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How Not to Do Family Litigation

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT Wollongong

 

WOC 908 of 2019

 

MR PAINTON

Applicant

 

And

 

MS PAINTON

Respondent

 

REASONS FOR JUDGMENT

 

Introduction

1. This case is about two children X who is six years old and his brother Y, four years old.  The Court must decide where the children live, what time they should spend with the other parent, and under what conditions.  The Father is the Applicant.  He is 39 years old and describes himself as the proprietor of a business.  He lives at the home of the paternal grandparents in a suburb of City A.  The Respondent Mother is 35 years old.  She currently lives with the children at an undisclosed location in the City A area.  The parents met in 2005, commenced cohabitation in 2007, married in 2010, and separated approximately mid-2019.

Background

2. At the outset the Court must record its profound sense of not being told everything by either of the parents.  This is a decision that needs to be made, but is being made in a context of factual uncertainty which has been contributed to by both parents.  It is a risk assessment exercise.  The Court will conclude that there is a risk to these children whether they live with their mother, or live with their father.  For the time being, the orders that will be made will reflect where the Court believes, doing the best it can, minimises the least risk for the children whilst maintaining a relationship with both parents.
3. There are other disturbing characteristics of this case.  Both parents adopted polarised positions in the litigation.  Both were represented by experienced Counsel, at the Interim Hearing.  Both parents are represented by competent lawyers.  Neither is presently legally aided.  Notwithstanding this, both parties submitted, at various points during the interim proceedings, that they were impecunious and could not afford drug tests in the case of the Mother, and in the case of the Father that he could not afford to pay the Mother’s drug tests.
4. Each parent makes very serious allegations about family violence allegedly perpetrated by the other.  Each parent denies that they perpetrated family violence except in the context of self-defence.  There is an ADVO against the Father.  The Mother alleges that the family violence commenced shortly after a cohabitation, and that it included sexual violence.  The Father denies this.
5. The Father alleges that the Mother has experienced mental health issues from very early in the relationship, manifested by erratic behaviour and threats of self-harm.  He further contends that at least from 2018 the Mother commenced problematic alcohol and drug use.  The Mother alleges that the Father was a user of the cocaine and methamphetamine, and in fact introduced her to methamphetamine.  The Father admits to using cocaine, but never methamphetamine.  The Mother admits drug use during the last year of the marriage, including methamphetamine use once a week in this period.  The Mother denies mental health issues, but does admit that there was at least one mental health referral/admission for her during their relationship.
6. The Mother alleges that she was the primary carer of the children, for most of their lives.  The Father disputes this characterisation, and asserts he was actively involved in their care at all relevant times.  The Mother concedes that shared care was put in place in between May and July 2019.  There were times in the post separation period when both parents unilaterally retained the children from each other.  An interesting feature of this case, however, is that notwithstanding what was clearly an acrimonious separation from mid-2019 and notwithstanding the serious allegations both make, the parents implemented an arrangement that was initially equal shared care, and then which resulted in the Father having regular and substantial time with the children.  This only appears to have ceased on the commencement of the present proceedings.
7. In the lead up to the Interim Hearing a regime of drug testing was implemented.  The evidence indicates that the Father promptly complied with all requests for him to undertake drug testing, and CDT testing.  His results were unremarkable, and where a urine test was positive, he provided an acceptable explanation based on prescription medication that he was taking at the time. 
8. The drug testing regime in relation to the Mother was, however, more problematic.  Her drug tests were not provided on time even though they were negative.  The evidence about the Mother’s drug use was contained in an affidavit in which she made a voluntary disclosure.  Notwithstanding that, she declined to provide a hair test requested by the Father. Moreover, notwithstanding an order made by this Court on 24 September 2019 that she provide a hair sample for testing purposes, she once again declined.  She contended that she could not afford the same.
9. When the matter was relisted before the Court on 8 November 2019, following the Mother’s non-compliance with the order of 24 September 2019, the Independent Children’s Lawyer who had been appointed, and appeared for the first time thought that she was able to secure funding for the Mother’s drug test but that turned out to be incorrect.

