Peterson & Davis
[2017] FCCA 1332
•23 June 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PETERSON & DAVIS & ORS | [2017] FCCA 1332 |
| Catchwords: FAMILY LAW – Practice and Procedure – Application in a Case – Costs. FAMILY LAW – Practice and Procedure - Transfer to Family Court of Australia. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CG, 61C, 612DA, 65DAA, 68B, 117 Federal Circuit Court Act 1999, s.39 |
| Cases cited: Banks & Banks (2015) FLC 93-637 Slater & Light [2011] FamCAFC 1 Wrensted & Eades [2016] FAMCAFC 46 |
| Applicant: | MS PETERSON |
| First Respondent: | MR DAVIS |
| Second Respondent: | MR CAREY |
| Third Respondent: | MR M DAVIS |
| Fourth Respondent: | MS DAVIS |
| File Number: | PAC 1208 of 2016 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 31 March 2017 |
| Date of Last Submission: | 31 March 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 23 June 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Morley |
| Solicitors for the Applicant: | Reimer Winter Williamson The Lawyers |
| Appearing for the First Respondent: | Ms D'Addona |
| Solicitors for the First Respondent: | Rafton Family Lawyers |
| Appearing for the Second Respondent: | Mr McLeod |
| Solicitors for the Second Respondent: | Mercantile Legal Pty Ltd |
| Appearing for the Third and Fourth Respondents: | Mr Allan |
| Solicitors for the Third and Fourth Respondents: | Kekatos Lawyers Legal Services |
| Counsel for the Independent Children's Lawyer: | Ms Rowley |
| Solicitors for the Independent Children's Lawyer: | Rowley & Associates |
PENDING FURTHER ORDER
That the parenting Orders made in the Federal Magistrates Court of Australia at Parramatta on 24 June 2011 be suspended (except for order 1 of the Consent Orders marked “A” dealing with parental responsibility.)
That the Respondent father spend time with the children on one occasion each month for a period of two hours on each occasion, supervised by either a Children’s Contact Centre or a commercial contact supervision agency, at the expense of the father.
That the father is restrained from consuming alcohol for a period of twelve hours prior to spending time with the children and at all while he is spending time with the children.
That within 7 days the father enrol in courses or engage as follows:
(a)In relation to managing anger;
(b)In relation to parenting after separation; and
(c)With counselling for drug and alcohol abuse.
Pursuant to section 68B of the Family Law Act1975 the father is restrained by injunction from attending at any school or sporting venues at which the children are attending and this order is for the personal protection of each of the children X born (omitted) 2001, Y born (omitted) 2004 and Z born (omitted) 2006 and the mother.
FURTHER ORDERS
That the Application in a Case filed on behalf of the Applicant (wife/mother) on 29 November 2016 is dismissed.
That the oral application for costs arising out of the Application in a Case filed on 29 November 2016 is dismissed.
That the proceedings be transferred to the Family Court of Australia sitting in Parramatta.
IT IS NOTED that publication of this judgment under the pseudonym Peterson & Davis & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1208 of 2016
| MS PETERSON |
Applicant
And
| MR DAVIS |
First Respondent
| MR CASEY |
Second Respondent
| MR M DAVIS |
Third Respondent
| MS DAVIS |
Fourth Respondent
REASONS FOR JUDGMENT
Introduction
On 31 March 2017 the Court heard a number of interim applications in this matter. Those applications related to the following matters:
a)Interim parenting orders sought by the parents;
b)Costs orders arising out of an Application in a Case filed on 29 November 2016 ; and
c)Transfer to the Family Court of Australia.
The proceedings are complex. There are six parties involved, being the Applicant, four Respondents and the Independent Children’s Lawyer. The substantive proceedings relate to both financial and parenting matters.
The Applicant is the mother of the three children the subject of the proceedings. The First Respondent is the children’s father. The children of the relationship are:
a)X, born on (omitted) 2001;
b)Y, born on (omitted) 2004; and
c)Z, born on (omitted) 2006.
