Sholly and Handke

[2018] FamCA 966

FAMILY COURT OF AUSTRALIA

SHOLLY & HANDKE [2018] FamCA 966

FAMILY LAW – CHILDREN – Application by the paternal grandmother for location and recovery orders in respect to the child – Where the father is deceased – Where the paternal grandmother is a guardian of the child – Where the child had, until recently, lived with the paternal grandmother for one year – Where consent orders were made in proceedings under the Hague Convention for the child to live with the mother in Australia – Where the child was returned to the mother – Where the mother has since been difficult to contact – Where the paternal grandmother has concerns for the child’s welfare – Where the Court is not satisfied that the orders sought by the paternal grandmother should be made without notice to the mother – Application adjourned to provide for service.

Family Law Rules 2004, r. 5.12

APPLICANT: Ms Sholly

RESPONDENT: Ms Handke

FILE NUMBER: SYC 7073 of 2018

DATE DELIVERED: 12 November 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McClelland J

HEARING DATE: 12 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-represented

SOLICITOR FOR THE RESPONDENT: No appearance

Orders

THE COURT ORDERS THAT:

1. The matter be adjourned to the Judicial Duty List on 12 December 2018 at 9:30am.

2. The Applicant grandmother serve the Respondent mother with all relevant papers, including these orders, at B Street, C Town WA … and electronically at ...

THE COURT NOTES THAT:

(A)A decision in respect to the mother’s migration status in Australia will be made on 23 November 2018.

(B)It recommends that the parties engage the services of a family dispute resolution practitioner and/or International Social Services Australia to discuss appropriate parenting orders for the child.

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 Sholly & Handke 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 SYDNEY

FILE NUMBER: SYC 7073 of 2018

Ms Sholly

Applicant

And

Ms Handke

Respondent

EX TEMPORE JUDGMENT

1. In this matter, the applicant, Ms Sholly, has applied for orders in respect of the child X, born in 2008 (“the child”).  Ms Sholly is the paternal grandmother of the child.  The situation in respect to the child is reasonably complex, and in parts tragic, insofar as the child’s father was unfortunately killed in a motor vehicle accident. 

2. The background to these proceedings is set out in Ms Sholly’s Affidavit filed on 7 November 2018.  Relevantly, for approximately 12 months prior to November 2018, the child had lived with Ms Sholly in New Zealand.  During the period that the child resided with Ms Sholly, Ms Sholly was made an additional guardian of the child under the relevant New Zealand legislation. 

3. In recent months, the Central Authority in New Zealand, on behalf of the mother, applied for orders for the return of the child to Australia under the provisions of the Hague Convention on the Civil Aspects of International Child Abduction.  Those orders were made by consent in New Zealand on 27 October 2018, and provided for the child to return to Australia on 5 November 2018.  The child was, accordingly, returned to Australia. 

4. Ms Sholly has since become concerned for the child’s welfare, after the mother became difficult to contact.  Ms Sholly’s Affidavit sets out the basis for her concerns regarding the child’s welfare.  In those circumstances, Ms Sholly has filed an Initiating Application, seeking location and recovery orders in respect to the child.

5. Since that application was made, Ms Sholly was able to contact the mother on 10 November 2018. 

6. Rule 5.12 of the Family Law Rules 2004 permits the Court to consider an application without notice, that is, to deal with a matter on an ex parte basis. However, clause (a) of that rule sets out the following:

   An applicant seeking that an interim order or procedural order be made without notice to the respondent must:

   (a)  satisfy the court about why:

   (i)  shortening the time for service of the application and the fixing of an early date for hearing after service would not be more appropriate; and

   (ii)  an order should be made without notice to the other party; …

7. I accept that it can reasonably be inferred from the consent orders made in the Hague proceedings, to which I have referred, that it was intended that the child would be returned to Australia to live with the mother.  In those circumstances, it would be unreasonable to make the orders sought by Ms Sholly, without the mother having had the opportunity to file responsive material.

8. Further, in the circumstances of this case, where the child’s interests may be profoundly impacted upon by any orders made, it may be appropriate for the Court to consider the appointment of an Independent Children’s Lawyer and for the child’s views to be considered by a Family Consultant. 

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore judgment of the Honourable Justice McClelland delivered on 12 November 2018.

Associate: 

Date:              22 November 2018