Morris & Rosetti
[2017] FamCA 249
•26 April 2017
FAMILY COURT OF AUSTRALIA
| MORRIS & ROSETTI | [2017] FamCA 249 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where the proceedings are transferred to the Federal Circuit Court – where there were no reasons for the transfer to the Family Court of Australia – where the parties did not seek to have the matter heard in the Family Court of Australia |
| Family Law Act 1975 (Cth) ss 33B, 65DAC Federal Circuit Court of Australia Act 1999 (Cth) s 39 Family Law Rules 2004 (Cth) r 11 Federal Circuit Court Rules (Cth) r 8.02 |
| Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 Morris & Rosetti [2016] FCCA 845 Morris & Rosetti [2016] FamCAFC 208 Re W: Publication Application (1997) 137 FLR 205 Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 Summers & Shaw [2011] FamCA 889 |
| APPLICANT: | Mr Morris |
| RESPONDENT: | Ms Rosetti |
| FILE NUMBER: | TVC | 700 | of | 2015 |
| DATE DELIVERED: | 26 April 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 7 April 2017 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Anderson Fredericks Turner |
| SOLICITORS FOR THE RESPONDENT: | Bassano Law |
Orders
Pursuant to s 33B(1) and s 33B(2)(b) of the Family Law Act, these proceedings be transferred to the Federal Circuit Court to be listed on a date fixed by that court.
AND IT IS NOTED THAT:
A.This matter was listed for trial to commence in Townsville on 23 March 2017 with an estimated hearing time of 2 days.
B.The trial did not then proceed, but rather was transferred to this Court.
C.It is said that the trial cannot proceed before Judge Coker.
D.It is requested that the Federal Circuit Court arrange for the trial to commence as promptly as may be accommodated.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morris & Rosetti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: TVC700/2015
| Mr Morris |
Applicant
And
| Ms Rosetti |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 16 December 2016, Judge Baumann made an order listing this matter for trial to commence at 10:00am on 23 March 2017. In due course it was listed for hearing before another Federal Circuit Court Judge, who was sitting on circuit in Townsville from interstate. However on 22 March 2017, the day before the trial was due to commence, that visiting judge made an order pursuant to s 39(1) of the Federal Circuit Court of Australia Act transferring all outstanding application to the Family Court of Australia in Townsville for a hearing on a date to be fixed.
Whilst no reasons appear on the court file for that transfer, it seems as though her Honour was concerned that although the trial was listed for two days before her, it may in fact run to three or even four days. Her Honour seemed to think that firstly, the matter could not therefore proceed before herself, secondly, that if it remained in the Federal Circuit Court it would thereafter need to be heard by Judge Coker, whose list would not accommodate a trial of that length for about 12 months, and thirdly, that if it were transferred to the Family Court, a trial could be had perhaps as soon as in five months’ time.
Of its own motion this Court listed the matter to obtain the parties’ submissions as to whether or not it should be transferred back to the Federal Circuit Court pursuant to s 33B of the Family Law Act 1975. For the reasons which follow, I am of the view that this matter should be so transferred.
HISTORY OF THE PROCEEDINGS
These proceedings commenced on 10 July 2015 by way of Initiating Application filed by Mr Morris (“the father”). By that application he sought final orders that, in the event that the parties were living in the same town, then their only child, N born in 2013 and hence presently three years of age (“the child”), spend equal time with both parties. However in the event that the mother continued to live a considerable distance from where the father lived, he sought orders that the child live with the mother and spend substantial holiday time with him. He also sought orders for equal shared parental responsibility.
By her Response filed 21 July 2015 Ms Rosetti (“the mother”) sought sole parental responsibility for the child, who should live with her and spend time with the father on a basis to be further particularised by her in due course.
Although subsequently the parties have filed Amended Applications and Responses, essentially their positions have remained unchanged.
According to the index to the court file, on 8 October 2015 a Family Report was obtained and released to the parties; unfortunately it now appears to have disappeared from the file. However from secondary material in the file it appears that the report writer recommended that the child live with the mother and spend time with the father of up to five days per month, on an increasing basis.
On 16 November 2015, the parties were able to agree some interim arrangements, including “that the matter be listed for a one and a half day hearing in 2016 and that the usual trial directions issue.” Notwithstanding those orders, for reasons I do not need to recount, an interim hearing came on before Judge Coker on 2 March 2016, at the conclusion of which his Honour made complex and highly prescriptive orders which would see the child spending a relatively large amount of time in the father’s care culminating, it seemed, in 2017 with the father spending two week blocks of holiday time with the child. Written reasons then given by his Honour: Morris & Rosetti [2016] FCCA 845.
From those interim orders the mother appealed, which appeal was ultimately allowed by consent for reasons given by the Full Court: Rosetti & Morris [2016] FamCAFC 208. The substantive orders remitted the matter to a judge other than Judge Coker for the further determination of the interim application. That re-hearing proceeded before Judge Baumann on 16 December 2016, and in the orders which his Honour made on that occasion, there were trial directions setting the matter down for a final hearing “for not more than two (2) days commencing at 10:00am on 23 and 24 March 2017.” It is pertinent to observe that highly experienced family law counsel appeared before Judge Baumann on that occasion.