The Applicant was discharged from bankruptcy on 6 October 2014. The Second Respondent is the Trustee in Bankruptcy of her bankrupt estate.
The Third and Fourth Respondents are respectively the mother and father of the Second Respondent. They seek only orders in relation to financial matters and not parenting.
Interim Parenting
The Law
The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children.
The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]
[1] see for example Slater & Light [2011] FamCAFC 1at [45]
In applying the primary considerations the Court must give greater weight to the need to protect a child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the parents.
It has been held that a meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the particular child.[3]
[2] Mazorski & Albright[2007] FamCA 520 at [26], cited with approval by the Full Court
[3] Ibid at [122]
In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the child’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence.[4] The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.
[4] S.60CG(1)(b); see the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35]
[5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests. In interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[6]
[6] s61DA(3)
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provides for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests and reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[7]
[7] MRR v GR [2010] HCA 4 at [15]
The Full Court in Goode v Goode[8] mandated that this legislative approach must be followed in all parenting cases, and in particular set out the procedural steps to be followed on an interim application, noting that in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place.
[8] (2007) 36 Fam LR 422, (2006) FLC 93-286
As stated by the Full Court in Keats & Keats, in respect of the conduct of interim proceedings:[9]
…the principles that emerge from cases such as SS v AH [2010] FamCAFC 13, [are] namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.
[9] [2016] FamCAFC 156 at [9]
Issues in Dispute
The central issue for determination is what time, if any, the children are to spend with the father and if such time should be supervised. Such assessment is to be made by the Court at this interim stage with much of the evidence being untested and in dispute and with very few agreed facts.
The Father contends that the children ought to be spending time with him each fortnight from 4pm Wednesday until 8.30am on Monday.
The Mother contends that the children ought to only be spending supervised and limited time with the father, namely that time should occur either at a contact centre or supervised by a commercial contact supervision agency and be limited to two hours twice each month.
The Independent Children’s Lawyers supports a position that any time between the children and the father ought to be supervised.
Agreed Facts
The father was born on (omitted) 1976.
The mother was born on (omitted) 1982.
There are three children of the relationship:
a)X, who at the time of Judgment is 16 years old;
b)Y, who at the time of Judgment is almost 13 years old; and
c)Z, who at the time of Judgment is 10 years and 9 months old.
The parents commenced living together in early 1999, and the mother and children moved out of the former matrimonial home in or about March 2010. At the time of separation the children remained living with the mother.
On 24 June 2011 final parenting orders were made by the Federal Magistrates Court (as it was then known). Those orders provided for the parents to have equal shared parental responsibility, for the children to live with the mother and for the children to spend time with the father.
In September 2014, X went to live with the father where he remained living until January 2016. At about this time the children ceased spending time with the father.
In March 2016 the mother commenced these proceedings and in May 2016 the parents entered into consent orders for the father to spend supervised time with the children at a contact centre.
In November 2016 further consent orders were agreed upon by the parents for the children’s time with the father to occur with Connecting Families pending supervised time at a contact centre, and pending an interim hearing.
The father spent time with the children supervised by Connecting Families on 26 February 2017 and again on 19 March 2017. On the second occasion the session was terminated early by the supervisor.
Other Relevant Evidence
The mother gives evidence to the following effect:
a)That in about May 2015 Y ran away from the father’s home while he was spending time with the father;
b)That on 8 December 2015 the father attended the mother’s home intoxicated and pounded on her door, demanding to talk to her; and
c)That on 28 January 2016, the father was heavily intoxicated and verbally abused X and Y, it appears that Z was present. The mother also alleges that on that day the father damaged property in anger by smashing things up in his house, that he injured his hand which bled in the presence of children. It was after this event that X returned to live with the mother and that the children have refused to spend time with the father.
