Hilden and Hilden - [2018] FCCA 3954

FEDERAL CIRCUIT COURT OF AUSTRALIA

HILDEN & HILDEN

[2018] FCCA 3954

Catchwords:
FAMILY LAW – Rice & Asplund – consent orders – time with father “as agreed” – mother does not agree to any time – consent orders set aside – family therapy ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 60CA, 65AA

Cases cited:

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

Applicant:

MR HILDEN

Respondent:

MS HILDEN

File Number:

SYC 4648 of 2016

Judgment of:

Judge B Smith

Hearing date:

17 December 2018

Date of Last Submission:

17 December 2018

Delivered at:

Sydney

Delivered on:

21 December 2018

REPRESENTATION

Counsel for the Applicant:

Mr Frost

Solicitors for the Applicant:

Horizons Family Law Centre Pty Ltd

Solicitors for the Respondent:

Lewis Holdway

Solicitors for the Independent Children’s Lawyer:

Phillip A Wilkins & Associates

ORDERS

Orders 1, 2, 3 and 4 of the consent orders made 12 October 2016 be set aside.
That until further order, each party, Mr Hilden born …1986 and Ms Hilden born …1987, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Children, [X] born …2010 (male) and [Y] born …2011 (female), from the Commonwealth of Australia until further order of this Court;
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said Children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watchlist for the said period, or until the Court orders its removal.
Forthwith any passport in either party’s possession or control relating to the children be delivered to the Registrar of the Sydney Registry of the court to be held by the said Registrar pending further order of the court.
The parties are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.
That the children live with the mother, Ms Hilden born …1987, at her current residence and she is not to relocate the children from her current address without further order of this Court.
That, within 28 days of the date of these orders, Ms Hilden (“the mother”) and Mr Hilden (“the father”) (together referred to as “the parents”) do all things necessary to facilitate the engagement and participation of each of the parents and of [X], born on …2010, and [Y], born on …2011 (together referred to as “the children”) in a family therapy process with a therapist determined by the Independent Children’s Lawyer, with the aim of improving the children’s wellbeing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hilden and Hilden

Details

AGLC: Hilden and Hilden [2018] FCCA 3954
Case: [2018] FCCA 3954
Decision Date: 21 December 2018

CaseChat Overview and Summary

In this matter before Judge B Smith, the parties were Mr. Hilden and Ms. Hilden, parents of two children, [X] and [Y]. The dispute concerned the children's welfare and their relationship with their father, particularly in light of allegations of family violence and the mother's actions which effectively prevented the children from spending time with the father. The court was asked to consider whether existing consent orders should be set aside.

The primary legal issue before the court was whether the existing consent orders, made on 12 October 2016, should be set aside. This required the court to consider the guiding principles established in *Rice & Asplund*, the circumstances under which the consent orders were entered, and the likely future events. The court also had to determine if the current situation, where the children had no contact with the father, was in their best interests.

The court reasoned that the children's views, as expressed in the Child Inclusive Conference Memorandum, were not genuinely their own but rather reflected the mother's position, thus diminishing the weight of any decision based solely on those purported views. The judge noted that while the mother's fears might be genuine, her unilateral imposition of a "no time" order, contrary to the spirit of the consent orders which contemplated time with the father as agreed in writing, was not in the children's best interests. The court found that the existing orders, as currently interpreted and exercised, effectively amounted to "no time" orders, which are rare and require substantial evidence to justify. Given these circumstances and the material before the court, the judge was not persuaded that the current orders were in the children's best interests.

Consequently, the court ordered that the consent orders of 12 October 2016 be set aside. The court also made interim orders restraining the removal of the children from Australia, requiring passports to be delivered to the Registrar, and establishing equal shared parental responsibility. Further orders addressed the children living with the mother, mandatory family therapy, communication protocols between parents, and the preparation of a Family Report by a Family Consultant.

Orders

Orders of the court

Orders 1, 2, 3 and 4 of the consent orders made 12 October 2016 be set aside.

That until further order, each party, Mr Hilden born …1986 and Ms Hilden born …1987, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the said Children, [X] born …2010 (male) and [Y] born …2011 (female), from the Commonwealth of Australia until further order of this Court;

AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said Children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Children’s names on the Watchlist for the said period, or until the Court orders its removal.

Forthwith any passport in either party’s possession or control relating to the children be delivered to the Registrar of the Sydney Registry of the court to be held by the said Registrar pending further order of the court.

The parties are to have equal shared parental responsibility for making decisions about the long term care, welfare and development of the children.

That the children live with the mother, Ms Hilden born …1987, at her current residence and she is not to relocate the children from her current address without further order of this Court.

That, within 28 days of the date of these orders, Ms Hilden (“the mother”) and Mr Hilden (“the father”) (together referred to as “the parents”) do all things necessary to facilitate the engagement and participation of each of the parents and of [X], born on …2010, and [Y], born on …2011 (together referred to as “the children”) in a family therapy process with a therapist determined by the Independent Children’s Lawyer, with the aim of improving the children’s wellbeing and relationship with the father.

That the parents each follow such advice and direction as the therapist may give them in relation to all aspects of the children’s relationship with the father including, but not limited to, the children’s relationship, time and communication with the father.

