MILLER v. MILLER (1977)

Patricia Ann McGuiness, formerly Miller, petitioned this court for a writ of mandate to compel the Superior Court of Los Angeles County to vacate its order of December 10, 1976, which order directed her to deliver to her former husband Harry Maurice Miller physical custody of their two minor children, Miles age 12, and Justine age 11. The order further provided that Harry could take the children to Sydney, Australia, to oeside with him. Harry was awarded costs, travel expenses and attorney's fees.

We issued an order to show cause and stayed further proceedings pending our resolution of the legal questions presented and permitted appearance by amicus curiae on behalf of Patricia. We have concluded that the superior court order was proper, that the petition should be denied and the stay dissolved.

Patricia who is a native born United States citizen married Harry, a citizen of Australia, in October 1962. The marriage was celebrated in Australia and the two children of the marriage were both born in Australia. Because of Patricia's United States citizenship, however, the children are citizens of both Australia and the United States. (8 U.S.C.A., § 1401(a)(7).)

The parties divorced February 9, 1967, in Australia. The children were at that time approximately 2 and 3 years of age. By agreement between the parties, Patricia lived in Los Angeles, California, with the children from approximately May 1968, to May 1972. On April 14, 1972, Patricia married her present husband Kevin McGuiness, a citizen of Australia, and shortly thereafter returned to Sydney with him and the two children.

On April 26, 1972, the parties entered into an agreement providing that Patricia would continue to have custody of the children, subject to Harry's specified visitation rights; that during Patricia's absence from Australia, Harry should have custody; and finally that Harry should be solely responsible for all school arrangements for the children.

Apparently there was no major disputes between the parties until March and April of 1976, at which time there developed a controversy concerning Miles' continuing as a boarding student at a particular private school in Sydney and whether the children should remain with Harry while Patricia and her present husband were traveling outside of Australia.

In March of 1976, the parties appeared before the Family Court of Australia and that court directed that the children remain with Harry during Patricia's absence. On May 3, 1976, the parties entered into another agreement which was on that date approved by the Family Court of Australia and portions of which were incorporated into a court order.

Custody was continued with Patricia. Harry was to have the right of visitation on alternate weekends and on a specific holiday visitation schedule. The order made note of it but did not expressly incorporate a provision of the agreement that the parties were to give each other at least one month's notice of any overseas trips involving the children. The wording of the former agreement was changed slightly in that Patricia agreed that the children were to stay with Harry ‘when she is out of Australia without them.’ The order did not expressly restrain Patricia from removing the children from the jurisdiction of the court or otherwise. The order did provide that the ‘father shall be responsible for all schooling arrangements for the children.’

The precipitating cause does not appear from the record but on July 23, 1976, Patricia and the children moved to Los Angeles. She admittedly did not inform Harry nor the Australian court in advance and in fact there is evidence that she misled the Australian immigration authorities by telling them she was going on a 14-day visit. It is evident that Patricia intended a permanent change of residence for herself and the children.

On July 28, 1976, Harry filed an application for change of custody, for a restraining order preventing Patricia from removing the children from the jurisdiction and requiring that Patricia surrender the children's passports. Harry's application recited that the children had been surreptitiously removed from school, that he did not know Patricia's whereabouts and that she was emotional and unstable. This application was served upon Patricia's solicitors of record. The solicitors could not locate Patricia. Her husband also professed not to know her whereabouts. The matter was heard the same day, ex parte. The solicitors did not appear. They took the position that they had not been retained for this purpose, had not been instructed and did not believe themselves to be ‘solicitors of record’ for the purpose of the hearing.

An order was made in the form of an order to show cause, granting all aspects of the application and returnable August 3, 1976, some 5 days later. Neither Patricia nor her solicitors appeared on August 3, 1976. An order together with an injunction and a warrant for the persons of the children was issued. Harry then retained counsel in California, who on October 22, 1976, instituted the present proceedings under the Uniform Child Custody Jurisdiction Act (the Act). (Civ.Code, §§ 5150, et seq.)

Patricia did not state to the court below just when she learned of the July 28, 1976 order but the trial court in its decision found that she was aware of it as early as August 9, 1976, and failed thereafter to take any action in the Australian court to either modify or appeal the order.

At the hearing in the Los Angeles Superior Court, Patricia's counsel requested that independent counsel be appointed for the children and that the judge interview the children as to their desires. Both requests were declined, however, there were statements of the children in deposition form before the court. In those statements the children expressed a desire to remain with Patricia in the United States.

Thus we have before us on the one hand a United States citizen, Patricia, who desires to reside here and establish a residence for herself and her two children, both of whom are United States citizens, and on the other hand Harry, an Australian citizen who desires to make a residence in Australia for himself and his two children who are also Australian citizens.

Patricia argues that to enforce the Australian orders under the provisions of the Act and send the children to Australia amounts to deportation of American citizens against their will and without due process. Harry on the other hand argues that to deny enforcement of the Australian court order is to countenance Patricia's flaunting of a valid decree and to encourage the practice of ‘Seizing and Running’ with children in custody disputes, a practice which the Act was designed to prevent.

Both Patricia and Harry argue that their position is in the best interests of the children. Patricia claims that this is where the children want to be and Harry, for his part, argues that the stability resulting from preventing a parent from jumping from jurisdiction to jurisdiction as well as the stability provided by continuing the educational program that commenced in Australia serves the children's best interests regardless of their present but transitory desires.

The matter has been eloquently briefed by the parties and the various contentions cogently argued. The question for us resolves itself to the single one of which court is the proper one to ‘cut the Gordian knot,’ i. e., make the decision of what will best serve the interests of the children. More precisely the question is whether the Superior Court of Los Angeles County erred in giving recognition to the Australian court order, thereby permitting that court to make the critical determination.

There is a certain superficial appeal to the deportation argument and the line of least resistance would be for us to take the parochial view that only our courts can truly provide the proper solution of the dispute. However, we have examined the Australian Family Law Act of 1975 and find it to be comparable to our law and embodying its essential precepts. Of course the quality of the Australian legal system and its institutions is not to be disputed.

In spite of recent developments in the law giving recognition to the rights of children, vis-a-vis the government and the judicial system, there still exists a recognized need for parental control and parental decision making before which the child's rights and desires must yield. One such area of decision making is with certain limited exceptions, the location of residence. While in custody matters the child's best interests are the paramount consideration (Civ.Code, § 4600) the determination of what best serves those interests cannot simply be resolved by acceding to the child's wishes or desires in every case. Permitting Harry to take the children to Australia is not the same as deportation. He is their father.

Patricia contends that the order of our superior court preordains the future of the children and she is left without any remedy. We disagree. There is no reason to believe that if she can demonstrate to an Australian court that the best interests of the children would be served by returning them to the United States that that court would be any less sensitive to the interests of the children than the California court.

Although Harry is the one who affirmatively sought relief in the California court, the sanctioning of Patricia's actions by a refusal to enforce the orders of the Australian court would in effect amount to modification of the orders by the California court. If we look at the order of May 3, the refusal would alter the visitation and education provisions. If we look at the July 28 order, the refusal would modify the provisions for a change of custody. Such a result would be a return to the past and an open invitation to Harry to then attempt self-help, seize the children, and run to Australia.

It is to Harry's credit that he did not pursue such a course of action. Instead he sought an orderly resolution of the problem through court action. It must be remembered that these children were born in Australia, are Australian citizens and have lived over one-half of their lives in Australia and have for many years been subject to the jurisdiction and orders of the Australian court.

Thus we turn to the statutory scheme in California which governs the actions of our courts in issuing, modifying or enforcing custody decrees, and first dispose of the issue of appointment of counsel for the children. Civil Code section 4606 gives the court discretionary power to appoint a counsel to represent the interests of the minor in a custody proceeding.

