Walter and Walter

[2014] FamCA 522

FAMILY COURT OF AUSTRALIA

WALTER & WALTER [2014] FamCA 522

FAMILY LAW – Wife issues proceedings for a variation of parenting orders where there has been extensive litigation including final orders in the Federal Circuit Court – Husband seeks a transfer to the Federal Circuit Court – Should the proceedings be transferred to the Court or to a specific Judge? – Case transferred – Consideration of protocol.

Family Law Act 1975 (Cth)

Garde & Raddison [2008] FamCAFC 198

Rice v Asplund (1979) FLC 90-725

Gleeson M, “The State of the Judicature” (2007) 14 Australian Journal of Administrative Law 118

APPLICANT: Ms Walter

RESPONDENT: Mr Walter

FILE NUMBER: MLC 6449 of 2010

DATE DELIVERED: 15 July 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 2 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Puckey

SOLICITOR FOR THE APPLICANT: Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT: Mr Strum

SOLICITOR FOR THE RESPONDENT: Susan Snyder

Orders

1. That all extant proceedings are transferred to the Federal Circuit Court of Australia.

2. That the application in a case seeking to review the registrar's decision is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Walter & Walter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6449  of 2010

Ms Walter

Applicant

And

Mr Walter

Respondent

REASONS FOR JUDGMENT

1. In parenting proceedings filed in this Court by the wife, the Registrar transferred all extant applications to the Federal Circuit Court of Australia. The wife now seeks to review that decision. She desires to have the proceedings heard in the Family Court of Australia. The husband opposes the alteration of the Registrar’s decision. In my view, the review must fail and the Registrar’s decision should be upheld.

2. This matter has a long and protracted history in the Federal Circuit Court involving multiple interim hearings and a bifurcated trial, which took place over seven days.  Final parenting and property orders were made by Judge Hartnett on 6 June 2012.

3. In her substantive application, the wife sought to reverse residence arrangements made in the orders of June 2012.  In addition, she now seeks interim orders as a matter of urgency because of what she perceives as an urgent problem about the refusal by one of the children to attend school. She also alleges there is a need to reopen the hearing because of what she perceives as parental alienation. 

4. The husband denies the necessity for any orders and, upon the initial return date before the Registrar and again before me, sought that the proceedings be transferred to “the docket of Judge Hartnett” in the Federal Circuit Court.

5. Before dealing with the substantive matter, I observe that whilst it may be seen as (and at times in the past has been) efficacious to transfer proceedings directly from one judge to another, the power in the Family Law Act 1975 (Cth) (“the Act”) lies in the transfer to the court. It is not appropriate to dictate who should hear the case.

6. At the directions hearing on 13 June 2014, Registrar Mestrovic made orders transferring the proceedings to the Federal Circuit Court and that it be listed before Judge Hartnett at 9.45am on 18 August 2014.  Given that it was a directions hearing, no formal reasons were given. The wife then filed an application in a case on 23 June 2014 seeking to review the Registrar’s decision.  As such, the matter has been heard de novo.

7. This case raises the question of how the Court should exercise its discretionary power to transfer cases to the Federal Circuit Court. 

8. In relation to parenting matters, the Family Court and Federal Circuit Court have concurrent jurisdiction. 

9. Section 33B of the Act gives the Family Court the discretionary power to transfer a case from the Family Court to the Federal Circuit Court on the application of a party to the case or on its own initiative.

10. The Family Law Rules 2004 (the “Rules”) provide for the delegation of the power to transfer proceedings to the Federal Circuit Court to registrars (s 26B(1) of the Act and rules 18.01 and 18.06(2) of the Rules).

11. Although there is no right of appeal in respect of a transfer (s 33B(8) of the Act), a decision exercised pursuant to a delegated power is reviewable by the Court (s 26C(1) of Act).

12. Section 33B(6) requires the Court to consider the following factors when deciding whether to transfer a proceeding:

    (a)any standard Rules of Court made for the purposes of subsection (4); and

    (b)whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and

    (c)whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and

    (d)the interests of the administration of justice.

13. Rule 11.18 of the Rules provides that the Court may consider a number of factors. They are:

    (a)the public interest;

    (b)whether the case, if transferred or removed, is likely to be dealt with:

    (i)at less cost to the parties;

    (ii)at more convenience to the parties; or

    (iii)earlier;

    (c)the availability of a judicial officer specialising in the type of case to which the application relates;

    (d)the availability of particular procedures appropriate to the case;

    (e)the financial value of the claim;

    (f)the complexity of the facts, legal issues, remedies and procedures involved;

    (g)the adequacy of the available facilities, having regard to any disability of a party or witness; and

    (h)the wishes of the parties.