Risks to the children

10. The risks to the children appear to come from a number of different sources.  It is clear that they are exposed to a highly conflictual situation.  It is highly likely that they have been exposed to intense parental conflict during the relationship and after separation.  The Court will form the impression that it is highly likely that the children have also been exposed to conflict between the parents which has escalated to violence which was primarily, but not exclusively, perpetrated by their father, sometimes in their presence.  The Court will form the impression that it is also highly likely that the children have been present, or exposed to, periods when the Mother has dysregulated possibly because of the mental health stresses that she has experienced.  The Court will form the impression, even on the basis of this very limited assessment, that it is highly likely that the children have been exposed to periods when their mother has been under the influence of drugs, and that these periods probably included times when the Mother was responsible for their care.
11. A number of factors will inform the risk assessment and management exercise.  The focus must always be on protecting the children from harm.  Of relevance will be whether the parents have acknowledged the risks to the children, denied or minimised them.  Of further relevance will be to understand the support systems in place to protect the children from aspects of their parent’s behaviour which presents a risk of harm to them.  The nature of the risk is also important.  Some risks, perhaps including the risk of further exposing the children to conflict and family violence, can be mitigated by separating the parents, and either ensuring they have no contact with each other, or minimising the same.  Other risks, for example possibly including the risk of the Mother continuing to use drugs, or relapsing into drug use, cannot necessarily be managed in the same way.

Posted in: Derek Legal Blog at 29 January 20

Rights of Child to Enjoy Meaningful Relationship With Each Parent

FEDERAL CIRCUIT COURT

OF AUSTRALIA

AT DARWIN

 

DNC 477 of 2018

 

MR BALTHIS

Applicant

 

And

 

MS MCNAIR

Respondent

 

REASONS FOR JUDGMENT

Ex-Tempore

1. These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
2. This is a parenting case concerning X who is four years old. Her fourth birthday was in … this year. The parties are both 29 years old. They began living together in about … 2015 some three months before X was born. Up to that time both parties had been living with their parents. They separated in January 2016, that is, when X was about three months old. They had lived together for only six or seven months. This factor explains, in my view, much of the distrust each party feels for the other and their dysfunctional communication style, certainly, until recently. 
3. Illicit drug use. The mother alleges that the father is or has been a long-term user of methamphetamine. That was not in dispute. The father said that his use was “occasional”, every three or four months, and his last use was in November 2018. He received drug treatment with Modafinil in 2015 but that did not result in him ceasing to use. He also attended counselling for six sessions from November 2018 to May 2019. There have been urine tests and a hair follicle test this year with negative results. Although I am not satisfied that the father’s methamphetamine use was as sporadic as he claimed, I accept that there is no evidence that he has used this year while the process of litigation has been underway. He said to the family consultant that the existence of this litigation was the impetus for him to cease use.
4. He said that he still experiences cravings for the drug but he has learnt how to distract himself until they pass. Given that the father’s last use was about a year ago I think there is a good prospect that he will not return to use of methamphetamine. However, the family consultant in the family report expressed some concern about the father’s superficial account of the reasons for his abstinence and noted that the existence of litigation was not a permanent disincentive to resumption of use. Her prognosis could be described as “guarded”. I generally accept her views on this subject.
5. The father also alleged that the mother had used methamphetamine.  She admitted some use before the birth of the child but has denied use of methamphetamine since. The father has not sought any drug testing for her and I accept her denial. 
6. Coercive and controlling behaviour and family violence. The mother alleged that on one occasion while she and the father were living together, he punched her in the leg leaving a bruise. She does not make any other allegations of physical assault. She also alleged that in the aftermath of their separation the father threatened self-harm on multiple occasions. She annexed photographs posted by the father on social media of a knife, of a car speedometer at 150 kilometres an hour and the remark to the effect that “you know what happens next.” I accept the mother’s evidence about these matters. The mother also referred to offensive SMS messages from the father which continued until last year.
7. I do not accept that the messages necessarily constitute family violence, but they were certainly offensive and unnecessary and sometimes jealous and abusive which I acknowledge could be considered to be coercive and controlling behaviour. I accept the father’s communications have made the mother’s parenting more difficult and have been stressful for her. I also accept that the mother’s language directed to the father has on occasion adopted a high handed tone but I consider that the father’s messages to be the most objectionable. The mother also claims that the father has engaged in manipulative behaviour, inviting her to lunch or outings and kissing and hugging her in front of the child. She said she felt unable to object to this in front of the child. I generally accept what she says about this.
8. The father said that communications between the parties had significantly improved in the past few months. He asserted that he and the mother had engaged in sexual intercourse on one occasion about a year ago. She denied that and said that while communications had improved, she still found the father acted inappropriately in the manner previously described. In this context it is clear enough that the father did not want to the relationship to end and still pursued it for some time.  The mother’s attitude is quite different. She has no interest in resuming a relationship with the father. I am satisfied that the mother has found the father’s behaviour stressful and draining since their separation. I am satisfied that it has been emotionally challenging for her. I also accept that the break up was emotionally challenging for the father but for different reasons.
9. Both parents have relied on their families for support. The mother’s parents were previously employed in the Northern Territory as public servants but they have retired and moved to reside in Suburb C near Brisbane in January 2019. The mother is proposing to relocate to Suburb D, an adjacent suburb. Both parties emphasize their reliance on their parents. I accept this is the case with both of them. At the moment the mother’s parents are assisting her with rent to the extent of $100 a week.
10. According to the mother, the reason for that is that she cannot afford housing of a satisfactory standard in Darwin or City E and without this help she would be forced to rent in a rough or unsafe area of City E or take up public housing to which she has the same objection. Counsel for the father attempted to demonstrate that there was no real difference in the rents between Suburb D and City E. I do not feel able to make a finding about that but in my view it is notable that the mother’s parents feel they need to subsidise her rent. I am satisfied that they do so because they feel it is necessary to provide their daughter and grandchild with an adequate standard of housing.
11. It should be noted that the mother is also reliant on social security payments. She has no formal qualifications and a limited employment history. It should also be noted that the father pays the sum of $30.50 child support. This is garnished from his wages. I am satisfied that this is a far from equitable contribution to the cost of caring for this child. While I am not satisfied that housing in Darwin is more expensive than Brisbane, nor am I satisfied that it is not. The evidence was simply insufficient. However, I am satisfied that the mother lives under considerable financial stress and this adds to her general dissatisfaction of living in Darwin.
12. Another argument that the mother advanced for moving was that educational facilities were more easily accessed in Suburb D. There was some evidence about that but I do not accept that a course, which is the degree the mother wishes to pursue, is more accessible in Suburb D. There are two tertiary institutions, University A and the University B, which is the university she proposes to attend, with very similar facilities and both offer on campus classes, which is the mother’s preference over online classes. The mother also asserted there were better employment opportunities for her in Queensland. There was no evidence of this and I do not accept it.
13. I consider that the real motivation for the mother is that she wishes to live near her parents. She is emotionally reliant on them to some degree. I consider that the mother is somewhat emotionally immature and her independence is not fully developed. I also consider that she has found the father’s conduct difficult to deal with and she would like to get away. The family report writer was of the view at paragraph 93 of the family report that the mother did not provide any information to suggest she requires support from her parents to cope with parenting X. Expressed in such narrow terms I agree. The family report writer went on to say:

The exception to this is her experience with Mr Balthis. It is possible she may benefit from their support in responding to his behaviour toward her.

14. I am satisfied in practical terms that the mother is able to cope in Darwin. I am also satisfied that she will be happier living near her parents. This has obvious benefits for the child and also obvious disadvantages for the child unless the father moves to Brisbane too.  The family report writer was of the view that given the child’s young age it will be difficult for her to have the benefit of a meaningful relationship with her father if he remains in Darwin. I accept that.
15. This brings us to what, in my view, is the crux of the case. In any relocation case it also necessary to consider and give equal weight to the prospect that the other parent move as well, otherwise the parent who wishes to relocate, usually the mother, is effectively held hostage to, in this case, the father’s refusal to move.
16. The father gave little evidence on this subject. All the father says on this is at paragraph 118 of his trial affidavit where he said:

If Ms McNair and X relocate I also want to relocate to Brisbane. This will be difficult for me as I have no family or friends in Brisbane, and I have existing counselling support in place in Darwin.

17. The reference to “counselling support” is a reference to past counselling for methamphetamine dependency. The family report writer posed considerable weight on what she saw as a risk of a return to illicit drug use by the father. At paragraph 88 of the family report she said:

The problem Mr Balthis has experienced makes it difficult to envisage how he would move to live in Brisbane. It is possible his report he would do this was based not on wanting to be apart from X rather than an actual intent to move away from Darwin. The access Mr Balthis has to family support, and employment, have likely been crucial components in his current emotional stability and abstinence from drug use. It is likely best for him, and for X, if he remains living close to this support.

