Pecora and Adamsen and Ors

[2018] FCCA 3316

FEDERAL CIRCUIT COURT OF AUSTRALIA

PECORA & ADAMSEN & ORS [2018] FCCA 3316

Catchwords:
FAMILY LAW – Parenting and property 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: MR PECORA

First Respondent: MS ADAMSEN

Second Respondent: MR A PECORA

Third Respondent: MS B PECORA

File Number: PAC 456 of 2016

Judgment of: Judge Newbrun

Hearing date: 3 December 2018

Date of Last Submission: 3 December 2018

Delivered at: Parramatta

Delivered on: 4 December 2018

REPRESENTATION

Solicitors for the Applicant: Mr Bainbridge of Bainbridge Legal

Solicitors for the First Respondent: Mr Williamson of Reimer Winter Williamson The Lawyers

There was no appearance by or on behalf of the Second and Third Respondents

Independent Children’s Lawyer: Ms Blake of Blumberg Family Lawyers

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia, and are listed for first return on 18 December 2018 at 9:30am.

NOTATION

The Court refers to Reasons for Decision in relation to the above Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 456 of 2016

MR PECORA

Applicant

And

MS ADAMSEN

First Respondent

MR A PECORA

Second Respondent

MS B PECORA

Third Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 16 November 2018 that these parenting and property proceedings be transferred to the Family Court of Australia.

2. The wife is aged 34 years, and has worked as a [occupation omitted].  The husband is aged 42 years, and his occupation is [occupation omitted].

3. Their relationship spanned at least some six years, and they have two children, aged six and four.  There was a period when they lived separately and apart under the one roof.

4. The husband contends that the wife has serious mental health issues, including schizophrenia.  The wife disputes that contention, asserting that she has suffered, in the past, brief psychotic episodes with anxiety for which treatment was received.  The wife has adduced psychiatric evidence.

5. The parties hail from [country omitted], and the wife will require a [language omitted] interpreter for the final hearing.  It also appears that one or both of the paternal grandparents, who have been joined to these proceedings as further Respondents, will require a [language omitted] interpreter for the final hearing.

6. The parties’ parenting proceedings have dominated the Court’s time until recently when the parties’ property proceedings significantly escalated.  Today the Court has given leave to the wife to join the husband’s parents as Respondents in the property proceedings; inter alia, the wife contended that joinder of the husband’s parents was necessary to recover matrimonial assets (allegedly in the form of past cash monies received by them from the husband) from them, and further, to prove that certain cash monies passing from the husband to his parents were not repayment of alleged loans made by the parents to the husband.

Issues in dispute

1. The issues in dispute include the following:

   a)Parenting:

   i)The extent to which the paternal grandparents have cared for the children.

   ii)The extent to which the wife has cared for the children.

   iii)Whether the husband perpetrated family violence against the wife during the relationship.  The husband denies perpetrating such family violence against the wife, indicating that the wife imagined it whilst hallucinating.

   iv)The wife’s mental health, the appropriate diagnosis for the wife’s mental health issues, and the extent to which the wife’s mental health interferes with her parenting capacity.

   v)Whether the parties should have equal shared parental responsibility or the husband should have sole parental responsibility for the child.

   vi)The extent to which the children should spend time with the wife; the husband proposes merely that the children spend two nights each fortnight with the wife, with no block time during school holidays, whereas the wife proposes three nights each fortnight during school term times and sharing of school holidays and other special days.

   vii)Whether the husband physically assaulted one of the children during the relationship.

   b)Property:

   i)Whether the paternal grandparents loaned significant cash monies to the husband, or whether they merely advanced monies to the husband for his sole use.

   ii)Whether the paternal grandparents received significant cash monies from the husband, representing matrimonial assets of the parties.

   iii)The nature and extent of the parties’ respective financial and non-financial contributions to the parties’ assets during the relationship, including their respective contributions as homemaker and parents to the children.

Relevant statutory provisions and principles

1. The Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such transfers, as follows:

   14. The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate court in which parties should commence proceedings. It provides as follows:

   If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).

   1. International child abduction.

   2. International relocation.

   3. Disputes as to whether a case should be heard in Australia.

   4. Special medical procedures (of the type such as gender reassignment and sterilisation).

   5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

   6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.

   7. Complex questions of jurisdiction or law.

   8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.

   Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

   Transfers

   1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.

   2. There is no right of appeal from a decision as to transfer.

   15. It is pertinent to make the following observations in relation to the protocol:

   ·    The protocol speaks about the appropriate court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;

   ·    The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”

   ·    Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;

   ·    Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two courts, with the Family Court undertaking work more suited to a superior court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two courts work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.