In the case at bench there is not the slightest suggestion that either of the parties is motivated by other than what each considered to be the best interests of the children. Both parents are unquestionably fit and proper parents. Both were represented by highly skilled and conscientious counsel who were keenly sensitive to their responsibilities.

The court had essentially two choices, i. e., either enforce the Australian court order or refuse to do so. Those choices were each well represented. We cannot conceive of any beneficial contribution that additional counsel could have made. The court's discretion was properly exercised in declining to appoint separate counsel.

Civil Code section 4600 provides that where a California court has jurisdiction to decide custody either by way of an original decree or by modification of a previously issued decree, the court should base its decision on the best interests of the child and should give due weight and consideration to the wishes of a child of sufficient age and reason to formulate an intelligent preference.

When a California court, however, is asked to enforce or modify the order of a court of another jurisdiction, it must be governed by the provisions of the Uniform Act.¹ The purpose of the Act is to discourage continuing controversies over child custody and visitation in the interests of greater stability of home environment and of secure family relationships; to avoid jurisdictional competition; to deter abductions; to avoid relitigation insofar as feasible; to promote comity between jurisdictions and to assure that litigation concerning custody takes place ordinarily in the state in which the child and his family have the closest connections. (Civ.Code, § 5150.) Inherent in the Act is a legislative determination that the interests of the children are best served by uniformity in answering the question of which jurisdiction is the proper one to decide custody matters.

Civil Code section 5152² specifies the grounds upon which a California court may assume jurisdiction of a custody matter either initially or by way of a modification proceeding. That section further provides that except in cases of emergencies and in order to protect a child from abuse or neglect or in the case where no other state would have jurisdiction, the physical presence in California of the child or of the child and one of the contestants is not alone sufficient to confer jurisdiction to decide the issue of custody.

Further, the Act provides that the courts of this state shall recognize and enforce decrees of the court of another state which has assumed jurisdiction under circumstances or provisions similar to California law (Civ.Code, § 5162) and the courts of this state shall not modify a decree of another state except under circumstances which are not present here. (Civ.Code, § 5163.)

A California court is competent to modify a foreign decree if ‘It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships.’ (Civ.Code, § 5152(1)(b).)

Of course a California court is not required to exercise that jurisdiction and in view of the fact that the above quoted section appears to run contra to the purpose of the Act and to specific provisions thereof, the discretion afforded by that section should be sparingly exercised.³

Finally, Civil Code section 5172 provides: ‘The general policies of this title extend to the international area. The provisions of this title relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.’

Had Patricia affirmatively petitioned to have the California courts modify the May 3 order and alter the provisions for visitation and schooling or to modify the July 28 order and restore physical custody to her, certainly under the facts it would have been a proper exercise of discretion to refuse to assume jurisdiction and to refuse such request.

As pointed out above, however, Patricia has not asked the California court for affirmative relief, but by the same reasoning it was not an abuse of discretion for the superior court to enforce the orders of May 3 and July 28 at Harry's request when to refuse would have the effect of granting Patricia that relief. In the final analysis the net result of enforcing these orders is simply that the Australian court will continue to exercise its jurisdiction and in so doing determine whether Patricia's desire to change the children's residence to California is in their best interests.

Patricia takes the position that since she has custody of the children the Australian court lacks authority to compel her to return the children to Australia merely to facilitate Harry's exercise of his visitation rights. She asserts that she and the children have a ‘right to travel’, that she has a right to change residence for herself and the children and that the order of the Australian court which impinges on those rights is unenforceable under the Act.

The brief of the amicus curiae argues that the July 28 order of the Family Court of Australia transferring custody from the mother, who has been the custodial parent for the last ten years pursuant to the order of that same court, is a punitive order outside the scope of the enforcement provision of the Act, and that to enforce the May 3 order requiring the children to return to Australia in order to facilitate visits with their father violates the constitutional right to travel of the mother.

It is suggested that a custody decree is punitive if the court of continuing jurisdiction modifies its own custody decree by transferring custody from the custodial parent primarily for the reason that the custodial parent violated a visitation or other provision of the original decree or moved from the jurisdiction, whether the departure was contrary to a court order or not.⁴ The contention is that the modification is ‘punitive’ because it is primarily based on parental ‘fault’ and results in punishing the child for that fault.

Case law in California and elsewhere before the Act indicated that custody decrees of foreign jurisdictions were generally enforced if the party resisting enforcement or seeking modification had abducted the child or had violated a custody decree. An exception to this rule can be found in cases where courts refused to give full faith and credit to foreign decrees changing custody from one parent to another on grounds of disobedience of a previous decree. (Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Michigan Law Rev. 345, 370, 373 (1953).)

Amicus curiae Professor Bodenheimer, who served as reporter for the special Committee of the Commissioners on Uniform State Laws which drafted the Uniform Child Custody Jurisdiction Act, takes the position that section 5157(2) of the Act is not mandatory, but always subject to the interests of the child, that the exception found by Professor Ehrenzweig continues under the Act, and punitive custody changes are not enforceable. A punitive change of custody, according to amicus disrupts family stability and is therefore not entitled to recognition under the Act and is, indeed, contrary to the Act.

The lower court found that the change of custody in the July 28 order was not punitive. We agree. It should be emphasized that Patricia's claim to physical custody and the corollary right to determine the children's place of residence is based upon the agreement of the parties as embodied in the May 3 order of the Australian court.

In construing the May 3 order we need not look just to its specific provisions. We must look at the totality of circumstances surrounding it and determine what was reasonably contemplated by the parties and the court. (In re Gideon, 157 Cal.App.2d 133, 320 P.2d 599.)

That order did not deprive Harry of legal custody. It contemplated that both parties would exercise legal custody with Harry, the father, having the authority to prescribe the educational activities of the children and the right to visitation at specific times. Certainly the order contemplated that visitation and schooling would take place in Australia.

It can also be reasonably inferred that the parties and the court contemplated in the May 3 order that a permanent change of residence of the children outside of Australia would require court approval. Patricia's conduct was a clear violation of the May 3 order.

The right of the party without physical custody to visitation with the child is an important right. (Exley v. Exley, 101 Cal.App.2d 831, 226 P.2d 662; Civ.Code, § 4601.) A court has the power to restrict the custodial parent's right to remove the child from the jurisdiction as a means of protecting the right of visitation. (Gudelj v. Gudelj, 41 Cal.2d 202, 259 P.2d 656.) That condition need not be spelled out in the decree but arises by necessary implication when removal would disable the custodial parent from complying with the express provisions of the decree. (Beabout v. Beam, 119 Cal.App.2d 768, 260 P.2d 145.)

By seeking and obtaining an award of physical custody from the Australian court Patricia subjected herself to that court's continuing equitable jurisdiction which included the power to regulate, within reasonable limits, where the children would live.

Patricia cannot now be heard to claim that she had a right to travel which the court cannot impair. That right is not in fact impaired. She is free to travel as she pleases without the children. The children still being subject to parental and court control do not have such a right.

In all of her contentions Patricia overlooked one all important fact. In making its order of May 3, the Australian court determined that the entire arrangement was in the best interests of the children. That arrangement included as we have described not only the provisions for Patricia to have physical custody but the provisions that Harry should control the schooling and that the children should reside in Australia and not be removed without court approval.

Neither parent is entitled to the custody of a child as a matter of right. Each is equally entitled to custody. In determining who should have custody of minor children, a broad discretion is vested in the trial court. (Holsinger v. Holsinger, 44 Cal.2d 132, 279 P.2d 961; Disney v. Disney, 121 Cal.App.2d 602, 263 P.2d 865.)

