BONVENTURA & LUKIN

[2018] FamCA 92

FAMILY COURT OF AUSTRALIA

BONVENTURA & LUKIN [2018] FamCA 92

FAMILY LAW – PRACTICE AND PROCEDURE – Where application for release of security bond paid by the mother to ensure the child’s return to Australia – Where the mother failed to return child – Where the father has commenced proceedings under the Hague Convention for wrongful retention of the child – Where appropriate that the bond be released to the father to defray his legal costs.

Hague Convention on the Civil Aspects of International Child Abduction 1980

APPLICANT: Mr Bonventura

RESPONDENT: Ms Lukin

INDEPENDENT CHILDREN’S LAWYER: Ms O'Donnell

FILE NUMBER: PAC 289 of 2015

DATE DELIVERED: 23 February 2018

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 19 February 2018

REPRESENTATION

APPLICANT – SELF-REPRESENTED LITIGANT: Mr Bonventura in person

RESPONDENT – SELF-REPRESENTED LITIGANT: No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms O'Donnell of O'Donnell & Associates

Orders Made on 19 February 2018

1. That the deposit bond of $10,000.00 deposited by the mother with the Registrar of the Family Court of Australia at F Town pursuant to orders made on 8 December 2016 be paid forthwith to the father, Mr Bonventura or as he may otherwise direct in writing with such sum to be applied by him to his costs of and incidental to current Hague convention proceedings.

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 Bonventura & Lukin 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 PARRAMATTA

FILE NUMBER: PAC 289  of 2015

Mr Bonventura

Applicant

And

Ms Lukin

Respondent

REASONS FOR JUDGMENT

1. On 8 December 2016 final parenting orders were made by consent in relation to the child B born in 2009.

2. Those orders were as follows:

   (1)All previous orders with respect to [B] born … 2009 (‘the child’) are discharged, save for orders made on 17 March 2015 for appointment of the Independent Children’s Lawyer.

   (2)[The child] shall live with the mother except when spending time with the father pursuant to these orders.

   (3)The mother shall have sole parental responsibility for the child.

   (4)[The child] shall spend time with the father as follows:

   (a)From the first Saturday after the date of these orders, and continuing for a period of six calendar months:  on alternate Saturdays, from 9.30am until 1.00pm;

   (b)then for a further period of six calendar months:  on alternate Saturdays, from 9.30am until 4.30pm;

   (c)then for a further period of six calendar months:  in alternate weeks, from 9.30am on Saturday until 9.30am on Sunday;

   (d)then for a further period of six calendar months:  in alternate weeks, from 9.30am on Saturday until 4.30pm on Sunday;

   (e)thereafter:  in alternate weeks, from after school on Friday until 4.30pm on Sunday.

   (5)Changeovers for orders 4(a) and 4(b) are to take place at the [D] Contact Service at [Suburb C] (‘[DCS]’), and the father shall pay any fees of [DCS].

   (6)the child’s time with the father pursuant to order 4(c) and order 4(d) shall commence at [DCS] and conclude inside the [E Street] entrance to the Shopping centre at [F Town].

   (7)For the purposes of order 4(e) the father shall collect the child from school at the conclusion of the school day, and return her to the mother inside the [E Street] entrance to the Shopping centre at [F Town].

   (8)For the purposes of order 4(c), 4(d) and 4(e), the father may nominate another person known to the child to accompany him to deliver her to the mother at the [E Street] entrance to the Shopping centre at [F Town].

   (9)Order 4 shall be suspended:

   (a)for the weekend that includes Mother’s Day.

   (10)Each parent shall:

   (a)within 7 days of the date of these orders advise the other parent of his/her current contact address and mobile telephone number, and

   (b)advise the other parent within 24 hours of any change to those details.

   (11)The parents shall communicate with each other about arrangements for [the child] by text message (SMS), except in the case of a medical emergency, in which event the parent having care of [the child] at that time shall immediately advise the other parent in a direct telephone call.

   (12)Neither parent shall discuss these proceedings with [the child] or with any other person in the presence or hearing of [the child].

   (13)Neither parent shall insult or abuse the other parent in the presence or within the hearing of [the child].  

   (14)The father shall be at liberty to attend any school event to which parents ordinarily are invited, and obtain all information that parents ordinarily receive, including school reports and order forms for school photographs.

   (15)The Independent Children’s Lawyer shall provide a copy of the court’s orders to [the child’s] school.

   (16)If [the child] is admitted to hospital, the mother shall:

   (a)advise the father of the name of the hospital and telephone contact details for the medical team treating [the child]; and

   (b)provide the treating team with the father’s name and telephone number;  and 

   (c)authorise the treating team to inform the father about [the child’s] condition and treatment.

   (17)Each of the parents shall:

   (a)within 24 hours of being requested to do so by the Independent Children’s Lawyer, attend for urinalysis certified as having been conducted in accordance with the standard AS/NZS 4308:2008;   and

   (b)within 72 hours of obtaining the results of any urinalysis testing  undertaken by him/her,  provide a copy  to the ICL on facsimile number … or to email address ...

   (18)Pursuant to order 17, the Independent Children’s Lawyer may make up to three requests to each of the parents within six months of the date of these orders, such requests to be made by way of text message (‘SMS’) sent, in the case of the father, to his mobile telephone … and in the case of the mother, to her mobile telephone … up until midday on any weekday other than a Friday.

