*1 No. Dec. 30816. 1978.] [L.A. Petitioner, MILLER, v. ANN
PATRICIA COUNTY, OF LOS ANGELES SUPERIOR COURT THE Respondent; MILLER, Real in Interest.
HARRY MAURICE Party *2 Counsel Merrell, Jr.,
Dietsch, Gates, Merrell and Brownell Peti- Morris & tioner. *3 of Petitioner. M. Curiae behalf Bodenheimer as Amicus
Brigitte for No Respondent. appearance Real Hunt, Hart, Albert H. for
Ball, Brown & Baerwitz and Ebright Party Interest. in
Opinion McGuinness, Miller,
CLARK, J. Patricia Ann Patricia Ann formerly writ of to court vacate its order of 10 seeks mandate to compel respondent husband, her to deliver to her December 1976 former M. Harry directing Miller, of their two minor children an Australian custody pursuant decree. custody married in 1962. After
Patricia and were in California in Harry living Zealand, in 1964 where their two New moved Australia children they Australia, On 9 1967 the was dissolved in were born. marriage February visitation the court awarding custody rights Harry. restrained for court custody change Denying application from Australia without leave of children both removing parents court, to be delivered their attorneys, required parents’ passports would be entitled Patricia leave Australia that should Harry provided “forthwith” to custody. visitation, Patricia moved to
With subject agreement Harry’s In 1972 Patricia remarried and with the children 1968. Los Angeles husband, citizen, an Australian with her moved to Australia present she and entered the same time another two children. About Harry and for his all for visitation rights arranging agreement providing also remarried 1972. schooling. Harry children, one enrolled
Pursuant to the 1972 Harry agreement, Miles, in a school in From 1972 to as boarder a.weekly private Sydney. March shared custody holiday parties during periods, of the children for three six-week while
Harry custody periods Patricia was on foreign trips. Patricia,
In 1976 without Miles’ enrollment consulting Harry, changed that of a filed student. an for of both day alternative, for or in the with Miles joint custody attending boarder, school as to be weekly Harry continuing responsible , each access schooling parent having arrangements, specified rights. sole should Patricia leave the area. Finally, Harry sought ordered, On 19 March extended the court following hearings, over Patricia’s the children for three objection, *4 weeks while went Patricia abroad.
When returned entered an In Patricia the accor- parties agreement. dance with the five of the the court first on 3 agreement, paragraphs May children, ordered that Patricia have that have access Harry alternate weekends from and certain Friday night Monday morning vacations, and school that child and specified holidays Harry pay support, the to the all court on matters on parties general liberty apply seven notice. days’ the court order did not set forth the next four
Although paragraphs the the court the “noted” further agreement, in provisions agreement. Those in would have paragraphs provided part Harry custody during Patricia was out of Australia without any period Harry for would school and the would responsible arrangements, parties give one month’s notice counsel of overseas through trips involving children. her
Patricia’s solicitors remained of record. Between 25 solicitors for a and 16 solicitors dozen letters July parties exchanged relating visitation, to child and trips. support, leave with
In Patricia decided Australia permanently children. to inform either or the court of her Deliberately failing intention, on 23 while she the children were middle departed of a term. school
27On was informed school officials that the children had July Harry not been in school since 22 His and the next efforts to learn July. day whereabouts Patricia and children were fruitless. on 27 the office of Patricia’s solicitors solicitor July. telephoned Harry’s Patricia, had Mr. out of who was solicitor Twigg, Sydney represented and Mr. on the 27th 28th were and communications partner, and so Mr. unable to locate Patricia advised Doolan. Doolan was solicitor following morning. the Australian court solicitor filed an
On 28 July Harry’s application Australia and an order leaving restraining seeking In her surrender children’s support passports. compelling had been an affidavit that the children filed stating application, school; to locate Patricia the children taken out of that his efforts unsuccessful; emotional that she could been “very person” children; there discord of conduct detrimental capable America; leave and that view of her she marriage, existing might fit and to have she was her behavior in early person proper children without influence stabilizing present husband. affidavit served on Patricia’s were
Copies Mr. Doolan stated that he had been solicitors 12:40 July. p.m., *5 instructions, and had no unable to locate Patricia specific requesting solicitor to so advise court. Harry’s court,
At 2:45 28 after the matter ex July parte, signed p.m., of the children to The order an order custody Harry. awarding temporary was returnable on 3 1976. The order was served made August Mr. solicitor on 29 that he Patricia’s solicitors. advised Twigg whereabouts, had of Patricia’s she and second no knowledge had and that the latter was unaware of where she husband also separated, be. might
On failed and there was no 3 Patricia to request August appear of the children. The court warrants for continuance. issued custody Los On 22 1976 initiated October contempt proceedings that under Australian Evidence Court. Angeles Superior presented of and that cases on the solicitor record law notice could served The court orders. the court could issue ex custody superior urgency parte valid and 28 were that the orders 3 determined to The Patricia violated them. court ordered deliberately fees, and to deliver children attorney pay custody travel, and other expenses.
928
While aware of the Australia court orders Patricia has by August, made no effort to the Australian or to seek reopen proceedings, appeal, modification of the order.