‘When a home breaks up a minor child must lose to a great degree the benefit of dual parental control and care and must spend its time separately with each parent. Yet it is generally considered to be the right of the parent who must lose the privilege of having the child for most of the time to have such contact with the child as can be afforded, the general interest of the child considered.’ (Exley v. Exley, supra, 101 Cal.App.2d at pp. 838–839, 226 P.2d at p. 667.) Visitation rights ensue from parenthood. (Clarke v. Clarke, 35 Cal.2d 259, 217 P.2d 401; Holsinger v. Holsinger, supra.)

Patricia would have her cake and eat it, too. She relies on the award of physical custody but rejects the other responsibilities and obligations she has to the court which gave her that custody. Her conduct was a clear violation of the May 3 order.

The Australian court was well within its power when it undertook to enforce the May 3 order by requiring Patricia to return the children to its jurisdiction. Patricia's unwillingness to do so was a justification for the change of custody order of July 28. The circumstances leading to that change indicate that it was neither punitive nor unenforceable under California law.

In Cornwall v. Cornwall, 108 Cal.App.2d 95, 238 P.2d 8, the Court of Appeal approved a change of custody from a mother to a father where, without the father's consent, the mother withdrew a child from a church upon which the parties had agreed, enrolled him in another church, changed his name and made it difficult for the father to exercise his visitation rights.

The July 28 change of custody was not the sine qua non of the authority of the California court to honor the Australian court's demand for return of the children.

The Australian judge who issued all of the orders and warrants was familiar with the case. He had had the parties before him on previous occasions. Harry's petition disclosed a disruption of the children's schooling and a mysterious disappearance of Patricia and the children. The change of custody was merely to facilitate the exercise of the court's continuing jurisdiction to enforce the May 3 order in all of its provisions. Provisions which we reemphasize were made in the best interests of the children.

It is our belief that the Australian court is now the proper court to determine which provisions of the May 3 order are more important in continuing to serve the best interests of the children, i. e., schooling and residence in Australia or physical custody with Patricia in the United States.

Finally Civil Code section 5172 provides that enforcement of a decree issued by a court of a jurisdiction outside the United States requires a determination that reasonable notice and opportunity to be heard was given to all affected persons. This is a determination which must of necessity be made by the California court when it is asked to enforce a decree from such a foreign jurisdiction.

Patricia's counsel points out that California Civil Code section 4809 requires personal service prior to modification following a final judgment of dissolution rendered by a California court. Service upon the attorney of record is expressly stated not to be sufficient.

That statute while binding on California courts is not determinative of what constitutes reasonable notice and opportunity to be heard in the broad constitutional sense. The requirement is that a method was employed which was reasonably calculated to give notice to the parties.

A person who is domiciled within a state can be subject to the jurisdiction of its courts by a form of service reasonably calculated to give knowledge of the action and an opportunity to be heard. (Restatement of Judgments, § 16, Comment A.) A sufficient notification depends upon the nature of the action and upon the circumstances, and if the method of notification provided for is followed and it is a method reasonably calculated to give notice the judgment is not void merely because the defendant did not receive actual notice. (Restatement of Judgments, § 6, Comments A & C.)

‘An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278; Grannis v. Ordean, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363; Priest v. Las Vegas, 232 U.S. 604, 34 S.Ct. 443, 58 L.Ed. 751; Roller v. Holly, 176 U.S. 398, 20 S.Ct. 410, 44 L.Ed. 520. The notice must be of such nature as reasonably to convey the required information (Grannis v. Ordean, supra) and it must afford a reasonable time for those interested to make their appearance, Roller v. Holly, supra, and cf. Good-rich v. Ferris, 214 U.S. 71, 29 S.Ct. 580, 53 L.Ed. 914. But, if with due regard for the practicalities and peculiarities of the case these conditions are reasonably met, the constitutional requirements are satisfied. ‘The criterion is not the possibility of conceivable injury but the just and the reasonable character of the requirements, having reference to the subject with which the statute deals.’ American Land Co. v. Zeiss, 219 U.S. 47, 67, 31 S.Ct. 200, 207, 55 L.Ed. 82; and see Blinn v. Nelson, 222 U.S. 1, 7, 32 S.Ct. 1, 2, 56 L.Ed. 65.' (Mullane v. Central Hanover Tr. Co., 339 U.S. 306, at pp. 314–315, 70 S.Ct. 652, at p. 657, 94 L.Ed. 865.)

When a defendant is subject to the jurisdiction of a particular state because of his domicile therein that relationship is not terminated by his subsequent moving to another state and he may be served with process pursuant to a method reasonably designed to give him notice of the proceedings brought against him in the courts of the state of his original domicile prior to his departure. (Allen v. Superior Court, 41 Cal.2d 306, 259 P.2d 905; Milliken v. Meyer, supra.)

The ex parte order of July 28 was in compliance with the provisions of the Family Law Act of Australia. (Family Law Regulation No. 42 and 44.) We agree with the trial judge that the Australian procedure was calculated to give reasonable notice and an opportunity to be heard. In California today, except for the specific situations covered by Civil Code section 4809, service of notice upon an attorney of record constitutes valid service. (Code Civ.Proc., § 1010; also see Los Angeles Superior Court Family Law Symposium of 1974, p. 160.)

Beyond that we have concluded that the Australian court's demand for the return of the children can be based upon a violation of the May 3 order. Patricia was personally present when that order was issued and her conduct in surreptitiously removing the children from the jurisdiction of the Australian court establishes: (1) that she knew that she was violating the order, and (2) she had no desire to be heard on the matter in the Australian court. (See Miller v. Superior Court, 195 Cal.App.2d 779, 16 Cal.Rptr. 36.)

The petition is denied; the previously ordered stay is dissolved.

If a superior court in Los Angeles County had issued an order identical in all respects to the Australian order, predicated upon a record identical in all respects to the record in the Australian court, and thereafter proceeded to enforce it, I am firmly convinced that if application were made by the petitioner herein to this court for the issuance of a peremptory writ to prevent its enforcement, such a writ would issue.

If, as respondent court and the majority assume, the Act compelled respondent court to accept the ex parte order at its face value, and no infirmities therein may be exposed, it must be affirmed and nothing further can be said.

However, it is well settled that no foreign judgment, no matter how final in the jurisdiction of its rendition, whether of a sister state or a foreign nation, is immune against attack when sued upon in a different jurisdiction.¹

Nothing in the Act has been pointed out which changes that rule.

Counsel in the proceeding below recognized the general rule with respect to suit on foreign judgment and pursuant thereto not only introduced pertinent parts of the record in the Australian court, but the real party in interest made the order of May 3, 1976 (May order) a part of his primary pleading in the proceeding below and relies substantially on that order and the proceeding which generated it.

Indeed, if the rule with respect to scrutiny of foreign judgments were otherwise, respondent court as a court of original jurisdiction and this court as a court of review would be placed in a position whereby each is made an automation. Once an exemplified copy of a foreign judgment would be introduced in the court of original jurisdiction, all inquiry with respect to its validity would stop and the court of review would engage merely in the futile exercise of inspecting an exemplified judgment.

It is only coincidental that the ex parte order before this court was made in Australia, a country which we respect and which has a system of jurisprudence equivalent to our own; we could be dealing with an order similar in all respects from present day Uganda. It is difficult to assume that the Act intended any such limitation upon the power of the courts of this state. It is obvious no such limitation was even remotely contemplated or intended by the Legislature.

