LINDON and Tyrone

[2018] FCCA 3565

FEDERAL CIRCUIT COURT OF AUSTRALIA

LINDON & TYRONE [2018] FCCA 3565

Catchwords:
FAMILY LAW – Property and 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 LINDON

Respondent: MS TYRONE

File Number: PAC 1519 of 2018

Judgment of: Judge Newbrun

Hearing date: 21 November 2018

Date of Last Submission: 21 November 2018

Delivered at: Parramatta

Delivered on: 7 December 2018

REPRESENTATION

Solicitors for the Applicant: Mr Falzon of Falzon Legal Pty Ltd

Solicitors for the Respondent: Ms Autar of Lander & Rogers (Sydney)

ORDERS

1. These property and parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, and are listed for first return on 8 January 2019 at 9:30 am.

NOTATION

The Court refers to its written judgment in relation to the above transfer Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1519 of 2018

MR LINDON

Applicant

And

MS TYRONE

Respondent

REASONS FOR JUDGMENT

Introduction

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

2. The wife is from [country omitted] and the husband is from [country omitted].  The husband is aged 40 years, and the wife almost 35 years.  Their relationship spanned some four and a half years, and they have two children, aged two and three.

3. The Court has previously heard a recovery Order application; subpoenae to produce documents interlocutory hearing; and more recently, an interim hearing relating to exclusive occupation of the former matrimonial home, spousal maintenance and restraining Orders.   Following that latter interim hearing, in which, inter alia, voluminous evidence relating to the parties’ financial affairs was tendered in evidence, it has become clear to this Court, for the reasons outlined below, inter alia, that it is in the interests of justice that these parenting and property proceedings be forthwith transferred to the Family Court of Australia.

Issues in dispute

1. The issues in dispute include the following:

   a)Parenting:

   i)The nature and extent of alleged family violence perpetrated by the husband to the wife.

   ii)The parties’ parenting capacity of very young children, one of whom is on the autism spectrum.

   iii)The nature and extent of the husband’s historical involvement with parenting of the children.

   iv)Whether the husband has an anger management problem.

   v)The nature and extent of any mental health issue affecting the parents.

   vi)An allegation of hoarding by the husband against the wife.

   b)Property:

   i)Whether the wife has an interest in Business A as Trustee for the Business A Family Trust.

   ii)The nature and extent of the wife’s financial resources, including any interest in overseas and local entities.

   iii)Whether the wife has historically received payments from the above Trust other than by way of loan funds (that is, by way of distributions from the Trust).

   iv)Whether the wife has an interest in Business B as trustee for the Business B Family Trust.

   v)The nature and extent of the husband’s work capacity and income (the husband’s business is run through the Business C Trust, and a valuation of this entity will likely be sought).

   vi)Whether the parties have made adequate financial disclosure; in relation to the wife, about the above entities in particular, and in relation to the husband, about his work income.

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)Expert valuation witness/witnesses in relation to the above corporate and Trust entities; 

   b)The accountant of the Business A Family Trust;

   c)The husband and wife, in relation to a multiplicity of issues, as referred to above.

   d)The wife’s wife and brother from [country omitted], who are likely to give evidence in the [language omitted].

3. To date, the husband and wife have filed some six Affidavits each.   Subpoenae for production of documents have already been issued to two banks, an accountant, and a company. 

4. There is likely to be tendered in evidence extensive documentary evidence, noting that at the recent interim hearing a large lever arch folder of banking and other records were tendered in evidence.

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)(c) of the Act, the resources of this Court are not sufficient to hear and determine the proceedings. There have been extensive and prolonged interlocutory hearings in this Court to date. Three interlocutory judgments have been made by this Court and there have been numerous directions hearings. There are likely to be continued interlocutory proceedings relating to, inter alia, valuation evidence, and financial disclosure issues by both parties.

8. 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; in this Court, there are likely to be significant waiting periods between the dates of directions hearings, and delays in appointing fixtures for interlocutory disputes, compared to the Family Court of Australia. Further, in property proceedings of this nature, in particular involving significant disputes as to business valuations, and complex corporate and Trust entities, the Family Court of Australia has greater expertise;

   ·The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court; property and parenting proceedings in this Court, once ready for final hearing (which this case is not), are likely to receive a final hearing date at least twelve months thereafter;

   ·Neither party opposed the proposed transfer Order.  The husband made submissions to the Court on 21 November 2018 that the proceedings would likely take in excess of four final hearing days;

   ·These proceedings are complex by reason, inter alia, of the significant dispute involving the wife’s alleged interest in (and historical receipt of monies from) the corporate and Trust entities, and the nature and extent of husband’s income and financial resources, and the Court refers to its discussion above in these Reasons;

   ·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;

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

9. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia of its own motion, but notes, again, that the parties did not oppose the transfer Order.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 7 December 2018