L and L - [2003] FMCAfam 549

FEDERAL MAGISTRATES COURT OF AUSTRALIA

L & L

[2003] FMCAfam 549

FAMILY LAW – Application for parenting orders.

PRACTICE & PROCEDURE – Sole use and occupation of former matrimonial home whereby both parties seek to exclude the other from the home – proceedings in the Magistrates Court – husband subject to the force of a state intervention order – whether the Federal Magistrates Court has jurisdiction to deal with the question of sole use and occupation of the former matrimonial home – whether the Family Law Act excludes the right to institute proceedings in respect of matters which could have been initiated by virtue of sections 68B or 114 of the Family Law Act whereby a party has proceedings pending pursuant to State or Territory legislation – whether there is complementary jurisdiction offered between State and Commonwealth legislation – Federal Magistrates Court has jurisdiction to accept the application for exclusive occupation.

Crimes (Family Violence) Act 1987 (Vic)
Family Law Act 1975 (Cth), ss.65DA(2), 68B, 68C, 68K, 68L(2), 68P, 68R, 68S, 68T, 114, 114AA, 114AB, 114AB(1), 114AB(2)
Family Law Reform Act 1995 (Cth)
Federal Magistrates Court Act 1999 (Cth)

Ebreo & Ebreo (unreported, delivered 1 July 1996)
Cauchi & Cauchi (1994) FLC 92-447
Nicolaou & Nicolaou (unreported, delivered 1 March 1988)

Applicant:

L L

Respondent:

K L

File No:

MLM 8416 of 2003

Delivered on:

9 December 2003

Delivered at:

Melbourne

Hearing Date:

8 December 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Ms Dillidis

Solicitors for the Applicant:

Hale & Wakeling

Counsel for the Respondent:

Mr Mort

Solicitors for the Respondent:

McCarthy & Associates

ORDERS

IT IS ORDERED THAT:

All Applications be adjourned to 19 December 2003 at 10.00am before Chief Federal Magistrate Bryant.

IT IS ORDERED BY CONSENT THAT:

Until further Order each of the Husband and Wife retain joint responsibility for decisions regarding the long term care, welfare and development of the children.
Until further Order each of the Husband and Wife have sole responsibility for decisions regarding the day to day care, welfare and development of the said children when they are in their respective care.
Each of the Husband and Wife attend upon a psychologist to be agreed for the purposes of a Family Report, the cost of which is to be borne equally between the parties.
Pursuant to s.68L(2) of the Family Law Act1975 the said children be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation.
Forthwith upon appointment by the said Victoria Legal Aid or otherwise the Child Representative do file a Notice of Address for Service.
Within 48 hours of notification of such appointment the solicitors for the respective parties do provide to the Child Representative copies of all relevant documents relied upon.
THAT pursuant to s.65DA(2) of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 8416 of 2003