A compliance hearing was listed to be conducted on 2 March 2017, and that appears to have taken place with solicitors appearing for the parties. At that hearing, which was conducted by Judge Coker, the listing of the trial for 10:00am on 23 March 2017 was confirmed. No suggestion was then made that anything more than two days was likely to be required.
I have already indicated that on the day before the matter was due to commence, it was brought on by the visiting interstate Circuit Court Judge and transferred to this court.
ISSUES RAISED BY THE PROCEEDINGS
The parties had a brief relationship during a time when they were both posted to Town H: the mother and the father are both public servants. It appears the relationship ceased when the father was posted away from the island, albeit by then the mother was pregnant with the child.
No party alleges physical family violence, nor that the other presents an unacceptable risk of harm to the child, such that the child either should not spend time with them or spend only supervised time with them. Leaving aside the issue of parental responsibility, the only real issue which the trial of this matter will present relates to how the father can have a meaningful relationship with the child, when the mother, for the foreseeable future, is likely to remain living on Town H. As to the issue of parental responsibility, it appears as though that will likely be determined by whether or not the parties’ communication is sufficient for them to discharge their obligations which such an order would place upon them pursuant to s 65DAC.
THE PROTOCOL
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.
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.
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
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.
…
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.
The provisions which govern transfer from the Family Court of Australia to the Federal Circuit Court are relevantly contained in s 33B of the Family Law Act.
(1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.
(2) The Family Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1).
(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1).
(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia.
(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:
(a) any standard Rules of Court made for the purposes of subsection (4); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.
(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.
(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings of a kind specified in the regulations.
The phrase “the interests of the administration of justice” is a very broad one, capturing many potential considerations. No point is to be served in seeking to, in advance, describe what may fall as legitimate considerations under such a criterion, however it is useful to note that in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [42] White J identified that the prospect of a poor public perception if transfers were embarked upon by the courts “in the manner of a tennis match” was a relevant consideration.
Further, whilst s 33B(6) establishes mandatory considerations that the court must have regard to, other matters may inform the exercise of the discretion. Previous decisions have identified the following as being potentially relevant:
·The workload of the judge likely to thereafter be seized of the matter: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [43];
·The probability of the recurrence of transfers to the court in like circumstances: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [44];
·Whether the matter was commenced in accordance with any relevant protocol: Summers & Shaw [2011] FamCA 889 at [30].
Rule 11 of the Family Law Rules contains the relevant standard rules of court for the purposes of s 33B(4). Relevantly it provides as follows:
11.17. A party may apply to have a case:
(a)heard at another place; or
(b)transferred to another registry or court exercising jurisdiction under the Act.
11.18(1). In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:
(a) the public interest;
(b)whether the case, if transferred or removed, is likely to be dealt with:
(i)at less cost to the parties;
(ii)at more convenience to the parties; or
(iii)earlier;
(c)the availability of the judicial officer specialising in the type of case to which the application relates;
(d)the availability of particular procedures appropriate to the case;
(e)the financial value of the claim;
(f)the complexity of the facts, legal issues, remedies and procedures involved;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness; and
(h)the wishes of the parties.
11.18(2) …
It will be appreciated that since r 11.17 on its face only applies to an application for transfer made by a party, strictly speaking r 11.18 would have no application to the present facts, where the court is considering transfer on its own motion. However logically, the matters therein enumerated will also be potentially relevant in considering an own motion transfer. The other point worthy of note is that the rule does not make it mandatory to consider the matters listed in r 11.18(1).
THE REASONS FOR THE TRANSFER TO THIS COURT
Whilst it seems no reasons were delivered for the transfer to this court on 22 March 2016, I have already observed that it appears as though her Honour was concerned that the matter would take longer than the two days allocated for it, and that the quickest way to enable it to be tried would be for it to be transferred to this court.
However absent reasons, it is not possible to determine how her Honour had regard to any of the three relevant matters that she was obliged to have regard to in s 39(4) of the Federal Circuit Court of Australia Act, and particularly any conclusion that her Honour made in relation to the interests of the administration of justice. Further, although s 39(4)(a) obliged her Honour to have regard to FCCR r 8.02, it is not possible to ascertain what conclusions her Honour reached as regards the five factors listed in FCCR r 8.02(4). That therefore makes the task of this court considerably more difficult than it otherwise would be, because it is without the benefit of any findings or conclusions in relation to those matters. Necessarily in my view, the reasons for any transfer to the Family Court would be a matter relevant to have regard to in determining whether or not this court should exercise the discretion under s 33B.
