On August 26, 2022, the U.S. District Court for the D. of Colorado denied Mr. Livingstone’s request to return his children to Australia. The parties married in Las Vegas in February 2015 and had a child. When their child was 3-months old in February 2017, they traveled to Australia. They lived a nomadic lifestyle, moving between rental properties, staying with family and friends, and camping in a trailer and tent. Their second child was born in Australia in March 2019 while the family was with Mr. Livingstone’s mother. In April 2021, while at an Airbnb, the parties had an argument, and Mr. Livingstone was escorted to the local police station. When he returned to the Airbnb, Ms. Livingstone and the children had left. That same month, Ms. Livingstone obtained a temporary protection order against Mr. Livingstone based on domestic violence allegations. The temporary protection order was then made permanent for 5 years, and prohibited Mr. Livingstone from seeking out the children’s or Ms. Livingstone’s location or contacting them (except for having contact with the children as set out in writing between the parties or in compliance with the law). In May 2021, Ms. Livingstone moved the children to Colorado. Mr. Livingstone learned of this removal in June 2021, when he was alerted that the children were no longer eligible for government benefits because they had been out of the country for more than 6 weeks. He filed his Hague Abduction return petition.
At trial, Mr. Livingstone failed to demonstrate that he had custody rights under the Australian Family Law Act while the protection order is in effect. The protection order was in effect at the time of the children’s removal from Australia. He further provided no evidence as to how he could actually exercise any right of custody when he was forbidden from being within 100 meters of the children for five years. He presented no testimony from an Australian attorney or legal expert. He presented no evidence that he sought to oppose or resist the protection order. The court was concerned with Mr. Livingstone’s lack of addressing the protection order’s significance.
Ms. Livingstone was unable to prove any of her 4 argued exceptions. She provided no evidence of consent by Mr. Livingstone to the children’s removal from Australia. Her argument that the children would have nowhere to live if returned to Australia was too broad of a reading for the Article 13(b) grave risk exception for the court. She cannot argue that the children are now settled because that exception only applies if Mr. Livingstone had filed his return petition in court more than one year from the date of removal, which he had not. Finally, her argument that Article 20 (a violation of human rights) is applicable was a non-starter for the court. Her argument under Article 20 overlapped too much with her “grave risk” argument, which the court rejected.
The Court denied Mr. Livingstone’s petition on the basis that he had no right of custody, nor was he actually exercising any right of custody, because of the 5-year protection order. It is unclear as to whether Australian law may have a separate right of custody. If it does, Mr. Livingstone failed to argue it, which left a void of evidence and resulted in the court’s reliance on the language in the protection order.