Ryeburn and Ryeburn

[2008] FamCA 312

FAMILY COURT OF AUSTRALIA

RYEBURN & RYEBURN [2008] FamCA 312

FAMILY LAW - STAY APPLICATION

APPLICANT: Mrs Ryeburn

RESPONDENT: Mr Ryeburn

FILE NUMBER: BRC 11060 of 2007

DATE DELIVERED: 24 April 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 24 April 2008

REPRESENTATION

FOR THE APPLICANT: Applicant appears on her own behalf

SOLICITOR FOR THE RESPONDENT: Mr Woolley, Solicitor, of  Clewett Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Grant, Solicitor, of Grant & Associates, Family Lawyers

Orders

1. The Application filed by the mother on 22 April 2008 be dismissed.

2. The Order 1 of the Order made on 25 March 2008 be varied by the deletion of “on or before 25 April 2008” and the insertion of “on or before 18 May 2008”.

3. The Application for Final Orders filed on 18 September 2007 be listed for trial at 10.00am on 21 July 2008 for two days.

4. The parties are to file and serve all affidavit material on which they intend to rely by 4.00pm on 30 May 2008.

5. The matter is to be listed for mention at 10.00am on 6 June 2008 for the purpose of considering the affidavits which have been filed.

6. The parties have leave to issue any necessary subpoenae such supboenae to be returnable no later than 3 Jun 2008.

7. All parties have leave to inspect the subpoenaed material and the Independent Children’s Lawyer have leave to inspect and copy such material.

AND IT IS ORDERED UNTIL FURTHER ORDER:

1. The mother is restrained and an injunction is granted restraining her from allowing the children to be known by any other name than J Ryeburn and H Ryeburn.

2. The mother is restrained from and an injunction is granted restraining her from residing more than 100 kilometres from T save should she reside in the Brisbane area.

IT IS NOTED that publication of this judgment under the pseudonym Ryeburn & Ryeburn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC11060 of 2007

Mrs Ryeburn

Applicant

And

Mr Ryeburn

Respondent

REASONS FOR JUDGMENT

1. This application is an application for stay of the orders which I made on 25 March.  The mother has appeared by telephone, she is still resident in Tasmania and in a very length submission submits that the damage done by returning to Brisbane would be worse than the damage done by not returning and by allowing them to remain in Tasmania.  She made numerous other submissions which, with great respect to the mother, have got nothing to do with the application at all, but rather with the trial.  That is something which a Court will have to consider at a later stage and I will be touching on that in a moment.

2. She has to show is that should I refuse the stay her appeal against my order for the return or relocation of herself back to Queensland would be nugatory.  It has fallen from her that they expect the Full Court to be seized of the matter in August.

   RECORDED  :  NOT TRANSCRIBED

3. In August.  She says that should I refuse it her appeal would be nugatory.  Prima facie, I think that's quite right and it has been recognised by Mr Grant who appears on behalf of the children and Mr Molloy(sic) who appears on behalf of the father, by the way, both of whom oppose the making of the order sought by the mother.

4. She has made very sweeping and extensive submissions, as I have said, primarily in relation to the welfare of the children, matters which must be taken into consideration on a full hearing of the case, which should take place here in Queensland since most of the allegations, if not all of the allegations, relating to the welfare of the children are in Queensland. In particular, I note Ms B in her report of March this year at par 11.2.3 says:

   It is concerning that the mother effectively took the law into her own hands by absconding to Tasmania with the children without the permission of the father or the Court- - -

   and I emphasise

   - - -thereby prohibiting the children from spending time with their father as ordered and also preventing an effective investigation by Queensland child welfare authorities of her allegations against the father.

   That, in itself, is of extreme importance in the subsequent hearing of the application for parenting orders instituted by the father.

5. Other matters which I have to consider is the reasonable possibility of success of the appeal against my order for relocation, the bona fides of the appeal and whether it is a delaying tactic.  I personally do not feel that there is anything that has been put before me that would convince me that her bona fides are lacking nor do I think that this is a delaying tactic.

6. I am somewhat concerned that she has stated that she has little or no moneys and it would be expensive for her to return.  One would have thought she would have thought of that before she left, that there would be a grave possibility that she would have to return to Queensland to enable the hearing to take place.  I think that there is no submission by herself that the hearing should take place other than in Queensland.  She wishes to be able to stay in Tasmania until, as I understand, shortly before the hearing when she will return.

7. That brings me to the next point.  This matter cannot be heard in the Court of Appeal, according to the mother, until August.  I think it is absolutely essential that the matter be heard earlier than that and seeing this is in my docket and ….

   RECORDED  :  NOT TRANSCRIBED

   … I am entitled to do with it as I wish and, consequently, I am setting the matter down for hearing for two days on 21 July.

8. Since that is a little period away I am more than satisfied that the application for stay should be dismissed.  I am more than satisfied that she should stay in Tasmania for another three weeks to enable her to organise herself to come back to Brisbane.

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

   ORDER DELIVERED

   RECORDED  :  NOT TRANSCRIBED

9. First of all, the matter will be mentioned before me on 19 May for the purpose of deciding which witnesses will be called.

   RECORDED  :  NOT TRANSCRIBED

10. It will be brought before me for mention on 4 June for the purpose of considering the respective affidavits.

    RECORDED  :  NOT TRANSCRIBED

11. 6 June it will be mentioned before me at 10 o'clock for the purposes of viewing the affidavits which will have been filed by then.

12. Insofar as the Independent Children's Lawyer is concerned I leave it to him to file any affidavits.  If he cannot do it by that time I am sure he will explain to me why.

    RECORDED  :  NOT TRANSCRIBED

13. I give leave to issue the necessary subpoenas.

    RECORDED  :  NOT TRANSCRIBED

14. Those subpoenas be returnable no later than 2 June.

    RECORDED  :  NOT TRANSCRIBED

15. 3 June.  I give leave to all parties to view such documents and save for the Independent Children's Lawyer to not be entitled to copy without my further leave, but the Independent Children's Lawyer is entitled to copy.

    RECORDED  :  NOT TRANSCRIBED

16. There is a further application made by the Independent Children's Lawyer as a result of evidence which is contained in the affidavit of the mother of 22 April and her submissions to day and that relates to the fact that the children are being known by a different surname.  I think that this is not in the interests of the children until the whole matter is determined.

    ORDER DELIVERED

    RECORDED  :  NOT TRANSCRIBED

17. You are back by 18 May.  I have given you a bit of time.

    RECORDED  :  NOT TRANSCRIBED

18. We will adjourn this application to- - -

    RECORDED  :  NOT TRANSCRIBED

19. - - -6 June for the purpose of compliance check.

    RECORDED  :  NOT TRANSCRIBED

20. You are restrained from residing more than 100 kilometres from T, save you may reside in the greater Brisbane area if that is more than 100 kilometres.

    RECORDED  :  NOT TRANSCRIBED

21. Adjourned to the 6th this matter.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate:  

Date:  6 May 2008