MONTJOY & HILLMAN

[2015] FamCA 584

FAMILY COURT OF AUSTRALIA

MONTJOY & HILLMAN [2015] FamCA 584

FAMILY LAW – CHILDREN – Interim Orders – parties and children originally from the United Kingdom – children now living in Australia – father seeks the children return to England – matter listed for trial – children to spend time with father in Australia and England.

Family Law Act 1975 (Cth) s 60CA, 60CC, 61DA, 65DA

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, signed at The Hague on 19 October 1996
Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Montjoy

RESPONDENT: Ms Hillman

FILE NUMBER: ADC 2048 of 2015

DATE DELIVERED: 23 July 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 17 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis

SOLICITOR FOR THE APPLICANT: Howe Jenkin

COUNSEL FOR THE RESPONDENT: Mr Stapleton

SOLICITOR FOR THE RESPONDENT: Hunter Flood Lawyers

Orders

1. That until further order B born … 2003 and C born … 2004 (“the children”) do live with the mother.

2. That the children spend time with the father as follows:-

   (a)for a period of seven (7) days during the September/October 2015 school holidays between such dates and times as may be agreed between the parties but in default of agreement to occur within the first half of the said school holidays and if possible proximate to the assessment to be undertaken in preparation of a family report to be prepared pursuant to orders made 17 July 2015;

   (b)from 22 December 2015 to 18 January 2016, with such time to be spent with the father in the United Kingdom subject to the following conditions:-

   (i)that the father shall give the mother thirty (30) days’ notice of his intention for the children to travel to the United Kingdom;

   (ii)an itinerary in respect of the children’s travel both to and from the Commonwealth of Australia;

   (iii)contact details for the children during the period that they are in the United Kingdom;

   (iv)that the travel expenses in respect of the said children shall be paid by the husband;

   (v)that if the children are required to be accompanied THEN the father shall nominate who shall travel with and accompany the children to and from Australia and the United Kingdom with the expense of the accompanying person to be borne solely by the father;

   (vi)that the father will cause the children to contact the mother on two occasions in each week by Facetime or Skype if possible, but otherwise by telephone.

   (c)that the children spend time with the father at such other times as may be agreed between the parties.

3. That paragraph 2(b) is conditional on the father serving on the mother documentary proof:-

   (a)that he has obtained from a court of competent jurisdiction in the United Kingdom recognition pursuant to Article 24 of the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, signed at the Hague on 19 October 1996 (The Child Protection Convention) of the Orders of the Family Court of Australia made in these proceedings; or

   (b)that he has obtained from a court of competent jurisdiction in the United Kingdom a Declaration of Enforceability in the United Kingdom pursuant to Article 26 of the said Child Protection Convention of the Orders made in the Family Court of Australia and of these Orders; or

   (c)That he has registered in a court of competent jurisdiction in the United Kingdom pursuant to Article 26 of the Child Protection Convention, the Orders of the Family Court of Australia and these orders, thereafter he will be entitled to remove or cause the removal of the children from Australia at the expiration of seven (7) days from the date upon which the documentary proof has been served on the mother but in any event not before 22 December 2015 (NOTING that these orders may be the subject of amendment, variation or change consequent upon the report of the family consultant and evidence that may be heard during the trial).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Montjoy & Hillman 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 ADELAIDE

FILE NUMBER: ADC 2048  of 2015

Mr Montjoy

Applicant

And

Ms Hillman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. By Initiating Application filed 10 June 2015, Mr Montjoy (“the father”) seeks final orders that the parties do have equal shared parental responsibility for B born in 2003 and C born in 2004 (“the children”) but of greater relevance to the interim proceedings, that the children do return to the United Kingdom on or before 20 August 2015 or as soon thereafter as possible.

2. By way of interim relief, if the Court is not minded to order the urgent return of the children to the United Kingdom, then the father seeks the following interim order:-

   (5)That if the children are not orders to return to the United Kingdom before Christmas 2005, then the children do travel to the United Kingdom from the conclusion of the 2015 term 4 school term to stay with the father until the conclusion of the Adelaide school holidays in 2016.

3. By Response filed 10 July 2015, Ms Hillman (“the mother”) agrees that the parties should have equal shared parental responsibility for the children but resists any order that would see the children returned to the United Kingdom and instead seeks that the children live with the mother and spend time with the father.

4. The mother seeks interim orders that the father sign all documents necessary to enable the children to be granted an Australia Permanent Residence Visa by the Australian Department of Immigration and Border Protection, but in the event that the father fails or refuses to comply with such direction, then a Registrar Deputy Registrar of this Court shall execute all such documents for and on behalf of the father.

5. The mother also seeks an order that each party be restrained from removing or attempting to remove the children from the Commonwealth of Australia and further, that if such order is made then the names of the children should be placed on the Family Law Watch List at all points of arrival and departure in the Commonwealth of Australia.

6. In contemplation of the hearing on 17 July 2015, the mother filed an Application in a Case on 16 July 2015 seeking an order that she have leave to tender an expert report or adduce evidence from Dr D at the interim hearing.

