Sandridge and Graycie (No.2)

[2019] FCCA 1272

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDRIDGE & GRAYCIE (No.2) [2019] FCCA 1272

Catchwords:
FAMILY LAW – Parenting 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 SANDRIDGE

Respondent: MS GRAYCIE

File Number: PAC 3944 of 2013

Judgment of: Judge Newbrun

Hearing dates: 18 and 19 March 2019, 9 May 2019

Date of Last Submission: 9 May 2019

Delivered at: Parramatta

Delivered on: 15 May 2019

REPRESENTATION

Counsel for the Applicant:	Ms Breeze
Solicitors for the Applicant:	Family Lawyers & Mediators Australia
Counsel for the Respondent:	Mr Hill

Counsel for the Independent Children’s Lawyer:	Mr Reeves
Solicitors for the Independent Children’s Lawyer	Sydney West Family Lawyers

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 29 May 2019 at 9:30 am.

IT IS NOTED that publication of this judgment under the pseudonym Sandridge & Graycie (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3944 of 2013

MR SANDRIDGE

Applicant

And

MS GRAYCIE

Respondent

REASONS FOR JUDGMENT

Introduction

1. The within Reasons for Judgment relate to this Court’s Order of today that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.

2. The subject children are two boys, [X] aged almost 16 years, and [Y], aged 13 years.

3. The parents hail from India.  The father is aged 51 years, and the mother 47 years.  The parties married in … 2000 in India.  The parties’ relationship was predominantly lived out in Sydney.  They separated in about February 2007.

4. The father works as a professional.  The mother appears not to work in paid employment.

5. There were parenting and property proceedings in the Family Court in Adelaide in 2010.  Parenting Orders were made in those proceedings.

6. In about late 2013 the father commenced proceedings in this Court and there were parenting Orders made on 3 February 2014.

7. The child [X] was the subject of a mental health care plan in about June 2015 and that child had consultations with a psychologist in the second half of 2015.

8. The mother contends that this child has had bullying problems at school in 2017 and that he was depressed and getting sick regularly.  The mother alleges that in about late 2018 this child was not attending school.  This child changed schools in 2019.

9. The parties have previously been in dispute about the younger child’s school.

10. In October 2018 these proceedings were listed for final hearing in this Court with three days allocated for the final hearing beginning on 18 March 2019.  Until a relatively short time prior to 18 March 2019 both parties were legally unrepresented (and see below).

11. Information was provided by the parties and Independent Children’s Lawyer (“ICL”) to the Court on 19 March 2019 and 9 May 2019 such that it is now clear that these proceedings are, inter alia, unlikely to be completed within four days of final hearing, and in any event, are complex.

12. The mother is presently legally unrepresented.  On 9 May 2019 Mr Hill of Counsel appeared for her only on an amicus basis. The father presently has legal representation.  The mother indicated to the Court that she will endeavour to have legal representation at any future final hearing.

13. The father now contends that the Family Report of 15 March 2018 is stale in that the views of the children have changed since the Family Report interviews in February 2018.  The father bases this contention on the clinical notes of the Court-appointed family therapist Dr A, and the ICL does not appear to dispute the father’s interpretation of such notes.  The father contends that this family therapist should now be appointed as an expert to prepare a wishes report on behalf the children, after being discharged as the Court-appointed family therapist.  The father contends that the children have been over-interviewed, they like the family therapist, and it would not be in their best interests for the Family Report writer to re-interview them.  The mother contends that the children’s wishes have been properly stated in the current family report.  The ICL contends that the Family Report writer should prepare a supplementary wishes report.  This outstanding issue remains outstanding and undetermined, and, respectfully, should be best dealt with by the Family Court of Australia.

14. The father proposes to call at least two lay witnesses and subpoena six possibly hostile witnesses to attend and give evidence.  The mother proposes to call her partner, her brother and the maternal grandfather.

15. Besides the Court-appointed expert, there is a real chance that one or more treating health professionals in relation to the children will be called as witnesses.

Issues in dispute

1. The issues in dispute include the following:

   a)The nature and extent of each parent’s relationship with each child;

   b)The nature and extent of alleged family violence perpetrated by the parties towards each other, and the relevance of same for each party’s parenting capacity;

   c)The parenting capacity of each party;

   d)The views of the children;

   e)The mental health of the children, including alleged emotional abuse committed by the parties towards the children;

   f)The mental health of the parties;

   g)Whether there has been alienating behaviour by a parent;

   h)Which party the children should live and spend time with;

   i)The stability of living arrangements for the children;

   j)The level of animosity between the parents that the children are exposed to;

   k)Whether the parties should have equal shared parental responsibility or whether sole parental responsibility should be assigned to one parent.

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. 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”).

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

   a)Expert witnesses;

   b)The father and mother, in relation to a multiplicity of issues, as referred to above;

   c)Lay witnesses: up to at least eleven witnesses, six of whom may be hostile.

3. To date, the parties have filed numerous Affidavits, and their Affidavits from two sets of previous parenting proceedings may well be utilised in the present parenting proceedings also.  Subpoenae for production of documents have already been issued to at least eight different entities, including the family therapist.

4. There is likely to be tendered in evidence extensive documentary evidence.

5. 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.

6. 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.

7. Further, as to section 39(4)(c) of the Act, the resources of this Court are not sufficient to hear and determine the proceedings in a timely fashion.

8. 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:

   a)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 delays in appointing a fixture for a final hearing, compared to the Family Court of Australia.  Further, in parenting proceedings of this nature, in particular involving allegations of significant alienation and mental health issues, the Family Court of Australia has greater expertise.

   b)The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.

   c)These proceedings are complex by reason, inter alia, of the significant dispute between the parties relating to alienation and mental health issues.

   d)Again, having regard to the issues to be determined between the parties, these proceedings are likely to take in excess of four final hearing days.

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

9. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with the ICL, mother and father not objecting to the transfer.

I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 15 May 2019