Steiner and Steiner

[2019] FCCA 1280

FEDERAL CIRCUIT COURT OF AUSTRALIA

STEINER & STEINER [2019] FCCA 1280

Catchwords:
FAMILY LAW – Property and 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 STEINER

Respondent: MR STEINER

File Number: PAC 1344 of 2016

Judgment of: Judge Newbrun

Hearing date: 29 April 2019

Date of Last Submission: 6 May 2019

Delivered at: Parramatta

Delivered on: 21 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent: Mr Bailey

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 29 May 2019 at 9:30 am.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1344 of 2016

MS STEINER

Applicant

And

MR STEINER

Respondent

REASONS FOR JUDGMENT

Introduction

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

2. The husband and wife are both professionals.  The wife is self-represented and the husband has legal representation.

3. On 10 April 2016, property and parenting Orders were made by consent in the Family Court of Australia at Parramatta.

4. On 21 February 2018 the wife caused the children to commence proceedings in the Equity Division of the Supreme Court of New South Wales against the husband, inter alia, seeking certain orders relating to property. By an Amended Statement of Claim filed pursuant to orders made in that Court on 30 January 2019, the children seek certain declaratory and other relief against the husband in relation to certain property.

5. On 30 January 2019 the wife filed an Initiating Application in this Court seeking certain relief under section 79A of the Family Law Act 1975 (Cth), which the husband contends overlaps with the relief sought by the children in the above Supreme Court of NSW proceedings. The husband now seeks an Order that the final relief sought by the wife in her Initiating Application pertaining to her section 79A application, specifically proposed final Orders 8 to 12, be transferred to the Supreme Court of NSW. This issue presently requires determination by the Family Court of Australia. That Court may need to determine, inter alia, whether, in the interests of justice, both the wife’s section 79A application and her additional proposed parenting Orders should be heard in the Family Court of Australia rather than effectively splitting the proceedings into two separate courts.

Issues in dispute

1. The issues in dispute include the following:

   a)Whether the final relief sought by the wife in her Initiating Application pertaining to her section 79A application, specifically proposed final Orders 8 to 12, should be transferred to the Supreme Court of NSW, or remain in the Family Court Of Australia, together with the parenting proceedings of the wife.

   b)The section 79A proceedings of the wife involve, inter alia, allegations relating to duress, threats and undue influence.

   c)The parenting proceedings require judicial determinations relating to proposed parenting Orders sought by the wife, inter alia, for the personal protection of the children and the wife pursuant to section 68B of the said Act and section 114 of the said Act, and proposed injunctive relief against the husband relating to his Facebook and Instagram and other social media websites controlled by him.

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. The wife is legally unrepresented.

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

   a)The husband and wife, in relation to a multiplicity of issues, as referred to above.

   b)The children’s treating psychologist.

4. To date, the wife has filed (on 30 January 2019) a voluminous Affidavit containing hundreds of pages, and a further Affidavit filed 29 April 2019.  She has also caused to be filed on 29 April 2019 an Affidavit of a psychologist pertaining to psychological treatment of the children.  The husband has filed an Affidavit on 8 March 2019 of some 59 pages, and a further Affidavit filed 6 May 2019 relating to the wife’s parenting proposed Orders.

5. There is likely to be tendered in evidence extensive documentary evidence, including affidavits of the parties relating to previous proceedings in the Family Court of Australia.

6. 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.

7. In the above circumstances, these proceedings, both parenting and property related, 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 waiting periods between the dates of directions hearings, and delays in appointing fixtures for interlocutory disputes, compared to the Family Court of Australia. Further, in section 79A property proceedings of this nature, 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 section 79A of the Act.

   d)Again, having regard to the issues to be determined between the parties, both parenting and property, 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 of its own motion. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 21 May 2019