Bondelmonte & Bondelmonte [2015] FCCA 1774 (26 June 2015)

Last Updated: 24 July 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

BONDELMONTE & BONDELMONTE

[2015] FCCA 1774

Catchwords: FAMILY LAW – Children – overseas travel – injunction – parenting orders – variation of parenting orders – insufficient evidence. FAMILY LAW – Property – injunction – an injunction merely restating the effect of Family Law Act 1975 (Cth) s.121 is unnecessary and undesirable. PRACTICE AND PROCEDURE – Transfer to the Family Court – where parenting Orders made by consent in the Family Court on 25 June 2014 – where father seeks to reopen parenting proceedings relating to the parties’ daughter.

Legislation: Family Law Act 1975 (Cth), ss.60CA, 68L, 121 Federal Circuit Court of Australia Act 1999 (Cth), s.39

Cases cited: Sitwell & Sitwell [2014] FamCAFC 5

Applicant:

MR BONDELMONTE

Respondent:

MS BONDELMONTE

File Number:

SYC 4839 of 2011

Judgment of:

Judge Scarlett

Hearing date:

16 March 2015

Date of Last Submission:

16 March 2015

Delivered at:

Sydney

Delivered on:

26 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Batey

Solicitors for the Applicant:

Broun Abrahams Burreket

Counsel for the Respondent:

Mr Schonell SC

Solicitors for the Respondent:

Karras Partners

ORDERS

(1) The Application for Interim Orders filed on 11 December 2014 is dismissed.
(2) As provided by section 68L of the Family Law Act 1975 the interests of the children X born (omitted) 1999, Y born (omitted) 2001 and Z born (omitted) 2004 are to be independently represented by a lawyer and Legal Aid New South wales is requested to arrange such representation.
(3) Within seven (7) days the parties are to forward to Legal Aid New South Wales at 323 Castlereagh Street, Sydney copies of all Applications, Responses, affidavits and other relevant documents for the use of the Independent Children’s Lawyer when appointed.
(4) The Independent Children’s Lawyer is granted leave to issue up to ten (10) subpoenas without charge.
(5) The wife must within seven (7) days disclose to the husband’s lawyers copies of:

• (a) any documents provided by her or on her behalf to Mr B of The (omitted);
• (b) any documents provided by her or on her behalf to Mr J, Chartered Accountant, of (omitted) Sydney NSW; and
• (c) any documents provided by her or on her behalf to Mr I, Chartered Accountant, of (omitted) Sydney NSW.

(6) The Applications are otherwise transferred to the Family Court of Australia at Sydney to be listed for mention on a date to be fixed.
(7) The parties’ costs are to be costs in the cause.

IT IS NOTED that publication of this judgment under the pseudonym Bondelmonte & Bondelmonte is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY

SYC 4839 of 2011

MR BONDELMONTE

Applicant

And

MS BONDELMONTE

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother for suspension of an Order made by consent on 25 June 2014 permitting the parties to take the their three children out of Australia for a holiday and for an injunction restraining the parties from doing so without the written consent of the other party. The mother also seeks an order placing the children’s names and particulars on the Watch List maintained by the Australian Federal Police.
2. The father, by his Response, seeks dismissal of the mother’s Interim Application and Interim Orders providing that the parties’ daughter, Z, who was born on (omitted) 2004, should live with him.
3. The father also seeks orders, by way of an Application in a Case filed on 13 February 2015, restraining the mother from disseminating to the public or a section of the public, any account of these proceedings or any part of these proceedings, which identifies him or any issues, topics of evidence, and, in particular, from disseminating any of this information to the following individuals:
   1. a Mr B of “(omitted)”;
   2. a Mr J, a Chartered Accountant; and
   100. a Mr I, a Chartered Accountant.
4. In addition, and more particularly, he seeks an order requiring the mother to disclose to him copies of any documents that she has provided, or anyone on her behalf has provided, to any of those individuals.

