Fewster and Drake
[2018] FCCA 3194
•13 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FEWSTER & DRAKE | [2018] FCCA 3194 |
| Catchwords: FAMILY LAW – Parenting and property – transfer to the Family Court of Australia – where the proceedings have become more complex since transfer from the Family Court of Australia to the Federal Circuit Court of Australia. |
| Legislation: Family Law Act 1975 ss.69W, 79(9) Federal Circuit Court Rules 2001 rr.8.02, 13.03B, pt.14 |
| Cases cited: Gowrie & Gowrie [2017] FCCA 3328 |
| Applicant: | MR FEWSTER |
| Respondent: | MS DRAKE |
| File Number: | PAC 3945 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 13 July 2018 |
| Date of Last Submission: | 13 July 2018 |
| Delivered at: | Parramatta |
| Delivered on: | 13 July 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Manfre |
| Solicitors for the Respondent: | Mr O’Reily |
ORDERS
Transfer the proceedings to the Family Court of Australia sitting at Parramatta.
Request that a Registrar give attention to the directions for the conduct of the proceedings as soon as possible.
IT IS NOTED that a Judgment has been delivered with respect to the remittal of the proceedings to the Family Court of Australia and, accordingly, should those reasons be required, then a request should be made of my Associate and the reasons will be settled as soon as practicable in light of the present workload.
IT IS NOTED that publication of this judgment under the pseudonym Fewster & Drake is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3945 of 2014
| MR FEWSTER |
Applicant
And
| MS DRAKE |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today for a second Court event.
Whilst I have referred the matter as coming before this Court for the second Court event, if one were to consider the address of the matter in prior iterations before the Family Court of Australia and the Full Court of the Family Court of Australia, the matter has occupied approximately two dozen Court appearances.
The parties to the proceedings are Mr Fewster, the Applicant in the proceedings, and Ms Drake, the Respondent.
The parties were previously married.
There are two children of the relationship. Those children are the subject of parenting Orders made by consent November 2015.
The history of the matter can be set out briefly. The matter was commenced by the filing of an Application for parenting Orders. That Application was filed in the Federal Circuit Court of Australia on 20 August 2014. From a brief examination of that document, it seeks a lengthy list of Orders going to some seven or eight pages. Thus, it has not been considered in its totality.
The matter first came before the Federal Circuit Court of Australia on 29 September 2014. At that time, a Response had not been filed. A number of interim parenting Orders were made by consent and the matter adjourned with directions for the filing of a Response.
A Response was filed 13 November 2014, being the date that the matter returned for a second Court event. The Response significantly broadened the dispute and joined issues regarding the setting aside of a binding financial agreement. At that early stage and as the complexity of the matter was then apparent, the proceedings were transferred to the Family Court of Australia. The matter comes before the Court today nearly four years after it was initially transferred to the Family Court of Australia.
Whilst at commencement the proceedings involved purely issues of parenting, by the time of transfer, the matter involved pleas for relief under a broad array of categories. It is germane to observe that no issue with respect to paternity of either of the two children, now aged 11 and 9 years of age respectively, was raised at that time. Such issues are now raised.
The matter proceeded in the Family Court of Australia for some little time. The matter, in fact, occupied more than 40 Court events before Registrars and Judges including approximately 10 interim or interlocutory hearings and a defended hearing.
Prior to the proceedings commencing the parties had, on a date not presently ascertained, entered into a binding financial agreement. The binding financial agreement was ultimately the subject of an Order made by which the agreement was set aside. I am advised that the agreement was set aside substantially on grounds of hardship. Time has not permitted the Judgment to be read.
Displeased with that determination and, as is his right, Mr Fewster appealed to the Full Court of the Family Court of Australia. The Appeal was successful and, thus, Mr Fewster’s displeasure justified. It would appear, and the Court is advised that it is so, the Full Court re-exercised discretion rather than remitting the matter and the Order setting aside the financial agreement was itself set aside thus leaving the financial agreement binding upon the parties.
Following the Appeal, the balance of the matter was remitted to the Family Court of Australia in or about late 2016 and the litigation continued until a second case management hearing before a Judge on 3 October 2017. Prior to that event, the parties agreed to consent Orders with respect to parenting, which Orders were made by a Registrar in Chambers.
