Kingsley & Kingsley
[2022] FedCFamC1F 540
Federal Circuit and Family Court of Australia
(DIVISION 1)
Kingsley & Kingsley [2022] FedCFamC1F 540
File number(s): SYC 6781 of 2017 Judgment of: ALTOBELLI J Date of judgment: 5 July 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for court file to be provided to another court –Inappropriate form and process adopted in making application – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.13
Uniform Civil Procedure Rules 2005 (NSW) r 33.13
Division: Division 1 First Instance Number of paragraphs: 8 Date of hearing: 5 July 2022 Place: Sydney (via videoconference) Solicitor for the Applicant: Mr Millard, Fox & Staniland Lawyers Solicitor for the Respondent: Ms Kumar, Lama Family Lawyers Solicitor for the Independent Children's Lawyer: Ms Rutkowska, Ark Law Lawyers ORDERS
SYC 6781 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KINGSLEY
Applicant
AND: MS KINGSLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.The matter is adjourned to 7 November 2022 at 9am for further mention.
2.The Application in a Proceeding filed by the Applicant on 4 July 2022 is dismissed.
THE COURT NOTES THAT:
3.The purpose of the mention on 7 November 2022 is to ascertain whether the Applicant’s criminal proceedings have completed, and to set the matter down for final hearing if appropriate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kingsley & Kingsley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALTOBELLI J:
By way of an Application in a Proceeding filed on 4 July 2022 (“the application”), Mr Kingsley (“the father”), who is the applicant in both parenting and property proceedings in this Court and who is the defendant in criminal proceedings in the District Court of New South Wales at Sydney, seeks an order from the Court in the following terms:
That the court file, or a copy of the file, be provided to the District Court at Sydney, to be accessed by the presiding Judge in the matter of R v Mr Kingsley …/...
The application was only filed yesterday. There is an affidavit in support to which I have had regard. The respondent, Ms Kingsley (“the mother”) has not even had time to give instructions to her lawyer about the application. The Independent Children's Lawyer has some serious concerns not just about the procedure that has been adopted, but the potential confidentiality implications, especially on the child, X (“X”).
I dismiss the application because I am not satisfied that this Court has the power to make the order that is proposed. The father’s solicitor relied on r 15.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), but I am not satisfied that r 15.13(1) empowers me to make the order that is sought in its terms in the application.
I understand that the usual course for another court to access the file of this Court is as follows:
(1)A party that believes that the material is relevant and would assist the other court in determining the matter before it makes a request, usually via the judge, to the registrar of that court to request the registrar of this Court to produce those documents; and
(2)On receipt of that request the registrar of this Court would grant to all parties the opportunity to be heard on the issue of whether or not the documents requested should be produced.
That procedure seems to be based on rules in other jurisdictions, but not necessarily in this jurisdiction. For example, I note that r 33.13 of the Uniform Civil Procedure Rules 2005 (NSW) provides for a procedure in general terms as I have described. Now, of course, the Uniform Civil Procedure Rules do not apply to criminal proceedings, but my point is that I would be very surprised if there were not an equivalent criminal procedure rule and, in any event, the practice of one court requesting the file of another court is a well-established one.
There is nothing in the material before me that would lead me to think that the judge hearing this matter in the District Court has considered that this is a request that is reasonable because it relates to relevant documents. In the circumstances, the form and procedure that has been adopted is inappropriate. It is a futile application which I dismiss, even taking into account that the mother does not formally oppose it on the basis that no instructions have been sought.
The father has told me through his solicitor, as he is entitled to do so, that he wishes to proceed with the parenting application even though X is 17 years old and will likely be close to 18 years old by the time this matter is heard next year. That is his decision to make and a decision that this Court will respect. This is not a matter where I am prepared to bifurcate the parenting and the property proceedings. The reality is that one affects the other and the outcome of the criminal proceedings affects both the parenting and property proceedings in this Court.
On this basis, I have stood the matter over to 7 November 2022.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Altobelli delivered on 5 July 2022. Associate:
Dated: 5 July 2022
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