Civil Code section of the Uniform Child Jurisdic- part Custody Act, tion “The title extend provides: general policies international area. The of this title provisions relating recognition and enforcement of decrees of other states custody apply decrees and decrees institutions similar in nature involving legal rendered authorities of other nations if reasonable by appropriate notice and to be heard were to all affected opportunity given persons.”
Patricia contends she was not reasonable notice and given heard Australian and that opportunity proceedings Australian order should be denied enforcement because its was to her for the children from purpose assertedly punish removing Australia.
Prior to the 1963 enactment of the now found in Civil Code provision that, section California law when there was aff provided attorney record, were motions to be served on the modify custody attorney Proc., (Code 1015). Civ. was held § constitutional because provision it is that the “established that once the court has may Legislature provide over the matter of a and over the jurisdiction subject proceeding person affected, bind such orders made after he has party may person by left state.” v. (1943) Cal.2d P.2d Reynolds (Reynolds [134 see 38 State Bar J. 639 251]; (1963).) has Although Legislature *6 rule, the former did not constitute unreasonable changed practice addition, notice. In be must out that Patricia’s were solicitors pointed her still on behalf the 3 order as late 16 12 as acting respecting July, before service of the 28 days July application.
More Patricia’s contentions are based on a mischaracteri- importantly, zation the Australian orders of 28 warrants of 3 It is August. obvious that order was not intended to effect a in permanent change Rather, it a awith return date. The custody. provided change order would have a Hariy contemplated custody pending hearing he and determination whether or Patricia should have The custody. short, for at most six period contemplated Harry’s custody days The was successful children. interim Hariy immediately locating heard, order far Patricia a denying designed right permit
929 still available issue—a heard Patricia full to be right right court. her before Australian for Civil Procedure 527 Code of section restraining provides temporary In in a short United Farm to be ex returnable orders period. granted parte Court 14 Cal.3d Workers America v. [122 Superior 877, court held that in First Amendment P.2d Cal.Rptr. 1237] reasonable, cases, a order make must restraining seeking party fashion, notice, effort in faith to in either formal or informal good give that the either the defendant or his counsel. court recognized held (Id., 913-914.) will often be immediately. pp. promptly—perhaps A that the requirement concurring dissenting opinion suggests cases, efforts to should in all reasonable notice including give apply event, with the In it is clear that counsel was served cases. were made to locate Patricia. and reasonable attempts must Section appear injury” requires “great irreparable notice. Earlier in order will issue without before restraining temporary Australian court had been before by litigation triggered attendance, in violation of her school Patricia’s assertedly changing ¡ that he would be all school responsible agreement of that for the children. In settlement litigation arrangements would have for all school responsibility again agreed the children from without school Withdrawing arrangements. Harry’s consent as shown his affidavit was an violation of her by apparent addition, excuse, In absence of some agreement. explanation withdrawal of children from school their continued absence young be viewed must as detrimental to the children. presumptively affidavit also reasonable cause to believe Patricia had left provided Australia in violation of notice 30-day provision agreement with the children would frustrate disappearance performance visitation ordered the court. harm was shown rights by by Irreparable affidavit.
One main factor to considered judge determining order without full contested whether to issue an interim restraining *7 (United the the restrictions Farm is of sought. hearing severity injunctive Court, v. 14 Cal.3d America Workers supra, Superior of substantial custodial been 914.) given previously on alternate the order he entitled to Under custody rights. on certain weekends from holidays, Friday night Monday morning, abroad. In vacations and Patricia’s and for extensive trips during periods the of extensive custodial the order him rights granting light of further the issue not be pending hearing custody may custody a considered severe restraint.
areWe satisfied that the Australian court order granting Harry custody further did not a issue involve pending custody deprivation of reasonable notice and to be heard. the Because of opportunity order, there no nature is basis the claim that temporary Australian court intended to Patricia. punish
Our conclusion that the Australian court order granting custody further should be enforced California has the pending proceedings effect of further held in Australia to determining hearings may the Australian orders. Such result is in full accord with modify custody Code, of the Uniform Child Act. (Civ. Jurisdiction Custody purposes et § 5150 seq.)1
The alternative writ and the is writ denied. discharged peremptory Mosk, J., J., Manuel, J., Richardson, concurred.