The matter, simplified through disposal of the plea to set aside the financial agreement and the final resolution of the parenting dispute, was transferred to this Court by Order made 3 October 2017. By that time, the matter had been before the Family Court of Australia for a period of some 3 years in total.
The Order transferring the proceedings was in the following terms:
The court notes the dispute between the parties is of extremely limited compass and if fully defended would likely take less than one day. The court orders the proceedings are transferred to the Federal Circuit Court on a date to be advised.
The matter came before this Court on the first occasion 13 November 2017. On that date, Orders were made to advance the dispute. The dispute remained accurately described, at that time, as a dispute of limited compass and essentially confined to a plea for spouse maintenance. Orders were made which required that the parties file and serve their trial material such that, upon confirmation by each of the parties that the material had been so filed, hearing dates would be allocated. The wife was to file by 24 April. The husband by 1 June. Those dates, clearly, have passed. Neither party has filed Affidavit material.
On one view, and Counsel for the husband draws the Court’s attention to Gowrie & Gowrie [2017] FCCA 3328, the Court could deal with and dispose of the proceedings by reference to rule 13.03B of the Federal Circuit Court Rules 2001. That rule provides that if a party is in default, that the Court might take one of a number of steps including staying or dismissing the whole or any part of the relief claimed by the party who is in default, (subsections (1) and (2), dealing respectively with Applicant and Respondent default). Further Orders can be made with respect to costs and the like.
In this case, and as both parties are in default, clearly that is a course of action open to the Court. However, I am conscious that rules of Court are not a ground of jurisdiction by and of themselves. They are in aid of jurisdiction. The Court’s ability to, as it were, summarily dismiss or strike out an Application or plea for relief should be exercised sparingly. I am not satisfied it should be exercised in this case particularly as there is now clearly, again, a controversy between the parents with respect to these two children and of relatively recent genesis.
Since the matter was last before the Court, the controversies between the parties have become numerous. Those additional and broad controversies have now been joined to the proceedings before this Court, returning the matter to its earlier complexity. That is so, notwithstanding, that:
a)Firstly, the matter had been advanced towards trial albeit without a specific date allocated but with all necessary directions to enable and permit that to be so. Accordingly, it is impermissible for a party to seek to join an issue. Neither party takes that point and presumably as each party seeks joinder; and,
b)Secondly, pursuant to the Court’s rules, indeed, common law requirements in civil litigation generally, leave is required to amend the relief that is sought.
These parties have taken it upon themselves to purport to join numerous issues. One of those is a parenting issue.
The Orders that were made on a final basis and by consent on 9 November 2015 would appear to have experienced an absence of compliance, at least allegedly so, and within a very short time after Orders were made. In December 2015, an Application for Contravention was filed by Mr Fewster. I have not sought to ascertain the fate of that Application nor need I for present purposes. I can only assume that it was dealt with and disposed of as it did not comprise part of the judicial controversy transferred to this Court.
It would appear common ground that since Boxing Day 2015, the children, then aged seven and nine years of age respectively, have not practiced a relationship with their father at all. An event, or events, occurred on that day, whilst the children were in the father’s care, which led to Police intervention and the children being delivered to the mother having been removed or uplifted from the father’s care by Police.
There is, thus, significant controversy between these parents in relation to various issues relating to the children’s best interests. As discussed by Forrest J in Gordon & Gordon [2015] FamCA 616, particularly paragraphs three to five thereof, the child’s best interests must be treated as the paramount consideration pursuant for all purposes including, in this case, the procedural conduct of the matter.
It is pointless to ignore the existence of controversy relating to the interests of these children so as to take the step of dismissing the Application in response to the default of the parties. Notwithstanding that the controversy might appropriately be described as impermissibly joined, the joinder has occurred on the part of both parties. Whilst the wife first amended her plea for relief, it must be observed that a third further amended Application was filed by Mr Fewster on 4 May. That Application purports to seek relief on a final and interim basis in relation to parenting.
On an interim basis, Mr Fewster seeks a suite of relief. He seeks specific Orders with respect to the practice of time between himself and the children, plural. Curiously, and notwithstanding that plea, Mr Fewster seeks an Order pursuant to section 69W of the Family Law Act 1975, declaring that he is not the father of one of the children. To aid that claim, Mr Fewster seeks an Order for paternity testing.
