Arlotti & Arlotti
[2024] FedCFamC1F 360
•16 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Arlotti & Arlotti [2024] FedCFamC1F 360
File number: SYC 3680 of 2024 Judgment of: SCHONELL J Date of judgment: 16 May 2024 Catchwords: FAMILY LAW – PARENTING – Where the Initiating Application of the applicant was listed on an urgent ex parte basis– Where the applicant seeks a broad range of interlocutory orders as to parenting and as to property – Where the applicant contends that the respondent has made threats directed to her and is in gaol on remand facing a number of criminal charges – Where the Court is satisfied that circumstances exist such that orders should be made on an ex parte basis in relation to the child, for the personal protection of the child and the applicant, and as to exclusive use of the real property, however not as to a number of other interlocutory orders sought – Where the Court is not satisfied that the balance of convenience favours the making of such orders – Orders made on an ex parte basis – Orders made for the applicant to direct service upon the respondent and for the matter to come back before the Court. Legislation: Family Law Act 1975 (Cth) s 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.34 and 5.11
Cases cited: Ansah v Ansah [1977] 2 All ER 638
Stowe and Stowe (1981) FLC 91-027; [1980] FamCA 92
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 16 May 2024 Place: Sydney Solicitor for the Applicant: Lander & Rogers The Respondent: Did not appear ORDERS
SYC 3680 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ARLOTTI
Applicant
AND: MR ARLOTTI
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
16 MAY 2024
THE COURT ORDERS THAT:
1.Orders are made in accordance with paragraphs 1, 2, 3, 4, 5, 6, 13, 14, 15 and 20 of the Interlocutory Orders sought in the Initiating Application dated 15 May 2024:
PROCEDURAL
1.That all times prescribed under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 be abridged to enable the urgent hearing of this Interim Application on a date suitable to the Court before 17 May 2024.
2. That pursuant to Rule 5.08(2) and Rule 5.08(3) of the Federal Circuit and Family Court of Australia (division 2) (Family Law) Rules 2021, the Applicant have leave to rely on her Affidavit sworn in support of this Initiating Application and filed contemporaneously herewith notwithstanding that same is in excess of 10 pages and more than 5 annexures.
PARENTING
3.The Applicant be solely permitted to make all long-term decisions for the child [X] born […] 2021 with respect to all health and medical, educational and religious matters, without first having to consult the Respondent.
4. The child live with the Applicant.
5. The child spend no time with the Respondent.
6. The Respondent shall not communicate with the child by any means.
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Restraints
13.The Respondent be and is hereby restrained by injunction from endeavouring to ascertain the Applicant and child's residential address or permitting, causing or authorising an agent to do so on his behalf.
14That upon the expiration of the current Apprehended Domestic Violence Order, the Respondent be and is hereby restrained by injunction directly or indirectly, whereby [whether] through a third party or otherwise, from:
14.1 Contacting or communication with the Applicant or the child;
14.2Approaching or remaining within twenty-five (25) meters of the Applicant and/or the child;
14.3Going to or remaining within two hundred (200) meters of any place whether [where] the Applicant and/or the child lives, works or attends school/childcare/kindergarten; and
14.4Publishing on the internet, by email or other electronic communication any material about the Applicant and/or the child.
Other
15.The Applicant be at liberty to provide a copy of these Orders to the child's daycare centre, kindergarten or school, the child's medical treaters and the Applicant's treating therapists.
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PROPERTY
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Sale of the property
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20.Pending the sale, the Applicant have sole use and occupation of the [Town B] property against the Respondent and for the purposes of this Order, the Respondent, or any of his agents, not enter the [Town B] property without the prior written consent of the Applicant first being obtained, or further Order of the Court.
AND THE COURT DIRECTS THAT:
2.The applicant to serve the Application, affidavit and accompanying documents together with a copy of these Orders on the respondent by 4.00 pm on Monday, 20 May 2024.
3.I list this matter for mention before me at 9.30 am on Monday, 27 May 2024 by way of Teams.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Arlotti & Arlotti has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:
The Court has listed on an urgent ex parte basis an Initiating Application supported by an affidavit of Ms Arlotti (“the applicant”) and a Financial Statement. In the Initiating Application the applicant seeks a broad range of interlocutory orders including an order for sole parental responsibility in relation to the parties’ child, X, who is aged three, and that X live with her and spend no time with Mr Arlotti (“the respondent”). In addition, she seeks orders to change the child’s name; orders in relation to passports; various restraints upon the respondent; financial orders relating to a property in Town B; and orders by way of disclosure.
