KALANT & JORDAIN

[2019] FCCA 3070

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALANT & JORDAIN [2019] FCCA 3070

Catchwords:
FAMILY LAW – Parenting – conduct of parents – unacceptable risk – transfer to the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth), ss.68R, 69ZL, 69ZN

Children and Young Persons (Care and Protection) Act 1988 (NSW)

Federal Circuit Court Rules 2001 (Cth) r.8.02

Cases cited:

B & B (1993) FLC 92-357

M & M (1998) 166 CLR 69

Harris v Caladine (1991) 172 CLR 84

Aon Risk Services v Australian National University [2009] HCA 27

Applicant: MR KALANT

Respondent: MS JORDAIN

File Number: PAC 2727 of 2015

Judgment of: Judge Harman

Hearing date: 21 August 2019

Date of Last Submission: 21 August 2019

Delivered at: Canberra

Delivered on: 21 August 2019

REPRESENTATION

Counsel for the Applicant: Mr D. Bainbridge

Solicitors for the Applicant: Bainbridge Legal

Counsel for the Respondent: Ms Haughton

Solicitors for the Respondent: Campbell & Co

ORDERS

1. The proceedings are transferred to the Family Court of Australia sitting at Canberra.

2. Request that the file together with these reasons once settled be transmitted to Justice Gill as soon as possible so that his Honour might give consideration as to the appropriate case management of the proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2727 of 2015

MR KALANT

Applicant

And

MS JORDAIN

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court today as a consequence of a number of applications.

2. The proceedings relate to future care arrangements for a young child X, born … 2013.  It is not possible, in the limited time available to deal with the proceedings today, to ascertain the complete history of proceedings between the parties save and except to observe that they are lengthy, conducted over a significant period of young X’s life and the file presently occupies three large archive boxes. 

3. The applications that are before the Court today comprise:

   a)An application for contravention filed 10 April 2019;

   b)An application filed 14 May, 2019;

   c)A further application for contravention filed 21 June 2018;

   d)An Initiating Application filed by the father, 9 July 2018;

   e)An Application in a Case by the father filed 2 August 2019; and,

   f)An Application in a Case filed by the mother, 7 August 2019. 

History of proceedings

1. As indicated above, it is not possible to seek to ascertain significant facts regarding the past history of the proceedings. It is sufficient to observe, for the purposes of these reasons, which are delivered in short form pursuant to the section 69ZL Family Law Act 1975[1], that:

   a)The parties were involved in substantial proceedings which concluded with a hearing before a judge of this court.  That hearing occupied some six days in 2017 and 2018. The judgment in relation to those proceedings is annexed to a substantial affidavit by the father filed on 5 July 2019.  Those proceedings also dealt with issues of property adjustment, but nothing turns upon it;

   b)The judgment delivered at the conclusion of those proceedings records that the proceedings, at the date of conclusion of the last tranche of proceedings, had been on-foot for more than three years. On that basis, noting that the parties separated in February 2016, it would seem that these parties have been enmeshed in significant conflict and litigation since their separation and for half of their child’s life. 

   [1] Family Law Act 1975 (Cth) s 69ZL.

2. The orders that were made in the prior tranche of proceedings resulted in an allocation of sole parental responsibility to the mother, for young X to live with her mother and for X to spend periods of time with the father.  Those periods of time are not insubstantial, but they have, since the hearing, broken down. It would seem that they broke down relatively soon after the delivery of judgment.

3. To complicate matters, the parties live in separate states or territories. The mother lives in the ACT. The father lives in Sydney.

4. The past proceedings also resulted in injunctive orders being made, both positive and mandatory, compelling the mother to engage with a nominated psychologist and undertake psychological counselling and restraining certain reports to or engagement with child welfare agencies by the mother.

5. Since the conclusion of the last tranche of litigation, a report has been made, (although I make clear, not at the mother’s behest, as is put in submissions, but as a consequence of a statement made by the child to a member of staff at the child’s school), to the ACT Child Welfare Agency.

6. The matter also suffers the difficulty, if it might be so described, and arising as a consequence of the parties’ residence in separate states or territories, that jurisdictionally, investigation and prosecution of the complaint now raised is made difficult. As the child lives in the ACT, the child welfare agency of that territory is responsible for investigation of the complaint, or so it would seem.

