HOLINSKI & HOLINSKI

[2014] FamCA 168

FAMILY COURT OF AUSTRALIA

HOLINSKI & HOLINSKI [2014] FamCA 168

FAMILY LAW – CHILDREN – Interim parenting – Application to take the subject children overseas – Revisiting of matter previously determined – No significant change in circumstance since matter previously determined – Application dismissed

Family Law Act 1975 (Cth)

Rice & Asplund (1979) FLC 90-725

APPLICANT: Ms Holinski

RESPONDENT: Mr Holinski

INDEPENDENT CHILDREN’S LAWYER: Ms Hafey

FILE NUMBER: PAC 129 of 2013

DATE DELIVERED: 17 March 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 17 March 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Blackman Legal

SOLICITOR FOR THE RESPONDENT: Turner Freeman Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid NSW Parramatta Family Law

Orders

1. The mother’s Application in a Case filed 4 December 2013 is dismissed.

2. The proceedings be relisted no less than seven (7) days after release of the Family Report.

3. The costs of the father of today in relation to the Application in a Case are reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 129 of 2013

Ms Holinski

Applicant

And

Mr Holinski

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an Application in a Case made by the mother of two children, who are just over two and four years of age.

2. An interim decision was given in August last year in relation to the children who, at that stage, had been unilaterally moved from the care of the father for a considerable period of time, approximately 7 months.  The circumstances at that time were that the mother, who is a citizen of the United States, was seeking both as a final order to relocate to the United States and for the children to have no contact with their father other than by writing or email, and on an interim basis, was seeking to travel to the United States to take the children to see her family there.

3. At that time there was no dispute that the mother had grown up in the United States and had an extensive family and friendship network in that country and it was not disputed, and continues not to be disputed, that it has been a number of years now, it is 5 years, since she has visited the United States.

4. The Reasons for Judgment in August 2013 included some comments made in relation to the interim position of the mother seeking to take the children on a holiday to the United States.  The facts, at that stage, included not only that the mother had unilaterally removed the children from the care of their two parents and not arranged for them to have any contact with their father for a period of seven months, but that she also kept her location from the father.  There was also evidence that she had said through her legal practitioner that she would take any steps to ensure that the children would be with her and not exposed to the father, who was referred to at that point as effectively coming from a cult and being from a toxic family. There were some real concerns raised by the father that if the mother were allowed to take the children to the United States, in light of some of her stated views and also her behaviour with respect to the children over the previous seven months, that they would not be returned. 

5. In the conclusion of my Reasons for Judgment I referred to the concerns then about permitting the mother to travel to the United States when I said:

   Permitting the mother to travel to the United States in light of the history of the matter, the stance taken by the mother to date, which in my view is uncompromising and unreasonable, together with the mother’s affiliation with the United States and stated intention to relocate involves a risk that the mother would not comply with the orders of the Court and return the children.  I am not comforted by her stated intention to abide by the orders of the Court or the mother having been given advice about the Hague Convention for the return of children.  Further, in the event that the children were returned under the Hague Convention, the likely time that this would take would further damage the relationship between the children and their father.

6. It is the Order in relation to being prohibited from removing the children to the United States which the mother is now seeking to revisit. 

7. Whilst it is not strictly the case that the “rule” in Rice & Asplund[1], (which undoubtedly applies to final parenting decisions,) necessarily applies, particularly with such great degree of strictness to interim matters, because the rationale for Rice & Asplund (supra) is that children should not be subjected, in effect, to endless litigation and changes in the circumstances, it still is the case, in my view, that the underlying principal, that there must be something new since the last application such that it is in the best interest of the children for the interim Orders to be reconsidered, still does apply. 

   [1] (1979) FLC 90-725

8. In my view, there is nothing new in the mother’s affidavit.  Most of the affidavit is concerned with matters that were previously asserted, in particular, that the father limited her relationship with her family in the United States throughout the currency of their marriage and limited and prevented her from travelling. 

9. Apart from the fact that more time has gone by and she is feeling more, I can only use the word that she uses in paragraph 18, “desperate” to be allowed to return, nothing has changed and none of the events since the separation or in recent months are referred to at all. 

10. In addition, as has been pointed out by the Independent Children’s Lawyer, I think it is of significance that there is absolutely nothing at all in terms of what is the plan and certainly nothing to comfort the father or the Court in terms of those risks that were raised. 

11. The father continues to essentially reassert the matters that he also raised previously and, that is, that he has concerns that the mother would retain the children in the United States arising from an email that the maternal grandfather sent to him, which says:

    We have researched and know how to get [the mother] out of the country without your approval.  I am not giving a vain threat.  I will not give the details of this covert endeavour and it all hinges on [the mother’s] consent.

12. Combined with the letter to which I referred previously that also formed part of the evidence in the first proceedings and that is written on behalf of the mother that:

    Our client will do whatever is required to prevent your client and his family from having any contact with the children.  We put you on notice that our client will be seeking to relocate to [State F] in the USA where she has the support of family and friends.

13. It is the case that the mother has now changed her position and I understand that, although there had been previous discussions about it, the father has recently become aware that part of that change of position is that she no longer seeks to relocate and no longer seeks sole parental responsibility.  It is said that, in addition, she has also changed her attitude in consenting to an increased amount of time that the children can spend with their father.  So far as the consenting is concerned, it still seems to me and it has been put by the Independent Children’s Lawyer that these children are having quite a limited amount of time with their father, especially in light of the principles and objects that underlying the Family Law Act 1975 (Cth) (“the Act”).

14. The clear intention of the Act is that parents both play significant and meaningful roles in relation to the parenting of their children and, in my view, although there has been the small change of attitude, (which in all of the circumstances is much more aligned with the underlying principles,) in any event, does not represent a change in circumstances for these children sufficient that the interim Orders be relooked at. Especially when the matter is further down the track, these are matters that need to be determined at trial and there is still the risks that arise in relation to the return of the children. These remain as live issues and, in those circumstances, the application is dismissed.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 March 2014.

Legal Associate:       

Date:    25 March 2014