Amers & Amers

[2021] FCCA 1111

FEDERAL CIRCUIT COURT OF AUSTRALIA

Amers & Amers [2021] FCCA 1111

File number:	DNC 40 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	30 April 2021
Catchwords:	FAMILY LAW – parenting – whether the matter should be transferred to the Family Court of Australia – where both parties allege the child is at risk of or has been subjected to sexual abuse – where the mother indicates that she will give an undertaking not to allow the child to come into contact with the nominated family member – where the allegations of sexual abuse against the father will not be pursued at trial – Court not satisfied the matter should be transferred to the Family Court of Australia.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	7
Date of hearing:	30 April 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Franz of Darwin Family Law
Solicitor for the Respondent:	Ms Romeo of Margaret Romeo Barrister & Solicitor

ORDERS

DNC 40 of 2020

BETWEEN:

MR AMERS

Applicant

AND:

MS AMERS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	30 APRIL 2021

THE COURT ORDERS THAT:

1.That the matter is listed for trial on 8, 9 and 10 September 2021 at 10.00am (allowing three days).

2.That each party file and serve on each other party one affidavit of evidence in chief and one affidavit of each witness complying with rule 15.28 of the Federal Circuit Court Rules 2001 intended to be relied upon at trial no later than 28 days prior to the trial.

3.That on or before 28 days prior to trial the applicant pay the setting down fee and such further daily hearing fee should the matter continue to day 3 and the respondent pay such daily hearing fee for day two as required pursuant to the Family Law (Fees) Regulation 2012.

4.That at least 48 hours prior to trial, Counsel for each party and the Independent Children’s Lawyer file and serve a Case Outline document which clearly identifies the following:

(a)a list of the material relied upon;

(b)a brief chronology listing significant events;

(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child (section 60CC factors);

(d)a list of other contentions relevant to the decision;

(e)whether the presumption of equal shared parental responsibility applies (section 61DA), and if not the contentions relied upon;

(f)a list of the considerations relevant to considerations of equal and substantial parenting time (section 65DAA);

(g)a list of other relevant considerations (including the relevant section number) (for example, sections 60CG, 61F, 65DAB and/or 65DAC); and

(h)the actual orders sought.

5.That no party shall be entitled to rely on any affidavit material not filed and served in accordance with these directions without leave of the Court.

6.That in the event that either party wishes to cross examine the family report writer at the final hearing, that party shall provide written notice to the family report writer of such intention no later than 14 days before the commencement of the hearing.

7.That in the event that no such notice is given to the family report writer or the family report writer is unavailable, the family report will be admitted into evidence without cross examination.

THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.

C.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Amers & Amers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. In this matter both counsel have raised that their respective clients hold concerns that this child may have been exposed to, or the subject of, sexual abuse or may in future be exposed to the risk of sexual abuse. 

2. In relation to the father, he raises an allegation that a nominated member of the mother’s family or extended family in Region B has a conviction for raping two children apparently aged nine and six years old. Not surprisingly, the father objects to the child coming into any contact with that person. 

3. I am told by counsel for the mother that the allegation about the nominated member of the mother’s family is admitted. Secondly, I am told that it will not be proposed that the child come into any contact with this person. Further, the mother will offer an undertaking or some similar assurance to the Court that she will prevent the child having any contact with that person.  That issue, I imagine, will be dealt with when we get to trial. 

4. The other issue is that the mother apparently raises an allegation that the child has been sexually abused by the father. The evidence for that is scarce and somewhat vague.  It has been reported to Territory Families by the mother and an investigation has ensued.  The allegation was found to be unsubstantiated.  There is no other evidence that is likely to be involved.  I was told by Ms Romeo, counsel for the mother, that she will not make a submission at trial that there is a proper basis for me to find that the child is at unacceptable risk of harm, and that there ought to be an order that the child spend no time with the father, or only supervised time with the father.

5. Protocol number 6 of the Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court states:

   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.

6. Having received the indication from Ms Romeo that she will not be making a submission of that kind, I am satisfied that protocol number 6 is not engaged. Had that matter been pursued by the mother in a way that I considered engaged the protocol, I would have transferred the matter to the Family Court. It is only on the basis of the assurance from counsel that I do not do so.

7. I will therefore make the usual trial directions. The parties are to file and serve a single trial affidavit no later than twenty-eight days before trial, outline the case no later than two days before trial. The matter is listed for trial on 8, 9 and 10 September 2021. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       24 May 2021