FAMILY COURT OF AUSTRALIA
| MANKUS & MATULIS | [2016] FamCA 799 |
| FAMILY LAW – CHILDREN – Best interests of the children – Kenyan law with respect to parenting orders, enforcement of foreign judgements and institution of criminal proceedings – Benefit to the children having a meaningful relationship with both parents – The need to protect the children from physical or psychological harm – Practical difficulty or significant expense involved in spending time with and communicating with the other parent – Unacceptable risk that the children will not be returned to Australia if contact with the father occurs in Kenya – Hague Convention and Child Protection Convention do not apply. |
FAMILY LAW – COURTS AND JUDGES – Disqualification – Apprehension of bias – Application dismissed – Expert evidence – Proof of foreign law – Enforcement of Australian orders in Kenya – obtaining “mirror orders”.
| Evidence Act 1995 (Cth) ss 174, 175 |
Convention on the Civil Aspects of International Child Abduction (1980)
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996)
| Deiter & Deiter [2011] FamCAFC 82 |
| APPLICANT: | Ms Mankus |
| RESPONDENT: | Mr Matulis |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | PAC | 5648 | of | 2014 |
| DATE DELIVERED: | 9 September 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 1 June 2015, 18, 19, 20, 21, 22 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schroder |
| SOLICITOR FOR THE APPLICANT: | Smythe Wozniak Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Tocker |
| SOLICITOR FOR THE RESPONDENT: | Owen Hodge Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms DeVere |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
The father shall spend time with the children B born … 2006, C born … 2009 and D born … 2009 (“the children”) in Australia, such time to include:
(a) The school holidays commencing at the end of Term 2 (mid-year) in each year and
(b) Two weeks in the school holidays commencing at the end of Term 4 (Christmas) commencing at 10am on 27 December 2016 and ending at 4pm on 10 January 2017 and each alternate year thereafter and commencing at 10am on 23 December 2017 and ending on 6 January 2018 and each alternate year hereafter.
In the event that the father does not spend time with the children in the school holidays commencing at the end of Term 2 in any year, he shall spend time with the children in Australia for four weeks in the school holidays…
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- Mankus and Matulis [2016] FamCA 799
- Case
- [2016] FamCA 799
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific periods the father would spend with the children, including during school holidays, and to establish a framework for communication and information sharing between the parents. Key issues included the duration and timing of the father's time with the children, the conditions under which this time would occur, and provisions for the children's welfare, such as their placement on the Airport Watch List and the surrender of passports. The court also addressed the parents' obligations regarding denigration, the children's cultural activities, and access to educational and medical information.
Hannam J's reasoning focused on establishing a workable and child-focused schedule for the father's time with the children, balancing the father's right to spend time with them against the need for stability and the children's safety. The orders stipulated specific holiday periods, including mid-year and Christmas holidays, with provisions for alternate arrangements if the primary schedule was not met. Conditions were imposed to ensure the children's security, such as the father surrendering his passports and the children remaining on the Airport Watch List. The court also mandated regular communication between the father and children, and established clear protocols for information exchange regarding the children's schooling and medical care, including direct correspondence rights for the father with schools and medical practitioners. Furthermore, restrictions were placed on the mother's ability to relocate the children's residence, and both parents were ordered to refrain from denigrating each other.
Orders
Orders of the court
1.
The father shall spend time with the children B born … 2006, C born … 2009 and D born … 2009 (“the children”) in Australia, such time to include:
(a) The school holidays commencing at the end of Term 2 (mid-year) in each year and
(b) Two weeks in the school holidays commencing at the end of Term 4 (Christmas) commencing at 10am on 27 December 2016 and ending at 4pm on 10 January 2017 and each alternate year thereafter and commencing at 10am on 23 December 2017 and ending on 6 January 2018 and each alternate year hereafter.
2.
In the event that the father does not spend time with the children in the school holidays commencing at the end of Term 2 in any year, he shall spend time with the children in Australia for four weeks in the school holidays commencing at the end of Term 4 (Christmas) commencing at 10am on 27 December and ending at 4pm on 24 January in even numbered years and commencing at 10am on 23 December and ending at 4pm on 20 January in odd numbered years.
3.
The father’s time pursuant to Order 1(a) shall commence at 10am on the first day the children are not required to attend school during such holiday and end at 4pm on the day prior to the children’s first day of attendance in the new school term.
4.
The father is to notify the mother by no later than thirty (30) days prior to the commencement of the second Term’s school holidays of his intention to exercise time with the children pursuant to Order 1 or 2.
5.
The father shall spend time with the children at such other times as may be agreed by the parties upon the father giving not less than 14 days’ notice of his intention to come to Australia.
6.
The father’s time with the children pursuant to these Orders is subject to the following conditions:
(a) His time with the children shall take place in Australia.
(b) The children shall remain on the Airport Watch List and the father shall do and say all things and sign all documents to ensure the children remain on the Airport Watch List if requested to do so by the mother.
(c) The father shall surrender to the mother all current passports in his name, including any Diplomatic Passports, prior to the commencement of his time with the children.
(d) Upon the return of the children to the mother by the father or his nominee at the end of the father’s time with the children pursuant to these orders, the mother shall forthwith return the passports surrendered by the father pursuant to Order 6(c).
7.
The mother shall facilitate regular telephone, text, email or other electronic communication between the children and the father.
8.
The mother shall initiate weekly Skype communication between the children and the father provided that the father keeps the mother informed of the relevant Skype address.
9.
The mother shall keep the father advised as to the following:
(a) The residential address of the children
(b) The name and address of the school attended by the children
(c) The name and address of the children’s Doctor
(d) The name and address of any medical specialist treating the children
(e) The mother’s telephone, email and Skype contact details
10.
These Orders shall be authority for the father to:
(a) Correspond directly with the children’s schools; and
(b) Obtain copies of their school reports, school photographs, newsletters and other relevant material; and
(c) Obtain any other information or correspondence whatsoever from the schools relating to the children.
11.
These Orders shall be authority for the father to correspond directly with any medical practitioner that the children might attend upon, including, but not limited to, General Practitioners, Counsellors, Psychologists and any other medical specialists to obtain information relating to the children’s treatment.
12.
Whilst the mother lives in Canberra, changeover shall take place at the Canberra Aquatic Centre.
13.
In the event that the mother relocates to another location in Australia, she shall advise the father as to an alternative changeover location.
14.
The mother is restrained from moving the children’s residential address to a place more than one hour driving time from any capital city in Australia.
15.
Each of the parties shall not denigrate the other party, members of the other party’s family or the other party’s partner, from time to time, and shall use their best endeavours to ensure that third parties do not denigrate such persons in the presence and hearing of the children.
16.
The mother shall use her best endeavours to ensure that the children participate regularly in culturally appropriate activities including speaking their native tongue.
17.
The mother shall follow all reasonable directions of the children’s general practitioners or treating professionals particularly in relation to counselling or other therapy as recommended by Dr Lucia V and shall keep the father advised as to the children’s treatment, including providing copies of available reports to him electronically.
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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