Nemeck & Jump

[2010] FamCA 1012

FAMILY COURT OF AUSTRALIA

NEMECK & JUMP [2010] FamCA 1012

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Nemeck

RESPONDENT: Mr Jump

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 721 of 2010

DATE DELIVERED: 12 NOVEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: IN CHAMBERS

REPRESENTATION

SOLICITOR FOR THE APPLICANT: BAYSIDE SOLICITORS

SOLICITOR FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: REALE LAWYERS

Orders

1. That pursuant to s 33B(2)(b) of the Family Law Act 1975 (Cth), the application of the mother filed 5 March 2010 and the response of the father filed 11 March 2010 are transferred to the Federal Magistrates Court of Australia at Dandenong.

2. That the reasons for such transfer be placed on the Court file and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 721  of 2010

MS NEMECK

Applicant

And

MR JUMP

Respondent

REASONS FOR JUDGMENT

1. On 6 October 2010, O'Sullivan FM made orders that proceedings between Ms Nemeck (the mother) and Mr Jump (the father) be transferred to this Court.  The order of his Honour is endorsed with a notation that it is requested that the matter be considered for inclusion in the Magellan List of cases because of allegations raised by the Independent Children's Lawyer and the involvement of the Department of Human Services. 

2. Interestingly, his Honour also noted that it was “requested” that the matter not be transferred back to the Federal Magistrates Court.

3. This file was brought to me in chambers because a registrar had declined to accept the matter into the Magellan program. That decision was made by the registrar in her capacity as the Magellan Registrar. 

4. The Registrar had notified the parties that the matter would be brought to my attention in my capacity as the case management judge for the Melbourne Registry. The issue is as to what should happen with the case. To see where it should go, one has to look where it has been. That gives rise to questions of the “protocol” between this Court and the Federal Magistrates Court of Australia and issues of comity between courts.

5. The protocol between the two courts which is no more than a guide, provides that if a matter is designated by the Magellan Registrar of this Court to fit appropriately within the program of the Court, it be a case for determination by the Family Court of Australia. That designation must also consider the resources of both courts. That is the agreed position between the courts. 

6. However, in respect of “Magellan” matters, a further protocol or agreement between the courts is that prior to such a transfer, an assessment by the Magellan Registrar should occur to ensure that the case would fit within the program. That did not happen here.

7. When this matter was heard by his Honour, the mother was represented by her solicitor, the father appeared in person and counsel appeared for the Independent Children's Lawyer. The circumstances as to how and why the case was transferred are not entirely obvious as there are no published reasons for the orders.

8. Upon the file arriving in this Court, the Co-Ordinating Registrar directed that there be a telephone mention before Registrar Mestrovic on 25 October 2010 to determine the future case management of the matter. That occurred and a report was placed on the file.

9. The Magellan Registrar noted that on 25 October 2010 she had a telephone hearing with the solicitors of the mother, the father in person, and the Independent Children's Lawyer. 

10. The Registrar noted that there were no extant interim applications on foot.  She noted that the Department of Human services had concluded its investigation. The only inference open from the discussion with the parties (as noted by the Registrar) is that the mother and father had the blessing of the Department to commence implementing existing court orders. Those orders more or less provided for the shared care of the child of the parties.  Despite that, the Registrar noted that the Department's investigation was still ongoing.  I concluded from that note that the Department might have some concerns but not sufficient to warrant intervention by a protection application in the Children’s Court or intervention in the proceedings in this Court.

11. The investigated allegation arose out of the alleged conduct of the mother's partner concerning the mother’s older child and one who is not the child who is the subject of the court proceedings. It appears that the partner is no longer a member of the mother’s household.

12. The Magellan Registrar noted that in her view having regard to the material, the case did not fit within the Magellan project.

13. The child who is the subject of the proceedings now before this Court is C who was born in March 2006. She is required to start school in 2011.  The father resides in the Peninsula area and the mother in the Frankston area. It was agreed between the parties that it was imperative to have the case heard in time for school commencing in 2011.

14. On the basis that there is no justification for the case to be designated as a “Magellan” matter, is there any basis for it to remain in this Court?  What is the status of a notation to an order in which it is requested that the matter not be returned to the originating court? Those questions require an examination of some background.

15. The application was initially issued by the mother in March 2010.  She sought orders that the parties have equal shared parental responsibility for the child.  The final orders that she sought included that the child live with her and spend time with the father during each alternate weekend from 5 p.m. Thursday until 3 p.m. on Sunday.

16. On 11 March 2010, the father filed a response seeking that the child live with him (and curiously his fiancee) and that subject to successful drug testing and rehabilitation of the mother, the father and mother have “shared parenting responsibilities” for the child.

17. On 12 March 2010, Phipps FM heard the matter and ordered that the child live with the mother from 5 p.m. on Saturday to 5 p.m. on Monday in each week and otherwise, at all other times with the father.

18. It must be concluded from that order that there was some foundation for the father's concern as set out in his application. At the same time, it must be concluded that the Court had sufficient confidence in the capacity of the mother as a parent to make the interim orders that it did.

19. It must also be acknowledged that the Department of Human Services was requested by order under s 91B of the Family Law Act 1975 (Cth) to intervene. Ultimately, nothing eventuated from that request. Presumably, the Department saw no need.

