Daire & Gamer (No 2)
[2022] FedCFamC1F 1078
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daire & Gamer (No 2) [2022] FedCFamC1F 1078
File number(s): MLC 11134 of 2021 Judgment of: BENNETT J Date of judgment: 15 December 2022 Catchwords: FAMILY LAW- INJUNCTIONS- where orders have been obtained under state domestic violence law, inappropriately. Legislation: Family Law Act 1975 (Cth) s 90SS(1)(k) Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 15 December 2022 Place: Melbourne (via MS Teams) Counsel for the Applicant: Taussig Cherrie Fildes Counsel for the First Respondent: Litigant in person Counsel for the Second to Fourth Respondents: Hartley Family Law Pty Ltd Counsel for the Intervener: Marshalls & Dent ORDERS
MLC 11134 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAIRE
Applicant
AND: MR GAMER
First Respondent
MR B GAMER
Second Respondent
MS D GAMER (and another named in the Schedule)
Third Respondent
MS C GAMER
Intervener
order made by:
BENNETT J
DATE OF ORDER:
15 december 2022
THE COURT ORDERS THAT:
IT IS ORDERED THAT:
1.This matter be listed before me on 16 February 2023 at 9.00am for trial directions and hearing of the objection to subpoena, estimated to take one hour.
2.IT IS DIRECTED that the notice of objection lodged by BB Legal be endorsed with the date of hearing of the objection and be sent back to the objector notifying of same.
3.Pursuant to 90SS(1)(k) of the Family Law Act 1975 the husband be and is hereby restrained by injunction from attending at or within 25 metres of CC Sports Club, address DD Street, Suburb EE between 12.00 noon and 5.00 pm on the following dates:
(a)Saturday 17 December 2022;
(b)Saturday 14 January 2023;
(c)Saturday 21 January 2023;
(d)Saturday 28 January 2023;
(e)Saturday 4 February 2023; and
(f)Saturday 11 February 2023.
4.Pursuant to 90SS(1)(k) of the Family Law Act 1975 the husband be and is hereby restrained by injunction from attending at or within 25 metres of CC Sports Club, address DD Street, Suburb EE between 12.00 noon and 5.00 pm on such of the following days as the wife notifies the husband, through her practitioners in writing, that her sporting team has qualified for finals:
(a)18 and 19 February 2023;
(b)25 and 26 February 2023; and
(c)4 and 5 March 2023.
5.My reasons for decision this day be transcribed and, when settled, be placed on the Court file and a copy provided to the parties.
6.A Registrar of this Court send a sealed copy of this Order and my reasons for decision when settled to the Clerk of the Magistrates Court of Victoria, Reference No: …, for the attention of the learned Magistrate when the matter is next before that Court.
AND IT IS NOTED:
A.That the subpoena to the Proper Officer of BB Legal has been complied with;
B.This matter was resolved at a mediation with Mr FF. A final hearing did not proceed and was vacated in light of the parties’ settlement.
C.The matter has now become unresolved and the husband is representing himself.
D.The husband and the wife intend to participate in a further mediation with Mr FF in January 2023. The husband and wife and their respective lawyers (if any) will participate in the further mediation. The other parties will simply be contactable as required.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 pseudonym Daire & Gamer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J:
This matter comes before the Court as a mention. I anticipated final orders would be sought to effect relation to that an alteration of property interests between the parties to a longstanding de facto relationship. The fact that they were in a de facto marriage relationship for 25 years is not controversial. Accordingly, for ease of reference, I will refer to the parties as the husband and the wife.
The financial proceedings are not straight forward. The husband was married and had two children prior to his relationship with the wife. The husband is still married to the children’s mother. The children’s mother asserts that she has rights and entitlements which impact the property which the husband and wife’s interests stand to be altered. She is a party proceedings.
The husband also says that his children with his former wife and entitled to the property interests under consideration. The children, who are adults, and their entities are second to fourth respondents in the property proceedings.
The consensual resolution of the proceedings was arrived at by all parties in a voluntary mediation process. However, the husband then withdrew instructions to his solicitors. It appears that either because of, or as a consequence of, the husband ceasing to be represented by GG Legal, that the settlement previously agreed upon has fallen over. The property matter remains unresolved and now the wife seeks a final hearing date as soon as possible. I will have to see what my diary can accommodate. The parties have also asked about the availability of a judicial settlement conference.
There is a matter that has arisen which I am satisfied requires some attention today. The husband does not object. I will accede to the wife making her application orally and dispense with an application in written form for the injunctive relief that she seeks.
The wife has a final intervention order under state domestic violence legislation against the husband which is expressed to be for her personal protection. That order was obtained in early 2021 and expires in early 2023. Pursuant to that order, the husband is precluded from doing a number of things, including being within 25 metres of the wife.
Both the husband and the wife are members of CC Sports Club and are members of the HH Sports Club.
The husband likes sports. He plays a sport regularly and has for the last 12 years, weekly, at CC Sports Club. However, he has not played competitively for CC Sports Club. He thought he might, and he was selected for the competitive team but, when the time came for his debut, he considered the wife’s intervention order precluded him from playing. My impression is that this was because the wife was already playing in the competitive team and the two of them trying to maintain 25 metres distance from each other while playing was impracticable.