BIRD, C. J. dissent. I respectfully
Petitioner, Patricia Ann McGuinness seeks a writ Miller), (formerly of mandate Court of Los compel Superior County Angeles 10, 1976, of vacate its order December deliver to her directing “(I) 1CivilCode (a) section 5150 of are provides: general this title to: purposes [¶] Avoid and conflict with jurisdiction competition courts of other states in matters child of which have in the custody resulted of children from state past shifting to state (b) harmful effects on their Promote with the courts other well-being. of cooperation [¶] states to end that decree custody is rendered in that which best state can decide (c) case in the interest of the child. Assure of a litigation custody concerning [¶] child take state with place which the child and his have ordinarily where family the closest care, connection evidence significant his concerning protection, training, available, personal relationships most and that state readily courts this decline exercise of another state. when child and jurisdiction closer connection with family (d) over Discourage controversies child continuing [¶] custody interest the child. obtain home greater stability of environment of secure family relationships (e) Deter abductions and other unilateral removals children undertaken to [¶] (f) awards. Avoid other relitigation decisions of states in [¶] state insofar as feasible. (g) Facilitate the enforcement decrees of other [¶] (h) states. Promote and expand information and other forms of exchange [¶] mutual assistance between the courts of this state and those of other states concerned with (i) the same child. To make uniform the law of those states which enact it. This [¶] [¶] title shall be construed to stated in promote this section.” general purposes *8 husband, Miller, two Maurice of their minor former Harry custody Court of the Law of decree children Family custody pursuant She contends that Australian decree Australia.1 awarding custody not and enforcement children to the father is entitled recognition California because the decree was issued without with (1) compliance of the Uniform the due Child Jurisdiction requirements Custody process Code, and Act 5150 et hereafter the the Fourteenth (Civ. Act) § seq., Amendment United States and the decree was Constitution it her in that was issued rather than to serve best punish punitive issue, Since the interest of children. first contention disposes to consider the second. necessary I citizen,
Patricia, United States and an Australian a native-born Harry, citizen, 23, married were in California on October 1962. Following 1964, lived New Zealand until when in moved to marriage, they they Miles, The two Australia. children now marriage, age Justine, 12, were born children now Australia. The are age Sydney, and the because citizens of both Australia United States of the status of at (8 their the time of their birth. U.S.C. parents’ citizenship 1401(a)(7).) § At that
The Australia on 1967. dissolved February marriage time, Patricia the Australian the children to with court custody granted In to the Australian visitation May Harry Harry. rights applied court for of the children. The court denied his the children to awarded Patricia visitation again rights The decree restrained both and Patricia from Harry. explicitly the children out Australia without leave the court and taking to be delivered to their required passports parents respective court further ordered in the event left attorneys. Australia, would “become entitled forthwith” children.
In the children Patricia moved with Harry’s approval, to Los could visit children Los Angeles. They Hariy agreed notice, time later reasonable when children Angeles upon which issued an order to 1Petitioner first relief from Court of show sought Appeal, cause but thereafter denied relief. This court then for hearing. granted petition *9 932 older,
were could visit in Australia.2 14, 1972, On they Harry April husband, her Patricia married also an Australian citizen. Follow- present Patricia, husband her two children moved ing marriage, Australia. 26, 1972, Australia,
On and Patricia executed a written Harry April The that Patricia would retain agreement agreement. provided children,” children but Patricia were out of Australia “without the the children would also that stay Harry. agreement provided would have visitation on alternate weekends and certain Harry rights and that he would be for the holidays responsible schooling arrangements of the children. The was not made court order and agreement part referred to the neither 1967 decree nor to the informal agreement between and Patricia in effect while Patricia lived in Harry the United States. and Patricia abided 1972 until
Hariy by April agreement February 1976, when were unable to a resolve they over the dispute schooling for Miles. In arrangements had enrolled a Miles as January Harry boarder in a school in weekly the 1972 private Sydney, pursuant However, Patricia, without agreement. February consulting Miles terminated as a boarder and enrolled him aas Harry, weekly day student.3 actions, of Patricia’s filed an learning on
Upon Harry in the Australian Law Court for February Family alternative, both or in the with Patricia joint custody conditions: (1) Miles attend a pursuant school as following boarder, Justine a student; as (2) continue to weekly day for all children; for the responsible arrangements (3) schooling certain access both have sole rights granted parents; airline, 2As member of the a board of of an directors Australian Harry is entitled to free and he no transportation, experienced difficulty the children in Los visiting Angeles numerous occasions during period. 3Patricia, in a declaration under signed penalty filed in the perjury superior court, states that her action was a motivated desire to remove Miles from an environment which was him as well as mental distress. She causing physical states that while Miles was boarder he often had weekly colds and other ailments due to the lack dormitories, and that his proper heating school work suffered because of his out that his and his health unhappiness. points grades after being improved enrolled as student. Patricia day further states that she Miles repeatedly attempted however, to terminate Miles as a persuade Harry boarder. felt weekly Harry, that Miles needed the discipline in that and refused provided setting approve. *10 Patricia leave the New of the children should state of South most, or, of Australia. Wales countiy 18, 1976,
The on was set for March but Hariy’s application 3, 12, 1976, On March later continued until 1976. Patricia advised May that she and her husband to be out of Australia for three planned 19, March 1976. Patricia to leave the children weeks beginning proposed her and Patricia’s brother. 24-year-old Hariy objected, housekeeper Law was to Court on March 18 and and this Family presented dispute 19, that Justine refused to house and 1976. Patricia argued go Harry’s without his sister.4 The court ordered Justine Miles would not go a social worker to determine she fact did not want to be examined by home. The social worker that Justine was to Harry’s reported willing go and then review the “for or so situation.” court then ordered day go deliver the children to Patricia to for the three weeks she was to be Hariy out of Australia. Australia,
After Patricia returned to another (referred to as agreement “Short 24, was Minutes”) negotiated Hariy’s response February for sole or conditional On joint custody. May court, which issued agreement presented order: following
“Upon Application day made to the court It Is Ordered:— 1, 2, 3, 4, That orders be made in terms of and 5 of the “1. paragraphs titled ‘Short Minutes’ dated 3rd 1976 and filed document May day hereunder:— herein as set out Miles and Justine. to have
“1. Mother have access alternate weekends “2. Father to Monday Friday night below, if unable to take access he to as father give holidays morning notice Friday night. Tuesday prior access as follows:—
“3. Holiday Mother to have school
“(i) holidays because, 4Patricia that Justine refused to home go Harry’s during previous alleged there, in an abusive manner her concerning had “interrogated visit [Justine] which three months before. Miles was told to stay had occurred some birthday party wife, and heard Justine with [Harry]. [Harry’s present] another bedroom struggling interceded to further abuse of Justine by [Harry].” Wendy stop Father “(ii) school September holidays Christmas “(iii) to each each holidays—half alternating year, party, father to take first half 1977. Parties that Christmas 1976 children to
“Note agree accompany mother overseas be returned to father for two last weeks.
