MCCARTY & DAWSLEY

[2020] FCCA 1842

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCCARTY & DAWSLEY [2020] FCCA 1842

Catchwords:
FAMILY LAW – Parenting proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MR MCCARTY

Respondent: MS DAWSLEY

File Number: PAC 3052 of 2017

Judgment of: Judge Newbrun

Hearing date: 6 July 2020

Date of Last Submission: 6 July 2020

Delivered at: Parramatta

Delivered on: 6 July 2020

REPRESENTATION

Solicitors for the Applicant: Mr Shroder - Scb Legal Pty Ltd

Solicitors for the Respondent:	Ms Breust - Amanda Little And Associates Pty Limited
Independent Children’s Lawyer	Mrs Dhaliwal - Shorehills Legal Solicitors

ORDERS

1. These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 16 July 2020 at 10:30am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3052 of 2017

MR MCCARTY

Applicant

And

MS DAWSLEY

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 6 July 2020 that these parenting proceedings be transferred to the Family Court of Australia.

2. The subject children (2 girls) are aged 6, and 8 years.  Presently the children live with the mother, and spend time with the father.

3. An Independent Children’s Lawyer has been appointed to represent the children in the parenting proceedings.

4. Dr B, clinical psychologist, prepared a single expert report in relation to the family dated 17 April 2020.  It is a report of 60 pages. It is apparent from the contents of this report that these proceedings are both complex and will take in excess of four days of final hearing to determine.

Issues in dispute

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

   i)The nature and extent of the mother and father’s mental health, and its effect upon their parenting capacity.  It is alleged that the father attempted suicide on three occasions.  It is alleged that the father has had psychiatric hospital admissions.

   ii)Whether the father perpetrated severe and chronic family violence against the mother and the children during the relationship, including alleged physical violence. 

   iii)Whether the father has had significant issues with illicit drug use, including cocaine use.

   iv)Whether the mother perpetrated family violence against the father.

   v)Whether the mother withheld the children from the father on numerous occasions, and whether the mother has psychologically manipulated the children against the father.

   vi)Whether the mother is in a violent relationship with her partner.

   vii)The nature and extent of a violent incident involving the parties and their respective partners on 7 April 2019, with the children present.

   viii)Whether the mother was charged on 22 April 2019 with reckless grievous bodily harm and assault occasioning actual bodily harm, arising out of the above incident.

   ix)The nature and extent of the children’s time with the father.

   x)The relationship between the parents and its effects on the children.

   xi)The mental health of the child X, aged eight years, including behavioural, educational and emotional difficulties, and whether she poses a danger to herself and others.

   xii)Whether the needs of the child X have been neglected by the parents, or any one of them.

   xiii)Whether the children’s emotional needs have been met by the parents, or any one of them.

   xiv)Whether the children have been exposed to extreme and ongoing conflict between the parents and other adults.

   xv)Whether the father and his partner have repeatedly recorded both children to elicit evidence in these proceedings.

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.

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 numerous Affidavits in the proceedings.

4. There have been about 24 subpoena to produce documents filed in the proceedings to date, including NSW police, FACS, schools, and health practitioners.

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

   a)The father,

   b)The mother,

   c)Lay witnesses: each party’s new partner, and possibly others,

   d)Dr B,

   e)The children’s treating health practitioners, including paediatricians,

   f)The parties’ respective treating mental health practitioners.

6. 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.

7. 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.

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.

   ·The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.

   ·The parties and Independent Children’s Lawyer (“ICL”) consented for the proceedings to be transferred to the Family Court of Australia, and Counsel for the mother expressly concurred that the proceedings were both complex and likely to take in excess of four final hearing days.

   ·The proceedings are complex by reason of, inter alia, mental health issues affecting the parties and the child X, and alleged severe and chronic family violence and ramifications in that regard for the family.

   ·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.

9. The Court, in the exercise of its discretion, and consented to by the parties and ICL, transfers these proceedings to the Family Court of Australia.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 8 July 2020