Westcott and Hanley

[2018] FCCA 3095

FEDERAL CIRCUIT COURT OF AUSTRALIA

WESTCOTT & HANLEY [2018] FCCA 3095

Catchwords:
FAMILY LAW – Parenting – where proceedings were initially commenced in the Federal Circuit Court of Australia, transferred to the Family Court of Australia and then remitted back to the Federal Circuit Court of Australia – whether the matter would benefit from the Magellan list and Less Adversarial Trial process – allegations of sexual abuse or alleged unacceptable risk of sexual abuse – potential parental alienation of the children – where the parties and the Independent Children’s Lawyer both seek transfer to the Family Court of Australia.

Legislation:

Family Law Act 1975, s.79A, Pt.VIIIAB

Federal Circuit Court Rules 2001, r.8.02

Applicant: MR WESTCOTT

Respondent: MS HANLEY

File Number: PAC 1259 of 2017

Judgment of: Judge Harman

Hearing date: 22 October 2018

Date of Last Submission: 22 October 2018

Delivered at: Parramatta

Delivered on: 22 October 2018

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr Ang

Solicitors for the Respondent: Branston Neville

ORDERS

1. Transfer the proceedings to the Family Court of Australia.

2. THE COURT NOTES that an ex tempore Judgment setting out the reasons for transfer has been delivered today.

3. Request that a Registrar of the Family Court of Australia give attention to the matter as expeditiously as possible so as to guide the matter toward both hearing of all extant interim and interlocutory Applications (comprising an Application in a Case by the mother and an Application for Contravention by the father [noting that the earlier Application for Contravention was heard and determined by this Court on the 13 August 2018]) and to move the matter toward final hearing.

4. THE COURT NOTES that whilst the Application in a Case seeking suspension of existing parenting Orders has not been dealt with today, it is common ground that the children are not presently spending time or practicing a relationship with their father in accordance with Orders made 30 April 2018 or at all, and accordingly, expeditious address would be warranted including through the Application for Contravention and the Application in a Case being listed before the docketed trial Judge or Senior Registrar.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1259 of 2017

MR WESTCOTT

Applicant

And

MS HANLEY

Respondent

REASONS FOR JUDGMENT

1. These proceedings have a long history before this Court and a brief past history before the Family Court of Australia. 

2. The proceedings were commenced by an Application initiating proceedings filed on 22 March 2017. The proceedings have, accordingly, been on foot for a little over 18 months. During that period, the matter has consumed approximately two dozen Court events. There have been a myriad of interim and interlocutory Applications, together with Applications for Contravention.

3. When the matter was initially commenced, it related to both property and parenting issues. The property issues were ultimately resolved by agreement between the parties and Orders made by consent. However, there is now Application, by at least one party, to seek to reopen those proceedings, presumably pursuant to section 79A of the Family Law Act 1975 or its equivalent in Part VIIIAB.

4. The parenting aspect of the proceedings is that which is before the Court today and which is the most troubling. 

5. There are three children of these parties:

   [X], born 2011;

   [Y], born 2013; and,

   [Z], born 2013. 

6. During the short lives of these children, their parents have been in active and bitter conflict and have been enmeshed in that conflict for some significant time. 

7. Whilst Orders have been made for the parties to participate in family counselling services, it would seem that little, if anything, has been positively achieved as regards a resolution of conflict between the parents.

8. On 6 March 2018, the proceedings had come before me. On that date, some significant time was spent to seeking to ascertain the positions of each of the parents and in seeking to ascertain whether certain material contained within the Respondent mother’s material was intended to be agitated as an allegation of sexual abuse or, at the very least, and in the terms that I will henceforth refer to, unacceptable risk to the children. 

9. A clear statement was put on the transcript by the Respondent mother’s legal representatives, on instructions from the Respondent, that the material contained in the Affidavit material which had been filed to that date was, indeed, agitated as an allegation of sexual abuse or alleged unacceptable risk of sexual abuse. So much was noted within the Order made on 6 March 2018 which transferred these proceedings to the Family Court of Australia. The reasons for transfer, as contained within the above Order, were also noted as being:

   (a) The issues between the parties were not narrowing and they are, in fact, becoming far more complex; 

   (b) The matter would benefit from the less adversarial trial processes and/or Magellan List procedures conducted by the superior Court;  

   (c) The final hearing of these proceedings, based on the issues as are now presented to be agitated, will likely take more than 4 days of hearing.

10. Following transfer, and on 9 March 2018, an Order was made in Chambers remitting the proceedings, as it were, to this Court. The bench sheet recording that Order noted that the proceedings were transferred from the Family Court of Australia to the Federal Circuit Court of Australia for the following reasons: 

    (a) The matter was transferred on the basis that the mother alleged sexual abuse, or unacceptable risk of sexual abuse, by the father.  There are no allegations of sexual abuse. That is simply not so. As is clear from the above, significant discourse had occurred and the transcript of proceedings from that day would make clear that the mother was agitating at that time, and does, at this time, indeed with fresh allegations, agitate for such a finding of unacceptable risk. 

