Kessler and Kessler

[2019] FCCA 1099

FEDERAL CIRCUIT COURT OF AUSTRALIA

KESSLER & KESSLER [2019] FCCA 1099

Catchwords:

FAMILY LAW – Parenting and property 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: MS KESSLER

First Respondent: MR KESSLER

File Number: PAC 68 of 2018

Judgment of: Judge Newbrun

Hearing date: 8 April 2019

Date of Last Submission: 8 April 2019

Delivered at: Parramatta

Delivered on: 8 April 2019

REPRESENTATION

Solicitors for the Applicant:	Ms Monastiriotis of Campbell Paton & Taylor
Counsel for the Respondent:	Ms De Vere
Solicitors for the Respondent:	Nexus Lawyers
Solicitors for the Independent Children’s Lawyer:	Ms Elve of Auslawyers

ORDERS

1. These parenting and property proceedings are forthwith transferred to the Family Court of Australia at Parramatta. The proceedings in that Court are listed for mention on 14 May 2019 at 9:30 am.

NOTATION

The Court will shortly publish Reasons for the transfer of these proceedings to the Family Court of Australia at Parramatta.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 68 of 2018

MS KESSLER

Applicant

And

MR KESSLER

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 8 April 2019 that these parenting and property proceedings be transferred to the Family Court of Australia.  

2. The Court observes that these proceedings were transferred from the Family Court of Australia to this Court on 26 March 2018.  However, since that time the nature and complexity of these proceedings have escalated significantly.

3. Recently the parenting proceedings took on a significantly different complexion as a result of an incident involving the mother and one of the children at the family home that took place in late January 2019.  The incident involved the mother being intoxicated and the brandishing of a knife in the presence of a child.  The child called 000, the police arrived and the mother was sent to Hospital.  Thereafter the children came into the primary care of the father.  Interim Orders, by consent, were made by this Court on 5 March 2019 that, pending further Order, the children live with the father.

4. The parenting proceedings relate to four children aged eight, twelve, fourteen and fifteen years.

5. The property proceedings, on the wife’s case (see her Case Outline dated 7 April 2019) involve a net property pool of about $5.8 million.  There are contended by the wife to be, inter alia, six items of real estate, at least seven bank accounts of the husband, five joint bank accounts, an alleged debt to the wife’s parents, an inheritance of the husband, and five superannuation policies of the parties.

Issues in dispute

1. The issues in the parenting dispute include the following:

   a)The nature of the mother’s mental health, and its effect upon her parenting capacity.  There may well need to be a Chapter 15 Expert Report.

   b)Whether the mother has alcohol-related issues.

   c)The children’s mental health.

   d)Whether the parties perpetrated family violence against each other during the relationship, and whether relevant risk issues pertaining to the children arise out of such alleged family violence.  Alleged family violence includes physical and emotional abuse and financial control.

   e)Whether a party has sought to alienate a child or children from the other party.

   f)Whether the parties should have equal shared parental responsibility.

   g)Competing live with and time with issues.

2. Issues in the property dispute include the following:

   a)Financial disclosure disputation.

   b)The relevance of an initial contribution by the husband about 20 years ago.

   c)Alleged failure by the husband to comply with previous interim property Orders.

   d)Competing contribution issues and contentions of the parties.

   e)Competing needs issues of the parties.

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. Presently, the parties each seek competing Orders in relation to parenting and property.

2. 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”).

3. To date, the parties have filed a significant number of Affidavits in the proceedings.

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

   a)The father;

   b)The mother;

   c)The mother’s treating mental health practitioners;

   d)The Chapter 15 Expert;

   e)The children’s treating mental health practitioners.

5. 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.

6. 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.

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:

   ·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.

   ·The final hearing of these proceedings (and outstanding interim parenting applications; see immediately below) is likely to be heard earlier in the Family Court of Australia than in this Court.

   ·There are outstanding interim parenting applications relating to live with and time with issues of a complex nature, and involving significant evidential material, which, if the proceedings remained in this Court, could not be dealt with until late 2019.

   ·The mother sought a transfer of the proceedings to the Family Court of Australia, which was not opposed by the Independent Children’s Lawyer (“ICL”) or the father.

   ·These proceedings are complex by reason of the mother’s alleged mental health issues and alcohol consumption; mental health issues relating to the children; the nature and extent of family violence allegations and their relevance to risk issues pertaining to the children; contribution and needs issues, and financial disclosure issues.

   ·Again, having regard to the issues to be determined between the parties, and other matters referred to above, these proceedings are likely to take in excess of four final hearing days;

   ·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, and on the request of the mother and not objected to by the father and ICL, transfers these proceedings to the Family Court of Australia. 

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 30 April 2019