The record in the Australian court shows that the Australian order referred to in the majority's opinion as the July 28 order and herein referred to as the ex parte order was issued:

(a) without a clear showing of a violation of any court order enforceable by the contempt process;

(b) without due process as that term is construed in Australia, under the Act and/or under the rules of equity which govern a contempt or custody proceeding in California or Australia;

(c) without any probative facts in the affidavit upon the basis of which the ex parte order was issued to warrant a change of custody, and in the teeth of undisputed facts to the contrary;

(d) without any purpose but to punish the parent and without regard to the only real consideration which applies, i. e., the best interests of the children. Nothing in the Act clothes an Australian court with an arm so long and a hand so strong as to enable it to compel a California court to use the sovereign power of the State of California to enforce, without question or inquiry, an Australian court order.

It should be noted too at the outset, that the record before us shows that this is not an abduction case. Respondent's order is predicated upon the alleged violation of a covenant in an agreement between the parties, and not on the order or orders of an Australian court.

The record shows without dispute that petitioner had continuous physical and legal custody of the two children from the time the parties were divorced in 1967. It is her contention, and I agree, that the legal and physical custody she had until July 28, 1976 she still has in all respects.

This proceeding, it appears, is the first appellate application of the Act in this state.

To accurately focus the effect of the Act and other legal principles as they apply to the facts at bench, it is helpful to detail and enlarge the factual background.

Harry Miller (Harry), real party in interest, initiated the proceeding at bench on October 22, 1976 in respondent court pursuant to section 5164² of the Uniform Child Custody Jurisdiction Act (the Act) (Civ.Code §§ 5150–5174) by filing an ‘Order to Show Cause and Declaration re Contempt (Marriage)’ fortified by certified copies of two Australian custody orders: (1) an ex parte order dated July 28, 1976³ and (2) a prior order dated May 3, 1976 (May order).⁴

Respondent court, after a hearing, recognized the Australian orders (section 5162 of the Act) and on December 10, 1976 adopted the ex parte order which granted to Harry the legal and physical custody of the two minor children of the Millers, Miles, born February 29, 1964, and Justine, born November 22, 1965.

The record on which respondent's order is based consists of declarations and exhibits plus brief depositions of Miles and Justine and is before us by consent of counsel and as is required by section 5170 of the Act.

Patricia, a native born United States citizen married Harry, a citizen of Australia, in Sherman Oaks, California in October 1962. Shortly after the marriage they went to Sydney, Australia. The two children of the marriage were born in Australia. Patricia registered the birth certificates of each child to establish United States citizenship for each with the United States Department of State. The children are citizens of both Australia and the United States. (8 U.S.C.A., § 1401(a)(7).)

Patricia and Harry separated in 1966 and were divorced February 9, 1967 in Sydney, Australia. Custody of the children who were at that time approximately 3 and 2 years of age was awarded on that date to Patricia with non-particularized ‘access' or visitation rights to Harry. The custody order thus made restrained Patricia from taking the children out of the jurisdiction and required her to deliver the passports of the children to the respective attorneys of Patricia and Harry. Some weeks thereafter, Harry petitioned the Australian court to change the February 9 custody order and award custody to him. A hearing was held May 19, 1967 before Justice Beggs. Harry's petition was denied and the custody order of February 9 was reaffirmed.

One year later, in or about May 1968, Patricia informed Harry that she intended to move to the United States. Harry agreed (May 1968 agreement) that Patricia could remove the children to the United States. He reserved no fixed rights of visitation. Patricia moved to and lived in Los Angeles, California, continuously with the children from approximately May 1968 to May 1972. Harry continued to live in Australia. He was then and still is, among other of his activities, a director of an Australian airline and visited the children from time to time in Los Angeles. Harry remarried early in 1972. He and his present wife continue to and still live in Australia with a daughter of that marriage. On April 14, 1972, shortly after Harry's remarriage, Patricia married her present husband, Kevin McGuiness, a citizen of Australia, in Los Angeles and agreed to reside with Kevin in Australia.

On April 26, 1972, twelve days after her marriage to Kevin, Patricia and Harry, in Harry's office in Australia, entered into a written agreement called a Deed (April 1972 agreement) providing that: custody of the children would continue to be with Patricia; Harry was to have visitation rights on alternate weekends, and specified holidays; the children would stay with Harry if Patricia was outside of Australia without the children; and Harry would be responsible for schooling arrangements. None of the rights of access accorded to Harry by the April 1972 Agreement were specified in the May 1968 Agreement or in the original custody orders made by Justice Beggs on January 9 and May 19, 1967.

Such differences between the parties from April 1972 until February of 1976 as did arise were not litigated. In February of 1976 unsettled differences between Patricia and Harry which had for some months prior thereto been in gestation, crystallized, and as a consequence, a letter from Patricia's solicitor was transmitted to Harry's solicitor detailing differences which required adjustment. Among these differences were Miles' continuance as a boarding student at a private school in Sydney, visits of Justine at Harry's home not required under the April 1972 Agreement, omissions of Harry to make support payments for Miles and Justine and the then immediate subject of discussion between the two, to wit: that of temporary physical custody to Harry at his home at such times as Patricia and her husband Kevin were traveling outside of Australia which was called for by the April 1972 Agreement. Patricia and her husband Kevin were at the time contemplating a three-week trip out of Australia and because of incidents which had previously arisen (when Harry had retained physical custody of one or the other child on visits to his home). Patricia had taken the position that both the children should remain domiciled at the residence of herself and Kevin asserting that she and Kevin maintained a completely adequate home in Sydney; and that they had in their employ a competent housekeeper. In addition, Patricia stated that she had a 21 year old brother who lived in the McGuiness household and it would be in the best interests of the children to remain in the McGuiness household as their permanent place of residence. Commencing with the letter from Patricia's solicitor in February 1976, extensive correspondence ensued between the solicitors for the respective parties with respect to all said differences. No agreement was reached.

Proceedings were then initiated by Harry for legal custody in February or March 1976. In March of 1976 the parties came before Justice Pawley of the Family Court in Australia and, it appearing that Patricia and Kevin were planning to take a three-week trip away from Australia, the Justice directed as a temporary and transitional order that the children remain with Harry during such time as Patricia and Kevin were absent from Australia and the proceedings were continued. On May 3, 1976, the parties, having been requested by Justice Pawley to settle the matter between themselves, entered into a third agreement (referred to in the record as ‘Short Minutes') which was on that date approved by the Family Court of Australia and portions thereof, orders 1–5, were incorporated into the May order (footnote 4, orders 1–5).

We analyze in detail the language of the May order because it, as well as the ex parte order, are the gravamen of the contempt proceeding filed in respondent court and are the base of respondent's order.

Directive (1) of the May order affirmed custody in Patricia as did the ‘Short Minutes' between the parties themselves.

It is significant that although directive 1 grants custody to Patricia, neither directives 2 or 3 which fix Harry's visitation rights, nor 4 or 5, enjoin Patricia from leaving Australia with or without the children, or mandate any type of notice from Patricia to Harry if she proposes to do so; nor do any of the 5 directives set out a requirement that Patricia deliver custody of the children to Harry if she leaves Australia with the children, nor do any of the five directives of the May order require Patricia to deliver custody to Harry if she leaves Australia without the children, although it was this specific difference between them which precipitated the hearing commenced in February and concluded in May 1976. Item 6 of their agreement formalized as ‘Short Minutes' upon which the May order was predicated does provide that the children stay with Harry when she is out of Australia without the children; however, there is not even a suggestion in five directives of the May order nor in any of the items of the ‘Short Minutes' which requires Patricia to deliver the passports of the children to the solicitors of the parties or anyone else. The only restraints upon Patricia's movements contained in the ‘Short Minutes' as distinguished from the May order are those contained in item 6 which recites that the children stay with the father when ‘she is out of Australia without them’ and in item 8 which requires each to give the other ‘one month's notice * * * of overseas trips involving the children.’

