Reece and Reece
[2011] FMCAfam 725
•20 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| REECE & REECE | [2011] FMCAfam 725 |
| FAMILY LAW – Application to transfer to the Family Court of Australia – criteria – when parenting hearing listed after property hearing – whether need to determine parenting issues first – hearing time eight days – protocol between the Courts. |
| Family Law Act 1975, ss.75(2), 79(4) Federal Magistrates Court Rules 2001, r.8.02 Federal Magistrates 1999, s.39(4) |
| AJO v GRO (2005) FLC 93-219 |
| Applicant: | MR REECE |
| Respondent: | MS REECE |
| File Number: | MLC 4711 of 2010 |
| Judgment of: | F. Turner FM |
| Hearing dates: | 5 & 8 July 2011 |
| Date of Last Submission: | 8 July 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cantwell |
| Solicitors for the Applicant: | Hogg & Reid |
| Counsel for the Respondent: | Ms Devine |
| Solicitors for the Respondent: | Kelly & Associates Family Lawyers |
| Solicitors for the Independent Children’s Lawyer | Septimus Jones & Lee |
ORDERS
The listings of this matter on 10 August 2011 and 21 November 2011 are set aside.
The matter be transferred to the Family Court of Australia at Melbourne for hearing and determination and to be listed on a date and time to be advised to the parties.
IT IS NOTED that publication of this judgment under the pseudonym Reece & Reece is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 4711 of 2010
| MR REECE |
Applicant
And
| MS REECE |
Respondent
REASONS FOR JUDGMENT
This decision relates to an application to transfer the proceedings to the Family Court of Australia (the “Family Court”).
History
Proceedings in this matter were commenced by an Initiating Application filed by the husband on 24 May 2010 in this Court. That application concerned parenting matters relating to the child of the relationship [X] born [in] 2001, and the wife’s son from a previous relationship, [Y] born [in] 1993.
By order on 31 May 2010 the matter was adjourned to the duty list on
1 June 2010.
By order by consent on 1 June 2010 the Court ordered:
·That [X] and [Y] be independently represented with the cost to be shared equally by the parties.
·That a Family Report be prepared by Dr N.
·That [Y] prepare a draft affidavit, receipt of which into evidence, to be determined by the Court.
·That [X] live with the husband until 4 August 2010.
·That the matter be adjourned to the duty list on 4 August 2010.
·That [X] spend time with the wife.
·That Mr Q (an acquaintance of the wife) supervise all of [X]’s time with the wife.
·That changeovers occur at [C] Police Station.
On 4 August 2010 the matter was adjourned for interim hearing on
5 August 2010.
On 5 August 2010 it was ordered that upon the undertaking by Mr Q that he will not reapply for the return of firearms previously in his possession:
·That the orders on 1 June 2010 be discharged.
·That [X] live with the husband.
·That [X] spend time with the wife as specified.
·That the parties attend upon Mr P for non-reportable therapeutic counselling.
·That the matter be fixed for final hearing on 15 March 2011.
The Court delivered a decision on 5 August 2010 relating to the orders made that day.
An Amended Response and Application in a Case were filed by the wife on 18 January 2011 seeking property orders; an order seeking to restrain the husband from removing [X] from Australia, and an Airport Watch List order in relation to [X].
That application was heard on 21 February 2011. By orders by consent on that day the Court:
·Made interim property orders.
·Restrained the parties from removing [X] from Australia.
·Made a Watch List order relating to [X].
·Referred the matter for conciliation conference on 2 June 2011.
·Listed the matter for final hearing on 10 August 2011 with an estimated hearing time of three days.
The wife appealed against the decision of 5 August 2010. The appeal decision was delivered on 17 February 2011. Although Justice Strickland found merit in the appeal it was dismissed, due to the futility in allowing the appeal (given that the final hearing was to commence in this Court on 15 March 2011).
By Amended Initiating Application filed on 11 March 2011 the husband seeks parenting orders.
The parenting matters came on for hearing on 15 March 2011 when orders were made by consent:
·That [X] spend time with the wife in addition to that ordered on 5 August 2010.
·That [X]’s midweek time with the wife is suspended during school holidays.
·That the matter be listed for final hearing on 21 November 2011 with an estimated hearing time of 5 days.
The property matters were not resolved at the Conciliation Conference on 2 June 2011 and remained listed for final hearing on 10 August 2011.