   (19)Any request made by the Independent Children’s Lawyer pursuant to order 17 shall be deemed to have been received not later than one hour from the time at which the SMS was sent.

   (20)Orders for the appointment of the Independent Children’s Lawyer shall be discharged upon completion of orders 15, 17 and 18.

   (21)Notwithstanding any other orders herein:

   (a)[the child] shall spend time with her father from 9.30am until 3.30pm on both 17 December 2016 and 31 December 2016, and for the purposes of this order changeovers shall occur at the      [E Street] entrance to the Shopping centre at [F Town];

   (b)for the period 18 December 2016 until 28 December 2016, the father’s time with [the child] shall be suspended.

   (22)Notwithstanding any other orders herein, [the child] shall spend time with the father during Christmas periods as follows:

   (a)in 2017 and each odd-numbered year thereafter:  from 3.30pm on 24 December until 10.30am on 25 December;

   (b)in 2018 and each even-numbered year thereafter:  from 10.30am on 25 December until 3.30pm on 26 December.

   (23)During school holidays, [the child] shall spend time with the father as follows:

   (a)commencing at the end of term 1 in 2018:  from 9.30am on the first Saturday of the school holidays, until 3.30pm on the following Tuesday;

   (b)commencing at the end of term 2 in 2018:  from 9.30am on the first Saturday of the school holidays, until 3.30pm on the following Wednesday;

   (c)commencing at the end of term 3 in 2018:  from 9.30am on the first Saturday of the school holidays, until 3.30pm on the following Thursday;

   (d)thereafter for the first week of the holidays at the end of terms 1, 2 and 3, and for two consecutive weeks in the Christmas school holidays, at times as agreed, and if there is no agreement, from 2 January to 16 January each year.

   (24)Both parties do all things necessary to apply for the Australian passport for [B], aged 7, born … 2009.

   (25)The purpose of paragraph 24 is to permit [B] to travel to Asia on 15 January 2017 from Sydney International Airport and to return to same on 30 January 2017.

   (26)[B] will be accompanied by the Applicant Mother, [Ms Lukin].

   (27)Contemporaneously, the Mother will deposit a bond of $10,000.00 AUD by bank cheque payable to the Registrar at the Family Court, Parramatta. The Registrar will give the passport of the child ([B]) to the Mother for the purpose of paragraph 24 and 25.

   (28)Upon return to Sydney on or about 30 January 2017, the Mother will return the current passport of the child to the Registrar at the Family Court, Parramatta.

   (29)The return of the passport ([the child’s]) must be delivered to the Registrar as in paragraph 28 by no later than 5.00pm on 6 February 2017.

   (30)Upon return and compliance of paragraph 29, the Registrar will make payment return of the deposit bond to the Applicant Mother, as nominated by the Registrar.

   (31)Orders 8, 9, 10 and 11 made on 19 November 2015 be discharged as agreed by consent by the parties.

   (32)The mother be and is hereby restrained from making any application for the issue of a passport or travel document for the child [B] born … 2009.

   (33)Following the return of the child’s Australian passport to the Registrar as provided for in the orders made today, [the child’s] Australian passport shall be retained by the Registrar and not released to either party without Court order or the authenticated consent of both the mother and father and upon such conditions as the mother and father may jointly agree.

   IT IS FURTHER ORDERED THAT

   (34)No application is made for costs on behalf of the Independent Children’s Lawyer.

   (35)All outstanding Applications before the Court are dismissed.

   (36)The proceedings be removed from the active pending cases list.

3. The mother duly deposited with the Registrar of this Court the sum of $10,000.00 as provided for in Order 27.

4. On 30 January 2018 the father filed an Application in a Case seeking orders that in effect would procure the release of the $10,000.00 deposited with the Registrar to him.

5. His application proceeded to hearing on an ex parte basis, the mother having travelled to Hong Kong as contemplated by the final orders and having failed to return the child to Australia. The order as sought by the father was made on 19 February 2018 and as a consequence of the urgency of the application reasons were reserved. The following are the Reasons for Judgment.

6. The mother had previously removed the child from the Commonwealth of Australia and the child had been the subject of an application in Hong Kong under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction 1980 (“the Convention”). The father on 24 December 2014 obtained an order from the High Court of Hong Kong permitting him to return to Australia with the child, such order to be an order under the provisions of the Convention.

7. As a consequence of the mother’s failure to return to Australia with the child pursuant to orders made 8 December 2016 the father has once again been required to seek the assistance of the Australian Central Authority in seeking to have the child returned to Australia. The husband has now received correspondence from the Australian Central Authority that his application has been accepted and forwarded to the Hong Kong Central Authority for the purpose of appropriate proceedings being commenced in the courts in Hong Kong. The father has exhibited to his affidavit filed 30 January 2018 in support of his present application the affidavit sworn by him on 11 January 2018 in support of his application under the Convention.

8. The father will, of course, incur expenses of and incidental to the proceedings in Hong Kong not the least of which will be his costs of travelling to Hong Kong for the purposes of the proceedings and the retainer by him of a legal representative in Hong Kong for the purposes of pursuing his application under the Convention.

9. It is clear that in the circumstances set out above it is appropriate and proper that the security deposited by the mother now be released to the father to facilitate the proper prosecution of his application for the return of the child to Australia.

10. An order will be made accordingly.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 23 February 2018.

Associate: 

Date:  23 February 2018