It is clear that the results of the hearing concluded on May 3, 1976 before Justice Pawley were memorialized in the ‘Short Minutes' signed by the parties only after Justice Pawley suggested that the matter be settled.

Divorced from context, but nevertheless significant, we quote pertinent remarks of Justice Pawley on separate days of the hearing which preceded the May order. He said in pertinent part:

‘HIS HONOUR: One would hope that these orders (speaking of the order made in 1967 by Justice Beggs) were reasonable and people don't have to stick to the letter of them. Both know they have the responsibility of knowing what is good for the children. They needn't stick to the letter of them. So, what concerns you in this matter?’ * * *

‘HIS HONOUR: * * * If the wife has deliberately and maliciously attempted to put this little girl against her father to such an extent she doesn't want to go to see him, her welfare would not be said to be looked after; because I foresee that that can have a very bad effect on the future relationship of that girl and the father and also the boy. * * *

‘It seems to me that your client was prepared to allow the child to go with her mother and stay away for a number of years in America. It seems extraordinary that he is trying to force this issue now. * * *

‘HIS HONOUR: * * * But, at this stage, the three weeks starting tomorrow, it seems to me that it will have a dangerous effect on the welfare of the child to force her against her will to go to the husband for those three weeks. * * * [referring to the three weeks Patricia and her husband Kevin were to be gone.]

‘HIS HONOUR: I simply asked the welfare officer5 to indicate whether or not she thought the child did not want to see her father over these three weeks. I wouldn't be able to ask the welfare officer what she said. I would like the welfare officer's opinion as to whether the child was willing to go to her father—only that issue. That is the only issue that is before me this afternoon.’

The latter remarks above quoted were in connection with Harry's request pending decision on the custody issue that Miles and Justine reside at Harry's residence while Patricia and Kevin were on their planned three-week trip out of Australia. They are of significance because as already pointed out, when the May order was made, none of the five directives therein contained the proviso that the children reside with Harry if Patricia left without them although it is contained as item 6 of the ‘Short Minutes.’

It is significant too when viewed in the light of Harry's consent in 1968 to permit Patricia to take both children to the United States without any stipulated rights of access that although Patricia did leave Australia without notice to Harry on July 23, 1976, while the May order was extant, there is not one of the five directives of the May order with which Patricia cannot literally comply.

The majority hold, however, that custody awarded to Patricia by directive 1 of the May order is violated when Patricia takes the children out of Australia because of Harry's rights of access. Conceding arguendo that this is a fair construction, the hard fact remains that Harry's rights of visitation contained in directives 2 and 3 dealing respectively with Harry's alternate weekend and holiday rights of visitation (all of his access rights) can be complied with, with as little inconvenience to Harry with the children in Beverly Hills, California,⁶ as if they were residing in Perth, Australia or in some other city or town in Australia remotely and/or inaccessibly removed from Sydney, the then residence of both parties. With respect to the education of the children, item 7 of the ‘Short Minutes,’ Harry alone does not have the broad right to supervise. And even if Harry has the sole right, such right may now be exercised with no greater inconvenience to Harry than if the children resided with Patricia in Perth, Australia rather than in Beverly Hills, California. A scrutiny of the five directives of the May order makes clear that none of them require that either Harry or Patricia or both reside in Sydney or in any other place in Australia. The only clue suggesting that either or both of the parties were expected to remain in Australia, not Sydney, Australia, is that supplied by item 6 of the ‘Short Minutes,’ i. e., ‘* * * when she is out of Australia without them.’

The logical conclusion from the above analysis of the five directives of the May order is that Harry could not validly contend even in Australia that he would be entitled to acquire custody of the children because Patricia moved from Sydney to Perth without giving him the month's notice required by the ‘Short Minutes.’ Nothing in the five directives or items 6 to 9 of the ‘Short Minutes' would require a 30-day or any notice if Patricia moved to Perth, Australia.

The omission in the May order or the ‘Short Minutes' to specifically enjoin departure and to impound passports of the children is also significant in light of the 1967 order by Justice Beggs wherein Patricia was expressly enjoined from taking the children out of the jurisdiction and wherein the children's passports were impounded.

However, it is fair to assume that the parties and their respective solicitors had the contingency of ‘flight’ by Patricia in mind when the ‘Short Minutes' were signed and it is fair to assume that Patricia would not have been signatory to the ‘Short Minutes' if any such provisions were contained therein.

The record demonstrates that Patricia violated no directive of the May order and is chargeable only with failing to give, as she had agreed by item 8 of the ‘Short Minutes,’ a month's notice of her intention to leave Australia with the children. No order of the Australian court was violated or flaunted and the Australian court was not imposed upon. Eventually Harry will find a legal way of protecting such rights to which he may be entitled but which he did not succeed in vindicating by the May order. However, on the record at bench the maximum of Harry's rights which Patricia was willing to yield and Harry to accept as the subject of enforcement by contempt process are those specified in the five directives of the May order.

Further, the orders and the ‘Short Minutes' analyzed above present an ironic situation. Nothing in the five directives of the May order or in the balance of the agreement between the parties requires that:

Patricia and the children reside in Sydney, Australia;

A 30-day or any notice from Patricia to Harry if she moves from Sydney to Perth or any other city or town in the vast ‘outback’ of the Australian continent;

Harry's alternate weekend visits be at his house in Sydney; or

Any of his other access rights must be confined to or originate in Sydney, Australia.

Finally, it should be borne in mine, when the May agreement was split into five directives of the May order with the balance of the agreement incorporated into ‘Short Minutes,’ that the form thereof was subjected to the scrutiny of the solicitors who it may be assumed competently represented their clients. It is apparent therefore that the May order represents the intentions and understanding of the parties both in form and substance. This is fortified by the fact that neither in the Australian court nor in the respondent court did either party seek to introduce evidence on the claim of ambiguity, uncertainty, or mistake to prove an aborted intention.

It is settled in this state that when an agreement of the parties is incorporated in a divorce judgment, that the court has thus placed its judicial approval on the agreement. However, it is also settled that a party to an agreement so approved cannot be held in contempt for a violation of the terms of an agreement so approved except for such term or terms thereof which is or are excerpted from the agreement and which the parties are or either one of them is specifically directed as independent parts of the judgment to perform. (Shogren v. Superior Court (1949) 93 Cal.App.2d 356, 209 P.2d 108.) In Shogren, the court noting that incorporation of the terms of an agreement were not ‘* * * by express provision or otherwise made the agreement a part * * *’ of the judgment although approved by the court, on pp. 361–362, 209 P.2d on p. 112 went on to say ‘* * * it is now settled that in order to authorize the enforcement of the provisions of a property settlement agreement by a contempt proceeding the court must order the performance of such provisions.’ We cannot say that the law is the same in Australia, but certainly there is a distinction in Australia between directives 1–5 of the May order and reference in the same instrument to ‘the agreement contained in paragraphs 6, 7, 8, and 9 of said ‘Short Minutes'.’ Thus the two separate and distinct portions of the instrument significantly indicate that the court did not assume the duty of enforcing by way of contempt items 6–9 and that the parties had the same understanding.

Patricia had actually been free of all such supervision from the Australian court since 1968 when she departed with Harry's consent with the children to California. In 1972 when she returned to Australia, she gave to Harry specific rights of access he had abandoned in 1968 substantially similar to those in the May order.

We now proceed with an analysis of the ex parte order, the application therefor and the affidavit of Harry filed in support thereof.

