Dalbeck and Dalbeck

[2020] FCCA 1117

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALBECK & DALBECK [2020] FCCA 1117

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

Legislation:

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

Applicant: MR DALBECK

Respondent: MS DALBECK

File Number: PAC 2349 of 2016

Judgment of: Judge Newbrun

Hearing dates: 4 May 2020

Date of Last Submission: 4 May 2020

Delivered at: Parramatta

Orders Pronounced: 4 May 2020

Delivered on: 11 May 2020

REPRESENTATION

Counsel for the Applicant:	Mr Jackson
Solicitors for the Applicant:	Sharah & Associates Solicitors & Conveyancers
Counsel for the Respondent:	Mr Schroder
Solicitors for the Respondent	Benetatos White

Counsel for the Independent Children’s Lawyer:	Mr Ladopoulos
Solicitors for the Independent Children’s Lawyer	Sydney West Family Lawyers

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 11 May 2020 at 9:00 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2349 of 2016

MR DALBECK

Applicant

And

MS DALBECK

Respondent

REASONS FOR JUDGMENT

Introduction

1. The within Reasons for Judgment relate to this Court’s Order of 4 May 2020 that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.

2. The subject child is X 7 July 2014.

3. The mother, on 23 April 2020, filed an amended Response seeking final parenting orders, inter alia, that the mother have sole parental responsibility for the child; the child live with the mother; the child spend no time with the father; the mother have sole responsibility to obtain a passport for the child; and the mother be permitted to relocate with the child to the United States of America.

4. The father opposes the mother’s proposed relocation with the child to the USA.

5. The Court observes that the family report in this case dated 28 November 2017 does not deal with the mother’s proposed relocation with the child to the USA.

6. The court observes that the mother presently contends that a chapter 15 expert report should be obtained in relation to the mental health of both parties

Issues in dispute

1. The issues in dispute include the following:

   a)The mother’s proposed relocation with the child to the United States of America.

   b)The nature and extent of each parent’s relationship with each child;

   c)The nature and extent of alleged family violence perpetrated by the father towards the mother, and the relevance of same for his parenting capacity;

   d)The parenting capacity of each party;

   e)The mental health of the father and mother;

   f)Whether the father’s partner abuses alcohol;

   g)The nature and extent of the child’s time with the father;

   h)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:

   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. This case involves a proposed relocation application to the United States of America by the mother with the child.  Having regard to the Protocol alone, the proceedings should be transferred.

2. 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)These proceedings are complex by reason of the significant dispute between the parties relating to the mothers proposed relocation with the child to the USA.

   b)These proceedings are also complex by reason of the significant dispute between the parties relating to their respective mental health.

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

3. The Court transfers these proceedings to the Family Court of Australia, with the ICL, mother and father, by consent, seeking the transfer.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 18 May 2020