14. Counsel for the wife relied on rules 11.18(b), (c), (f) and (h). 

15. Transfers between the two courts occur both ways.  The Full Court in Garde & Raddison [2008] FamCAFC 198 considered the issue of when proceedings should be transferred to the Family Court. The Full Court said:

    [36]     […] The discretion must be exercised judicially, having regard to the relevant legislation and rules and the wider context in which the two courts with a concurrent jurisdiction operate.  The context must obviously be that the more complex […] matters will be transferred to the superior court, as a general rule.

16. With concurrent jurisdiction, it is difficult and at times inappropriate, to use words such as “more complex” because they have many meanings. Is that a reference to duration of a trial, the number of litigants, the unusual nature of the proceedings, the paucity of authority or just that the litigants do not have the assistance of lawyers?

17. The Chief Justice of the Family Court of Australia and the Chief Federal Magistrate (as he then was) have published what has been described as a protocol for the division of work between the courts. The protocol was published to assist the legal profession and litigants in determining the appropriate forum for cases.  The problem arises where both courts have concurrent jurisdiction and the parties have a right to file proceedings in either court.  The protocol is a guide and “may on occasions give way to the imperatives of where a case can best be heard”.

18. It is now the understanding between the courts as a result of the protocol, that cases fulfilling any one of the following criteria should be both filed and heard in the Family Court. That is:

    (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.

19. The protocol too has limitations because not only shortly after relationships break down but also after proceedings have begun, it is not always clear just how some of the criteria would require a matter to be heard in the Family Court. Allegations of abuse sometimes do not arise until after litigation has commenced. Another example might be a financial case which has significant days of hearing time not initially apparent.

20. Despite the uncertainty because of the discretionary nature of the protocol, there have been few notable problems. To this point in time, the government has chosen not to legislate for a jurisdictional dichotomy. Until that occurs, it is the courts’ responsibility to best juggle the division of work between the two courts.

21. The former Chief Justice Gleeson of the High Court said in an edited version of an Address to the 35th Australian Legal Convention on the State of the Judicature (citations omitted):

    The Federal Magistrates Court was established for the purpose of exercising, in less complex cases, much of the jurisdiction previously, and still, exercised by those two courts.

    […] Most justice systems throughout the world attempt to distinguish, in one way or another, between cases that require more complex procedures, and cases that do not. A civil case about property damage resulting from a minor traffic collision in Macquarie Street is not likely to require, or justify, the same treatment as a case resulting from a major collision between two oil tankers in Sydney Harbour. An indictable criminal offence is ordinarily tried before a judge and jury; a minor offence is dealt with summarily by a magistrate. Without some capacity to differentiate, on a rational basis, between cases that require different forms of judicial process, the system would collapse under its own weight. That does not mean that cases dealt with by summary, or relatively uncomplicated, process are less important. On the contrary, for most people, this is the level at which any encounter with the courts is likely to occur. [Emphasis added]

    (See Gleeson M, “The State of the Judicature” (2007) 14 Australian Journal of Administrative Law 118)

22. Whilst the process question might provide an answer, it is not entirely satisfactory because both courts use similar rules albeit slightly different listings procedures. There will clearly be places where because of the sheer volume of work, one court is quicker than the other. There is little doubt that the Federal Circuit Court was designed for quicker and more affordable access to justice.

23. Another consideration and one which seems more in line with what the former Chief Justice was addressing is whether there are forensic issues or unusual factual matters that require more than just a finding of fact that one would expect in a trial of a standard parenting or financial dispute. Alternatively, it may be that if the facts are not unusual, there are unusual or unique legal issues that require significant arguments and determinations.

24. Whilst the protocol should be the starting point, it is to these latter considerations that I think we should turn.

25. As the field of science and the availability of evidence expand, its application to legal issues has become more common.  Family and other expert reports frequently provide the Court with an independent forensic assessment of particular issues. Whilst this can certainly promote justice, it has also increased the potential for trials to lengthen greatly when witnesses are cross-examined extensively.  The Federal Circuit Court deals with a high volume of matters. Those cases may prejudice other litigants’ access to justice who have more standard or straight forward disputes.

