Mahony and Nierre

[2016] FamCA 83

FAMILY COURT OF AUSTRALIA

MAHONY & NIERRE [2016] FamCA 83

FAMILY LAW – CHILDREN – Application to restrain the mother from leaving Australia – Application to return children to Australia – Where no Hague Convention application has been made – Injunction under s 114(3) of the Family Law Act – Whether such an order is just or convenient – Where the mother has submitted to the jurisdiction –  Found not to be just or convenient – Application dismissed.

Family Law Act 1975 (Cth) s 114

Zanda & Zanda [2014] FamCAFC 173

APPLICANT: Mr Mahony

RESPONDENT: Ms Nierre

FILE NUMBER: PAC 5871 of 2015

DATE DELIVERED: 17 February 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 9 February 2016

REPRESENTATION

APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Rafton Family Lawyers

Orders

1. The father’s Application in a Case filed 2 December 2015 is dismissed.

2. The parties shall participate in the Child Responsive Program with a Family Consultant at 9am on 14 June 2016.

3. The proceedings is listed for directions in relation the progression of the property proceedings before Registrar Tran at 11am on 19 April 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mahony & Nierre 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 PARRAMATTA

FILE NUMBER: PAC 5871  of 2015

Mr Mahony

Applicant

And

Ms Nierre

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 February 2016, I dismissed the father’s application for an order restraining the mother from leaving Australia and placing her name on the family law watch list to give effect to that order, and an order for the return of the parties’ two children to Australia. I indicated that I would publish my reasons for orders at a later stage. These are those reasons.

Background

1. The father and the mother grew up and were married in Country B in 1997, or 1998.  The parents subsequently moved to Australia.

2. Their first child, C, was born in 2006 and their second child, D, was born in 2011.

3. The parents initially separated in mid-to-late 2013 and the children lived with the mother. In mid-2014 the parents attended counselling but were unable to resolve their differences.

4. On 28 July 2014 the mother and children left Australia for Country B.

5. As I understand it, the father claims that the mother and children only went to Country B for a holiday for two months. The mother says that she did not specify to the father how long she would remain in Country B, nor was the matter discussed.

6. The children were enrolled in a private school in Country B shortly after their arrival. The father has paid for some of the school fees and associated costs for the children. The mother obtained full time employment in Country B in March 2015.

7. The father visited Country B in December 2014 and spent time with the children.

8. In…