Sanston and Cadel
[2020] FamCA 519
•29 June 2020
FAMILY COURT OF AUSTRALIA
| SANSTON & CADEL | [2020] FamCA 519 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Whether the proceedings should be transferred to the Federal Circuit Court of Australia – Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court – s 33B of the Family Law Act 1975 (Cth) and r 11.17 and 11.18 of the Family Law Rules (2004) (Cth) applied – Where the resources of the Federal Circuit Court are sufficient to determine these proceedings – Where the matter is insufficiently complex to warrant remaining in the Family Court – Proceedings transferred. |
| Family Law Act 1975 (Cth) s 33B Family Law Rules (2004) (Cth) Div 11.3.2, rr 11.17, 11.18 |
| Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 Re W: Publication Application (1997) 137 FLR 205 Summers & Shaw [2011] FamCA 889 |
| APPLICANT: | Ms Sanston |
| RESPONDENT: | Mr Cadel |
| FILE NUMBER: | CSC | 341 | of | 2020 |
| DATE DELIVERED: | 29 June 2020 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 24 June 2020 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
Pursuant to s 33B(1) and s 33B(2)(b) of the Family Law Act 1975 (Cth), these proceedings are transferred to the Federal Circuit Court to be listed on a date fixed by that Court.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sanston & Cadel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC341/2020
| Ms Sanston |
Applicant
And
| Mr Cadel |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 12 September 2012, for reasons then delivered, Benjamin J made final parenting orders (“the 2012 orders”) in relation to the parties’ child, X born in 2009 (“the child”) who was then a little over two years of age, and is now 11. Under those orders, Ms Sanston (“the mother”) was to have sole parental responsibility for the child, who would primarily live with her, but spend two nights each week with Mr Cadel (“the father”), together with time on special days.
Now by Initiating Application filed 13 May 2020, the mother seeks to revisit those orders, and in substance, to not only reduce the time which the child spends with the father from weekly to fortnightly, but also require the father to submit to random drug tests for a period of twelve months, and to compel him to attend upon the E Service until that service determines that the father’s attendance is no longer required. She also seeks interim orders which, insofar as they depart from the 2012 orders, suspend the child’s time with the father under those orders until the father produce recent “other drugs and steroid tests” and again seeks that the father submit to random drug testing and obtain the assistance of the E Service. There were also some other specific orders also sought in relation to the child having contact with other family members, which are of no consequence to these reasons.
On 28 May 2020 a Senior Registrar suspended the child’s time with the father under the 2012 orders, and further ordered that the matter be listed before me “to hear the mother’s application for interim orders, including whether the requirement in Rice & Asplund for a variation of the parenting orders has been met” (Order 3).
On 24 June 2020, I heard submissions from the parties as to whether or not the matter was of sufficient complexity to warrant remaining in the Family Court of Australia. I then reserved my decision in relation to that. This is that decision and the reasons for it.
BACKGROUND
Given that the proceedings, at least in their present iteration, are at such an early stage, I have little information as to the history of the parties, or their relationship, and very little at all in relation to what has occurred since 2012. However I do know that the mother was born in 1976, making her presently almost 44 years of age, and her usual occupation is in customer relations. For his part, the father was born in 1979, and hence is presently 41 years of age. He works in the food industry.
The mother resides in the vicinity of C Town, and the father at D Town.
In her affidavit filed in support of her application on 13 May 2020, the mother advised that the father has been charged with five offences in relation to possessing dangerous drugs on 29 December 2019, and a further three charges of unlawful possession of restricted drugs on the same date. The father concedes that he is presently charged with those offences.
Further, the mother advised in her affidavit that on 22 February 2020, the child returned from spending time with the father and advised that he had walked into the bathroom and discovered “his father injecting something into his calf muscle” (mother’s affidavit filed 13 May 2020, paragraph 8). The father apparently denies that occurred.
The mother also says that after returning home from the father’s on 12 April 2020, the child reported that the father had become “extremely aggravated and frustrated and yelled at the child to a point where he was scared and very upset” (mother’s affidavit filed 13 May 2020, paragraph 9).
As a result of these events, the mother commenced to withhold the child from the father pending clear drug and steroid tests. Although on 22 April 2020 the father produced a drug test dated 10 March 2020, that apparently did not test for steroids.
The mother further says that the child has now “repeatedly expressed that he does not want to visit the father at all, however I have counselled the child against that” (mother’s affidavit filed 13 May 2020, paragraph 12).
It is unclear what of that material the father disagrees with.
I have already noted that on 28 May 2020 a Senior Registrar suspended the child’s time with the father under the 2012 orders. That remained the situation at the time of the hearing before me on 24 June 2020.
ISSUES RAISED BY THE PROCEEDINGS
Although the father has not yet filed material, it appears as though the following are the issues raised by the mother’s fresh proceedings:
·Whether the father poses some risk of harm to the child by virtue of either drug use or association with drug culture (although the mother does not contend that the child’s time with the father should either cease or be supervised); and
·Whether the father should be required to undergo therapy to assist him not only in relation to any drug use, but also his parenting of the child.