   16. The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.

   RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

   17. Section 39 of the Federal Circuit Court of Australia Act 1999 relevantly provides:

   (1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to ... the Family Court.

   ...

   (4) In deciding whether to transfer a proceeding to the Family under subsection (1), the Federal Circuit of Australia must have regard to:

   (a)     any Rules of court made for the purposes of subsection 40(4);

   (b)     whether proceedings in respect of an associated matter are pending in the Family Court;

   (c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and

   (d)     the interests of the administration of justice.

   ...

   18. Rule 8.02 of the Federal Circuit Court Rules provides as follows:

   (1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.

   (2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.

   (3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.

   (4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

   (a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

   (b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

   (c) whether the proceeding will be heard earlier in the Court;

   (d) the availability of particular procedures appropriate for the class of proceeding;

   (e) the wishes of the parties.

Discussion

1. Presently, the parties each seek competing Orders in relation to property adjustment.  The husband seeks an Order that he receive 70% of certain moneys presently held in a trust account ($232,000 in the trust account), and that each party retain, to the exclusion of the other, all other property in the possession of such parties on the date of hearing.  On the other hand, the wife seeks property adjustment Orders whereby she receives 40% of “the property pool”, with the husband receiving 60%.  Further, the wife seeks property related Orders in relation to matrimonial assets allegedly held by the paternal grandparents; in this regard, the wife contends that the husband has paid to the paternal grandparents about $1,040,000 and asserts that a significant proportion of this amount is matrimonial assets.

2. There is likely to be significant evidence, including cross-examination, in relation to all the above issues (under the heading, at the beginning of these Reasons, “Issues in Dispute”).

3. To date, the husband has filed at least seven Affidavits to support his parenting and property contentions.  The wife has filed some thirteen Affidavits to support her parenting and property contentions.  In relation to the contentious issue of the alleged loans made by the paternal grandparents to the husband, the wife’s Affidavit filed 31 October 2018 refers to voluminous financial records comprising over 1500 documents.  There have been over six subpoenas for production of documents filed and served in relation to the parenting proceedings, and numerous subpoenas to produce documents filed and served in the property proceedings, including subpoenas directed to third party banks.

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

   a)The husband and the paternal grandparents in relation to alleged loans made by the paternal grandparents to the husband, and in relation to cash monies paid by the husband to the paternal grandparents.

   b)The husband and wife, in relation to a multiplicity of issues, as referred to above.

   c)The wife’s psychiatrist.

5. There is likely to be tendered in evidence extensive documentary evidence, particularly in relation to the alleged loans made by the paternal grandparents to the husband.

6. The wife will give evidence through a [language omitted] interpreter.  It would also appear that one or both of the paternal grandparents will give evidence through a [language omitted] interpreter.

7. 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.

8. 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.

9. Further, as to section 39(4)(c) of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Act”), the resources of this Court are not sufficient to hear and determine the proceedings. There have been extensive and prolonged interlocutory hearings in this Court to date, particular in the parenting proceedings. Interlocutory judgments have been made by this Court and there have been numerous directions hearings. There are likely to be continued interlocutory proceedings relating to financial disclosure issues in respect to the contentious issue of alleged loans made by the paternal grandparents to the husband and cash monies paid by the husband to the paternal grandparents.

10. Further, as to section 39(4) of the Federal Circuit Court of Australia Act 1999 and Rule 8.02 of the Federal Circuit Court Rules 2001:

    ·The proceedings are likely to be heard and determined at less cost and more convenience to the parties than if the proceedings are not transferred; in this Court, there are likely to be significant waiting periods between the dates of directions hearings, and delays in appointing fixtures for interlocutory disputes, compared to the Family Court of Australia.  Further, in property proceedings of this nature, in particular involving significant disputes relating to complex financial dealings, including overseas financial dealings, the Family Court of Australia has greater expertise;

    ·The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court; property proceedings in this Court, once ready for final hearing (which this case is not), are likely to receive a final hearing date at least twelve months thereafter;

    ·The wife expressed a desire for the proceedings to be transferred to the Family Court of Australia, with the husband not opposing that course;

    ·These proceedings are complex by reason of the significant dispute involving alleged loans made by the paternal grandparents to the husband and cash monies paid by the husband to the paternal grandparents, and the Court refers to its discussion above in these Reasons;

    ·Again, having regard to the issues to be determined between the parties, and other matters referred to above, these proceedings are likely to take in excess of four final hearing days;

    ·The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.

11. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia of its own motion.  Neither party nor the Independent Children’s Lawyer opposed the transfer Order.

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

Date: 4 December 2018