L L

Applicant

and

K L

Respondent

REASONS FOR JUDGMENT

Introduction

The matter that I am dealing with this morning arises from applications by the wife for various parenting orders, and in particular for an order for the sole use and occupation of the former matrimonial home at Brighton.
The wife's application, which was filed on 27 November, seeks an order that the three children of the parties live with her and the husband have such contact as is agreed, that she have sole use and occupation of the former matrimonial home, that the husband be restrained from entering upon the property and restrained from molesting or harassing her and that he pay one half of the mortgage instalments. The children are aged thirteen, eleven and nearly eight respectively.
The affidavit in support of the application, which was initially filed by the wife in support of the application for sole use and occupation, detailed a history of the difficulties between the parties and at least since middle of November 2003 what she described as harassing and abusive behaviour towards her by the husband. The details are set out in her affidavit and I do not propose to go through them, suffice it to say that the allegations by her conclude, in her view at least, on the basis that she is unable to remain living in the house with the husband and that it is in the interests of herself and the children that she be granted exclusive occupation.
Subsequent to that application she applied to the Melbourne Magistrates Court under the Crimes (Family Violence) Act 1987 (Vic) for an order. Whilst the application, which is attached to an affidavit sworn by her on 5 December, appears to traverse matters raised in her first affidavit, the affidavit itself deposes to the fact that as a result of events which she says occurred on 29 and 30 November she attended at the Melbourne Magistrates Court on 1 December 2003 and swore a complaint for an intervention order. An intervention order to last until 9 December was granted on that day.
The effect of the order was that the husband was prohibited from assaulting, harassing, molesting, threatening or intimidating the wife from approaching, telephoning or contacting her except under specified circumstances and knowingly being at or within the premises at the Brighton property or any other premises where she lives. The effect of that order was obviously to exclude the husband from the home. He has been living away from the home in a property currently occupied or at least owned by the wife's mother since that time.
The husband then applied to revoke the interim intervention order and that was listed on 4 December. That matter was adjourned to 12 December for a defended hearing and the interim order, which the wife had obtained, was extended until that date. The 12 December is Friday and accordingly the application by the husband to revoke the order will be determined on Friday.
The husband has filed an affidavit in which he puts in issue much of what has been deposed to by the wife. In short, he asserts that it is he who is the appropriate caregiver for the children, that the wife had moved out of the house at one stage leaving him to care for the children. He seeks orders that the children live with him and he denies the matters alleged by the wife which were the basis for the order and for this application and indeed asserts that she is an inappropriate parent for the children.
The matter came before me yesterday in the duty list. In view of the nature of the matter, that is, the likely complexity of the matter, the witnesses to be called and the likely time the matter will take and the fact that the property the parties have, which is also in dispute, is on its face beyond the jurisdiction of the Federal Magistrates Court, the parties agree that the matter should be transferred to the Family Court of Australia certainly for final hearing. Under the Federal Magistrates Act 1999 (Cth) and the amendments to the Family Law Act, this Court can make interim orders before transferring a matter. Although it is difficult to discern what priority the matter could be given in the Family Court, it is I think notorious that at this time of year both the Federal Magistrates Court and the Family Court have busy lists and it is unlikely that the matter would be able to be given sufficient time for a full hearing on all of the interim matters before Christmas.
That requires that in effect some holding orders be made until a date can be fixed, it seems to me, in the Family Court in the new year so that orders can be made which will put arrangements in place to last until the hearing of the matter. I was told by Counsel that the parties, in principle at least, have reached agreement that for the holiday period, which is imminent, the parties would share the care of the children.
