Bondelmonte and Bondelmonte (No 4)

[2016] FamCA 939

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE (NO 4) [2016 ] FamCA 939

FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks an order that there be a stay of orders made requiring him to return children to Australia – Where the wife opposes the order for the stay – Where the stay is allowed until the determination by the High Court of the husband’s appeal.

Aldridge & Keaton [2009] FamCAFC 106
Clemett and Clemett (1981) FLC 91-013
EJK & TSL (No. 2) (2006) 35 Fam LR 590
JRN & KEN v IEG & BLG (1998) 72 ALJR 1329

APPLICANT: Mr Bondelmonte

RESPONDENT: Ms Bondelmonte

INDEPENDENT CHILDREN’S LAWYER: Ms Maitland

FILE NUMBER: SYC 4839 of 2011

DATE DELIVERED: 19 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 19 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell, SC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Campton, SC

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. Until the determination by the High Court of the husband’s appeal from the Full Court’s decision of 8 April 2016, orders 1 and 8 made on 8 March 2016 be stayed.

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 4) 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

EX TEMPORE REASONS FOR JUDGMENT

INTRODUCTION

1. The husband filed an Application in a Case on 5 October 2016 seeking an order that until further order there be a stay of orders 1 and 8 of the orders made on 8 March 2016. Senior counsel for the husband orally amended his application to limit the stay pending determination of the husband’s appeal to the High Court.

2. The orders in respect to which the stay is sought, are in the following terms:

   1. Forthwith and within 72 hours of the date of these orders, the father is to do all things and sign all documents to cause each of the children [R] born … 1999 ([R]) and [S] born … 2001 ([S]) to be returned to the Commonwealth of Australia.

   8. Pending further order and subject to order 9, [R], [S] and [T] born … 2004 (“[T[”) (collectively “the children”) live with the mother. 

3. It is also relevant to note that order 9 is in the following terms:

   9. In the event the father returns to Australia with [R] and [S], [R] and [S] can continue to live with him. In the event that he does not, [R] and [S] are to live with their mother provided that in the event that [R] and/or [S] choose to do so, they may live either:

   9.1 In accommodation provided by the father with paid supervised services to which the mother consents in writing; or

   9.2 [S] may live with [Ms U] and/or [R] may live with [Ms W]

4. The wife opposes the order for the stay sought by the husband and in the alternative suggests that only order 8 would be the subject of an order for stay.

5. The Independent Children’s Lawyer supported the husband’s application for a stay until the husband’s appeal to the High Court is determined.

6. The husband and the two elder children (“the children”) continue to reside in the US along with the husband’s new wife and child, N born in 2014. The children’s sister, T, who was born in 2004 and is 12 years of age, continues to reside in Australia with the wife.

7. An order was made by consent staying the orders of 8 March 2016 temporarily to allow the husband’s appeal to the Full Court to be determined.

8. On 8 April 2016 the Full Court delivered judgment in relation to the appeal and by majority, the husband’s appeal against the orders was dismissed. The orders of 8 March 2016 were not any longer the subject of an order staying them and the wife was thereafter at liberty to seek to register those orders in the New York Family Court and when she did so they became enforceable as if they were orders made by that court.

9. The husband filed an Application for Special Leave to Appeal to the High Court on 15 April 2016. That Application was listed for hearing on 14 October 2016. Two Justices of the High Court granted special leave and the husband’s appeal is set for an expedited hearing during sittings over two weeks commencing on 5 December 2016.

10. The husband relied upon affidavits filed on 5 October 2016 and 18 October 2016. The wife relied upon an affidavit filed on 19 October 2016 and a statement signed by her which became Exhibit 16.

11. The law in relation to granting stays in parenting proceedings is not controversial.

12. The Full Court in EJK & TSL (No. 2) (2006) 35 Fam LR 590 quoted, with approval, Nygh J’s comments in Clemett and Clemett (1981) FLC 91-013 and Kirby J’s comments in JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 in the following terms:

    16.  It facilitates our discussion to set out the principles espoused in Clemett and Clemett (supra) to which we have already referred. At 76,175 Nygh J said:

    In determining whether a stay should be granted, the welfare of the child is the paramount consideration. It is especially desirable that the frequency of any changes in the custodial arrangements relating to the child should be limited as much as possible. If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period. In this case we are satisfied that the appellant is appealing seriously on the merits of the case, that an appeal can be (and has in fact been) expedited within a reasonable time and that the child is properly looked after by the husband. There is no indication that his Honour gave any consideration to those matters. If his Honour did, we are of the view he did not give sufficient consideration to them. For those reasons, we are of the view that his Honour exercised his discretion wrongly and consequently that the appeal should be upheld.

    17.  Although we note that this decision pre-dates the Family Law Reform Act 1995 (Cth) when the whole of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) was subject to ‘the best interests test’, we accept the principles espoused are relevant to this application, and the child’s best interests, even if not the paramount consideration, on the facts of this case are a significant consideration. The importance of the consequences for a child of granting or refusing a stay are well recognised. In JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332 Kirby J said:

    In my opinion, some adaptation of the rules stated in the cases governing stays in this Court must also occur in cases which affect significantly third parties who are not parties before the Court and, in particular, children whose welfare must always be in the mind of a court in making an order affecting their interests.