“4. General all on to on matters 7 notice. liberty apply days $20 “5. Father to direct to week mother maintenance child pay per per with education inclusive of school uniforms together expenses otherwise usual order. requisites, to the maintenance ordered be
“That Order Number pursuant paid 5 herein continue until each of such children subparagraph respectively shall have attained the of the (18) until death of the age eighteen years husband whichever event shall first occur and that the first of such be made within seven this date that payments days payments be made thereafter. weekly the 6, contained 7, The Court
“And Noted agreement paragraphs 8, and said ‘Short Minutes’.”5 23, 1976, Patricia and the
On children left Australia for July Los 27, 1976, She did not On learned from notify Hariy. July Angeles. Harry school administrators that the children not been in school since July 23d. He was unable to locate Patricia on that or the day following day.6 5The of the “Short Minutes” paragraphs which the court noted but did not incorporate in the order are as follows: “6. Note mother that children agrees with father when stay she during any periods is out of Australia without them. n “7. Note that father shall be for all responsible schooling arrangements Father children. and mother undertake to with reasonable directions comply of school Father with advisers) authorities. shall consult the mother their (through respective legal in educational concerning any changes situation. proposed “8. Note each other at least one give month’s notice their parties (through advisers) of overseas legal the children respective proposed trip involving including itineraries. other, “9. Note—Parties each agree supply through copies school notices as to children.” school supplied reports court, 6In declaration which she filed the superior Patricia states she husband’s on 28th and telephoned Harry information was present secretary July instructed her to inform that she and children were in the United States. Patricia states that this on the conveyed to same Harry day. 28, 1976, filed an affidavit7 with the court On Harry application July him, that Patricia be of the children granted requesting court, children from restrained removing jurisdiction surrendered Patricia’s and that the children’s passports attorneys. and affidavit were delivered at on 12:40 p.m. Copies the law firm the at 28th to who had July attorney represented He at did 3d was the time of service and hearing. Sydney 28th, on that date. At on not learn 2:35 p.m. heard ex and an order was at 2:45 was
matter signed p.m. awarding parte, The order made children returnable Harry. time, 1976, which in another ex warrants parte proceeding, August for the children. issued were 9, 1976, in a
On conversation between August telephone Patricia, Patricia learned of first 28th On October proceeding. initiated the in the Court of Los present proceeding Superior re cause form of an order show *12 contempt County Angeles Act. to The order the Uniform Child Jurisdiction Custody pursuant 3, 1976, and and enforcement of May show cause sought recognition Court of Law Australia. decrees of Family 10, 1976, the court found that Patricia had December On superior decrees and both of the Australian court ordered disobeyed wilfully court further directed her to deliver of the enforced. The both be custody fees, travel and other and to children attorneys’ pay This ensued. writ expenses. petition
II 1973, the the Uniform Child In Jurisdic- adopted Custody Legislature Code, 5150 et which tion Act8 sets forth (Civ. § provisions by seq.), a affidavit in can be emotional alleged, part, very 7The pertinent person “[Patricia] is conduct that and an excited state would be detrimental upset capable extremely in interests of the children and their future emotional to the best stability. has the and to travel short I means overseas on notice and am knowledge “[Patricia] if there been discord in her she have left the existing may concerned has marriage be in immediate future. has resided planning depart previously country [Patricia] and I for America am concerned she return to America with may lengthy periods the children. view the in relation to for the “In behavior children in the arrangements [Patricia] 1976,1 do not that without consider influence of her year stabilizing early part husband is a fit and the care and present person control proper [Patricia] child, Justine, The Miles a Justine. is sensitive especially impressionable child and is essential for future welfare that she be regular contained routine to careful subject discipline.” state, Act, as 8The similar to Uniform adopted by substantially proposed Act drafted Child Jurisdiction the National of Commissioners on Custody by Conference which the courts of this state are to be when asked to enforce or governed However, decree of a sister state. modify custody provisions Act are extended to decrees of nations Civil Code section 5172 by foreign due has been accorded to all affected only “The process persons: if of this title extend to the international area. general The policies of this title and enforcement of provisions relating recognition decrees of other states decrees and decrees apply institutions similar in nature to rendered involving legal authorities other nations reasonable notice and appropriate oppor- to be heard were to all affected tunity given persons.” In Mullane v. Central Hanover Tr. Co. (1950) 339 U.S. 314 [94 865, 873, L.Ed. 652], S.Ct. the United States Court set forth Supreme with due guidelines “An compliance process: elementaiy fundamental of due requirement which is to process any proceeding accorded is notice calculated, finality under all the circum- reasonably stances, to interested apprise parties action and pendency afford them an their opportunity present objections. [Citations.] notice must be of such nature as reasonably convey required information [citation], it must afford reasonable time for those interested to make their appearance [citations].” to how