18. The father said in oral evidence that he had made no enquires about employment in Brisbane. He is a trade qualified tradesman. He was formally earning about $70,000 a year but due to the economic downturn in the Northern Territory he had lost that job and is currently employed as a tradesman earning about $40,000 a year. I have some difficulty accepting the justice of the proposition that the mother should be restrained from leaving Darwin where she is not happy because of the risk of the father resuming the use of illicit drugs is increased if he moves to Brisbane.
19. Another way of expressing this is that the mother, who has parenting capacities unquestioned and who is the primary carer of the child, is required to forgo her wish to live near her parents, who have continued to provide important emotional and financial support to her, in order to minimise the risk of the father resuming use of illicit drugs and thereby affecting the child’s best interest.
20. Emotional and financial support to her in order to minimise the risk of the father resuming use of illicit drugs and thereby affecting the child’s best interest. That proposition says something significant about the father’s parenting capacity, or lack of it. In my view, this calculus is speculative. There is no independent evidence to support the proposition that the father would be at significant risk of resumption of methamphetamine use if he were to move to Brisbane. I see no other obstacle to him moving and it may be that his employment opportunities would thereby be substantially increased.
21. The legislative pathway. The best interests of the child are determined by following the legislative pathway in part 7 of the Family Law Act 1975.  The primary consideration relevant in this case is the benefit to the child of having a meaningful relationship with both parents. This was not an issue and I am satisfied that the child would benefit from a relationship with both parents. In the context of this case it is desirable that both parents should live in the same location so the child, who is just four, can spend time with her father on a regular basis. In this case the parties have agreed that the child should spend substantial and significant time with the father if the parents are living in the same location.
22. The additional considerations are set out in section 60CC, subsection 3 of the Family Law Act 1975. The first is (a) any views expressed by the child. The child is too young to express views.
23. (b) The child is in the primary care of the mother and presently spending substantial and significant time with her father. Both parties propose to continue that arrangement if possible. The father says it should continue in Darwin. The mother says it should continue in Queensland.
24. (c) is not a significant matter in this case.
25. (ca). The mother made complaints about the father being in arrears of child support at one point. Apparently, that has been remedied. The father pays the assessed amount of child support which is garnished from his wages in the sum of $30.50 a week. 
26. (d) The likely effect of any changes in the child’s circumstances, including the likely effect of any separation from his or her parents or any other child or person. If the child moves to Queensland with her mother and the father does not move that would be detrimental to the child’s best interests. Also, such a move would interfere with the child’s relationship with the paternal grandparents, including a step grandfather, but she would move closer to the maternal grandparents. There is evidence that the child is closer to the maternal grandparents. The child has cousins in Darwin, children of the mother’s brother, who are aged three and six.
27. (e) The practical difficulty and expense of the child spending time with the father. It is obviously expensive if the mother is living in Brisbane for the child to travel to Darwin to spend time with the father. The mother proposes that she and the child will travel to Darwin six times a year in order to facilitate the child spending time with the father at the mother’s expense or, in reality, at the expense of her parents. I do not accept that that arrangement, while it may ameliorate to some degree the effect of separation of the child and the father and the inability to spend time regular time with the father, is an adequate substitute. It goes someway to facilitating the relationship, though I do not accept it is adequate in all the circumstances to ensure that the child has the benefit of a meaningful relationship with her father.
28. (f) The capacity of each of the child’s parents. The mother’s parenting capacity is not in question. I have made some remarks about the father’s capacity based on his illicit drug use and what appears to be a risk, though the degree of that risk has not been quantified in my view, of a return to illicit drug use. I consider that that detracts significantly from his parenting capacity.
29. (g) I consider that both parents are somewhat immature and both to some degree are dependent upon their parents emotionally and financially. The father continues to live with his parents, mother and stepfather, and rents a granny flat at their home.
30. (h) The mother identifies as an aboriginal person, but this was not otherwise the subject of any evidence.
31. (i) The attitude to the child and to the responsibilities of parenthood demonstrated by the parents. I accept that both parents are committed to the child and each of them is devoted to her.
32. (j) Any family violence involving the child or a member of the child’s family. I have found there has been historic family violence but I am not satisfied that this is currently an issue between the parties.
33. (k) There is no family violence order.
34. In relation to (l) and (m) there are no matters that I need to canvas under that heading.
35. As the parties have agreed on shared parental responsibility it is necessary to consider the matters in section 65DAA of the Family Law Act and, in particular, the practicality of the child spending equal or substantial and significant time with the father. As I have mentioned, the parties have agreed on the arrangements that are to apply in each of the circumstances and it is not necessary to consider equal time. In relation to substantial and significant time, I am not satisfied that it is practicable for the mother to remain living in Darwin. She is the primary carer of the child. She will be happier if she is living near her parents with a consequential benefit to the child who is also close to the maternal grandparents. I am satisfied that it is practical for the father to relocate to Brisbane for the reasons I have given.
36. I consider that the risk of him resuming illicit drug use with any consequent deleterious effect on his daughter is speculative. As I have mentioned, the parents have largely agreed on orders apart from the relocation question itself. I propose to make orders largely in line with the mother’s proposal for permitting her to relocate and if the father does not relocate providing for her to come to Darwin on six occasions next year and four occasions in the following year. I consider the father’s proposal about that which would require the mother to remain in Darwin over a period of more than seven days so that the child could spend time with him on consecutive weekends. It is impractical because it requires her to remain in Darwin for an extended period. It would seem to require her to go and stay with probably her brother or pay for private accommodation. I am not satisfied that that is practical in the circumstances.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Young

