Sully and Sully

[2016] FamCA 183

FAMILY COURT OF AUSTRALIA

SULLY & SULLY [2016] FamCA 183

FAMILY LAW – INTERIM PARENTING ORDERS – inconvenience of having parenting proceedings in this court with parallel proceedings in state court under family violence protection legislation – case management

APPLICANT: Mr Sully

RESPONDENT: Ms Sully

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 2232 of 2016

DATE DELIVERED: 18 March 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 18 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A.I. Strum SC

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr M. Bartfeld QC

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms S.E. Mansfield

Orders

1. The matter be listed for a Case Assessment Conference before Registrar Sikiotis on 31 May 2016 at 9.15 am.

2. The Husband be at liberty to remove the children from the Commonwealth of Australia between 27 March 2016 and 10 April 2016, for the purposes of a holiday to Country B.

1. That:

   3.1      For the purposes of the time spent pursuant to paragraph 3.1 to 3.4 of Order One made on 18 March 2016, the wife’s father, Mr C or her sister, Ms D be in attendance.

   3.2      For the purposes of alternate time spent pursuant to paragraph 3.5 and 3.6 of Order One made on 18 March 2016, the husband employ and pay for a nanny to be in attendance during such times provided that such time will be spent with the wife irrespective of whether the husband is unable to, or chooses not to engage such nanny.

1. The parties attend upon Mr E, Psychologist on 11 April 2016 and thereafter as further arranged, for the purpose of reportable family therapy and a family report, with the husband and the wife to each pay one half of Mr E’s costs.

2. The husband and the wife undergo supervised drug screens, hair follicle testing and blood testing for alcohol, within 24 hours of a written request by the Independent Children’s Lawyer, with each of such requests to occur not more than once per week, with the test results to be provided to all parties within seven days of the test date, and that each party be responsible for their own costs of such screens and tests conducted on them.

3. The husband and wife attend upon Dr F, Psychiatrist, or such other forensic psychiatrist as may be agreed in writing between the parties, for the purpose of the psychiatrist preparing assessments in relation to their respective mental health, diagnosis and prognosis, and that each party be responsible for their own costs associated with such psychiatrist assessment.

1. Each party, by themselves, their servants and agents, be and are hereby restrained from discussing these proceedings, the family violence intervention order proceedings and/or particulars of the breakdown of the marriage with or in the presence or within the hearing of the children, or allowing the children to remain in the presence of or within the hearing of any third party discussing same, or showing to, or leaving accessible to the children any documents, whether in hard copy or electronic format, connected with these proceedings, the family violence intervention order proceedings and/or containing particulars of the breakdown of the marriage.

1. Forthwith upon the Interim Intervention Order made by the Magistrates’ Court of Victoria on 10 March 2016 in Case Nr. … ceasing to be in effect, the husband and wife each, by themselves and/or their agents, be, and are hereby, restrained by injunction from:

   8.1      committing family violence against the other (“family violence” to be interpreted as broadly as possible within the definitions thereof contained in the Family Law Act 1975 (Cth) and the Family Violence Protection Act 2008 (Vic)); and

   8.2      attempting to locate the other, follow the other, or keep the other under surveillance.

2. The husband pack into boxes, and make available for collection on behalf of the wife from the former matrimonial home at G Street, Suburb H, at 10.00 a.m. on Thursday, 24 March 2016, the following items:

   9.1      the wife’s ski clothing and equipment;

   9.2      the wife’s books;

   9.3      the wife’s photo albums (including those from her childhood); and

   9.4      the contents of her desk, including items on her desk and all items in the desk.

3. Forthwith upon the Interim Intervention Order made by the Magistrates’ Court of Victoria on 10 March 2016 in Case Nr. … ceasing to be in effect, the husband, by himself and/or his agents, be, and is hereby, retrained by injunction from going to, or remaining within two hundred (200) metres of I Street, Suburb H, or any other place where the wife may live from time to time (the wife to notify the husband of any change of address within twenty four (24) hours).

4. Within 42 days each party file a Financial Statement in relation to the Wife’s application for property settlement contained in her Response to an Application for Final Orders filed by leave on 17 March 2016.

1. Reserve to both parties and the Independent Children’s Lawyer general liberty to apply.

1. Certify for Counsel including Senior Counsel.

IT IS ORDERED THAT:

1. All extant interim parenting applications be otherwise dismissed.

1. The parents agree that they will be equally responsible for the reasonable costs and disbursements of the Independent Children’s Lawyer and for that purpose Victoria Legal Aid should render periodic accounts to the practitioners for the parties for payment by the parties pursuant to paragraph 4 of the Order made on 17 March 2016.

