BONDELMONTE & BONDELMONTE
[2016] FamCA 138
•8 March 2016
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 | of | 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 the children and the Family Court of Australia shall hold the passports pending further order of the court.
Pending further order, orders 2 and 3 of the orders made 25 June 2014 be suspended.
Pending further order and subject to order 9, R, S and T born … 2004 (“T”) (collectively “the children”) live with the mother.
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
9.1 S may live with Ms U and/or R may live with Ms W
Either party have liberty on 7 days notice to seek to implementation these orders.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bondelmonte & Bondelmonte has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4839 of 2011
| Ms Bondelmonte |
Applicant
And
| Mr Bondelmonte |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
These interim proceedings relate to what orders should be made about two boys, R who is almost 17 and S who is almost 15, who have been retained in the United States of America by their father. Their sister T who is 11 ½, remains with her mother in Australia.
The father says that he decided to relocate to the United States whilst he was there in January 2016. At the time he made this decision, the two elder boys were holidaying with him in the United States and had left Australia for that holiday with the consent of the mother. The father says he asked the boys whether or not they would like to stay with him. He says that they said they would. Accordingly the father informed the mother that he did not intend to return the boys to Australia, notwithstanding the existence of the current orders. During February, he has established the boys in school in the United States and in new accommodation that he occupies with his new wife and infant child.
INTERIM APPLICATIONS
The mother in a Further Initiating Application seeks:
3.1Orders for the return of R and S;
3.2For a suspension of orders allocating when the children would live with each of the parents which were made on 25 June 2014;
3.3An order that pending further order, all three children live with the mother;
3.4An order injuncting the father from causing the children to live anywhere other than the State of New York pending their return to Australia or the determination of the mother’s application under the Hague Convention in New York or enforcement of an order for return;
3.5A notation that in the event that any of the children elect not to live with the mother when they return to Australia, then the mother would not oppose them living with the paternal grandmother, or for R to reside with Ms W and S to live with Ms U;
3.6An order that the boys’ passports be surrendered to the Australian Embassy or Consulate in New York;
3.7An order that T and the boys, once the boys are back in Australia, not be removed from the country;
3.8A recovery order once the boys are back in Australia;
3.9A watch list order.
The father opposed all the orders sought by the mother, although senior counsel for the father made it clear that he did not have instructions one way or the other in relation to the injunctive order which the mother sought requiring the boys to remain in New York pending their return to Australia or the outcome of Hague proceedings in New York. The father did not seek any variation of the current court orders nor did he seek any orders for the alternative care of the boys in circumstances where he was ordered to return the boys to Australia.
Senior counsel for the father did suggest that the court should seek a “wishes report” from a qualified professional in New York prior to determining the mother’s application and to that extent sought a deferring of the decision about any outcome of the mother’s applications. The lawyer representing the Independent Children's Lawyer spoke about the possibility of getting a wishes report without advocating it. The mother submitted that any report should be done after the boys were returned to Australia.
The lawyer representing the Independent Children's Lawyer was unable to assist the court by articulating what orders were sought by the Independent Children's Lawyer, saying it was a difficult case.
Basic chronology
The husband is 49 years of age; the wife is 52 years of age.
Parenting orders were made on 25 June 2014 to the following effect:
8.1The parties have equal shared parental responsibility;
8.2That the children live with the parties as agreed between them or at the children’s own election (order 2 of 25 June 2014);
8.3The parties each be able to take the children outside Australia for a holiday provided certain conditions in relation to notice are met. The orders require that at least 14 days prior to the children’s departure from the country, a parent who wishes to take them from the country provide the following documents and information:
A copy of the children’s travel itinerary, including addresses for all places where the children are staying; telephone numbers; copies of the children’s return air tickets (order 3 of 25 June 2014).
8.4There was a notation made in June 2014 that R lived with the father; S lived 9 nights per fortnight with the father and 4 nights per fortnight with the mother and that T live with the mother and spend some time with the father as agreed.
The pattern of the children’s time together leading up to the events of January 2016 was:
9.1R was estranged from his mother and had not seen her or had any contact with her since the end of September 2013.
9.2There is an issue between the parties as to what time S has been spending with the mother. According to the father, the extent of the face to face time between S and his mother was that S had only spent a total of two nights overnight with the mother through the 2015 calendar year and in addition, spent four day only occasions during that year. The mother’s evidence is that S spends time with her at his own determination and that that usually was one day each fortnight and sometimes overnight. I have no way, in the context of this interim hearing, of resolving this conflict in the evidence. The family consultant records that S communicates with his mother and spends time with his mother on a regular limited basis over weekends.
