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In Walton v. Walton, 925 F. Supp. 453 (S.D. Miss.,
1996), the parties’ child, Lynley Walton, was born on December 16, 1991,
in Stockbridge, Georgia. 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 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 move.
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.
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, where they resided for approximately six
months. In April 1995, the family moved to Brisbane.
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. Until
their personal problems worsened, the parties held a joint banking
account in Australia.
During February of 1996, Charlotte withdrew both of the children from
public school and day-care without informing Roy and on March 19, 1996,
departed on a flight to the States.
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."
On April 15, 1996, Roy filed the petition.
The Court pointed out that 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.
The evidence did 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 light of the undisputed fact that Lynley had never, prior to her
removal to Mississippi, resided in this state, this Court could not
declare Mississippi to be the state of "habitual residence." Thus only
Texas and the State of Queensland were plausible alternatives. As no
evidence was before the Court which would justify a finding that Texas
qualified as Lynley's state of habitual residence. The only legally
justifiable alternative was Queensland.
The Court determined the rights of custody were to be determined by
Australia's Family Law Act 1975. 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).
Orders were entered in the Family Court of Australia on March 22,
1996, which granted Mr. Walton custody of Lynley. Such order was not
granted prior to the child being removed from Australia by Mrs. Walton
and were not relevant to the question.
The Court found that 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 Court held that the child was wrongfully removed and retained by
her mother and that she should be returned to her habitual residence,
Queensland, Australia.
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