Browling and Browling and Anor (No.2)

[2019] FCCA 800

FEDERAL CIRCUIT COURT OF AUSTRALIA

BROWLING & BROWLING & ANOR (No.2) [2019] FCCA 800

Catchwords:
FAMILY LAW – Parenting and property proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39

Federal Circuit Court Rules 2001, Rule 8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MR BROWLING

First Respondent:	MS BROWLING
Second Respondent:	MR SHAW

File Number: PAC 1676 of 2018  

Judgment of: Judge Newbrun

Hearing dates: 18 February and 28 March 2019

Date of Last Submission: 28 March 2019    

Delivered at: Parramatta

Delivered on: 28 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Breeze

Solicitors for the Applicant: Godden Lawyers

Solicitors for the First Respondent: Ms Di Marco of Heras Law

Counsel for the Second Respondent: Mr Rugendyke

Solicitors for the Second Respondent: Michael Lynch Family Lawyers

Independent Children’s Lawyer: Ms Shedden as agent for Ark Law Lawyers

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, and are listed for first return on 9 April 2019 at 9:30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1676 of 2018  

MR BROWLING

Applicant

And

MS BROWLING

First Respondent

And

MR SHAW

Second Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 28 March 2019 that these parenting and property proceedings be transferred to the Family Court of Australia.  The Court made that Order having made interim parenting Orders following an interim hearing held on 18 February 2019; reference is made to the Court’s written Reasons for Judgment which should be referred to in relation to these Reasons.

2. The subject child [X] was born on … 2017.

3. The mother and father each contend that the other has serious mental health issues, such that their parenting capacity is significantly compromised. 

4. The mother suffers from Obsessive Compulsive Disorder, and she has been the subject of shoplifting charges.  The mother has treating psychologists and psychiatrist.  The mother has been assisted in childcare through the maternal grandmother.

5. The mother’s Affidavits have been supplemented by Affidavits of her uncle, her partner in Victoria, and two friends.

6. The father concedes that he committed a self harming incident in November 2017 within the parties’ household and in the presence of the child.  The father has had treatment from a psychologist.  The mother alleges against the father that he threatened to hurt himself during the relationship on certain occasions.

7. Pursuant to the Court’s interim parenting Orders made today, the parties have been directed to each obtain a report from an independent psychiatrist.

8. An Independent Children’s Lawyer has been appointed in the proceedings.  There are already voluminous subpoenaed records from various third parties before the Court.

9. In the property proceedings, a third party has been joined to the proceedings, namely the paternal grandfather, and he is seeking property related Orders.

Issues in dispute

1. The issues in the parenting dispute include the following:

   i)The nature and extent of the mother and father’s mental health, and its effect upon their parenting capacity.

   ii)Whether the mother and the father perpetrated family violence against each other during the relationship. 

   iii)Whether the parties should have equal shared parental responsibility.

   iv)With whom the child should live and spend time with.

   v)Whether the parties should be allowed to travel overseas with the child.

2. The issues in the property dispute include the following:

   i)The paternal grandfather seeks a sale of the father’s property at Property A and that from the net sale proceeds he receive $275,000 in repayment of the loan allegedly owing to him pursuant to a loan agreement dated 20 August 2008.

   ii)The parties have made competing proposals for property adjustment and there are competing contentions relating to relevant provisions and need factors.

Relevant statutory provisions and principles

1. 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:

   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

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

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

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

   ·    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;

   ·    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;”

   ·    Some of the criteria require a degree 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;

   ·    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.

   16. 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.

   RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

   17. 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 under subsection (1), the Federal Circuit 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.

   ...

   18. Rule 8.02 of the Federal Circuit Court Rules 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 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

1. Presently, the parties each seek competing Orders in relation to parenting and property, and the paternal grandfather is also a party to the proceedings.

2. 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”).

3. To date, the parties have filed numerous Affidavits in the proceedings from themselves and third parties.

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

   a)The father and the paternal grandfather;

   b)The father’s treating psychologist and psychiatrist, and independent psychiatrist;

   c)A Chapter 15 Expert psychologist or psychiatrist;

   d)The mother;

   e)The mother’s treating psychologists and psychiatrist, and independent psychiatrist;

   f)The mother’s three witnesses.

5. 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.

6. In the above circumstances, these proceedings will likely take more than four days of final hearing, and, in the view of the Court, having regard to the Protocol alone, the proceedings should be transferred.

7. 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:

   ·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.

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

   ·The father and Independent Children’s Lawyer (“ICL”) expressed a desire for the proceedings to be transferred to the Family Court of Australia.

   ·These proceedings are complex by reason of the parties’ mental health issues.

   ·Again, having regard to the issues to be determined between the parties, and other matters referred to above, these proceedings are likely to take in excess of four final hearing days;

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

8. The Court, in the exercise of its discretion, and on the request of the father and ICL, transfers these proceedings to the Family Court of Australia of its own motion. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 4 April 2019