Crestin and Algar and Anor

[2019] FCCA 3232

FEDERAL CIRCUIT COURT OF AUSTRALIA

CRESTIN & ALGAR & ANOR [2019] FCCA 3232

Catchwords:
FAMILY LAW – Proceedings transferred to the Family Court of Australia – order made.

Legislation

Family Law Act 1975 (Cth), ss.75, 79
Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Re W: Publication Application (1997) 137 FLR 205

Applicant: MS CRESTIN

First Respondent: MR ALGAR

Second Respondent: MR HOOKE

File Number: PAC 2862 of 2018

Judgment of: Judge Newbrun

Hearing date: 5 November 2019

Date of Last Submission: 5 November 2019

Delivered at: Parramatta

Delivered on: 18 November 2019

REPRESENTATION

Solicitors for the Applicant: Ms Lonsdale

Solicitors for the Respondents: Mr Donaldson

Solicitors for the Independent Children’s Lawyer: Mr Ng

ORDERS

1. These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta at 26 November 2019 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2862 of 2018

MS CRESTIN

Applicant

And

MR ALGAR

First Respondent

MR HOOKE

Second Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 5 November 2019 that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.

2. The subject children are 2 children; a boy, X, born … 2015, and another boy, Y, born … 2013.

3. The First Respondent father (the father) is aged 44 years.  The mother is aged 34 years.  The parties commenced cohabitation in about … 2016 with final separation being in May 2018.

4. The Second Respondent father is the biological father of Y but to date he has not engaged in the proceedings.

5. Information was provided by the parties to the Court on 5 November 2019 such that it is clear that the parenting proceedings are, inter alia, unlikely to be completed within four days of final hearing, and in any event, are complex.

6. The father will give evidence, and call 5 lay witnesses.  He also proposes to issue subpoenae to attend and give evidence to 3 health professionals and a school counsellor. The mother will give evidence and proposes to call a lay witness and her treating psychologist. There will be expert parenting related evidence from Dr A. 

Issues in dispute

1. The issues in dispute include the following:

   (1)Parenting:

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

   b)      the nature and extent of alleged family violence perpetrated by the parties towards each other, and towards the children, and the relevance of same for each party’s parenting capacity.

   c)      the parenting capacity of each party;

   d)      the views of the children;

   e)      the mental health of the children, including alleged emotional and physical abuse committed by the parties towards the children;

   f)      the mental health of the parties;

   g)      the nature and extent of Y’s cerebral palsy;

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

   i)       whether the mother has a dependency upon alcohol or abuses alcohol;

   j)       the nature and extent of the mother’s criminal history;

   k)      the extent of the mother’s smoking habit and its impact upon her health and thereby her parenting capacity;

   l)       whether either party has a anger management problem;

   m)     whether the parties are neglectful of the children whilst they are in their care;

   n)      which party the children should live and spend time with;

   o)      whether the parties should have equal shared parental responsibility or whether sole parental responsibility should be assigned to one parent;

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:

2. 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:

3. 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 the 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.

3. 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.

4. 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.

5. 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.

6. 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 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

1. 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”).

2. 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.

3. To date, there have been filed 8 subpoenae for production of documents and there are likely to be further subpoenae issued to third parties in relation to a multiplicity of issues.

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

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)(c) of the Act, the resources of this Court are not sufficient to hear and determine the proceedings in a timely fashion.

8. 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 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 children, alcohol and dependency, cerebral palsy in Y, and mental health issues, 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 family violence, alleged alcohol dependency, child disabilities, and mental health issues.

   d)Again, having regard to the issues to be determined between the parties, these proceedings are likely to take in excess of four final hearing days.

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

9. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with both parties and ICL supporting the transfer.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  18 November 2019