W and W
[2003] FMCAfam 472
•1 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| W & W | [2003] FMCAfam 472 |
| PRACTICE AND PROCEDURE – Children – grandparents application for contact in Federal Magistrates – father’s application for contact in Family Court – whether application’s associated – grandparents application transferred to Family Court – whether costs certificate should be granted. |
Federal Magistrates Act 1999, ss.19(1), 39(3), 39(4)
Family Law Act 1975, ss.33A(1), 33A(3), 60B, 65E, 68F, 68F(2)
Federal Magistrates Rules 2001, r 8.02
Federal Proceedings Cost Act 1981, s.10(3)
Cowling v Cowling (1998) FLC 92-801
| First Applicant: | J A W |
| Second Applicant: | P D W |
| First Respondent: | M N W |
| Second Respondent: | S J W |
| File No: | (P)MLM 2290 of 2000 |
| Delivered on: | 1 October 2003 |
| Delivered at: | Melbourne |
| Hearing date: | 1 October 2003 |
| Judgment of: | Phipps FM |
REPRESENTATION
| The First and Second Applicant appearing in person |
| Counsel for the First Respondent: | Ms B. Melita |
| Solicitors for the First Respondent: | Pearce Webster Dugdales |
| The Second Respondent appearing in person. |
| Counsel for the Child Representative: | Ms S. Dowler |
| Solicitors for the Child Representative: | Septimus Jones & Lee |
ORDERS
THAT pursuant to section 39 of the Federal Magistrates Act 1999 this matter be transferred to the Family Court of Australia.
IN THE OPINION OF THE COURT it would be appropriate for the Attorney-General to authorise a payment under this Act to the First Applicant, Second Applicant, First Respondent, Second Respondent and the Child Representative in respect of the costs pursuant to Section 10 (costs of incomplete proceedings) of the Federal Proceedings (Costs) Act 1981.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MZ 2290 of 2000
| J A W |
First Applicant
And
| P D W |
Second Applicant
And
| M N W |
First Respondent
And
| S J W |
Second Respondent
And
| CHILD REPRESENTATIVE |
REASONS FOR JUDGMENT
Introduction
There is listed for final hearing today an application by the grandparents of C N W, born 26 September 1992, and A M W, born 19 January 1996, for contact. The respondents to the application are the husband and the wife. The husband and wife were married on 8 October 1989. They separated in February of 1997 and were divorced in the year 2000.
The procedural history has been outlined to me by Ms Melita who appears for the wife. The grandparents and the husband appear in person. A child representative has been appointed and Ms Dowler appears for the child representative. I do not need to go back over the procedural history but there has been a long history of litigation between husband and wife concerning contact and now the grandparents and the parents. There have been two applications filed by the grandparents, both in the Family Court. The procedural history is a little obscure but I am satisfied that both of those applications, or possibly it was only one application, but I am satisfied they are now before this court.
On 22 April 2003 Walters FM made orders which included an order fixing the grandparents' application for hearing, giving procedural orders and providing for some interim contact to the grandparents. The order also contained an order appointing a separate representative for the children. On 10 June 2003 the father filed an application relating to contact with the children. Previous orders had been made in the Family Court proceedings between husband and wife relating to contact with the children on 6 January 2003 and 13 March 2003. The order on 6 January 2003 which I am informed - I have not seen it but I have been informed that it is a consent order and it provides for six hours of contact once a month without any restrictions on that contact. Previously there had been, as I understand it, orders for supervised contact. The father's application filed on 10 June 2003 I have not seen, but he has informed me that it seeks overnight contact. He seeks several weekends a year plus some additional periods.
From the material filed in this court it is apparent that there is a strong conflict between the wife and the husband and wife and the paternal grandparents. The issue concerning contact between the husband and wife is bound up with issues over the husband's ability to care for the children whilst they are in his care. The applications which are before me are that the grandparents who live in Q seek to have periods of contact with the children in Q. They seek to have them travel to Q to spend three nights with them perhaps twice a year and they seek to have that as unconditional contact.
The wife's position is that the grandparents should only have contact in conjunction with the husband. Briefly, one of the things she asserts is that the grandparents' application is an attempt to extend the husband's contact. I merely recount that. I make no comment on whether that is the real crux of her case and whether there is any validity in it or not.
What is apparent is that the question of contact with the husband is bound up with the question of contact with the grandparents. The grandparents have submitted to me that it is not, that their contact has got nothing to do with their son's. What they say is that they are the children's grandparents and that the children should be seeing their grandparents. That is their case. Their son, the husband, supports them in that case. He says their contact has got nothing to do with his contact. He has even proposed discontinuing his application in the Family Court so that the grandparents' application can continue, although it is quite apparent that if he did discontinue, he would propose renewing his application once the grandparents' application had been dealt with. As I have said, the wife's position is that the grandparents should only have contact at the same time as the father's contact.
The child representative's position is one of great difficulty. Ms Dowler of counsel appears for the child representative today and the child representative currently does not have a position. That will depend upon evidence, cross-examination and submissions. The child representative appointed in these proceedings is also appointed in the application in the Family Court between the husband and the wife. Ms Dowler has put it that the child representative is in a very difficult position, and I think in discussion I put it as almost an impossible position.