9.3The father says T has lived with the mother and had spent 37 nights out of 365 nights with the father in the 2015 calendar year; 15 of those nights were on a holiday in September 2015. So on average, T has spent less than one night per fortnight with her father throughout 2015.
Up until the end of the school year in December 2015, all three children went to X School in Suburb Y. The father in his affidavit filed 1 March 2015 says that R and S were in the senior school at the X School whereas T was in the primary school. He asserts that the boys did not see T during school time.
On 1 January 2016 the father sent an email saying he was "thinking of taking the boys on a holiday in the second half of January". The email of 1 January 2016 did not comply with order 3 of the orders of 25 June 2014.
On 10 January 2016 the mother received a further email saying "I have now decided to take the boys to New York for a couple of weeks". He provided copies of airline tickets that he had purchased on 8 January indicating a departure date of 14 January and a return date leaving America on 30 January. This did not give the 14 days notice required by the June 2014 orders.
On 11 January the father flew to the United States.
On 12 January the father's lawyers sent a letter to the mother's lawyers asking her to reconsider the two boys "having a holiday with their father", stating "It would be disproportionately damaging to the boys if your client attempted to cancel their holiday".
On 13 January the mother participated in an interview with the family consultant for the purposes of preparing a child responsive program memorandum. The father participated by telephone from New York.
On 13 January the mother provided her consent to the boys holidaying with their father in the United States in accordance with his proposal.
On 20 January the mother and T were interviewed by the family consultant with the father on the telephone from New York. The father's position was that he sought to spend substantial and significant time with T, at least for alternate weekends and part of each school holidays.
It is the father's assertion that by 25 January 2016 it had become apparent to him that it would be advantageous to his financial interests for him to remain in America. He says that on that day he commenced discussions with his current wife about relocating to the United States. The father also says that adverse publicity in Australia in respect of his surname has compromised his employment prospects in Australia.
On 29 January 2016 the father's lawyers, on his instructions, wrote to the mother's lawyers advising of "a change of circumstances in our client's personal situation, which will have immediate bearing upon the parenting arrangements, and the current proceedings". The letter asserts that the father's role as Chief Executive Officer in B Pty Ltd "will require him to live in the United States indefinitely". The letter refers to "commercial imperatives" and goes on to say that he has had discussions with the children, R and S, and that they have both elected to remain with him in the country. There is a not too subtly disguised reference to possible Hague proceedings in the United States in relation to S in a sentence which reads "We note that, given the children's ages, the children are likely to object to any attempt to return to Australia, taking into account their apparent strength of feelings and their respective degrees of maturity".
On 31 January 2016 the father arranged for R and S to undertake an academic evaluation at Z School which is a schooling institution in New York and the children have started school there.
The father's new wife and child have now also joined him in the United States.
The children’s views
In his affidavit filed 26 February 2016, the father asserts that neither boy wishes to return to Australia. He sets out statements he says that each boy has made to him in the weeks that the boys have been in the United States. He also annexes to his affidavit, four pages of SMS text messages which he asserts S forwarded to his mother. The text messages express the view that S wishes to stay in New York with his father and asks his mother not to do anything to stop him from staying. He tells his mother that he loves her and asks to tell him that she will not do anything to make him come back to Australia. The mother engages with S in the text messages and expresses the view that the father has been instrumental in influencing what S has said in those text messages. On the face of it, S has sent a text message in the following terms:
I had 2 choices. Either I stay with you or I stay with dad in America. I choose to stay with dad in America because I have lived with him for years now and I have more opportunities in America. Yes I do have friends in Australia but I will make friends in America. It’s the same as if you move school but I am just further away than usual. But losing friends and making new friends isn’t a big concern for me. My concern is how my future will be like. I know that dad can provide a better future for me than you can, he has a place for me to stay in and he can afford to pay for the things I need in life. P/Z stop trying to get me back into Australia cause I don’t want to live with you there but Im happy to visit.
S also tells his mother in a different text that what was going on right now is because of [his father’s] work not because of things that have happened years back when the parties were an intact family.
It is a reasonable inference to draw from the text messages that even if the father did not have a direct hand in the authorship of them, there have been extensive conversations between he and S about the father’s desire that he be able to relocate with the boys to America.
There has been no interaction between the mother and R since he has been in New York.
