PINFOLD & CRAMMOND

[2020] FCCA 324

FEDERAL CIRCUIT COURT OF AUSTRALIA

PINFOLD & CRAMMOND [2020] FCCA 324

Catchwords:
FAMILY LAW – Transfer to the Magellan list in the Family Court of Australia.

Legislation:

Family Law Act 1975 (Cth), s.68L

Federal Circuit Court of Australia Act 1999 (Cth), s.39

Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MS PINFOLD

Respondent: MR CRAMMOND

File Number: NCC 453 of 2016

Judgment of: Judge Morley

Hearing date: 8 January 2020

Date of Last Submission: 8 January 2020

Delivered at: Sydney

Delivered on: 8 January 2020

REPRESENTATION

Solicitors for the Applicant: Mr Winder of Winder Lawyers

Solicitors for the Respondent: Mr McMah of ABF Legal

Solicitors for the Independent Children’s Lawyer: Mr Whelan of Mark Whelan Lawyer as amicus curiae

ORDERS

1. Pursuant to s.68L of the Family Law Act 1975 the interests of the children Y, born in 2013, and X, born in 2010, are to be independently represented by an Independent Children’s Lawyer in these proceedings.

2. The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order, and the Court requests that consideration be given to allocating the appointment to Mr Mark Whelan, who has been Independent Children’s Lawyer in this matter previously.

3. Each of the parties shall, within seven (7) days of any request by the Independent Children’s Lawyer:

   (a)Complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

   (b)Provide to the Independent Children’s lawyer copies of all any documents filed by them in these proceedings together with:

   (i)Any medical reports they hold relating to the child/ren;

   (ii)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child/ren;

   (iii)Any school reports they hold for the child/ren;

   (iv)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

4. Each of the parties shall present the child/ren to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child/ren.

5. Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

6. Leave is granted to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas by the Independent Children’s Lawyer.

7. The appointment of the Independent Children’s Lawyer is made on the following bases:

   (a)There are issues of anti-social tendencies on the part of a parent or parents or other persons with whom the children come regularly into contact;

   (b)There is a history of litigation by either or both parents;

   (c)There are allegations of abuse amounting to sexual abuse by one party’s partner against the child.

8. By consent, pending further order and without admissions, orders are made in accordance with the document entitled ‘Draft Consent Orders’ initialled by me, dated today and placed with the Court file.

9. Direct the solicitor for the Independent Children’s Lawyer to provide a typescript of the ‘Draft Consent Orders’ made today in Microsoft Word format direct to my Associate by email ([email protected]) within 2 working days of today’s date.

10. Pursuant to s 39 of the Family Law Act 1975, transfer these proceedings to the Family Court of Australia, Sydney Registry, and request that these proceedings be brought to the attention of the Magellan List Registrar as soon as possible for listing and the making of directions.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

NCC 453 of 2016

MS PINFOLD

Applicant

And

MR CRAMMOND

Respondent

REASONS FOR JUDGMENT

The protocol

1. I refer to the decision of Tree J in Morris & Rosetti (2017) FamCA 249 in which his Honour set out a summary of the bases upon which matters should be considered in the discretion of this Court for transfer to the Family Court of Australia. His Honour referred first of all to the protocol devised between the heads of jurisdiction of both the Family Court and the Federal Circuit Court of Australia, in the past. That head of jurisdiction is now the same judicial officer. But nevertheless, the protocol continues to apply.

2. And the protocol provided that if any of certain criteria applied then an Application for orders filed in the Federal Circuit Court of Australia ought to be considered for transfer to the Family Court of Australia, and one of those particular criteria was where:

   6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable

3. This is a matter where serious allegations of sexual abuse of a child or children have been made by the respondent father in responding to the application of the mother for a recovery order. 

4. I note that this is a matter in which a four-day hearing was conducted by his Honour Johnson J as his Honour then was, now retired, and pursuant to which his Honour made final orders on 3 September 2019. And I note that the documentation in this matter lodged on behalf of the applicant mother was originally proposed to be filed in the Newcastle Registry, but was transmitted by that Registry to the Sydney Registry on the basis that His Honour had conducted the trial in this registry.

5. His Honour now being retired and the application and supporting evidence filed by the mother not reflecting any of the matters referred to in the protocol for transfer between the courts, the matter was listed before me on an urgent basis in this Court. But I find it is a matter appropriate to exercise the Court’s discretion and transfer the matter to the Family Court of Australia.

6. The Federal Circuit Court of Australia Rules,[1] Rule 8.02 provide for a procedure on transfer and set out some factors to be considered by the Court under subsections 39(3) and (4) of the Act[2] in the event that the Court is considering a transfer, and one of those matters particularly applicable to this case is as to which Court a matter is likely to be heard at the earliest available time. And under current circumstances, that would most certainly be the Family Court and most particularly for a matter entered into the Magellan list.

   [1] Federal Circuit Court Rules 2001 (Cth)

   [2] Federal Circuit Court of Australia Act 1999 (Cth).

7. I will note in these short reasons that I have taken a step to the side of the usual protocol in making an order for appointment of Independent Children’s Lawyer in the matter. Despite proposing to and now proceeding to transfer the matter to the Family Court of Australia, I have taken that step in consideration of saving any loss of time in the matter by having that order made now and actioned, and, by including with that order, a request that Mr Whelan who, to his credit, appears before the Court today for the assistance of the Court, be considered for the appointment.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Morley

Date: 18 February 2020