Bondelmonte and Bondelmonte

Case •

[2017] FamCA 263

•

28 April 2017

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE [2017 ] FamCA 263

FAMILY LAW – CHILDREN – Interim – Whether an order should be made requiring the return of two boys from New York for the purposes of a family report – Where an order is made suspending an order for the return of the two boys to Australia – Where an order is made for the two boys to return to Australia for the purposes of a family report – Where the matter is further listed to consider whether an order should be made for the husband to attend the interviews for a family report in person in Australia – Where an order is made pursuant to s 11E of the Family Law Act 1975 (Cth) for a family consultant to provide an opinion as to whether or not there would be any utility in conducting interviews for a family report by way of electronic means between New York and Sydney if the two boys and/or the husband do not return to Australia – Where the husband’s application for the wife, youngest child and family consultant to travel to New York for the purposes of a family report is dismissed – Where the wife sought an order be made for a limited validity passport for one trip to and from the United States – Where no such order can be made – Where order made for issue of passports upon conditions.

Australian Passports Act 2005 (Cth)
Australian Passports Determination 2015
Family Law Act 1975 (Cth)

APPLICANT: Mr Bondelmonte
RESPONDENT: Ms Bondelmonte
INDEPENDENT CHILDREN’S LAWYER: Ms Connor
FILE NUMBER: SYC 4839 of 2011
DATE DELIVERED: 28 April 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Watts J
HEARING DATE: 29 March 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell, SC
SOLICITOR FOR THE APPLICANT: Karras Partners
COUNSEL FOR THE RESPONDENT: Mr Knox
SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

  1. The parties do all things and sign all documents to cause each of the children R, born … 1999 (“R”), S, born … 2001 (“S”) to return to the Commonwealth of Australia for the purpose of attending upon a family consultant of the Child Dispute Services Sydney Registry on a date to be advised by the Registry.

  2. The matter be further listed at 9am 8 May 2017 for consideration of whether or not an order should be made pursuant to s 62G(5) of the Family Law Act 1975 (Cth) (“the Act”) for the husband to attend in person in Australia for interviews with a family consultant in order to facilitate the preparation of the family report.

  3. Both parents shall do all acts and things necessary to ensure the attendance of R, S, and T, born on … 2004 (“T”), at the interview times for the family report, as advised by the Child Dispute Service Sydney Registry.

  4. Pursuant to s 62G of the Act a family report be prepared in respect of matters relating to the welfare of the children R, S and T and IT IS REQUESTED THAT the family consultant charged with preparation of that report consider the following matters:

    4.1.whether the children are at risk of being exposed to any physical or psychological harm in the care of either parent;

    4.2.the views expressed by the children and each of them any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    4.3.the relationship between the children and each other and with each of their parents and any other relevant person(s);

    4.4.the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

    4.5.the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

    4.6.the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

    4.7.the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

    4.8.the effect on the children of any family violence to which they may have been exposed;

    4.9.any special needs of the children which may be relevant to their parenting arrangements;

    4.10.any other matter the family consultant considers relevant.

  5. Pending further Order:

    5.1.Orders 1, 2, 3, 7, 8 and 9 of the Orders of 8 March 2016 insofar as they relate to R and S; and

    5.2.Orders 2 and 3 of the Orders of 25 June 2014;

    are suspended.

  6. Pending further Order, and conditional upon the husband’s compliance with Order 1, R and S shall live with their father in the State of New York, United States of America, and the wife is restrained from seeking that the names of the boys R and S be placed on the airport watch list;

  7. For the purposes of s 11 Australian Passports Act 2005 (Cth):

    7.1.It is noted the above orders allow R and S to travel internationally.

    7.2.R and S are permitted to have an Australian passport or travel-related document provided the application for that document is made by the husband and the wife, who may sign any declaration on the application in the form approved by the relevant Minister.

  8. That in the event either party refuses or neglects to do all things, and/or give all necessary authorisations as may be necessary to cause the issue of an Australian passport or travel-related passport for either or both R and S, then pursuant to s 106A of the Act the Registrar of the Family Court be and is hereby authorised to do all things, and/or give all necessary authorisations on behalf of the defaulting party.

  9. When R and S are in Australia pursuant to Order 1, they may elect to live with:

    9.1.the husband if he is in Australia;

    9.2.their paternal uncle, Mr DD Bondelmonte; or

    9.3.in accommodation provided by the husband with paid supervised services to which the wife consents in writing.