The mother gives evidence that since learning that her father and brothers will not be returning to Australia, T has become withdrawn, sullen and increasingly upset. She says that T is so upset that she has difficulty motivating T to attend school and social events. She says that T cries often at home and refuses to talk to her mother about her feelings and has repeatedly asked her mother since the boys have been retained in the United States, “When are the boys coming back?”.
A wishes report?
Senior counsel for the father suggests that the court might consider ordering that a wishes report be obtained from an expert in the United States in relation to the current views of the boys.
The Independent Children's Lawyer had made some inquiries that had not been fruitful in relation to the possibility of making arrangements in the United States for a report to be done. Legal Aid NSW also has inhouse facilities so that a wishes report might be done with the boys by telephone.
The question arises as to the utility of any report that I would be able to obtain in relation to the boys’ views whilst they live under the influence of their father in New York.
The father, by his unilateral action in breach of court orders, has taken the law into his own hands and given the boys the choice of participating in a breach of the current orders by staying in New York. I do not doubt that the boys have been dazzled by the bright lights and that they find New York “amazing” (the father says that both boys have used that word to describe their new circumstances) and that R reports that “everything is better”. On the face of it, S has sent a text to his mother as set out above which says, amongst other things, “Dad can provide a better future.... and can afford to pay for the things I need”. In the text message S has sent his mother, he has dismissed the roots that he had in Australia and his friends at school and other connections that he has left behind in a quite blasé manner. He does not mention his sister’s relationship with him.
Certainly the actions of the father have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in New York. Counsel for the mother submits that a process had already been put in place in Australia for court appointed counselling assessment which could be undertaken in a holistic way having regard to the interaction of all family members. He submitted that ascertaining the boys’ wishes would be much more productive if conducted in Australia upon the boys’ return rather than involving a process where a professional spoke to the boys in New York in circumstances where they were clearly significantly influenced by their father. Counsel for the mother submitted that the appropriate course is to ascertain the children’s wishes once they are back in Australia.
I am prepared to accept the father’s evidence as to the views expressed by the boys. I would not expect those expressed views to be any different if the boys spoke to a report writer in New York. The weight that I place upon those expressed views are weakened by the circumstances which have been contrived by the father.
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.
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.
Relationships
The mother gives evidence that T said to her “When are the boys coming back”. Senior counsel for the father draws attention to the evidence that the mother gave in her affidavit filed 18 December 2015 to the following effect:
Frequently [T] returns to my care having spent time with [the father] and complains as follows:
‘I am totally ignored at dad’s. I hardly see the boys. The boys just sit in their room and ignore me’
But the father himself recognises the importance of the sibling relationships saying that he is sensitive to the fact the boys would be missing their sister and he would like to facilitate T travelling to the US to spend time with them. He is prepared to fund all travel and associated costs.
Senior counsel for the father also highlighted that the Child Responsive Program Memorandum dated 25 January 2016 contained the following:
[12] [T] said that her relationship with [her father] is ‘not good’. She expressed distress about her father treating her, from her perspective, as ‘the other child’ while her brothers are treated as ‘golden children’. [T] said that she feels too hurt and distraught to think about seeing her father at present. [T] stated that, when she feels ready, she would like to see her father whenever she wishes but asks that her father not apply pressure to her to do so.
....
[21] ....these feelings along with the acrimony between the parents, and the deterioration in her relationship with her father and brothers, if ongoing, placed [T] is [sic] at risk of developing emotional and social difficulties, especially with intimate partner relationships, later in life.
The Independent Children's Lawyer indicated she was apprehensive about the risks to T’s emotional wellbeing. T was distressed when talking about her father (see [8] Child Responsive Memo) and feels disappointed and angry with him for the difference in the way she thinks he treats her as opposed to her brothers.
Both parents think T is suffering under the strain of being at the centre of their dispute and expressed concern about the impact on her of the tension between them (see [9] Child Responsive Memo).
The mother told the family consultant the father is focussed on financial gain rather than the needs of the children saying he relates to the children through money and has “bought off” the two boys with expensive holidays, an extravagant lifestyle and unnecessary items. She said T feels hurt and “left out”.
The father says the mother has restricted T’s time with him and influenced her against him. He is unable to demonstrate to her that he loves and cares for her as he does the boys. With regard to the holiday to New York in January 2016, the father told the family consultant the mother had allowed T to spend only one week with him over the summer break and he therefore could not take her with him to the US.
What the mother says about the effect of the father’s provision of material wealth to the boys
The mother states the breakdown of her relationship with R started at the time she had to move out of the former matrimonial home due to the father ceasing to pay her spousal maintenance and she could no longer afford the lavish lifestyle she and the children were used to. She had to purchase a small apartment with no yard or pool and away from the community the children were used to.
