Ryland and Ryland

[2017] FamCA 754

FAMILY COURT OF AUSTRALIA

RYLAND & RYLAND [2017] FamCA 754

FAMILY LAW – CHILDREN – Interim orders – Where the father seeks orders for the return of children to Australia and for the children to live with him – Where the mother subsequently filed a notice of discontinuance – Where the mother remains in Germany with the subject children – Where the mother had previously provided security as a surety that she would return the children to Australia – Consideration of best interests of the children – Where an order is made for the children to live with the father, for the subject children to be placed on the Airport Watchlist and for the mother’s security to be transferred to the father

Family Law Act 1975 (Cth) s 60CC

Antoniou & Antoniou (1990) FLC 92-146

APPLICANT: Ms Ryland

RESPONDENT: Mr Ryland

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 3889 of 2016

DATE DELIVERED: 2 June 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 2 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mother in Person by Telephone

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Mr Reynolds

SOLICITOR FOR THE RESPONDENT: Southern Vales Legal

Orders

1. That the operation of paragraphs 2, 3, 4 and 5 of the orders made on 14 November 2016 be suspended.

2. Until further order B born … 2006 and C born … 2004 (“the children”) do live with the father.

3. That until further order MS RYLAND born … 1965 (“the mother”) and MR RYLAND born … 1964 (“the father”) and their servants and agents are hereby restrained by injunction from removing or attempting to remove or causing or permitting removal of the said children from the Commonwealth of Australia.

4. That the Australian Federal Police give effect to this order by placing the names of the children B born … 2006 and C born … 2004 on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the Court orders its removal.

5. That the mother’s interest in the former matrimonial home situated at D Street, Suburb E in the State of South Australia, Certificate of Title reference Volume … Folio … be transferred to the father.

6. Pursuant to section 106A of the Family Law Act a Registrar of this Court is appointed to execute any deed or instrument in the name of Ms Ryland and to do all acts and things necessary to give validity and operation to the deed or instrument but in particular all that is required for the mother’s interest in the Suburb E property to be transferred to the father.

7. That the proceedings for property settlement and parenting orders be listed for a first day hearing to 12 noon on 22 September 2017.

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 Ryland & Ryland 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 ADELAIDE

FILE NUMBER: ADC 3889 of 2016

Ms Ryland

Applicant

And

Mr Ryland

Respondent

EXTEMPORE REASONS FOR JUDGMENT

1. By Initiating Application filed 17 October 2016, Ms Ryland, the applicant mother, commenced proceedings in this Court seeking final orders in respect of the children B born in 2006, C born in 2004, F born in 2002 and G and H, both born in 2000 (“the children”). 

2. The mother specifically sought that the children G and H live with the father and spend time with the mother, whereas in respect of the children, B, C and F, they should live with the mother and spend time with the father as may be agreed.

3. An issue of contention between the parties, and an order sought by the mother, was that the mother be at liberty to travel with the children outside of the Commonwealth of Australia for a period of 30 consecutive days for the purposes of a holiday to Germany.  The mother also sought orders that the assets and financial resources of the parties be divided as the court deems fit. 

4. The Initiating Application was the subject of amendment on 9 November 2016.  The only amendment to the orders sought in the Initiating Application was the addition of a final order that the mother be permitted to relocate the primary place of residence of B and C to J Town, South Australia. 

5. The proceedings were dealt with in the Federal Circuit Court.  There is a level of complexity to the assertion and allegation made by each of the parties against the other.  The father filed a Response to the Initiating Application on 17 November 2016.  He sought an order that the mother transfer to the father all of her interests in the property at D Street, Suburb E (“the Suburb E property”). 

6. He was more expansive than the mother in respect of the basis upon which the property would be divided, and he seeks by way of a final order that the property be split to equality and each party is to retain their respective superannuation entitlements. 

7. The parties are not in agreement in relation to the arrangements in respect of the children.  They were agreed to parental responsibility being shared.  As far as the primary care of H, G and F was concerned, the father sought that those children reside with him and spend time with the mother.

8. He did seek that C and B live with the mother but also sought that they spend time with him for three out of five weekends and for one half of each of the school holiday periods.  There were a number of other orders which relate to the children generally and are also consistent with matters of joint decision in respect of parental responsibility. 