The father gives evidence to the following effect:
a)That the mother is trying to stop him from having a relationship with the children;
b)That he was not intoxicated on 28 January 2016 and that the events as stated by the mother on that day did not occur in the manner alleged;
c)The mother has changed where the children live, what schools they attend, what medical care they receive and which sports or activities they participate in without involving the father in those decisions;
d)That he has concerns about X may be experimenting with marijuana and as such, the father would like the opportunity of supervising the children more;
e)The children have at times had a difficult relationship with the mother; and
f)That he was punched by a male friend of the mother’s on 24 March 2017 at the (omitted) Hotel when the parties accidentally ran into each other. The father reported the matter to the police on 25 March 2017.
The father says in his Affidavit filed 30 September 2016 that after the May 2016 orders were made, although he agreed to spend time with the children at a contact centre, the more he thought about it, he “did not think it was in the children’s best interest. The idea that I was asking my children to come to a place and be watched while they talked to their father was not something I could come to grips with… Whilst I do not have any direct experience with Contact Centres, my impression is it will reinforce in the kids’ minds the idea that there is something wrong with me or they are not safe with me so I did not complete the Intake Assessment.”
The father has undertaken a number of courses to assist him in parenting the children, such as positive parenting programs and coping with anger. This is a credit to him.
It appears from both parties’ cases that the mother has at times sworn at the father in front of the children. It also appears from both parties’ cases that the parents have a very difficult co-parenting relationship and that their level of co-operative and effective communication in relation to parenting matters is extremely limited.
On 24 February 2017, the parents and the children attended a Child Inclusive Conference with Ms G, who provided a memorandum to the Court arising out of that conference.
To Ms G, X said that:
a)During his parents’ relationship, the father used to “smash plates” and put “holes in walls”;
b)He did not want to spend any time with the father, and that if ordered by the Court to do so he would not go;
c)The father was not directly violent towards him, but he had been violent towards Y and had thrown Y “across the room”;
d)He had been living with the father because he was having trouble with the mother’s then boyfriend but when the father’s drinking worsened he moved back to the mother’s home;
e)The father would become aggressive when affected by alcohol and would “break stuff”. X described the father as an “alcoholic”.
To Ms G, Y stated that:
a)He recalled the father smashing the house and being aggressive;
b)The father was drunk “all the time”;
c)There was an argument that he had with X when he threw a knife at him. The father became angry and put him against a wall and choked him. Y also stated that the father had dragged him by his foot to his room and yelled at him; and
d)He would be scared to spend time with the father, but would agree to spend time with him if it was supervised.
To Ms G, Z said that:
a)She wanted to see the father but “not like before”; and
b)She worried about the father becoming angry and yelling.
None of the children raised any concerns about the mother, except to the extent that X did worry about the mother’s safety, he worried about the father hurting her and also about her choosing a boyfriend that was “no good” which would mean that he would have nowhere to go.
Importantly, Ms G opines that if the allegations that the children have been subjected to and witnessed violence are accurate, they are likely to have a profound impact on the children’s psychological well-being as well as their relationships. If the allegations against the father are accurate, then the children may be at risk of harm in spending time with him. Ms G stated that all of the children presented as having some fear of the father. As such, her recommendation was that any time with the father be supervised until further assessment of the risk issues can be made.
The 15 November 2016 interim orders provide for the children to spend time with the father supervised by Connecting Families. There were some unfortunate difficulties with the intake process, and ultimately the children did not commence spending time with the father until February 2017.
The contact centre notes for 26 February 2017 indicate that the children, while they initially appeared nervous, reacted positively to spending time with their father.
The contact centre notes for 19 March 2017 indicate that the contact was terminated early by the supervisor due to her concerns about the father. The notes record as follows:
Child’s presentation/appearance at beginning of contact
… they presente (sic) to be very quiet.
Attendees’ presentation/appearance
Mr Davis… smelt of alcohol and had been drinking. Mr Davis wasn’t drunk but was under the influence of alcohol.
