ELAMIN & ELAMIN

[2019] FCCA 2037

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELAMIN & ELAMIN [2019] FCCA 2037

Catchwords:
FAMILY LAW – Parenting 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, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MS ELAMIN

Respondent: MR ELAMIN

File Number: PAC 2068 of 2018

Judgment of: Judge Newbrun

Hearing date: 14 June 2019

Date of Last Submission: 14 June 2019

Delivered at: Parramatta

Delivered on: 25 July 2019

REPRESENTATION

Solicitors for the Applicant: Mr Harb

Solicitors for the Respondent: Ms Abdurahim

Solicitors for the Independent Children's Lawyer: Ms Shedden

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 26 June 2019 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2068 of 2018

MS ELAMIN

Applicant

And

MR ELAMIN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The within Reasons for Judgment relate to the Court’s order of 14 June 2019 to transfer these parenting proceedings to the Parramatta Registry of the Family Court of Australia, such application being supported by the Independent Children’s Lawyer. 

2. The subject children are [X] born … 2005 (14 years) and [Y] born … 2008.

3. The father is aged 48 years and the mother is aged 43 years.

4. The parties were married by Islamic law in 2003.  The parties separated in June 2014 when the father left the former matrimonial home.

5. An incident occurred in July 2014 where the mother alleged the father had been violent towards her.  The father was charged with assault and an ADVO was made to protect the mother from the father.

6. The parties are in dispute about how the children came to be in the father’s full-time care.  The mother claims she required hospitalisation for pneumonia in … 2015 and asked the father to temporarily care for the children but he retained them in his care.  The father claims that he took the children into his care in … 2015 after the child [X] disclosed that Mr A, the 14 year old son of Mr A, had been sexually abusing her during religious meetings at Mr A’s home.  It appears that the child [X] was about 10 years old at the time of the alleged abuse.

7. Family and Community Services have been involved in this family.  The father alleged that FACS has substantiated that the child [X] had been sexually abused by Mr A and, further to this, that the mother had not accepted this finding and was deemed not to be protective.

8. The father has been diagnosed with bipolar disorder.

9. The children had been raised as Muslims with the mother converting to Christianity later in the relationship.

10. Interim consent orders made by the Registrar on 14 June 2018 provided for the children to live with the father and spend time with the mother each alternative Sunday, from 9 AM to 7:30 PM. 

Issues in dispute

1. The issues in dispute include, but are not limited, to the following (the Court respectfully refers the Family Court of Australia to the detailed family report):

   a)Competing live with and time with applications by each party;

   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 parties towards each other and towards the children, and the relevance of same for each party’s parenting capacity;

   d)The outcome of the Family and Community Services intervention and the actions taken by each parent following the child [X]’s disclosure of alleged sexual abuse from Mr A (inter alia, see paragraph 30-34, 103 of the family report);

   e)The nature and extent of the father’s alleged family violence perpetrated by him towards Mr A;

   f)Whether the mother has harassed and stalked one Ms B and his previous partner, and whether or not the mother has “attacked” the father’s new partner at the children’s speech night;

   g)The parenting capacity of each party.  There are allegations, inter alia, that one child has had unexplained school absences whilst in the father’s primary care.  The mother alleges that the father’s new partner’s children exert inappropriate influence upon the children whilst in the father’s primary care;

   h)The potentially negative impact on the children of the parental conflict;

   i)The views of the children;

   j)The nature and extent of the father’s bipolar disorder and whether this has been appropriately managed historically.  Further, the father alleges that FACS was concerned about the mother’s mental state after the mother wrote a seven-page statement about the father allegedly influencing the child [X] and [X] fabricating the allegations;

   k)Whether or not the mother has met her financial obligations towards the children;

   l)Whether or not the mother wants the children to convert to Christianity which the father disagrees with;

   m)Whether or not the mother has stalked the father’s new partner and her children on Facebook and made negative comments to the father about the father’s new partner’s family members;

   n)The relevance of historical criminal convictions of the father’s new partner relating to an alleged conviction for bringing steroids into Australia;

   o)Whether there has been alienating behaviour by a parent;

   p)The most appropriate arrangements for parental responsibility for the children

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. There is likely to be significant evidence, including cross-examination, in relation to the above issues (under the heading, at the beginning of these Reasons, “Issues in Dispute”) as well as other disputed factual allegations.

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

   a)The family report writer, the court observing in particular that the family report writer was unable to make any firm recommendations regarding the children’s parenting arrangements (see paragraph 103 of the family report).  There is a significant prospect that the cross examination of the family report writer will take a considerable period of time with relevant cross examination evidence of the parties and other evidence being put before the family report writer for her comment. 

   b)The father and mother, in relation to a multiplicity of issues, as referred to above;

   c)The father’s new partner.

3. To date, the parties have filed an Affidavit each. Annexure E1 to the father’s affidavit filed 13 June 2018 is extensive.

4. The ICL has been granted leave to issue subpoenas to NSW Police, FACS and the children’s schools.

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

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

9. 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 and sexual abuse allegations (and the parties’ responses to such allegations), 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, the outcomes of a past FACS intervention in relation to alleged sexual abuse of the child [X], together with the parties’ actions taken by each of them following the child [X]’s disclosure of alleged sexual abuse, and whether or not the children’s views have been influenced by the parental conflict.  The Court respectfully refers the Family Court of Australia to the family report writer’s Evaluation indicating the complexity of these parenting proceedings. 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.

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

10. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, supported by the ICL.

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

Date: 25 July 2019