Jespersen and Frankel

[2018] FamCA 833

FAMILY COURT OF AUSTRALIA

JESPERSEN & FRANKEL [2018] FamCA 833

FAMILY LAW – CHILDREN – HAGUE CONVENTION – where the children live with the mother in the USA – where Hague Convention proceedings have been initiated in the USA – where the father sought interim parenting orders in Australia – where the mother sought the Australian parenting proceedings be dismissed while the Hague matter was determined – where there was no dispute about contact arrangements with the father – where the father’s time with the children had been facilitated.

APPLICANT: Mr Jespersen

RESPONDENT: Ms Frankel

FILE NUMBER: SYC 7942 of 2017

DATE DELIVERED: 18 October 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 8 October 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: KD Holmes Solicitors

THE RESPONDENT: In Person

Orders

IT IS ORDERED

1. That the Application in a Case filed 24 July 2018 be dismissed.

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 Jespersen & Frankel 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 7942 of 2017

Mr Jespersen

Applicant

And

Ms Frankel

Respondent

REASONS FOR JUDGMENT

1. Mr Jespersen (“the father”) and Ms Frankel (“the mother”) are the parents of two children, X born in 2012 and Y born in 2014 (“the children”).

2. The parents separated in the USA in about November 2015. The father travelled to Australia and the mother and the children remained in the USA. The circumstances surrounding those events are the subject of contest.  

3. At the present time, the father resides in Australia and the mother and the children reside in State B, USA. I was informed by both parties that there are proceedings on foot in the USA pursuant to the provisions of the Convention on the Civil Aspects of Child Abduction (“the Hague Convention”), wherein the father seeks the return of the children to Australia. It would appear from correspondence on the Court file that the Hague Convention proceedings were instituted on 12 February 2018. The mother resists return on the basis that the children are habitual residents in the USA.

4. There is no evidence before me in relation to the proceedings in the USA other than that which I was told by each of the parties in discussion. I understand that the parties have unsuccessfully engaged in mediation and are now awaiting a date for hearing of the application which will determine whether their dispute in relation to the children will be heard in Australia or in the USA.

5. The father filed an Initiating Application in the Family Court of Australia on 29 November 2017, seeking orders that the children live with him and that he have sole parental responsibility. He sought interim orders requiring the mother to bring the children to Australia.

6. On 2 May 2018, the mother filed a response seeking the following orders:

   1.Shared parental responsibility of the children;

   2.The children continue to live in State B USA with their mother;

   3.The father to visit the children in the USA when his personal/work life allows; and

   4.The children to continue to call/Skype/video 5-6 times a week with the father.

7. On 24 July 2018, the father filed an Application in a Case seeking orders in the same terms as the mother’s response. That application was supported by an affidavit sworn by him on 24 July 2018 of 11 paragraphs. The father deposed, relevantly:

   To ensure that the children spend time with me and develop a meaningful relationship with me, I am willing to agree to interim orders in terms of the final orders sought by the Respondent in her Response to my Initiating Application…

   Following those interim parenting orders being made… I am willing and indeed anxious to travel to the USA as quickly as possible to where the children are presently staying, so that the children can spend time with me.

   I am concerned that the Respondent will not facilitate the children’s time with me unless formal Court orders are in place.

8. The mother, acting for herself, filed a Response to the Application in a Case on 22 August 2018. In that response she stated:

   No orders are agreed due to ongoing Hague Convention Application in the USA.

   I request the Australian Family Court for a complete dismissal of the Parenting orders and Interim Parenting orders sought by [the father].

   Due to ongoing Hague Convention Proceedings in the USA with a scheduled mediation for September 21, 2018 with both parties in attendance there is no reason for the Australian Family Court to provide any enforceable parenting orders while these proceedings ae ongoing.

   I request a stay of the Parental Custody proceedings and Interim Parenting proceedings if the Australian Family Court does not grant a full dismissal at this time. An adjournment will provide more time to receive an outcome from the Hague Convention Application proceedings and find the appropriate location for custody and parenting orders.

9. The mother relied upon an affidavit sworn by her on 21 August 2018 which did no more than reiterate her position.

10. The matter came before me in a Judicial Duty List on 8 October 2018. The father appeared with his legal representative. The mother appeared by telephone from the USA. In the course of discussion, the mother told the Court that the mediation had been unsuccessful and the parties were awaiting hearing dates. She also told the Court that the father had spent time with the children when he was in the USA for the mediation and I do not understand that to be controversial.

11. The mother told the Court that she had no objection to the father’s visiting the children in the USA or to their having Skype contact with him.

12. There is no evidence that the father has been prevented from spending time with the children at any time or that any request he has made to spend time with the children has been rejected by the mother.

13. The orders which the father now seeks on an interim basis, in so far as it is submitted on his behalf that they will in some way facilitate his having contact with the children, are so vague as to be unenforceable.

14. The evidence does not satisfy me that the orders have any utility. There is no evidence which establishes that making the orders would be in the best interests of the children or that there is any issue relating to the parenting of the children which would be resolved by the making of the orders sought.

15. The father’s Application in a Case filed on 24 July 2018 will be dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 18 October 2018.

Associate: 

Date:  18/10/2018