 

Date:  18 December 2019

Posted in: Derek Legal Blog at 22 January 20

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

Ruling on Ms Gobbo's Application to Be Excused From Giving Evidence

 

Below is Commissioner McMurdo's response to submissions from Mr Nathwani that Ms Gobbo has provided reasonable excuse for her not attending to give evidence before the Commission.

 

04/12/19 12.04pm

 

'Mr Nathwani, on behalf of Ms Gobbo, submitted that she has provided reasonable excuse for her not attending to give evidence before this Royal Commission.  Giving evidence is always stressful for anyone, especially where that person's conduct is central to a highly publicised Royal Commission.  I accept from the medical reports tendered on behalf of Ms Gobbo that she is in poor physical and mental health and is presently prescribed extensive medication for these various conditions. 

 

I also note that earlier this year the Commission was prepared to accept that Ms Gobbo had at that time demonstrated a reasonable excuse for not appearing before the Commission.

 

Since then, however, she has had ample time to adjust to her changed circumstances and provide more certainty around her personal life.  The opinion of her treating medical practitioners, whose expertise I accept for the purposes of today's application, suggests at times that she may be so unwell that she cannot give evidence before the Commission.  But, largely for the reasons set out in the written and oral submissions of counsel assisting, I consider those opinions do not sufficiently take into account the fact that the Commission is willing to take her evidence over short periods by telephone to accommodate her medical conditions.  The Commission is also able to control and limit any cross-examination. 

 

It is true the medical evidence relied upon by Mr Nathwani on behalf of Ms Gobbo is unchallenged but the Commission has no power to order a medical examination of Ms Gobbo, and in any case it would be difficult to do because of security concerns and the circumstances in which Ms Gobbo now finds herself.  Further, the accuracy of those opinions is based upon the accuracy of what Ms Gobbo tells her medical practitioners as to her various symptoms.  And whilst I accept that she is very unwell, I am also cognisant of the fact that in evidence before this Commission she told her handlers of her preparedness to falsely use her medical conditions to mislead the court to improperly obtain an adjournment of a case to suit her own needs.

The medical reports are not all one way. Some suggest that her medical problems may be able to be managed and several speak of her resilience.  After conversing with her, together with her lawyers and the Commission lawyers over many hours on several days earlier this year, despite the medical reports tendered on her behalf and the submissions of her counsel, and given the Commission's preparedness to accommodate her health and personal circumstances by sitting short hours, taking her evidence by telephone and at times reasonably convenient to her, I  am not presently persuaded on the balance of probabilities that she has established a reasonable excuse for failing to comply with the notice to attend. 

What I intend to do is to vary the notice to attend to provide that Ms Gobbo will give evidence by telephone commencing on Wednesday, January 29, 2020.  That will be varied and served by the Commission lawyers shortly. If you have further evidence at that point that her circumstances have changed or deteriorated, you can, of course, provide that material and renew your application.  Any material and related submissions are to be filed by 5.00 pm on 20 January 2020.'

 

Reviewed 04 December 2019

Posted in: Derek Legal Blog at 08 January 20

A Hit to Your Hip Pocket

On the 1st of July the QLD Government increased charges in a number of areas.

Registrations for your car have increased by 2.25% which is more than inflation.

Prices on tollways have increased by 1.7%, to renew your driver's license will cost more and penalties for traffic offences have increased.

For instance, being caught driving in between 20 and 30 kilometers over the speed limit will now cost $266.00 and hooning has gone to $5338.00.

Whilst one can’t avoid the statutory charges, obviously if you do not infringe against the Traffic Act, you will have more money in your pocket at the end of the year.

Posted in: Derek Legal Blog at 23 July 19

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