The respondent does not have notice of the listing today. The applicant’s affidavit deposes to the following:
6.[The respondent] and I were in a 7-year relationship. [The respondent] was arrested [in early] 2024 and charged with three counts of [a sexual offence] and one count of [another sexual offence]. [The respondent] has also pled guilty to charges with respect to [illicit] material. I believe he is awaiting his sentencing hearing with respect to those charges. He is otherwise facing other charges that relate to [a number of other offences].
7.I am aware that [the respondent] made a bail application earlier this month, which was initially refused. He has appealed that decision and the hearing is listed in the Supreme Court of NSW [in mid] 2024.
8.Whilst the relationship had elements of a somewhat consensual [power dynamic], the boundaries soon stretched to become a sinister, controlling […] relationship involving [a number of] other women […]. During the relationship, I was alienated from my friends and family. I experienced and witnessed extreme levels of violence, including forced sexual intercourse with [the respondent] and other women, being [assaulted] repeatedly […] until I was unconscious. I depose to these events further below.
Urgent parenting orders
9.I am seeking parenting orders, on both a final and interim basis, with respect to the child of the relationship, [X] born […] 2021 ([X]). Until now, I have been terrified to initiate proceedings in the Federal Circuit and Family Court of Australia as I fear what [the respondents’] response will be after reading my Court documents.
10.[The respondent] has previously threatened to post sexually explicit material of me online when I acted protectively to withhold our daughter from meeting him. On 8 January 2023, [the respondent] sent me various text messages, including the following:
(a)"I've handed 2 USBs to 2 different people not living with me to protect myself from you. Just in case you decide to do something stupid and have me locked up to prevent me taking you to family court"; and
(b)"Answer my call or it's all going online tonight. I have nothing left to lose. You've taken everything from me".
Annexed hereto and labelled "[MA]-1" is a true and correct copy of the text messages I received from [the respondent] on 8 January 2023.
11.[The respondent] is currently being held in remand and does not have access to his mobile phone. Because of this, I finally feel safe enough to issue court proceedings in this Honourable Court. However, I do not know if or when [the respondent] may be granted bail, including […] when his bail appeal is listed for hearing. I therefore seek urgent interim orders for my and my daughter's protection. I am petrified of what [the respondent] could do to me, or [X], if [the respondent] is granted bail, having read my material, and urgent orders have not been made to protect us.
12.There is a provisional Apprehended Domestic Violence Order (AVO) currently in place for my protection, which I depose to further below. There is no AVO in place for the protection of [X].
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20.[X] is two [years] old and lives with me. She has never met [the respondent] given she was born after his arrest […] and I have not allowed [the respondent] to spend any time with her when he was released on bail. [X] is a thriving and joyous child. She is doing very well and meeting all her developmental milestones. [X] and I have a beautiful, loving relationship where I ensure all of her physical and emotional needs are met.
21.[The respondent] and I commenced our relationship in […] 2015. We separated on a final basis in or around May 2022, giving rise to a 7 year relationship.
The applicant goes on in her affidavit to recount a history of her relationship with the respondent. She then says:
31.[In early] 2021, [the respondent] was arrested and remained in remand until [late] 2022. The other […] women and I remained living in the [Town B] property. This was the first time we had spent an extended period of time away from [the respondent]. It was only once we had some distance from his control that I began to understand how much we had all been manipulated over the years. It took weeks and months of talking to each other about our experiences for me to finally realise the extent of the abuse I had lived through.
32. [In] 2021, I gave birth to [X].
33.At this time, I was assisting [the respondent] with his criminal matters and [in late] 2021, [the respondents’] criminal lawyers sent to my email a Statement of Facts and Charge Sheets for offences that [the respondent] had recently been charged with […].
34.The Statement of Facts included a transcript of a text message conversation between [the respondent] and one of the other women where he graphically describes sexual acts he fantasises about doing with [infants and young] children […]. […] These messages are so horrific that I do not wish to go into further detail in my affidavit herein, however, I have copies of the transcript, and the Statement of Facts dated […] 2021, should this Honourable Court wish to be provided with it. I am aware that [the respondent] has pleaded guilty to the offences which relate to the text message exchange.
