SONG & WEI

[2018] FCCA 1699

FEDERAL CIRCUIT COURT OF AUSTRALIA

SONG & WEI [2018] FCCA 1699

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: MS SONG

Respondent: MR WEI

File Number: PAC 3027 of 2016

Judgment of: Judge Newbrun

Delivered at: Parramatta

Delivered on: 29 June 2018

ORDERS

1. These property proceedings are forthwith transferred to the Family Court of Australia at Parramatta.

NOTATION

The Court refers to its written judgment in relation to the above transfer Order.

IT IS NOTED that publication of this judgment under the pseudonym Song & Wei is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3027 of 2016

MS SONG

Applicant

And

MR WEI

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 26 June 2018 that these parenting proceedings be transferred to the Family Court of Australia.

2. The father is aged almost 49 years and the mother is 35 years.  The subject children are aged seven and five.

3. The parties and Independent Children’s Lawyer (“ICL”) recently formed a common view that the final hearing of these parenting proceedings (previously set down for a three day final hearing commencing on 3 July 2018) will in fact likely take in excess of four final days of hearing by reason of:

   ·    Both the mother and father requiring the assistance of interpreters (Mandarin language) to give their oral evidence;

   ·    Each child’s treating psychologist (two psychologists) giving oral evidence;

   ·    The Family Report writer, Dr C, clinical psychologist, giving oral evidence.

Issues in dispute

1. The issues in dispute are as follows:

   a)Whether the father inappropriately touched the children;

   b)Whether the father perpetrated family violence (both alleged verbal abuse and physical abuse) against the mother and the children during the relationship;

   c)Whether each parent has relevant parenting incapacities, including incapacities relating to meeting the children’s emotional needs;

   d)The nature and extent of any time to be spent by the children with the father;

   e)Whether the mother should have sole parental responsibility.

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. Presently, the parties each seek competing Orders in relation to parenting.

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

   a)The father, with the assistance of a Mandarin interpreter;

   b)The mother, with the assistance of a Mandarin interpreter;

   c)Two treating psychologists, treating each of the children (for example, for anxiety);

   d)Dr C, clinical psychologist, in relation to his Family Report.

3. It will be necessary for the Court, at the final hearing of these proceedings, to hear the competing oral submissions of the parties and the ICL, based upon the likely extensive evidence before the Court.

4. 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.

5. 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:

   ·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;

   ·The final hearing of these proceedings is now likely to be heard earlier in the Family Court of Australia than in this Court;

   ·All parties, and the ICL, have requested that these proceedings be transferred forthwith to the Family Court of Australia;

   ·These proceedings are complex by reason of the significant dispute between the parties relating to, inter alia, whether the father inappropriately touched the two children, and the expertise of a judge of the Family Court of Australia, in this context, is required;

   ·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;

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

6. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia of its own motion, but notes, again, that on 15 and 18 June 2018 all parties and the ICL requested a transfer of these proceedings. Had it been necessary, noting the manner in which these proceedings have progressed to date, the Court would have granted the parties and ICL leave to make that request out of time, noting the provisions of Rule 8.02(2).

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 29 June 2018