26. In this review, counsel for the wife submitted that a transfer would create further delays because if “docketed” to Judge Hartnett, it could not be heard until 18 August 2014.  That arose from enquiries made of the Federal Circuit Court but I am not able to say whether another judge could hear it.

27. Inquiries of the Family Court revealed that it could be accommodated in Senior Registrar Fitzgibbon’s list earlier than 18 August 2014.  Thus, it was argued that the earlier hearing date was far more appropriate for dealing with the interim issues given that one of children is dealing with acute school refusal. However, that may not assist the delay issue because any decision of the Senior Registrar would still be subject to review.

28. Counsel for the wife also argued that the transfer would create further interim hearings.  It was argued that if the matter was listed before Judge Hartnett, the wife intends to make an application that her Honour recuse herself but that is not a basis to refuse to transfer the case for two reasons. First, it presupposes that only Judge Hartnett will hear the interim matters. Secondly, it assumes success in an environment where (it was submitted) an application had previously been made by the wife subsequent to the final orders which was heard by Judge Hartnett and in which the wife had not raised the issue of bias.

29. Akin to the question about review, there is always the prospect of an appeal against a Federal Circuit Court Judge’s interim order.

30. Another issue that might cause delay is that the husband has flagged that he intends to raise a Rice & Asplund argument. That too ought not be a matter to tip the balance one way or the other because that same argument would be raised in this Court.

31. Thus, whilst the delay argument is a significant factor in the determination of which court should hear the matter, the submissions of the wife were all predicated upon a straight forward set of hearings. Having regard to the path of this litigation to date, I would not be prepared to make that assumption.

32. Although neither party argued that there would be a delay in having the initiating application heard, it was suggested that a hearing in the Federal Circuit Court may be delayed as a result of the overlisting of cases on defended days. Both courts have limited resources and an overlisting policy, although it may differentiate depending on the expected duration of the various cases.  I do not consider it to be appropriate to reject a transfer based on an overlisting policy.

33. Counsel for the wife submitted that the Family Court had been the wife’s chosen forum and that should be respected.  Whilst I agree, because of the concurrent jurisdiction, the Parliament also created the provision that prohibits an appeal against a transfer for a good reason. The Parliament has left the courts to work out the division of the work. Part of that is that the courts have the responsibility to the community to use resources efficaciously. That was one of the reasons for the implementation of the protocol.

34. The wife considers that the matter is likely to take considerably longer than four days but that is disputed by the husband. Neither estimate can have any reliability at this moment because the number of witnesses who will take time remains fluid. It is the length of the cross-examination of the witnesses that determines the duration of a trial. It is also important to observe that Division 12A of the Act requires the courts to control the process and decide which issues are to be investigated and given priority. Without knowing who will be likely to hear the case, the estimate is speculative. In addition, there is the question of whether the Rice & Asplund point has substance.

35. I consider the determining factor should be whether there is something factually unusual about the case or there is some argument about a legal issue that would be likely to take time to the detriment of other litigants.

36. The wife argued that the matter is factually and procedurally complex. It was submitted that it was factually complex because of:

    (1)the significant and anomalous behavioural issues currently manifested by one of the children;

    (2)the allegations of alignment with the husband of two of the children;

    (3)the potential for separation of the siblings;

    (4)the allegations of enmeshment of the children with the husband; and

    (5)the allegations of alienation by the husband.

37. One of the arguments put by the wife was that it is likely that an Independent Children’s Lawyer will need to be appointed. In my view, that has never been an issue that adds to complexity. It may add to trial time because of an extra cross-examiner but again, Division 12A allows the Court to control that process. That is particularly so here where the case has had the benefit of significant past resources and a very comprehensive judgment has been made.

38. The wife also submitted this will take time because of the potential need for multiple experts’ reports but the husband argued that this matter was no more complex than any other contested children’s matter.  It was described by the husband’s counsel as a “pretty standard parenting” matter which involved the mother, father and family report writer.

39. Thus, nothing I heard convinced me that this is already shaping as a long and complicated trial that involves forensic issues or unusual or unique legal issues.

40. I am satisfied that this is a matter appropriate to be heard and determined in the Federal Circuit Court and as I am determining the matter on a de novo  basis, the formal application that brought the matter before the Court was the wife’s application for a review of the registrar’s decision. That review fails and the application is dismissed.

41. For the purposes of s 33B(6) of the Act, the proceeding is transferred to the Federal Circuit Court.

I certify that the preceding Forty One (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 July 2014.

Associate: 

Date:  15 July 2014