Sherlock and Lusby

[2012] FamCA 612

FAMILY COURT OF AUSTRALIA

SHERLOCK & LUSBY [2012] FamCA 612

FAMILY LAW – CHILDREN – Urgent application for ex parte order concerning a young child – Order made ex parte – Matter relisted to 8 August 2012

Family Law Act 1975 (Cth) s 60CC

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Sherlock

RESPONDENT: Mr Lusby

FILE NUMBER: BRC 6186 of 2012

DATE DELIVERED: 11 July 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 11 July 2012

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: No appearance (ex parte)

Orders

IT IS ORDERED UNTIL FURTHER ORDER

1. The child M born … October 2010 (the child) live with the mother.

AND IT IS FURTHER ORDERED – INDEPENDENT CHILDREN’S LAWYER

1. The interests of the child urgently be independently represented and it is requested that Legal Aid Queensland arrange such representation.

2. The independent children’s lawyer may peruse and/or take copies of all documents filed in these proceedings and in proceedings BRC4630/2010 upon the making of an appointment to do so with the Registry Manager of the Family Court of Australia at Brisbane.

AND IT IS FURTHER ORDERED – DIRECTOR-GENERAL, DEPARTMENT OF COMMUNITIES, CHILD SAFETY AND DISABILITY SERVICES

1. Pursuant to s 91B of the Family Law Act 1975 (Cth) the Court requests the intervention of the Director-General, Department of Communities, Child Safety and Disability Services in the proceedings in relation to the child.

2. A Registrar of the Family Court of Australia Brisbane Registry advise the Director-General of this request.

3. The Director-General may upon application to the Registrar search and take copies of the documents on the Court file in relation to these proceedings and proceedings BRC4630/2010.

AND IT IS FURTHER ORDERED

1. The mother’s application for interim orders concerning M be listed for mention before the Honourable Justice O’Reilly at 9:30am on Wednesday 8 August 2012.

2. The mother, by herself or an agent of her choice, must effect service on the father of copies of:

   a.the initiating application filed 11 July 2012 and

   b.this order

   as soon as possible.

3. The father file and serve a response to the initiating application and any affidavits upon which he may wish to rely on 8 August 2012 as soon as possible.

AND IT IS FURTHER ORDERED

1. 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 to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

NOTATION

1. Michael Emerson of Emerson Family Law is currently the independent children’s lawyer in associated proceedings BRC4630/2010 concerning the mother and it would be both convenient and expedient for him to be appointed as the independent children’s lawyer in these proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sherlock & Lusby 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 BRISBANE

FILE NUMBER: No. BRC 6186 of 2012

Ms Sherlock

Applicant

And

Mr Lusby

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. In proceedings BRC… of 2010 there has been a listing of some 3 days intended to be a trial concerning the best interests of J, G and T,  whose biological father is Mr Bell; and R, whose biological father is Mr F, but who has always known Mr Bell as her father. 

2. The mother of these 4 children, Ms Sherlock (“the mother”), has a further child M who is not a child the subject of those proceedings. 

3. Earlier today I made consent interim orders in those proceedings concerning J, G, T and R.

4. The mother today, with the assistance of the independent children’s lawyer in those proceedings, Mr Emerson, has prepared an initiating application concerning M, seeking both an interim and a final order that M live with her. 

5. In the very unusual and extremely urgent circumstances of the matter, as to which I would refer, without more, to the brief reasons for judgment I gave yesterday, and incorporate them by reference, I will by way of procedure, accept the mother’s initiating application as filed by leave in Court. 

6. I will not however at this stage consider any application for waiver of fee because in my view the mother should complete the waiver of fee form and submit it to the Registry in the usual way as indeed Mr Bell has done in the other proceedings. If I were to do otherwise would seem, in open Court, to favour one party over the other and I will not do that in relation to that administrative aspect of the Court’s business. 

7. The mother today has made also an oral application that I proceed ex parte for an urgent interim order that M live with her. 

8. Yesterday, the mother gave extremely disturbing and confronting evidence of severe family violence against her by Mr Lusby. Mr Lusby has not, as yet, had the opportunity to look at a transcript of that evidence and to have input in relation to it, to either admit it or deny it or to say it was exaggerated or otherwise. I am fully conscious of that fact.

9. On this urgent ex parte application, I can make no findings of fact whatever and certainly would not do so in the absence of hearing from Mr Lusby.  However, the tenor of the mother’s evidence yesterday was such that, in considering M’s best interests, I have formed the view without hesitation that on the interim basis until the matters the subject of the mother’s evidence can be investigated M should live with the mother.

10. It is my responsibility, on hearing an urgent application for an interim order, to consider first why I should hear it ex parte and then consider what order if any I should make in the short term.

11. In relation to proceeding ex parte, the mother gave evidence yesterday to the effect that Mr Lusby, M’s father, had said that she could never have M or take M from him and that Mr Lusby’s father, Mr Lusby Snr, had said that if the mother tried to take M that he would give her a broken nose and two black eyes.  The full extent of the mother’s evidence yesterday can be read, in detail, in the transcript if required but, as said, I can make no determination about that but only act on the interim basis having regard to the fact that such evidence has been given.

12. Whilst the mother gave evidence that Mr Lusby has never harmed M nor ever attempted to harm M she gave evidence however of some violent incidents witnessed by M.

13. Further, on a recent occasion, not one witnessed by M, the father used his fists to break windows causing shattering glass. On another occasion, in May of this year, also not witnessed by M, he was involved in a violent altercation with another man in front of one of the other children, R, concerning an axe and a shovel.

14. It is in these circumstances that I am satisfied that I should proceed ex parte for the reason that, if notice is given to Mr Lusby, there may be violence capable of harming the mother or M. 

15. I will add that last night, after an order I made, the Queensland Police Service assisted Mr Bell in taking R into his care, pursuant to my order. 

16. I am mindful of my obligations, having regard to interim decisions, as specified by the Full Court in Goode v Goode (2006) FLC 93-286 at paragraphs 81 and 82. It is clear that even in urgent interim cases and even in ex parte interim cases the legislative pathway must be followed. It is the case however that it is only the relevant matters, having regard to any particular application, which need to be considered.

17. In relation to M, it is far too early to consider the aspect of meaningful relationship with her parents.  There is, however, the clear need to consider her safety and protection in the short term. There are no other of the matters in section 60CC of which presently I am capable of making sensible observation, at this juncture, at the commencement of the proceedings.  However, it is to be hoped that Ms S, who is the family consultant in the other proceedings, will be able quickly to become involved and provide a family report concerning M and her parents and indeed, her paternal grandparents and other relevant persons, for the Court to consider on 8 August 2012, to which date I will list the matter before myself.

18. I will also appoint an independent children’s lawyer with the usual associated orders and I will add a notation that it would be extremely convenient and sensible if Mr Emerson could be the independent children’s lawyer for M, as he is the independent children’s lawyer for the other children.

19. Ms Kirkman-Scroope of Counsel, instructed by Mr Emerson in the other proceedings submitted, amicus curiae, that a section 91B order be made concerning M, as is in existence concerning the other children. I accept that submission and will make a section 91B order.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly delivered on 11 July 2012.

Associate: 

Date:  17 July 2012