SIMEN & SIMEN (No.2)

[2020] FCCA 1420

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMEN & SIMEN (No.2) [2020] FCCA 1420

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 SIMEN

Respondent: MS SIMEN

File Number: PAC 1734 of 2019

Judgment of: Judge Newbrun

Hearing date: 1 June 2020

Date of Last Submission: 1 June 2020

Delivered at: Parramatta

Delivered on: 5 June 2020

REPRESENTATION

Solicitors for the Applicant: Ms A Godden - Godden Lawyers

Solicitors for the Respondent:	Mr Maddox - Prasad Legal Solutions
Solicitors for the Independent Children’s Lawyer	Mark Macdiarmid Family Law Specialist

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 11 June 2020 at 12:30pm.

2. The parties and ICL are required to dial in on the following number 1800 132 423, and at the prompt enter the guest passcode ... for the above mention.   

IT IS NOTED that publication of this judgment under the pseudonym Simen & Simen (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 1734 of 2019

MR SIMEN

Applicant

And

MS SIMEN

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 child is X born in 2010.

3. The father is aged 44 years, and the mother 42 years.  The parties commenced a relationship in 2003 and married in 2005.  They separated under the one roof in about July 2018, and the father left the former matrimonial home in January 2019.

4. The father suffered from neurological health issues between 2011 and 2016.  He consulted with a neurologist in 2015.  The neurologist recorded that the father presented with frequent episodic events of uncertain aetiology characterised by periods (30 to 60 minutes) of aberrant behaviour, confusion, ataxia and slurred slow speech followed by hypersomnia.  The father was treated with medication for a period.  His neurologist discussed a differential diagnosis with the father of psychogenic non-epileptic events precipitated by psychological stressors.

5. The father has commenced a new relationship with Ms D who is aged 48 years.  They now live together with two of Ms D foster children.

6. Interim parenting orders were made on 30 September 2019 providing for the child to spend time with the father each alternate Saturday and Sunday from 8 AM until 6:30 PM, on each Monday from 4 PM until 6:30 PM, and from 8 AM each Thursday and Friday and 7:25 AM each Tuesday, to take the child to school.

7. It appears the child spent time with the father in accordance with the above orders for about one month.  However, those arrangements broke down by October 2019 when the child refused to spend time with the father.

8. The Court held an interim hearing on 21 November 2019 relating to parenting.  On 11 December 2019 the court made interim parenting orders that the child spend time with the father pursuant to the Court’s orders of 30 September 2019.  Further, the Court made orders for each parent to contact Uniting for the purposes of, inter alia, the child participating in therapeutic counselling through the Anchor Program.

9. Again, the child has not seen or spend time with the father since October 2019.

10. The father contends, inter alia, that the mother has involved the child in the conflict between the parents.  The mother contends, inter alia, that the father continues to suffer from neurological issues, and that the child is at risk in his care.

11. On 25 February 2020 the father filed a Contravention Application in which he alleges that the mother has without reasonable excuse refused to allow the father to spend time with the child, from October 2019 to January 2020.  The first return date for that application was 1 June 2020 and it has not been dealt with by the Court.

12. On 3 March 2020 the father filed an Application in a Case (returnable on 20 April 2020) seeking orders, inter alia, that the proceedings be transferred to the Family Court of Australia.  That transfer application was the subject of oral submissions by the parties and the ICL on 1 June 2020 with the Court reserving its determination in relation to that application.

13. On 16 April 2020 the mother filed an Application in a Case (returnable before this Court on 6 July 2020) seeking interim parenting orders, inter alia, that the Court’s orders of 11 December 2019 be suspended, and that the child spend time with the father on a limited basis, including Microsoft Teams virtual meetings, and face-to-face meetings during the daytime under the supervision of a neutral third party “observing the “performance criteria” as set out in the Application in a Case.

14. A single expert report has been prepared by Dr K, clinical psychologist, in relation to the family, and is dated 5 May 2020. The report is 61 pages in length. 

15. Dr K records the mother’s statements to her, including statements that the father was the person responsible for ceasing the child’s treatment with her psychologist, Ms I.  The mother asserted that the father had not followed the advice of the child’s psychologist.  The mother asserted that it has been the father’s actions that have resulted in the child’s refusal to see him.  The father asserted to Dr K that the mother has emotionally manipulated and involved the child in the proceedings.  The child was interviewed by Dr K.  At various points throughout the interview with the child, the child was yelling and screaming at Dr K in quite an uncontrollable manner.  Dr K recorded that the child’s cadence, volume and body language reflected a high degree of opposition and agitation.

16. In her Evaluation, Dr K, inter alia, opined that the relationship between the child and the mother is enmeshed to a degree that is not developmentally normal or helpful for the child.  Dr K commented that the mother genuinely believes that it is the father’s fault that there are family law proceedings on foot and does not consider that she has had any role to play in the current dispute.  Dr K comments that whatever the Court’s determination, that the child will need ongoing psychological assistance.  Dr K does not conclude her expert report with any express recommendations.

17. The father proposes to call as witnesses, besides himself, his new partner and his treating neurologist.

18. The mother proposes to call as witnesses, the maternal grandmother, and the child’s treating psychologist.

19. The ICL will call Dr K.

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 child;

   e)Whether the child has an enmeshed relationship with the mother, and if so, whether, inter alia, that has caused or contributed to the child refusing to spend time with the father, and whether that has caused or contributed to emotional unwellness in the child;

   f)Whether or not the parents have been remiss in their parenting of the child and failed to properly meet the child’s emotional needs, including alleged emotionally harmful behaviour committed by the parties towards the child;

   g)The mental health of the child;

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

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

   j)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 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;

   ·    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; Dr K, the single expert; the father’s treating neurologist; and the child’s treating psychologist;

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

   c)Lay witnesses: the father’s new partner and the maternal grandmother.

3. To date, the parties have filed numerous Affidavits. Subpoena for production of documents have already been issued to at least 12 different entities, including medical practitioners.

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. There is an outstanding Contravention Application filed by the father, relating to alleged contraventions of past interim parenting orders of the court in respect to the child spending time with the father.  It is likely that the single expert report of Dr K will form part of the evidence in relation to the determination of that Contravention Application.  It is appropriate that that Contravention Application be heard at the same time as the final hearing of these parenting proceedings.

7. 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.

8. 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.

9. 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 (this Court is unable to appoint an expedited hearing this year in this Court), compared to the Family Court of Australia.  Further, in parenting proceedings of this nature, in particular involving allegations of enmeshment and alienation and medical 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 enmeshment, alienation and medical and mental health issues.  Again, the court observes that Dr K has made no concrete recommendations in her single expert report.

   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.

10. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with the father seeking a transfer.

I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate: 

Date: 5 June 2020