Doyle and Rusedski (No 2)

[2014] FamCA 976

FAMILY COURT OF AUSTRALIA

DOYLE & RUSEDSKI (NO. 2) [2014] FamCA 976

FAMILY LAW – CHILDREN – Interim – allegations of family violence – order appointment of Independent Children’s Lawyer – order for supervised time.

APPLICANT: Mr Doyle

RESPONDENT: Ms Rusedski

FILE NUMBER: MLC 4646 of 2012

DATE DELIVERED: 4 June 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: In Person

Orders

1. That pursuant to s 68L(2) of the Family Law Act the child B born … 2009 be separately represented and that Victoria Legal Aid is requested to arrange such representation and if practicable, Mr Piekarski be reappointed as the Independent Children’s Lawyer (“ICL”)

2. (a)     That within 48 hours of notification of such appointment each party copy and provide to the person appointed as ICL all relevant documents filed and relied upon by them or on their behalf; and further

   (b)In addition to sub-paragraph (a) the applicant husband copy and provide to the ICL:

   (i)     True copies of all court orders concerning the parties and child to include the current orders and any previously made in or by the Family Court of Australia, the Federal Circuit Court of Australia, any courts of the States or Territories of the Commonwealth of Australia, or made by any court outside the commonwealth of Australia; and further

   (ii)    True copies of any expert reports (filed by affidavit or tendered) and sought to be relied upon by any of the parties and including and s 62G “Family Report”, s 11F “Children’s and Parents Issues Assessments”, s 69ZW report or privately obtained reports by the parties or any of them; and

   (iii)     Judgments published by the Family Court of Australia, Federal Circuit Court of Australia or any courts of the States or Territories of Australia or court outside the Commonwealth of Australia previously with respect of the parties, either of them or the child; and 

   (iv)     Each party provide a written authority to the ICL to speak, liaise or write to any report writer, treating health professional, of the parties or child, the school which the child attends or has attended and the caregivers including childcare workers; or creche; or kindergarten.

3. That upon their appointment, and after filing of an Address for Service, the ICL may inspect and, if permitted, copy all documents previously produced to the Court in the proceedings and released to the parties and in turn may give a copy of them to any expert, person or agency who is preparing a report or treating the parties or child, for the purposes of assisting them to do so whether by court order or the agreement of the parties.

4. That until further order paragraph 4 of the orders dated 14 August 2013 be suspended.

5. That upon the personal undertakings given by Ms D and Ms S this day that they will supervise the child’s time with the husband and intervene and suspend that time in the event of any inappropriate behaviour by the husband, until further order the child B born … 2009 spend time with the husband as follows:-

   (a)On Sunday 8 June 2014 from 10.00am to 3.00pm, such time to be supervised by Ms S;

   (b)On Sunday 15 June 20214 from 10.00am to 3.00pm, such time to be supervised by Ms D;

   (c)On Saturday 21 June 2014 from 10.00am to 3.00pm, such time to be supervised by Ms S; and

   (d)On Tuesday 24 June 2014 from 2.00pm to 6.00pm, such time to be supervised by Ms D;

   AND THE COURT NOTES that the above order is inconsistent with the provisions of the interim intervention order made in the Magistrates’ Court of Victoria on 22 April 2014 but is made to ensure that the child continues to have the opportunity of enjoying a meaningful relationship with the husband, but that such time is supervised pending further investigation of the wife’s allegations which are denied by the husband.

6. That for the purposes of facilitating the time pursuant to order 3 hereof, changeovers occur as follows:-

   (a)For the time on 15 June 2014 and 24 June 2014, the wife deliver the child to the home of Ms D at Suburb A, and at the conclusion of the time the child be delivered to the wife’s residence, the husband to remain in his motor vehicle at that changeover;

   (b)For the time provided on 8 June 2014 and 21 June 2014 the wife deliver the child to the residence of Ms S at Suburb V at the commencement of time and the child be delivered to the wife’s residence at the conclusion of the time, the husband to remain in his motor vehicle at that changeover.

7. That the husband’s Application in a Case filed 29 May 2014 be dismissed.

8. That the husband file any reply to the wife’s response to Initiating Application filed 30 May 2014 on or before 13 June 2014.

9. That on or before 20 June 2014 each party file and serve any further affidavits upon which they seek to rely.

10. That all extant interim parenting applications be adjourned for hearing in the Registrar’s duty list at 10.00am on 25 June 2014.

11. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Doyle & Rusedska 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 MELBOURNE

FILE NUMBER: MLC 4646 of 2012

Mr Doyle

Applicant

And

Ms Rusedska

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me today in a Judicial Duty List.  Each of the parties is self-represented on this occasion. 

