Pacetti & Dambrose (No 3)
[2021] FCCA 862
•22 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Pacetti & Dambrose (No 3) [2021] FCCA 862
File number(s): PAC 2061 of 2018 Judgment of: JUDGE NEWBRUN Date of judgment: 22 April 2021 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
Family Law Act 1975, s 67Q
Mental Health Act 2007Cases cited: Rice & Asplund (1979) FLC 90-725
Swenson & Brantley (No 2) [2020] FamCAFC 205
SPS & PLS [2008] FamCAFC 16
Marsden & Winch [2009] FamCAFC 152
Olenghi & Salambo [2021] FamCA 9
Searson & Searson (2017) FLC 93-788
Morris & Rosetti [2017] FamCA 249Number of paragraphs: 76 Date of last submission/s: 31 March 2021 Date of hearing: 31 March 2021 Place: Parramatta Solicitor for the Applicant: The Applicant appeared in person Solicitor for the Respondent: Mr Kirby Solicitor for the Independent Children's Lawyer: No appearance ORDERS
PAC 2061 of 2018 BETWEEN: MR PACETTI
Applicant
AND: MS DAMBROSE
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
22 APRIL 2021
THE COURT ORDERS THAT:
1.There has been a significant change in circumstances since the Court’s Final Orders of 7 August 2020 such that, acting in the best interests of the child, X born 2016, the parties should be permitted to seek fresh parenting orders in relation to the child.
2.These parenting proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with a mention date to be held in that Court on 13 May 2021 at 9.30am.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Pacetti & Dambrose (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
This is firstly the determination of whether the parties should be permitted to seek fresh parenting orders following final parenting orders being made on 7 August 2020, after a three day defended hearing. The Court is required to determine whether there has been a significant change in circumstances (see the decision in Rice & Asplund (1979) FLC 90-725) since the Court’s above Orders. The Court had on 18 February 2021 directed the parties to file written submissions in relation to this Rice & Asplund issue, in particular after the Mother had sought fresh parenting orders as set out in her Application in a Case filed 29th of January 2021 and after the Father had sought fresh parenting orders in his Response filed 8 February 2021. On 31 March 2021 the Court had heard the parties’ oral submissions in relation to this Rice & Asplund issue, and the Court had reserved its judgement.
And secondly this is the determination of whether these proceedings should be transferred to the Family Court of Australia at Parramatta, by reason of their likely length and complexity.
The subject child is X born 2016.
The Mother is aged about 39 years, and she hails from Country N. She lives in Suburb EE.
The Father is aged about 32 years. He lives with his parents in their home in Town K.
The Court’s above final parenting Orders essentially provided for the child to live with the Father, and spend time with the Mother on a graduating basis, ultimately leading to the child spending time with the Mother three nights per fortnight and block time with her during school holidays.
The child has not spent time with the Mother since about 19 January 2021 as a result of the Father not facilitating time since then.
The Father has legal representation. The Mother does not have legal representation, she having been refused legal aid representation. There is an ICL.
PROPOSALS
The Mother seeks fresh parenting orders, inter alia, that the Court’s Orders of 7 August 2020 be discharged; and that the child spend supervised time with the Father.
The Father seeks fresh parenting orders, inter alia, that Orders 2, 4, 5, 6, 7, 13, 14, 15 and 23 of the Court’s final parenting orders be discharged; and that the child spent supervised time at a contact centre each fortnightly Sunday from 10 AM to 1 PM with the Mother.
MATERIAL RELIED UPON
The Mother relied upon the following documents:
(a)Application in a Case filed 29 January 2021;
(b)Amended Application in a Case filed 15 March 2021;
(c)Short Submissions document filed 18 March 2021;
(d)The documents set out on page 2 of the above Short Submissions document, including her Affidavits filed 29 January 2021, 4 March 2021, 15 March 2021, and 6 April 2021.
(e)Brief Submission on transfer dated 21 April 2021.
The Father relied upon the following documents:
(a)Short Submissions document filed 4 March 2021;
(b)Brief Submissions of the Father on transfer dated 16 April 2021;
(c)Affidavits of Father filed: 21 November 2020, 2 December 2020, 8 February 2021 (2 Affidavits of this date), 30 March 2021;
(d)Response to Application in a Case filed 8 February 2021.
The following Exhibits were relied upon:
(a)Exhibit A: Documents contained within sleeves 45 and 48 of NSW Police subpoenaed documents.
EVIDENCE
The Court does not propose to set out all the material before the Court.
