Hillman and Hillman

[2017] FamCA 308

FAMILY COURT OF AUSTRALIA

HILLMAN & HILLMAN [2017] FamCA 308

FAMILY LAW – CHILDREN –  With whom a child spends time – Best interests – Where orders made by consent for supervised sibling contact – Where the Applicant seeks to remove the child from the Commonwealth of Australia for holiday travel during a school holiday period – Application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hillman

RESPONDENT: Mr Hillman

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 1750 of 2016

DATE DELIVERED: 8 May 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 8 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Brandon, Evans & Company Family Lawyers

RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Fox, Barbara Fox Solicitor

Orders

IT IS ORDERED BY CONSENT THAT

1. Clauses 13(a), 15, 16, 17 and 18 of the Order made on 15 September 2016 be discharged.

AND IT IS FURTHER ORDERED BY CONSENT BY WAY OF INTERIM ORDER THAT

1. The children, B, born … 2003 and C, born … 2006 spend time together in the presence of Ms D (E Group) each alternate Saturday from 1.30 pm to 3.30 pm to ensure that no adult issues are discussed by either child with the other.

2. The time as provided for in Clause 2 of this Order take place at F Town or such other place as agreed to with Ms D but the collection and drop off of the children is to remain at F Town.

3. Each parent be responsible for one half of all costs associated with Ms D assisting the children with conflict free sibling contact.

4. Each parent will comply with any directions of Ms D to ensure that the children’s time together is free from any conflict between the parents.

5. The children be presented to the office of the Independent Children’s Lawyer as arranged by the Independent Children’s Lawyer in order for the children to be introduced to Ms D prior to any time commencing.

6. The Independent Children’s Lawyer will obtain written reports form Ms D with regard to the sibling contact from time to time.

7. In relation to the time provided for in Clause 2 of this Order, handover arrangements shall be as follows:

   (a)       for the purpose of delivery of the children:

   (i)the father shall attend and deliver the child B at 1.20 pm and immediately leave the shopping centre;  and

   (ii)the mother shall attend and deliver the child C at 1.30 pm and immediately leave the shopping centre;

   (b)       for the purpose of collection of the children:

   (i)the mother shall attend and collect the child C at 3.30 pm and immediately leave the shopping centre;  and

   (ii)the father shall attend and collect the child B at 3.40 pm after the conclusion of the time.

AND IT IS FURTHER ORDERED THAT

1. Clauses 1, 2, 3, and 4 of the Amended Application in a Case filed 15 March 2017 (as amended by leave of the Court today) are dismissed.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders

NOTATION:

1. Upon the Court making the Orders by consent in relation to the commencement of the involvement of Ms D in facilitation of the children spending time together the Applicant sought and was granted leave to amend Clause 1 of the Amended Application in a Case filed 15 March 2017 to seek to be permitted to remove the child, C from the Commonwealth of Australia during the September 2017/October 2017 school holiday period. 

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillman & Hillman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1750 of 2016

Ms Hillman

Applicant

And

Mr Hillman

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Upon the Court making the orders by consent in relation to the commencement of the involvement of Ms D in the facilitation of the children spending time together, the Applicant sought and was granted leave to amend Clause 1 of the Amended Application in a Case filed 15 March 2017 to seek to be permitted to remove the child, C, from the Commonwealth of Australia during the September/October 2017 school holiday period. 

2. I have taken into account the submissions made on behalf of each of the parties and the evidence that each has relied on insofar as it is relevant to the Application seeking to be able to remove the child, C, from the Commonwealth of Australia for the purpose of school holiday travel during the September/October school holidays in 2017.

3. I am not persuaded to make an order to permit that to occur at this time.  I am not persuaded that such an order for overseas travel is, at the moment, in C’s best interests. 

4. I have taken into account the fact that, whilst the children have previously travelled to China and spent time there during the course of their parents’ cohabiting relationship, all such travel occurred in the presence of both of their parents. 