  10. Whilst R and S are in Australia pursuant to Order 1 above, the wife shall facilitate any reasonable request made by

    10.1.R and/or S to spend time and/or communicate with their sister T; and

    10.2.by T to spend time and/or communicate with her brothers R and/or S.

  11. Within 24 hours of R and S’s return to New York, United States of America, at the conclusion of the time referred to in Order 1, the husband is to surrender the boys passports to the Australian Embassy or Consulate in New York.

  12. Other than what is required in order to facilitate R’s and S’s travel to Australia in compliance with Order 1, the husband shall be restrained from:

    12.1.Causing R and S to live anywhere other than the State of New York, United States of America; and

    12.2.Causing R and S’s passports to be lodged anywhere other than the Australian Embassy or Consulate in New York; except for the sole purpose of R and S travelling to Australia in compliance with Order 1.

  13. Pursuant to s 11E of the Act a family consultant nominated by the Chief Executive Officer provide an opinion as to whether or not, if it became necessary, there would be any utility in conducting interviews for a family report in circumstances where the boys and the husband were on video from New York and the wife, T and the family consultant were on video in Sydney.

  14. The husband’s application for an order that the wife, T and the family consultant travel to New York for the purposes of carrying out interviews for the family report be dismissed. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bondelmonte & Bondelmonte (No 6) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4839 of 2011

Mr Bondelmonte

Applicant

And

Ms Bondelmonte

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

  1. The matter was originally listed for a hearing of the husband’s application for suspension of the current order requiring the parties’ two elder children, R, born in 1999 (“R”), S, born in 2001 (“S”) (collectively “the boys” or “the two elder children”) to return from New York on 31 January 2017. The hearing did not proceed on that day because the parents and the Independent Children's Lawyer agreed that the parties would attempt to reach a resolution in mediation. That mediation was unsuccessful and the matter returned for a hearing in relation to the original interim application of the husband.

  2. As is not unusual in this case, the husband and wife on the day of the hearing presented applications which had been substantially reframed.

  3. Both the parents and the Independent Children's Lawyer all said that it was still their view that it would be beneficial if arrangements could be made to prepare a report pursuant to s 62G Family Law Act 1975 (Cth) (“the Act”) so that the court had the advantage at the final hearing of expert opinion in relation to those matters that the court is required by the statute to consider.

  4. The positions of the parties and the Independent Children's Lawyer differed as to how the interviews for a family report could take place and about what other orders should be made.

APPLICATIONS

  1. The husband’s application (Exhibit 26, set out at Schedule 1), proposed that:

    5.1.The current return order and other associated orders be suspended unconditionally;

    5.2.The two elder children live with the husband in the State of New York in the United States;

    5.3.The wife be restrained from placing their names on the airport watch list;

    5.4.The wife sign necessary documents for the two elder children to be issued with Australian passports;

    5.5.A report be prepared pursuant to s 62G;

    5.6.The husband pay reasonable airfares and ground travel costs for the family consultant of the Child Dispute Services, Sydney Registry, to travel to New York for the purposes of the interviews and for five nights’ accommodation at a hotel of not less than four star rating;

    5.7.The parties’ youngest child, T, born on … 2004 (“T”), attend New York for the purposes of being interviewed by a family consultant;

    5.8.The wife, the husband, the husband’s new wife and their young child attend the interviews with the family consultant in New York;

    5.9.The husband pay reasonable airfares and ground travel costs for the youngest child to travel to New York.

  2. The wife’s application (Exhibit 27 set out at Schedule 2) seeks the following orders:

    6.1.Upon the husband ensuring the children return to Australia for the United States spring break, orders for the return of the two elder children be suspended;

    6.2.The husband cause the two elder children to return to Australia from 8 April 2017 until 17 April 2017 (the children’s spring break);

    6.3.The parents do what is necessary to issue a limited validity Australian passport for the purposes of facilitating the travel of the two elder children back to the Commonwealth of Australia;

    6.4.The husband make specific arrangements to facilitate and ensure the two elder children return to Australia;

    6.5.Whilst the children are in Australia, they live with their mother but in the event that the eldest child chooses not to, he live with his paternal uncle, Mr DD Bondelmonte, or in accommodation provided by the husband with paid supervised services to which the wife consents in writing;

