 1989 and was never abandoned; it proceeded at a proper pace. Accordingly, the Court finds that plaintiff did not intend to give up her rights under The Hague Convention by bringing the custody action in this Court. " In accordance with the intent of The Hague Convention, this court is compelled to direct that defendant return the children to Australia and to the custody of plaintiff forthwith. Counsel for the plaintiff should submit an appropriate Order. The Court awards petitioner costs and counsel fees in accordance with Section VIII(b)(3) of The International Child Abduction Remedies Act. Very truly yours /s/ David S. Cramp David S. Cramp, J.S.C.