DELMAR & TAMBLYN

[2021] FCCA 769

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELMAR & TAMBLYN [2021] FCCA 769

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

Legislation:

Family Law Act 1975 (Cth), s.68B

Federal Circuit Court of Australia Act 1999 (Cth), s.39(4)

Federal Circuit Court Rules 2001, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MR DELMAR

Respondent: MS TAMBLYN

File Number: PAC 5001 of 2020

Judgment of: Judge Newbrun

Hearing date: 12 April 2021

Date of Last Submission: 12 April 2021

Delivered at: Parramatta

Delivered on: 12 April 2021

REPRESENTATION

Solicitors for the Applicant: Mr Lloyd, Wm Lloyd & Associates

Solicitors for the Respondent:	Ms Hayward, Stacks Champion
Solicitors for the Independent Children's Lawyer:	Mr Harb, Harb Lawyers

ORDERS

1. At the request of the ICL and the Mother and Father’s legal representatives, these proceedings are transferred to the Parramatta Registry of the Family Court of Australia.

2. The proceedings are listed for First Return in the Family Court of Australia at Parramatta on 13 May 2021 at 10:15 am.

NOTATION:

A.The Court will shortly provide its Reasons in relation to the above transfer.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5001 of 2020

MR DELMAR

Applicant

And

MS TAMBLYN

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 12 April 2021 that these parenting proceedings be transferred to the Family Court of Australia. Both parties and the Independent Children’s Lawyer (“ICL”) sought the transfer order.

2. The subject Children are aged 3 and 5 years. Presently the Children live with the Mother.

3. The Mother is aged 35 years.  The Father is aged 43 years.

4. The parties’ relationship subsisted for about 12 years.

5. An ICL has been appointed to represent the Children.

6. There are presently outstanding appellate criminal law proceedings relating to the Father and due to be heard in the Local Court in May 2021. The appeal by the Father relates to a conviction for breach of an ADVO.

7. There is a final ADVO protecting the Children and the Mother from the Father in force until 2022.

8. There is an ADVO in place for the protection of the Maternal Grandfather against the Father.

9. An allegation has been made by the Mother against the Father that he abducted the Children on about 10 March 2021.

10. The Father seeks final parenting orders that the Children live with him and spend time with the Mother. The Mother seeks final parenting orders that the Children spend no time with the Father.

11. This family has been the subject of reporting to and investigation by the police and child welfare authorities.

Issues in dispute

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

   i)The nature and extent of the Mother’s alleged adverse mental health, and its effect upon her parenting capacity.  The Father alleges that the Mother has been diagnosed with postnatal depression, anxiety and bipolar.

   ii)The parenting capacity of both parties.

   iii)Whether the Mother’s alleged adverse mental health is adequately managed.

   iv)Whether the Father perpetrated coercive and controlling family violence against the Mother and the Children during the relationship, including alleged physical violence. The Mother’s allegations in this context are extensive and cover a significant period of time. Post separation the Mother and Children resided in a refuge.

   v)Whether the Mother abuses illicit drugs and alcohol whilst the Children are in her care, and has otherwise neglected the Children whilst they were in her care.

   vi)Whether the Father abuses illicit drugs and gambles extensively.

   vii)Whether the Father has access to firearms and uses firearms.

   viii)Whether the Mother has threatened the Father in the presence and hearing of the Children.

   ix)Whether the Maternal Grandfather has abused the Children previously.

   x)Whether the Mother has sought to alienate the Children from the Father.

   xi)Whether the Mother or the Father should have sole parental responsibility for the Children.

   xii)With which party the Children should live with.

   xiii)Whether the Children should spend any time with the Father if the Court orders that the Children live with the Mother.

   xiv)The relationship between the parents and its effects on the Children.

   xv)The prospective ability of the parties to cooperatively communicate with each other in relation to the parenting of the Children.

   xvi)Whether a section 68B injunction under the Family Law Act 1975 (Cth), should be made against the Father.

   xvii)The nature and extent of any previous breach of an ADVO by the Father.

   xviii)Whether the Mother should be authorised to change the name of the Children.

   xix)Whether the Mother should be authorised to obtain passports for the Children without the written consent of the Father.

   xx)Whether the Father has failed to provide financial support to the Mother during and post their relationship.

   xxi)The nature and extent of counselling therapy undergone by the Children.

   xxii)The nature and extent of one child’s developmental delay and need for speech therapy, occupational therapy, counselling and physiotherapy, and assistance through the NDIS.

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.

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.

4. There have been numerous subpoenas to produce documents filed in the proceedings including NSW Police, B Hospital, C Hospital, D Hospital, Region E Women’s Domestic Violence Court Advocacy Service, FACS, the Father’s employer. There is likely to be voluminous subpoenaed material tendered in evidence and cross examination in relation thereto.

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

   a)The Father;

   b)The Mother;

   c)Lay witnesses; at least the Maternal Grandfather, and the Father’s sister;

   d)The Family Report Writer;

   e)The Mother’s treating mental health practitioners.

6. 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.

7. 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.

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:

   ·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 parties and ICL expressed a desire for the proceedings to be transferred to the Family Court of Australia.

   ·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.

   ·There is complexity to these proceedings, including in relation to the Mothers alleged adverse mental health and extensive allegations relating to coercive and controlling family violence and other forms of alleged family violence.

   ·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, and on the request of the parties and ICL, transfers these proceedings to the Family Court of Australia.

I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 16 April 2021