As much time should be afforded interested to make parties their Court has held that appearance, Supreme must they given counsel, time to retain a defense and to the site of the prepare journey *13 “In the of cas'e a witness the command proceeding. of the writ subpoena is that the served shall aside all his party excuses, business and lay make his to the court with the utmost way or at least dispatch, present himself the return of the An summons, writ. however, upon day ordinary . . . that the served have other of business contemplates party may equal attention, or time for the greater importance engaging may require retainer of counsel and the of his . defense. . . ‘The time preparation [¶] must allow sufficient between the service always appointed opportunity, of the summons and the time of to enable the appearance, party his defense and for his and the should this prepare journey; justice take care to avoid of ....’” respect any supposition hurry improper v. 520, 525, 176 U.S. (Roller 409 L.Ed. 20 S.Ct. Holly [44 410] five notice was insufficient where it days’ [held constitutionally required of four travel to reach site of see also days United States ex proceeding]; Uniform Laws State Bar American Association in 1968. The approved by states, National Conference of is Commissioners each the District composed of Columbia and law Puerto Rico. The Act is not a and is in California reciprocal applied whether or not the has it. foreign jurisdiction adopted 222 204 L.Ed. 32 S.Ct. U.S. Turner v. Fisher (1911) rel. 37] [held [56 before a did not record a few hours on the of notice attorney proceeding due satisfy requirements].) process with, nor did case, Patricia was neither served
In present personally 28, 1976, notice of the actual she proceeding changing children to her of the 28th only notify Harry. attempt affidavit and was made by delivering Hariy’s application hearing office, had to Mr. who Twigg’s attorney change represented at 3d one hour and minutes only May fifty-five proceeding, However, to the counsel was before hearing, Harry’s hearing. prior Mr. was not in that Patricia informed discharged Twigg Sydney,9 3d and that Mr. office had no after the Mr. hearing Twigg’s Twigg Even if it were Patricia in new instructions litigation. represent and, of record Mr. was still Patricia’s attorney assumed Twigg behalf,10 therefore, on her the notice authorized to service accept insufficient to constitutional case clearly satisfy attempted than hours can due Notice of less two notice process. requirements time for those interested to be deemed to “afford a reasonable hardly Co., . . . .” v. Central Hanover Tr. (Mullane their make supra, appearance On U.S. at 314 L.Ed. at notice 873].) contrary, p. p. [94 at calculated (id., was no than “a mere 315) more gesture,” attempted p. Patricia of reasonable time which defense and prepare deprive her objections. appear present
Moreover, case was followed in this procedure contrary Law Act Australia. That act provides express provisions Family be set until at after an least may days filing served is in for a. sought change party Australia, out after if the adverse least days filing party Australia.11 *14 9Mr. did the been not learn of action until after the order had Twigg signed. law, 10Under California record is sufficient attorney service the not statutory upon a a Civil Code section
notice to decree. 4809 proceeding modify provides: a “After the final the of the or the decreeing legal dissolution entry judgment marriage of the after a voidable after a or declaration of void or or parties, marriage, separation in other in which there was at issue the any order proceeding custody, support, permanent maintenance, child, order, a or education of minor no modification of such or judgment, decree, in be unless notice no order such shall valid subsequent any proceedings prior served, be a the be in to to such manner as proceeding otherwise required given party served, be For such notice is otherwise law to the himself. by such upon party permitted service the of record shall not be sufficient.” upon attorney purpose, in 38 of section 123 of the Law Act of Australia Family provides pertinent 11Regulation “(1) the date the of an shall be these for Subject Regulations, hearing application part: 938 failure
To notice explain comply requirement, Harry the the Law on Act of attempts rely urgency provisions Family Australia. He contends that and the fact that these emergency provisions 28th was the order made returnable five later render valid July days even ex cites no for though granted parte.12 Although Harry authority law, what constitutes an he that under Australian under emergency urges section of the Code of Civil Procedure13 the 28th order was valid even without notice to He that facts were Patricia. states sufficient have resulted show or would great injury presented irreparable the matter could have and heard. before been noticed fully Under section be notice with where “from may dispensed facts . . shown . or would result to the before great irreparable injury applicant the matter can be heard on notice.” In v. (Italics added.) Retail McKay S. L. Auto. Union 1067 16 Cal.2d 373], P.2d this court [106 ais that the stated fundamental drastic sanctions of principle “[i]t not be invoked a without detailed may showing specific equity facts such relief.” before (Italics added.) “facts” the justifying only court on 28th were the Australian contained allegations (fn. ante). affidavit The affidavit “can be a alleged very by fixed of the registrar ...(b) court in which the is filed and be— shall (i) . . where . is in Australia—at least 14 from the date of respondent days filing (ii) or where the application; is out of Australia—at least 42 from the respondent days date of filing application.” 