By Application in a Case filed on 13 May 2011 the wife seeks that the proceeding be transferred to the Family Court for further hearing. In the alternative, if the application for transfer to the Family Court is dismissed, the wife seeks that the proceedings be referred to the docket of a Federal Magistrate other than Federal Magistrate Turner.
On 4 July 2011 the Application in a Case filed on 13 May 2011 came on for hearing. The wife sought an adjournment in order to obtain legal representation. The Court adjourned the matter to the duty list on 5 July 2011 in order for the wife to do so.
On 5 July 2011 the wife’s application for transfer came on for hearing. Ms Devine appeared for the wife, Mr Cantwell for the husband and
Ms Weldon for the Independent Children’s Lawyer. The decision in relation to the issue of transfer was reserved and is the subject of this decision.
Application to transfer
Arguments by Ms Devine
Ms Devine tendered an affidavit by Mr M sworn on 5 July 2011, stating that he contacted the Registry of the Family Court at Melbourne on 5 July 2011 and was advised by Registrar Field that a hearing of
5 to 8 days would be “listed at a date at approximately 3 months time before a Judge”.
Mr M states that it would be less costly for the wife to “have the matter rolled into the one hearing as opposed to two final hearings as there is the associated expense of obtaining transcript of proceedings for the first hearing which relates to property matters” (10 August 2011) and, “that the expense of preparing documents for two final hearings would be extremely burdensome” for their client (the wife).
In the affidavit of Janet Reid (solicitor for the husband) sworn on
1 July 2011, she states that the husband’s position is that the matter should remain listed in the Federal Magistrates Court.
Mr Cantwell consented to the affidavit of Mr M being filed but advised that his instructor had, a few minutes before, spoken to Registrar Field and had been told that “it would be four months from this day to the first day of the hearing and then a further four months to the conclusion of the hearing”; that is a total of eight months from 5 July 2011.
Ms Devine submitted that the difference as to available dates did not matter, as the detriment of the delay was to the wife.
Ms Devine submitted that as the matter is listed for eight days of hearing (final property hearing listed for 3 days commencing
10 August 2011; final parenting hearing listed for 5 days commencing 21 November 2011) “according to the Protocol… it should be sent to the Family Court”.
The Protocol for the division of work between the Family Court and the Federal Magistrates Court provides that:
If any of the following criteria applies, then the application for final orders ordinarily should be filed, and/or heard in the Family Court of Australia:
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
However, it is provided in the first paragraph of the Protocol that:
The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regards to the applicable legislation and the facts and circumstances of the case before him or her.
Therefore, the fact alone, that the final hearings are likely to take eight days, is not of itself determinative of whether the matter should be heard in the Family Court. It is however, a matter which strongly supports a transfer.
Ms Devine submits that for this Court to make orders in relation to the property proceedings, the Court needs to first make determinations under s.75(2) of the Family Law Act 1975 (the “Act”) in relation to the arrangements for the children.
Section 79(4) of the Act provides that:
In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant.
Section 75(2) of the Act provides that:
The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and…
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
In AJO v GRO (2005) FLC 93-219 at p.79,619 the Full Court decided:
The four important steps to be taken in determining a property dispute are well defined (see for example Ferraro and Ferraro at 79,560) and they are:
(a)To identify and value the net property of the parties (usually as at the date of trial);
(b)to consider the contributions of the parties within paragraphs (a)-(c) of s 79(4);
(c)to consider the s 75(2) factors; and
(d)to consider whether the order proposed is just and equitable.
There is much force in this submission by Ms Devine. Owing to the fact that the parenting application was estimated to require five days for final hearing, and due to the unavailability of a block of days earlier than allocated, the final parenting hearing is set down to commence on 21 November 2011. The parenting matters will therefore not be determined before the property matter. The Court returns to this issue below.
Ms Devine submits that under the existing parenting orders made on
5 August 2011 [X] spends only one night per fortnight with the wife, and as she is seeking more, any delay will be to the detriment of the wife.
Ms Devine referred to s.39(4) of the Federal Magistrates Act 1999 which sets out the matters the Court should consider in deciding whether to transfer a matter to the Family Court as follows:
In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Magistrates Court 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 Magistrates Court are sufficient to hear and determine the proceeding; and
(d)the interests of the administration of justice.