The matter which required urgent attention, therefore, was really the issue of the wife's application for exclusive use and occupation of the former matrimonial home. The husband in his response filed on 8 December seeks a similar order. So I am faced with an application whereby both parties seek to have the other excluded from the home. There is of course in addition the added complication whereby until Friday at least the husband is restrained from going to or occupying the home and on Friday when the matter is dealt with in the Magistrates Court at Melbourne there may be a continuing order which has the effect of excluding him from the home or there may not.
Because of the difficulty in finding sufficient time to deal with this matter, at least in the next few days, it seemed to me that as a matter of practicality, as the wife made it clear that she was proceeding in any event in the Magistrates Court, there is some benefit in allowing that process to proceed. If the wife is successful in that application, then there would be no need for this Court or the Family Court to deal with the question of sole use and occupation of the home. If she is not successful of course then that need arises, although it would not presumably arise until the end of Friday when the Magistrates Court makes a decision, if indeed that occurs.
The matter which required me to reserve my decision overnight is the effect of section 114AB of the Family Law Act 1975 (Cth). In particular, section 114AB (1) says:
“Section 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a state or territory that is capable of operating concurrently with those sections.”
Section 114AB(2) says that:
“Where a person has instituted a proceeding or taken any other action under a prescribed law of a state of territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B of 114 in respect of that matter, unless:
(a) where the person instituting a proceeding:
(i) the proceeding has been lapsed, been discontinued, or been dismissed; or
(ii) the orders (if any) ... have been set aside or are no longer in force;
(b) where the person took other action - neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act or refrain from doing an act.”
In short, the husband submits that as a result of section 114AB(2) there is no jurisdiction in this Court to deal with the question of sole use and occupation.
The wife contends that there is jurisdiction to do so. Her argument, in the main, is that the words of the section are reasonably clear and should be read in their plain meaning, notwithstanding that might produce a somewhat anomalous result. The plain words of the meaning, as she contends, are that the Act applies to exclude the right to institute proceedings in respect of a matter which could have been instituted under section 68B or section 114 where a person has instituted a proceeding under a prescribed law of a state or territory. She contends, thus, that if the proceeding under the Family Law Act in this Court or the Family Court had been instituted first before the action in the Melbourne Magistrates Court under the state law, then the subsection does not apply.
She contends that the provisions of the different Acts provide complimentary jurisdiction and are designed for different purposes, albeit that they overlap in the effect of the operation of the orders. The relief provided for breach of those orders, however, is quite different, the state legislation providing for quasi-criminal ramifications.
The husband contends that the effect of legislation was clearly to prevent the same matter being litigated in different Courts and that it would be an abuse of process to allow two different Courts to deal with what is essentially the same matter; namely, whether or not there should be an order restraining the husband from occupying the home.
In Ebreo & Ebreo (unreported, delivered 1 July 1996), Brown J dealt with the interpretation of section 114AB. That decision was handed down in July 1996 and was after the amendments to the Family Law Act by the Family Law Reform Act 1995 (Cth). Prior to the enactment of the Family Law Reform Act there had been two decisions by Kay J; Cauchi & Cauchi (1994) FLC 92-447 and Nicolaou & Nicolaou (unreported, delivered 1 March 1988). Brown J discussed both of those decisions in Ebreo & Ebreo. In Nicolaou & Nicolaou, Kay J had given an interpretation on the word "matter" arising under the relevant section by interpreting it as meaning a continuing controversy between the parties arising out of the breakdown in the relationship.
In Cauchi & Cauchi he appears to have been a little uncomfortable with that earlier finding and drew another distinction which depended on who brought the complaint. In particular, he held that if a member of the police force brought the application rather than the aggrieved family member him or herself that would not constitute the institution of a proceeding or the taking of action under a prescribed law. Brown J in her Reasons at page 3 said:
“With respect, I share the discomfort his Honour expressed at suggesting that to be a valid distinction. I would go further.