The situation, as I see it, is as follows. That if I was to proceed and hear the grandparents' application, I would have to do it in the context of the wife's submissions. That is that the grandparents' contact should be the same as the father's contact, however I do not know what the father's contact is going to be. In the reasonably near future the Family Court will go on and deal with the question of the father's contact and might accept the father's application for substantial expansion of the contact from six hours during the day once a month to periods of overnight contact. I would not know whether that was going to happen or not. Therefore I would be dealing with an application where I was being urged by one party, that is, the wife, to make an order where I would not know what the consequence of that order was going to be and therefore what contact would come about between grandparents and grandchildren as a consequence of that order.
If I did proceed and hear the application and did make an order in terms of that urged by the wife, that is, that the grandparents' contact be the same as the father's contact, that would mean that when the application was heard in the Family Court, the Family Court judge would in effect be dealing with the grandparents' application without the grandparents being a party. That is an impossible position.
One strong principle for all litigation is that the possibility of conflicting decisions is to be avoided and that where there are associated applications in different courts, they should be brought together and heard as the one application. There is provisions in the Federal Magistrates Act 1999 and the Family Law Act 1975 to ensure that the possibility of conflicting decisions being made does not happen. Subsection 19(1) of the Federal Magistrates Act 1999 provides:
Proceedings must not be instituted in the Federal Magistrates Court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court or the Federal Court.
Subsection 33A(1) of the Family Law Act 1975 provides:
Proceedings must not be instituted in the Family Court in respect of a matter if:
(a)the Federal Magistrates Court has jurisdiction in that matter, and
(b) proceedings in respect of an associated matter are pending in the Federal Magistrates Court.
I consider that the proceedings in this court which are before me today and the proceedings in the Family Court between husband and wife are associated matters within the meaning of both those subsections. They both concern the welfare of the same children. Two of the parties in the proceedings in the Federal Magistrates Court are the parties in the Family Court. They are the parents of the children. The additional parties in this court are the grandparents of the children. This I consider would be sufficient to make them associated matters but, in addition, there are the issues in this case which I have already recited.
The question of contact by the husband with the children cannot be separated from the question of contact by the grandparents with the children. The final result may be that they are quite separate, but the issues for the court or courts to deal with are bound up in both cases. The husband's application in the Family Court was commenced while there were already proceedings pending in this court and so it was commenced in breach of section 33A(3) of the Family Law Act. That does not invalidate it.
I of course have no power over what happens to the proceedings in the Family Court. What I propose doing is transferring the proceedings before me, the proceedings in the Federal Magistrates Court, to the Family Court. The power to transfer from this court to the Family Court is contained in subsection 39 (4) of the Federal Magistrates Act. The matters to be considered, when deciding whether to transfer, are any Rules of Court, where the proceedings in respect of an associated matter are pending in the Family Court, whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding and the interests of the administration of justice. The relevant rule in the Federal Magistrates Rules 2001 are contained in Part VIII and rule 8.02 is the relevant rule. Subrule (1) provides:
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.
Subrule (4) provides:
In addition to the factors required to be considered by the court under subsections 39(3) and (4) of the act, the transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant -
Subparagraph (f):
For family law or child support proceedings, whether the hearing of the proceedings is likely to take longer than two days.
Dealing with that matter first, it is quite apparent that the proceedings are likely to take more than two days. Even the proceedings between grandparents and parents are likely to take more than two days but when consolidated with the husband's application, it certainly is more likely to take in excess of two days.
Going back to subsection 39(4) of the act, paragraph (b), where the proceedings in respect of an associated matter are pending in the Family Court, as I have said, there is an associated matter pending in the Family Court. Paragraph (c), whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceeding. The number of Federal Magistrates and the amount of business this court has means that this court does not have the resources to deal with a case which might take longer than a week. That is associated with subparagraph 8.02.4(f), proceedings likely to take longer than two days. Then paragraph (d) of subsection 39(3), the interests of the administration of justice. From what I have already said, it is plainly in the interests of the administration of justice that this proceeding be heard with the father's proceeding. For all those reasons, even if the legislation does not compel me to transfer this proceeding to the Family Court as a matter of discretion, I propose to do so.
The next matter I have to deal with is an application by the grandparents for an interim order for contact. There have been interim orders for contact made by consent in the Family Court. The order of the Family Court provided for a particular number of days but did not fix those days. Walters FM did fix some of those days. There is an order for telephone contact. The grandparents wish to have contact on a similar basis proceeded on an interim basis. The wife opposes that. The child representative is unable to state a position.
There are conflicting views on how well the contact which has taken place recently proceeded. The grandparents and the father say it went well. The wife says that the children were distressed.