Ms Devine submits as to s.39(4)(c), that eight days in a split hearing three months apart, where property matters are listed first, shows that the resources of this Court are insufficient to hear and determine the proceedings. Ms Devine submits that her client will need the transcript, and the cost of the proceedings is going to be substantial. The Court then raised the possibility of hearing the parenting matters in August; and the property matters in November. Ms Devine opposed this as the five day parenting matter could not be completed in the three days in August; also she submitted that the matters should be heard consecutively and be transferred to the Family Court “which is much better equipped to handle a trial of this duration”.
Ms Devine submits that even if the parenting hearing was brought forward to 10 August 2011, things may change between then and the hearing in November, which makes it more cost effective and efficient for the matters to be heard consecutively. The above submissions are of great force.
The most effective way for this matter to be finalised would be for the parenting matters to be heard with the property matters. By doing so, a judgment could be delivered on all issues at the one time.
Ms Devine addressed s.39(4)(d) being “the interests of the administration of justice”. Ms Devine submits that the interests of the administration of justice would be better served by one trial in relation to both parenting and property issues. The Court accepts that submission.
Ms Devine submitted that should I refuse to transfer the matter to the Family Court, her client will argue that I should disqualify myself for reason of apprehended bias. She submitted that is another reason why the administration of justice will be better served by transferring the proceeding to the Family Court.
Ms Devine then referred to r.8.02 of the Federal Magistrates Court Rules 2001 (the “Rules”) which is 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 Federal Magistrates Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e)the wishes of the parties.
Note 1 Subsection 39 (3) of the Act provides that, in deciding whether to transfer a proceeding to the Federal Court, the Court must have regard to:
·the factors set out in these Rules to be taken into account
·whether proceedings in respect of an associated matter are pending in the Federal Court
·whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding
·the interests of the administration of justice.
Note 2 Subsection 39 (4) of the Act provides that, in deciding whether to transfer a proceeding to the Family Court, the Court must have regard to:
·the factors set out in these Rules to be taken into account
·whether proceedings in respect of an associated matter are pending in the Family Court
·whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding
·the interests of the administration of justice.
Because of the way in which these proceedings have developed (including the fact the wife has had four different Counsel) and is still developing, the Court orders the request for transfer may be made by the Application in a Case filed on 13 May 2011. That application was supported by the affidavit of Ms K sworn on 13 May 2011 and Mr M sworn on 5 July 2011. Section 38(3) of the Act was therefore complied with.
Ms Devine submitted that as the case was more complex and complicated and had already been on appeal, it is more appropriate that the matter be determined by the Family Court.
It may be that the question of whether a “parent who may be charged with being implicated in the attempted murder of the other parent, is an appropriate person for children to live with, or spend time with? (see below), will need to be determined by the Court and is a matter of general importance making it desirable for there to be a decision of the Family Court on the matter.
A decision will be required on “whether it would be in the best interests of a child to live, or spend time with, a parent whose acquaintance has been charged with the attempted murder of the father of the child?” This falls within r.8.02(4)(a) of the Rules.
Ms Devine submits as to r.8.02(4)(b) that if the matter is transferred to the Family Court it will be heard at less costs and more convenience to the parties. She submits that one trial will save costs compared with split hearings and the need for transcripts. There is much force in that submission. I have checked my listings for next year and cannot list eight consecutive days until the week commencing 30 July 2012, which would be beyond the available dates in the Family Court advised to each party.
Ms Devine addressed r.8.02(4)(c) and relies on the affidavit of Mr M, sworn 5 July 2011, that if transferred to the Family Court the matter will be listed in three months time before a judge. As recorded earlier, the verbal advice from Mr Cantwell is to the contrary. The Court accepts what is stated in the affidavit of Mr M, notwithstanding that
Mr Cantwell offered to call his instructing solicitor to give evidence. Both parties obtained information from Registrar Field on the same day. Even if the hearing in the Family Court is listed in four months it will be no later than the listing in this Court in November, and appears that it will be a listing of five to eight days and therefore able to cover all issues.
Ms Devine submits that any delay in the property settlement can be dealt with in the final orders.
As to r.8.02(4)(e) the wife seeks that matter be transferred to the Family Court; the husband opposes the transfer.
Arguments by Mr Cantwell
Mr Cantwell referred to his historical narrative of the matter on 4 July 2011 and complained about the lateness of the application for transfer.
