SASTRY & SASTRY (No.3)

[2020] FCCA 2172

FEDERAL CIRCUIT COURT OF AUSTRALIA

SASTRY & SASTRY (No.3) [2020] FCCA 2172

Catchwords:
FAMILY LAW – Parenting and property 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

Family Law Act 1975, ss. 75, 79

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MR SASTRY

Respondent: MS SASTRY

File Number: PAC 5927 of 2017

Judgment of: Judge Newbrun

Hearing date: 5 August 2020

Date of Last Submission: 5 August 2020

Delivered at: Parramatta

Delivered on: 6 August 2020

REPRESENTATION

Counsel for the Applicant: Mr R Greenaway of Counsel

Solicitors for the Applicant: John & Co Lawyers

Counsel for the Respondent: Mr B Richards of Counsel

Solicitors for the Respondent:	King & York Lawyers
Counsel for the Independent Children’s Lawyer	Mrs E Stollier of Counsel
Solicitors for the Independent Children’s Lawyer	Brian Samuel & Associates

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 13 August 2020 at 9:00am.

IT IS NOTED that publication of this judgment under the pseudonym Sastry & Sastry (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5927 of 2017

MR SASTRY

Applicant

And

MS SASTRY

Respondent

REASONS FOR JUDGMENT

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

2. The subject children are a boy, X, aged 11 years, and a girl, Y, aged 8 years.

3. The parents hail from Country F. The Father is aged 40 years, and the Mother 39 years. The parties married in 2002 in Australia. They separated in about April/May 2017.

4. The Father works as a tradesman. The Mother works as a professional for Employer H.

5. On 19 March 2020, the Court, having heard submissions from the parties and the ICL, listed these proceedings as a two-day reserve fixture for 5 August 2020.

6. On 5 August 2020, the Father appeared through Mr B Richards of counsel, the Mother appeared through Mr R  Greenaway of counsel, and the ICL appeared through Mrs E Stollier of counsel. At the outset, counsel submitted that the final hearing of the parenting and property proceedings would, in their view, take 4 days.

7. At the outset, counsel for the Mother informed the Court that a great deal of evidence had arisen since the proceedings were set down for hearing on 19 March 2020.

8. The Father and Mother, through their counsel, further informed the Court that by reason of late served tender bundle documents, the parties’ legal representatives were still inspecting documents, and were not immediately ready to proceed with a final hearing, and there were practical difficulties at the Court with rooms allocated for legal representatives confined to 2 people by reason of the Covid19 protocols.

9. The Court, having heard initial submissions from the parties and ICL as to what they considered to be the length of the final hearing of the parenting and property proceedings, informed the parties that the Court was considering the issue of whether or not the proceedings could be contained within a final hearing of four days, and if not, whether they should be transferred to the Family Court of Australia, and invited submissions accordingly. They submitted, inter alia, that if the parenting and property proceedings were heard together, the final hearing of those proceedings could be dealt with within four days. Counsel for the Mother and Father indicated that if the property and parenting proceedings were heard separately, the parenting proceedings was a three day final hearing case, and the property proceedings was a one day final hearing, albeit that there was a chance that such one day property final hearing could enter a second day.

10. The Father proposes to call at least two lay witnesses to give evidence, being the Paternal Grandmother and her former partner, Mr C. The Mother proposes to call her partner, Mr B, and the Maternal Grandfather.

11. The ICL will call the family report writer, Ms J.

12. The documentary evidence proposed to be tendered in evidence is voluminous. 

13. The Mother’s Affidavit sworn 22 July 2020 contains 239 pages. Her Case Outline is 8 pages, with an outline of argument yet to be provided. She has filed a financial statement.

14. The Father’s Affidavit contains 53 pages. His Case Outline contains 29 pages. He has filed a financial statement. His Amended Response contains 28 pages.

15. The ICL’s tender bundle is some 93 pages. The tender bundle of Exhibits attached to the Paternal Grandmother’s Affidavit is 103 pages in length. The Father’s tender bundle of Exhibits is 129 pages. The size of the Mother’s “tender bundles” of Exhibits is unclear.

16. There are Affidavits from the lay witnesses.

17. The Family Report contains 33 pages.

18. To date, 6 subpoena for production of documents have been filed, including in relation to NSW Police and the children’s schools. 

19. There have been at least 5 Applications in a Case filed to date, previously determined.

20. The Court observes that these parties are in high conflict, and the history of the highly contested proceedings in this Court to date confirm this fact.  The Court has already heard and determined two interim parenting fixtures between the parties, and the Court refers to its judgments in that respect.  The last interim hearing heard earlier this year was a recovery order application brought by the Mother in circumstances where the Father had retained the children by reason of his alleged concerns that the Mother’s new partner represented a serious danger to the children. The recovery order was made, together with injunctive orders against the Mother in relation to her new partner. There are serious allegations of family violence made by each party against the other.  The father makes serious allegations of antisocial behaviour in relation to the mother’s new partner.

21. The Court is of the view, inter alia, that it is likely that these proceedings will take in excess of four final hearing days and they should be transferred to the Family Court of Australia.

Issues in dispute

1. The issues in dispute in relation to the parenting proceedings 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 (including alleged elements of controlling 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 co-parenting capacities of the parties;

   e)The views of the children;

   f)The extent to which the children have been exposed to conflict between the parties;

   g)The relevance of behavioural difficulties experienced by the eldest child at school;

   h)Whether there has been alienating behaviour by a parent and/or conduct by a parent having the effect of diminishing a child’s meaningful relationship with a parent.

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

   j)The stability of living arrangements for the children;

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

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

   m)Whether restraining orders should be made against the Mother’s new partner, inter alia, coming into contact with the children.

   n)Whether the Paternal Grandmother’s former partner poses a risk of harm to the children.

2. The issues in dispute in relation to the property proceedings include the following:

   a)Whether the Paternal Grandmother’s made various loans to the parties, or one of them, totalling about $231,000.

   b)Whether the wife committed wastage in the sum of about $40,000.

   c)The assessment of the parties’ relevant section 79 contributions.

   d)The assessment of relevant section 75(2) factors.

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 witness;

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

   c)Lay witnesses: at least 4 witnesses.

3. To date, the parties and their respective witnesses have filed Affidavits.  Formal objections to Affidavits have been taken by each party and will need to be ruled upon. Subpoena for production of documents have already been issued to numerous entities.

4. There is likely to be tendered in evidence voluminous 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 serious allegations of significant family violence (including elements of alleged controlling family violence) 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)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.

   d)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, and of its own motion, transfers these parenting and property proceedings to the Family Court of Australia, with the Father formally objecting to the transfer of these proceedings to such Court.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 6 August 2020