R and R
[2002] FMCAfam 222
•30 May 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| R & R | [2002] FMCAfam 222 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Jurisdiction of the Federal Magistrates Court to deal with a stay application of orders made by the Family Court of Australia on an interim basis. |
| Applicant: | RFR |
| Respondent: | SKR |
| File No: | PAM1629 of 2002 |
| Delivered on: | 30 May 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 30 May 2002 |
| Judgment of: | FM Scarlett |
REPRESENTATION
| Solicitors for the Applicant: | Mr McKay, Baldock Stacey and Niven DX 28417 Parramatta |
| Solicitors for the Respondent: | Mr Cameron, Mills Cameron Gallager DX 4416 Epping |
ORDERS
The application to deal with the wife for contravention of a child order filed on 3 May 2002 is listed for final hearing on Monday 3 June 2002 at 10am.
Order 4(a) made by the Family Court of Australia at Parramatta on 28 March 2002 is suspended until 5 pm on Monday 3 June;
I grant leave to the wife to amend her Application filed on 16 May 2002 by substituting the date 28 March 2002 for 26 March 2002 wherever that date appears.
I disqualify myself from hearing the above application.
The wife’s Application filed 16 May 2002 to set aside the Orders made by the Family Court of Australia at Parramatta on 28 March 2002 is transferred to the Family Court of Australia at Parramatta AND I REQUEST that the matter be brought before the Honourable Justice Purdy at an early date.
I require a transcript of my reasons for this decision.
FEDERAL MAGISTRATES |
PAM1629 of 2002
| RFR |
Applicant
And
| SKR |
Respondent
REASONS FOR JUDGMENT
The proceedings before this Court today involve an application by the father for the mother to be dealt with for contravention of Orders for Contact made by Purdy J in the Family Court of Australia at Parramatta on 28 March 2002. Those Orders provided that for a period of 12 months there should be supervised contact on one day each alternate weekend for two hours at the Central West Contact Centre, on dates and at times to be determined by arrangement between the parties in the CWCC, such that one, the first two periods of contact involve only the children M and B. Two, the third and fourth periods of contact involve only the children B, M and B. Three, the fifth and sixth periods of contact involve only the children T, B, M and B; and the four, that the seventh and eighth and all subsequent periods of contact involve all five of the said children.
These Orders were made by His Honour after a four day hearing in the Family Court. There is nothing at law to prevent contravention proceedings in respect of those Orders being brought in the Federal Magistrates Court. Section 19 of the Federal Magistrates Act 1999 sub-section (2) specifically allows such proceedings to be brought, even if there were proceedings in respect of an associated matter pending in the Family Court. In any event, there are at present no proceedings in respect of an associated matter pending in the Family Court. Those proceedings came to an end on 28 March. No appeal has been lodged against that Court's decision.
The contravention proceedings are listed for hearing on a defended basis on Monday 3 June. As I have indicated there is time available for the Court to commence those proceedings earlier than was originally believed possible and I have now listed that application for hearing on a defended basis for 10 am on Monday 3 June.
The application before the Court today however is an application filed by the mother on 16 May with returnable on Monday the 20th. In that application the mother seeks final Orders setting aside the Orders made by the Family Court on 28 March. She seeks interim Orders as follows. One, pending further Order, compliance by the wife with the Orders made in the Family Court of Australia at Parramatta on
26 March 2002 be stayed. That application is opposed by the father and I have had the opportunity of hearing Mr McKye, solicitor for the mother and Mr Wilson of Counsel for the father.
In the application brought by the mother, or subsequent to and simultaneously with that application there is an affidavit by the mother to which a copy of His Honour's judgment was annexed and to which a letter from one KDR, social worker dated 9 May 2002 was also annexed. In that letter Ms DR indicates that on 2 May she made a referral for the family to attend the Child & Family Unit at Redbank House. That referral was made after discussion with the consultant child and family psychiatrist, Dr Megan Chambers. A three-week stay was requested so that further assessment of the family could be made.
Redbank House is a psychiatric institution which deals with psychiatric issues involving adolescents. As has been put to me in the course of argument today, it does not have a large capacity – some eight beds, and a referral of the mother and five children would certainly strain the capacity of that institution. At this stage there has been no admission to the hospital. It has also been put to me that the mother with the children, has an appointment to see a psychiatrist in respect of the children, but that is not until I believe the 18th.
