ZARINS & MYLNE

[2012] FamCA 1003

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE [2012] FamCA 1003

FAMILY LAW – PRACTICE AND PROCEDURE – Non-appearance of a party – matter unable to proceed – interim orders made

Family Law Act 1975 (Cth)

APPLICANT: Ms Zarins

RESPONDENT: Mr Mylne

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4802 of 2008

DATE DELIVERED: 30 October 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Macmillan J

HEARING DATE: 29 & 30 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Deegan

SOLICITOR FOR THE APPLICANT: Brian K Deegan

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms West

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission Of South Australia

UNTIL FURTHER ORDER IT IS ORDERED THAT

1. Paragraphs 3, 5 and 7 of the orders made 14 May 2010 be and are hereby suspended.

2. The child B born … April 2007 live with the respondent father.

3. The matter be referred to the Docketed Registrar for a Directions Hearing on a date to be advised to the parties for the listing of a final hearing of the matter.

4. The applicant mother have liberty to apply on short notice to Justice Macmillan to seek to vary or set aside these orders, such application to be supported by an affidavit and medical evidence with respect to the mother’s mental health and her capacity to care for the child B.

5. The applicant mother Ms Zarins and the respondent father Mr Mylne, by themselves, their servants or agents, be and are hereby restrained from removing the child B born … April 2007 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until further order of the Court.

6. The Court forward a copy of this order to the Australian Federal Police.

7. The applicant mother’s Application in a Case filed 24 October 2012 be and is hereby dismissed.

8. Leave be granted to the respondent father to withdraw the Application for Contravention filed 7 May 2012.

9. The mother’s costs and the Independent Children’s Lawyers’ costs with respect of the hearing on 29 October 2012 and 30 October 2012 be reserved.

IT IS CERTIFIED

10.Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel including solicitor acting as counsel.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne 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 4802 of 2008

Ms Zarins

Applicant

And

Mr Mylne

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for final hearing before me commencing on Monday, 29 October 2012.  I have made some preliminary rulings in relation to procedural matters.  The mother was sworn in shortly prior to the luncheon adjournment on Monday.  However, prior to her commencing to give her evidence she sought the protection of a certificate pursuant to section 128 of the Evidence Act.  When the matter resumed after the luncheon adjournment, I was advised by counsel that there was some prospect that the matter might settle and I was later advised that the matter had settled in principle and asked to stand the matter over until this morning to allow a minute of consent orders to be prepared and signed by the parties.

2. In all of the circumstances I do not consider myself to be part heard in this matter.  This morning I was informed that the child B, (“the child”), who is presently in the father’s care, had spent some time with the mother last night as it was her brother J’s birthday, but that some time after the child’s return to the father last night the mother was taken by ambulance to hospital. Inquiries have been made by staff at Mr Deegan’s office and I was initially informed that the mother had not yet been admitted, but was presently being psychiatrically assessed, and I have now been informed by Mr Deegan that it has been recommended that she be admitted to the hospital for a period of possibly two to three days.

3. I am also informed that he has provided a medical certificate to counsel for both the father and the Independent Children's Lawyer to the effect that the mother will not be fit for work on either 30 or 31 October.  It is clear, and counsel appearing on behalf of both the father and the Independent Children's Lawyer agree, that the matter cannot proceed.  As a result of what has occurred, however, the father now seeks the suspension of paragraphs 3, 5 and 7 of the orders of 14 May 2010 and an order that the child live with him until further order.

4. I have had the benefit of reading the various affidavits upon which the parties rely for the purposes of this hearing and it is clear that this matter has a long and complicated history.  Although I do not have the benefit of evidence as to the mother’s current psychiatric condition, the very fact that she is in hospital and not at Court today and is undergoing or has undergone a psychiatric assessment makes it clear that she is currently not in a position to care for the child.

5. Pursuant to the orders, the child is due to be returned to her mother’s care this Friday evening.  I cannot be satisfied that the mother will be in a position to resume care of the child this Friday evening or, indeed, when that is likely to be possible.  Accordingly, I propose to accede to the father’s application to suspend the orders of 14 May 2010 and I will make an order that until further order the child live with the father.  I will reserve liberty to apply to the mother to apply on short notice to reinstate the orders of 14 May 2010 or otherwise seek orders that she be permitted to spend time with the child.

6. The mother will need to establish and produce medical evidence which demonstrates that she has the capacity to care for the child.  Counsel for the Independent Children's Lawyer has also sought a Watch List order in the usual terms which would restrain both parties from removing the child from the Commonwealth of Australia.  Whilst there is limited evidence as to whether that is a risk, I propose to err on the side of caution and make those orders in the usual form.  That is a matter that can also be addressed at a later date and determination made on the basis of evidence from all parties as to whether that order needs to be continued.

7. I will otherwise refer the matter to the Docket Registrar for relisting of the final hearing as soon as it is practicable to do so either before me or Dawe J subject to availability.  I do note, however, that the matter is ready to proceed, subject obviously to the mother’s health issues and evidence in relation to that and it does require a final determination as soon as possible.  

8. Any interim application by the mother for the reinstatement of her time with the child can be listed for Mention before me by electronic means.  I should say that it seems practical, given that I’ve dealt with this part of the matter, that that can be dealt with by me and it would be of limited compass and could easily be contained.  One would expect that matter to be conducted on the basis of submissions and could be managed by a video link.

9. Finally, I have been asked by both counsel for the father and the Independent Children's Lawyer to reserve their costs of both yesterday and today and I propose to make that order. 

10. I also propose to make formal orders dismissing the mother’s application in a case filed on 24 October 2012 which I dealt with as a preliminary matter at the commencement of this hearing and I will grant leave to the respondent father to withdraw the Application for Contravention filed 7 May 2012. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 30 October 2012.

Associate: 

Date:  30 November 2012