7. The parties have each filed relatively extensive affidavit material and in particular as to the father, the following documents are relied upon:-

   ·Affidavit of the father filed 10 June 2015

   ·Affidavit of the father filed 16 July 2015

8. The mother relies upon her affidavit filed 10 July 2015.

9. At the hearing both parties were represented by counsel.

THE PROCEEDINGS

1. The gravamen of the interim proceedings is the father’s application that the children return to live in the United Kingdom by 20 August 2015 and if not then as soon thereafter as is practicable taking into account the commencement of the UK academic year in September 2015.

2. The mother resists the father’s application and maintains that the children should live with her and remain in the Commonwealth of Australia but more particularly in Adelaide.

3. I heard and determined the Application in a Case and following ex-tempore reasons I did not grant leave for the mother to rely upon a report and/or evidence by Dr D.

4. The father’s counsel properly conceded that the argument did not involve a question of jurisdiction or issues of habitual place of residence but rather, the proceedings could be described as a relocation case with each of the parties seeking that the children remain in their primary care. She did foreshadow that the father is considering bringing proceedings under the 1980 Hague Convention but that has not yet taken place.

5. There was therefore recognition that at an interim hearing the Court was unlikely to make orders that would see the children return to the United Kingdom on or before 20 August 2015.

6. The focus of the father’s application then centred upon an order that the children be permitted to return to the United Kingdom to spend time with the father for the December/January Australian school holiday period.

7. There was focus on whether notwithstanding the father’s concession that the children would remain with the mother at least in the short to medium term, there was the need to consider the orders the mother seeks namely, that either the father or a Registrar of this Court be required to sign documents that if approved, would cause a permanent residency visa to issue for each of the children.

8. The father strongly resists that order because he considers that if made on an interim basis in his mind it would effectively predetermine the substantive issues.  Whilst I do not necessarily agree with that assessment, I can well understand the father’s concerns.

9. There had not been any recent enquiry by the mother as to the status of the children as far as the Department is concerned in circumstances where their fate is under active consideration by the Court.

10. The mother’s counsel was challenged as to whether it was a credible concern that that the Department would effect the deportation of the children without notice to the mother.

11. It was not proper to speculate as to the likely actions of the Department, but equally, it did not appear that there had been any attempt made by the mother to ascertain the Department’s attitude to the children and their residency status whilst proceedings were on foot.

12. Ultimately there was a concession made by the mother that it was more likely than not that any intention to return the children to the United Kingdom would either not occur during the currency of the proceedings or if that was to happen, there would be sufficient notice for an application to be brought either in this Court or another Court at short notice.

13. Accordingly and following better consideration of the initial concerns of each of the parties, it was reasonable to find that the perceived urgency had to some extent dissipated.

14. The underlying substantive issues involving the potential relocation of the children back to the United Kingdom should if possible be the subject of early determination.

15. The children are aware of the dispute and correspondence from them can be interpreted as highlighting a level of anxiety about the disruption with their father, but a concern as to the status of their current living circumstances.

16. It must be acknowledged that the current level of uncertainty is not in the interests of the children and as such I proposed to the parties that I could accommodate a final hearing in this matter in the week commencing 14 December 2015.

17. Ultimately, the prospect of an early trial date was attractive and trial direction orders were made.

18. Conveniently, the father is to attend in Adelaide over the September/October school holiday period, spend time with the children and subject to confirmation, there can then follow an assessment for the purposes of a family report to be prepared by an agreed family consultant.

19. The fixing of the trial date effectively resolved all outstanding matters other than the order sought by the father that the children spend time with him in the United Kingdom to include Christmas Day.

20. Whilst there is always complexity in respect of arrangements for children over the Christmas holiday period, the mother’s concerns and her initial opposition to the orders sought by the father can be summarised as follows:-

    (1)There is a fear that if the children were returned to the United Kingdom then the father would not return them to Australia;

    (2)That the children not having seen their father since October 2014 may be reluctant and anxious about now spending extended time with him particularly for the period that he seeks namely, the entirety of the December/January school holiday period (approximately six weeks).

21. I raised with the parties that the fears of the mother in respect of the retention of the children might be lessened if orders were made pursuant to “The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children,  signed at The Hague on 19 October 1996 (The Child Protection Convention).”

22. There was general agreement that if properly implemented the Child Protection Convention would provide adequate protection and certainty of return.

23. Counsel for the father agreed that orders made in terms of his application to spend time with the children over the 2015 Christmas period could properly reflect the provisions of the Child Protection Convention.  I made it clear to the father that whilst it was likely some order would be made, it was obviously subject to variation dependent upon evidence heard from the family consultant and/or the trial which will have concluded by the Christmas period.

24. What remains is to put in place orders that would see the father spending time with the children over the September/October 2015 holiday period in Australia and subject to the provisions of the Child Protection Convention, the terms and conditions of the children spending time with the father in the United Kingdom over the December/January holiday period.

BACKGROUND

1. The parties commenced their relationship in 1998.  There is consensus that they separated in May 2009.  A divorce order was obtained by the parties in September 2010.