During this time the mother asserts the father lavished expensive gifts, holidays and treats on the children whilst they were in his care. This created tension for the mother as the children, particularly the boys, demanded and expected the same from her. The mother says she was struggling financially and the children did not understand this. R began spending more and more time with the father and by August 2013 he was living with the father.
By living with the father R got to travel internationally with his father; he was provided new items such as new phones and ipads. S became increasingly jealous of the trips and gifts R had. S became more and more pre-occupied by what R had at his father's home.
The father flew R to Country AA on the day of the mother's 50th birthday and as a result, R did not attend the family function to celebrate that event. This overseas trip was arranged without the mother knowing about it.
The mother says at the end of 2013 she called R on his return from a trip to Country AA with the father and he said to her, "I don't want anything to do with you because I know that you married dad for the lifestyle" and he then hung up on the mother. Since that time he has refused to communicate with the mother.
On 11 March 2014 S's therapist, Mr BB, emailed the father and mother about his concerns that S's situation was worsening:
[S] is obsessed with money and material matters and has completely lost perspective in terms of being able to evaluate his relationships and their importance. He is in a desperate struggle to get his share and constantly obsesses about who is getting what and how much etc etc. This is typical of the scenario that plays out when a struggle occurs at the parental level of the kind that the two of you are embroiled in. It is damaging to the children's well being. As his therapist I am ready to express my concerns to the family court should I have an opportunity to do so."
S began spending more time with the father and from December 2013 he was ultimately living with the father for 9 nights per fortnight by March 2014.
The father rejects the imputation that R only chose to live with him because of financial advantages and says his children’s values are not superficial and the mother has underestimated the closeness of his relationship with the children.
The father says the critical event causing S to live with the father was when S argued with his mother because she refused to give him gifts pertaining to his religious initiation including cash amounts which were gifted to him on that special occasion.
The father says the mother refuses to accept responsibility for her role in the deteriorated relationship between her and the boys.
Risk factors
The family consultant made the following comments in respect of risk factors in this case:
Family violence
14. There is no AVO in place. Each parent described emotional toxicity and distance in the relationship that precipitated the separation. [The mother] alleged that [the father] was verbally and emotionally abusive in the marriage.
High level of acrimony
15. The negativity that each parent has about the other was very apparent during their interviews. Each parent seemed unable to perceive any positive attribute in the other. [The mother] made complaints about [the father] being neglectful of her during the marriage and said that she thinks he has been similarly neglectful of [T] since the separation. She said that he tells “lies”. [The father’s] complaints about [the mother] are that she has manipulated [T] to think as she does about him and that she habitually tells “lies”.
Family dysfunction
16. There is dysfunction in this family to the degree that [R] and [the mother] are estranged; [T] has a troubled relationship with [the father] and [the mother] and [the father] have a poor co-parenting relationship. [T] is aware of the various difficulties in the family. She was distressed when talking about her brothers and their relationship with [the mother]. She appeared to have detailed knowledge about her parents’ financial difficulties and the dispute between them. [T] stated that she believes her father has not provided enough financial support to her and her mother.
Co-parenting relationship
The parents agree that the co-parenting relationship has deteriorated to such a point that they do not communicate constructively about the children’s needs and that communication in relation to the children is either done directly through the children or through the parent’s legal representatives. The family consultant records:
18. Each parent indicated having high levels of mistrust about the other. [The mother] stated that [the father] is focused on financial gain rather than the needs of the children. She stated that he relates to the children through money and has “bought off” the two boys with expensive holidays, an extravagant lifestyle and unnecessary items. [The mother] stated that [T] feels hurt and “left out” by the way he treats her as opposed to the boys. She gave the example of [the father] taking [R] and [S] for a holiday to New York over the summer break to which [T] was not invited.
19. [The father] stated that he thinks [the mother] is vengeful and has restricted [T]’s time with him and influenced [T] against him to the point that his relationship with her is in serious difficulty. He stated that he feels “hamstrung” because, without [T] being permitted to see him, he is unable to demonstrate to her that he loves and cares for her as he does [R] and [S]......
The future of the boys’ if they return to Australia
Senior counsel for the father correctly submits that this case is not one where children have been retained from being with a parent with whom they ordinarily lived. But that is beside the point. Many international relocation cases involve a left behind parent who is not the children’s primary carer.
