RYLAND & RYLAND

[2018] FamCA 663

FAMILY COURT OF AUSTRALIA

RYLAND & RYLAND [2018] FamCA 663

FAMILY LAW – PRACTICE AND PROCEDURE – Hearing – Application to vacate final hearing – Application not able to be heard – Application adjourned to first day of trial.

APPLICANT: Ms Ryland

RESPONDENT: Mr Ryland

FILE NUMBER: ADC 3889 of 2016

DATE DELIVERED: 29 August 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 29 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: O’Loughlins Lawyers

COUNSEL FOR THE RESPONDENT: Mr Reynolds

SOLICITOR FOR THE RESPONDENT: Southern Vales Legal

UPON NOTING that the matter remains listed for final hearing on 24 September 2018

IT IS ORDERED:

1. That the time allowed for hearing is now reduced to one (1) day.

2. Further consideration of the Application in a Case filed 20 August 2018 is adjourned to the first day of trial.

3. That the Court will obtain a copy of the reasons given this day and a copy of the order and those reasons will be sent to the address given by the mother in her Notice of Address filed 28 August 2018.

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

EX TEMPORE REASONS FOR JUDGMENT

1. The proceedings before the Court relate to the ongoing parenting arrangements in respect of two children, C born in 2004 (“C”), and B born in 2006 (“B”).  The status of the children is currently unknown, but they are currently resident in the Country P.  This matter was transferred to this Court on 4 May 2017 and on 2 June 2017 interim orders were made that C and B live with the father.  The proceedings have been complicated by the residence of the children in Country P and there have been proceedings pursuant to the Hague Convention which confirm that the mother’s removal of the children from the Commonwealth of Australia to Country P amounted to a wrongful retention and removal.

2. Were that to be the extent of the litigation in Country P, the proceedings would be straightforward, but they are not.  Apparently one or both of the children suffered and sustained a significant psychiatric episode which required them to be taken into care in circumstances where it was considered that the children may be at risk in the care of the mother.

3. The mother has not provided information to the Court which would assist in better understanding the status of the children.  To some extent the same criticism can be levelled at the father.  The difficulty is not simply because of the circumstances of C and B, but that those children have siblings from whom they are separated and who remain and live with the father in Australia.  The uncertainty of the circumstances of the children is a matter of significant concern and following orders made on 11 July 2018, which resolved final orders in respect of property settlement, the matter was listed for three day trial on 24 September 2018.  Trial direction orders were made and the parties, because of the relatively short period of time, were required to file their trial affidavit material by 14 September 2018.

4. The parties understand that a significant focus of the Court’s attention is to ascertain the whereabouts and status of the children in Country P.  Of necessity, the complexity of Hague Convention hearings, proceedings that may have features of a removal of the children from the care of the mother because of a determination that they are at risk and/or in need of care, and then the status of a Country P order in respect of the ongoing proceedings in this Court are matters for evidence.

5. The mother has made a previous application to attend the trial by video link.  She is reluctant to return to the Commonwealth of Australia.  That application, for the reasons that were given at the time, was refused.  On 20 August 2018, an application was filed by the mother’s solicitors, O’Loughlins Lawyers, which sought that the trial listed for hearing on 24 September 2018 be vacated.  The application was supported by two affidavits of the mother’s solicitor, namely, Ms U.  The focus of the affidavit material was to annex, appropriately so, a report from the mother’s medical specialists in Country P, which go to the ability of the mother to travel from Country P to Australia arising out of certain venous problems. 

6. The affidavit material, however, is unsatisfactory, in that whilst taken at its highest it might well establish that the mother is not able to travel from Country P to Australia at this time, what is missing is the effort and steps that the mother intends to take in order to resolve her medical circumstances and to provide at least some best estimate as to when the circumstances will be such that she will be able to travel.  In any event, there is nothing in the medical report which suggests that the mother is not able to instruct her solicitors and to prepare trial affidavit material.