    6.6.In the event that the eldest child does not live with his mother, then arrangements be made for him to spend time and/or communicate with his sister T;

    6.7.Other than is required by these orders, the husband be restrained from allowing the two elder children to live anywhere other than the State of New York;

    6.8.When the two elder children reach Australia they are to surrender their passports to the Family Court of Australia and their passports shall be returned at 4pm on the last business day prior to their scheduled date for them to return to the United States;

    6.9.A s 62G family report be prepared by a family consultant in Sydney;

    6.10.The parents ensure the attendance of the three children at interview times for the purposes of the preparation of the family report.

  3. The Independent Children's Lawyer sought orders in accordance with Exhibit 25 (set out in Schedule 3 hereof) sought the following orders:

    7.1.Suspension of the return order and associated orders;

    7.2.The two elder children live with their father in New York;

    7.3.The wife be restrained from putting the two elder children’s names on an airport watch list;

    7.4.Both parents do what is necessary to have the two elder children issued with Australian passports;

    7.5.The parties do what is necessary to ensure that the two elder children return to Australia for the purposes of attending upon a family consultant for the purposes of the preparation of a family report on a date in May 2017 to be advised by the Registry;

    7.6.When the two elder children are in Australia they may elect to live with either:

    7.6.1.their paternal uncle, Mr DD Bondelmonte; or

    7.6.2.in accommodation provided by the husband with paid supervised services to which the wife consents in writing;

    7.7.Whilst the two elder children are in Australia, the wife shall facilitate any reasonable request made by either of the two elder children to spend time or communicate with their sister, T and by T to spend time and/or communicate with her two brothers;

    7.8.Within 24 hours of the two elder children returning to New York, the husband is to surrender the boys’ passports to the Australian Embassy or Consulate in New York;

    7.9.Other than what is required to facilitate these orders, the husband be restrained from allowing the two elder children to live anywhere other than the State of New York, United States of America and attempting to remove the two elder children’s passports from the Australian Embassy or Consulate in New York;

    7.10.The preparation of a report pursuant to s 62G;

    7.11.Both parents ensure the attendance of all three children at the interviews in Sydney for the family report.

EVIDENCE RELIED UPON

  1. The wife relies upon her affidavits of 20 May 2016 and 19 October 2016.

  2. The husband relies upon an affidavit filed 19 December 2016.

  3. The Independent Children's Lawyer relies upon the orders of 8 March 2016 and the husband’s affidavit filed 19 December 2016. The Independent Children's Lawyer provided oral information about her recent discussion with the boys.

QUESTIONS TO BE CONSIDERED

  1. The following questions arise for consideration:

    11.1.If an order is made for the return of the boys for the preparation of a family report, then what conditions should apply?

    11.2.Is it likely that the husband would comply, or the boys cooperate, with any such order?

    11.3.Should the court order interviews for a family report take place in New York?

    11.4.Should the husband be ordered to return to Australia for interviews for the family report?

    11.5.Is it possible for a family report to be prepared?

    11.6.Should the current return order be suspended unconditionally?

    11.7.What orders should be made in relation to the watch list?

    11.8.What is to happen with the boys’ passport applications and passports?

    11.9.Should the boys be otherwise restrained from leaving New York?

DISCUSSION

Preparation of the family report

  1. Section 62G(5) of the Act is in the following terms:

    (5)  For the purposes of the preparation of the report, the court may make any other orders, or give any other directions, that the court considers appropriate (including orders or directions that one or more parties to the proceedings attend, or arrange for the child to attend, an appointment or a series of appointments with a family consultant).

    Note: Before making orders under this section, the court must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (see section 11E).

  2. I have considered obtaining advice pursuant to s 11E of the Act and have decided to do so only in relation to one matter discussed below.

  3. I will consider four possible orders that might lead to the parties and the children attending interviews for the preparation of a family report:

    14.1.an order, as sought by the wife and the Independent Children’s Lawyer, for the boy’s to return to Australia (without further order that would mean that the husband would not be present at the interviews of the wife, the boys and T);

    14.2.an additional order (not currently sought by the wife or the Independent Children’s Lawyer) for the husband also to return to Australia for the purposes of interviews for the family report which would be with the wife, T and the two boys if the boys returned and without the boys if they did not;

    14.3.an order, as sought by the husband, for the wife, T and a family consultant to travel to New York for interviews to take place in New York;

    14.4.an order that interviews for the family report take place in circumstances where the boys and the husband were on video from New York and the wife, T and the family consultant were on video in Sydney (this option was not discussed at the hearing).

