The evidence of the father was that the boys had each expressed a desire to remain living with him in New York. He wanted the hearing to be adjourned so that an expert in New York could interview the boys and provide a report as to their wishes. If the primary judge decided that they should return to Australia, a major question was where the boys should live on their return. This question was complicated by a number of factors. It was therefore not known whether the boys could live with him.
The younger boy was living with the father, although he divided his time between the mother and father; and the daughter remained living with the mother but spent weekends with the father. The evidence was unclear as to the amount of time that the two youngest children were spending with each parent. The matter could not be resolved on the first hearing date before the trial judge and was adjourned.
But wait – there are more amendments to the Family Law Act in 2018
The father made no submissions as to alternative possible living arrangements for the boys. Two further options were considered by the primary judge to meet the contingency that the father did not return to Australia and the boys chose not to live with the mother. They were reflected in the orders made by the trial judge, who ordered that, in the event that the father returned to Australia with the boys, they could continue to live with him. If he did not return, the boys were to live with the mother if they chose to do so, or they could live in accommodation provided by the father together with paid supervision services, to which the mother consented in writing.
Alternatively, each of the boys could live separately with the mothers of respective friends of theirs. Section 60B 1 — The objects of the Part are to ensure the best interests of children are met by reference to certain criteria, which include ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
It involved a breach of the parenting orders and it had the potential to undermine the possible relationships that family members might have in the future, a matter to which the processes put in place by the orders had been directed.
It evinced an attitude towards the responsibilities of parenthood that, if left unchecked, would likely send a poor message to boys who, on the evidence, were highly impressionable. The father submitted that a dispositive parenting order could not be made before the views of the child were known concerning the particular parenting order. The High Court disagreed at [43], [44]:. It certainly would not oblige the court to do so in the case of interim, temporary arrangements and in respect of each aspect of a parenting order affecting a child.
It was relevant that the orders made for where the children would live upon their return from New York were interim orders and the arrangements temporary. Interim orders do not, of course, require as intense examination by the Court as final orders. The High Court at [46] referred to the urgency of the return of the boys to Australia, in part because the boys were due to return to their schooling in Australia.
It was not necessary to seek the views of the boys on every aspect of the interim orders affecting them, which, in any event, were hardly likely to assist the Court.
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The persons referred to in the order were not applicants for parenting orders. But, we were mistaken. Instead, the floodgates have opened.
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Offences of taking or sending a child outside Australia or retaining a child outside Australia. Currently international child abduction from Australia is only a criminal matter in some circumstances. The removal of the child must be in breach of parenting orders made under the FLA, or in the course of proceedings for such orders. Widening the scope of the offence of taking or sending a child outside Australia and having specific defences has been discussed for at least 20 years. These included fleeing from violence, and protecting the child from imminent harm.
However, the Family Law Council repeated its view that there should be specific defences if fleeing from family violence, protecting children from danger or imminent harm and a reasonable excuse for failing to return the child to Australia such as flight cancellations or ill-health. They were summarised by the Senate Committee. Diana Bryant, was opposed to a stand-alone criminal offence at p. What you would say in favour of it is that it is my understanding that it does assist the police and Interpol to look for children overseas, but one would have hoped there might be some other way of doing that.
Surely the AFP here can have arrangements in relation to abduction of children short of necessarily having to have criminal offences created. The second reason for doing it, I suppose, is a community perception, particularly from the left-behind parent, that there should be some punishment, but the problem is that in the cases that we see regularly where the children are sought to be returned to a country where there are laws whereby criminality is created by removing a child — typically that is some of the state in the United States, where it is regarded as kidnapping — you often end up having to try to get some kind of undertaking from the other parent not to prosecute so the child can be returned, and that is not always possible if the prosecution is by a district attorney or something.
One of the defences that might then arise would be if the father, for example, is not able on the face of it to care for the children and the mother is going to be jailed upon return and there is no-one to look after the child. So this problem arises all the time, and it is not uncommon to be seeking for other jurisdictions to forgo prosecution so that the children can be returned.
So it is a real issue. A differently constituted Committee in took a different view and recommended that there be specific defences. This gives category D extended geographical jurisdiction to the offence so that it can be prosecuted whether or not the conduct occurred in Australia.
Bondelmonte & Bondelmonte () FLC – High Court parenting case Wolters Kluwer | Central
A nexus to Australia or an Australian person is not required. The downside is that all the decided cases and other parts of the legislation will have incorrect legislative references and any pending orders will need to be changed. This change takes effect on 23 November The above changes commenced on 26 October , except for the arrest provisions which will commence when the changes to the child abduction provisions commence — probably 25 April There will presumably be a period of confusion whilst everyone adjusts to the new numbers.
One of the most significant change is probably the extension of conduct which will amount to criminal offences with respect to international child abduction. It will be interesting to see what, if any, impact this has on the number of parents who abduct children. For lawyers, it will affect the advice given to left-behind parents who need to decide whether to push for criminal charges to be instituted.
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It will also impact how the return of children is voluntarily negotiated and how and whether the orders are made by overseas courts when there is a greater likelihood that the abducting parent will face criminal charges upon their return to Australia. Other major changes are to the rights of de facto parties to commence property and maintenance proceedings and the ability of parties to tell the court that offers have been made, but not the terms of the offer.
Email Jacky Campbell jcampbell fortefamilylawyers. Jacky writes extensively on complex aspects of family law and her up-to-date knowledge means that she is able to provide accurate information about the law. She combines this with offering strategic advice to clients and guidance as to the best approach to take in their particular circumstances. Jacky wrote her Masters thesis on the relationship of bankruptcy and family law.
Bondelmonte & Bondelmonte (2017) FLC 93-765 – High Court parenting case
She continues to have a special interest in matters involving bankruptcy, insolvency, liquidation and receivership. She is experienced with complex superannuation interests such as defined benefit funds and self managed superannuation funds. She acts for many clients who are overseas or where there is an international element such as overseas assets and international child abduction under the Hague Convention.
She is also experienced in Australian and overseas surrogacy arrangements and in disputes about the role of a sperm donor.
Jacky is keen to assist clients to resolve matters before trial through alternative dispute resolution processes including mediation. She is a trained arbitrator and is an arbitrator with The Alternative Courtroom. Email Wendy Kayler-Thomson wkaylerthomson fortefamilylawyers. Wendy Kayler-Thomson is a partner of Forte Family Lawyers and has practised as a lawyer specialising in family law for 25 years.
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The Family Law Section is regularly consulted by the Federal government and the Courts about changes to family law and court procedures. As a result, Wendy is able to offer her clients the most up to date advice on family law and strategies to take advantage of future changes. Wendy develops close and trusted relationships with her clients and the wide network of professionals that refer her work.
Wendy brings a high attention to detail, strategic advice and a depth of expert knowledge about family law. Wendy has a commercial background and has acted for many clients with complex financial arrangements. Wendy has undertaken extensive training in a wide range of social sciences that impact on families and their children, including family and domestic violence, parental alienation, personality disorders, drug and alcohol addiction and high conflict. Wendy has particular expertise in cases where one parent wants to relocate with the children interstate or overseas. At the request of the Federal Attorney-General, the Australian Law Reform Commission is currently undertaking a comprehensive review of family law and the family law system in Australia.
Email Bronwyn Drummond bdrummond fortefamilylawyers.