Whilst perhaps the absence of reasons might be explained by the absence of any right of appeal from the decision to transfer (see Federal Circuit Court of Australia Act s 39(6)), it is well established that reasons are desirable to satisfy a number of other purposes. Thus in Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 at 279 McHugh JA (as his Honour then was) said:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do the justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“… A requirement that judges give reasons for their decisions – grounds of decision that can be debated, attacked, and defended – serves a vital function in constraining the judiciary’s exercise of power.”
Thirdly, under the common law system of adjudication, courts not only resolve disputes – they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
RELEVANT CONSIDERATIONS HERE
I identify the following matters as relevant to the exercise in my discretion in this case:
·That the parties commenced the proceedings in the Federal Circuit Court of Australia, and no application to transfer was made by either party in accordance with FCCR r 8.02(2);
·Whether the matter was commenced in accordance with the relevant protocol or, if commenced now would, in conformity with the protocol, be required to be commenced or heard in this court;
·The adequacy of the resources of the Federal Circuit Court to hear and determine the proceeding;
·The adequacy of the resources of the Family Court to hear and determine the proceedings;
·The jurisdiction in which the parties are likely to obtain the earliest trial date;
·The wishes of the parties;
·The degree of complexity of the proceedings;
·Whether the proceeding involves one or more questions of general importance;
·The public interest in not having litigants transferred between courts “in the manner of a tennis match”;
·How far the matter has progressed in this court since transfer.
Proceedings commenced in Federal Circuit Court and no application to transfer
These proceedings were filed on 10 July 2015 and the first date allocated to them was 24 July 2015. FCC r 8.02(2) is mandatory in its terms. The failure of either party to make an application in accordance with its provisions necessarily means that both parties accepted that the Federal Circuit Court was the appropriate court for the determination of their dispute.
Application of the protocol at filing and now
Nothing in the protocol would suggest that this is a matter that should have been filed and/or heard in the Family Court of Australia. Particularly there are no allegations of sexual abuse, physical abuse, or serious controlling violence. There are no complex questions of law and on no view could the proceeding take in excess of four days.
Adequacy of Federal Circuit Court resources
The Federal Circuit Court has a resident judge based in Townsville, and as has been seen, other judges of that court circuit there from time to time. That said, plainly there is a substantial delay between a matter being ready for trial and being able to be heard in Townsville, it being said that the delay is something in the order of 12 months. Apparently this matter was seen as having sufficient priority that it should be listed before a visiting judge, and there remains that option in the future. I am not persuaded that the Federal Circuit Court does not have adequate resources to deal with this matter.
Adequacy of Family Court resources
The Family Court does have a resident judge in Townsville, and I ordinarily sit there for approximately 10 weeks per year. However there is plainly a demand for time which is not required to be spent by me in Townsville to be spent elsewhere. At present, there are pressing needs for judicial resources in the Family Court in Melbourne, Parramatta and Sydney. That said, the Family Court resources would be adequate to enable this matter to be heard in Townsville.
Jurisdiction likely to have earlier trial
It is likely that an earlier trial could be had in the Family Court than in the Federal Circuit Court, unless a further visiting judge were able to deal with the matter.
The wishes of the parties
Before me, the parties expressed a desire for the matter to remain in this court.
Complexity
Patently this matter is not complex. The only hint of complexity is the structure of the arrangements for the father spending time with the child in the event that the mother continues to live on Town H. That is a matter which is likely to be substantially informed by the recommendations of the relevant professional who prepares the Family Report.
Questions of general importance
No question of general importance is raised by this case.
“Tennis match” concerns
Whilst different judges may legitimately have different views as to the weight to be given to “tennis match” concerns, as a general proposition, so long as any transfer back is made promptly, and no party is disadvantaged by the loss of an imminent trial date, then in my view this court should be vigilant to ensure that it only does the work that is appropriate for it. If there is otherwise no basis for this court to retain a case, questions of public perception are unlikely to loom large in the exercise of the discretion under s 33B.
Whilst this matter does have the unfortunate appearance of a tennis match, the following matters in my view tell against that consideration being given much weight in this case:
·The parties did not seek to have this matter heard in the Family Court;
·Neither Judge Coker or Judge Baumann, during their involvement with the case, believed that it warranted attention by the Family Court;
·The Full Court, when seized of the matter in 2016, made no criticism of it proceeding in the Federal Circuit Court or recommendation that it should be transferred.
Progress in this court so far
This matter has not progressed at all in this court since its transfer on 22 March 2017.
Exercise of the discretion
I am satisfied that the resources of the Federal Circuit Court in Townsville are sufficient to hear and determine this proceeding. I am satisfied that the interests of the administration of justice are best served by transferring a matter, which has no proper basis to be in this court, to the appropriate jurisdiction. I am otherwise satisfied that, balancing the other factors to which I have adverted above, confirms and indeed compels, transfer back to the Federal Circuit Court.
CONCLUSION
There will be an order under s 33B(1) and s 33B(2)(b) that these proceedings be transferred to the Federal Circuit Court of Australia in Townsville.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 26 April 2017.
Associate:
Date: 26 April 2017
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