Mondy and Thwaite and Anor

[2021] FCCA 652

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONDY & THWAITE & ANOR [2021] FCCA 652

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

Applicant: MS MONDY

First Respondent: MS THWAITE

Second Respondent: MR MONDY

File Number: PAC 5635 of 2018

Judgment of: Judge Newbrun

Hearing date: 19 March 2021

Date of Last Submission: 19 March 2021

Delivered at: Parramatta

Delivered on: 19 March 2021

REPRESENTATION

Solicitors for the Applicant: Mr Morrison - Mahony Family Lawyers

Solicitors for the Respondents:	Mr Gonzales - Gonzalez & Co
Solicitors for the Independent Children’s Lawyer	Ms Hernandez as agent

ORDERS

1. These proceedings are transferred to the Parramatta Registry of the Family Court of Australia to be mentioned on 13 May 2021 at 10:15am.

NOTATION:

A.The Court will shortly provide its Reasons as to why the proceedings have been transferred.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5635 of 2018

MS MONDY

Applicant

And

MS THWAITE

First Respondent

MR MONDY

Second Respondent

REASONS FOR JUDGMENT

Introduction

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

2. The subject child is X, aged 8 years.

3. X, pursuant to interim parenting Orders of this Court, lives with the paternal grandmother, and spends time with the Mother each third Saturday, for not less than four hours, and supervised by the maternal grandmother.

4. There are competing proposed parenting Orders between the Mother and the paternal grandmother; each party proposes that the child live with them and there are competing time with proposed Orders.

5. It is now clear that these proceedings are unlikely to be completed within four days of final hearing.

6. The Mother and the paternal grandmother are presently legally represented.  The Father is not participating in the proceedings.  There is an ICL.

7. A significant issue in the parenting proceedings relates to the Mother’s mental health but it is not the only issue.

8. The Mother proposes to call at least two lay witnesses and her treating psychiatrist.  The paternal grandmother proposes to call one witness being the paternal grandfather.  The ICL will call the family report writer.

9. There has been about 18 subpoenas for production of documents issued to date, and a voluminous amount of subpoenaed material has been produced to the Court; there is likely to be extensive cross-examination of the parties in relation to such documentation.  The third parties subpoenaed include NSW police, DCJ, schools, hospitals, medical centres, treating health professionals, contact centres.

Issues in dispute

1. The issues in dispute include the following:

   a)The nature and extent of each parties’ relationship with the child;

   b)The nature and extent of alleged family violence perpetrated by the Mother towards the child, and the relevance of same for her parenting capacity;

   c)The nature and extent of alleged family violence otherwise, including between the Mother and the Father;

   d)The parenting capacity of each party;

   e)The views of the child;

   f)The mental health of the child;

   g)The nature and extent of the Mother’s mental health issues, including whether the Mother has suffered from drug induced paranoid schizophrenia;

h)Whether the Mother’s mental health issues are being adequately managed;

i)Whether the Mother has abused alcohol and illicit drugs, and the relevance of same for her mental health;

j)The capacity of the paternal grandmother to promote a relationship between the child and the Mother;

k)Which party the child should live and spend time with;

l)The stability of living arrangements for the child;

m)The level of animosity between the parties that the child is exposed to;

n)Whether the parties should have equal shared parental responsibility or whether sole parental responsibility should be assigned to one party;

o)Whether the child’s aboriginality is appropriately recognised by 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. 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;

   b)The paternal grandmother and Mother, in relation to a multiplicity of issues, as referred to above;

   c)Lay witnesses: as previously discussed.

3. To date, the parties have filed numerous Affidavits. Eighteen subpoenas for production of documents have already been issued. There is likely to be tendered in evidence extensive documentary material.

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 Federal Circuit Court of Australia Act 1999, 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.

   b)Further, in parenting proceedings of this nature, in particular involving allegations of significant mental health issues, the Family Court of Australia has greater expertise.

   c)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.

   d)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, with the ICL, Mother and paternal grandmother not objecting to the transfer.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 13 April 2021