Again, the Court’s final orders were made on 7 August 2020. The Court refers to its Reasons for Judgment relating to those Orders.
The Father alleges that he is fearful of the Mother as she is “unpredictable and violent”. The NSW police applied for an extension of the AVO and proceedings were heard in the Suburb F Local Court on 6 August 2020 to extend the AVO against the Mother for the protection of the Father; an extension was made and the AVO expired on 6 February 2021. In this context, the Father alleges that as a result of the Mother’s conduct and stress associated with facilitating time between the child and the Mother, he has been regularly seeing a counsellor through Victims Services.
The Father alleges that on about 23 September 2020 the child’s preschool gave the Father two weeks’ notice to leave, because the pre-school could no longer offer services due to the Mother’s conduct in calling the preschool almost every day.
The Father alleges that on 17 October 2020 the Mother refused to return the child to the Father at the conclusion of spending time with the child. The Father alleges that with the assistance of a supervisor at BB Counselling, the child was returned to the Father on this day.
The Father alleges that on 16 November 2020 the child told the Father that the Mother had told the child that she would be living with the Mother full-time soon.
The Mother failed to return the child to the Father on 21 November 2020, in accordance with the Court’s Orders.
On 23 November 2020, the Father filed an Initiating Application seeking interim parenting orders, inter alia, that a recovery order issue for the child pursuant to section 67Q of the Family Law Act 1975 (the Act). The Court made a Recovery Order on 24 November 2020.
Pursuant to the above Recovery Order, Police attended the Mother’s residence to recover the child on 24 November 2020. The Father alleges that initially the Mother refused to hand the child to the police. The Father alleges that the police called for backup and were about to use a battering ram to force entry to the home. The Father alleges that a police officer told him that when the Mother saw the battering ram she opened the door. The Father alleges that the police took the child who appeared to the Father to be very scared and was shaking and crying.
On 4 December 2020, the proceedings were mentioned before the Court following the making of the above recovery order. Inter alia, by consent and without admissions, the Court made an order that the Father take all reasonable steps to ensure that the paternal grandmother does not physically chastise the child; this Order was made in circumstances where the Mother was alleging that the paternal grandmother was inappropriately physically chastising the child.
On 21 December 2020, by consent, and without admissions, an interim Order was made that the Father take all reasonable steps to ensure that the paternal grandmother does not yell at the paternal grandfather in the presence of the child; this Order was made in circumstances where the Mother was alleging that there was excessive verbal disputation between the paternal grandparents in the presence of the child.
On 9 January 2021, an officer from the contact centre warned the Mother, by email, that she had been late to multiple changeovers and had been rude to staff.
The Father alleges that on 16 January 2021 he collected the child from BB Counselling at the conclusion of the Mother’s time with the child. He alleges that the child was returned 23 minutes late and with no underwear.
On 18 January 2021, the Father received an email from an officer from BB Counselling to advise that changeover services would be suspended on 19 January 2021 because the Mother was late 23 minutes on Saturday, 16 January 2021.
The Father alleges that on 19 January 2021 he was informed by an officer from BB Counselling that the Mother had arrived at the contact centre that morning despite the officer sending the Mother an email cancelling the changeover. The officer allegedly told the Father that the Mother, when informed that today’s visit was suspended, “blew up to such an extent that she scared me and other patrons in the building. (The Mother) screamed at staff and video recorded staff and patrons in the centre and screamed constantly. I felt unsafe and moved to the staff area. (The Mother) then left and started punching the elevator. A lot of people in the building came out to look at the commotion. I saw a woman downstairs with her jaw wide open in shock.”
Again, as at 19 January 2021, an AVO was in place to protect the Father from the Mother, and a restriction applied to the Mother approaching the Father’s residence within a certain distance.
On 19 January 2021, the Mother attended in person close to the Father’s residence. The Father alleges that the Mother was walking up and down a fence surrounding the Father’s residence screaming, in breach of the AVO. The Father alleges that the child, then in the care of the paternal grandparents, could hear the Mother screaming at this time. The police attended upon the Father’s residence at this time. The police caused the Mother to be sectioned under the Mental Health Act 2007 and taken to Hospital HH, inter alia, after the Mother had allegedly expressed suicidal intent. The Emergency Department Assessment Note stated, “seen by JJ under section 22 for suicide intent. Police report stated that she called 000 stating that they will find her dead body at the property, whilst on way to ex-partner’s home where there is a 200 m AVO in place.” The Mother was assessed by a resident doctor at the hospital and left hospital the same day. The hospital’s medical records of that date indicate that the Mother, despite recommendations from nursing staff, left the hospital having stated that she would self-present to a police station to deal with her alleged breach of the AVO.