The child representative, Ms Dowler has informed me, felt constrained by the fact there had been no family report and with considerable misgiving, interviewed the children to attempt to ascertain their wishes. What has been set out in the outline of case document is that the child representative informed the children that the paternal grandparents wished to have more contact with them. The children expressed the view that they did not wish to have contact with the paternal grandparents. The children expressed the wish that their father and paternal grandmother did not fight during such contact periods. The children also told the child representative that they wished that the father and paternal grandparents would not say nasty things about the mother. The child representative asked the children whether their mother said nasty things about the other parties. The children responded that their mother did not but would occasionally cry and speak to a friend. One child volunteered that she hoped that the court would not order her and her sister to go. The other volunteered, "I wish dad would stop taking mum to court."
The child representative queried under what circumstances the children might be willing to attend contact with the paternal grandparents in Q. In response the children each indicated that they would be willing to visit the paternal grandparents in Q provided they were accompanied by the mother to Q and also provided that their father was in attendance during such contact periods. The children further volunteered that they would not wish to stay overnight with the paternal grandparents and that they did not wish to be away from their mother for very long. In addition, the children informed the child representative that they wished any contact, whether in V or Q, between them and the paternal grandparents to either be supervised or at least take place in the presence of the father.
The information I have on which I could base any interim order is limited, as is always the case with interim orders. Approaching the application for interim contact on the principles laid down by the Full Court of the Family Court in Cowling v Cowling (1998) FLC
92-801 – I will not recite everything which is there, but it has to be approached on the basis of the matters laid down in Part VII of the Family Law Act. Section 60B sets out the objects of that part and section 65E provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as paramount. Section 68F sets out the matters which the court must consider in determining what is in the child's best interests.
The Full Court then set out the matters the court must consider and set out criteria for determining interim proceedings. One of those is to look for what is sometimes called the status quo and see if that is a settled arrangement. There is no status quo here so far as contact with the grandparents are concerned so I think I am left with the fifth principle. Even if I should consider an interim application - and I will deal with that in a moment - what I am left with is the fifth principle, which is that:
Where the evidence does not establish that at the date of the hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in section 68F(2) needs to be undertaken to ensure that the result embodied in the order promotes the child's best interests.
One of those matters is the wishes of the children, taking into account the age and level of maturity of the children. The neutral information I have about the wishes of the children is what is reported by counsel for the child representative. I undertook the exercise with some misgivings but there was no independent report. But what I do have is clear wishes stated by the children that any contact they have with the grandparents is supervised or at least take place in the presence of their father. There is no opposition and there is no fetter under the current order relating to contact by the children with the father or the grandparents to see them at the same time. That accords with the children's wishes insofar as they are known.
I have considerable doubt whether I should even deal with an interim application but having looked at the material I have and the principles to be applied under Cowling v Cowling, the conclusion I reach is that I should not make an order for interim contact for the reasons I have given.
The final matter to deal with is the question of the parties' costs. I do need to go back briefly over the history of what has occurred. The grandparents commenced their application in the Family Court on 11 December 2002. Interim orders were made on 28 January 2003. They then filed a separate application in the Family Court, which was in effect an amended application but was treated as a separate application. One of those applications was treated as having been transferred to this court and the other application was placed in the trial notice list in the Family Court. I am told that Registrar Fitzgibbon, having been acquainted with that, treated the matter under the slip rule so that both the grandparents' applications came into this court, so that there was some history of confusion. Then, as I have said, directions for a hearing were made by Walters FM in April 2003. Subsequently the husband filed his separate application on 10 June 2003 in the Family Court.
Ms Melita informs me that the wife's solicitor wrote to both courts expressing some concern. For whatever reason, the two applications were treated as quite separate and distinct. Possibly looking at the parties, one might reach that conclusion but, as I have already set out, I am of the clear view that they are associated matters within the meaning of both subsection 33(a) of the Family Law Act and section 19 of the Federal Magistrates Act. So the father's application should not have been issued in the Family Court or, having been issued in the Family Court, it should have been transferred to this court.
Each party has made application for a certificate under subsection 10(3) of the Federal Proceedings (Costs) Act of 1981. When I say each party, that includes the child representative. That subsection provides:
Subject to this act where (a) the hearing of any proceeding in a court to which this section applies is discontinued and a new hearing is ordered, and (b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings, the court may on the application of a party to the proceedings grant to that party a cost certificate in respect of the proceedings.
The hearing of the grandparents' application has commenced before me. It has been listed in the normal way. It has been called on for hearing in the normal way. Ms Melita took me through the procedural history, then she went through the chronology. She came to the father's application and I immediately raised the issue of the appropriateness of proceeding today. No party has made application to transfer the proceedings to the Family Court. It has been done of the court's own motion.
For the reasons I have given I am satisfied that the hearing of the grandparents' proceeding in this court has commenced before me. I am satisfied that my order transferring it to the Family Court is a discontinuance of the proceeding within the meaning of subsection 10(3) and I am satisfied that the same order transferring the proceedings is to order a new hearing within the meaning of subsection 10(3). Even if that is not correct, a new hearing will be ordered in the Family Court. But the view I have is that I am, by my transfer to the Family Court in these circumstances is to order a new hearing. Given the history I have recited, the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings. In those circumstances I will grant each party a certificate under the Federal Proceedings (Costs) Act.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Phipps FM
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