Of the two orders upon which Harry relies in the proceeding before respondent court, the only one which enjoins Patricia from leaving the country with the children and which requires her to surrender the passports of the children, is the ex parte order made three months after the May order and 5 days after she had departed the jurisdiction.

Initially, it should be noted that the ex parte order and the application therefor expressly and implicitly recognized that Patricia did have legal and physical custody of both children until the very moment it was signed.

Harry's Application for the ex parte order is set forth in full below.⁷ It was fortified by his affidavit which sets forth: he was phoned by the Headmistress of the school attended by Justine on July 27 that Justine had not been in school since July 23; on the same day, he called the school attended by Miles and learned that Miles had not been in school since July 22; he tried on the same day to communicate with both Patricia and Kevin and on the 28th again with Kevin without result.

We now quote from the Affidavit that states in pertinent part:

‘[Patricia] can be a very emotional person and in an excited or upset state is capable of conduct that would be extremely detrimental to the best interests of the children and their future emotional stability.⁸

‘ [Patricia] has the means and knowledge to travel overseas on short notice and I am concerned that if there has been discord in her existing marriage she may have left the country or be planning to depart in the immediate future. [Patricia] has previously resided for lengthy periods in America and I am concerned that she may return to America with the children.

‘In view of the behaviour of [Patricia] in relation to arrangements for the children in the early part of the year 1976, I do not consider that without the stabilising influence of her present husband [Patricia] is a fit and proper person to have the care and control of the children, Miles and Justine. The child, Justine especially is a sensitive impressionable child and it is essential for her future welfare that she be contained in regular routine and subject to careful discipline.’ (Emphasis added.)

The underscored portions of the Affidavit are pure conclusions—there are no probative facts to support them. The same charges were made by Harry in the two custody hearings in 1967 and were reiterated and rejected in the third custody hearing in May 1976. Harry's only probative showing for the issuance of an order to change custody was that he was ‘concerned’ on July 28 that Patricia had left Australia with the two children without a month's notice to him. This ‘concern’ was hard knowledge on August 3 when the ex parte order was returnable; clearly, it had considerable significance to Harry and the Australian court as there was no appearance for Patrica on July 28 or on August 3.

The Application for the ex parte order makes clear that it was served upon the office of solicitor Twigg who represented Patricia in the May 1976 proceeding two hours before the ex parte order was signed; Twigg was not in his office and did not know it had been served until after it was signed; it is also clear and a matter of fact that Twigg and Patricia each assert that he was not continued as her counsel after the May 1976 hearing. Twigg's status as a matter of law was disputed by affidavits of reputable counsel in Australia. One set of counsel testified that having been solicitor of record in the May litigation Twigg was counsel (the law in California prior to Civ.Code. § 4809) and the other, including Twigg, that a solicitor must be separately retained for new litigation. In California, it is clear that service must be made on the attorney of record in prior litigation and the individual sought to be served. Thus the status of Twigg is the subject of disputed testimony in Australia.

Assuming, arguendo, that the notice given to the former solicitor for the mother was sufficient for purposes of the law of Australia, still such notice is contrary to the public policy of the State of California as stated in Civil Code section 4809 effective January 1, 1970⁹ and should not be recognized by courts of this state. (See Bernhard v. Harrah's Club (1976) 16 Cal.3d 313, 319–323, 128 Cal.Rptr. 215, 546 P.2d 719; and see Frame v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1971) 20 Cal.App.3d 668, 673, 97 Cal.Rptr. 811.)

Further, section 5172 of the Act¹⁰ contains the express condition that it applies only ‘if reasonable notice and opportunity to be heard were given to all affected persons.’ It is clear from the record that neither the mother nor the children had notice of the hearing of July 28, 1976, or the default hearing on August 3 as a consequence of which purported orders were made which deprived the mother of the custody of the children who had resided with her throughout their lives.

In addition, while Regulation 42 of the regulations enacted pursuant to section 123 of the Family Law Act of Australia permits an ex parte order concerning the custody of a child in a case of urgency, there was at bench no urgency for the summary grant of custody, and Regulation 38(1)(b)(ii) would govern, requiring at least forty-two days' notice from the date of the filing of the application. The only urgency which existed was to prevent Patricia's departure from Australia with the children and that urgency was met by the injunctive provisions of the ex parte order and its mandate for the delivery of the passports of the children. The issue of custody could well have awaited a full and objective hearing as the ex parte order assumes Patricia was in Australia.

However, even assuming urgency, and forgetting section 4809 of the California Civil Code, section 5172 of the Act read together with section 5154 and 5161 of the Act suggest that under the Act Patricia is entitled to at least ten days' notice from August 3 when it was obvious knowledge that Patricia was in the United States.

It would appear that in such circumstances, Harry's counsel, if seriously motivated in accomplishing the objective of the application, to wit: custody, would have urged upon the court a continuance of not less than 42 days as required by Australian law or at least 10 days, the minimum suggested by the Act, to complete the equivalent of personal service on Patricia. Instead, on the return day, the ex parte order changing custody, as heavy and grave a decision as a court is ever called upon to make, was reaffirmed and made a fait accompli upon the sole evidence of Patricia's departure and Patricia's alleged emotional instability which latter allegation had been rejected three times in three court hearings and ignored in three separate agreements over nine years made by Harry himself. However, it is clear Harry did have a purpose. It is not a rash speculation to assert that the form and context of the ex parte order and the short time set for its affirmation was to clothe Harry with the mantle of the custodial parent for purposes of litigation in a foreign court. No court should knowingly permit such strategy.

It is a significant fact that the voluminous record does not remotely suggest any criticism of Patricia's care of Miles and Justine during any part of the four-year period between May 1968 and May 1972, when, by agreement between the parties, Patricia lived with the children in Los Angeles County and Harry lived in Australia. The status quo before this court is a substantial improvement over that which existed between the Millers between 1968–1972 when Harry had no fixed rights by agreement or court order.

There is no showing that Patricia, at any time from the date of marriage dissolution in February of 1967 to the present, did anything remotely detrimental to the best interests of the children. Patricia (and there is nothing in the record to the contrary), was concerned only with the welfare of the children and further, when she departed Australia on July 23, she was acting within the scope of the five directives of the May order and accepted the risk of being responsible for the support of the children—plus the additional risk of jeopardizing her relationship with Kevin.

In respect of the last observation, it should be noted that there is an uncalled for prediction in Harry's affidavit:—— ‘I am concerned that if there as been discord in her existing marriage she may have left the country.’

Patricia and Kevin (who Harry in his affidavit confesses to be a stabilizing influence) have been and are living together in Beverly Hills, California with the children.

In my opinion, whether the ex parte order is a contempt order or a custody order, although it is clear that respondent's order is a contempt order, there are no probative facts to show that the best interests of the children were considered when the ex parte order was made and/or reaffirmed. In any custody proceeding the primary issue is the best interests of the child. (Civ.Code § 4600; In re Reyna (1976) 55 Cal.App.3d 288, 301, 126 Cal.Rptr. 138.) The law is the same in Australia. However, this issue was ignored in Australia and it was ignored in respondent court. In fact, it can be persuasively argued that the ex parte order is so punitive in tone as to equate with prostitution of the process of the Australian court. The summary custody change made therein appears to have been designed to discourage and/or prevent Patricia from appearing to defend against the order which carried its own threat of future reaffirmation.

Sound judicial policies dictate, and respectable authority holds, that even if formal due process were complied with in all respects, and even if there had been some showing that the best interests of the children required a change in custody, a punitive default judgment such as the one at bench will not be enforced, whether the judgment is one by the courts of this state or that of a foreign jurisdiction. (Brooks v. Brooks (1975) 20 Or.App. 43, 530 P.2d 547, 551, review denied; and footnote 1, supra.)