  4. The Independent Children's Lawyer made reference to [33] and [34] of my reasons from 8 March 2016.

    33.When considering the best interests of the children overall, I not only have to take into account the boys’ expressed views, importantly, I also have to take into account the relationships that each of the children have with each of their parents and with each other.

    34.A full family report, prepared in Australia, would not just look at the boys’ views but look at the dynamics of the relationships, and in particular, the future of the relationship between [T] and her father and the future of the relationship between [S] and his mother. The father has significantly jeopardised both of those relationships because of what he has done. The relationship between the siblings would also be an important matter for the report writer to consider.

  5. Axiomatically the most ideal way of conducting the family report is for the wife, husband and three children to be in the same place at the same time with the report writer.

Option One – the boys be ordered to return to take part in interviews for a family report

  1. The Independent Children's Lawyer’s application for an order that the boys return for interviews was not in accordance with their expressed view. S says he won’t come back to Australia for the purpose of interviews for the family report; R’s position was said to be perhaps more pragmatic and he was a little more receptive to a return for a short period of time if he has 100 per cent guarantee that he be able to return to New York.

  2. The boys indicated that they were not prepared to agree to travel at the time their mother sought (the United States spring break) as that was a religious holy time and it was not appropriate for them to travel at this time.

  3. The wife’s position is that a family report needs to be prepared and that it is the husband’s manipulation of the situation that has led to a circumstance where previous court orders have not been complied with. Counsel for the wife emphasises the position of T and her relationship with her brothers and her father and the invidious position that she is in which arises from the husband thumbing his nose at the court and it would appear at least S also thumbing his nose at the court.

  1. The Independent Children's Lawyer says if the husband will not participate in Australia then at least it is important that R and S are interviewed with T and their mother and an order should be made for their return.

  2. Senior counsel for the husband conceded that if an order was made for the boys to come to Australia and the boys did come to Australia, the husband would not oppose them living with his brother, Mr DD Bondelmonte, whilst they were in Australia.

  3. The husband did not have a difficulty with the boys seeing T if they came to Australia.

  4. I accept the submissions of the Independent Children’s Lawyer that when the best interests of all three children are taken into account, the boys should be ordered to return for the interviews on the basis that their return to New York shall be guaranteed.

Option Two – the husband also to return to Australia for the purposes of interviews for the family report

  1. The Independent Children's Lawyer sought that the husband be included in the interviews for the family report but did not make any formal application for an order that he return to Australia do so.

  2. Senior counsel for the husband made it clear that the husband would not physically come to Australia for the interviews for the family report. When I asked senior counsel for the husband why the husband could not come to Australia if he was ordered to do so, the response was that the husband “says he’s not coming to Australia”.

  3. As previously observed, the husband is a person of significant means (as stated in my Reasons for Judgment of 8 March 2016 at [60], a finding endorsed by the Full Court at [141] of its Judgment of 8 April 2016). The husband has previously asserted that he needs to remain in New York for reasons connected with his business activities. The husband however has led no evidence that would support a proposition that he is unable to be physically absent from the business to fly to Australia for the purposes of interviews and then fly back to the United States.

  4. I intend to relist the matter for the parties and the Independent Children’s Lawyer to address me on whether or not there is any utility in making an order for the husband to return for interviews for the family report whether or not the boys do not return.

Option Three – Having the interviews for the family report done in New York

  1. The husband’s submission is the court should just accept his position that he is not prepared to return to Australia to participate in interviews for a family report nor is he able to secure the return of the boys and consequently the court should make orders that he says he is prepared to comply with and implicitly orders with which he can secure the boys compliance.

  2. Because of the husband’s position, senior counsel for the husband submitted that if a report is to be prepared, it can only be prepared if the interviews for the report take place in New York and the court should think of making an order that the wife, T and the family consultant fly to New York.

  3. Senior counsel for the husband conceded that I have no evidence that the Chief Executive Officer of the Family Court would release a family consultant for five days to travel from Australia to New York and back again. I do not intend to seek advice from a family consultant about that proposal.

