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Proceedings Transferred to the Family Court of Australia

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT Parramatta

 

SYC 648 of 2017

 

MS BALCOMBE

Applicant

 

And

 

MR GAFFEY

Respondent

 

REASONS FOR JUDGMENT

1.                      On 22 November 2019 the mother made an application to transfer these parenting proceedings to the Family Court of Australia at Parramatta, and the Court reserved its decision. The ICL did not oppose the application however the father did oppose it.

2.                      The subject child is X born … 2004. She was diagnosed with autism in 2017.  The mother told the Family Report writer that the child has also been diagnosed with ADHD.  There is a suggestion in the Family Report that the child’s GP has reported that the child has symptoms of ODD.

3.                      The child is reported to have attended upon a psychologist in primary school.

4.                      The father is aged 55 years.  The mother is aged 55 years.  The parties commenced their relationship in 1995 with final separation being in about 2004.  Thereafter the child lived with the mother and spent increasing time with the father, with her spending up to 5 nights per fortnight with him.

5.                      In May 2017, the child stopped spending significant time with the father.

6.                      Interim consent orders dated 13 November 2018 provided for the parents to approach Dr A for recommendations of a family therapist, and for the parents and/or the child to participate in family therapy, if appropriate.  Family therapy has not proceeded.

7.                      In the view of the Court, these parenting proceedings are of such complexity that they should be transferred to the Family Court of Australia.  The Court also observes that, on the mother’s estimate, these proceedings will span at least 4 days, with the parties giving oral evidence, as well as the Family Report writer, and five witnesses, four of whom are likely to be health professionals (at least a paediatrician, the GP, and the child’s clinical psychologist). 

8.                      The Court refers to the Family Report dated 10 July 2019 which confirms the complex nature of these parenting proceedings.

9.                      The Court observes that the Family Report writer stated that the child’s issue of school refusal (the issue of how to treat and manage school refusal) was beyond the scope of the assessment in the Family Report.

10.                  Further, the Court observes that the Family Report writer was unable to make a recommendation as to whether or not the child should live with the father and it was recommended that this be a matter for judicial determination.  One of the various factors in relation to this issue was the complicated nature of the child and father’s relationship.  It was ultimately recommended by the Family Report writer that the child’s living arrangements be a matter for judicial determination.

11.                  The child would not participate in observation sessions with either of the parties for the family report.

Issues in dispute

12.                  The parenting issues in dispute include the following:

a)                      the nature and extent of each parent’s relationship with each child;

b)            the parenting capacity of each party;

c)             the nature and extent of the parties co-parenting relationship;

d)            whether there has been alienating behaviour by a parent;

e)             the views of the child;

f)             the mental health of the child;

g)            the child’s participation with treatment for her mental health issues, her school attendance and school performance (including alleged refusal by the child to participate in school examinations);

h)            whether there has been significant family violence perpetrated between the parties;

i)              whether the father has physically harmed the child;

j)              which party the child should live and spend time with;

k)            whether the parties should have equal shared parental responsibility or whether sole parental responsibility should be assigned to the mother.

Relevant statutory provisions and principles

13.                  The Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249.  His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such transfers, as follows:

14.                  The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate Court in which parties should commence proceedings. It provides as follows:

15.                  If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).

(1)         International child abduction.

(2)         International relocation.

(3)         Disputes as to whether a case should be heard in Australia.

(4)         Special medical procedures (of the type such as gender reassignment and sterilisation).

(5)         Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

(6)         Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior Court.

(7)         Complex questions of jurisdiction or law.

(8)         If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.

Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

Transfers

16.                  Either the Court on its own motion or on application of a party can transfer a matter to the other Court.

17.                  There is no right of appeal from a decision as to transfer.

18.                  It is pertinent to make the following observations in relation to the protocol:

a)             The protocol speaks about the appropriate Court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either Court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;

b)            The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”

c)             Some of the criteria require a degree of subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;

d)            Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two Courts, with the Family Court undertaking work more suited to a superior Court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two Courts’ work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.

19.                  The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either Court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.

20.                  Section 39 of the Federal Circuit Court of Australia Act 1999 relevantly provides:

(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to ... the Family Court.

(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:

(a) any Rules of Court made for the purposes of subsection 40(4);

(b) whether proceedings in respect of an associated matter are pending in the Family Court;

(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and

(d) the interests of the administration of justice.

21.                  Rule 8.02 of the Federal Circuit Court Rules 2001 provides as follows:

(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.

(2) Unless the Court otherwise orders, a request for transfer must be made on or before the first Court date for the proceeding.

(3) Unless the Court otherwise orders, the request must be included in a Response or made by an Application supported by an Affidavit.

(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

(c) whether the proceeding will be heard earlier in the Court;

(d) the availability of particular procedures appropriate for the class of proceeding;

(e) the wishes of the parties.

Discussion

22.                  There is likely to be significant evidence, including cross-examination, in relation to all the above issues (under the heading, at the beginning of these Reasons, “Issues in Dispute”).

23.                  There is likely to be extensive and significant cross-examination at the final hearing of:

a)                      expert witnesses;

b)                             the father and mother, in relation to a multiplicity of issues, as referred to above;

c)                      lay witnesses: including the father’s new partner.

24.                  To date, there have been filed one subpoena for production of documents, and there are likely to be further subpoenae issued to third parties in relation to a multiplicity of issues.

25.                  There is likely to be tendered in evidence extensive documentary evidence.

26.                  It will be necessary for the Court, at the final hearing of these proceedings, to hear the competing oral submissions of the parties, based upon the likely extensive evidence before the Court.

27.                  In the above circumstances, these proceedings will likely take at least four days of final hearing.

28.                  Further, as to section 39(4)(c) of the Act, the resources of this Court are not sufficient to hear and determine the proceedings in a timely fashion. 

29.                  Further, as to section 39(4) of the Federal Circuit Court of Australia Act 1999 and Rule 8.02 of the Federal Circuit Court Rules 2001:

a)                      The proceedings are likely to be heard and determined at less cost and more convenience to the parties than if the proceedings are not transferred; in this Court, there are likely to be significant delays in appointing a four day fixture for a final hearing, compared to the Family Court of Australia.  Further, in parenting proceedings of this nature, in particular involving allegations of significant family violence both between the parents and towards a child, alienation, mental health issues relating to a child, the Family Court of Australia has greater expertise.

b)            The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.

c)             These proceedings are complex by reason, inter alia, of the significant dispute between the parties relating to mental health issues of the child, alienation, and family violence.

d)            The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.

30.                  The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with the mother seeking the transfer, consented to by the ICL and opposed by the father.

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

 

Date: 13 December 2019

Posted in: Derek Legal Blog at 15 January 20

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