Greets/welcome
… There was no physical contact and no affection shown.
…
Describe verbal interaction between parent(s) and child/ren
For the time Mr Davis and the children were together the verbal interactions were initiated by Mr Davis. X spoke very little, he spoke only when he was addressed. The majority of the conversation was between Mr Davis, Y and Z. Y and Z responded politely when spoken to.
…
Was there any concerns during contact?
I ended the contact at 3.35pm after consulting with my team leader. Mr Davis arrived at the contact with a strong smell of alcohol on him. When Mr Davis first arrived I didn’t notice the smell. It wasn’t until Mr Davis and the children sat together around a table and we were all sitting close that the smell was over powering (sic)”
The father was not told on the day the real reason for the early termination of the contact, instead he was told that there had been an emergency with the mother and that she needed to pick the children up early, so the visit needed to be terminated.
Determination of Relevant Considerations
The protection of the children from harm is an important matter for the Court’s consideration when weighing up the primary considerations. Indeed, the Court must prioritise the need to protect the children from harm as against the benefit of the children having a meaningful relationship with the parents.
Even if the Court is unable to make findings of fact about many of the issues, the Court is still obliged to take into consideration the various allegations which have been made. In doing so the Court must weigh up any risk of harm to the child, all the while considering what might be in the children’s best interest. It is the existence and magnitude of the risk of harm that is a fundamental matter to be taken into account in deciding what orders are to be made in respect of what time, if any, the children is to spend with the father.[10] The Court is obliged to alleviate the risks of harm, not eliminate them.
[10] M & M (1988) 166 CLR 69 at 77
The Court has carefully considered the evidence in each party’s case as well as the Child Inclusive Memorandum to the Court and formed the view that the likely impact of the allegations of violence and the allegation that the father abuses alcohol, should they ultimately prove correct, is such that there is an unacceptable risk of harm to the children in spending unsupervised time with the father. This is particularly so taking into consideration what the children have said to the Family Consultant.
These are only interim orders, and it is likely that if the matter proceeds to final hearing, there may be a time period of at least six if not twelve months before the matter is decided on a final basis, much depending on the Court’s case load and available resources, whether a single expert’s report is appropriate and when and if one might be obtained.
The length of time that the matter will take to reach readiness for a final hearing is also something which the Court has considered in making these interim orders, particularly in trying to balance the children having a meaningful relationship with both of their parents while ensuring that their safety and well-being are safeguarded as much as possible.
While the interim orders made by consent on 15 November 2016 were understood to be agreed upon on the basis that they would not prejudice the parties’ interim applications the Court must accept that both parents considered at the time the orders were entered into that they were in the children’s best interest.
The absence of discussion of any particular s 60CC factor above does not reflect any failure to consider it. Rather, it is reflective of the Court’s assessment that such factor has no sufficient relevance in the circumstances of this case to displace the determinative significance of those factors which were specifically addressed. [11] It is also reflective of the Court’s assessment that the primary considerations in the instance of this matter are of such weight and significance that they are primarily determinative of the issue at the interim stage.
[11] Banks & Banks (2015) FLC 93-637 at [52].
Parental Responsibility
Section 61C of the Act provides that each of the parents of a child who is not 18 years has parental responsibility for the child. This section states the legal position that prevails in relation to parental responsibility to the extent to which it is not displaced by a parenting order.[12] Section 61DA provides for a presumption of equal shared parental responsibility that applies when the Court makes a parenting order.
[12] See note 1 s61C
As noted earlier, in interim proceedings, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making an interim order.[13] The presumption is also rebutted where there are reasonable grounds to believe that a parent has engaged in family violence.
[13] s61DA(3)
It is noted for the benefit of the parties that in making a final parenting order in relation to a child, the Court must disregard the allocation of parental responsibility made in the interim order.[14]
[14] s61DB
The mother seeks an order for sole parental responsibility. The father’s case is that the final order for equal shared parental responsibility made in 2011 should stand.