Evidence

5. The mother, in seeking the Orders against the father, relies on her affidavit sworn or affirmed on 11 December 2014. In that affidavit she deposes as to her belief that the father intended to take all three children out of Australia permanently and not return them. She noted that the father held the passports of the parties’ two sons and daughter, even though he was required by Order 6 of the Consent Orders made on 25 June to return the daughter’s passport to her.
6. The mother’s reasons for her belief that the father intended to leave Australia permanently are:
   1. He is under significant legal and financial pressure as a result of investigations by the Australian Taxation Office which has involved proceedings in the Federal Court;
   2. His evidence was criticised in proceedings commenced by the Australian Taxation Office against (omitted) in a decision handed down on 10 September 2014 by one “Judge” Edmonds^[1] in these words:
      • “Mr Bondelmonte’s evidence was also knowingly false.”^[2]
   100. The father has a personal income tax liability of over $3.2 million;
   4. Mr J, the Liquidator appointed to (omitted), told her on the telephone that the father gave the ATO 21 days’ notice of his intention to travel internationally and had his passport returned to him. Mr J allegedly told her:
      • “Mr Bondelmonte gave the ATO 21 days’ notice of his intention to travel internationally and the ATO has now returned his passport. He is going. If I was^[3] you I would be at the Court house making sure the children stay”.^[4]
   5. The father’s cousins, Mr E, Ms G, Ms L, Mr G and Ms D all now reside in (country omitted) after relocating from Sydney, allegedly as a consequence of (omitted) and their involvement in the Bondelmonte family business; and
   6. The father’s brother Mr M resides in (country omitted) and has done so since (omitted) 2014.
7. In his affidavit sworn 4 March 2015, the father deposes that the two boys live with, or largely with him but the daughter, Z largely lives with the mother. He stated that Z’s passport was returned to the mother on 12 December 2014.^[5]
8. The father further deposed that:
   1. He did not know the motivation for the members of his family relocating to (country omitted) but states that his uncle Mr E is deceased;
   2. His brother Mr M is currently in (country omitted) seeking medical treatment for a heart condition but his wife Ms S continues to reside in Sydney, whilst visiting her husband frequently;^[6]
   100. He has regularly travelled to (omitted) in the (country omitted) for skiing holidays.
9. Annexed to the father’s affidavit of 13 February 2015 is a copy of an affidavit of Mr J in proceedings in the Federal Court. In that affidavit, dated 15 January 2015, Mr J states his recollection of that conversation in this way:
   • Ms Bondelmonte’s recollection of what I said to her set out in her affidavit is not entirely correct. I said to Ms Bondelmonte words to the effect:
     • ‘Mr Bondelmonte has given 21 days’ notice that he wishes for his passport to be returned to him and the passport has now been returned.’^[7]
10. The father in his affidavit of 4 March 2015 sets out his concerns about Z’s frequent absences from school and quotes a statement from his family doctor, a Dr S, who is said to has described the child’s problems as “a psycho-social response to her separation from you and her brothers – It is a common reaction to her being in a difficult environment”.^[8]
11. The father expresses concern in his affidavit of 13 February 2015 about information given to Mr B of “(omitted)” that led to an article about him published on (omitted) 2015. He is concerned that the mother has provided documents to Mr B or to Mr J and Mr I, as Liquidators in the Federal Court proceedings.

Conclusions

12. The evidence in support of the mother’s Application for injunctive orders to restrain the father from taking the children out of Australia and place their names and details on what is now known as the Family Law Watchlist is flimsy, to say the least. Whilst it appears that the father still had the child Z’s passport in his possession at the time the mother signed her affidavit on 11 December 2014, it appears from the father’s affidavit that the passport was returned to the mother the very next day. It is also clear that, despite the mother’s fears expressed in early December that the father would remove the children from Australia, he had apparently made no attempt to do so when the matter came to Court on 16 March this year.
13. It is disturbing that Mr J’s account of his conversation with the mother disputes that he said the words “He is going. If I was you I would be at the Court house making sure the children stay”.
14. Whether or not the mother made a deliberately false statement in her affidavit is a matter for another day, and in my view another Court.
15. The evidence in support of the mother’s Application is insufficient to warrant making the Orders sought.
16. The father raises concerns about the health and welfare of the parties’ daughter, believing that she is missing her brothers. The evidence is not particularly strong. If the father wishes to reopen parenting proceedings that were resolved by consent in the Family Court only a year ago, there will need to be some better and stronger evidence. I propose to order that the interests of the child should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth).
17. In my view, the injunctions sought by the father in his Application in a Case are too wide, insofar as they seek to restrain the mother from disseminating to the public any information relating to these proceedings. This is a matter that is already covered by s.121 of the Family Law Act 1975, and it has been held by the Full Court of the Family Court in Sitwell & Sitwell^[9] that an injunction merely restating the effect of s. 121 is unnecessary and undesirable.
18. I am, however, persuaded that the specific orders sought against the mother in respect of any material that she may have passed on to Mr B, Mr J and Mr I is within jurisdiction and should be made.

Transfer to the Family Court

19. In his Response filed on 5 March 2015 the father is seeking to reopen the parenting proceedings in respect of the child Z. The parenting proceedings were resolved by Consent Orders in the Family Court on 25 June 2014, only a year and a day ago. They should return to that Court. I will make the necessary Order under s.39 of the Federal Circuit Court of Australia Act 1999 (Cth).

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate:

Date: 29 June 2015

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^[1] The Honourable Justice Richard Francis Edmonds is a Judge of the Federal Court of Australia. The correct title for judges of the Federal Court is “Justice”
^[2] Affidavit of Ms Bondelmonte 11.12.2014 at paragraph [25]
^[3] sic
^[4] Affidavit of Ms Bondelmonte 11.12.2014 at [29]
^[5] Affidavit of Mr Bondelmonte 4.3.2015 at [21]
^[6] Ibid at [27]
^[7] Affidavit of Mr Bondelmonte 13.2.2015 Annexure “E”
^[8] Ibid at [33]
^[9] [2014] FamCAFC 5