Kalmar and Guidi and Anor

[2019] FCCA 2615

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALMAR & GUIDI & ANOR [2019] FCCA 2615

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: MR KALMAR

First Respondent: MS GUIDI

Second Respondent: MS KURZ

File Number: PAC 5209 of 2017

Judgment of: Judge Newbrun

Hearing date: 6 September 2019

Date of Last Submission: 6 September 2019

Delivered at: Parramatta

Delivered on: 20 September 2019

REPRESENTATION

The Applicant in person

The First Respondent in person

Ms Hall for the Second Respondent:

Ms Shedden for the Independent Children’s Lawyer:

ORDERS

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

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5209 of 2017

MR KALMAR

Applicant

And

MS GUIDI

First Respondent

MS KURZ

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The within Reasons for Judgment relate to this Court’s Order of today that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.

2. The subject child is [X] born … 2008.

3. As discussed below, in the view of the court these parenting proceedings are, in particular, complex, and, further, are likely to take in excess of four final hearing days.

4. The Court refers to the very detailed and lengthy family report of family consultant Ms A dated 3 September 2019.

5. According to the mother, she is a C woman whose mob is from Town B area, and thereby the child is aboriginal. 

6. The mother and father are presently legally unrepresented. Today the Court made orders under section 102NA of the Family Law Act, 1975. Accordingly, it is anticipated that legal representatives will be appointed for the parties, through legal aid New South Wales, prior to any final hearing.

7. The child lives with the father and Ms Guidi, his partner.  Also living with the father and his partner are his partner’s children from previous relationships, two daughters. The father is aged 44 years.  Ms Guidi was made a party the proceeding some time ago in circumstances where the father was jailed at a time when the child was living with the father and Ms Guidi, and there existed alleged risks of harm to the child being returned to the mother’s primary care.

8. The child is not presently spending time with the mother.  The mother is aged 37 years.

9. The mother has a child from a previous relationship, [Y], aged 17 years, and that child is under the care of D Child Guardians and she sees him periodically.

10. The mother has historically declined to take up the opportunity to spend time with the child under supervision, the mother asserting that such supervised time would have been damaging to the child.

11. The family report writer refers to the parent’s relationship between each other as toxic.

Issues in dispute

1. The issues in dispute include the following:

   a)The nature and extent of each parent’s relationship with the child;

   b)The nature and extent of alleged family violence perpetrated by the parties towards each other, and the relevance of same for each party’s parenting capacity;

   c)The nature and extent of alleged family violence perpetrated by the father towards new partner Ms Guidi;

   d)The nature and extent of alleged family violence perpetrated by the mother towards Ms Guidi;

   e)The nature and extent of alleged controlling and coercive family violence perpetrated by the parties towards each other;

   f)The parenting capacity of each party;

   g)The views of the child;

   h)The mental health of the parties with all parties allegedly having a history of mental illness;

   i)The mental health of the child;

   j)The nature and extent of any developmental delay in the child and behavioural issues of the child, and the relevance of her apparent ADHD diagnosis;

   k)The nature and extent of the parties’ addiction to illicit substances, including heroin, cannabis, methamphetamine;

   l)Whether Ms Guidi abuses alcohol;

   m)The nature and extent of the parties’ past criminal behaviour, including the linkage of past such behaviour to their drug use;

   n)The participation of the parties in the child’s education;

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

   p)If the child is to live with the father (the father’s proposal) whether the child’s time with the mother should be supervised;

   q)If the child is to live with the mother, the nature and extent of the child’s time with the father;

   r)The stability of living arrangements for the child;

   s)The level of animosity between the parents that the children are exposed to;

   t)Whether the mother or the father should have sole parental responsibility for the child.

   u)Whether the father’s partner Ms Guidi should share parental responsibility with the father.

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 all the above issues (under the heading, at the beginning of these Reasons, “Issues in Dispute”).

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

   a)The family report writer;

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

   c)Lay witnesses: at least the maternal grandmother.

3. Subpoenae for production of documents have already been issued to at least eight different entities; there is likely to be extensive documentary evidence tendered in the proceedings.

4. 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.

5. 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.

6. 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.

7. 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 complex parenting proceedings of this nature, in particular involving allegations of significant family violence, illicit substance dependency, significant criminality, and mental health issues, 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 particularly complex by reason, inter alia, of the significant dispute between the parties relating to family violence, illicit substance use, parental capacity, alienation and mental health issues.

   d)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.

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

8. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with the ICL, mother and father not objecting to the transfer.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 20 September 2019