Bondelmonte v Bondelmonte & Anor [2016] HCATrans 243 (14 October 2016)

Last Updated: 17 October 2016

[2016] HCATrans 243

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S111 of 2016

B e t w e e n -

BONDELMONTE

Applicant

and

BONDELMONTE

First Respondent

INDEPENDENT CHILDREN’S LAWYER

Second Respondent

Application for special leave to appeal

GAGELER J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 2016, AT 10.49 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MR S.J. WILLIAMS, for the applicant. (instructed by Karras Partners Lawyers)

MR M. BARTFELD, QC: May it please the Court, I appear with my learned friend, MR C.J. OTHEN, for the first respondent. (instructed by Broun Abrahams Burreket)

GAGELER J: Yes, Mr Walker.

MR WALKER: Your Honours, the short point is framed by familiar and general provisions of the Family Law Act, section 60CA, requiring the “paramount consideration” to be “the best interests of the child” “In deciding whether to make a particular parenting order”, and section 60CC which in subsection (1) mandates matters to be considered, and in subsection (3) among those described in those mandatory considerations as “Additional”, that is, not primary considerations “any views expressed by the child”.

There is not so much framing the issue as called up tangentially in the circumstances of this case and the orders eventually made. Also, section 65C - I do not suggest it is dispositive - you will find that at page 108 of the application book. It stipulates those “Who may apply for a parenting order”. The, I will call them “kindly householders”, sometimes called “chaperones” in our submissions, who volunteered their homes for the two boys in question in this case, do not fall obviously within (a), (b) or (ba) in section 65C and probably do not fall within (c) either; that is, they were not in that position so far as evidence was concerned.

KEANE J: Mr Walker, their voluntary role proceeds on the assumption, does it, that the boys will choose not to live with their mother?

MR WALKER: Yes, it comes from that plus another matter which I was hoping I would never have to address, but need to. At page 71, in the dissenting reasons, there is, I have to concede, a fair summation in paragraph 167 of the other matter - I suppose, a kind of assumption - upon which the expedient adopted that led to these two volunteered households being at the heart of the orders about which we complain.

So, my client did not - I would probably be right to say would not - inform the Court of whether he would accompany his sons back to Australia so that he would be living in Sydney, I imagine, in order to provide a possible home for either or both of them with him. There was that plus the undoubted weight that was given to the age and maturity of the boys, particularly the older one, and the unfortunate but clear estrangement between him and his mother, that can be seen to be, as Justice Keane has put to me, a kind of assumption upon the basis of which that expedient was evolved.

GAGELER J: So, the position of these persons was made known to the Court in emails, was it?

MR WALKER: Yes, it was, so you see an example, the forensic history is set out – it really starts at about paragraph 161 on page 70, I will not go to it. It culminated in, at the last moment, in forensic terms, by email not on oath and not the subject, given the timing in question – not the subject of investigation. These, as I say, kindly women volunteered their households. You see an example of the kind of material and the extent of it in paragraph 168 on page 71.

Now, I most proceed in gingerly fashion here because we cannot claim any, as it were, infringed righteousness in relation to this. It was the circumstances that I have described which gave rise to this forensic expedient. However, that only makes it the more appropriate as a vehicle for the propositions which, with great respect, fall out very clearly and, we submit, poignantly, in paragraphs 169 and 175 and 176 of the dissenting reasons of Justice Le Poer Trench. At the foot of page 71, there is a litany of questions to which there were not answers.

Now, let me confront whether there were not answers to those questions because of what might be called the lack of forthcomingness by my client as to the hypotheticals - if this order is made, will you come back, et cetera. Let me just take that as a burden. There is nothing in the Act nor in the proper ascertainment of the child’s best interests that would hold against a child in relation to what should happen with respect to that child’s parenting order – a parenting order as to where that child lives and with whom - that would warrant holding against that child, as it were, that is, subtracting what the law would otherwise require by way of consideration of that child’s interests, on account of one of their parents, in this case, their father’s it might be called “poor behaviour”.

So, in paragraph 169, it is not enough to say, well, those are questions that might have been answered if the father had been more forthcoming. These are not proceedings in which, as it were, parties must live with the consequences of how they choose or choose not to conduct their litigation. The Court’s overriding duty is clear.

When one comes to page 73 in paragraphs 175 and 176, matters are said which, in our submission, are both commonsense and principled. The most likely proposal, as a matter of practicality, to use his Honour’s expression, was that which fell out from the most unfortunate and poignant combination of two circumstances: the elder boy - who, of course, will short soon be an adult - the elder boy’s estrangement from his mother so that the prospects of him choosing to live with his mother are practically zero, and the younger brother’s attachment to his brother. The combination of that leads to the state of affairs referred to in paragraph 175 and shows that the orders made by his Honour trying, as it were, to square impossible circles, the orders made by his Honour were made without the benefit of essential information concerning those volunteered households.