I would say it is nonsensical and indeed unjust to suggest that a party should be cut off from a remedy under the Family Law Act simply because they are not a member of the Victoria Police who brought the action to protect someone.”
Furthermore, in considering Kay J's decision in Nicolaou & Nicolaou Her Honour said at page 4:
“Inherent in that statement is an acknowledgment that although disputes between parties may arise out of the same controversy, different incidents and situations can be separated out. That is acknowledged by his Honour in Cauchi & Cauchi."
Finally, in Ebreo & Ebreo, Her Honour considered the effect of the amendments brought into effect by the Family Law Reform Act 1995. She noted that section 114AB was amended by that Act, but only so the numbered sections in it reflected the new numbering in the Act. It now includes references to section 68B and section 114. Although it is not articulated in this case I should say that it seems to me that the injunction is sought under either of those sections. Section 68B relates to injunctions in relation to children and section 114 relates to injunctions in relation to the parties. Her Honour says, and I agree:
“There is no question that the power the Court usually exercises when making an order for sole use and occupation would arise from one of those two sections.”
She notes in particular that Division 11 states that the division deals with the relationship between Division 11 contact orders and family violence orders. She notes that for the purposes of Division 11 an injunction under section 68B or section 114 is a Division 11 contact order. Each is also a section 68R order as defined in section 68P. She notes that in the family violence area the Acts radically alter the situation both in the Family Court, and I add, in the Federal Magistrates Court and the Magistrates Court. I quote from page 6 of the Reasons for Judgment:
“First, section 68K requires a Court exercising a jurisdiction under the Family Law Act, to the extent it is possible consistent with the best interests of the child, to make orders. Consistent with domestic violence orders an intervention order under the Crimes (Family Violence) Act 1987 (Vic) is a family violence order. Secondly, it provides that if a Court makes a section 68R contact order which is inconsistent with a family violence order, the judge or magistrate must explain to a number of people, including the person protected, the reasons for the inconsistency and the effect of the order. Thirdly, section 68S spells out what has always been the case as a matter of constitutional law; that a section 68R contact order being an order made under Commonwealth legislation prevails over an inconsistent family violence order. Fourthly, it provides in section 68T that a Court making a family violence order can on its own initiative or on application by any person make, vary, revive, suspend or discharge a Division 11 contact order.”
Her Honour concludes that:
“What that means is that the Court is specifically authorised to make an order under section 68B or section 114 if, having heard evidence about the matter in the state application, a Family Law Act order needs to be made to ensure consistency or protection. By definition, the order made under the Family Law Act in those circumstances would be in respect of the same matter which arose in the intervention order application. In those circumstances the Court is authorised to specifically make the very orders which the findings in Nicolaou and the submissions of Counsel for the husband in this case assert, a Court exercising power under the Family Law Act has no power to make.”
Her Honour goes on to say at page 7:
“In my view, it would not be consistent with either general rules of statutory interpretation or the clear intention of this very recently enacted legislation to read two inconsistent provisions so that the older or more general section strikes out the most recent and very specific section which clearly authorises the Court to make certain orders.”
Her Honour also says, and I agree:
“The fact that I am not asked or able to make the order under section 68T is irrelevant. The Court doing so is exercising jurisdiction under the Family Law Act which on the authority of Nicolaou's case it should be precluded from doing under section 114AB. If section 114AB does not stop the exercise of that power, it should allow the exercise of power in this case.”
I find in this case, therefore, that there is power to make an order under section 114 or section 68B of the Act, notwithstanding section 114AB(2). I do so for the following reasons:
i)Because in my view following the reasoning of Her Honour Justice Brown in Ebreo & Ebreo there is power for me to do so;
ii)Secondly, it seems to me that it is on its face it is at least arguable that the controversy itself may be a different one; that is, that the facts alleged which led to the making of the order arose on 29 and 30 December and that the original application to this Court dealt with different facts and controversy, notwithstanding it is in the same framework of dispute; and
iii)Thirdly, there is the clear operation of the words of the Act itself. Whatever the intent of the Act, the clear words do say that where a person has instituted a proceeding – and in this case the wife had not instituted a proceeding – under a prescribed law of the state at the time when the proceedings under the Family Law Act were instituted.
Accordingly, in my view, there is jurisdiction to deal with the application for exclusive occupation.
The next issue what orders should be made in relation to that application. It is not, in my view, really possible to determine the merits of each of the parties' cases without hearing evidence. That is why, in my view, it is important that the parties have the opportunity to have their respective applications heard and determined in the Magistrates Court on Friday. I canvassed with Counsel the possibility of the issue of exclusive occupation being dealt with next week in the event that the order of the Magistrates Court in favour of the wife was discharged. Her Counsel has raised the problem about the husband seeking to re-enter the house at the weekend. Counsel for the husband did not suggest that he would not do so, nor offer any undertaking that he would not re-enter.

In the circumstances I must find, therefore, that if the order was discharged in the Magistrates Court it is likely the husband would re‑enter the premises. As I said, it is really not possible for me on the papers to discern which version of events is the correct one or what orders should be made without hearing some further evidence. It does seem to me, however, that I must act in the interests of the children and orders are sought in relation to the children by both parties. I accept that the husband says that the children's interests will be promoted by them being in his care, however, I must also take into account the practical matter that the parties have apparently agreed and accepted; that each of them will care for the children for half the time of school holidays.
That on its face suggests that, albeit in a limited time frame, each party accepts that the other will be able to adequately care for the children during that period. I cannot therefore see that there is any immediate danger to the children in remaining in their present circumstances for another few days, and in my view, it would be in their best interests that there not be a dispute or altercation between their parents over the weekend. I think it is clear from the material so far that it would be best for the children to avoid any obvious physical disputation between their parents. In the circumstances it seems to me that in order to preserve the status quo I should make an order for sole use and occupation but for a limited period until the completion of the proceedings in the Magistrates Court. I also indicated yesterday there should be the appointment of a child representative. I will hear from Counsel as to what other orders will be appropriate.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Bryant CFM

Associate: Peter Smith

Date: 11 December 2003