7. ACT or federal police have requested that the mother present the child for interview. The mother is, of course, restrained from doing so. Thus, her Application in a Case seeks to be relieved, at least temporarily, from the injunctive restraints imposed by the prior orders. In any event, Police and Child Welfare Agencies have powers to investigate which do not require the consent or even, necessarily involve, the mother.

8. The father lives in Sydney. The suggested events have led to New South Wales Police prosecuting an application for an apprehended domestic violence order or personal protection order in relation to the child before a Local Court in NSW. That is consequent upon the allegations suggested have occurred at the father’s home in NSW. The allegations are being investigated by the ACT Child Welfare Agency and ACT police, who are now investigating the matter on a different basis.

9. The ALRCs recommendations,[2] to revert to a state or territory-based jurisdiction to enable all issues to be dealt with in the same court, would have some utility for this family, fractured and subject to chronic and toxic conflict and litigation as they are. Until such steps are taken, however, a number of jurisdictional difficulties will continue to arise for matters such as this.

   [2] Family Law in the Future ALRC March 2019

10. The father alleges that the child is at substantial risk if remaining in the mother’s care. That is as a consequence of what he alleges to be emotional or psychological abuse of the child through repeated allegations and presentations with the child which the father suggests are false and manufactured.

11. The mother alleges that the child is at substantial risk as a consequence of the father’s suggested actions or behaviours towards the child.

12. The time arrangements between the father and the child have now ceased as the consequence of an order made pursuant to section 68R of the Family Law Act 1975[3] by the magistrate addressing the domestic violence complaint.  That order was made at the same time that an interim order was made. 

    [3] Family Law Act 1975 (Cth) s 68R

13. As is observed by counsel for the father, no charges are preferred against the father.  Of course, that does not obviate against the need for all of the evidence in those proceedings to be fully and properly presented and tested subject to the difficulties that arise from the injunction previously issued by this Court and which precludes the mother presenting the child to police or a child welfare agency for interview. 

14. It is possible, although the legislation has not been consulted, that the ACT child protection legislation would permit, as does the NSW Children and Young Persons (Care and Protection) Act1998[4], Departmental officers, if not police, to proceed to interview the child and take such steps as they consider necessary without the need for consent of either parent or necessarily even their knowledge.

    [4] Children and Young Persons (Care and Protection) Act 1988 (NSW).

15. All of the above matters are rendered vastly more complex, as though the complexity already presenting for this family is not sufficient, by an extant appeal, from the substantive orders made at the conclusion of the last tranche of litigation. That appeal is pending before the Full Court of the Family Court. That appeal was initiated by the father. It has been heard, but judgment is yet to be delivered. I make clear no criticism is raised of the Full Court for any delay, such as it may be. It is unclear the date of hearing of the appeal. The matter is clearly complex. The appeal has involved consideration of the first instance judgment of 167 pages, and, no doubt, each of the parties has presented detailed submissions. 

16. In the above context, the Court is asked, by the father, to list certain of the applications for hearing. That is resisted on the mother’s part, and with some force and validity, noting that the appeal is extant.

17. The result of the appeal may render the father’s applications, or some of them, nugatory. If the matter is remitted for rehearing of, effectively, the same application that is presently before the Court – although I do not suggest that the factual matrix supporting it is suggested to be the same – then the matter would be returned. 

18. What is glaringly obvious with respect to the matter are a number of things. Firstly, the matter is vastly complex, factually and psychologically. These parties would appear to be so entrenched within their litigation that it is unlikely that any intervention other than a judicial determination of their dispute, will conclude their business before the Court, for however long that might be.

19. Secondly, the impact of litigation upon this child, if one had even cursory regard to the section 69ZN[5] principles, must be extreme. This child has been raised, to date, in a cauldron of conflict and hostility. There is clearly no trust or goodwill between these parents, perhaps founded in good reason if any of the allegations either raises are supported by the evidence and found to be so.

    [5] Family Law Act 1975 (Cth) s 69ZN.

20. Thirdly and finally, for the purpose of this determination, there are and continue to be significant allegations as to sexual impropriety, at the very least, towards the child and, consequent upon the determination as to whether those allegations are found, by reference to authorities such as B & B[6] and M & M[7], to have basis, potentially an unacceptable risk.  There will need to be consideration of unacceptable risk on a number of bases including a consideration of whether an unacceptable risk is founded through the making of allegations without factual support or with factual support.

    [6] B & B (1993) FLC 92-357.

    [7] M & M (1998) 166 CLR 69.