In paragraph 176 right at the heart of the matter was one of those mandatory considerations, the wishes of the child, because although, plainly, though with some problematic language, the trial judge did take into account the wishes of the boys, particularly in relation to preferring to live with their father including in New York, as opposed to, at least in one of their cases, preferring adamantly not to live with their mother wherever - although that plainly was taken into account, hence the orders, there was no evidence whatever concerning their wishes in relation to these other households.

Now, I am not going to call them because they are not “strange” households, but they are not households which had been the object of any inquiry for the purpose of the litigation or, indeed, the object of any real exploration in litigation. There were assertions made. It may be accepted in terms that were not contradicted about historical links between each of the boys respectively with each of those households but they were not such as to come anywhere near suggesting the appropriateness of a parenting order one way or the other.

GAGELER J: So, your case is very much encapsulated in the dissenting reasons in the Full Court.

MR WALKER: It is. That is why I have gone to it. Also, for this reason, His Honour’s reasons are, with respect, very carefully based upon a detailed consideration of the facts which, may I put it this way, are not praising of my client’s conduct. So, the premise is one that is a proper premise, namely, that the shared parental responsibility was infringed by the last minute notification that the boys would not be returning from the holiday itself arranged by an indulgence of the mother on shorter notice than the order required.

His Honour embraces that premise and correctly and, in accordance with principle, as to the provisions that I have drawn attention to at the outset of my address today, observes that they require matters to be considered and addressed in a way that cannot be dealt with simply by holding it against the account of my client, the father, that he had not supplied, in particular, information to the Court about these hypotheticals.

It is for those reasons, in our submission, that there is considerable virtue in this case in terms of the appropriateness of the vehicle. We come to Court with facts which provide the conceptual separation of the wrongdoing of a party and the best interests of the child. That is a very important issue, with respect. Second, we have come with a case where the wishes of the children are simply not known about that which, in all practicality, will be the most likely outcome upon their return. It is for those reasons, in our submission, apart from and as well as the human considerations that focus on the children that this is an appropriate case for special leave. May it please the Court.

GAGELER J: Thank you, Mr Walker. Mr Bartfeld.

MR BARTFELD: May it please the Court. There is a fundamental misconception, in our respectful submission, in our client’s submission and that is this. This is an interim decision by a trial judge in whom a large measure of discretion is reposed. That discretion was being exercised in circumstances where the trial judge had little or no information of the sort that our learned friend says has not been supplied. It was in the husband’s or the father’s path to ensure that the trial judge was armed with all that was required for a decision to be properly made but he elected not to do so.

Relocation cases are difficult and they are cases which have engaged the attention of this Court on at least three occasions in the last 16-17 years in the cases of AMS v AIF in 1999, U v U in 2002 and MRR v GR in 2010. Those cases, although their circumstances, facts and reasoning are different, they have one thing in common and it is this. In those cases each and every party had been through the process of a hearing on a final basis, an appeal and then a special leave application which was successful. In this case, the case has not even reached the point where the Court has been put in a position to be able to evaluate facts because no facts were placed before it and to now say that the learned trial judge and the majority of the Full Court is wrong because of that is, in our respectful submission, incorrect.

KEANE J: Can we just pause there for a moment? What we do have, as is apparent from page 38, is the parenting orders that were made on 25 June 2014 whereby it was ordered:

That the children live with the husband and the wife as agreed between the parties or at the children’s own election.

So, that is the starting point, as it were. And then in the judgment of Justice Le Poer Trench at page 83 paragraph 212, it said:

The Court must acknowledge that there may be cases where the Court has to act with such urgency, having regard to the circumstances of a child that it is unable to obtain the views of a child before making an interim parenting order, however, in my view, this was not such a case.

Now, notwithstanding the urgency with which the primary judge was required to act, given the position established by the parenting orders made in June 2014, why is not that observation by the dissenting judge persuasive or compelling that this is not a case where the views of the child could not be obtained or the children could not be obtained, and indeed where the views of the children were pretty clear.

MR BARTFELD: Well, your Honour, firstly, we deal with it in this way. First of all, the earlier order to which your Honour has referred deals with whom the child should live, not where the child should live. So, if one were to look at the totality of the order, your Honours will appreciate that there are provisions within it for the giving of notice for going on holidays overseas, for example. So that the order, in our respectful submission, ought to be construed as being limited to with whom the children shall live in Australia, it does not go beyond the border, as it were, when one parent chooses to remove themselves from the country and then create a situation where the children in question are taken away from their roots and other family members and, in this case, the trial judge made reference to the sister, Nicole, who has been left behind.