AND IT IS NOTED:

A.Paragraph 3 of this Order is agreed to by the wife with a denial of the need therefor.

B.The husband will encourage all the children, and J in particular, to spend time with their mother in accordance with this order or any subsequent agreement.

C.The husband and wife each consent to paragraph 8 of this Order hereof without admission for the necessity for same.

D.The husband consents to order 10 hereof without admission for the necessity for same.

E.The wife agrees to withdraw her Application for an Intervention Order at the Suburb K Magistrates’ Court in Case Nr. … on Monday, 21 March 2016.

F.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 the 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 Sully & Sully 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 2232 of 2016

Mr Sully

Applicant

And

Ms Sully

Respondent

And

INDEPENDENT CHILDREN”S LAWYER

REASONS FOR JUDGMENT

ex tempore

1. This matter came before me yesterday as an urgent application for parenting orders in relation to the four boys aged 14, 12, 10 and 8 years. The parents separated on Christmas Day last year after a marriage of 17 years.

2. It is common ground that after separation the children were for some time in the former matrimonial home with the father. That is the property at G Street, Suburb H. On 30 December 2015 the mother entered an interstate drug and alcohol rehabilitation centre for a period of some three and a half weeks. She returned to Melbourne about a week before the commencement of the boys’ school year but did not return to the former matrimonial home.

3. The father deposes to the parents having drawn up a parenting plan on 3 February 2016. The mother deposes to not admitting many of the father’s assertions and says that the plan does not represent her freely given agreement.  The plan contemplates the boys residing primarily with the father and spending time with the mother. The parents agreed to attend themselves, and presumably with the children, upon Dr L for therapy

4. There was an incident on 29 February 2016 during which the mother removed the two younger children from school, being, during the school day without the consent or knowledge of the father. The father deposes to this being contrary to his notification to the mother that he would collect the boys at the end of the school day. For whatever reason the mother attended school prior to the end of the school day and removed the children. On the father’s case the boys’ departure was upsetting to one or both of the boys.  It is not clear to me, but may ultimately be relevant, as to whether this incident was witnessed by the other students at the school.  The father deposes to his belief that the principal saw N (10) crying, and that both N and O (8) told the mother and the principal (Ms P) that they did not want to accompany the mother.

5. The mother filed an application for an interim intervention order in the Magistrates’ Court at Suburb K on 4 March 2016.  She named as affected family members herself and more significantly each of the four boys.  At that stage the mother had in her care only the youngest of the four boys, O, whom she had refused to return to the father’s household. O’s siblings were still residing in the former matrimonial home with the father. The application, which was signed by the mother on 4 March 2016, inter alia sought an order that the father be prohibited from certain actions and not “approach or remain within 5 metres of a protected person”.  For the purpose of the mother’s application and the interim order subsequently obtained by the mother, each of the parents’ four sons, including the three in the father’s care, were “a protected person”.

6. On 10 March 2016 the mother’s application under the Magistrates’ Court Family Violence Protection Act 2008 proceeded ex parte. The mother relied upon incidents briefly outlined in the following terms:[1]

   Tuesday 1^st March 3.15pm I picked my 8 year old [O] up from school Resp saw my car leave and he followed us in his car.  I got a red light and he pulled up next to us.  He threw a rock or something of that nature which hit my drivers (sic) side window, frightened the life out of me and he started waving at [O]. I ignored him and drove off.  I rang [Suburb K] Police Station straight away.  Monday 29^th Feb 8.30am I dropped [N] & [O] at school and I told them I would be there to pick them up. He started verbally abusing me in front of [N] who ran off crying.  He said “If you fucking think you can fucking take these kids off me, you’ve got another thing coming”. 26^th Dec 2015 5am [Mr Sully] took the children from their tent and drove them to Melbourne drunk after just getting his licence back for DUI.  Drove hysterically and showed children a video of pornographic nature of myself who at the time was inebriated and had never done anything like that before. 15^th Dec 2015 we were away on my Dad’s boat.  I was in bed and he was drunk.  He came down and flipped me over onto my back and sat on me and held me down and started punching me.

   [1] Father’s Initiating Application filed 16 March 2016, Annexure “Application and Summons for an Intervention Order” for hearing 1/4/2016.

1. An interim intervention order was made ex parte the father in the terms sought by the mother. The date for hearing of the application was expressed to be 1 April 2016 at 9:30 am.