21. In those circumstances, I propose to transfer the proceedings to the Family Court of Australia. 

22. I must have regard to each of the factors in rule 8.02[8].  I will address each briefly:

Whether the proceedings are likely to involve questions of general importance such that it is desirable for there to be a decision of the Family court on one or more of the points

[8] Federal Circuit Court Rules 2001 (Cth) r 8.02.

1. I am satisfied that is overwhelmingly so. There are significant issues regarding unacceptable risk, interpretation of past orders, the behaviour of the parties each towards the other, their compliance with orders, (whether by their terms or spirit) and, most importantly, the impact upon this child of the complex matrix of fact that the parties now present. 

2. The ability to deal with and consider each of the five extant applications presently before the Court, let alone further complexity that might arise through the disposal of the appeal, is such that there are both legal and factual issues of gravity and moment that warrant the attention of the superior court.  That is, if nothing else, connected with the toxicity of the conflict between these parties.

Whether, if the proceedings are transferred, they are likely to be heard and determined at less cost and more convenience to the parties

1. Bearing in mind the three large archive boxes that represent a history of this family since separation, possibly since their relationship commenced, it is improbable that any step taken by any court would ameliorate against significant cost or render determination of the proceedings more convenient. Indeed, terms such as “limiting cost” are, to a large extent, by reference to, for example, Kirby J’s discussion of the broad considerations of “cost” beyond mere financial considerations, ashes in the mouths of this Court and the parties.

2. These parties would appear to be set on a path, deliberately, consciously or otherwise, to mutually assured destruction of themselves. That would be bad enough. But they would seek, it would seem, and it may well be, if findings are made supporting one or other of their positions, that such criticism might be viewed as harsh, taking along young X as the collateral damage to that mutually assured destruction.

Whether the proceedings will be heard earlier in one Court or the other

1. The chronic delays that attend both Courts at present are well known. Indeed, they have been known since 1991 when Brennan J opined in Harris v Caladine (1991) 172 CLR 84, 112:[9]

   It seems the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act … It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.

   [9] And as noted by the Australian Law Reform Commission in their March, 2019 report “Family Law in the Future” at paragraph 1.8 page 32

2. Transfer is likely to make no difference, whatsoever, to these litigants and the time in which their business will be concluded. There are, however, other considerations that are more important.

3. It must be observed that the Federal Circuit Court of Australia is intended to hear disputes that are, within the context of existing protocols, but perhaps erroneously described as, “less complex”. As research has overwhelmingly demonstrated,[10] the workload of this Court, in light of the prevalence of allegations of violence, child abuse, mental health concerns, drug and alcohol abuse and other antisocial behaviour or disorders, is significant.  It is impossible to distinguish between the workload of this Court and the Family Court as regards the factual complexity of parenting cases.

   [10] See Harman “the Prevalence of allegations of family violence in proceedings before the Federal Circuit Court of Australia” Family Law Review 2017 Volume 7/1 pages 3-19

4. Thus, the arbitrary yardstick that has been adopted over time to determine “complexity” is how long the hearing will take. There is a ready and convenient means by which one can predict that this case will most assuredly exceed the four-day limit which is generally imposed with respect to hearings before this Court – the last hearing. That hearing took six days. Matters were, at that time, complex but less complex than now. The hearing of these proceedings, one might readily predict, would exceed four days. Indeed, it is probable that it will exceed 10 days. 

5. The proceedings could not be heard any earlier in either Court. But the consideration which might also be addressed, as regards delay, is the impact upon other court users. By reference to authorities such as Aon Risk Services & ANU[11], I am conscious that I must have regard to the needs and interests of the community in allocating this Court’s resources. 

   [11] Aon Risk Services v Australian National University [2009] HCA 27.

6. At present, the docket in which this matter resides is what is often referred to as “a ghost docket”. There is no judge seized of day-to-day responsibility for the case.  The matters on this docket are addressed by visiting judges over approximately 10 weeks per year allocated to what would otherwise be a full year of hearing. That imposes burdens upon the two extraordinarily hard-working judges left permanently in this registry.

7. Listing this matter for trial also means that other matters upon this ghost docket will be disadvantaged. This matter being retained in this jurisdiction, notwithstanding the clear reality that its hearing will require a substantial fixture or fixtures, at least as lengthy as occurred on the last occasion, will disadvantage and delay the hearing of all matters before this registry of the Federal Circuit Court and negatively impact upon the two unfairly overburdened judges of this Registry.