The Father alleges that on 20 January 2021 whilst he was at the back of his residence, he heard the Mother’s voice talking to someone in the distance. He alleges that the Mother got into her car and left.
The Father alleges that on 23 January 2021 the police attended his residence. He was allegedly advised by the police at this time that the Mother had called 000 stating that her friend had walked past the Father’s residence at this time and could hear the child being abused. The Father alleges that the police informed him that the Mother had kept calling the local police station despite their requests to the Mother to cease calling, and that then the Mother had called 000.
The Father alleges that on 25 January 2021, the Mother tagged him in a Social media post which led him to find another online social media account the Mother had made. He alleges that the account entitled, “XXXXX X” contained posts of the Mother defaming, intimidating and harassing him. He alleges that amongst other things, the posts attempted to get him fired from his employment as the posts tagged and name his employer, work address and store that he works at, stating that the Father is a domestic violence perpetrator; the Court refers to Annexure M to the Father’s Affidavit filed 8 February 2021 as to the content of the Social media posts.
The above Social media posts contain images of the Mother on the steps of the Garfield Barwick Commonwealth Court Building in Parramatta protesting.
The Father alleges that on 25 January 2021, the paternal grandfather was admitted to hospital with a stroke. He alleges that the paternal grandfather has been stressed by these proceedings for some time but that his stress was exacerbated when the Mother allegedly breached the ADVO and attended his residence.
Further, the Father refers to the images on the Social media posts created by the Mother of stopping “child abuse”. The Father refers to his review of videos that the Mother had posted to the Social media page. He alleges that the videos contained conversations between the Mother and child where the Mother had questioned the child about being allegedly abused by the paternal grandmother, conversations with the Mother claiming that the child will start living with her, and another post that was made during the course of the Mother’s arrest by the police on 19 January 2021. The Father exhibits to his Affidavit filed 8 February 2021, Annexure I, a compilation of the video recordings.
The Father alleges that the above video recordings include the Mother questioning the child about alleged assaults by the paternal grandmother. Further, the Father alleges that the above video recordings include the Mother advising the child that she would live with the Mother. The Father also refers to and alleges that one of the video recordings indicate the Mother was driving a motor vehicle as she was making a video recording and a female passenger stating to the Mother, “Don’t film-you are driving”.
The Father asserts that on 16 February 2021, a conditional release order was made in relation to the Mother by the Local Court in relation to her breach of an ADVO on 19 January 2021.
In the Father’s Affidavit filed 30 March 2021, he alleges that on 12 March 2021 he telephoned the child’s preschool after certain messages were left on his phone from the pre-school. He alleges he telephoned the pre-school and was told by a staff member that the Mother was present at the pre-school and that the Mother had initially approached staff stating that it was her birthday and that she wanted to say hello to the child. They allegedly told the Father that the Mother has then approached the child, taken her by the hand and was now claiming that the Court Orders allow her to take the child from the centre. The Father alleges that as he was speaking to the staff member on the telephone he could hear the Mother yelling in the background and arguing with staff. The Father alleges that he could hear a staff member yell out that the Mother was not supposed to take the child and that the Mother should be stopped. He alleges that he remained on the phone and could hear yelling and screaming of words which included, “Stop, stop, get her out of the car, shut the boom gate stop” and the Father alleges that he then heard in engine revving loudly. The Father alleges that after a few moments the staff member returned to his call and sounded shocked and told him that, “(the Mother) has just run back to her car with (the child). I tried to get the staff to stop her but she has raced off with (the child) and almost run over two of our staff members.” The Father alleges that he then attended on the police at Parramatta.
The Father alleges that a staff member from the pre-school telephoned him later that evening, stating, amongst other things, “While I was on the phone with you I instructed the staff to lower the boom gate and when it became clear that (the Mother) had no intention of letting (the child) out of the car, a staff member stood in front of the vehicle while another banged the windows and yelled at (the Mother) to let (the child) out of the car from the rear. (The Mother) revved the car and accelerated in reverse. She almost ran over a staff member, who had to jump out of the way. Another staff member then ran to the exit and tried to pull the boom gate down but couldn’t get there in time and stood in the way. (The Mother) accelerated toward her and she had to jump out of the way into a garden.”
