KASSIS & MCKINLEY

[2019] FCCA 2031

FEDERAL CIRCUIT COURT OF AUSTRALIA

KASSIS & MCKINLEY [2019] FCCA 2031

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

Re W: Publication Application (1997) 137 FLR 205

Applicant: MS KASSIS

Respondent: MR MCKINLEY

File Number: PAC 5913 of 2016

Judgment of: Judge Newbrun

Hearing date: 14 June 2019

Date of Last Submission: 14 June 2019

Delivered at: Parramatta

Delivered on: 24 July 2019

REPRESENTATION

Solicitors for the Applicant: Ms Wilkins

Solicitors for the Respondent: Mr Takchi

Solicitors for the Independent Children's Lawyer: Mr Reeve

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 31 July 2019 at 9:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5913 of 2016

MS KASSIS

Applicant

And

MR MCKINLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. The within Reasons for Judgment relate to the determination of the oral Application made by the Applicant mother on 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 child is [X] born … 2010.

3. The father is aged 44 years and the mother is aged 48 years.

4. The parties cohabitation commenced in 2002.  The child was born in 2010.  The parties separated in June 2016.  The child lived with the mother during the week and spent every weekend with the father from June 2016 up until about January 2017.

5. Orders made by consent on 24 February 2017 provided for the child to reside with the mother and have contact with the father under supervision every second Saturday for two hours.

6. In about November 2018 the relevant supervisory organisation cancelled the father’s visits.  Presently the child is not spending time with the father.

7. The father has spent time in jail in respect to breaches of Apprehended Domestic Violence Orders.  The father told the Family Report writer that he has a criminal history of illicit substance use.

Issues in dispute

1. The issues in dispute include the following:

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

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

   c)the nature and extent of the father’s past breaches of apprehended domestic violence orders (the mother alleged 11 convictions of the father to date);

   d)the nature and extent of alleged illicit drug use (including whether or not the father has an ongoing illicit substance misuse dependency) and alcohol consumption by the parties;

   e)the parenting capacity of each party;

   f)the views of the child;

   g)the mental health of the parties; 

   h)the mental health of the parties;

   i)whether there has been alienating behaviour by a parent;

   j)whether the child should spend unsupervised time with the father;

   k)whether the parties should have equal shared parental responsibility or whether sole parental responsibility should be assigned to the mother.

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:

2. 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:

3. 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 Magistrates 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 Family Court of Australia 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.

3. It is pertinent to make the following observations in relation to the protocol:

   a)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;

   b)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”;

   c)some of the criteria require a degree of 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;

   d)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.

4. 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

1. 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 Court 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.

2. 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)expert witnesses, including the Family Report writer, mental health expert, expert relating to illicit drug dependency;

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

3. To date, the parties have filed numerous Affidavits. Twelve subpoenae for production of documents have already been issued to different entities, including NSW Police, medical centres and the Department of Justice. There is likely to be tendered in evidence extensive documentary evidence.

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 parenting proceedings of this nature, in particular involving allegations of significant family violence, illicit drug dependency, 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 complex by reason, inter alia, of the significant dispute between the parties relating to family violence, mental health issues, and alleged illicit drug dependency.

   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, on application by the mother supported by the Independent Children’s Lawyer and not opposed by the father.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 24 July 2019