Hillier and Hillier (No 2) - [2010] FamCA 918

FAMILY COURT OF AUSTRALIA

HILLIER & HILLIER (NO. 2)

[2010] FamCA 918

FAMILY LAW – CHILDREN – With whom a child communicates – Father resident overseas

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bereat and Beareat [2010] FamCA 693
Chappell & Chappell (2008) FLC 93-382
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4
Starr and Duggan [2009] FamCAFC 115

APPLICANT:

Mr Hillier

RESPONDENT:

Ms Hillier

FILE NUMBER:

MLC

4502

2009

DATE DELIVERED:

13 October 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

5 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR MCCORMICK

SOLICITOR FOR THE APPLICANT:

ZOLIS LAWYERS

THE RESPONDENT:

IN PERSON

Orders

That each Sunday at 10.00am (Melbourne Australian time) by web camera (or “Skype”) the husband communicate with the child J born … September 2003 for a period of 30 minutes.
Paragraph 1 of these orders is conditional upon the following:
(a)The husband providing to the wife through his solicitors, all of the necessary technical and computer equipment to enable effect to be given to paragraph (1); and
(b)The husband setting up and being responsible for, any account with a service provider set up by the husband.
That the husband notify the wife through his solicitors, of all arrangements associated with the setting up of the account, the delivery of any technical equipment and the point at which the provisions of paragraph (1) of these orders will commence.
That the wife at all times provide to the solicitor for the husband (for so long as the solicitor continues to act for him) an email address at which she can be contacted for the purposes of implementing these orders. To the extent that the husband is not represented by lawyers, all communications with the wife for the purposes of these orders shall be by email at an address provided by the wife in the circumstance that the husband is no longer represented.
That the husband be restrained from abusing or harassing the wife.
That the wife do all things reasonably necessary to give effect to the facilitation of the orders in paragraphs 1-4 above.
That the communication between the husband and the children C born … January 2006 and L born … August 2008 remain to be determined at a point in time when the husband has evidence to show a proposal as to how he would commence a relationship with those children and maintain it.
That the wife provide to the husband through his solicitors, a copy of any school report of any child and in the event of any serious health issue (physical or psychological) a brief overview as to the condition and treatment.
That the husband be permitted to send to all children, age-appropriate gifts at Christmas and on their respective birthdays but all such gifts be forwarded through the solicitors for the husband and it be the decision of the wife as to whether those gifts are given to the children.

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 Hillier and Hillier (No 2)

Details

AGLC: Hillier and Hillier (No 2) [2010] FamCA 918
Case: [2010] FamCA 918
Decision Date: 13 October 2010

CaseChat Overview and Summary

In *Hillier and Hillier (No 2)*, the Honourable Justice Cronin considered parenting orders concerning the communication between a husband and his children, and the wife's responsibilities and decision-making powers regarding the children. The dispute arose from applications for parenting orders made by the parties.

The court was required to determine the extent and nature of the husband's communication with the children, specifically addressing the use of technology for contact. It also needed to decide on the wife's obligation to consult with the husband on long-term decisions affecting the children, and to determine the wife's sole responsibility for making such decisions. Furthermore, the court had to consider the husband's ability to send gifts to the children and the wife's discretion in facilitating their delivery.

Justice Cronin ordered that the husband communicate with the child J via webcam each Sunday for 30 minutes, conditional on the husband providing the necessary technical equipment and setting up an account with a service provider. The husband was also restrained from abusing or harassing the wife. Communication with the other children, C and L, was to be determined at a later date when the husband could demonstrate a proposal for establishing and maintaining a relationship. The wife was ordered to provide school reports and brief overviews of serious health issues to the husband. The husband was permitted to send age-appropriate gifts for Christmas and birthdays, but the wife retained discretion over whether these gifts were given to the children. Crucially, the wife was relieved of the obligation to consult with the husband on major long-term issues affecting the children and was granted sole responsibility for decisions concerning their education, religion, culture, health, and living arrangements until further order. The parties' applications for parenting orders were otherwise dismissed.

Orders

Orders of the court

That each Sunday at 10.00am (Melbourne Australian time) by web camera (or “Skype”) the husband communicate with the child J born … September 2003 for a period of 30 minutes.

Paragraph 1 of these orders is conditional upon the following:

(a) The husband providing to the wife through his solicitors, all of the necessary technical and computer equipment to enable effect to be given to paragraph (1); and

(b) The husband setting up and being responsible for, any account with a service provider set up by the husband.

That the husband notify the wife through his solicitors, of all arrangements associated with the setting up of the account, the delivery of any technical equipment and the point at which the provisions of paragraph (1) of these orders will commence.

That the wife at all times provide to the solicitor for the husband (for so long as the solicitor continues to act for him) an email address at which she can be contacted for the purposes of implementing these orders. To the extent that the husband is not represented by lawyers, all communications with the wife for the purposes of these orders shall be by email at an address provided by the wife in the circumstance that the husband is no longer represented.

That the husband be restrained from abusing or harassing the wife.

That the wife do all things reasonably necessary to give effect to the facilitation of the orders in paragraphs 1-4 above.

That the communication between the husband and the children C born … January 2006 and L born … August 2008 remain to be determined at a point in time when the husband has evidence to show a proposal as to how he would commence a relationship with those children and maintain it.

That the wife provide to the husband through his solicitors, a copy of any school report of any child and in the event of any serious health issue (physical or psychological) a brief overview as to the condition and treatment.

That the husband be permitted to send to all children, age-appropriate gifts at Christmas and on their respective birthdays but all such gifts be forwarded through the solicitors for the husband and it be the decision of the wife as to whether those gifts are given to the children.

10.

That the wife facilitate the giving of the said gifts to the children in the event that they are age-appropriate with an indication that the gifts are from the husband.

11.

That until further order pursuant to s 65DAC, the wife is relieved of the obligation to consult with the husband until further order, in respect of major long term issues affecting the children.

12.

That until further order, the wife have sole responsibility for making long term decisions concerning the children relating to:

(a) The children’s education;

(b) The children’s religion and cultural upbringing;

(d) The changes to the children’s living arrangements.

13.

That the parties’ applications for parenting orders be otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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