In the mother's affidavit she refers to certain behaviour on the part of several of the children. She says in paragraph 6:
“The fact that there are Contact Orders in place has caused my children to engage in the following behaviours since the Orders were made. When B was told that he would be seeing his father I was collecting him after the Court Orders were made, from his out of school hours care. He became hysterical and was so distraught that there were other children and adults in tears at the out of school hours centre. B has opened and slammed doors in our house with such force that the doors have come off the hinges. M has stolen property from other children and has been bullying other children at school. B has learning difficulties which have increased. He is not doing his homework”.
There are further descriptions of symptoms being displayed by B which go on in paragraph 7.
It has been pointed out to me of course by Mr Wilson of Counsel that the first contact periods envisaged only involve the children M and B. It is not until the third and fourth periods of contact that B is to be involved and it is not until the fifth and sixth periods of contact that T is to be involved, and indeed B does not become involved until the seventh and eighth and all subsequent periods of contact. I note that there is no specific allegation of any acting out behaviour or symptoms relating to the child B.
What the Court is being asked to do, is to in the interim, stay those Orders. Mr Wilson has pointed out for the father that it is not in his submission, a change of circumstances as Mr McKay has put to me for the mother. That in fact there has been no contact on his submission, and he has made the allegation that the mother has had no intention of cooperating with any of the Contact Orders.
I would indicate that I have certain concerns about what is proposed. Normally at law the first person one asks to stay an Order is the person who made it, or at the very least the Court that made it. In this case the Federal Magistrates Court is being asked to stay an Order of the Family Court. As I said there is no appeal lodged in these proceedings. The application in its final form is in fact an Order to set aside Orders made after a four day hearing by a judge of the Family Court. A concern would be that this is tantamount to a form of a back door appeal in that the Federal Magistrates Court is being asked in effect to conduct an appeal against the findings of the Family Court, or at least to, as Mr Wilson suggests is the case, re-argue the matter that was already argued four days earlier this year, leading to the Orders on 28 March.
I am mindful of the fact that the contravention proceedings are due to be heard this coming Monday 3 June and no doubt the issues referred to in the mother's affidavit in support of her application will be argued in the proceedings before this Court, where the mother is the respondent for contravention application.
At this stage I am of the view that it is inappropriate for the Court to stay Orders that are made by another Court of competent jurisdiction. If the matters which were heard on a defended basis in the Family Court over a period of four days are to be the subject of further litigation, then I am of the view that either leave should be sought to appeal to the Full Court of the Family Court, or that at the very least, the Court that made the Orders, namely the Family Court, should be the Court that is to be asked to reconsider those Orders. If indeed the case of the proceedings before His Honour took four days on the previous occasion, from a practical point of view I would be very surprised if this could be taken in less than two days in this Court.
I am certainly not of the view that this application is appropriate to be dealt with by the Federal Magistrates Court. The contravention proceeding can at law be heard in this Court and it will be heard on Monday. Quite clearly, it could not be heard any earlier in the Family Court and indeed, some time has become available, a greater degree of time has become available than I originally envisaged when I listed the matter for hearing, and the interests of the administration of justice and the resources of the Federal Magistrates' Court being sufficient to hear and determine those proceedings, are matters that the Court must consider when looking a discretionary transfer of proceedings to the Family Court under s.39 of the Federal Magistrates Act 1999.
I am of the view therefore that contravention proceedings should stay in this Court and they should be heard on a final basis on Monday. In the circumstances it would be, in my view, inappropriate for me to hear those proceedings, bearing in mind the nature of the matter that I have dealt with today, notwithstanding the fact that no evidence has been taken, and it is not a case of either party being believed or not believed on their oath. In any event I am not available on Monday. I will be sitting elsewhere. One of my colleagues is available to hear the matter and hear it she will, I have no doubt of that.
I am of the view however that the application to set aside His Honour's Orders should go to the Family Court at this stage, if there is to be an appeal and that is a decision for the mother to consider. As far as any stay is concerned, I consider that that is at this stage inappropriate, although I am of the view that as this coming weekend would be, I am told, a weekend when contact would be expected, that there is very little point in contact being sought to take place over the weekend.
I am prepared to make an Order suspending His Honour's Orders until the contravention proceedings can be heard in full on Monday, but I am not prepared as I said, to stay those Orders and I would not be prepared to suspend those Orders past 5 pm on Monday, and by that stage the application would have safely have been heard.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 2 August 2002
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