9. Before Judge Cole on 14 November 2016, the mother was represented by counsel and the father by his solicitors.  Orders were made by consent during the period of the adjournment that H, G and F live with the father and spend time with the mother pursuant to their wishes and that B and C live with the mother. 

10. Because it was obviously anticipated that the mother may well be relocating to J Town with the children as provided for in the orders no later than the commencement of term 1 2017, orders were put in place for B and C to spend time with the father pursuant to paragraph 3 of the orders.  Importantly, paragraph 5 provides that:

    Upon the [mother’s] relocation as provided in paragraph 4 herein, the said children spend time with the husband as follows: 

    5.1on 1 weekend (including any public school holiday Monday or pupil free day) per calendar month at times to be agreed between the parties and to accommodate the husband’s work roster; 

    5.2for half of all school holiday periods at times as agreed between the parties and to accommodate the husband’s work roster.         

11. There was also agreement that the father would sign and return to the Adelaide office of the mother’s solicitors both Australian and German passport applications for the children B and C.  It was contemplated that there may well be an application, or possibly even an agreement between the parties, which would enable the mother to travel with the children to Germany for the purposes of a holiday as foreshadowed in the orders sought both in her Initiating Application and also in the Amended Initiating Application. 

12. The proceedings were then listed for a Conciliation Conference on 5 April 2017 clearly with a view to attempting to assist the parties in resolving their property differences.  Orders were made for the parties to file further documents.  Valuations were ordered and the proceedings were adjourned to 13 December 2016 noting half an hour allowed for further directions.  On 13 December 2016, his Honour heard submissions and made the following orders:

    (1)For the purpose of the 2016 school holidays:-

    a.The father spend time with the children [B] born on … 2006 and [C] born on … 2004 from 5:00pm on 15 December 2016 to 4:00pm on 22 December 2016;

    (2)The mother have time with the said children from:

    b.        4:00pm on 22 December 2016 until 4:00pm on 14 January 2017.

13. It was noted in the order that as and by way of security, the mother had provided to the father’s solicitors a signed transfer of land for the Suburb E property.  The mother was at liberty to take the said children to Germany from 4 pm on 22 December 2016 to 14 January 2017.  The father was to spend time with the children from 4 pm on 14 January until 4 pm on 28 January noting that he was to travel with the children to Western Australia.  An adjourned date was set on 4 May 2017 for further directions.  Orders were made for the children to have telephone and Skype time with the non-resident parent on no less than three occasions per week. 

14. The orders contained in paragraphs 1 to 11 of the order made 14 November 2016 were to continue during the period of the adjournment. 

15. By an Application in a Case filed on 20 April 2017 the father sought orders that B and C live with him, that service of the application be dispensed with and until further order the parties are restrained from removing or attempting to remove C and B from the Commonwealth of Australia. In respect of financial issues, the mother’s interest in the Suburb E property be transferred to the father, and that the balance of the proceedings relating to property be listed for hearing.

16. The application was supported by an affidavit of the father filed 12 April 2017.  The affidavit sets out the history of the matter since the order on 13 December 2016 was made.  What appears to have happened is that the mother returned from Germany on 13 January 2017, but then remained in Australia for a few days and returned with the children back to Germany.  There is some contention on the evidence provided by the father based upon communication from the relevant government authorities as to whether or not the children did return to the jurisdiction as purported to have occurred by the mother.

17. To some extent, whilst the mother may place some substantial weight on that circumstance, I consider it to be an irrelevant consideration.  The mother filed a Notice of Discontinuance on 3 May 2017.  It seems from matters raised by the mother that she considered by discontinuing her Initiating Application and the interim proceedings that, in some way, that would bring the proceedings in Australia to an end and enable the mother to bring proceedings in a German Court, presumably in relation to parenting orders, but possibly in relation to property matters.  No documents have been provided by the mother as to the status of any proceedings that she has filed in that court.

18. The matter came before Judge Cole on 4 May 2017.  There was no appearance by or on behalf of the applicant mother, and his Honour transferred the proceedings to the Family Court of Australia, but with the following notation: 

    a.that the mother did not return the children to Australia as ordered by this Court, the mother returning in January and subsequently departing for Germany in January 2017; 

    b.the mother and the children remain in Germany without the consent of the father and an application pursuant to the Hague convention is underway; 

    c.the father seeks to have this matter transferred and listed on the first available date in the Family Court of Australia.