35.In or around May 2022, after finally realising the extent of the abuse I had experienced, I told [the respondent] that I wanted to separate. Whilst I was terrified of leaving him, I knew I had to prioritise [X’s] safety and make sure that [the respondent] was not to have contact with her.
The applicant thereafter gives evidence to the effect that she was in a dominant/submissive relationship with the respondent. She says that the respondent was physically and sexually violent towards her and towards other women and forced the applicant to work as a sex worker. The applicant says:
44.In […] 2021, following [an] investigation […], [the respondent] was charged with [multiple offences] as well as other charges […]. By approximately [early] 2022, [the respondent] faced a total of [over 60] charges.
45.Ultimately, many of the charges have now been withdrawn. However, [the respondent] is still facing various charges […]. These charges relate to alleged incidents that have occurred this year while he has been out on bail. He is also charged with [other] offences[…].
46.[In early] 2023, a provisional AVO was granted upon application made by the NSW Police on my behalf. The provisional AVO is in place for 2 years and will expire [in early] 2025. Annexed hereto and labelled "[MA]-3" is a true and correct copy of the provisional AVO dated [early] 2023.
47.The matter was listed for a further hearing [in early] 2023. I have made enquires with the police officer with carriage of my matter who has advised me that on that date, the matter was listed for a final hearing in the […] District Court. I have not been advised as to what date the matter has been listed.
The applicant annexes to her affidavit various social media posts she says are made by the respondent. The posts attributed to the respondent are vile, derogatory, and degrading of women. As I said earlier, the respondent has no notice of the Initiating Application or the affidavit. I do not know what he may say in relation to the allegations; it may be that he denies entirely the allegations and authorship of the posts.
The pressing concern as far as the applicant is concerned is that the matter is next before a court in mid-2024, where a court may consider varying the respondent’s bail conditions.
DISPENSING WITH SERVICE AND PROCEEDING EX PARTE
The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provide that the Court may proceed without service of an application. In summary, the Rules provide as follows:
(1)Rule 2.34(1) provides that a party who is unable to serve a document may apply, without notice, for an order to dispense with service of the document, with or without conditions.
(2)Rule 2.34(2) provides that when considering an application under r 2.34(1), the Court may have regard to a number of factors including the nature of the proceeding.
(3)Rule 2.34(3) provides that if the Court orders that service of a document is dispensed with, then the document is taken to have been served.
The applicant bears the onus of establishing to the satisfaction of the Court that the orders that she seeks should be made without notice to the respondent.
The Rules also make provision for what someone in the position of the applicant must establish to ground the making of an ex parte order. In that respect, r 5.11 provides:
5.11 Applications without notice
An applicant seeking that an interlocutory 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; and
(b)in an affidavit or orally, with the court’s permission, make full and frank disclosure of all the facts relevant to the application, including the following:
(i)whether there is a history or allegation of child abuse or family violence between the parties;
(ii)whether there have been any previous proceedings between the parties and, if so, the nature of the proceedings;
(iii)the particulars of any orders currently in force between the parties;
(iv)whether there has been a breach of a previous order by either party to the proceeding;
(v)whether the respondent or the respondent’s lawyer has been told of the intention to make the application;
(vi)whether there is likely to be any hardship, danger or prejudice to the respondent, a child or a third party if the order is made;
(vii)the capacity of the applicant to give an undertaking as to damages;
(viii)the nature of the damage or harm that may result if the order is not made;
(ix) why the order must be urgently made;
(x)the last known address or address for service of the other party.