The mother proposes that if the boys return to Australia they would live with her. She has the accommodation to allow that to happen. The father is silent about what he might do if he is ordered to return the boys to Australia. Senior counsel for the father did not indicate what his instructions were in relation to that question so I do not know whether or not if a return order was made and the father complied with it, nor whether or not he would return to Australia with the boys until things were sorted out here. The lack of uncertainty in relation to his compliance with a return order arises from the fact that he currently disregards the existing order.
The mother acknowledges there may be difficulties with one or both the boys wanting to live in her household if they return.
On 29 February the mother and the Independent Children's Lawyer suggested it might be possible for the boys to temporarily reside with the paternal grandmother upon their return to Australia. By 3 March the father had filed an affidavit setting out information and conversations which he had had with his mother and the boys that led the mother to abandon an alternate proposal involving the paternal grandmother providing temporary accommodation for the boys.
The mother has secured an undertaking from Ms U to accommodate S in her spare room. Ms U has a son of the same age as S with whom S shares a long standing friendship. The mother has also received an undertaking from Ms W to provide accommodation for R. R has been good friends with her son since they were around 2 years of age.
Both senior counsel for the father and the Independent Children's Lawyer made the point that those arrangements would not be ideal because the boys would be living in different households. That might be so but it is a possible temporary arrangement pending a determination by this court as to whether or not the boys should be permitted to relocate internationally.
But it may not come to that. On the material that has been presented, it seems that the father is a man of significant means. The father is totally silent as to what has happened to the accommodation in Australia in which he was living with the boys up until the beginning of January 2016. I infer the father has the ability to provide independent accommodation for the boys if they return to Sydney and provide for paid supervision services to the extent that he believes that those services are necessary. The mother, who still has an order in her favour for equal shared parental responsibility, should have some say in respect of the nature of such supervision. Again, we are talking about temporary arrangements pending a final determination of the father’s application for international relocation of the boys.
Another consideration
There is another consideration to which I give some weight. There was a proper way for the father to achieve his purpose. The father chose not to take it. The father has given the boys the option to agree to a breach a court order. That shows poor judgment by the father as a role model to the boys. For me to sanction the father’s behaviour sends a poor message about what might be considered to be appropriate parental behaviour.
CONCLUSION
The determinative matters under s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“The Act”) primarily require a balance of the consideration of the boys’ expressed views as against the damage that is currently being done, particularly to S’s mother/son relationship; T’s father/daughter relationship and T’s relationship with her brothers, by the unilateral action of the father. This needs to be judged having regard to the history of the family dynamics and identified risk factors.
Without a return order, there is a greater chance that the relationships to which I have just referred will be irretrievably damaged. I find that it is in the children’s best interests to make orders for the return of R and S to Australia.
I did consider only making a return order in relation to S because of the different nature in the relationship between the mother and S and the mother and R and R’s age. That in my view however, particularly based on the evidence from S’s therapist, would not be good for S and senior counsel for the father and the Independent Children's Lawyer seemed to intimate that the boys should not be split.
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.
I will make an order that in the event the father returns to Australia with the boys, the boys can continue to live with him. In the event that he does not, the boys are to live with their mother provided that in the event that either boy chooses they may live in either:
(1)Accommodation provided by the father with paid supervised services to which the mother consents in writing; or
(2)S live with Ms U and/or R live with Ms W
I will make an injunctive order against the father from causing the children to live anywhere other than the State of New York pending their return to Australia or determination of the mother’s application for enforcement of the return order or any Hague proceedings.
I will order that the boys’ passports be surrendered to the Australian Embassy or Consulate in New York to be only released to facilitate the boys’ return to Australia.
I will order that T and the boys, once they are back in Australia, not be removed from Australia pending further order.
As discussed in submissions, I see no utility in making a recovery order once the boys are back in Australia.
I will make an order immediately placing T on a watch list and placing the boys on a watch list once they have returned.
THE MOTHER’S APPLICATION FOR FEDERAL COURT FILES
The mother has filed an application for final orders pursuant to s 79A(1)(a) of the Act and subsequently for an order pursuant to s 79 of the Act.
In connection with that application, the mother has made an application that this court request the Registrar the Federal Court of Australia to make available to this court the files or copy of the files in certain proceedings in the Federal Court on the basis that initially only the applicant’s lawyer would inspect the files.
As a matter of procedural fairness, the father should have an opportunity to respond to that application given allegations the father has previously made about the mother’s use of confidential commercial information.
I will adjourn the matter for a further consideration at 10am on 4 May 2016. The father shall have 14 days to file a response and any evidence upon which he seeks to rely in support of that response.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 8 March 2016.
Associate:
Date: 8 March 2016
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