2. The impact of the interim intervention order is to prohibit the father from approaching, or remaining, within five metres of any of the three children of whom he had care, or indeed their brother, who was in the care of the mother.  The father deposes that, upon being given notice of the order, he arranged for his parents to take care of the children and proceeded to instruct solicitors to obtain parenting orders in this court to regulate parenting arrangements for all four boys. The interim intervention order is expressed so as to permit the father to, inter alia, “do anything that is permitted by a Family Law Act Order, a Child Protection Order or a written agreement about child arrangements”.

3. The father’s parenting application was filed two days ago, on 16 March 2016, and the matter brought to court yesterday. An independent children’s lawyer was appointed immediately and later attended court and briefed counsel to appear. Negotiations ensued for the day.

10.By community standards the parties are wealthy.  I am informed from the bar table by counsel for the wife — although there was no comment from the husband — that the asset pool in this matter is something in the vicinity of $100 million.  Fortunately, no doubt through the wise guidance of their senior counsel, Mr Bartfeld and Mr Strum, and the independent children’s lawyer and her counsel, Ms Mansfield, the parties have agreed to some interim parenting arrangements so that the boys will be reunited. They will at this point in time reside with the father and they will see their mother regularly. 

11.There is also provision for the parents to attend upon Mr E, who is a clinical psychologist, for the purpose of reportable family therapy.  There will be a psychiatric assessment of each of the parties by Dr F, or such other forensic psychiatrist as is agreed to in writing between the parties, if Dr F is not available. Neither parent may be assessed as having a diagnosable psychiatric condition but an assessment by Dr F is likely to expand the breadth of knowledge and understanding of each parent, their individual characteristics and his or her behaviour.  Regardless of whether either or both parents fall within the clinically relevant range, the psychiatric assessment should produce some further insight into the extent to which each parent contributes or reacts to the issues set out in the affidavit evidence and the environment in which the four sons find themselves growing up.    

12.The father was able to obtain an abridged return date of Monday, 21 March 2016, as an alternative return date for the intervention proceedings to return to court (in lieu of 1 April). Indeed the parties will go to the Suburb K Magistrates’ Court on Monday for the next stage of the mother’s application for an intervention order which will, no doubt, be strenuously opposed by the father.

13.I have raised with the parties more than once in the last two days that this court has injunctive powers for the protection of persons. Orders obtained under Part VII of the Family Law Act 1975 could, on one view, replace those which are available under State legislation and which are currently extant.

14.I am not asked to, and nor do I, prohibit either party from proceeding in the State courts. Nor do I assume that the relief either may seek will be granted.  It will be a matter for the learned magistrate. However, it is unfortunate that the litigation straddles two courts.

15.This matter is likely to qualify for some case management resources in this court. I do not anticipate that it would be difficult to return to court in the event that the parties need to do so at fairly short notice. I would, for instance, entertain any application the parties wish to make (by consent) for injunctions or orders in this court which would obviate the need for proceedings on Monday 21 March 2016 at Suburb K.

16.The orders, which the parties ask me to make today, recite that the mother agrees “this day to cause the children to be forthwith from her application and summons for an intervention order filed 4 March 2016 and the interim intervention order made on 10 March 2016”.  The wife’s agreement in these terms highlights some of the less than satisfactory consequences of parallel litigation in two courts across the Federal and State jurisdiction.

17.The wife agreed to a certain course but I have been addressed that she cannot implement her intentions. Furthermore:

a.I do not know what power the wife will have to retrospectively remove the four children of the marriage from the interim intervention order made on 10 March 2016, which will presumably expire on Monday 21 March 2016;

b.I am informed that the wife cannot effect the amendment to her application remotely.  She has to attend court to do it. However, she says that she cannot attend today because she needs to have a conference with counsel who will appear on her behalf on Monday at Suburb K.

18.What has been “agreed” between the parties, for today’s purposes, is that the interim intervention order is to be construed subject to the order which I make today taking into account paragraph 7 of the interim intervention order (see paragraph 8 of these reasons). This is a creative but, with respect, cumbersome approach the necessity for which arises because this family conducts proceedings in two courts about overlapping controversies which, on what I have heard to date, appears unnecessary when parents are as highly resourced and as wisely advised as the mother and father in this case.

ADDENDUM

Paragraphs 8 to 10 (inclusive) of the orders and notations C to E (inclusive), were added by consent, on the parties’ mutual oral application subsequent to these reasons being dictated. 

I certify that the preceding eighteen (18) paragraphs and addendum are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 18 March 2016.

Legal Associate: 

Date:  29 March 2016