That issue might be suggested to be somewhat disingenuous, if not subject to issue, estoppel in light of the lengthy history of parenting proceedings in which these parties have previously engaged and the reality that the issue has never previously been raised. It is unclear whether Mr Fewster seeks to suggest some recent knowledge has come to him of which he was previously ignorant.
Mr Fewster also purports to join a child support issue seeking declarations pursuant to section 107 of the Child Support (Assessment) Act 1989 that the mother is not entitled to administrative assessment for the child whom he impugns paternity of and an Order pursuant to section 143 of the Child Support (Assessment) Act 1989 that the father recover funds that he has previously paid. With respect of those issues, the mother opposes the relief that is sought and identifies for the Court that Mr Fewster is some $20,000 in arrears of child support.
Mr Fewster has previously sought Orders with respect to the financial agreement that was the subject of prior proceedings before the Family Court of Australia and the Full Court of the Family Court of Australia. That issue had also been the subject of a second further amended Application filed on 20 March 2018 in which a specific declaration was sought by Mr Fewster that the financial agreement be declared binding.
Ms Drake, for her part, has now filed a further amended Response having previously filed, on 23 August, 2017, an amended Response. The only plea contained within the earlier amended Response, the relief sought when the matter was transferred, was a plea for lump sum spouse maintenance. The further amended Response filed 30 May 2018 dramatically expands the claim for relief.
The plea for lump sum spouse maintenance is repeated. Ms Drake seeks to set aside the financial agreement on grounds that are identified as demonstrably different to those which had previously been the subject of plea before both the Family Court of Australia and the Full Court of the Family Court of Australia. It is a fresh attack upon the same document but relying upon different grounds. Mr Fewster suggests that this is impermissible and an abuse of process. Ms Drake also seeks parenting relief although, in fairness, one might well describe that plea as responsive to that which has been sought by Mr Fewster.
Ms Drake also seeks further Orders that would permit and facilitate the obtaining of Passports for the children and overseas travel. Each party seeks costs.
The relief that is now sought from the Court does not fall within the description of less complex. The matter is now, in fact, quite complex. It involves pleas for relief in nearly every area of jurisdiction under the Family Law Act 1975 as well as relief under the Child Support (Assessment) Act 1989. The file for these proceedings spanning some four years or thereabouts of litigation is contained within a box with seven folios of file.
It is quite clear that the matter has occupied substantial and significant time of the Family Court of Australia in dealing with, what were at the time of those determinations, less complex issues than those which are now presented. The parties have between them, to date, filed 102 documents thus suggesting a degree of complexity in the proceedings accepting that each and every document filed has been necessary for the efficient conduct of the proceedings and to afford due process.
I propose to transfer the proceedings back to the Family Court of Australia.
I do so with some little trepidation. I am conscious that a transfer at this time might be seen as remitting the matter to the Family Court of Australia which had transferred the proceedings to this Court. However, the matter had initially been transferred from the Federal Circuit Court of Australia in 2014. Hence, this is the third transfer. I make clear that the matter is not “remitted”. It would be inappropriate, indeed egregious, for me to do so. I transfer the matter, at the earliest opportunity upon the issues of controversy being crystallised by the parties as that crystallisation represents a significant change in circumstances.
I do not, for one moment, suggest that I seek to second-guess, criticise or in any way cavil with the Order made by the Family Court of Australia. I accept and agree wholeheartedly with that which was undertaken, a transfer of the matter on the basis that it required a hearing of less than one day, the parties having resolved the more abundant issues between them, albeit after intervention of the Full Court of the Family Court of Australia. However, the proceedings are complex. Importantly, the parties will not need to restart. After more than 40 Court events before the Family Court of Australia, the parties can resume their significant “to the death” litigation where they left it in the Family Court of Australia only a few months ago and before their brief excursion, a day trip in the context of their litigation, to this Court.
The matter will restart in the sense that the parties have now so broadened the ambit of their dispute that it is a very different case to that which was transferred.
In transferring proceedings to the superior Court, I must have regard to rule 8.02 of the Federal Circuit Court Rules 2001.
The proceedings can be transferred at the request of the party or of the Court’s own motion. I make clear that Ms Drake seeks that the matter be returned to the Family Court of Australia.
I must have regard to each of the factors in subsection (4) which I will address briefly and separately.
Whether the proceedings are likely to involve questions of general importance such that it would be desirable for there to be a decision of the Family Court on one or more of the points in issue
There are a number of matters of questions of general importance. Questions, for example, of issue estoppel in relation to Mr Fewster’s Application for paternity testing in light of his inconsistent actions over 40 or so Court events in the Family Court of Australia at which the issue was not raised.