8. That being so, the hearing of this matter would not only be significantly delayed, it is unlikely, if the matter remained in this Court, that it could be heard before 2021/22. It would also significantly delay dozens of other hearings which would not require a fixture of the length of this case being, as already indicated, in all probability, 10 days or more.

The availability of particular procedures

1. The active case management of the case by the Family Court would be of significant benefit to these parties.

2. It is trite to observe that everything that has been done by this Court, to date, to seek to triage the earlier tranche of proceedings, to limit issues in dispute and to render the matter less complex, has failed through no fault of or absent substantial efforts by judicial officers, but through, if nothing else – and there are many other possible contributors – a lack of resources.

3. Matters in this Court are individually managed by a trial judge. This matter resides on the docket of a phantom judge. Thus, the level of case management that could be brought by numerous visiting judges or loading further burden on already overburdened Canberra judges, is onerous. Each visiting judge would have a go at trying to understand, as best as can be done for a matter that resides in three large archive boxes, what the real issues are.

4. This Court does not have the assistance, in case management, of registrars or any significant input or assistance of family consultants other than forensic purposes. That is not to say that the Family Court is much or any better off.

5. This case will clearly require a part 15 intervention and may require some form of psychiatric or psychological assessment, if not of the parties, certainly young X, who must have been substantially impacted by the matters that the parties seek to agitate.

6. The Family Court has available a single hard-working judge. That judge, whilst extremely competent, is no better resourced. There is already a substantial workload for that judge. I am loath to add to it.

7. However, the procedures available, active case management by a judge, family consultant and registrar, the ability to address the matter through a Magellan or LAT list and similar matters, mean that the procedures of that Court are abundantly appropriate for this case and far more appropriate and of assistance to the determination of the case, distillation of issues and, fundamentally and most importantly, the child’s interests and protection from the impact of litigation.

The wishes of the parties

1. Neither party opposes transfer although it would be erroneous to suggest it is sought by either. The transfer is of the Court’s own motion. 

Conclusion

1. For those reasons, however, I am satisfied that these proceedings must be transferred to the Family Court. 

2. I am also conscious, as the Federal Circuit Court Rules require, that consideration should be given, at the earliest possible time, to transfer of proceedings. That is to ensure consistency of case management and minimisation of inconvenience for all concerned.

1. It could not be suggested that the matter is transferred at an early stage in the history of litigation between these parties.  We are now some four years into that litigation. But the earlier proceedings were concluded by a judgment delivered by a judge of this Court.  It is only the appeal and the pending delivery of judgment in that appeal that keeps the substantive issue alive. Certainly, the earlier application has been removed from this Court’s list of cases awaiting hearing.

2. The applications that are before the Court today are transferred on what is essentially the second return date of the proceedings.

3. On the first return date of the proceedings, there were two applications before the Court, the first in time being an application for contravention filed 10 April 2019.  Those applications were adjourned, rather than listed for hearing, purely to allow delivery of judgment by the Full Court. Again, no criticism is raised or any suggestion made that the modest delay that has occurred is in any way inappropriate. The matter and the appeal therefrom involve significant complexities.

4. The matter now returns on the second occasion with not just two applications but six, a further four applications having been filed during the adjournment. It is likely, having regard to the past history of litigation that by conclusion of the proceedings, there will have been further applications, interim, interlocutory or otherwise and the matter continuing upon a spiralling path towards, as I have described, mutual self-destruction.

5. Accordingly, the matter is effectively transferred on the first return date of four of the six applications.  Thus, I do not feel that the criticisms that would arise, for example, from the PwC report, prepared in relation to proposed merger of the Family and Federal Circuit Courts and highlighting disadvantages that can arise upon the transfer of matters between the two Courts, would apply in this case.

6. The matter is not, to adopt the language of that report, “bounced” between Courts. It is simply that this Court has done all that it can and the matter is, in accordance with the protocols and memoranda of understanding between them, transferred to the Court in which the matter belongs. 

7. There is no likelihood that anything useful or desirable can be added to the lives of these parties or the child by anything that this Court has available to it. It is improbable that could be done by any Court. But the Family Court has greater ability, through its processes, although I do not suggest the resources are any greater than this Court’s, to bring finality as soon as possible and as fleeting and brief as that finality might be before the parties are again involved in litigation.

8. Accordingly, orders are made as follows.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 31 October 2019