The analysis of the May and ex parte orders, when considered in the light of the undisputed record and without regard to the defective manner in which notice following the application for the ex parte order was served and/or the lack of a probative affidavit suggests persuasively that if the ex parte order had been validly issued and served, Patricia should and could not be punished by way of contempt for the alleged violation of Harry's agreed rights as defined by items 6 or 8 of the ‘Short Minutes' for leaving the Australian jurisdiction, as there was no breach of a specific court directive. It is assumed that a contempt proceeding in Australia is quasi-criminal as it is in this state. If this assumption is correct, the Australian court would be bound by the strict letter of the directive alleged to have been violated, with all intendments and presumptions in favor of the contemner. (In re Shackelford (1953) 116 Cal.App.2d 864, 867, 254 P.2d 610; Unler v. Superior Court (1953) 117 Cal.App.2d 147, 151, 255 P.2d 29, 256 P.2d 90.)

It has been mentioned that the depositions of Miles and Justine were introduced as part of the record and they showed that each child considered their best interests were in continuous custody by their mother. Respondent court, however, refused to permit Miles and Justine or either to be called as witnesses or to interview either in chambers and refused upon request of Patricia to appoint independent counsel to represent the children and took the position that under the Act it was required to determine only the facial regularity of the May order and the ex parte order and held that it was required under the Act, and did, recognize both; found that Patricia had violated both orders; and rendered judgment accordingly.

Custody problems are always sensitive. They are complex even when the sovereign rights of another jurisdiction are not involved. It needs no special prescience, judicial or otherwise, to understand that any custody order, especially one which may be permanent, will have a far-reaching effect on the welfare of the children. And on the facts of this case it seems clear to me the children should have been heard as witnesses (Civ.Code § 4600) and were entitled to be represented by separate counsel. Both requests were made and each was denied, even though California now specifically authorizes the appointment of counsel to represent children in custody proceedings. (Civ.Code § 4606.)

Procedures safeguarding individual rights are not for adults alone. (See Kent v. United States (1966) 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84; In re Gault (1967) 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527; In re Winship (1970) 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368; Breed v. Jones (1975) 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346.) The children in the present case are citizens of the United States. (8 U.S.C.A. § 1401(a)(7).) They have indicated in sworn statements that they do not wish to return to Australia; that they desire to remain with their mother and step-father in the United States, and that they are happy in their home and school setting in California.

As Justice Thompson said In re Dunlap (1976) 62 Cal.App.3d 428, 438, 133 Cal.Rptr. 310, 316:

‘We have abandoned the approach that the child subject of custody litigation is a chattel. We recognize that he is a person whose future is as vitally affected as is that of the parties competing for his custody.’

The rulings of the trial court were in both instances, in my opinion, improper. The important fact is that respondent court considered only and decided this proceeding solely on the proposition that the Act mandated respondent court to recognize the ex parte order.

It should be mentioned, as the majority states, that the record offers no suggestion of the immediate cause which precipitated the action of petitioner. It may be that some light is shed on that subject by the remarks of Justice Beggs in the May 1967 hearing when, just before reaffirming the custody, he had awarded petitioner in February, he said in 1967:

‘This is not the first occasion that Mr. and Mrs. Miller have appeared in this court * * * in fact I think this is the tenth application with which I am dealing.’

My analysis of the proceeding below and of respondent's order which followed tells me that the order was made because respondent court was of the opinion that it was mandated to accept the ex parte order on the premise that the service on Solicitor Twigg by Harry of notice of his ex parte application to the Australian court for custody vested and solidified continuing jurisdiction in the Australian court. However, the arguments made by real party in interest are pregnant with the suggestion that the Act by its injunction to the court ‘to recognize’ a foreign judgment re custody does not mandate such recognition but that it endows the court with discretion to decide whether it will or will not ‘recognize’ such judgment. Assuming such is the law, I am satisfied that on the record discussed above, the ex parte order should not have been recognized and that such discretion was prejudicially exercised contrary to the best interests of the children and the purposes of the Act.

I would grant the petition and nullify and vacate the order of respondent court.

FOOTNOTES

1.  It should be pointed out that the Act is applied in California regardless of whether the other jurisdiction has adopted it. To date, eleven states have adopted the Uniform Act.

2.  Civil Code section 5152 provides in part:‘A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if the conditions as set forth in any of the following paragraphs are met: . . .’

3.  The Commissioners' Notes on the Act state:‘Paragraph [1(b) of § 5152] perhaps more than any other provision of the Act requires that it be interpreted in the spirit of the legislative purposes expressed in section [5150]. The paragraph was phrased in general terms in order to be flexible enough to cover many fact situations too diverse to lend themselves to exact description. But its purpose is to limit jurisdiction rather than to proliferate it. The first clause of the paragraph is important: jurisdiction exists only if it is in the child's interest, not merely the interest or convenience of the feuding parties, to determine custody in a particular state. The interest of the child is served when the forum has optimum access to relevant evidence about the child and family. There must be maximum rather than minimum contact with the state.’ (U.L.A., Vol. 9, p. 108.) (Emphasis added.)

4.  Berlin v. Berlin (1967) 21 N.Y.2d 371, 288 N.Y.S.2d 44, 235 N.E.2d 109, cert. den. 393 U.S. 840, 89 S.Ct. 118, 21 L.Ed.2d 111; Brooks v. Brooks, 530 P.2d 547 (Or.App.1975) review den.

1.  The Restatement, Conflict of Laws (2d ed.), section 98 states that:‘A valid judgment rendered in a foreign nation after a fair trial in a contested proceeding will be recognized in the United States so far as the immediate parties and the underlying cause of action are concerned.’ (Emphasis added.)Not only does this assume that the foreign judgment has to be tested against some standard before it is enforced by our courts, Comment c to the cited paragraph makes it clear that a foreign ex parte order should be regarded with inherent skepticism by our courts:‘c. Conditions to recognition: A foreign nation judgment will not be recognized in the United States unless the American court is convinced that the foreign court had jurisdiction and that‘there has been opportunity for a full and fair trial abroad before a court of competent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court, or in the system of laws under which it is sitting, or fraud in procuring the judgment . . .’ Hilton v. Guyot, 159 U.S. 113, 202 [16 S.Ct. 139, 40 L.Ed. 95] (1895).' (Emphasis added.)Comment d to section 98 in focusing upon default judgments such as the ex parte order at bench, enjoins this court to carefully scrutinize such foreign judgments before enforcing them:‘d. Default judgments: Whether a foreign nation default judgment which meets the requirements of § 92 will be recognized in the United States depends in part upon the kind of judgment involved. Provided that the conditions specified in Comment c have been met, a judgment in rem or quasi in rem (see Introductory Note to Chapter 3) will be recognized in so far as the judgment purported to affect interests in a thing that was before the foreign court. So a judgment adjudicating title to a ship or other movable within the custody of the foreign court will be recognized in the United States so far as title to the thing is concerned.‘There is more doubt about the recognition of other kinds of default judgments. Such judgments will usually be recognized provided that the foreign court had jurisdiction, that the defendant was given adequate notice and adequate opportunity to be heard and that the other conditions stated in Comment c were satisfied. The foreign court must have had jurisdiction under the rules relating to the recognition of foreign nation judgments of the State where recognition of the judgment is sought.’ (Emphasis added.)The requisites of a valid judgment are set forth under section 92:‘A judgment is valid if(a) the state in which it is rendered has jurisdiction to act judicially in the case; and(b) a reasonable method of notification is employed and a reasonable opportunity to be heard is afforded to persons affected; and(c) the judgment is rendered by a competent court; and(d) there is compliance with such requirements of the state of rendition as are necessary for the valid exercise of power by the court.'