It is not suggested that anything new has come to light. He simply has turned his mind back to the sexual congress engaged in or not engaged in by these parties at or about the time of conception of the child. That is a significant question of importance and which will require some significant address factually and by application of legal principle.
There is the issue raised by Counsel for Mr Fewster that Ms Drake’s Application to interfere in the binding financial agreement might be considered, similarly, the subject of issue estoppel the Family Court of Australia and Full Court of the Family Court of Australia already having addressed an Application, albeit on different grounds, to set aside the financial agreement.
There are suggested to be significant issues which may well involve the exercise of accrued jurisdiction relating to what is described as “legal access” to a parcel of real estate which is the subject of the binding financial agreement. It is suggested that there is no capacity to access the property and thus the binding financial agreement is rendered, if not void, wholly impractical. If it is necessary for Conveyancing Act 1919 or Real Property Act 1900 issues to be considered, and whilst not suggesting that they are of necessity matters outside of this Court’s jurisdiction, it is to be noted that the ability of the Family Court of Australia to exercise its far more abundant power including, if necessary, accrued jurisdiction equal to Supreme Court jurisdiction, then that further supports transfer.
Whether if the proceedings are transferred they are likely to be heard and determined at less cost and more convenience
The cost will be substantial no matter which Court these proceedings are heard in. The box filed beside me suggests that the costs have already been substantial. It is a matter for these parties how much effort and resource they wish to devote to litigation. As I have described to them, they would appear to have a “taste” for litigation, there having been numerous and repeated Applications, Responses, Replies, Applications in a Case, Contraventions, Enforcement Warrants and the like throughout the history of the litigation so far.
It would not seem that the parties have taken many steps in resolution of their case away from the Court although they did, on one occasion, attend family dispute resolution with a former Judge of the Family Court of Australia from whom they would no doubt, have received great assistance. The parties have also attended, at the Court’s expense, two or more conciliation conferences, the proceedings having been before the Family Court of Australia and thus section 79(9) of the Family Law Act 1975 applying so as to require that a conciliation conference, at least singular, occur before the dispute is heard and determined. Such assistance is not obligatory in the Court and it would not have been made available to them at public expense.
The costs to the parties being equal irrespective of the Court which deals with the dispute, that leaves the issue of convenience and, perhaps, expeditious hearing. The matter will be heard more quickly in the superior court. Perhaps, ironically so, but it is a reality.
Whether the proceedings will be heard earlier in a superior Court
As indicated, the proceedings will be heard more quickly if transferred. More importantly, the proceedings will be heard by the Court which would be appropriately seized of jurisdiction. Whilst the proceedings were appropriately described as less than complex at the time of transfer to this Court, the matter had become far more complex through the actions of the parties in seeking to now join three or four additional and substantive issues.
The availability of particular procedures for the class of proceedings
This matter could not possibly, in light of the history of litigation, be appropriately managed in relation to any financial aspect of the proceedings by reference to this Court’s disclosure rules in part 14 of the Federal Circuit Court Rules 2001. Under the Federal Circuit Court Rules 2001, the parties are not permitted to engage in requests for particulars, administration of interrogatories or formal discovery without leave of the Court. Those processes apply as of right in the Family Court of Australia.
The parenting aspect of the proceedings will most assuredly benefit from the superior Court’s processes and procedures of a Child Responsive Report and an early listing before a designated Judge and commencement of a less adversarial trial process.
None of that is available in this. Accordingly, those available procedures also support transfer.
Wishes of the parties
Mr Fewster desires that the matter remain within the Federal Circuit Court of Australia. Ms Drake seeks that it be transferred. I am satisfied that a case is made out for the matter to be returned to the Family Court of Australia. This case will consume substantial resources not only of the parties but publicly funded resources of the Court.
The hearing of the matter, if no issues are resolved, will likely consume a significant period well in excess of the four days that this Court can make available. The complex legal and factual issues the parties raise should be heard in the superior Court.
For those reasons I am satisfied that the only Order that need be made by me is to transfer these proceedings to the Family Court of Australia sitting at Parramatta. I will request that a Registrar give attention to directions for the conduct of the proceedings as soon as possible.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 6 November 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Procedural Fairness
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