The second point we make is this. In order to ascertain the views of these children it is not enough, in our respectful submission, to rely on what has been said in the text messages from them from the United States when they are within the father’s constellation, under the influence of the father. The orders that are made by the learned trial judge are facilitative in providing an opportunity for these children’s views to be obtained properly and in an unbiased way. It may turn out those views do not change but at the moment, in our respectful submission, from the point of view of the exercise of a discretion in an interlocutory proceedings, all his Honour can have before him was an abstract and indirect expression of those views and it remains for those views to be ascertained properly.

So, in our respectful submission, the orders that are made are made to facilitate the establishment of those views, given that the consequences of any adoption of those views are that the children, that is, the older children, leave the country and go and live in another country. That, with respect, is in our respectful submission, the answer to your Honour’s question. We appreciate that these children were given some power by the earlier order but that power must be seen to be limited, in our respectful submission.

KEANE J: You say “power”, it might be said that the better word is “autonomy”.

MR BARTFELD: It may be said – that may be said, your Honour, but it does not deviate from the proposition to which I have referred the Court to and that is the autonomy must be interpreted to be within this country otherwise there will be no purpose for the notice provisions for going on holidays overseas and they would be redundant.

GAGELER J: What do you say about what I understand to be the central proposition in the dissent, that is, that in the circumstances of this Court, ascertaining the best interests of the child placed on the Court a positive obligation to know more about the views of these two boys?

MR BARTFELD: The obligations are contained in section 60CC and they are one of the matters that are taken into account and, certainly, if there was to be a trial it would be appropriate that those views would take centre stage. As we submitted earlier, it is the ascertainment of those views that is a problem. At the moment, there is no way in which those views can be ascertained outside the influence of the father’s circumstances and the Court is aware from the judgments of both the majority and the dissenting judgment that there has been some inducements offered by the father to the children to have them live in New York and they have acceded to those inducements and been attracted to the bright lights, as it were, and the lifestyle of New York. In the end, that may be a matter which concludes that - - -

KEANE J: Well, it is a choice they can make.

MR BARTFELD: I am sorry, your Honour?

KEANE J: It is a choice they can make.

MR BARTFELD: It is a choice they can make if and when a case about their parenting is finally heard and determined. It is not a choice that, in our respectful submission, they should be able to arbitrarily make in circumstances where their departure from the country is attended by the subterfuge which has occurred, we say, in this case.

So that, in our respectful submission, the trial judge and the majority of the Full Court did no more than put in place a regime whereby the case can then proceed to trial and the matter can be properly evaluated. It is our respectful submission that the views of the children are not the only matters to be considered and they are important matters in this case but his Honour, having considered them, gave them such weight as he thought appropriate given the circumstances surrounding their departure.

GAGELER J: Has a trial date been set?

MR BARTFELD: We do not believe so, your Honour, because there is the agitation that is going on with this special leave application and so forth. But it is unlikely that – well, an application to set a trial would obviously be made when it is known what is to happen to these boys and whether they are to return, particularly the younger one.

GAGELER J: One of them is nearly 18, is he not?

MR BARTFELD: Well, indeed, your Honour, and it may well be that by the time the trial is listed he is no longer within the purview of the Court. But the younger one certainly is still within the purview of the Court and - - -

KEANE J: Is he 16?

MR BARTFELD: He is 15, your Honour. So, in our respectful submission, your Honours, the exercise of the discretion in this case is both appropriate and correct. The point about the chaperones, as our learned friend referred to or the people who have volunteered to make a place available for them is, in our respectful submission, correctly dealt with by the majority at application book 55 at paragraph 89, and that is that that order is facilitative in the sense that the expression the boys “may live” with the persons described appears in the order that was made by the learned trial judge. That order is at application book 31 at paragraph 9.

The order in relation to where the children should live with the mother is mandatory in its terms, subject to the next order, that is, the order 9. Order 9 is a conditional order and it is a facilitative order because the expression in relation to the two alternatives at paragraph 9.1 and 9.2 is prefaced with the expression “they may live”, that is the expression “may” is used in its true sense, not in the sense as sometimes argued in this Court that “may” means “shall”.

In our respectful submission, here the facilitation is one which need not fall into place and it is of a character which is familiar to any parent who sends children to boarding school or to stay with relatives or to stay with friends.