5. The mother’s evidence includes that, at no time after the birth of the children, did Mr Hillman agree to them travelling with her alone to China – rather, any travel took place in the company of both of the parents.  This is relevant because it could not be said, in that context, that his opposition to her application to take C alone to China for the purpose of holiday travel is recent or in any way inconsistent.  It seems to me – to the extent that anyone could make a finding on an interim basis, and subject to all the inherent weaknesses of any tentatively expressed view – that his actions in the past have been consistent insofar as any concern he expresses now about the potential for either the child, C (or the children together) remaining in China. 

6. I have taken into account the fact that China is not a signatory to the Hague Convention and the consequences of that fact in the event that the mother determined not to return C to Australia.

7. I have also taken into account that, on the mother’s own evidence, it seems her brother and his four year old son (who is, of course, C’s and B’s cousin), travelled to Australia as recently as January 2017 – thus, C has had, at least, some relatively recent opportunity to spend (albeit limited) time with her cousin. 

8. The mother’s evidence is, in essence, that her application to travel with C to China (by which I mean at any time during the June/July or September/October 2017 school holidays) was to enable C to have the experience of visiting family who live there.  These are said to be the maternal grandparents and the mother’s brother and, perhaps, other members of the extended maternal family; and also to have the opportunity to expose C to Chinese heritage and culture. 

9. Perhaps strangely, (or perhaps not, in this jurisdiction), Mr Hillman does not accept that, in fact, the maternal grandparents live in China.  His evidence is to the effect that they live in Sydney and have lived in this country for some time. 

10. That issue is not one upon which a definitive finding of fact can be made at an interim stage of proceedings, given the inherent limitations in the hearing of interim proceedings.

11. The fact of the mother's heritage and her inherent culture means, though, that both of her children have the opportunity to benefit from such heritage and culture during any time they spend with her.  She is someone who was, herself, born in China.  Given that the existing parenting arrangements see C live with her, it seems to me that C’s opportunity to be exposed to Chinese heritage and culture is, at least, partially met by the sheer fact of her residence with her mother.

12. I am not persuaded, at this time, that any benefit which might flow to C from the opportunity to travel outside of Australia outweighs the potential risk that she may not be returned – particularly given that the parties seem, at this point in time, to be engaged in a significant dispute about the ongoing and future living arrangements for each of their children. 

13. In addition, it seems that, at least until relatively recently (on the mother’s evidence) her parents (the maternal grandparents) have spent significant time in Australia at a location which has enabled them to provide support to her, of both an emotional and practical nature.

14. I am not persuaded, as I say, at this point in time that focus should be upon overseas travel rather than upon attempting to do everything that can be done to ensure that at least the children, in particular, have the opportunity to re-ignite the relationship that no doubt continues to exist between them. 

15. In addition, whilst no particular submissions addressed this fact, I am concerned to not make orders which further distinguish between the circumstances of each of the girls and to not provide a circumstance in which one of them is afforded the opportunity to undertake overseas travel, whilst the other is not afforded the same opportunity.

16. I hold concerns – perhaps unfounded – that to create such a circumstance might, from the perspective of girls of their respective ages, do more to create difference than it does to bridge the issues that currently exist between them in their relationship:  I think particular care should be taken in that regard. 

17. It may be that, with the passage of time and the implementation of the process that the parties have today agreed upon (namely, the involvement of Ms D from E Group to facilitate the children spending time together in the interim period), things are different in the future.

18. However, for these very short reasons (delivered orally), I dismiss the Application for liberty to remove the child, C, from the Commonwealth of Australia:  therefore, paragraphs 1 through 4 of the Amended Application in a Case filed 15 March 2017 (as amended today orally by leave) are dismissed. 

19. I have dismissed those aspects of the interim Application that relate to the passport simply because, given my determination in relation to the Application for overseas travel, it does not seem to me to be necessary to make such an order at this point in time.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 8 May 2017.

Associate:     

Date:    8 May 2017