FAMILY COURT OF AUSTRALIA
| HERTWIG & HERTWIG (NO 2) | [2018] FamCA 912 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where the mother seeks an adjournment of her application for a stay pending the father providing her with disclosure of his current Country B visa – Where the father seeks an application for an anti-suit injunction restraining the mother from commencing proceedings in a Country B court – Where the Court is not persuaded that these proceedings should be adjourned to allow her to get full disclosure of the father’s visa status so that the mother can try to invoke the jurisdiction of a Country B court. FAMILY LAW – PRACTICE AND PROCEDURE - Stay of Proceedings – Where there are no proceedings in respect of parenting matters being currently heard in any Country B court – Where there is no evidence demonstrating that the courts of Country B have or would exercise jurisdiction in respect of parenting matters – Where the mother commenced parenting proceedings in this Court and proceedings are well underway – Where this Court is clearly not an inappropriate forum and the proceedings will not be stayed on this basis – Where the Court is also not satisfied that the mother’s submission that it is in the best interests of the child to stay the proceedings in this Court is a sound basis for a permanent stay and in any event, finds that it would be a flagrant abrogation of responsibility to not determine the dispute for which this Court clearly has jurisdiction. |
| Family Law Act 1975 (Cth) |
| Chen & Tan [2012] FamCA 225 Henry v Henry (1996) 185 CLR 571 Kemeny v Kemeny (1998) FLC 92-806 Kent & Kent (2017) FLC 93-792 Navarro v Jurado (2010) 44 Fam LR 310 Voth and Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 |
| APPLICANT: | Ms Hertwig |
| RESPONDENT: | Mr Hertwig |
| INDEPENDENT CHILDREN’S LAWYER: | Deborah Awyzio |
| FILE NUMBER: | BRC | 2437 | of | 2016 |
| DATE DELIVERED: | 9 November 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 29 October 2018 |
REPRESENTATION
| THE APPLICANT: | Self-represented (by telephone) |
| THE RESPONDENT: | Self-represented (by telephone) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Awyzio DA Family Lawyers |
Orders
That the mother’s application for an adjournment of her application for a permanent stay of these parenting orders proceedings be dismissed.
That the mother’s application for a permanent stay of these parenting orders proceedings be dismissed.
That the father’s application for an anti-suit injunction against the mother be dismissed.
That the father forthwith cause to be delivered to the mother the Australian passports of the three children, X born … 2006, Y born … 2008, and Z born … 2011, (“the children”) and, notwithstanding the existing Orders allocating parental responsibility for the children equally between the parents, the mother shall be solely responsible, until further order, for holding the children’s Australian passports and for obtaining and renewing, as necessary, valid visas from the Government of Country B for the children, permitting them…
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- Case
- [2018] FamCA 912
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the parenting proceedings in Australia should be adjourned or stayed. Specifically, the court had to consider the mother's assertion that disclosure of the father's visa status was necessary to potentially invoke the jurisdiction of a Country B court, and whether the Australian proceedings were an inappropriate forum or contrary to the best interests of the child. The court also had to assess the father's application for an anti-suit injunction.
Forrest J dismissed the mother's application for an adjournment and for a permanent stay of proceedings, finding that there was no evidence of current or prospective jurisdiction in Country B courts regarding parenting matters, and that Australia was not an inappropriate forum. The court reasoned that it had clear jurisdiction and that failing to determine the dispute would be an abrogation of responsibility. The father's application for an anti-suit injunction was also dismissed. The court then made detailed orders concerning the children's Australian passports, visa arrangements for Country B, parental responsibility, communication, and a revised parenting regime, including make-up time for the father and attendance at the children's school in Country B. The parties were also ordered to register the court's orders in Country B for enforceability and to attend a family report interview.
Orders
Orders of the court
1.
That the mother’s application for an adjournment of her application for a permanent stay of these parenting orders proceedings be dismissed.
2.
That the mother’s application for a permanent stay of these parenting orders proceedings be dismissed.
3.
That the father’s application for an anti-suit injunction against the mother be dismissed.
4.
That the father forthwith cause to be delivered to the mother the Australian passports of the three children, X born … 2006, Y born … 2008, and Z born … 2011, (“the children”) and, notwithstanding the existing Orders allocating parental responsibility for the children equally between the parents, the mother shall be solely responsible, until further order, for holding the children’s Australian passports and for obtaining and renewing, as necessary, valid visas from the Government of Country B for the children, permitting them to reside in Country B, and for presenting the children’s Australian passports to Country B authorities as required.
5.
That the mother’s application for interim sole parental responsibility be dismissed.
6.
That each of the mother and the father be restrained from taking all or any of the children for counselling without the written consent of the other parent and the Independent Children’s Lawyer first obtained or further order of this Court.
7.
That until further order of this Court each of the mother and the father be restrained from involving the children in the adult parenting dispute.
8.
That the mother shall immediately reinstate the parenting regime provided for in paragraph 5 of the Orders of Tree J of 17 June 2016, in particular, as long as the father remains in Country B, the week about parenting regime provided for in paragraph 5(c)(iii) of those Orders.
9.
Notwithstanding paragraph 8 hereof, the children shall spend some additional make-up time with the father having regard to the fact that the mother has withheld them from the father for approximately four months, such make-up time to be provided as follows:
(i) For one extra week on the end of the first week the children spend with the father pursuant to paragraph (8) hereof, so that they, in fact, spend a block of two weeks with him in the first instance, before the week about regime then starts again;
(ii) For one extra week on the end of the first week the children spend with the father in the coming December-January Country B school holidays, so that they, in fact, spend a block of two weeks with him in those holidays before the week about regime then starts again.
10.
That paragraph 5(a) of the Orders of Tree J of 17 June 2016 be varied by changing the 6:00 pm time for the electronic communication each Sunday, Monday, Wednesday and Friday to 7:00 pm Country B time.
11.
That these Orders entitle the father:
(a) to attend at the school in Country B that the children attend:
(i) for the purposes of collecting the children at the commencement of the time they spend with him pursuant to these orders and dropping them off at the end of that time;
(ii) for the purposes of business normally conducted between a parent of a child attending the school and the administration and teaching staff of the school;
(iii) for attendance at any function or event at which the parents of children attending the school are welcome;
(b) to obtain from the school at his expense, if any, any and all information the school may lawfully provide to a parent of a child attending the school;
and, for certainty, the mother shall forthwith provide the school with a written authority confirming the father’s entitlements pursuant to this Order.
12.
The mother and the father shall attend upon Mr C in Brisbane in March 2019, as directed by the Independent Children’s Lawyer, for the purposes of him interviewing them in order to prepare an updated Family Report in these proceedings; the mother shall ensure the children are brought to Australia and presented to Mr C at the same time; and the costs of the children’s airfares from Country B to Australia and return are to be shared equally by the mother and the father.
13.
The mother and the father are to forthwith take all steps necessary to cause a copy of the sealed form of these Orders to be translated into the Country B language and registered with a court in Country B such that they are enforceable by either parent in Country B.
14.
The directions hearing currently listed before a Registrar of the Court on 6 December 2018 be vacated and the parenting proceedings be listed for a Trial Management Hearing before his Honour Justice Forrest at 10.00 am on Wednesday, 6 February 2019, with the mother and the father having leave to appear at such hearing by telephone if they so desire.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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