The Father alleges that later that evening he received a call from Police to advise that they had executed the previous recovery order and that the child was with them safe, but a little shaken up, at Suburb DD Police station.
The Father alleges that on 15 March 2021, three days after the child was recovered to him, that he received an email at 7:55 PM from the Mother alleging that the child had a “big red rash” on her private parts. The Father then took the child to Hospital II to have her assessed by a doctor in regard to the alleged rash. The child, according to the Emergency Department Discharge Summary of that Hospital dated 16 March 2021, was examined, with no rash and no signs of trauma being detected. The child was thus discharged home in the care of the Father “with a plan to be followed up by HH child protection services today.” On 16 March 2021 the Father received an email from a counsellor at Hospital HH stating that following consultations with the on-call doctor from the forensic medical unit there was no reason for the child to attend for a forensic or well-being medical.
The Mother refers to events of 19 January 2021. She admits that having been informed by the Suburb C Children’s Contact that there was to be no visitation that day, she left the building devastated and cried out very loudly out of desperation and knocked on the elevator glass a couple of times asking out aloud why she had to be treated so poorly, when she only wanted to see the child as planned. She admits to having had “a very emotional reaction”. She alleges that she was completely devastated to not being able to see the child and she feared that the Father would use the situation to continue to “alienate the child from me”. The Mother admits to driving to the Father’s residence on that day and talking very loudly. The Mother states that she could see the child at the window (of the Father’s residence) and that the child looked very distressed “that she could not come to me”. The Mother admits that she was transported to hospital in an ambulance “because I had told the police that if I would not get to see my daughter they would find my body in the bush. This was an emotional moment and I never actually.. Had the intention to kill myself. However, I feel threatened by (the Father) and his uncle who has an extensive criminal history.”
The Mother admits to having created a social media account where she asked for help from the media, because she feels being “a victim of the underfunded Australian court system.” The Mother states that her goal is to raise awareness on the topic to prevent other parents having to go through the pain and desperation that she has experienced in the past where she was refused access to the child for 15 months.
The Mother asserts that the Father’s behaviour in retaining the child since 19 January 2021 is an example of child alienation by avoiding any communication with the Mother and not enabling the Mother to see the child and nurture their relationship.
The Mother alleges that on 5 January 2021 the child presented at the changeover with many mosquito bites all over her body. The Mother alleges that this was child neglect. The Mother expresses her concern with the child’s safety and alleges that the paternal grandmother has been abusing the child.
As to the Mother’s allegations of abuse of the child by the paternal grandmother, the Mother alleges and contends that the Court’s previous restraining order against the Father, made on 4 December 2020, that the Father take all reasonable steps to ensure that the paternal grandmother does not physically chastise the child is ineffective to prevent the paternal grandmother from abusing the child.
The Mother refers to her ongoing consultations with her treating clinical psychologist, including in relation to the events of 19 January 2021. The report of that psychologist dated 22 January 2021 refers to the Mother’s expression of her feelings of devastation when she was not able to see the child, and that the Mother admitted her mistakes and regretted her behaviour.
The Mother, in her Affidavit filed 15 March 2021, appears to refer to the alleged incident at the child care centre on 12 March 2021 and alleges, “I spoke with the manager for approximately 2 ½ minutes and got in the car. Whilst I was driving away the staff from the centre run towards the gate and attempt to close. I drove away.”
In the above Affidavit of the Mother, the Mother alleges that the child told her on 12 March 2021 that she sleeps with the Father in the same room. The Mother alleges her deep concern that the Father’s “obsession on trying to keep the child away from having a healthy relationship with her Mother may be the result from his undiagnosed mental health. I am deeply concerned that my daughter is being sexually abused by her Father.” The Mother refers to the police attending her premises to recover the child stating that the child “was very upset and started cried and pooped in her pants. Whilst I was cleaning her I noticed a big red rash on her private part, when I question what happened she refused to tell me.”
In the Mother’s Affidavit filed 6 April 2021, in relation to the above alleged incident at the childcare centre on 12 March 2021, the Mother denies yelling while taking the child from the childcare centre. She denies that the staff screamed at her. She admits that the childcare centre staff tried to stop her but that she drove away.
In the above Affidavit, the Mother asserts that the Father has perpetrated “emotional, financially abused and denigrated me to the lowest level a human can ever be treated.”
In the above Affidavit, the Mother states that she has subpoenaed telephone records from the child’s former pre-school centre; the Mother asserts her fear that the Director is a personal friend of the Father and is creating false allegations. The Mother states that she has subpoenaed criminal records from the Director of this pre-school centre.