The husband is not a member of a competitive team for CC Sports Club at this moment. The wife is a competitive player and has been for some time. The wife has provided a list of dates on which she is required to play at CC Sports Club, at DD Street, Suburb EE. They are Saturdays, 17 December, 14, 21, and 28 January and 4 and 11 February. If they play well and are accepted into the finals, the potential finals days are 18, 19, 25, 26 February 2023, and 4 and 5 March 2023. I do not understand any of the above to be controversial.
Recently, however, the husband obtained a domestic violence order against the wife naming himself as the protected person from the Magistrates Court at Melbourne on an ex parte basis. I don’t know what the husband said to justify ex parte proceedings when the wife has solicitors on the record, this court is well able to grant injunctive relief and the matter was returnable in this court is such a short space of time. Nonetheless, an ex parte order was made under state legislation.
The husband does not put evidence before this court from which I can identify the controversy in which the husband satisfied the learned Magistrate that the order should be, and/or was, made.
I am informed that the wife will contest any continuation of the ex parte order at the earliest opportunity.
Pursuant to the ex parte order obtained by the husband the wife is precluded in the usual terms from:
Committing family violence, follow, stalk, surveil or communicate with the husband.
[…]
(4)Approach of remain within 25 metres of a protected person, including at the husband’s longstanding social and/or sporting organisations with which he is involved, including but not limited to [HH Sports Club], [CC Sports Club sporting] venues and other [CC Sports Club] venues.
(5)Go to or remain within 200 metres of any place which the protected person lives or works.
I will deal first with implications for the wife in relation to CC Sports Club as this has been the subject of a sensible agreement.
The husband has agreed to stay away from CC Sports Club for the times on which the wife will be required to play competitively on all of the Saturdays is from 12 noon to 5 pm. That, in my view, is preferable to having to observe any restriction about being within 25 metres of the wife. I can disclose to the parties that I have some personal knowledge of CC Sports Club premises at DD Street and 25 metres is a distance which it would be difficult to observe, having regard to such matters as small rooms, walls and the like.
So, I will make an order restraining the husband from attending CC Sports Club on the dates described by the wife. That means that the wife can attend CC Sports Club on those days comfortable in the knowledge that she will not be in breach of the ex parte interim intervention order.
Now, in relation to the dates of 18 to 26 February, and 4 and 5 March, I will order that the wife must notify the husband in the event that her team is successful and is to play final matches on those days at CC Sports Club. If they are not successful, there is no reason why the husband cannot go on those days to CC Sports Club.
Now I will deal with implications for the wife in relation to HH Sports Club. There is no agreement. The controversy rests largely on how the husband has chosen to, and would seek that the two courts, interpret “any place which the [the husband] lives or works”.
The husband knows that the wife has arranged to attend HH Sports Club, as a member, for a dinner with friends, in December 2022. She is invited to dine in a particular area of HH Sports Club. The order which has been obtained ex parte by the husband is that the wife cannot:
Go to or remain within 200 metres of any place where a protected person lives or works.
The husband is, obviously, the protected person. His case is that he “works” at HH Sports Club.
The husband concedes that he is not employed by HH Sports Club or by the licensees. He is not paid to be there. He contends that he attends HH Sports Club facilities regularly and, he says, transacts “business” there. The husband says that he does so in a specific room at HH Sports Club, which is near the entrance door. The room is separate to other rooms but all members have access to this room. The husband concedes that he has no express permission from HH Sports Club or entitlement to conduct business or locate his “work” in the Club facilities
The husband, sensibly, in my view, agrees not to attend HH Sports Club on the evening of the wife’s dinner in December 2022. So there will be no difficulty with the wife going there for dinner. She will not have to be vigilant to observe any 25 metre distance requirement.
I do not accept that HH Sports Club is the husband’s place of work. It is a place of recreation to which he has access as a club member. Incidentally, the husband chooses to meet business associates at HH Sports Club premises. The husband did not cavil with the proposition that whatever “business” he engages in on HH Sports Club premises is transacted without the knowledge or imprimatur of HH Sports Club and/or its authorised officers.
As the husband is unable to establish before me that he either “lives or works” at the HH Sports Club, I find that the interim ex parte order does not preclude the wife from attending the HH Sports Club clubhouse at any time which she can lawfully avail herself of her membership entitlements, subject to both parties observing the 25 metre requirement under the wife’s final intervention order of early 2021, and the husband’s interim intervention order of late 2022.
These are the orders I make. I respectfully request that the learned magistrate before whom the intervention proceedings come for further hearing give consideration as to permitting this court to make all injunctive orders between the husband and the wife. A power of arrest can be attached. This court is well able to do that. Confining injunctive relief to one may de-escalate the gamesmanship that I have observed in this case. These are not the games which should be played in clubhouses or the environs of CC Sports Club and/or HH Sports Club. To permit either or both of the parties to engage in this conduct is inconsiderate to other members of the clubs. It isn’t fair and it’s just not cricket.
If necessary, this matter can be listed before me without delay for a suite of injunctions to be made on the basis that injunctions under state law are dissolved.
I certify that the preceding twenty six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 13 February 2023
SCHEDULE OF PARTIES
MLC 11134 of 2021 Respondents
Fourth Respondent:
S PTY LTD
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