During the course of the hearing, the father also said that the following matters would be raised in the proceedings:
·That the mother has terminated the child’s relationship with his grandparents;
·That the mother has (presently) terminated the child’s relationship with his sibling, Y, who is presently five years of age;
·That the mother has been diagnosed as having a borderline personality disorder;
·That of a morning the child has been rubbing the mother’s partner’s back;
·The level of alcohol use in the mother’s home;
·That the child may be being alienated from the father by the mother; and
·That the mother may wish to enrol the child in a private school at a considerable distance from where either parent lives.
THE PROTOCOL
The heads of jurisdiction for both the Family Court of Australia and the Federal Circuit Court of Australia have agreed upon, and published, a Protocol for guidance on 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 Circuit Court (“FCC”).
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.
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 an exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court of Australia, and the reference to “if judicial resources permit”;
·Some of the criteria require a degree of 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; and
·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 of Australia 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.
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 239–240 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 LEGAL PRINCIPLES
The provisions which govern transfer from the Family Court of Australia to the Federal Circuit Court of Australia are relevantly contained in s 33B of the Family Law Act 1975 (Cth) (“the Act”) as follows:
(1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.
(2) The Family Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1).
(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1).
(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia.
(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:
(a) any standard Rules of Court made for the purposes of subsection (4); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; 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.
(7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.
(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.
(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings of a kind specified in the regulations.
The phrase “the interests of the administration of justice” (s 33B(6)(d) of the Act) is a very broad one, capturing many potential considerations. No point is to be served in seeking to, in advance, describe what may fall as legitimate considerations under such a criterion, however it is useful to note that in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [42] (“Fair Work Ombudsman”) White J identified that the prospect of a poor public perception if transfers were embarked upon by the courts “in the manner of a tennis match” was a relevant consideration.
Further, whilst s 33B(6) establishes mandatory considerations that the Court must have regard to, other matters may inform the exercise of the discretion. Previous decisions have identified the following as being potentially relevant:
·The workload of the judge likely to thereafter be seized of the matter (see Fair Work Ombudsman at [43]);
·The probability of the recurrence of transfers to the court in like circumstances (see Fair Work Ombudsman at [44]); and
·Whether the matter was commenced in accordance with any relevant protocol (Summers & Shaw [2011] FamCA 889 at [30]).
Division 11.3.2 of the Family Law Rules (2004) (Cth) (“the Rules”) contains the relevant standard rules of Court for the purposes of s 33B(4). Relevantly it provides as follows:
Rule 11.17. A party may apply to have a case:
(a)heard at another place; or
(b)transferred to another registry or court exercising jurisdiction under the Act.
Rule 11.18(1). In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:
(a)the public interest;
(b)whether the case, if transferred or removed, is likely to be dealt with:
(i)at less cost to the parties;
(ii)at more convenience to the parties; or
(iii)earlier;
(c)the availability of the judicial officer specialising in the type of case to which the application relates;
(d)the availability of particular procedures appropriate to the case;
(e)the financial value of the claim;
(f)the complexity of the facts, legal issues, remedies and procedures involved;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness; and
(h)the wishes of the parties.
…
It will be appreciated that since r 11.17 of the Rules on its face only applies to an application for transfer made by a party, strictly speaking r 11.18 of the Rules would have no application to the present facts where the Court is considering transfer on its own motion. However, logically, the matters therein enumerated will also be potentially relevant in considering an own motion transfer. The other point worthy of note is that the r 11.17 does not make it mandatory to consider the matters listed in r 11.18(1).
RELEVANT CONSIDERATIONS HERE
There can be no doubt that the resources of the Federal Circuit Court of Australia in Cairns are sufficient to hear and determine this proceeding. Therefore the real question is whether “the complexity of the facts, legal issues, remedies and procedures involved” (r 11.18(1)(f)) warrant it remaining in the Family Court of Australia rather than being transferred to the Federal Circuit Court. As to that:
·The mother does not contend that, on a final basis, such risk of harm as the father may pose to the child warrants there being a termination of the child spending time with him, or indeed that any such time requires supervision;
·Rather the question is whether any drug use by the father warrants him being required to submit to regular testing for a period, and to seek assistance for dealing with any substance abuse issues;
·Issues may arise in relation to the child’s wishes and whether or not the mother is using the father’s drug charges as a pretext to seeking to alienate the child from the father, perhaps as a by-product of some personality vulnerability which she may or may not suffer; and
·The suggestion that the child has been stroking his step-father (apparently conceded by the mother as tickling) does not presently seem to be of any moment, and particularly does not appear to have any allegation of sexual grooming associated with it.
Considering those matters tells strongly in favour of the conclusion that the matter is insufficiently complex to warrant remaining in the Family Court of Australia. Given that there are adequate judicial resources in Cairns in the Federal Circuit Court of Australia to deal with the matter, it should therefore be transferred.
CONCLUSION
For these reasons there will be an order as set out at the commencement of this judgment.
I certify that the preceding twenty six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 29 June 2020.
Associate:
Date: 29 June 2020
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