19. Whilst there is some issue between the parties as to whether the children return to Australia, there appears to be no contest that the mother and the children remain in Germany without the consent of the father.  It also appears uncontroversial that the father has taken an application pursuant to the 1980 Hague Convention.

20. The matter then came before Registrar Paxton on 23 May 2017.  There were further notations that the Hague Convention proceedings had commence, that the respondent’s solicitor will provide an address for the mother in Germany to the Court as soon as is possible, and it was further noted that whilst the mother had commenced proceedings in Germany, the father at that stage had not been served.

21. The proceedings come before this court today as ordered. The mother was clearly aware of the proceedings and she appears today by telephone and she took the effort to file an Affidavit sworn by her on 29 May 2017 and filed on 1 June 2017.  She is emphatic in her denial that the children were brought back to the jurisdiction for the few days that she says occurred, and even to the extent where she says that there may well be video footage at the Adelaide Airport of the children returning to the jurisdiction.

22. Again, there is a significant emphasis by the mother on what she says is the importance of the children having flown back to Australia for a few days, but having then returned to Germany.  It seems that the mother considers that it was imperative that children remain in the jurisdiction in order for the Court’s consideration of their best interests to be determined. It appears that she believes that providing she returned them even for a snapshot in time, they were thereafter not prevented from returning to Germany.

23. It was a wrong apprehension.  The orders made by his Honour on 13 December 2016 were intended to provide that the children were able to spend time with the father in January, and, in any event, certainly, up to 4 May 2017, but arguably continuing to the present date. The mother may well be in breach of the orders of 14 November 2016. 

24. A further difficulty arises in terms of matters relating to parental responsibility and the ability of each of these parties to play a fulsome and involved role in the major decisions that affect the future parenting of C and B. 

25. Even before the application was discontinued, the primary order sought by the mother was that the parties have equal shared parental responsibility in respect of C and B.  The mother’s actions have denied the Court the opportunity to consider that outcome.  It is clear from the mother’s affidavit that she does not have any intention at this stage of returning the children to the jurisdiction.  It is also clear that she does not consider, notwithstanding that she sought orders that she be permitted to travel to Germany for a holiday with the children, that her intention is that the children are with her for a holiday.  She indicates to the Court that she has started proceedings in a German Court. 

26. The mother appears today not because she has taken any steps to be heard, but, rather as a matter of courtesy to her and out of the Court’s concern as to the status and circumstances of the two children. Every opportunity should be given to the mother to understand the nature of the proceedings, to have the assistance of the Court in terms of any erroneous understanding that she may have as to the impact and import of her actions on the children, and as to whether or not the Court proceedings have, in fact, come to an end.

27. It was clearly obvious from the manner in which she has conducted herself and filed the Notice of Discontinuance, she herself no longer seeks to be a participant in the proceedings.  Her actions do nothing to bring to an end the orders sought by the father in his Response filed on 17 November 2016.  It is a curious circumstance, where the mother seeks not only to retain the children C and B without any recognition of their relationship with the father, but, equally, she seeks by her actions to disavow any involvement in respect of H, G and F.  It may be because of their age, it may be because of other circumstances, but that was not the position initially adopted by the mother in terms of the orders she sought in the Initiating Application.

28. The order of 13 December 2016 noted that the parties had agreed a method of security conditional upon the mother being at liberty to take the children to Germany.  She was to execute a signed transfer of her interest in the Suburb E property to the father.  The mother can be under no misunderstanding that in her not returning the children to the jurisdiction she was at significant risk of an application being made to give effect to that security.  There are, apparently, mechanical difficulties in the signatory being able to complete and execute the transfer.  I am being asked by counsel to make orders that would see the mother’s interest transferred to the father.

29. It is not being sought as a matter of property settlement.  It is in order to provide the ability to the father to fund what may be expensive and complex litigation in Germany.  It may also be necessary for the father to travel to Germany in order to see, spend time with and potentially return to Australia with the children currently in the mother’s care.  It seems difficult to understand what opposition there could be to the Court making whatever orders may be necessary to give effect to the notation in the order of 13 December 2016, thereby enabling the father to take all steps reasonably necessary to secure and pursue his remedy in relation to the retention of the children by the mother.