The Court is not satisfied on the evidence before it that the presumption of equal shared parental responsibility has been rebutted, nor that it is appropriate at this stage of the proceedings to discharge or suspend the final order made on 24 June 2011 in relation to equal shared parental responsibility. Consequently no order for parental responsibility is to be made at this interim stage.
Conclusion
In all of the circumstances and for all of the reasons set out above, it is in the children’s best for orders to be made as set out at the forefront of these Reasons.
Costs
On 29 November 2016 the Applicant (wife/mother) filed an Application in a Case seeking orders restraining Jim Kekatos from acting for the First, Third and Fourth Respondents in these proceedings and sought costs of and incidental to the Application. The Application in a Case was said to be supported by an Affidavit made by Mr W sworn on 30 November 2016.[15] Such Affidavit was never filed.
[15] this is apparent from the face of the filed document
The first return date of that Application was 31 March 2017, being the interim hearing date. On the 30 March 2017 a short Affidavit of Mr W was filed on behalf of the Applicant.
On 10 November 2016 a Notice of Withdrawal as Lawyer was filed by Bell Lawyers, a firm who previously acted for the First Respondent. The lawyer who had carriage of the matter on behalf of that firm was Andrew Bell.
Nothing on the Court file seems to indicate that Mr Kekatos was ever on record as acting for the First Respondent. There is no evidence in Mr W's Affidavit which indicates to the contrary.
On 19 September 2016 the Third and Fourth Respondents filed an Application in a Case seeking to be joined to the proceedings. Orders joining them were made by consent on 15 November 2016. At the time the documents filed on behalf of the Third and Fourth Respondents indicated that the documents had been prepared by Jim Kekatos from Kekatos Lawyers. The evidence of Mr W is that as at 29 March 2017, Mr Kekatos had told him that he is not acting for the Third and Fourth Respondents. Ultimately the Application in a Case seeking the restraint was not pressed on 31 March 2017.
It was submitted on behalf of the Applicant that it is proper, just and equitable to make an order for costs as the filing of the Application in a Case was necessary and nothing was done about it until 29 March 2017. It was submitted on behalf of the Applicant that Mr Kekatos was an integral part of the conveyancing transaction which is the central nub of the property dispute. Costs of $1,706 were sought, being the scale costs for the preparation of the interim application.
It was submitted on behalf of the Third and Fourth Respondents that the costs application was based on a false premise that the Application in a Case would have succeeded.
The starting position with respect to costs, as set out in s117 of the Family Law Act 1975 (Cth), is that, subject to subsection 117(2), each party to proceedings under the Family Law Act shall bear his or her own costs.
The High Court held in Penfold & Penfold[16] that it is necessary for the Court to make a finding of justifying circumstances as an essential preliminary to the making of an order for costs. The Court is not required to specify the circumstances which justify the making of such an order.
[16] (1980) 144 CLR 311
As long as there is an essential preliminary finding that there are justifying circumstances to make a costs order, there is no additional or special onus which the Applicant needs to establish for an order for costs. It is not the law that a costs order can only be made in what has been described as a ‘clear case’. [17]
[17] See in general the comments made by the Full Court in Wrensted & Eades [2016] FamCAFC 46 and in particular where the Full Court approved the comments of the judge below at [103]
In Latoudis v Casey[18] the High Court stated as follows:
… in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of an unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.”[19]
[18] (1990) 170 CLR 534
[19] Referred to in the context of family law proceedings by Judge Kemp in Cochrane & Cochrane [2012] FMCAfam 984 at [17]
In determining what order, if any, should be made under s117(2) the Court must have regard to the prescriptive but non-exhaustive list of considerations in sub-section (2A). The discretion to award costs is a broad discretion.[20]
[20] see for example Collins & Collins (1985) FLC 91-603.