42 of section 123 the Law 12Regulation Act of Australia Family provides pertinent “In order—(a) case of a make court an ex part: emergency, may concerning parte of, to, welfare or access a . . .” child marriage. “(a) 13Section 527 of the Code of Procedure Civil An pertinent part: provides be before may time verified injunction granted judgment upon complaint, case, other, affidavits if the one in the or the affidavits in the show upon complaint that sufficient exist therefor. A or of the satisfactorily grounds copy complaint affidavits, must, served, which if not upon injunction granted, previously served therewith. shall “No without notice to the preliminary injunction granted nor opposite party; shall any temporary order be without notice to the restraining granted opposite party, it shall unless from facts shown affidavit or verified appear by complaint great would or notice. result to irreparable injury before the matter can be heard applicant notice, In case order shall be without temporary restraining granted above contingency matter shall be made returnable on an order specified, requiring to be cause shown why injunction should not be on the earliest that the granted, day of, or, will business court admit but later than 15 cause days good appears court, from date of such order. matter days When the first comes up who obtained the the party order must be temporary restraining ready proceed *15 must have served of the at least upon opposite days two to such party prior hearing, copy and of all complaint affidavits to used in such and a of his application copy and authorities in of such .” points . . . support of conduct an or state is and in excited emotional capable upset person best of the children to the interests would be detrimental that extremely However, no it contains their future emotional specific stability.” does the these Nor of misconduct instances allegations. support 28th show Harry presented any transcript his of Patricia’s additional facts the court14 allegation support to show that had ever done emotional or anything instability children, even if of such was detrimental she were “capable” Patricia in a conduct. had made similar Harry allegations against However, which he had the court modification initiated. rejected hearing, and reaffirmed of the children in Patricia. those allegations Moreover, less than a after the 1967 year hearing, Harry approved move to California with an action which calls into Patricia’s the factual basis her On allegations instability. May question than three months before the 28th the Australian less hearing, Patricia, as it had court children to granted again nine done earlier. since dissolution consistently marriage years that the order In so the court Hariy’s request doing, rejected prior explicit best him or interest be modified sole joint custody grant children. affidavit further “concern” that there alleges might
“discord” in Patricia’s that she is not to be existing marriage15 a “fit care and control of the considered proper person children” without influence of her husband.” “stabilizing present no facts were these either in the Again, support presented allegations affidavit at the hearing. lack would nevertheless condone the manifest majority opinion with due the threat of ground great
compliance process ante, was shown affidavit. at injury by Harry’s (Maj. irreparable opn., finds on the Patricia had (1) It such bases 929.) irreparable injury p. the children from violated by agreement withdrawing school, the children’s continued absence school “presumptive- detrimental, cause to believe Patricia had left (3) there reasonable ly” were Patricia’s Australia and visitation frustrated (4) Harry’s rights ante, However, of these asserted 929.) at none p. (Maj. opn., departure. 527, for the drastic of section bases can sanctions the majority justify 28, 1976, fact, hearing. 14In did the July personally appear husband, with the are they residing together 15Patricia is still married to her present children in California. *16 occurred, which either had do not acts already only opinion points section, within the or were amount to of injury meaning irreparable affidavit, not nor considered the Australian court in alleged Harry’s by 28th order. July issuing In 201 Cal. P. 945], Blake v. Eureka 661-662 (1927) City [258 “
court ‘An stated: lies threatened injunction only prevent injury has no which been ‘The wrongs completed’ [citation]. office of a writ of as its name is injunction, imports, peculiarly one; and not a it is remedial to restrain the not preventative wrongdoer, after the been him has done or to him to it’ undo punish wrong compel (Accord Blackmore Investment Co. v. Johnson 213 Cal. [citations].” Thus, 150-151 P.2d Patricia’s withdrawal the children 978].) [1 from school cannot serve to the lack of with due justify compliance of section record is clear process pursuant provisions this act occurred the time the 28th order was already issued. school,
As to the continued absence children from Harry’s affidavit feared did that he Patricia intended to allege keep children out school. There is also in the nothing transcript court to indicate that Australian court even proceedings considered this 28th order. it issuing possibility Additionally, assert, court, did not either in the trial the Court noteworthy Hariy court, or in this the continued of the children absence from Appeal order. school as a basis for ex Section 527 states that parte specifically shall be no order “without notice granted temporary restraining . . unless shall shown . opposite great party, appear facts . would . . before the matter can be heard result injury irreparable notice. . Since the . .” record is devoid evidence that completely school, intended the children out of keep majority’s assertion that threat of was shown great irreparable injury by affidavit is Hariy’s unjustifiable.