In Stowe and Stowe (1981) FLC 91-027 (“Stowe”), the Full Court of the then Family Court of Australia made the following observations at 76,258–76,259:
Ex parte orders are dealt with in reg. 42. That regulation makes it clear that ex parte orders are to operate only until a specified time or (as in the present case) until further order of the Court (para. (5)). The Court is empowered to give directions as to the service of the order and the hearing of an application for a further order (para. (6)). Regulation 42 was considered by the Full Court in the case of Sieling (1979) FLC 90-627, where reference was made, with approval, to Ansah (1977) 2 W.L.R. 760. In that case, the Court of Appeal emphasised that if an order was made ex parte it should be limited in time to the shortest possible period which must elapse before a preliminary hearing could be arranged. It is implicit in the decisions of Sieling (supra) and Ansah (supra) that wherever possible short notice of the proceedings should be given to the respondent:
“The general principles are that the Court must be satisfied that the matter is of such urgency that the applicant’s interests (or the interests of the child) can be protected only by an immediate order. It is necessary to balance the likelihood of harm to the applicant against the hardship to the respondent of making an order without hearing him. The more drastic the order the more grave must be the risk to be averted and the more important the requirement that the respondent be heard at the earliest opportunity. An order that a party be excluded from the home or that a child be removed from the custody of a party must be supported by evidence of an imminent risk of such a nature that the Court cannot wail even the period of time necessary for short service.” (Sieling (1979) FLC 90-627 at p. 78,254.)
In those limited circumstances where it is necessary to make an ex parte order, the onus rests upon the applicant for the injunction both at the ex parte stage and at the later hearing of the matter to satisfy the Court that the circumstances justify the making and continuation of the order. This is so irrespective of whether the respondent formally applies to set aside the order. Counsel for the appellant husband submitted – correctly in our view – that the Court's discretion could miscarry if the onus were put upon the respondent to satisfy the Court that the order should be discharged.
Thus, in making an order ex parte, the Court is required to have regard to the nature and imminence of risk of harm.
To proceed in the absence of, and without notice to, a party is an extraordinary thing for a court to do. The circumstances in which a court does so have in the authorities been variously described as “anomalies” or “exceptional”. The Full Court in Stowe as referred to above, cited with approval the observations of the United Kingdom Court of Appeal in Ansah v Ansah [1977] 2 All ER 638. What their Lord Justices observed there bears repeating, when they said at 642:
Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party (see Craig v Kanseen [1943] 1 KB 256 at 262). Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. Such circumstances do undoubtedly tend to occur more frequently in family disputes than in other types of litigation … but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the courts. Such cases should be extremely rare … Circumstances, of course, may arise when prior notice cannot be given to the other side; for example, cases where one parent has disappeared with the children, or a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fully satisfied that such protection is necessary.
I am satisfied that the circumstances of this matter are exceptional and that there is a basis established on the evidence to which I have earlier referred to proceed ex parte in relation to the orders in relation to the child and the various restraints for personal protection and exclusive occupation.
I am not, however, satisfied that it is necessary on an ex parte basis to make orders in relation to the child’s name, for passports, in relation to a property at Town B or by way of disclosure. These are all matters that can be the subject of a proper hearing after the respondent has been given notice of the proceedings and has had an opportunity to be heard.
In making a parenting order I am required to have regard to what arrangements will be in the child’s best interest.
Section 60CC(1) of the Family Law Act 1975 (Cth) (“the Act”) states that in determining what is in the child’s best interests I must have regard to the matters in s 60CC(2).
Section 60CC(2) lists six mandatory considerations.
Section 60CC(3) mandates that in determining what arrangements would promote the safety of the child and a person who has the care of the child, I must consider any history of family violence and any family violence order.
Addressing the s 60CC(2) considerations, I have had regard to the applicant’s evidence. Recognising, as I do, that I am asked to make ex parte orders, I am satisfied the orders I make, in light of the allegations, are ones that at this stage promote the safety of the child and the applicant.
The child is too young to express any view. The child’s state of development and psychological and emotional needs are being met by the applicant only, and she contends the respondent has not met the child.
I am satisfied on the basis of the evidence that the applicant has the capacity to provide for the child’s developmental, psychological, emotional, and cultural needs. The evidence at this stage would establish that there is no immediate benefit to the child of having a relationship with the respondent.
Accordingly, I am satisfied, acknowledging as I do at this stage that the respondent has not been heard, that the orders as to parenting sought by the applicant are in the best interests of the child. The applicant seeks injunctive orders in relation to herself and the child and in relation to occupation of the Town B property. I am satisfied, in light of the seriousness of the allegations raised by the application, that it is proper that the restraints sought are made.
I am not satisfied that there is any prejudice to the respondent and the balance of convenience warrants the making of the orders. The respondent will be given an opportunity to be heard as to the continuation of the orders on the next return date.
Accordingly, I will make the orders as set out herein.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 28 May 2024
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