J and M (No.2) - [2004] FMCAfam 672

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & M (No.2)

[2004] FMCAfam 672

FAMILY LAW – Children – contact.

PRACTICE & PROCEDURE – Transfer to Family Court – two day rule in Federal Magistrates Court for family law matter – objects of the Federal Magistrates Act – Federal Magistrates Court to use streamlined procedures – Federal Magistrates Court established to deal with matters of a less complex nature normally dealt with in the Federal Court and the Family Court – intention of the legislature that the Federal Magistrates Court would develop a new culture – practitioners criticised for expanding the scope of a matter listed for one day that could not be expected to finish within two days – erroneous belief of practitioners that length and plethora of affidavits and overabundance of witnesses form part of the culture of the Federal Magistrates Court – practitioners warned of likelihood of costs orders if practice continues.

Family Law Act1975 (Cth), s.117
Federal Magistrates Act1999, ss.3(2), 39

J & M [2004] FMCAfam 127

Applicant:

A J

Respondent:

D M

File No:

PAM 3923 of 2003

Delivered on:

29 September 2004

Delivered at:

Parramatta

Hearing date:

29 September 2004

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Ryan

Solicitors for the Applicant:

Eddy & Moloney

Counsel for the Respondent:

Mr Gersbach

Solicitors for the Respondent:

Thomson Bentley & Partners

ORDERS

Pursuant to s.39 of the Federal Magistrates Act 1999, the Application is transferred to the Family Court of Australia at Parramatta AND I REQUEST THAT the application be listed before a Registrar for directions at 9:45am on Thursday 7 October 2004.
The application for a further interim hearing is refused
Costs reserved.
Transcript of reasons for decision required.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3923 of 2004

A J

Applicant

And

D M

Respondent

REASONS FOR JUDGMENT

This is an application that concerns contact, including supervised contact, and an issue about a change of name. It involves an application which was commenced in the Local Court of New South Wales at B on 3 July 2003. The mother sought orders that the children were to reside with her, that she be responsible for their day-to-day care, welfare and development and that the respondent father be allowed supervised contact with the children as agreed between the parties.
The proceedings were transferred to the Family Court by the learned Magistrate but there were interim orders made by consent where the parties agreed that the children would live with the mother and the father would have contact on Thursdays and Sundays between 12 and 3 pm. When the matter came before a Deputy Registrar in the Family Court the Deputy Registrar formed the view, appropriately in my opinion on the material before her, that these were proceedings suitable to be transferred to the Federal Magistrates Court rather than being heard in the Family Court. The Registrar ordered the parties to attend confidential counselling pursuant to s.62F(2) of the Family Law Act and listed the matter for mention on 3 November 2003. There was a counselling appointment and the mediation memorandum indicated that the parties separately had discussed the issues. The counsellor was of the view that residence was not an issue at that stage but no agreement had been reached on contact.
On 27 February 2004 the matter came before me for an interim hearing. I heard submissions from Ms Shara, solicitor for the Applicant, although not I believe the Applicant's current solicitor, and Mr Campton of counsel for the Respondent. As a result of hearing those submissions I made a decision and some eight orders and four directions and the interim decision was cited in the Court's internal database as [2004] FMCAfam 127. It was handed down on