  4. I am mindful of the current pressures upon the court’s family consultants. I do not consider that it would be consistent with good public policy to make such an order on the basis that the husband says that is the order he will comply with.

  5. I do not intend to exercise my discretion to make an order in the husband’s favour that is partly founded upon the husband stated intention not to return to Australia for interviews for a family report in Australia and is partly founded upon the husband’s assertion that he has insufficient influence on the boys to have them return to Australia for that purpose.

Option Four – Interviews in Sydney and New York by video conferencing   

  1. Senior counsel for the husband submitted that the court might possibly have to reach the conclusion that having a family report done in Australia is a “vain hope” and it would be open to the court to conclude that a family report cannot be prepared. I am not at that point yet. In these days of ever improving technology another option might be viable as a fall-back position.

  2. As indicated, pursuant to s 11E of the Act, I intend to seek advice about carrying out interviews for a family report partly by electronic means. Section 11E of the Act is in the following terms:

    Courts to consider seeking advice from family consultants

    (1)  If, under this Act, a court has the power to:

    (a)  order a person to attend family counselling or family dispute resolution; or

    (b)  order a person to participate in a course, program or other service (other than arbitration); or

    (c)  order a person to attend appointments with a family consultant; or

    (d)  advise or inform a person about family counselling, family dispute resolution or other courses, programs or services;

    the court:

    (e)  may, before exercising the power, seek the advice of:

    (i)  if the court is the Family Court--a family consultant nominated by the Chief Executive Officer; or

    (ia)  if the court is the Federal Circuit Court of Australia--a family consultant nominated by the Federal Circuit Court Chief Executive Officer; or

    (ii)  if the court is the Family Court of a State--a family consultant of that court; or

    (iii)  if the court is not mentioned in subparagraph (i), (ia) or (ii)--an appropriately qualified person (whether or not an officer of the court);

    as to the services appropriate to the needs of the person and the most appropriate provider of those services; and

    (f)  must, before exercising the power, consider seeking that advice.

    (2)  If the court seeks advice under subsection (1), the court must inform the person in relation to whom the advice is sought:

    (a)  whom the court is seeking advice from; and

    (b)  the nature of the advice the court is seeking.

  3. The work of social scientists is optimally done by way of face to face observation. In the event the boys and/or, if ordered, the husband did not return to Australia for the interviews, I am unaware of whether or not there would be any utility in contemplating conducting interviews for a family report in circumstances where the boys and the husband were on video from New York and the wife, T and the family consultant were on video in Sydney.

  4. It is my intention to seek advice from a family consultant nominated by the Chief Executive Officer to provide an opinion as to whether or not there would be any such utility.

Suspending the current interim orders unconditionally

  1. It has now been approximately 13 months since the original return order was made.

  2. Senior counsel for the husband points to significant changes in the boys’ position over the last 13 months. It is asserted that the boys have settled into school in New York; they have developed friendships and are participating in various activities there. Senior counsel for the husband highlights that R has obtained a driver’s licence in New York. R is currently in his junior year (I understand that to be the equivalent of year 11) and if he returned to Australia he would not be returning to his old school cohort group (who are now in year 12). The wife in her affidavit acknowledges that the boys are now more mature and their communication skills have developed.

  3. Senior counsel for the husband refers to the two attempts to return the boys to Australia. One was the attempt by the husband in April 2016 when the husband bought tickets for the boys, went away on a business trip and I infer didn’t have any real expectation that they were going to use the tickets to get on a plane to come back to Australia. The second event in October 2016 was a more serious attempt but did not involve any person of authority attending with the boys to ensure that they got on a plane to come back to Australia.

  4. Senior counsel for the husband, whilst accepting it was in an entirely different context, referred to [27] and [28] of my judgment of 19 October 2016:

    27. There is a desirability of limiting the frequency of change in the children’s living arrangements.

    28. Whatever version is accepted of the scene at [the] airport on 6 October 2016 I infer on either version that it was emotionally charged for both the children and the wife. I find that it is not in the children’s best interests to have a repeat of what occurred at the airport on 6 October between now and when the High Court determine whether or not the orders that have been made should stand.

  5. Senior counsel for the husband submitted that what happened at the airport on 6 October was emotionally charged and the Independent Children's Lawyer’s submitted that it would be in the boys’ best interest not to create a circumstance where that process was repeated.  