As to visitation does not indicate Harry’s rights, majority opinion how the exercise of those temporaiy impairment rights, pending notice, full after reasonable would have resulted in hearing irreparable harm in order to the ex order under If section 527. justify parte visitation were frustrated Patricia’s rights by departure, remedy obvious under Law Act of Australia: a full provisions Family on the issue of if notice Patricia were following days’ Instead, or 42 Australia notice she were not. days’ Harry, *17 these succeeded notice circumventing requirements, attempted do he had not been able to children—something obtaining notice.16 of contested following nine-year hearings history the 28th matter raised at the The of July hearing only “urgency” However, the leave Australia with children. Patricia might possibility the of the ex order was met mandating parte urgency by provisions the the children to Patricia’s of of attorney delivery passports The Patricia the children Australia. from removing prohibiting were in devoid of to show that the children facts record harm were not if of immediately suffering danger irreparable had lack evidence Patricia There is a similar of awarded custody. the the best interest of detrimental ever done anything remotely have until well waited Resolution the issue could children. afforded Patricia. notice had been reasonable the
The fact that was made returnable five later was not order days calculated to Patricia notice to give adequate appear. transcript the 28th shows that no reasonable attorney July that time: serving during expectation Honour: can I make it
“His When returnable? It
“Mr. is almost Delaney: impossible. “His Honour: I can make returnable for the 3rd but August you won’t have served her then. by
“Mr. we make it and the Delaney: Perhaps Tuesday message gets to her— through
“His Honour: I the ... mark returnable for the 3rd August at 11 a.m.” This indicates that 3d date the was chosen as exchange August enforce ex does not 16It should noted that refusal to 28th order parte Act, Under this state further in Australia on issue of custody. preclude hearings order, assume since at the time the jurisdiction could not 3d Australian modify May state. was initiated in this state was not children’s home California present proceeding (Civ. Code, Code, (1)(a)(ii); 5169.) also 5156 and Refusal § §§ subd. see Civ. effect of enforce the 28th order would have the recognize placing parties would, however, were at the It where they prevent beginning wrenched from present proceeding. mother, with the children from of their whom being they until, after a full contested lived since dissolution of the marriage, hearing, their live their father court determines that it is in best interest they Australian in Australia. matter rather than as a to afford Patricia expediency genuine attempt notice with an If had been adequate opportunity appear. Hariy motivated a desire to notice, Patricia with he seriously provide proper would have court to continue matter at least 14 urged as days, *18 Australian law. required by
Moreover,
the
the fact that
order was made returnable five
later
days
cannot be used
the
of the ex
order. Section 527
bootstrap
validity
parte
a limited
to the constitutional
to reasonable
provides
exception
right
in
notice
cases
It is
emergencies
prevent great
irreparable injury.
However,,
when the facts
are insufficient to
only exception.
alleged
existed,
show that
an
such
the order as
emergency
characterizing
nature,
date,
on the return
does not
temporary
subject
challenge
cure the due
defect of the
As
ex
order.
the United States
parte
process
Court has stated:
later
and no
award can
Supreme
hearing
damage
“[N]o
undo the fact that the
that was
to the
arbitrary taking
subject
right
due
has
‘This
occurred.
Court has not . . .
process
procedural
already
embraced the
done if
can be
general
may
proposition
wrong
”
67,
undone.’
v. Shevin
407
82
(Fuentes
556,
U.S.
L.Ed.2d
(1972)
[32
570-571,
notice, it due to was conduct children from “illegal” removing Australia in violation 3d order and the 28th order. May However, when 23d, Patricia left Australia order effect only order, was the 3d order. Under Patricia was the custodial May order did not Patricia from parent, specifically prohibit leaving Australia with or without the children.
The lack of such an 3d order express prohibition May when to the 1967 order which was in effect significant compared up time the order 3d was issued. The 1967 order restrained May specifically Patricia from Australia with the children without leave of the leaving addition, court. In 3d Harry’s application initiating May from that Patricia removing prohibited requested explicitly Yet, Wales. neither the of New South Australia or state children from 3d order nor the balance five directives agreement May on Patricia’s contains an the court noted which explicit prohibition movements. cannot be 3d order
The visitation interpreted provisions the children. The with Australia leaving prohibit impliedly that (fn. Minutes” indicate of the “Short of items 6 and 8 provisions “mother intended. Item states no such ante) implication out'of when she is father that children during any periods stay agrees Item notes that them.” (Italics added.) parents Australia without notice ... of at least one month’s “each other any proposed to give agree *19 Both items would children. . . .” the overseas super- involving trips Patricia from were meant to fluous if the visitation prohibit provisions Australia. leaving Therefore, 23d. order, Patricia left Australia
As to the 28th July July children from that order the could not have violated she taking time she left. Australia, had not been issued at the since that order yet Thus, the conduct which can be attributed to Patricia is only “illegal” 3d order she have violated the visitation May may provisions one month’s notice of overseas and her to give Harry any trips agreement However, with the children. this conduct cannot used legitimize defects of the 28th order. due July process nevertheless, has,