7. Indeed, if the application of her former Counsel had been successful, the process would have involved exactly that.  There is also no explanation in the report as to when it was that the mother understood that she had a medical condition which may have prevented her from travelling and whether those matters should have been expressed to the Court significantly earlier than the application of 20 August 2018.

8. If the application was able to be heard, I have indicated that, whilst I may have been receptive to not making an order that would require the mother to attend personally, there is no circumstance would that relieve the parties of the obligation to file their trial affidavit material. It may be that the Court would look at the option of the mother being permitted to give her evidence remotely from Country P.  The application, however, is not able to be heard.  At 8:09 pm on 28 August 2018 it appears that the mother, of her own motion and without the assistance of her solicitors, filed a notice of discontinuance in relation to her initiating application filed on 17 October 2017 and a a notice of address for service which provides her notice of address as a post office box in Suburb V, South Australia.

9. The notice of discontinuance contains the following statement:-

   This is my matter and I have not been served with any application in a case filed 20 April 2017 by the respondent which I see on the portal.  So I have nothing to respond to.  But I have seen his affidavit, which is full of lies, especially regarding the non-return to Australia of the two girls, [C] and [B].  I have the boarding passes when we left [Europe] to Dubai and from Dubai to Adelaide for all three of us on 12 and 13 January 2017.  So everything he says in his affidavit is a lie and misinformation and deception about the alleged non-return to Australia and the compliance with the Judge’s order.

10. And then in bold transcript:

    We all three returned to Australia on 13 January 2017.  I have evidence.  There was no further Court order in place that required us to remain in Australia, so on 18 January 2017 we all left Australia to come back to [Country P] again.  No airport blocks.  No effective Court order stopping us from lawfully leaving Australia, which we did.  I never filed or authorised anyone else to file any application in the more recent times, as set out in the portal.

11. The notice of discontinuance creates a significant difficulty for the mother’s solicitors in circumstances where what is intended to be conveyed by the notation would suggest that Ms U did not have instructions to file the application to vacate the trial.

12. The Court was not assisted by the absence of Ms U, but I understand that she is on leave.  Counsel is not able to assist as to whether Ms U agrees or disagrees with her client’s proposition that the application to vacate the trial was without instructions.  It seems to me that matters have potentially progressed to the point where there may well be an issue in respect of Ms U’s ability to continue to act in circumstances where her client suggests of her own motion that any applications that have been filed have not been filed with her instruction.

13. There is not at this stage any suggestion that the mother’s solicitors have acted with any impropriety.  Indeed, the matters raised by the mother in her notice of discontinuance are not new and have been made on a number of former occasions and, indeed, have been the subject of appeal to the Full Court which was wholly unsuccessful and the circumstances by which the mother considered the proceedings should be discontinued because she came to Australia with the children for a couple of days before she left, was wholly disregarded by the Full Court.

14. In any event, irrespective of the mother’s position in relation to what documents may or may not have been filed by her is an outstanding response filed by the father seeking parenting orders and the orders that I have made list this matter for trial and require the parties to file their documents by 14 September 2018.

15. I am not able to hear the application in a case filed 20 August of 2018.  The mother’s Counsel does not press it and there may well be an issue as to whether it should proceed in circumstances where the mother indicates that she has not given instructions for it to be filed.  It is not a matter that I will disregard, but it is simply an application that I am not able to resolve and it seems the most efficacious way forward is to adjourn it to the first day of trial.

16. If, indeed, the mother’s notice of discontinuance is intended to discontinue her initiating application, then the matter will proceed as an undefended hearing on behalf of the father in terms of the orders that he seeks and the Court will make orders not simply that he seeks, because it is now not opposed, but the Court will make orders that are in the best interests of these children and which, as I’ve indicated today to the father’s Counsel, places a high onus on the father to present evidence to the Court that will enable the Court to better understand exactly the circumstances in which these children find themselves.

17. For those reasons, the only order that I propose to make is to amend the time required for the final hearing from three days to one day.  Other than that, I do not propose to make any orders that relieve the parties of the obligation to comply with trial direction orders. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 29 August 2018.

Associate: 

Date:  29 August 2018