Mr Cantwell submits that his client wants the property matter dealt with as soon as possible as he asserts that, arising out of a binding financial agreement, the wife owes him $125,000.00 (Ms Devine contested this in reply). Against that the Court has to weigh the circumstances that the parenting matters need to be determined before the property matters (supra), and the other circumstances raised by
Ms Devine.
Mr Cantwell opposed a transfer to the Family Court.
The Independent Children’s Lawyer
Ms Weldon submitted that it is in the best interests of [X] that the matters be finalised as soon as possible and as effectively as possible.
The Court reserved its decision.
The shooting
On Friday 8 July 2011 the Court received a verbal request from the Independent Children’s Lawyer to list the matter for a telephone mention as the husband had been shot in the chest. That request was withdrawn by the Independent Children’s Lawyer but made later by the husband’s solicitor. The Court conducted a telephone hearing at 4pm on Friday 8 July 2011. Ms Reid appeared for the husband, Ms Devine for the wife and Mr Maplestone for the Independent Children’s Lawyer. Ms M and later Ms R from the Department of Human Services also joined the hearing.
Pursuant to s.91B of the Act, the Court requested that the Department of Human Services intervene in the hearing.
The Court was advised that on the evening of Thursday 7 July 2011, the husband had been shot in the chest and had been run over and was in hospital undergoing surgery. The alleged assailant had shot himself in the foot and was under arrest in hospital.
Ms Reid made an oral application that [X] be taken out of the care of the wife and live with the husband’s daughter from another relationship, until further order. The husband’s daughter is caring for [Y]. Mr Maplestone supported the application, as did the Department of Human Services.
The following orders were made:
(1)The mother deliver the child [X] born [in] 2001 to the [B] Police Station at 7pm on 8 July 2011.
(2)The Department of Human Services attend at [B] Police Station at 7pm on 8 July 2011 to collect [X] and deliver him to Ms A of [address omitted].
(3)Order 1(a)(ii) of the Consent Order Minute of the orders of the Court dated 15 March 2011 is revoked.
(4)Until further order [X] live with Ms A.
(5)Until further order [X] not spend time with his mother.
(6)Pursuant to s.91B of the Family Law Act 1975 it is requested that the Department of Human Services Victoria intervene in these proceedings.
(7)The matter is adjourned to 10am on 10 August 2011.
On Tuesday 12 July 2011 the Court received advice from Detective Leading Senior Constable O that the husband had been shot outside him home, that Mr Q an acquaintance of the wife, had been charged with attempted murder, and that the wife may be charged with an offence. [X] has been delivered to the husband’s daughter. These circumstances raise the possible questions of importance to be decided by a Court as outlined above.
Ms Devine submits that the shooting, adds to the complexity of the matter, and supports a transfer to the Family Court.
In circumstances where the husband is in hospital after suffering a gun shot wound, and where the wife may be charged with a serious offence, it is possible that the issue of where, and with whom, [X] and [Y] should live will not be able to be determined on a final basis until the husband recovers and the outcome of criminal proceedings is known. Therefore the later dates advised by the Registrar of the Family Court to Mr Cantwell’s instructor would still be suitable.
Decision
The Court finds that the following circumstances mean that the matter should be transferred to the Family Court.
·The proceeding is likely to involve questions of general importance.
·If transferred the proceeding is likely to be heard at less cost and more convenience to the parties. The hearing will be able to be conducted consecutively or jointly without the parties needing transcripts. All issues can be determined after one hearing.
·
The earliest date to conduct an eight day hearing before me is
30 July 2012. On the worst estimate, the Family Court can complete its hearing well before that.
·The applicant wife wants the matter to be transferred.
·This Court does not have the resources to conduct an eight day hearing before 30 July 2012.
·It is in the interests of the administration of justice and a requirement laid down by the Full Court in AJO v GRO (supra) that the parenting issues be determined before the property issues. That cannot be achieved before July 2012 in this Court.
·The Protocol provides that matters that would take in excess of four days of hearing time in a final hearing should ordinarily be heard in the Family Court.
·There are no imperatives that the case should be heard in this Court. There are no determinations on the property issues, or, on the facts that now exist, on the parenting issues. All are for decision in the future.
Orders
The Court orders that the listings of this matter in this Court on
10 August 2011 and 21 November 2011 are set aside.
That this matter is transferred to the Family Court of Australia for hearing and determination.
I certify that the preceding sixty-twotwo (62) paragraphs are a true copy of the reasons for judgment of F. Turner FM
Date: 20 July 2011
0