DOYLE & RUSEDSKI

[2015] FamCA 245

FAMILY COURT OF AUSTRALIA

DOYLE & RUSEDSKI [2015] FamCA 245

FAMILY LAW – PROCESS AND PROCEDURE - INJUNCTION

Family Law Act 1975 (Cth)

APPLICANT: Mr Doyle

RESPONDENT: Ms Rusedski

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 4646 of 2012

DATE DELIVERED: 13 March 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 13 March 2015

REPRESENTATION

HE APPLICANT: In Person

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Glezer Lanteri & Associates

Orders

1. That the application in a case filed 20 February 2015 by Mr Doyle and paragraphs 1 and 2 only of the response filed by Ms Rusedski filed 5 March 2015 are adjourned to the Senior Registrar’s list at 10.00am on 25 May 2015.

2. That Mr Doyle is restrained from injunction from bringing any further parenting application without leave of a judge of the Family Court of Australia until after the conclusion (that is the final judgment) of the Magistrates’ Court of Victoria in the current proceedings between the applicant and the respondent.

3. That the reasons this day be transcribed.

4. That if the application and the response are to be proceeded with on 25 May 2015, for the purposes of that hearing:

   (a)   The father file and serve on the mother and the Independent Children’s Lawyer any affidavit upon which he intends to rely by 4.00pm on 11 May 2015;

   (b)  The mother file and serve on the father and the Independent Children’s Lawyer any affidavit in reply by 4.00pm on 20 May 2015.

5. That no party be otherwise entitled to file any further affidavit without leave of the Senior Registrar of a judge of the court.

6. Notwithstanding the foregoing, the father can rely on the affidavit of his sister Ms Doyle filed 11 March 2015.

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

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. Before me today on a referral from the Senior Registrar are two applications.  One is the application by Mr Doyle to whom I shall refer in these reasons as the father, and the second is the response to Mr Doyle’s application by Ms Rusedski to whom I shall refer as the mother.

2. This is a parenting dispute about B, who is not far off six years of age and I am reliably assisted as usual by Ms Agresta as counsel for the independent children’s lawyer, who tells me that the background is that the parties separated after their marriage came to an end in 2012 in Europe and ultimately when the matter came back to Australia final orders were made on 14 August 2013.

3. The file indicates that there has been considerable litigation since that time which seems to revolve around an incident that culminated in the police charging the father under State law, but at the same time making an intervention order.  For reasons that do not matter that intervention order included B.

4. The magistrate at the time has – he or she had the power so to do – suspended the orders made on 14 August 2013.  On 4 June 2014 on the father’s application Johns J varied the order made by the magistrate and reinstated some time and then referred the matter to the Senior Registrar.  On 25 June 2014 the Senior Registrar made an order for the assistance to be provided to the court of a family consultant and that was done on 17 July.

5. On 20 August 2014 the Senior Registrar fixed the father’s time with B as from 10 o’clock on Saturday to 5 o’clock on Sunday in one week and then daylight time, 10 o’clock until 5 o’clock on the following Sunday.  Those are the extant orders.

6. What is clear, however, is that the criminal proceedings and the intervention order dispute is not complete and it is hoped by everybody that they will be heard in April.  That is perhaps a forlorn hope in some respects because the matter has been adjourned on a number of occasions.  The father’s position seemed to be that on the last occasion the matter was adjourned because the prosecution was not ready and an order for costs was made against them, but the certificate from the Magistrates Court would seem to suggest that is not entirely accurate.

7. It is the hope, therefore, that the matter will proceed in the coming month.  Where the dilemma arises for today’s hearing is that in the orders of 20 August 2014 the Senior Registrar provided that the matter was not to be relisted before him unless a number of matters had taken place.  The order is clearly in the conjunctive sense but curiously the third of the three conditions is that the father could apply for a section 128 certificate under the Evidence Act.

8. One wonders why that order would have been made if the father was not to bring the application back before the court.  Be that as it may paragraphs 1 and 2 of the conditions clearly indicate that the criminal proceedings had to be over before the Senior Registrar would reconsider the position.  As I observed the Senior Registrar has delegated powers, all of which are under the supervision of the judges but no application to review that order was made.

9. The father made an application in December which was heard on 14 January before Benjamin J. His Honour dismissed it and although there are no reasons on the file his Honour did put into the order that he was dismissing it under s 118 of the Family Law Act 1975 (Cth) (“the Act”). Section 118 of the Act says that the court may at any stage of proceedings under this Act if it is satisfied that the proceedings are frivolous or vexatious:

   (a)dismiss the proceedings; and

   (b)make such order as to costs as the court considers just.

10. I am not being asked to dismiss the proceedings, but I am being asked today to make an order that the father not bring proceedings again until such time as the conditions set out in the order of 20 August 2014 are met.  There are some technical legal reasons about how that order can be made but the father agrees that he will not bring such an application until such time as the proceedings are over in the Magistrates Court.

11. The difficulty with that assurance, of course, is that it may be – having regard to the track record of the Magistrates Court – the case may not be heard for some time.  He should have the opportunity to bring an application if he so wishes but it should only be on the basis that a judge examines the case to see whether or not there is a justification for having the matter re-heard or heard again by the Senior Registrar having regard to what was in the reasons of 20 August and the subsequent report of Dr C.

12. The reason for that, of course, is that the mother has made an application that the father be so restrained and complains bitterly that she is inconvenienced by all of these applications and particularly points to the orders of Benjamin J.  It seems to me that that is the most pragmatic way to resolve the matter;  that is to bring the matter back only after those criminal proceedings are completed.  However, if there is some delay in those again the father should have the opportunity to make an application to show that there is some fundamental basis why he should be allowed to have the court reconsider the orders that were made on 20 August.

13. In discussion today he indicated that his child was being abused.  When one examines the affidavit that he swore and filed on 20 February this year I would not be prepared to say there is any evidence that would justify such a conclusion being made.  The evidence seems to assert that B is being subject to psychological abuse but that might be open to interpretation.

14. I have warned both parties that the best way to end this trauma, not only for them but more importantly for B, is to have the trial heard on a final basis, but at the moment they are not even in the list of those cases because of these interlocutory disputes.  The father understands now that he can conclude the criminal proceedings about which he says he will be exonerated, and then come back to the Senior Registrar, but of course there is no guarantee that the Senior Registrar will reinstate the orders that were made in August 2013.

15. Be that as it may it is at that point that the court would need to put the case in a list awaiting a final hearing.  I have also given indications today that the appropriate way to get a case on quickly is to make an application for priority listing before the case management judge.  The rules clearly provide for that.  Accordingly, I propose to make the following orders:

16. First, that the application filed 20 February by the father and the response filed on 5 March – but only paragraphs 1 and 2 thereof by the mother – are adjourned to the Senior Registrar’s list on 25 May 2015 at 10 am.

17. The second order will be that the father is restrained from bringing any further parenting application without leave of a judge until after the conclusion - and by that I mean the judgment in the current proceedings in the Magistrates Court of Victoria between the applicant and the respondent.

RECORDED  :  NOT TRANSCRIBED

1. So if the application and response are to proceed on 25 May 2015, for the purposes of that hearing the father file and serve on the mother and the independent children’s lawyer any affidavit by 4 pm on Monday, 11 May and the mother file and serve on the father and the independent children’s lawyer any affidavit in reply by 4 pm on Wednesday, 20 May.  And I will have these reasons transcribed and placed on the court file.  No further affidavits be filed without leave of the Senior Registrar and note the father can rely on the affidavit of Ms D Doyle filed 11 March.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 March 2015.

Associate: 

Date:  13 April 2015