KEANE J: The context of that decision is not that the children, given the choice, choose not to live with that parent. This regime, providing for accommodation, proceeds on the assumption that the boys will choose not to live with their mother.

MR BARTFELD: That is one of the possibilities that his Honour had to consider and he would have been criticised, in our respectful submission,

had he not considered it. So that, in our respectful submission, his Honour made appropriate provision for every contingency as he was obliged to do and the contingency that was put forward after the children’s grandmother was rejected by the father and that was the only evidence that he did put forward in this case in rejecting the grandmother as a person with whom they could live. After that rejection, then there are two possibilities, and that is paid helpers, and that can hardly be said to be persons in loco parentis or these mothers of friends.

The point could be tested, your Honours, in this way; if one was to pose the question, could these persons ever seek to enforce the order and the obvious answer is “no”. The mother could seek to enforce the order and if she was met with the evidence that the children did not want to meet – did not want to live with her then, of course, the order would not be enforced but she is in the position of being capable of enforcing this order. So, therein lies the distinction, in our respectful submission, between the parent who has parental responsibility and the beneficial stranger – benevolent stranger who does not.

GAGELER J: The word “may” signifies an election, does it?

MR BARTFELD: In our respectful submission, it signifies permission rather than an election. The election is contained earlier in the paragraph at paragraph 9, the opening words being:

In the event the father returns to Australia with [the boys], [the boys] can continue to live with him. In the event that he does not –

so it is an election that seems to be reposed in the father and that triggers different opportunities.

Your Honours, the father is at the present time in breach of orders. If special leave were given and the appeal was successful he would continue to be in breach of orders. There is no application before the Court on his behalf to seek orders permitting the removal of these boys from the jurisdiction. So, the application as is currently before the Court is not one which, in our respectful submission, justifies special leave being given. It is one which, we say, is a matter of discretion and the process of the Family Court being invoked if necessary on an urgent basis to rectify a situation which, in our respectful submission, is of the father’s making, therefore, in our respectful submission, it is not a case for special leave.

GAGELER J: Thank you, Mr Bartfeld. Yes, Mr Walker.

MR WALKER: Your Honours, just one point. The 2014 orders obviously provide a very substantial record of an appreciation of the

appropriateness of these boys having what might be called a “choice” or “election”. As to whether or not the wishes expressed by the boys which did not extend to these other households being their homes, however temporarily, it is just not correct that the position should be regarded as one where, on the facts found, those wishes were, as it were, non-existent because of what I will call “contamination”.

This was a live issue factually. At trial, the mother’s argument about this failed. Her appellate argument about it failed. If one goes to the beginning of that at page 13 in the application book, paragraph 32 records the acceptance of “the father’s evidence as to the views expressed by the boys”. Now, of course, they were views against going back to Australia and, in particular, views against living with their mother.

On appeal, if one can go straight to page 60 and in paragraph 106, the conclusion of some reasoning leading up to it is we do not accept that:

his Honour, in adopting this approach, determined that the children’s views were other than genuine.

So, the reference to “contrivance” that had been the object of appellate consideration had been, of course, the reference to what I will call the “holiday becoming an indefinite stay”, not what I will call a “concoction” matter at all. That is why one sees in paragraphs 100, 102 and 103 on pages 58 and 59 a proceeding on the basis that the boys’ views were appropriate, that is, had been conveyed to the Court.

There was, of course, an argument that there should have been views taken in relation to the specific parenting order that came to be proposed. That is the point that we raised for special leave. There is no doubt that there was no evidence before the Court about that wish. No doubt, because there was no evidence on the face of the reasons against us there appears to be no breach of the mandatory consideration.

It did not fail to take into account views, but we say that is because of a failure to comply with the requirement of the law which is to take appropriate steps to ascertain views, particularly with these boys whose views had been taken into account on an incomplete hypothesis.

I need to correct my friend, I am instructed, there is an application before the Family Court in relation to permission to live in New York but it is of no moment to the special leave point to which we seek to ventilate. May it please the Court.

GAGELER J: Thank you, Mr Walker. There will be a grant of special leave in this matter. Mr Walker, it is a matter that should be dealt with expeditiously in this Court. There will be an abridged set of directions which the parties can obtain from the Deputy Registrar which will be designed to have the appeal available to be listed in the December sittings of the Court.

MR WALKER: May it please the Court.

MR BARTFELD: May it please the Court.

MR WALKER: Half a day, your Honour.

GAGELER J: Half a day, did you say? Half a day, all right. Mr Bartfeld, half a day?

MR BARTFELD: Yes, your Honour.

GAGELER J: Yes, very well. Thank you.

AT 11.23 AM THE MATTER WAS CONCLUDED