VIERA & VIERA

[2019] FCCA 1898

FEDERAL CIRCUIT COURT OF AUSTRALIA

VIERA & VIERA [2019] FCCA 1898

Catchwords:
FAMILY LAW – Proceedings transferred to the Family Court of Australia – order made.

Legislation:
Family Law Act 1975 (Cth), ss.75, 79
Federal Circuit Court of Australia Act 1999 (Cth), s.39
Federal Circuit Court Rules 2001 (Cth), r.8.02

Cases cited:
Morris & Rosetti [2017] FamCA 249
Re W: Publication Application (1997) 137 FLR 205

Applicant: MR VIERA

Respondent: MS VIERA

File Number: PAC 2148 of 2019

Judgment of: Judge Newbrun

Hearing date: 1 July 2019

Date of Last Submission: 1 July 2019

Delivered at: Parramatta

Delivered on: 12 July 2019

REPRESENTATION

Solicitors for the Applicant: Ms Rivers

Solicitors for the Respondent: Ms Kyle

ORDERS

1. By consent and pursuant to Division 13.2 of the Federal Circuit Court Rules, interim orders, declarations and notations are made in accordance with the Consent Orders marked Exhibit A and attached hereto.

2. Solicitor for the Applicant to prepare a typescript of Exhibit A within 14 days.

3. Within 28 days the Respondent mother shall file and serve her Response, Affidavit, any Notice of Risk and Financial Statement.

4. Within a further 28 days the Applicant father shall file and serve a reply (addressing, in particular, any proposed property settlement orders sought by the Respondent mother in her response).

5. These parenting proceedings (which will shortly include property proceedings) are forthwith transferred to the Family Court of Australia at Parramatta at 17 September 2019 at 9:30am.

6. Grant to the parties photocopy access to subpoena material produced by NSW Police and the Department of Family and Community Services. Such photocopied documents are to remain, pending further Order, in the sole custody of the parties’ respective solicitors.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2148 of 2019

MR VIERA

Applicant

And

MS VIERA

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 1 July 2019 that these parenting proceedings be transferred to the Family Court of Australia at Parramatta.

2. The subject children are 2 children; a boy aged 15 years and another boy aged 10 years.  There is another child, Ms B, who turned 18 years in … 2019.  The father is aged 46 years.  The mother is aged 42 years.  The parties commenced their relationship in 1994 with final separation being in January 2019.

3. On 1 July 2019, by consent, without admissions and pending further orders, interim parenting orders were made that the children live with the father and spend time with the mother every alternative Saturday and Sunday from 9am to 5pm.

4. The proceedings are presently only parenting proceedings that will shortly become both parenting proceedings and property proceedings (the Court made directions on 1 July 2019 that the Respondent mother file and serve her Response, both in relation to the parenting proceedings and her intended property proceedings).

5. Information was provided by the parties to the Court on 1 July 2019 such that it is clear that the parenting and imminent property proceedings are, inter alia, unlikely to be completed within four days of final hearing, and in any event, at least in respect to the parenting proceedings, are complex.

6. The father will give evidence.  The mother will give evidence and proposes to call her partner. There will be expert parenting related evidence from Dr A.  There will be an expert valuation report in relation to the parties’ business and the former matrimonial home.

Issues in dispute

1. The issues in dispute include the following:

   (1)Parenting:

   a)      the nature and extent of each parent’s relationship with each child;

   b)      the nature and extent of alleged severe family violence perpetrated by the parties towards each other, and towards the children (in particular allegations against the mother that in early 2019 she physically assaulted the child [X]), and the relevance of same for each party’s parenting capacity. The Court observes that an ADVO was made for the mother’s protection on 29 October 2018, being a two-year order.  The father appears to have breached that ADVO in January 2019 and was convicted and sentenced shortly thereafter;

   c)      the parenting capacity of each party;

   d)      the views of the children;

   e)      the mental health of the children, including alleged emotional and physical abuse committed by the parties towards the children;

   f)      the mental health of the parties;

   g)      whether there has been alienating behaviour by a parent;

   h)      whether the mother has a dependency upon alcohol (the father alleges, inter alia, that the mother was charged with high range PCA in March 2018) and certain prescription medication;

   i)       whether the mother is neglectful of the children whilst they are in her care (the father alleges, for example, that the mother was guilty of neglect of the youngest child in late April 2019 resulting in the police making a notification against the mother to Family and Community Services; he further alleges that the youngest child has not been attending school regularly);

   j)       which party the children should live and spend time with;

   k)      whether the parties should have equal shared parental responsibility or whether sole parental responsibility should be assigned to one parent;

   l)       the relevance of the young adult Ms B (a child of the parties relationship, now aged 18 years) alleged adverse relationship with the mother, including that young adult’s mental health and attendance upon Head Space and other health professionals relating to her mental health.

   (2)Property:

   a)      complex valuation evidence in relation to the parties’ business;

   b) the parties’ respective financial and non-financial contributions pursuant to section 79 of the Family Law Act 1975 (Cth) (the Act);

   c) the parties home maker and parent contributions pursuant to section 79 of the Act;

   d) the parties’ relevant needs under section 75 of the Act.

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:

2. 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:

3. 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 the 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.

3. It is pertinent to make the following observations in relation to the protocol:

   a)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;

   b)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;”

   c)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;

   d)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.

4. 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.

5. 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 Court under subsection (1), the Federal Circuit Court 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.

6. 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 an 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;

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

   c)lay witnesses: including the mother’s new partner.

3. To date, there have been filed two subpoenae for production of documents, to both NSW Police and the Department of Family and Community Services, and there are likely to be further subpoenae issued to third parties in relation to a multiplicity of issues.

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. 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 allegations of significant family violence both between the parents and towards children, alienation, alcohol and prescription medication dependency, 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 alienation, family violence, alcohol and prescription medication dependency, and mental health issues.

   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.

9. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, with both parties seeking the transfer.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 12 July 2019