  6. On the issue of whether or not I suspend unconditionally the return order that was made in March 2016, I take into account the way in which the wife has used that order. The order was stayed until the outcome of the Full Court’s decision was known. From 8 April 2016 the wife had an order requiring the boys to be returned to Australia which was able to be registered under reciprocal arrangements in New York. At [65] of my Reasons for Judgment of 8 March 2016 I stated:

    65.The mother has instituted Hague proceedings in the United States in respect of [S] ([R] is not covered by the Convention given his age). If I make a return order and the father fails to comply with the order, the mother might choose to register and attempt to enforce the return order in New York (see s 70M and s 70N of the Act; Regulation 14 Family Law Regulations) and not continue with those Hague proceedings.

  7. Counsel for the wife indicated that lawyers in New York took incorrect proceedings and it seems that the order was not registered in New York until September 2016 at which time the wife then attempted to enforce the order as if it were an order made in New York. The parties attended court and left court with an arrangement whereby the boys would go home and pack and be taken to the airport by their father where they would meet their mother. The wife at no time in any proceedings in New York has sought orders from the New York court for any person in authority to assist in ensuring that the boys be placed on an aeroplane back to Australia.

  8. S at the age of 16 is expressing views conveyed by the Independent Children's Lawyer that he does not intend to cooperate with any order that is made for his return.

  9. Given that history, particularly in circumstances where R will be 18 in June (and consequently no order would continue to apply to him). I intend to suspend the return order as requested by the Independent Children’s Lawyer and the husband.

Passports

  1. Neither boy has a current Australian passport.

  2. The wife sought an order for the issue of a limited validity passport. No detailed submissions were made as to the limits that would be placed on the passport except that the passport only be able to be used for the sole purposes of the boys travelling between the United States and Australia for the purposes of the interviews for the family report. Section 17 of the Australian Passports Determination 2015 provides for the maximum period for which an Australian passport can be issued. Limited validity passports are the same as normal passports except the period for which they are issued is less than the maximum period. It is not possible to order a trip-specific passport. Accordingly, it is not possible to order limited travel documents in the way proposed by the wife. The appropriate course is to restrain parents from using passports in particular ways.

  3. However, in accordance with the order sought by the Independent Children’s Lawyer orders will be made for the issue of the children’s passports on conditions as to where those passports are to be held from time to time.

Watch List

  1. There is no utility in R and S remaining in the Airport Watch List. 

Restraint on boys otherwise leaving New York

  1. The Independent Children's Lawyer also wanted an order restraining the boys from leaving New York because she was concerned that the boys might travel to or be taken to a non-Hague country. There is some utility in that order being made and I will do so.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 28 April 2017.

Associate:

Date: 28 April 2017 

SCHEDULE 1

  1. Pending further Order suspend:

    1.1Orders 1, 2, 3, 7, 8 and 9 of the Orders of 8 March 2016 insofar as they relate to the children R, (“R”) born … and S (“S”) born … 2001; and

    1.2Orders 2 and 3 of the Orders of 25 June 2014.

  2. Pending further Order, R and S shall live with the husband in the State of New York, United States of America, and the wife is restrained from seeking that the names of the boys R and S be placed on the AFP Airport Watchlist.

  3. The parties do all acts and sign all documents within 21 days to cause each of the children R and S to be issued with Australian passports.

  4. The parties do all things and sign all documents within 21 days to cause each of the children R, S and T to attend upon a Family Consultant of the Child Dispute Services, Sydney Registry on a date, to be advised by the Registry, such attendance to occur in New York.

  5. Either party have liberty on 7 days’ notice to seek to implementation these Orders.

Procedural Orders:

  1. Order pursuant to section 62G of the Family Law Act 1975 a Family Report be prepared in respect of matters relating to the welfare of the children R, born …, 1999, S, born …, 2001 and T, born …, 2004, and IT IS REQUESTED THAT the Family Consultant charged with preparation of that report consider the following matters:

    6.1whether the children are at risk of being exposed to any physical or psychological harm in the care of either parent;

    6.2the views expressed by the children and each of them any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    6.3the relationship between the children and each other and with each of their parents and any other relevant person(s);

    6.4the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

    6.5the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

    6.6the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

    6.7the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

    6.8the effect on the children of any family violence to which they may have been exposed;

    6.9any special needs of the children which may be relevant to their parenting arrangements;

    6.10any other matter the Court Expert considers relevant.