    (b) There are no other reasons for transfer, including matters for complexity. 

11. It was noted, at the time that the proceedings were transferred by this Court to the Family Court of Australia, that there were matters of complexity. Indeed, the proceedings now involve a substantial Application for Contravention, an Application in a Case seeking suspension of all existing parenting Orders, together with further ancillary and interlocutory Orders, and the financial issue is now sought to be further agitated. It would appear, although the pleadings do not presently make it expressly so, that the father agitates also for a finding of unacceptable risk on the basis of the children being in the mother’s care. All of those matters would render the proceedings significantly complex, factually certainly, if not also by reference to legal precedent. 

12. When the matter was remitted to this Court it was otherwise noted that there was an outstanding Application for Contravention filed by the father. Indeed, that was one of the issues of complexity with respect to the proceedings which founded transfer to the superior Court. It was apprehended that, unless the matter could be heard and determined thoroughly, appropriately and expeditiously, that there would be ongoing Applications in a Case and further Applications for Contravention, a pessimism which has proven to be well-founded, as there are now, several months after the matter was returned to this Court, a further Application for Contravention and a further Application in a Case, together with each party, via their Amended Notices of Risk, now alleging unacceptable risk to the children in the care of the other parent, together with the substantive Applications already referred to.

13. It is unclear why the matter was returned to this Court. There was no Appeal by either of the parties against the transfer Order that was made.  Neither party, nor the Independent Children’s Lawyer sought to cavil with the Order, nor would it seem that the clear statement upon the transcript of proceedings, 6 March 2018, that the mother agitates for a finding of unacceptable risk based upon alleged sexual abuse, or unacceptable risk of sexual abuse, was ascertained. It is certainly clear at this point, and the mother and Independent Children’s Lawyer each seek it or consent to it, that the proceedings can, and should, be returned to the Family Court of Australia where the proceedings can, and will, be heard with the appropriate resources of that Court, although that is not to suggest the resources of the superior Court are more abundant than this Court’s, but with the processes and procedures available through either the Magellan list or the Less Adversarial Trial.

14. I must consider each of the matters in rule 8.02 of Federal Circuit Court Rules 2001.

Whether the proceedings are likely to involve questions of general importance?

1. This case would now appear to raise, without suggesting either party specifically alleges any matter in these terms, allegations of:

   a)Sexual abuse, or potential sexual abuse, of the children in each household;

   b)Potential parental alienation of the children; 

   c)Potential abuse of the children by the mother through the generation of false memories, it being the father’s allegation, (and I make clear that no finding is made accepting that allegation at this point), that the mother has manufactured complaints of abuse of the children, whether based upon some pre-morbidity of her own or otherwise, and has inculcated those beliefs in the children.  Further, the children, it would seem, have now been interviewed myriad occasions by officers from the Police, the Department of Family and Community Services, the Joint Investigation Response Team, medical practitioners, et al. 

2. The proceedings involve significant questions of importance with respect to mutual issues of unacceptable risk and protection of children.

Will the proceedings be heard at less cost and more convenience?

1. That cannot be answered. The matter can certainly be heard quickly in this Court, contrary to popular belief. Hearing dates could be allocated as early as March 2019. But it is a matter of the protocol between Courts and what is appropriate to be before each Court. 

2. This Court is a first instance trial Court, the fishes and loaves Court as it were, intended to deal with matters of less complexity not only arbitrarily defined by suggested length of hearing. In this case, the issues are factually complex, indeed an almost impenetrable labyrinth at this point, and the hearing of the case will take, one would think from the parties’ perspectives, much more than four days given any realistic consideration of what would be required as regards the giving of evidence, the production of material, and cross-examination, realistically, five to eight days at least.

3. The proceedings will not necessarily be heard more quickly or more cheaply before the Family Court of Australia. However, it is where the proceedings belong. That is why they were first transferred in March 2018. They will be no less expensive in this Court. 

Whether proceedings will be heard earlier?

1. I do not know what dates would be allocated to the matter in the Family Court of Australia, although, if the matter had proceeded in March 2018, it may well have now reached a conclusion.

The availability of particular procedures

1. That is particularly important in this case. It is a matter that would benefit from the Magellan protocol. It would assist in a number of ways. It would enable material to be available. The Department may, in light of each party suggesting the children are at risk of significant abuse in the care of the other, seek to intervene. If nothing else, those procedures will assist the Independent Children’s Lawyer forensically and in terms of funding.

Wishes of the parties

1. The Independent Children’s Lawyer and the mother both seek transfer.  It is entirely appropriate to transfer the proceedings at this time as it was in March 2018.

2. Accordingly, Orders are made as follows.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 30 October 2018