30. The second aspect, though, are matters relating to settlement of property.  It is not a matter where I propose simply to fall in with the orders that the father seeks.  I could not do so.  The father indicates the broad basis upon which he considers there should be a settlement of property, namely an equal division.  There is little detail and particularity in respect of the orders he seeks, and what I propose to do in that regard is to list the matter for a first day hearing, and on the basis that it is likely now to be an undefended hearing then I should be able to list the matter at a short period of time, given that it is likely to only take a couple of hours, as opposed to some several days.  I will list to a date and a time convenient to the father’s counsel.

31. I am also then asked to make an order that the children C and B live with the father.  The children are out of the jurisdiction and in a general sense caution must be exercised in respect to a parenting order made in relation to children, where they have been removed from Australia without consent. 

32. In the decision of Antoniou & Antoniou (1990) FLC 92-146, Nicholson CJ was required to consider an application by the father for custody of the two year old child of the marriage, for interim custody and for the return of the child to Australia from Cyprus where the child was with the mother. The mother had removed the child from Australia without the knowledge or consent of the father. No previous orders as to the custody or guardianship of the child had been made. His Honour considered the orders sought and granted the application.

33. His Honour’s position is that his Honour found it had been customary in the past for the Family Court, as a matter of course, to make an order for interim custody in favour of an applicant, in circumstances such as these, namely where a child had been taken from the jurisdiction without consent.  Such an order has always been made on the clear understanding that if and when the child is returned to Australia, the Family Court will be prepared immediately to consider the issue of interim custody afresh, with both parties before it, before determining in due course the final issue of custody. 

34. It is desirable that if an order is to be made, that it is to be couched in terms of an interim custody order, so that there is no misunderstanding that upon the children returning to the jurisdiction, the issue of parenting will be considered.

35. In the circumstances of this case there are factors which exacerbate the real concerns for the children. The first and most obvious is that there were proceedings on foot before the Court, with each of the parties represented and against the background of orders having been made which provided for the children to live and spend time with each of the parties.  There can be no misunderstanding that the orders of both November and December 2016 were orders made by the parties that in all the circumstances the interests of the children were best served by the arrangements as set out in the orders.  It was not intended, nor anticipated, that the ability of the mother to take the children to Germany for a holiday was in some way an abrogation of the parenting rights of the father. 

1. It could not be said that even if the mother did return the children for a few days to the jurisdiction, that in some way her subsequent departure was with his consent.  As I have indicated, it may be that the mother is in error if she thinks that at the time she returned to Germany she was therefore free of any obligation in respect of any extant or outstanding order.  The contrary is clearly true.  The December order provided for the children to spend time with the father for the balance of January 2017.  The November order provided for the children to spend time with the father either before she relocated to J Town or after she relocated to J Town. 

2. In respect of any parenting order, I am obliged to bring to account the provisions of the Family Law Act1975 (Cth), but in particular the best interest test, pursuant to s 60CC of the Act. That section provides that the court is required to consider both the primary considerations and also the additional considerations. In relation to the primary considerations, the issue is in sharp focus. It is difficult to understand and see what provision is being made by the mother to enable these children to retain and have the benefit of a meaningful relationship with their father.

3. It may be alleged by the mother that there are some perceived risks to the children by the father, but that is a button pressed faintly.  In the circumstances of these proceedings, the remedy could not possibly be the retention of the children in an overseas jurisdiction, contrary to the orders and to the mother’s own application. 

4. The mother is not a party to the proceedings.  She has filed an affidavit and the court has given her the courtesy of contacting her, as opposed to she seeking to be heard. The affidavit is directed to the mother’s misguided consideration of the effect of her actions of returning the children to the jurisdiction for a few days before then removing them and returning to Germany without the father’s consent. 

5. In the circumstances of this case, it could not be said that the mother’s conduct is in the best interests of these children. Whilst it may not provide any assistance in terms of restoring the children to the care of the father, the Court is inclined to make an order that until further order the children, B and C will live with the father.  The Court intends to make orders that if and when the children are returned to the jurisdiction that they are not then removed without further order. 

6. The children will be placed on a Watchlist.  I also propose to order that the mother’s interest in the Suburb E property is transferred to the father, with consequential orders that will enable him to access funds to be able to pursue remedy in Germany given that the mother has commenced proceedings.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 2 June 2017.

Associate: 

Date:  25 September 2017