LEGAL PRINCIPLES
In Swenson & Brantley (No 2) [2020] FamCAFC 205, the Court considered the rule in Rice and Asplund and the principles that apply to such application as stated in paragraphs 20 to 25 of that decision.
In Rice and Asplund Evatt CJ said at 78,905-78,906:
The principles which, in my view, should apply in such cases are that the Court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the Court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material (passage quoted in Hayman and Hayman (supra), at p. 75,680). These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the Court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the Court in reviewing a custody order will vary from case to case.
In SPS & PLS [2008] FamCAFC 16; (2008) FLC 93-363, Warnick J said:
81. Thus, in my view when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
...
83. Accordingly, the rule may not impede hearing an application for a small alteration, which may require only a short and narrow enquiry, but may properly prevent a hearing in respect of more far-reaching changes.
84. Although I do not suggest that, when judgments of the Court in which the rule is discussed are read in full, the rule is in any case inaccurately or even insufficiently expressed, sometimes “shorthand” descriptions of the rule are used and are then taken up by others in later cases. Some phrases used seem to better direct attention to the essential question than others. For example, the phrase used by Nygh J in McEnearney (supra), that a court should discourage a parent from coming back to court where there “is really no startling new circumstance” focuses attention on the character of the circumstance itself. Similarly, terms such as “a substantial change in circumstance since the making of an existing order”, as used by the Full Court in D and Y (supra), may tend to focus attention on the character of a particular event or events. The essential question however is as to the sufficiency of new events to provoke a new enquiry. The answer to this question involves putting events in the context of the broader circumstances pertaining to arrangements for a child and measuring the significance of the events against the significance of the steps that might follow in light of them.
In Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1, the Full Court said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The Court must look at:
(1) The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2) Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3) If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
In Olenghi & Salambo [2021] FamCA 9, Berman J considered the principles of Rice and Asplund and referred to the decision of the Full Court in Searson & Searson (2017) FLC 93-788 (“Searson”) stating:
34. The Full Court in Searson & Searson (2017) FLC 93-788 (‘Searson’) considered the application of the rule in Rice & Asplund and referred at [9] to the remarks by Warnick J in SPS & PLS at [10] that:-
... At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the “best interests principle”.
35. And by further reference to Warnick J’s remarks in SPS & PLS their Honours held:-
12. Yet, as his Honour was at pains to point out, the rule is not the application of some esoteric principle but rather, the practical application of a principle designed to avoid “endless litigation” to the detriment of the relevant children in circumstances where otherwise the principles of res judicata do not apply.
36. In Searson the following appears at 77,458:-
16. In Marsden & Winch the Full Court said:-
[57]. In Miller ... the Court posed the question:
[105] Adapting the language used by Warnick J in SPS & PLS ... the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
[58]. That question might be better formulated in another way in the following proposition, namely that there is a requirement:
(1) for a prima facie case of changed circumstances to have been established; and
(2) for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
DISCUSSION
The Court held an interim hearing on 31 March 2021 in relation to the above Rice and Asplund issue. The Court explored in some detail the contentions of each party and ICL in relation to this issue. The Court has since reflected significantly upon the submissions made by each party and ICL in relation to this issue, and has considered all the material presently before it in relation to this issue.
The Court has come to the conclusion, following established legal principle, referred to above, that there has been a material change in circumstances since the Court’s Final Orders of 7 August 2020 such that, acting in the best interests of the child, the parties, and ICL, should be permitted to seek fresh parenting orders. In the view of the Court, there is a likelihood of orders being varied in a significant way, as a result of a new hearing. The Court is of the view that such likelihood outweighs the potential detriment to the child caused by fresh litigation.
There is a significant suggestion, based on the material before the Court, that:
(a)There has been a particularly significant breakdown in trust between the parties, in relation to the child, since the Court’s Final Orders of 7 August 2020. The Court observes that the Father has been unwilling to facilitate time between the child and the Mother since 19 January 2021 based on his allegations and contentions that the child is at risk of significant harm spending time with the Mother unsupervised. The parties’ ability to communicate with each other, even by email, in a cooperative fashion in relation to the child, would appear to be significantly adversely compromised since the Court’s Final Orders.
(b)The Court has a real concern as to whether the parties could now reach agreement in a timely fashion in relation to major decisions affecting the child. In the Court’s Final Orders, it ordered the parties have equal shared parental responsibly for the child.