Rule 21.02(2) Federal Circuit Court Rules2001 provides that in making an order for costs the Court may set the amount of costs; or set the method by which the costs are to be calculated; or refer the costs for taxation under Part 40 of the Federal Court Rules or under Chapter 19 of the Family Law Rules 2004 .
Section 117(2A) of the Family Law Act provides the factors that the Court in ordering what costs, if any, should have regard to.
All relevant matters referred to in s117(2A) must be taken into account: Re David Costs (1998) FLC 92-809; and Braithwaite & Braithwaite [2007] FamCA 468 at [115]). However, in Fitzgerald (as Child Representative for A (Legal Aid Commissioner of Tasmania) v Fish & Anor (2005) 33 Fam LR 123, the Full Court of the Family Court held that there is nothing to prevent any one factor being the sole determinate for an order of costs to be made.
There is nothing on the Court record by way of a Notice of Withdrawal as a Lawyer which has been filed by Mr Kekatos, nor is there any Notice of Address for Service which has been filed on behalf of the Third and Fourth Respondents which indicates that another firm now acts for those parties. The Court is left with the evidence from Mr W and the submissions made in respect of the issue.
The Affidavit of the Third Respondent filed on 3 February 2017 was an Affidavit filed on behalf of the First Respondent and in support of his parenting application. It was prepared by the First Respondent’s solicitors.
The Court is not convinced on the evidence before it and the submissions made that there are circumstances justifying a costs order. The Application in a Case was never argued. There was no concession made by the solicitor who ceased acting for the Third and Fourth Respondents, or the Third and Fourth Respondents that the reason he ceased to act for them was because of the Application in a Case, or because of some conflict or otherwise. The Affidavit of Mr W sworn on 29 November 2016 does not seem to have been filed. No evidence of correspondence regarding the issue was tendered.
As such, the Court declines to make a costs order as sought.
Transfer to Family Court
There exists a protocol between the Federal Circuit Court and the Family Court relating to the division of work between them. It lists, inter alia, that complex questions of jurisdiction or law, and if the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time, are proceedings which ought ordinarily be filed or heard in the Family Court of Australia.
That protocol however, is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
The relevant Federal Circuit Court Rules provide as follows:
8.02 Transfer to Federal Court or Family Court
(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 proceedings.
(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.
Note: See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.
The relevant sections of the Federal Circuit Court Act 1999 provide as follows:
39 (4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; 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.
The Third and Fourth Respondents claim an equitable interest in the real property, the First Respondent’s interests of which have now vested in the Second Respondent.
As at the time of writing this Judgment, and despite two sets of orders previously made, the Defences to the Points of Claim as filed by the Third and Fourth Respondents are yet to be filed.
As noted earlier, the First Respondent is an undischarged bankrupt. Therefore the various competing interests of her estate in bankruptcy and the creditors are being represented by the Third Respondent. Bankruptcy trustees owe fiduciary duties in performing their duties, they are at all times to act in the best interests of the creditors but must always consider the public interest in discharging their duties. The position of a bankruptcy trustee is more complex than the one in which most trustees find themselves in conventional trustee situations.[21]
[21] Murray & Harris, Keay’s Insolvency, Personal and Corporate Law and Practice, 7th ed, at [2.170], footnotes omitted
All parties, including the Independent Children’s Lawyer, submit to the Court that this is an appropriate matter to be transferred. The children have a significantly dysfunctional relationship with the father and there are serious allegations of family violence, particularly in relation to the children. The final hearing time is likely to take more than four days, indeed it may take up to six to eight days.
The very limited resources and significant delays in the Federal Circuit Court are such that the interests of justice would not be properly served if the matter remained in the Federal Circuit Court. It would also mean that significant resources would need to be allocated to this matter to the detriment of many other matters which are before the Court.
For all of those reasons, it is appropriate for this matter to be transferred to the Family Court of Australia.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 23 June 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Jurisdiction
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Natural Justice
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Procedural Fairness
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Remedies
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