2. The husband, Mr Doyle, is aged 47 years.  He currently lives in rental accommodation in Suburb K.  His works in the property industry. 

3. The wife is Ms Rusedski.  She is aged 29 years.  She is engaged in employment as an administrative officer.

4. The parties commenced cohabitation in 2007.  They married in late 2008 and separated on 20 April 2012.  They are divorced. 

5. There is one child of their relationship, namely B (“the child”), born in 2009.  He is aged four, about to turn five.

6. The applications before me today are firstly the husband’s Application in a Case in which he seeks orders that I remove the child from an intervention order made in the Magistrates’ Court of Victoria in April 2014 and currently in force.  Further, he seeks orders to enforce the operation of Family Court orders currently in place, they being the final orders made by consent between the parties on 14 August 2013.  The husband also seeks a stay of the intervention order proceedings insofar as they relate to the parties’ child.

7. The wife in her response to that application seeks orders that the current Family Court orders to which I have already referred be discharged.  She further seeks orders that the child lives with her and that the husband’s time with the child be reserved.

8. The background to the matter and the reason that it comes to Court this day arises from events that occurred in January 2014.  They are the facts that also gave rise to the intervention order proceedings that are currently before the Magistrates’ Court of Victoria. 

9. This is an interim hearing.  I am unable to make any findings in relation to facts in issue between the parties.  I have been careful to ensure that each of the parties understands that I am not in a position to make findings in relation to contentious facts.

10. The wife alleges that she and the child are victims of family violence.  She alleges that in January 2014 the husband had no stable accommodation.  She alleges that as a result of that instability the husband was, from time to time, staying overnight in her home.  She alleges that there was a dispute between the parties and that she requested the husband to leave the home.  She alleges that the husband refused to leave and that an argument ensued.  She alleges that the child was present during that argument where words were exchanged between the parties and that there was a physical altercation between them.  As a result of those allegations the wife called the police, who attended the property.

11. It should be noted that the husband denies each of those allegations.  Indeed, it is alleged on behalf of the husband that in fact he was the victim of family violence, that the wife slapped him and that he grabbed her wrist to restrain that physical altercation.

12. I repeat I am not in a position to make any finding of fact in relation to those issues.

13. On each parties’ view however, it is clear that the child was present during the exchange between their parents and that he was exposed to whatever transpired between his parents that day.  That is a matter of grave concern to this Court.

14. In addition to the allegations as to what occurred in January of 2014, there are further allegations made by the wife.  In particular she refers to an alleged over-holding of the child in March 2014 on the occasion of her sister’s wedding, where it was anticipated that the child was to play a role as a pageboy.  The husband admits that he over-held the child on that occasion and that he and the child travelled to the Mornington Peninsula overnight.  Again, the husband makes allegations of withholding of the child by the wife.

15. I am not in a position to make findings in relation to those matters.  I simply record the allegations as made by each of the parties as the background to these proceedings.

16. The overriding principle which guides the Court in the determination of parenting matters is the principle that the best interests of the child is the paramount consideration. In determining what is in a child’s best interests I must have regard to the provisions of s 60CC of the Family Law Act, which sets out the primary and additional considerations to be taken into account.

17. Included in the primary considerations is firstly the benefit for the child to have a meaningful relationship with his parents.  The second primary consideration is the need to protect the child from physical or psychological harm from being exposed to or subjected to abuse, neglect or family violence.  Where there is a conflict between those two primary considerations, the consideration with respect to family violence must take precedence.

18. This matter comes on in the setting of an interim hearing.  I cannot make findings as to fact.  There is sufficient evidence before me to indicate that it is appropriate that an Independent Children’s Lawyer be appointed to assist the Court in determining what is in the child’s best interests.  Accordingly, I will make an order to that effect.  Upon the appointment of the ICL the parties’ competing applications can be considered by the Senior Registrar in his Duty List on 25 June 2014.

19. The child, historically and pursuant to the orders that were made in August of 2013, has had significant and substantial time with his father.  There has been an interruption to that time since 9 May 2014.  I am mindful of that.  I am also mindful of the concerns raised by the wife and the need to ensure the child’s safety and protection pending a determination of the issues before the court.

20. With that in mind I will make orders for the child to spend time each weekend until the adjourned hearing, such time to be supervised by one of the husband’s sisters, it being conceded by the wife that those persons are appropriate to provide such supervision.  Both sisters are present in court today and have heard the range of issues before the court.  I will, in due course, ask them to give undertakings to the court to provide supervision. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 4 June 2014.

Associate: 

Date:  4 June 2014