13. In Aldridge & Keaton [2009] FamCAFC 106, the Full Court said at paragraph [18]:

    The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia vMyer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings ConstructionLimited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:

    ·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

    ·a person who has obtained a judgment is entitled to the benefit of that judgment;

    ·a person who has obtained a judgment is entitled to presume the judgment is correct;

    ·the mere filing of an appeal is insufficient to grant a stay;

    ·the bona fides of the applicant;

    ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

    ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

    ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

    ·the desirability of limiting the frequency of any change in a child’s living arrangements;

    ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

    ·the best interests of the child the subject of the proceedings are a significant consideration.

14. I accept the submission by senior counsel for the husband that prima facie two members of the High Court thought there was sufficient merit in the appeal to grant leave for the appeal to proceed.

15. The initial order was for return of the children as soon as practicable but within 72 hours. That did not happen. Senior counsel for the wife challenges the husband’s bona fides. He highlights, amongst other things, the asserted attempt by the husband to have the children returned to Australia in April 2016, when he bought airline tickets for them to return unaccompanied with S travelling as an unaccompanied minor, and then went on a business trip. I accept the circumstances of this attempt to return the children by the husband raises, prima facie, issues as to his bona fides, but I am unable to make a finding about that in the context of this interim hearing.

16. The husband contends that he is unable to return to Australia because he needs to discharge his obligations as Chief Executive Officer and he has formed the view that unless he is involved in the business on a day to day basis the business will fail and he will then have no active income to support himself, his wife and any of his four children. I accept, as senior counsel for the wife submits, that little weight can be placed on that assertion. Given the findings that I made in relation to the husband’s financial position in the Reasons of 8 March 2016, which were unsuccessfully challenged before the Full Court and were not, so far as I understand (and I do not have a transcript of the Special Leave Application), the subject of a ground of appeal in the High Court, I have doubts about the husband’s assertion that he cannot leave America for the reasons that he states.  The husband also asserts that he does not have the physical capacity to ensure that the children travel back to Australia in accordance with the orders. From the materials looked at overall that also, prima facie, raises doubts about the husband’s bona fides given his relationship with the children, the fact that he is seemingly totally supporting them at the moment, and that there is no indication that they are otherwise non-compliant with the directions that he gives them.

17. On 8 March 2016 the husband had also been ordered to deliver the children’s passports to the Australian Embassy and that order had never been stayed at any time. The husband’s evidence would indicate that by April he still had not complied with the order. He says in April 2016 he attempted to obtain the passports but the boy’s had hidden the passports from him. The husband asserts that in June 2016 he went searching in his home for the children’s passports while they were at school but was unable to find them. How and when the passports came to be lodged at the Australian Embassy has not been the subject of any evidence by the husband before me.

18. Having made those comments about the husband’s bona fides, in respect of the issue of fairness to all parties, on the other hand, I take into account the information in the wife’s statement (Exhibit 16) would indicate that there seems on its face to have been a number of missteps taken in attempting to enforce the orders that were made on 8 March 2016 after the Full Court had delivered their reasons on 8 April 2016. There was a delay in the registration of the orders in the Family Court of New York of at least four months. The wife says that she registered my order of 8 March 2016 in New York on 20 July 2016. The husband says that that order was registered on 22 September 2016.

19. Both parties in their evidence have set out events which have taken place subsequent to the orders being made on 8 March 2016. There are competing allegations in the affidavits. The wife’s affidavit was filed so close to the hearing that the husband has not had an opportunity to respond to what she has said.

20. There are some facts which are broadly agreed although the details are not agreed.

21. The husband sought a stay of the enforcement of my order which the wife did eventually register in the Family Court in the State of New York but his application for a stay in New York was dismissed.

22. After those court proceedings, the husband delivered the children to the airport on Thursday 6 October 2016. The reason for them being taken to the airport was that they were to be returned to Australia with their wife. The wife had the children’s passports in her possession which she had collected from the Australian Embassy.

23. The luggage of the children was checked in at the airport. The children refused to board the scheduled flight back to Australia. The children left the airport with their mother and stayed overnight with her in a motel. On the next day, the wife returned the boys to the husband and returned to Australia without them. As I have said, there is significant difference between the parties’ detailed versions as to exactly how all this happened but what I have described are the non-controversial facts.

24. Senior counsel for the husband refers to the boy’s views as set out in a psychologist’s report which was commissioned by the husband in July 2016. That report, untested, contains the caveat by the report writer that he hadn’t spoken to the children’s mother nor seen the children with their mother or their sister. The views expressed by the children as recorded in that report are not significantly different to those that I accepted in my Reasons for Judgment on 8 March 2016.

25. The only purpose of the wife opposing the stay would be her wish to continue to attempt to enforce the current orders in New York between now and when the High Court determines the husband’s appeal. The subject of the appeal to the High Court is a return order that was made on 8 March 2016. Not granting the stay, consequently, would risk that the appeal, for which leave now has been given, may well be rendered nugatory if the stay is not granted and that is a substantial factor.

26. Senior counsel for the wife submitted that it could be longer than seven or so weeks before the result of the High Court is known if the High Court reserve their judgment and I accept that that may well be so. Given the High Court has expedited the hearing, however, I would not expect that the High Court would take a lengthy time to determine the appeal.

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 JFK 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.

Order

1. Until the determination by the High Court of the husband’s appeal from the Full Court’s decision of 8 April 2016, orders 1 and 8 made on 8 March 2016 be stayed. 

I certify that the preceding twenty nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 19 October 2016.

Associate:

Date: 27.10.16