BONDELMONTE & BONDELMONTE - [2016] FamCA 138

FAMILY COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE

[2016] FamCA 138

FAMILY LAW – PARENTING – Where the father has retained two children in New York – Where the mother seeks a return order, recovery order and suspension of parenting orders – Where a return order and suspension of orders is made – Where a recovery order is not made.

FAMILY LAW – INJUNCTIONS – Where the mother seeks that pending the return of the children, the father be restrained from causing them to live anywhere other than New York – Where the injunctive order is made – Where orders are also made about passports and the watchlist.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Bondelmonte

RESPONDENT:

Mr Bondelmonte

INDEPENDENT CHILDREN’S LAWYER:

Ms Connor

FILE NUMBER:

SYC

4839

2011

DATE DELIVERED:

8 March 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Schonell, SC

SOLICITOR FOR THE RESPONDENT:

Karras Partners

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSE

Orders

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.
Pending the father’s compliance with order 1 to return R and S to Australia or the finalisation of the mother’s application for enforcement of order 1 and/or the mother’s application under the Hague Convention, the father shall be restrained from causing R and S to live anywhere other than the State of New York.
The father is to forthwith surrender all valid passports for R and S to the Australian Embassy or Consulate in New York and R’s and S’s passports shall be released for the sole purpose of R and S returning to Australia pursuant to these orders or any order made under the Hague Convention on the Civil Aspects of International Child Abduction.
The mother and father, by themselves, their servants or their agents, are restrained from removing or attempting to remove T from the Commonwealth of Australia or R and S from the Commonwealth of Australia once they have returned to Australia.
The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship shall take all necessary steps to immediately place the said children’s names on the airport watch list also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia and the Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.
Within 24 hours of R and S returning to the Commonwealth of Australia, the mother is to surrender to the Family Court of Australia the passports of all of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: BONDELMONTE & BONDELMONTE [2016] FamCA 138
Case: [2016] FamCA 138
Decision Date: 8 March 2016

CaseChat Overview and Summary

In this matter before Watts J, the mother sought orders for the return of two children, R and S, who had been retained by the father in New York. The mother also sought a recovery order and the suspension of existing parenting orders. The court considered the mother's applications for injunctive relief, specifically that pending the children's return, the father be restrained from causing them to live anywhere other than New York, and made consequential orders regarding passports and a watchlist.

The court was required to determine whether to grant a return order for the children to Australia, whether to suspend existing parenting orders, and whether to make a recovery order. Additionally, the court considered the mother's application for an injunction to prevent the father from removing the children from New York pending their return to Australia, and the necessity of orders concerning the children's passports and placement on an airport watch list.

Watts J ordered the father to facilitate the immediate return of R and S to Australia within 72 hours. Pending compliance with this return order or the finalisation of enforcement proceedings or Hague Convention applications, the father was restrained from causing the children to live outside of New York. The father was also ordered to surrender the children's passports to the Australian Embassy or Consulate in New York, with the passports to be released solely for the purpose of their return to Australia. Further orders were made to prevent the removal of the children from Australia once they returned, and to place their names on an airport watch list. The court also made orders regarding the children's living arrangements with the mother, with specific provisions for R and S if the father returned to Australia with them, and allowed for alternative living arrangements with the father's consent or with named individuals. Existing parenting orders were suspended pending further order, and the mother's property settlement application was adjourned.

Orders

Orders of the court

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.

2. Pending the father’s compliance with order 1 to return R and S to Australia or the finalisation of the mother’s application for enforcement of order 1 and/or the mother’s application under the Hague Convention, the father shall be restrained from causing R and S to live anywhere other than the State of New York.

3. The father is to forthwith surrender all valid passports for R and S to the Australian Embassy or Consulate in New York and R’s and S’s passports shall be released for the sole purpose of R and S returning to Australia pursuant to these orders or any order made under the Hague Convention on the Civil Aspects of International Child Abduction.

4. The mother and father, by themselves, their servants or their agents, are restrained from removing or attempting to remove T from the Commonwealth of Australia or R and S from the Commonwealth of Australia once they have returned to Australia.

5. The Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship shall take all necessary steps to immediately place the said children’s names on the airport watch list also known as the PACE Alert System, at all points of arrival and departure in the Commonwealth of Australia and the Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all States and Territories of the Commonwealth of Australia.

6. Within 24 hours of R and S returning to the Commonwealth of Australia, the mother is to surrender to the Family Court of Australia the passports of all of the children and the Family Court of Australia shall hold the passports pending further order of the court.

7. Pending further order, orders 2 and 3 of the orders made 25 June 2014 be suspended.

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

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

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

11. Relevant to the mother’s application for property settlement, the mother’s application for this court to request the Registrar of the Federal Court files involving proceedings involving the father in the Federal Court be adjourned to 4 May 2016 at 10am and within 14 days the father file and serve any response in relation to that part of the mother’s application and any evidence upon which the father seeks to rely in respect of that application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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