  2. Both parents shall do all acts and things necessary to ensure the attendance of R, S, and T at the interview times for the Family Report in New York, such interviews to also include the parties, the husband’s wife and the children’s half-sibling, N.

  3. The husband shall pay the reasonable airfares and ground travel costs incurred in the Family Consultant travelling to New York for the purpose of the interviews and for five nights of accommodation at a hotel of not less than four-star rating.

  4. The husband shall pay the reasonable airfares and ground travel costs incurred in T travelling to New York for the purpose of the interviews.

SCHEDULE 2

  1. That pending further order, and conditional upon the father’s compliance with Order 2 of the Orders herein, Orders 1, 2, 3, 7, 8 and 9 made 8 March 2016 and Orders 2 and 3 of the orders made 25 June 2014, insofar as they relate to R (“R”) born … 1999 and S (“S) born … 2001 (“the children”) be suspended.

  2. That the Father is to do all things and sign all documents to cause each of the children R and S to be returned to the Commonwealth of Australia from 8 April 2017 until 17 April 2017, for R and S’s spring break.

  3. That the Parties are to forthwith do all things sign all documents and give all necessary authorities for the issue of a limited validity Passport from the Australian Passport Office and/or the Office of Border Security for the sole purposes of R and S’s travel pursuant to Order 2 herein between the United States of America and the Commonwealth of Australia.

  4. That the Father is to make all necessary arrangements on or before 3 April 2017, including but not limited to:

    4.1.Collecting the necessary travel documents for the two children

    4.2.Booking and paying in advance for the children’s airline tickets for the purpose of the children’s travel in accordance with Order 2.

    4.3.Delivering and accompanying the children to the relevant airport at which the children’s travel to Australia will commence, and doing all things necessary to ensure the children board the plane and comply with all necessary requirements to enable the children to board the plane.

    4.4.Arranging the children’s luggage necessary for their travel and stay in Australia.

    4.5.Advising the Mother of the flight details for the children’s travel in accordance with Order 4.2.

    4.6.Advising the Mother of any accommodation arrangements he has made for the children’s stay in Australia, prior to the children’s departure.

  5. That in the event either party refuses or neglects to do all things, and/or give all necessary authorisations as may be necessary to cause the issue of the limited travel documents pursuant to Order 3 herein, then pursuant to Section 106A the Registrar of the Family Court be and is hereby authorised to do all things, and/or give all necessary authorisations on behalf of the defaulting party.

  6. When R and S are in Australia pursuant to order 2:

    6.1.S and R shall live with the mother and their sister T, born … 2014 (“T”);

    6.2.In the event that R chooses to do so, he may live with:

    6.2.1.With his paternal uncle, Mr DD Bondelmonte; or

    6.2.2.In accommodation provided by the father with paid supervised services to which the mother consents in writing.

  7. In the event that R elects not to live with his mother whilst he is present in Australia pursuant to order 6.1 then the mother shall facilitate any reasonable request made:

    7.1.by R to spend time and/or communicate with his sister T; and

    7.2.by T to spend time and/or communicate with her brother R.

  8. Other than is required in order to facilitate R and S’s travel to Australia in compliance with order 2, the father shall be restrained from:

    8.1.Causing R and S to live anywhere other than the State of New York.

  9. Within 24 hours of R and S returning to the Commonwealth of Australia, the parties or either of them is to surrender to the Family Court of Australia the limited travel documents for R and S and the Family Court of Australia shall hold the documents until 4pm on the last business day before R and S are scheduled to return to the United States of America or such further Order of the Court.

106A Order

  1. That in the event that either party refuses or neglects to execute any Deed or instrument necessary to give effect to all or any of the Orders made herein, the Registrar of the Family Court of Australia be appointed, pursuant to Section 106A execute such Deed or instrument in the name of the said party and to do all acts and things necessary to give validity and operation to the said Deed or instrument.

  2. The Registrar is authorised to execute any such necessary instrument upon being satisfied by affidavit that neglect or default, as the case may be, as occurred.