2.  Section 5164 provides:‘(1) A certified copy of a custody decree of another state may be filed in the office of the clerk of any superior court of this state. The clerk shall treat the decree in the same manner as a custody decree of the superior court of this state. A custody decree so filed has the same effect and shall be enforced in like manner as a custody decree rendered by a court of this state.‘(2) A person violating a custody decree of another state which makes it necessary to enforce the decree in this state may be required to pay necessary travel and other expenses, including attorneys' fees, incurred by the party entitled to the custody or his witnesses.’

3.  The ex parte order dated July 28, 1976 states in pertinent part:‘UPON APPLICATION made to the Court this day IT IS ORDERED:——1. That orders be made in terms of subparagraphs (a), (b) and (c) of paragraph 1 of the Application for Custody Injunction and Costs filed herein on the 28th day of July 1976 as set out hereunder:——‘1(a) That [Harry] be granted custody of the two children of the marriage, Miles and Justine, pending further Order of the Court.(b) That [Patricia] be restrained from removing the children from the jurisdiction of the Court pending further Order of the Court.(c) That [Patricia] surrender to her Solicitors the Passports of the two children of the marriage pending further order of the Court.'The ‘APPLICATION’ above referred to and the affidavit in support thereof are treated infra.

4.  ‘3rd day of May 1976‘UPON APPLICATION made to the Court this day IT IS ORDERED:——1. That orders be made in terms of paragraphs 1, 2, 3, 4, and 5 of the document titled ‘Short Minutes' dated the 3rd day of May 1976 and filed herein as set out hereunder:—(underscored for reference purposes infra.)‘1. Mother to have custody of children, Miles and Justine.2. Father to have access alternate weekends Friday night to Monday morning and holidays as below, if father unable to take access he to give notice on Tuesday prior to Friday night.3. Holiday access as follows:——(i) Mother to have May school holidays(ii) Father to have September school holidays(iii) Christmas holidays——half to each party, alternating each year father to take first half 1977.NOTE Parties agree that Christmas 1976 children to accompany mother overseas and be returned to father for last two weeks.4. General liberty to apply on all matters on 7 days' notice.5. Father to pay direct to mother maintenance $20 per week per child together with education expenses inclusive of school uniforms and requisites, otherwise usual order.'‘That the maintenance ordered to be paid pursuant to Order Number 1 subparagraph 5 herein continue until each of such children respectively shall have attained the age of eighteen (18) years or until the death of the husband whichever event shall first occur and that the first of such payments be made within seven (7) days of this date and that payments be made weekly thereafter.‘AND THE COURT NOTED the agreement contained in paragraphs 6, 7, 8, and 9 of the said ‘Short Minutes'.By the Court,/s/ Deputy Registrar'After setting forth the only directives of the May order, to wit: items 1–5, the May order is concluded with the observation that ‘THE COURT NOTED the agreement contained in paragraphs 6, 7, 8, and 9 of the * * * ‘Short Minutes” which are as follows:‘6. Note that mother agrees that children stay with father during any periods when she is out of Australia without them.7. Note that father shall be responsible for all schooling arrangements for the children. Father and Mother undertake to comply with reasonable directions of school authorities. Father shall consult with the mother (through their respective legal advisers) concerning any proposed changes in educational situation.8. Note that parties to give each other at least one month's notice (through their respective legal advisers) of any proposed overseas trip involving the children including itineraries.9. Note—Parties agree to supply each other, through the children, with copies of school reports or school notices as supplied to children.'

5.  Evidence was taken on the custody issue and included a proposed examination of a social worker.

6.  Indeed, the record shows that Harry did visit with the children in Beverly Hills, California as late as October 18, 1976. He filed this proceeding October 22, 1976. As a director of an airline, Harry had no difficulty in visiting the children in the four-year period between 1968 and 1972.

7.  ‘APPLICATION.DATE OF FILING: 28–7–76APPLICANT'S ADDRESS FOR SERVICE: Care of Geoffrey See, Gillis & Co., Solicitors, 70 Castlereagh Street, Sydney.1. HARRY MAURICE MILLER, Company Director, applies for the following orders:——(a) That he be granted custody of the two children of the marriage, Miles and Justine, pending further Order of the Court.(b) That the Respondent be restrained from removing the children from the jurisdiction of the Court pending further Order of the Court.(c) That the Respondent surrender to her Solicitors the Passports of the two children of the marriage pending further Order of the Court.(d) That the Respondent pay the costs of and incidental to this Application.2. The Applicant and the Respondent were married at Los Angeles, United States of America, on 23rd October, 1962.3. The marriage of the parties was dissolved by the Supreme Court of New South Wales on 9th February, 1967.4. In compliance with Regulation 19, I have furnished to the Applicant an advice as to the effect of proceedings and of the counselling and welfare facilities available./s/ Solicitor for the Applicant‘TO THE RESPONDENT:1. This Application has been set down for hearing by the Court at 220 George Street, Sydney, on the 3rd day of August 1976, at 11 o'clock.2. If you do not appear at the hearing, the Court may proceed to make the orders sought, or similar orders, in your absence.'

8.  The same charge was made in the proceeding before Justice Beggs in May 1967. The transcript of the 1967 hearing is part of the record. A fair reflection thereof, although excerpted out of context, is indicated from the following remarks by Justice Beggs in his summing up before reaffirming in Patricia the original custody order made at the time of dissolution of the marriage on February 9, 1967:‘This is not the first occasion that Mr. and Mrs. Miller have appeared in this court. There is a long history of litigation and disputes between them. In fact I think this is the tenth application with which I am now dealing. * * *‘The mother has had the custody of these two children ever since their birth, with some few exceptions when she has been separated from one of the children. There are some very broad and important considerations which are present in this case, in common with a number of other cases where young children are concerned. * * *‘In this case the husband, knowing the nature of his wife up to February this year, * * * was content to see she should have custody of these two children. With some reluctance, I rather feel, she was content to see he should have access to them. Both of them would paint the other as being a person unstable, emotional and cruel, to use some of the adjectives that have been put. Both of them would paint the other as being a person upon whose word the Court could place no reliance. (Emphasis added.)‘The case here by the husband is that his wife was temperamentally unsuited to have control of the boy Miles. He adverts to and has filed a deal of evidence, in regard to occasions when persons have seen her ill-treat this boy.* His case is the boy has displayed an emotional resentment towards his mother, perhaps a dislike.’ * * * (Emphasis added.)* It will have been observed that in the May hearing before Justice Pawley, Harry complained of Patricia's treatment of the girl.

9.  Section 4809:‘After the entry of a final judgment decreeing the dissolution of the marriage or the legal separation of the parties, or after a declaration of void or voidable marriage, or after a permanent order in any other proceeding in which there was at issue the custody, support, maintenance, or education of a minor child, no modification of such judgment, order, or decree, and no subsequent order in such proceedings shall be valid unless any prior notice otherwise required to be given to a party to the proceeding be served, in such manner as such notice is otherwise permitted by law to be served, upon the party himself. For such purpose, service upon the attorney of record shall not be sufficient.’ (Emphasis added.)

10.  Section 5172:‘(International application.) The general policies of this title extend to the international area. The provisions of this title relating to the recognition and enforcement of custody decrees of other states apply to custody decrees and decrees involving legal institutions similar in nature to custody rendered by appropriate authorities of other nations if reasonable notice and opportunity to be heard were given to all affected persons.’

COMPTON, Associate Justice.

BEACH, J., concurs.