Facts
The appellant, an Australian national, and the respondent, a Swiss and Australian national, are the unmarried parents of two children, born in 2011 and 2013, who hold Swiss and Australian nationality. The family lived in Western Australia, at [U.] .
In 2017, the parents concluded an unsigned agreement (“Minute of consent orders”) providing for joint parental authority and shared custody, as well as a “Limited child support agreement” providing for the children's residence with the mother and a maintenance contribution from the father.
In September 2017, the mother learned that her mother, residing in Switzerland, was suffering from terminal cancer. The parties decided to settle temporarily in Switzerland, terminated their lease and employment contracts in Australia, and enrolled the daughter in school in Switzerland. The father purchased four plane tickets for 2 April 2018, but had not received a decision on his residence and work visa.
On 28 March 2018, the parents, assisted by Australian counsel, signed a “Parenting plan”. This provides in particular that the mother may leave Australia with the children on 2 April 2018 to settle temporarily in Switzerland, that the children must return to Australia by 14 April 2020 at the latest, that joint custody is maintained if the father obtains a visa, and that any presence of the children in Switzerland after 14 April 2020 would constitute a wrongful non-return. Exclusive jurisdiction for disputes concerning interpretation or enforcement is granted to the Family Court of Western Australia, except for proceedings based on the Hague Convention.
On 2 April 2018, the mother and the children settled in [V.] (Vaud). The children were schooled in Switzerland. The father exercised his visiting rights in May and in July-August 2018.
In September 2018, the mother filed with the District Court of La Côte an application for protective measures and maintenance. A provisional order awarded her exclusive custody. The proceedings were subsequently suspended. In October 2018, the maternal grandmother died. The State Secretariat for Migration announced its intention to refuse the father residence.
On 13 November 2018, the father submitted a return application to the Federal Office of Justice, then, on 4 February 2019, filed with the Guardianship Chamber of the Vaud Cantonal Court a return application, accompanied by protective measures. The delegated judge appointed a guardian ad litem, ordered a report from the SPJ, granted the father bi-weekly Skype contact and prohibited the mother from leaving Switzerland with the children. The SPJ noted that the children were well integrated and wished to remain in Switzerland.
By judgment of 26 March 2019, the Guardianship Chamber dismissed the return application, charged the State with the fees of counsel and the guardian ad litem, subject to reimbursement under art. 123 CPC by the beneficiary of legal aid (ruling V), and lifted the protective measures.
The father lodged a civil law appeal with the Federal Supreme Court, seeking the return of the children to Australia and requesting suspensive effect, which was refused by order of 7 June 2019. The mother and the guardian ad litem requested dismissal of the appeal. The new evidence produced by the father on 9 May 2019 was declared inadmissible.
Considerations
The Federal Supreme Court finds that the appeal is admissible, as it concerns a final decision rendered in administrative assistance matters within the meaning of art. 72 para. 2 let. b no. 1 FSCA, by a sole cantonal authority (art. 7 ACAA), in accordance with art. 75 para. 2 let. a FSCA. It is in principle limited to the grievances raised (art. 42 FSCA, art. 106 para. 2 FSCA) and reviews the facts only from the perspective of arbitrariness (arts. 97 and 105 FSCA). New evidence is inadmissible (art. 99 FSCA).
As to the grievances concerning the establishment of the facts, the appellant has not shown how the corrections requested could affect the outcome of the dispute. The sanction for any breach of the “Parenting plan” is not provided for in the agreement and does not affect the validity of the consent to the removal. The grievance is therefore dismissed to the extent it is admissible.
As to the alleged violation of arts. 1, 3 and 13 let. a HC80, the Federal Supreme Court recalls that a removal or non-return is wrongful within the meaning of art. 3 HC80 when it infringes a custody right actually exercised. The “Parenting plan” grants exclusive custody to the mother in Switzerland if the father does not obtain a visa, which…