  1. Either party have liberty on 7 days’ notice to seek implementation of these orders.

Family Report

  1. Order pursuant to section 62G of the Family Law Act 1975 a Family Report be prepared in respect of matters relating to the welfare of the children R, born on … 1999 and S, born on … and T, born on … 2004 and IT IS REQUESTED THAT the Family Consultant charged with preparation of that report consider the following matters:

    13.1.whether the children are at risk of being exposed to any physical or psychological harm in the care of either parent;

    13.2.the views expressed by the children and each of them any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    13.3.the relationship between the children and each other and with each of their parents and any other relevant person(s);

    13.4.the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

    13.5.the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

    13.6.the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

    13.7.the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

    13.8.the effect on the children of any family violence to which they may have been exposed;

    13.9.any special needs of the children which may be relevant to their parenting arrangements;

    13.10.any other matter the Court Expert considers relevant.

  2. Both parents shall do all acts and things necessary to ensure the attendance of R, S, and T at the interview times for the Family Report, as advised by the Child Dispute Service Sydney Registry.

SCHEDULE 3

Parenting Orders:

  1. Pending further Order suspend:

    a)Orders 1, 2, 3, 7, 8 and 9 of the Orders of 8 March 2016 insofar as they relate to the children R, (“R”) born … 1999 and S (“S”) born … 2001; and

    b)Orders 2 and 3 of the Orders of 25 June 2014.

  2. Pending further Order, and conditional upon the father’s compliance with Order 4, R and S shall live with their father in the State of New York, United States of America, and the mother is restrained from seeking that the names of the boys R and S be placed on the Family Law airport watch list;

  3. The parties do all acts and sign all documents to cause each of the children R and S to be issued with Australian passports;

  4. The parties do all things and sign all documents to cause each of the children R and S to return to the Commonwealth of Australia for the purpose of attending upon a Family Consultant of the Child Dispute Services Sydney Registry on a date in May 2017, to be advised by the Registry;

  5. When R and S are in Australia pursuant to Order 4, they may elect to live with:

    i)their paternal uncle, Mr DD Bondelmonte; or

    ii)in accommodation provided by the father with paid supervised services to which the mother consents in writing.

  6. Whilst R and S are in Australia pursuant to Order 4 above, the mother shall facilitate any reasonable request made by

    a)R and/or S to spend time and/or communicate with their sister T; and

    b)By T to spend time and/or communicate with her brothers R and S.

  7. Within 24 hours of R and S’s return to New York, United States of America, at the conclusion of the time referred to in Order 4, the father is to surrender the boys passports to the Australian Embassy or Consulate in New York.

  8. Other than what is required in order to facilitate R’s and S’s travel to Australia in compliance with Order 4, the father shall be restrained from:

    a)Causing R and S to live anywhere other than the State of New York, United States of America; and

    b)Removing or attempting to remove R’s and S’s passports from the Australian Embassy or Consulate in New York; except for the sole purpose of R and S travelling to Australia in compliance with Order 4.

  9. Either party have liberty on 7 days’ notice to seek to implementation these orders.

Procedural Orders:

  1. Order pursuant to section 62G of the Family Law Act 1975 a Family Report be prepared in respect of matters relating to the welfare of the children R, born …, 1999, S, born …, 2001 and T, born …, 2004, and IT IS REQUESTED THAT the Family Consultant charged with preparation of that report consider the following matters:

    a)whether the children are at risk of being exposed to any physical or psychological harm in the care of either parent;

    b)the views expressed by the children and each of them any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;

    c)the relationship between the children and each other and with each of their parents and any other relevant person(s);

    d)the willingness and ability of each of the children’s parents to facilitate and encourage a close and continuing relationship between the children and the other parent;

    e)the likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;

    f)the capacity of each parent or any other person to provide for the needs of the children, including emotional and intellectual needs;

    g)the attitude to the children and to the responsibilities of parenthood, demonstrated by each of the children’s parents (or any other relevant person);

    h)the effect on the children of any family violence to which they may have been exposed;

    i)any special needs of the children which may be relevant to their parenting arrangements;

    j)any other matter the Court Expert considers relevant.

  2. Both parents shall do all acts and things necessary to ensure the attendance of R, S, and T at the interview times for the Family Report, as advised by the Child Dispute Service Sydney Registry.

Key Legal Topics

Areas of Law

  • Family Law

Legal Concepts

  • Jurisdiction

  • Procedural Fairness

  • Injunction

  • Remedies

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