Baker and Green and Kettle

FAMILY COURT OF AUSTRALIA

BAKER & GREEN & KETTLE

[2009] FamCA 749

FAMILY LAW – CHILD SUPPORT – Transfer

Family Law Act 1975 (Cth)

APPLICANT:

Ms Baker

APPLICANT:

Ms Green

RESPONDENT:

Mr Kettle

INDEPENDENT CHILDREN’S LAWYER:

Damian Carter

FILE NUMBER:	BRF	2360	of	2002
FILE NUMBER:	BRF	1456	of	2001

DATE DELIVERED:

24 July 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24 July 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms E, X Lawyers

THE RESPONDENT:

In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Ms E (as unpaid agent for Carter Farquar)

Orders

That all outstanding applications between the parties be transferred to the Federal Magistrates Court at Brisbane.
NOTATION: It is respectfully request that:
(a) the hearing of this matter take place with all possible expedition.
(b)that the earliest possible return date be given to this matter so that it might be managed by that court through that court’s procedures and system.
That the independent children’s lawyer be discharged.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF 2360 of 2002

MS BAKER

Applicant Mother

And

MR KETTLE

Respondent Father

FILE NUMBER: BRF 1456 of 2001

MS GREEN

Applicant Mother

And

MR KETTLE

Respondent Father

EX TEMPORE REASONS FOR JUDGMENT

After approximately five years of litigation, the Full Court of this court, of which I was a member, delivered, on 7 July 2009, reasons for judgment and orders in five separate appeals, brought in respect of two separate matters by the husband.
On 7 July 2009, in orders made by the Full Court, a number of those appeals were dismissed.
By order 1 of those orders, however, it was ordered that leave to appeal orders 14 and 15 of Bell J made on 24 November 2006 in proceedings (P) BRF 2360 of 2002 be granted, the appeal (NA2 of 2007) be allowed, and that the orders be set aside.
Order 5 of those orders provided:
That leave to appeal orders 14, 15 and 16 of the orders of the Bell J, as amended on 31 January 2007 in proceedings (P) BRF 2360 of 2002 be granted, that the appeal (NA19 of 2007) be allowed, and that the orders be set aside.
Paragraphs 6 and 7 of those orders provided, respectively, as follows:
6.That leave to appeal orders 9, 10 and 11 of the orders of the Bell J as amended on 31 January 2007, in proceedings (P) BRF 1456 of 2001 be granted, and that the appeal (NA20 of 2007) be allowed, and that the orders be set aside.
7.That leave to appeal the orders of O’Reilly J made on 7 September 2007 the proceedings (P) BRF 2360 of 2002, and (P) BRF 1456 of 2001 be granted, that the appeal (NA69 of 2007) be allowed, and that the orders be set aside.
Other appeals were, as I have indicated, dismissed. The Full Court ordered that the relevant applications - in each case for child support orders - be remitted for rehearing before a judge other than Bell J.
As the file dates for each of those matters indicate, they commenced in, respectively, 2002 and 2001.
During the course of many years of litigation in these matters, involving not only child support but other issues, a number of judges of this court have been involved. As a result, although the orders made by the Full Court are expressed to apply only in respect of Bell J, it is as a matter of practical reality, prudent to remit the matter for hearing to judges other than Bell J, O’Reilly J and Barry J.
In the case of the last-mentioned judge, Ms E, who appears as the solicitor for both mothers today, indicates that although Barry Js previous involvement in the matter has been brief, the husband has indicated on an earlier occasion that he asserts bias in respect of Barry J.
In the long, involved and difficult litigation path that these matters have already experienced, it is highly undesirable that any potential impediment to the hearing and determination of this matter should interfere with it being heard with the greatest expedition.
I was a member of the Full Court that dealt with this matter. Whilst it seems to me that there is nothing in principle, with a judge who has been a member of a three-judge bench in an appeal, that did not involve that Court making credit findings and the like for itself (see Allesch v Maunz), hearing the remitted matter, it seems to me to be an undesirable course in this case, given the tortured litigation history otherwise evident from the file.
Accordingly, it seems to me that, as a matter of practical reality, the only judge attached to this registry who is able to hear the matter is Jordan J. Jordan J is about to take a period of long service leave.
As case management judge in this registry, I am aware of the calendars applicable to all judges in the registry.
It is highly unlikely that the remitted hearing of this matter would take place before Jordan J until approximately February of next year. I emphasise that Jordan J is not on long service leave for the whole of that time, but by reason of his Honour’s long service leave, he has trials in his docket allocated to trial in the period just referred to.
As a result of the orders made by the Full Court, the only outstanding issue between the parties is child support. All other issues between the parties have been disposed of.
The matter comes before me today as the case management judge in this court so as to deal with the order for remission made by the Full Court.
I sought submissions from Ms E who appears on behalf of the each of the mothers, and from the husband, who appears for himself, as to whether the matter ought be transferred to the Federal Magistrates Court.
The husband did not argue against the transferring of the matter.
Ms E did. Her two primary submissions against the transfer relate to delay and the potential for the husband to be, as it were, litigious in the sense of using all available opportunities under the legislation to appeal any decision.
For reasons given in argument, I do not consider that there is any real merit in the second of those submissions; the potential for appeal is, in my view, the same.
