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…