Hidaka & Hidaka (No 2)

[2025] FedCFamC1F 188

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Hidaka & Hidaka (No 2) [2025] FedCFamC1F 188

File number:	SYC 8022 of 2023
Judgment of:	SCHONELL J
Date of judgment:	21 March 2025
Catchwords:	FAMILY LAW – Application by the parties to adjourn the final hearing dates – Where the mother had indicated to the court on a previous occasion that she and a child of the relationship would return to Australia for the purposes of being interviewed by a nominated court child expert for the purposes of a report – Where the parties inform the court that the child is on the Watchlist in Country B and is unable to leave – Removal of child from Watchlist – Hearing dates vacated – Liberty to relist within 72 hours of mother and child’s return to Australia.
Division:	Division 1 First Instance
Number of paragraphs:	10
Date of hearing:	21 March 2025
Place:	Sydney
Counsel for the Applicant:	Mr Brickwood
Solicitor for the Applicant:	Lagom Family Law
Counsel for the Respondent:	Mr Malcolmson
Solicitor for the Respondent:	Genuine Legal
Solicitor for the Independent Children's Lawyer:	Mason Mia & Associates

ORDERS

SYC 8022 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR HIDAKA

Applicant

AND:

MS HIDAKA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	21 MARCH 2025

THE COURT DIRECTS THAT:

1.The hearing dates for the final hearing listed to commence on 14 April 2025 are vacated.

AND THE COURT ORDERS THAT:

2.By consent Orders are made in accordance with paragraphs 1, 2, 12, 13, 15, 19, 20 and 21 of a document titled “Proposed Minute of Order” filed 20 March 2025 (marked as Exhibit 1) as set out hereunder:

SINGLE EXPERT

1.That the parties appoint Dr M of N Family Services (the Expert) to enquire into and report upon matters relating to the welfare of X born 2018 and Y born 2019 (the Children) and that in preparing the report to the Court, the Expert be requested to consider the following matters:

1.1. the matters set out in section 60CC of the Family Law Act 1975 (Cth);

1.2.          what arrangements would promote the safety (including safety from being subjected to, or exposed to family violence, abuse, neglect, or other harm) of:

1.2.1.        the Children; and

1.2.2.        each person who has care of the Children (whether or not a person has parental responsibility for the Children);

1.3.           any views expressed by the Children and any matters (such as the Children’s maturity or level of understanding) that would affect the weight that the court should place on those views;

1.4.           the developmental, psychological, emotional and cultural needs of the Children;

1.5.           the capacity of each person who has or is proposed to have parental responsibility for the Children to provide for the Children’s developmental, psychological, emotional and cultural needs;

1.6.           the benefit to the Children of being able to have a relationship with the Children’s parents, and other people who are significant to the Children, where it is safe to do so;

1.7.           the psychological state of both parents insofar as it relates to parenting issues;

1.8.           the psychological health or special needs of the Children;

1.9.           the Father’s application for the Children to reside in Australia;

1.10.         the Mother’s application for the children to reside in Country B; and

1.11.         any other matters the Expert considers important to the welfare or best interests of the Children.

2.The Father and Mother shall equally share in the Expert’s costs, and within 7 days of receiving a request for payment from the Expert, the parties shall each pay their share of the Expert’s costs, with the Mother’s share of the Expert’s costs to be deducted from any partial property settlement paid to her pursuant to Order 7(a) made on 16 January 2024.

…

REMOVAL FROM WATCH LIST

12.The parties shall do all acts and things and sign all documents necessary to instruct their Country B Representatives to request the Country B Courts to issue orders which remove Y from the Country B Watch List.

13.For the purpose of Order 12 above, Order 2 made on 15 December 2023 be varied such that the Mother be permitted to prosecute proceedings in Country B for the sole purpose of removing Y from the Country B Watch List.

…

ADJOURNMENT OF THE FINAL HEARING

15.That the Final Hearing listed to commence on 14 April 2025 before this Honourable Court be adjourned.

…

ELECTRONIC COMMUNICATION BETWEEN THE PARTIES AND CHILDREN

19.That Orders 24 and 25 of the Orders made by this Honourable Court on 29 November 2023 be discharged.

20.That Order 4 of the Orders made by this Honourable Court on 13 March 2025 be varied to read that:

“4.      That the Father do all things required to facilitate a video conference between the Child and his Mother on Tuesday, Thursdays, and Saturdays between 4.30pm and 5.30pm, with the Father ensuring the Child’s availability for the calls with the Mother and the call shall not exceed 30 minutes and immediately at  the conclusion of the Mother’s call with the Child, the Mother shall ensure the Child Y’s availability to video conference with the Father and this call shall not exceed 30 minutes”.

21.That during video conference calls, the parties shall facilitate the Children communicating with one another as they express a wish to do so.”

3.Liberty is granted to restore the matter on 72 hours’ notice upon the mother and Y’s return to Australia.

4.Otherwise, liberty is granted to the parties to apply on seven days’ notice.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

1. These are proceedings in relation to two children, X born 2018 and Y born 2019.

2. On 16 January 2024, Altobelli J made orders for the children to be returned from Country B where they had been taken by the mother, according to the father, without his consent. Notwithstanding the making of those orders compelling the mother to return the children to Australia, those orders were not complied with and the children remained living in Country B until earlier this year when the father travelled to Country B and returned X to Australia.

3. The circumstances in which he returned the child to Australia are somewhat controversial and, for the purposes of the current application, it is unnecessary to address how or the manner in which the children were returned to Australia.

4. At an earlier mention of this matter, I had allocated hearing dates of three days commencing on 14 April 2025. At a mention before me on 13 March 2025 the wife through her then counsel indicated that she intended to return to Australia for the purpose of the hearing and would bring with her Y, the intention being that the children would then be interviewed by a nominated court child expert for the purposes of a report for the hearing to take place on 14 April 2025.

5. Subsequent to the making of those orders, it has become apparent that there are difficulties in relation to Y leaving Country B. The child is on the Watchlist in Country B and, accordingly, is unable to leave. Again, the circumstances in which the child came to be placed on the Watchlist and the reasons why are unnecessary to go into, albeit it would appear that it was at least done by the father if not done by the parties jointly.

6. It seems common ground before me this morning, albeit the evidence is less than complete, that there are difficulties in seeking the child’s removal from the Watchlist and that either way the parties hold a common view that there is no way that the matter will be able to proceed on a final basis. The parties are agreed that orders should be made appointing an expert, formalising the removal of the child from the Watchlist in Country B, and adjournment of the final hearing dates.

7. What I propose to do is list the matter before myself upon 72 hours’ notice of the mother and Y’s return to Australia and at that further mention make directions for trial and listing of the matter for a final hearing. It may be that the hearing date may be some months away.

8. Accordingly, I propose to make the following orders. I mark as Exhibit 1 a document described as “Proposed Minute of Order” as sought by the mother.

9. I make Orders in terms of paragraphs 1, 2, 12, 13, 15, 19, 20 and 21 of that Exhibit.

10. I otherwise grant liberty to restore the matter on 72 hours’ notice upon the mother and Y’s return to Australia and otherwise grant a general liberty to apply on seven days’ notice.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.

Associate:

Dated:       25 March 2025