2. The mother has two children by a former relationship.  They are both adults and continue to reside in the United Kingdom.

3. She is now married and the family including B and C reside in Suburb E.

4. The father continues to reside in London with his current wife and their infant son F.

5. Following separation, the parties are not agreed as to the extent to which the children spent time with the father.  He says that a pattern developed whereby the children spent time with him each alternate weekend and in addition longer periods were spent over the school holidays.  The mother has a different perception of the arrangements.  She complains that the father appeared reluctant to spend any significant time with the children and says that from May 2009 to the beginning of 2011, the father saw the children on only 27 occasions.  These visits were brief and there was seldom any overnight stay arranged.

6. Notwithstanding his alleged reluctance, it is the mother’s case that she recognises the importance of the children having a relationship with their father and indeed it is her position that she has done all that she can to encourage the retention of their relationship.

7. The mother met her current husband in May 2011 and there was then a period of about 12 months of both she and her current husband travelling between Australia and the United Kingdom.

8. In July 2012 the mother approached the father and sought his consent for the children leaving the United Kingdom to take up residence in Australia.  It was the mother’s intention to marry her current husband and she alleges that she told the father that both she and the children would wish to apply for permanent residence in Australia.

9. The father says that he agreed to the children leaving the United Kingdom but upon the following conditions:-

   (a)an agreed return date of August 2015;

   (b)agreed times for the father to visit Australia and for the children to return for a holiday; and

   (c)regular Facetime and Syke calls.

10. Annexures “A”, “B” and “C” to his first affidavit enclose various correspondence and communications which set out the father’s position as to the basis for the children to leave the United Kingdom.  In summary, there was a concession as to his child maintenance obligations and that the agreed plan was that the children would return to the United Kingdom in August 2015 for private schooling.

11. The mother does not agree that there was a clear and unambiguous agreement that it was a precondition for the father signing the necessary visa paperwork that the children would be returned to the United Kingdom in August 2015.  Whilst she does not dispute that this date is contained within the various documents provided by the father, it is her contention that she did not sign any agreement to that effect and the only verbal agreement was that the future circumstances of the children would be the subject of later discussion.

12. The father considers that the children’s best interests are served by returning to the United Kingdom and that they be enrolled in their intended education, whereas the mother asserts that the children are well settled in Australia and do not now wish to return to the United Kingdom notwithstanding that this will be necessarily disruptive to their relationship with their father.

LEGAL PRINCIPLES

1. I have regard to the legislative pathway as set out in Goode & Goode (2006) FLC 93-286. At paragraph 82 of the Judgment the following is stated:-

   In an interim case that would involve the following:-

   (a)identifying the competing proposals of the parties;

   (b)identifying the issues in dispute in the interim hearing;

   (c)identifying any agreed or uncontested relevant facts;

   (d)considering the matters in section 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e)deciding whether the presumption in section 61DA that equal share parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the court does not consider it appropriate to apply the presumption;

   (f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests or as a result of consideration of one or more of the matters in section 60CC, or impractical;

   (h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in section 65DAA(3) with the parents unless contrary to the child’s best interests as the result of consideration of one or more of the matters in section 60CC, or impracticable;

   (i)if neither equal time or substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the court that are in the best interests of the child, as a result of considerations of one or more of the matters in section 60CC;

   (j)if the presumption is not applied or is rebutted, then making such an order as is in the best interests of the child, as a result of considerations of one or more of the matters in section 60CC; and

   (k)even then the court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither party has sought it, if the court considers after affording procedural fairness to the parties it is to be in the best interests of the child.

2. Clearly the matter for determination is of narrow compass, but I bring to account the importance of the children maintaining a meaningful relationship with each of their parents, but in this case the father who is significantly removed from the children.

1. There was a general concession that the initial period as sought by the father namely approximately six weeks was too long and he now seeks a period of four weeks.  That does not seem unreasonable in the circumstances of the case save and except that there appears to be a contest between the parties as to where the children should be on Christmas Day.

2. As currently listed, the final hearing should conclude on 18 December 2015.  If the children are to spend time with the father on Christmas Day then they will need to commence their travel on or about 22 December 2015.

3. On balance, I think it reasonable that the children spend time with their father on Christmas Day.  At the very least they did not spend time with him during the Christmas period in 2014 and possibly 2013.

4. The correspondence from the children would not suggest that they are adverse to their father and whilst they may be anxious given the litigation and their obvious awareness of the conflict between their parents, there is no suggestion that they would not enjoy spending time with their father.

5. It may be that the period as sought by the father is overly long and whilst I consider that the children should spend time with him over the Christmas period, I propose to reduce the overall period that they spend with him by including their travelling time.

6. If other issues arise in respect of the weight to be given to the wishes of the children, then that will be apparent from the proposed family report and exploration of those matters at the final hearing.

7. Additionally, I think it is also reasonable that the father spend one week with the children in the September/October school holidays at times as may be agreed between the parties but in any event to coincide with the family assessment process.

CONCLUSION

1. I make orders as appear at the commencement of these reasons.

I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 23 July 2015.

Associate: 

Date:  23 July 2015.