It been that because Patricia violated suggested order, order should be 3d 28th visitation provisions the lack with due This enforced argument process. despite compliance hands” which has on a variant of the doctrine of “clean is based equitable However, in this area in a series of child cases. been custody developed a to bar reexamination of clean hands doctrine has been invoked only when a entitled to decree who is not sister state custody custody parent Cal.3d of a decree. Ferreira v. Ferreira 9 (See (1973) seeks modification 80, have declined 824, 834-835 512 P.2d Courts 304].) Cal.Rptr. [109 who were reexamination order to noncustodial parents, discourage an decree, an their children in existing abducting unhappy a In the effort to obtain more favorable decision in another jurisdiction. had been the fact that such forum encouraged by many past, shopping decrees states have exercised out-of-state jurisdiction modify on the mere of the child in the based state. presence
944
The Act itself was of forum designed prevent type shopping. Note, Ann. 9 (Master Commissioners’ Uniform Laws ed. (See Prefatory 5152, Civil Code section 1973) 99-102.)17 subdivision states that (2),18 pp. the mere of the child in the state is insufficient confer presence 5157,19the In section clean hands doctrine is codified. jurisdiction. However, neither the clean hands doctrine as it existed prior Act, enactment of the nor section be used to validate the may order, 28th which was issued without with due When compliance process. 17“ which ‘Reports commissions statutes are proposed subsequently are entitled to adopted substantial . construing statutes. . . This is weight true where the statute particularly commission is proposed by adopted by without whatsoever and where Legislature change the commissions’ any comment is brief, because in there such situation ordinarily strong reason believe that in large votes were based measure legislators’ the commission upon explanation ” (Keeler the bill.’ v. Court Cal.3d proposing 470 Superior Cal.Rptr. [87 617, 40 420].) P.2d A.L.R.3d 18Section provides: “(1) A court of this which is state decide child competent matters has to make child determination jurisdiction by initial modification decree if the conditions as set of the following forth are met: paragraphs “(a) (i) This state is the home of the child at the state time of commencement (ii) had been child’s home state within six months before proceeding, commence- ment of the child is absent from this proceeding state because of his removal or *20 reasons, a retention or for a person claiming other and or custody parent person as continues to live in this state. acting parent “(b) It in the best is interest of the child that a court of this state assume jurisdiction (i) contestant, because the child and his and child at least parents, one have a state, (ii) connection with this and there is significant available in this state substantial care, evidence concerning child’s or future and present protection, training, personal relationships. “(c) (i) The child is in this state present and the child has been physically abandoned or (ii) it is in an necessary to child he emergency protect because has been to or subjected threatened with mistreatment or abuse or is otherwise neglected dependent. “(d)(i) It that no other state would have under appears jurisdiction prerequisites (a), (c), accordance with substantially (b), or another state had declined to paragraphs exercise on the this state is the more jurisdiction ground forum to appropriate child, (ii) determine the of the it is in the of custody best interest the child that this court assume jurisdiction. “(2) (c) (d) (1), under of subdivision Except in this paragraphs physical presence child, contestants, of state or of the child and one of the is not alone sufficient to confer a of state make child jurisdiction on court this to a determination. custody child, desirable, “(3) of while is a Physical presence jurisdiction prerequisite to determine his custody.” “(2) 19Section 5157 Unless interest of provides pertinent part: required child, the court a shall not exercise its to decree of another jurisdiction custody modify if state without consent of the petitioner, entitled to has person custody improperly removed the child from the of the to or has custody entitled physical person custody the child a retained after visit or other of improperly temporary relinquishment physical If the has violated a other decree another custody. petitioner custody provision state the decline to is court exercise its under may jurisdiction just proper circumstances.”' abduct She did not the custodial Australia, she was left parent. Patricia in which to favorable forum a more to seek children in order did not initiate Patricia issue. present proceed- the custody relitigate Rather, decree Harry. custody in order granting modify ing order. enforce that initiated the proceeding because it was to be enforced not entitled 28th order was The July an to be notice and Patricia reasonable without opportunity issued giving under the due to enforcement which was entitled order heard. only order, In that 3d order. of the Act was May process requirements had since the children as she retained the have violated the that Patricia The fact dissolution may marriage.20 not be used circumvent 3d order visitation may provisions the Act which mandate recognition the express provisions if reasonable nations decrees of enforcement of only foreign all affected be heard have been and an notice given opportunity order does not to the 28th The notice relation attempted persons. the Fourteenth Amendment standards of meet the due process due, a which is notice is federal Constitution. process person’s “[W]hen as must such due The means mere is not employed gesture process. the absentee one desirous reasonably adopt informing might actually Co., at 339 U.S. v. Hanover Tr. it.” Central (Mullane supra, accomplish as In a matter such L.Ed. 874].) compelling importance p. p. [94 all parties given imperative case discloses no The record in this to be heard. reasonable opportunity lack of the manifest to excuse procedural compliance justification due process. *21 entitled to 28th decree was not
The Australian court’s recognition Child Jurisdiction Uniform and enforcement Custody pursuant Act. Newman, J.,
Tobriner, J., and concurred. 17, 1979. was denied for a January Petitioner’s rehearing application J., Bird, Tobriner, were of the J., C. opinion should granted. action in both the 3d enforcing understand the trial court’s 20It is difficult to order, conflict with enforcement of enforcement of one would 28th since other.