(c)There has been significant conflict between the parties since the Court’s Final Orders, despite the passage of time since those Orders, and the child has been exposed at times to such conflict.
(d)The Mother holds strong views that the Court’s Final Orders of 7 August 2020 are unjust and that those Orders are facilitating the Father and the paternal grandmother allegedly abusing the child, both physically and psychologically. The Mother alleges that the paternal grandmother is physically assaulting the child, and alleges a deep concern that the Father may be sexually abusing the child. The Mother alleges that the Father is seeking to alienate the child from her and that this is a further issue of alleged child abuse. The Mother has resorted to the use of social media to criticise the Court and the Father and members of his family. The Mother has taken the child to hospital with a view to obtaining supportive evidence for her contentions of alleged child abuse. The Mother has spoken to the child about the child living with the Mother.
(e)The Mother’s ability to consistently control and regulate her emotions, including when the child is in her care, are now significantly open to question, despite her continued psychological treatment for this issue of emotional regulation. In this context, the Father’s allegations of the Mother demonstrating adverse emotional lability and dangerous and erratic behaviour, both in the presence of the child and otherwise, since the Court’s Final Orders are of particular concern to the Court. Further, in this context, the Court has a significant concern in relation to the present state of the Mother’s mental health and whether it is adequately managed.
(f)The Mother’s willingness to consistently comply with the Court’s Final Orders are significantly open to question. In this regard, for example, the Mother has retained the child on more than one occasion since the Court’s Final Orders resulting in recovery proceedings and police intervention.
(g)In relation to the above matters, the Court has a significant concern that the child has been exposed to conflict between the parties, has been exposed to inappropriate verbal comments by the Mother, and has been exposed to significant emotional dysregulation and dangerous erratic behaviour of and by the Mother, to her psychological detriment.
The Court is of the view that the threshold requirements in relation to the so called rule in Rice and Asplund, as explained by the above discussed case law, have been met, and again, acting in the best interests of the child, the parties should be permitted to seek fresh parenting orders in relation to the child.
TRANSFER OF THE PROCEEDINGS TO THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA
The Court, at the outset, and on reflection, is of the view that this Court should not now proceed to determine the parties’ competing proposed interim orders in relation to the child. The Family Court of Australia at Parramatta, respectfully, should now consider dealing with such proposals.
By reference to the Court’s Reasons for Judgement of 7 August 2020, and by reference to these present Reasons in relation to the Rice and Asplund issue, the Court is of the view that these parenting proceedings are now of such complexity, particularly in relation to the issue of the Mother’s emotional dysregulation and mental health, that they should be forthwith transferred to the Family Court of Australia at Parramatta.
Further, the Court is of the view that this Court’s judicial resources are insufficient to adequately manage the parties parenting proceedings. This Court has previously devoted particularly significant judicial resources and management to the parties’ parenting proceedings including countless directions hearings, numerous interim hearings, and a final hearing held over three days in June 2020. The Mother is now legally unrepresented and it is unlikely that she will be able to secure legal representation in the future, including in the lead up to any further final parenting hearing in this matter.
Further, the Court is of the view that there is now a likelihood that any future final hearing of these parenting proceedings will take in excess of four hearing days. The issues likely to be in dispute between the parties have been referred by the Court in its above Reasons in relation to the Rice and Asplund issue.
As to relevant statutory provisions and principles, in relation to transfer of proceedings from this Court to the Family Court of Australia, 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 Court’s, 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 Court’s 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.
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.
Presently, the parties each seek competing Orders in relation to parenting.
There is likely to be significant evidence, including cross-examination, in relation to the parties’ issues in dispute (see the Court’s Reasons above in relation to the Rice and Asplund issue), including in relation to the Mother’s emotional dysregulation issue and mental health, alleged parental alienation, and the parties’ parenting capacity for the child.
To date, the parties have filed numerous Affidavits in the proceeding, including since the Court’s Final Orders of 7 August 2020.
There have been numerous subpoenas to produce documents filed in the proceedings including to NSW Police.
There is likely to be extensive and significant cross-examination at the final hearing of:
·The Father;
·The Mother;
·Lay witnesses, including the paternal grandmother;
·The family report writer;
·Health professional treatment experts in relation to the Mother’s emotional dysregulation issue and mental health.
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.
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.
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)The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.
(c)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.
(d)The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.
The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with the Father seeking the transfer and the Mother not supporting the transfer.
I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 29 April 2021
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