That the father bear all costs of the family therapy referred to in order 6, above, including those arising from the engagement and participation of the mother and the children.

The Independent Children’s Lawyer has leave to provide a copy of the Child Inclusive Conference Memorandum to the therapist.

10.

That each parent keep the other parent informed of:

(a) Their residential address and mobile telephone number; and

(b) Any significant injury or illness suffered by the children and details of all medical treatment given to the children;

(d) All school, extra-curricular and sporting activities in which the children are involved.

11.

That the parents communicate about the matters referred to in the preceding paragraph, and/or any other matters relating to the children, by text message between the mother and the father.

12.

That each parent is entitled to communicate with the children's school and receive copies of all school reports, notices, newsletters, bulletins, applications for school photographs and other correspondence from the children's schools and each parent will provide the Principal of the children’s school with a copy of this order within 7 days of the date of the orders and will authorise the Principal to facilitate this order.

13.

That each parent is hereby restrained from denigrating the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children and both the parents shall use their best endeavours to ensure that no third party denigrates the other parent and/or any member of the other parent’s family or household to, or in the presence or hearing of, the children.

14.

Each parent is restrained from discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children and shall use their best endeavours to ensure no third party does so.

15.

Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they deem necessary.

16.

Liberty is granted to the all parties and the Independent Children’s Lawyer to approach the Court in Chambers to relist.

17.

Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the children of the relationship attend upon a Family Consultant nominated by the Manager, Child Dispute Services on a date and at times to be advised for the purposes of the preparation of a Family Report and in particular:

(a) to consider the factors in sections 60CC and 65DAA of the Family Law Act 1975;

(b) to consider issues raised in the Family Consultant’s Memorandum to Court;

(d) to assess the parents’ interactions (and those of other significant adults);

(e) to assess the children’s developmental and emotional state;

(f) to assess the relationship of the children to the parents (and other significant persons);

(g) to ascertain the wishes of the children unless inappropriate by reason of age or other special circumstance;

(h) to assess the proposed and actual home environments; and

(i) to assess the proposals of each party as to the children’s future.

18.

The Family Consultant is granted leave to inspect all documents produced in response to Subpoena.

19.

If the Family Consultant is unable to inspect documents produced in response to Subpoena at the Wollongong Registry of the Commonwealth Law Courts, the Registry Manager upon receiving a request from the Family Consultant, is to forward such documents to the Registry nominated by such consultant to permit such inspection.

20.

The report be released as soon as practicable, and unless otherwise arranged with Chambers.

21.

Upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

22.

Unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the Children to whom these proceedings relate:

(a) a Children’s Court;

(b) a child protection authority;

23.

Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

24.

Following release of the Family Report and prior to the adjourned date, the parties file and serve a minute of final order sought by each of them as to parenting.

25.

The matter be listed on 14 June 2019 at 9:30am for mention. The parents must attend in person with their legal representatives if the Report is available prior to the adjourned date.

26.

Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.

NOTES

27.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Independent Children’s Lawyer also supported the position that the Rice & Asplund test had been met as proposed by the father, and that the Court should move forward. Conclusion I need to consider the questions of whether or not, given the guiding principles in Rice & Asplund, and given the form of these orders and the circumstances in which they were entered, and the view of which I take about the likely future events, it is appropriate to set them aside and to proceed to determine the matter afresh, noting that, of course, if the mother does make out her allegations of family violence at the level she has asserted them, or at a higher level, which is still possible, there is always the possibility that, at the end of the proceedings, we may end up with the same or very similar orders. As I have said, this is an interim application. There are contested questions of fact, and I cannot know what the result will be. I do know, however, that even if that is the result, involving the children in the dispute, noting what Ms A has said about the family law proceedings hanging over the children, and telling them that they are not to call him Mr Hilden and not to care for him, and maintaining their fears, regardless of the true position, must impact negatively on them, and cannot be in their best interests. I find that the children’s views, as expressed in the Child Inclusive Conference Memorandum, are not their views but are only the mother’s, so the suggestion that the mother is making a decision purely based upon the children’s views can be given no weight. I note that although it may not be strictly relevant to the question since the contravention was not argued, that I consider there is an obligation of good faith in respect of compliance with consent orders in respect of doing things as agreed in writing between the parties. I cannot make a finding that there is no good faith, because the mother’s fears may be genuine, they may be well grounded, and it may be that she, rightly or wrongly, genuinely believes that it is in the children’s best interests that she not agree to any time. However, I do not think any reasonable person who entered into orders, or who saw orders that said that the children spend time with the father as agreed in writing between the parties in this case, could, would or should anticipate that that would, in effect, grant the mother the position and power or the authority she is exercising to unilaterally impose a no time with order with the children, which is, in effect, what has occurred, noting that no time orders are very rare in this Court, and that the evidence required to persuade the Court that it is in the children’s best interests to have absolutely no contact whatsoever ever with one parent is very substantial and, although that does happen, is not common. In those circumstances, and given the material before me, I am not persuaded that it is in the children’s best interests for the current orders to stand, since those current orders, in effect, are no time orders, as they have currently been interpreted and exercised.

Ratio Decidendi

Legal Principle Established

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