27 February 2004. At the request of the parties' legal advisers I listed the matter for hearing on Friday, 13 August and it was estimated to take one day. Regrettably, on Friday 13 August the matter could not be reached. This was due to heavy pressure of business in the Federal Magistrates Court. The matter was adjourned for hearing to today and allocated one day. I have had the opportunity of seeing the outline of case documents prepared, thoroughly, by the legal advisers for each party. The mother has a new solicitor and that solicitor has instructed counsel. The father's solicitor has instructed counsel.
When the matter came before me this morning I expressed some concern at the significant number of affidavits that appeared. There are three affidavits of the mother, two affidavits from one B R W, two affidavits from one N C, one affidavit from a S J, one affidavit from a C J, one from a B I J and one from a G C. The respondent's affidavits include affidavits from the father and from a K A M and a C G M. The reality is that the number of witnesses in this matter on affidavit takes the matter far outside the range of a matter that could be heard in one day. In my view, it is unlikely that the evidence would be completed within two days. The Federal Magistrates Court has established a rule whereby family law matters that are expected to take two days or more than two days should normally be transferred to the Family Court. This now is clearly such a case. I am most reluctant to transfer a matter on the date when it was listed for hearing but it is quite clear that the matter is going to take well in excess of the time reasonably allowable within this Court. I cannot hear the matter tomorrow, I have other matters listed tomorrow which have a considerable degree of urgency and indeed I am schedule to leave this registry and go to another registry within a matter of a few short weeks. The earliest which I could return to hear a part heard matter would be early next year.
The regrettable fact is that this matter has grown way outside the scope of its intended hearing time. This is not the first time things have happened and regrettably I am becoming somewhat critical of some counsel who expand the scope of matters way beyond their projected times. This has the unfortunate effect of throwing the Court's listing into disarray. So many times recently I and my colleagues have had the problem of having one day or two day cases become part heard and in one case recently a one day case remains part heard after its fifth hearing day despite strong hints to the contrary. I am aware of the fact that the Federal Magistrates Act allows the Court to set time limits on cross-examination. I have been reluctant to do this in the past but I am of the view that my colleagues and I may need to set such limits given the statutory power that we have and enforce them ruthlessly.
It would be of great benefit for many practitioners to read the Federal Magistrates Act 1999. Too many practitioners come into this Court apparently oblivious of the terms of the Federal Magistrates Act let alone the Federal Magistrates Court Rules. Section 3(2) sets out the secondary objects of the Court and I quote:
The other objects of this Act are:
a) To enable the Federal Magistrates Court to operate as informally as possible in the exercise of judicial power; and
b) To enable the Federal Magistrates Court to use streamlined procedures; and
c) To encourage the use of a range of appropriate dispute resolution processes.
I turn now to the second reading speech of the Federal Magistrates Bill 1999 by the then Attorney General Darryl Williams. The then Attorney said and I quote:
The Federal Magistrates will be selected for their expertise in federal matters including family law and will deal with a range of matters of a less complex nature that are currently dealt with by the Federal and Family Courts. The Federal Magistrates Service is intended to provide a quicker, cheaper option for litigants and to ease the workload of both the Federal Court and the Family Court. When fully established it will free up the Federal and Family Courts to focus on the more complex matters that require the attention of a superior court judge.
The learned Attorney went on to say and I quote:
The government proposes that the Federal Magistrates develop a new culture with an emphasis on user friendly, streamlined procedures. This will be especially important for litigants who do not have legal representation. The Federal Magistrates Service will be as informal as possible while remaining consistent with the discharge of judicial functions.
The comment I would make is that the Federal Magistrates Court as it is usually referred to these days, has sought to develop a new culture. Regrettably, many practitioners have taken the view that length and a plethora of affidavits and an over abundance of witnesses is part of the culture in the Federal Magistrates Court. It is not. This is a matter which on all appearances should well have been able to have been heard in this Court within the time available. It has now grown alarmingly and in my view it can only be dealt with in the Family Court. I propose to transfer it to the Family Court immediately.
There is a proposal by Mr Gersbach of counsel that if the matter does go to the Family Court then it may well be suitable to go into the children's program of that Court. That may well be the case but that is a matter for the Family Court and it is not for me to make any directions as to how another court runs its business. I have every confidence that the Family Court will be perfectly able to deal with this matter without any advice from me.
Mr Gersbach of counsel for the father has asked that because of the fact the matter cannot be heard today that I should conduct an interim hearing on contact issues. Whilst I sympathise, I am not of a view that there is much to be gained by my conducting a further interim hearing. As I intend to transfer the matter to the Family Court it may well be that the appropriate officer from that Court may conduct an interim hearing and I have no doubt that the learned Judicial Registrar at Parramatta will be available at short notice. I am of the view that the resources in the Family Court are the appropriate Court to deal with this matter which has grown alarmingly. Whether that growth is necessary can be argued in another jurisdiction.
I would also make it quite clear that if matters remain in this jurisdiction and grow alarmingly I will be taking a serious note of what culpability there is in extending the length of proceedings and in my view, the appropriate remedy would be found in s.117 of the Family Law Act.
The matter is transferred to the Family Court of Australia at Parramatta. I request that it be listed before a Registrar for directions.

I could offer Thursday 7 October at 9:45am. The application for a further interim hearing in this Court is refused.
I reserve costs. I order a transcript of my reasons.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 1 October 2004