The first of those submissions is, however, extremely relevant to the exercise of the discretion to transfer the proceedings to the Federal Magistrates Court.
Delay in having the matter heard is one of the matters that would always be taken into account in considering such a transfer, and a comparison between when the matter is likely to be heard in this court compared to when a matter is likely to be heard in the Federal Magistrates Court would almost always be relevant to the exercise of the discretion in respect of a transfer.
It is, in my view, a particularly acute factor in this case, given the extremely lengthy litigation history to which I have referred. The current litigation involving child support in respect of two mothers has been ongoing for approximately five years. There are three children the subject of the application, and Ms E asserts from the bar table that, in the period referred to, there has been extremely limited financial support provided by the father.
Whether that is right or not, and whether, in fact, the father ought to have provided support, or more support than he has, is a matter for the further hearing of the applications. But there is no question whatsoever that these applications need to be heard as soon as possible.
Ms E submits that it may be some weeks before the matter can be administratively excised from this court and introduced to the system in the Federal Magistrates Court, and a first return date in that court be given. She further submits that her recent experience would indicate that it might be some months before the matter is heard. She cites as an example a matter listed approximately two months to September before a Federal Magistrate she described as “the child support magistrate”, who I understand in this registry is Slack FM.
Even if that, perhaps pessimistic, scenario bears fruit in the Federal Magistrates Court, it seems to me, nevertheless, much more likely that the matter would be heard in that court before it is heard in this court.
There are currently 10 Federal Magistrates in the Brisbane registry and, by reason of the matters earlier referred to, there is but one judge in this registry who is able to hear the matter.
I should say also that, as will be plain from what I have earlier said, if the matters have to be transferred to the Federal Magistrates Court, then I would attach to any such order a request that it be given all due expedition in its listing and determination in that court.
Proceedings to transfer can occur pursuant to section 33B of the Act on the initiative of this court. I propose to transfer the matter on the initiative of this court pursuant to that section.
In doing so I have taken into account the factors enumerated at rule 11.18 of the Family Law Rules 2004. That rule lists a number of matters that the court may take into account when exercising the discretion.
I have taken account of the matters enumerated in that rule, and it seems to me that, by reference to some of the more relevant of those matters, that:
(a) the matter is likely to be heard earlier in that court.
(b)that court promulgates itself as a court in which proceedings are likely to be less costly and more convenient to the parties.
(c)that court has within it a Federal Magistrate dealing specifically with the issue of child support;
(d)as a result, one might assume that particular expertise and particular procedures appropriate to the hearing of child support cases attach to that Federal Magistrate.
I have also taken into account the financial value of the issues in the case, having been made aware of those matters whilst a member of the Full Court in the appeal.
I have also taken account of the complexity of the facts, legal issues, remedies and procedures, and nothing in those factors, in my view, preclude the Federal Magistrates Court from dealing with the matter.
In all of the circumstances it seems to me that the issue of child support is better dealt with, in the particular circumstance of this case, in that court and I transfer it accordingly.
I therefore order:
(1)that all outstanding applications between the parties be transferred to the Federal Magistrates Court at Brisbane. I will respectfully request that:
(a) the hearing of this matter take place with all possible expedition.
(b) that the earliest possible return date be given to this matter so that it might be managed by that court through that court’s procedures and system.
Ms E today appears as the unpaid agent for Mr Carter who had previously been the Independent Children’s Lawyer in respect of parenting issues between the parties.
She applies on his behalf for him to be discharged. One of the results of the appeal by the Full Court was to dismiss all appeals in respect of parenting orders. Accordingly, it seems to me entirely appropriate that the Independent Children’s Lawyer be discharged, and I order accordingly.
I record as part of my reasons that, at the outset of the proceedings today, Mr Kettle indicated that he had an Application.
Despite the fact that he appears for himself, and said that he had prepared the application “with some assistance”, when I asked him what the substance of the application was he was unable to tell me.
What was abundantly clear, however, was that the application had not been served. As he himself said, the application had “only just been prepared.”
To the extent that I was able to glean from it what Mr Kettle said of what the substance of the application might be, it seems to me that, if the application is properly brought and properly served, it is an application that can be dealt with by the Federal Magistrates Court as part of the child support proceedings in that court.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy.

Associate:

Date: 19 August 2009

[2009] FamCA 749

24 July 2009

Key Legal Topics

Areas of Law

Civil Procedure

Family Law

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Jurisdiction

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Remedies