20. It was also ordered by the Court that there be an appointment of an independent children's lawyer.  On 17 March 2010, Victoria Legal Aid declined to make the appointment because the court had apparently exceeded its allocated available places. Whilst the courts make the orders for such appointments, Victoria Legal Aid is the funding body responsible for the engagement of such lawyers. The financing is subject to budgetary constraints and consequently, a “cap” was placed on the appointments. Somehow however, when the matter returned to the Court on the adjourned date of 12 April 2010, an independent children's lawyer had been allocated.

21. On 12 April 2010, interim orders were agreed between the parties which altered the times of the previous orders. The Court made those orders and as such, I must conclude that they were in the best interests of the child. From that time onwards, the child was to live with the mother from 1 p.m. on Wednesday to 5 p.m. on Friday in the first of two weeks and from 1 p.m. on Wednesday to 5 p.m. on Friday in each alternate week. Otherwise, she was to reside with her father. 

22. The Federal Magistrate then made an order for a family report.

23. The family report dated 21 July 2010 was released by the Federal Magistrate to the parties.  It was prepared by Ms T.  It is unnecessary for me to set out in any great detail the issues canvassed by the report.  The report does however recommend that the parents share “equal joint responsibility” for the child and that the existing parenting arrangements remain in place. 

24. Unsurprisingly, the counsellor recommended that the parties arrange counselling and that they endeavour to “retain polite and respectful exchanges” when communicating about the child.

25. Thus, it will be seen that the arrangements that the parties themselves had agreed upon in April, were seen as sensible by the Court’s appointed expert in July.

26. The matter returned to the Court on 23 August 2010 and again, the orders were altered slightly but otherwise the matter was adjourned for a final hearing in January 2011 with an estimated time of two days.  Just exactly what was to be litigated between the parties in January 2011 is unclear from the file but I am entitled to conclude that the allocation of two days would mean that the issues were not significant.

27. On 29 September 2010, the mother filed an application in the Dandenong Registry of the Federal Magistrates Court of Australia seeking an urgent listing and that all times be abridged for that to occur.  One might anticipate that the thrust of the problem was something to do with the child being at risk of harm but reading the documents does not necessarily suggest that was so.

28. The orders sought by the mother included that the father be restrained from changing the residence of the child out of the Peninsula area or if the father chose to do that, the child should live with her mother and spend alternate weekends with the father. 

29. This application was prepared by the legal practitioners for the mother.  It must be concluded at that stage that the mother had sufficient confidence in the father, and little concern about the child, to be pursuing orders that he spend time with her.

30. The application of the mother was listed before O'Sullivan FM on 6 October 2010.  And as I have earlier recorded, it was then transferred. 

31. The file records that the only evidence that day was provided by the mother.  The father apparently presented nothing.

32. In the mother’s affidavit, she said that her child L, who is not the child of the father but who is 13 years of age, made allegations of sexual abuse against the mother's former partner. No suggestion of impropriety was made against the father who is the respondent these proceedings.  The affidavit said that the Department of Human Services was investigating the allegations and had put in place a “safety plan” for L, the subject child C and another child named T, who is presumably the child of the mother with the man accused of impropriety.  The rest of the affidavit addresses the question of the father's move to Phillip Island.

33. Having regard to those facts and the observations of the Magellan Registrar, it is hard to see how this case warrants the attention of this court.

34. The critical issue between the parties seems to be where C is to live. C’s impending school start is only some weeks away.  Clearly, that is an urgent issue and there is nothing in the material that I can see that would suggest that there are forensic issues or difficult factual determinations that would take significant periods of time to hear. 

35. As will be seen, the case was given a hearing date in January and presumably would have proceeded on that date but for the urgent application mentioned.  Curiously, the existing orders that had only been made some weeks before upon completion of the family report were not altered on 6 October 2010.

36. The protocol to which I have referred as a guide to practitioners as well as the courts is to assist in determining which is the appropriate forum for cases.  The problem arises where both courts have concurrent jurisdiction and parties have a right to file proceedings in either court. 

37. If there is to be any philosophical overview describing the distinction between the work to be done by the two courts, it could be said that this court should be dealing with cases that require the attention of a superior court of record.  That point may require consideration of whether there are forensic issues or legal issues that require unusual significant arguments or determinations. 

38. Having regard to those matters and there being no forensic or significant legal issue apparent here, there is no basis of this Court to retain this case.

39. It is of concern that the transfer may have delayed the critical issue which is the hearing of where this child is to live the purposes of starting school in 2011.  However, even if this court retained the case, there are not sufficient resources to enable the case to be heard prior to February 2011. 

40. Based on the material to which I have been referred, there is no basis to give the case priority.  Priority means jumping other cases that are waiting in a queue in circumstances where the resources of this registry are already stretched.  I am not to be taken to be saying that the Federal Magistrates Court does not have resource problems; I am sure that it does.  However, that Court should be hearing cases which can be dealt with efficiently, quickly and expeditiously as its charter suggests.

41. For whatever reason, the Federal Magistrate said that the case should not be returned.  In my view, that should make no difference in this case as it would not be a proper exercise of judicial discretion to be hamstrung by that request.  The determination should be made on the basis of the facts provided. I do not think it is appropriate for any court to make such a comment whether in the form of an order or a notation.

42. Taking all those matters into account, the applications are transferred to the Federal Magistrates Court at Dandenong. It is a matter for the appropriate Federal Magistrate to determine the listing.

I certify that the preceding Forty Two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 November 2010.

Associate: 

Date:  12 November 2010