FEDERAL MAGISTRATES COURT OF AUSTRALIA

SUMMBERBY & CADOGEN (No.2) [2011] FMCAfam 1018

FAMILY LAW Transfer to Family Court relevant consideration. Family Law Act 1975, ss.69ZK, 69ZW, 91B Federal Magistrates Act 1999, s.39 Federal Magistrates Court Rules, Rule 8.02 MR SUMMERBY Respondent: MS CADOGEN BRC 3171 of 2007 Judgment of: Hearing date: Date of Last Submission: Delivered at: Delivered on: Wilson FM 17 September 2009 17 September 2009 Brisbane 18 September 2009

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REPRESENTATION Counsel for the Applicant: Solicitors for the Applicant: Counsel for the Respondent: Solicitors for the Respondent: Counsel for the Independent Childrens Lawyer: Solicitors for the Independent Childrens Lawyer: N/A Corporate & Property Lawyers Ms Kirkman-Scroope Attwood Marshall N/A Legal Aid Queensland

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ORDERS (1) (2) (3) That the child [X] born in 2004, continue to live with the mother. That the mother have sole parental responsibility for the child. That the father spend supervised time with the child at the Gold Coast Contact Centre or at such other place as may be agreed for a period of one and a half hours after school, on two no-consecutive days during each week. That the mother and father forthwith do all things and sign all documents necessary to register with the Gold Coast Contact Centre, or at such other place where the father is to spend time with the child. That the mother and father be equally responsible for the costs of supervised visits. That the mother and father refrain from discussing issues relating to these proceedings with the child or in the presence or hearing of the child. That the mother and father refrain from denigrating the other parent to the child or in the presence or hearing of the child. That the mother and father attend upon Michelle Quigley and Dr Scott Harden, for assessment, as directed by the Independent Childrens Lawyer, with the mother to ensure that she makes the child available for assessment, as directed. That the mother and father attend upon Ms C for confidential counseling, as directed by a counselor selected by the Independent Childrens Lawyer, with the mother to ensure that the child attends for counseling as directed, with the mother to equally share the cost of such counseling. That the matter be listed for further trial directions at 9:30am on 1 October 2009. That the matter be set down for further hearing commencing at 10:00am on 7 December 2009 with an estimated duration of five (5) days in the Federal Magistrates Court in Brisbane.

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

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FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE BRC 3171 of 2007

MR SUMMERBY
Applicant And

MS CADOGEN
Respondent

REASONS FOR JUDGMENT

1. These parenting proceedings concerning the parties child, [X] born in 2004, have now been on foot for some time. The dispute between the parties has escalated in acrimony and in the seriousness of the allegations levelled by each parent against the other. This court has conducted the final hearing of this matter now over six days. After the first day of hearing, on 17 September 2007, the father filed a contravention application on 5 November 2007. At that time the first allegation of sexual abuse allegedly perpetrated by the mothers partner against the child was raised. In response, the mother applied to re-open the evidence by application filed in December 2007. An Independent Childrens Lawyer was then appointed. Further interim parenting orders were made on 29 January 2008. Further contravention applications were filed by the father on 6 February 2008 and 26 March 2008. These applications were partly heard and further evidence was taken on 6 April 2008. The matter was adjourned to 6 and 7 August 2008, being the earliest dates that the court could offer for a further hearing of the matter.

2.

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3.

At that time, further extensive evidence was taken, including evidence from police officers, child safety officers, medical practitioners, and from expert witnesses. The parties made submissions on 3 September, 2008. The court reserved its decision. The father made a further application on 16 February 2009 relating to the childs passport and for a PACE alert. Those matters were dealt with on that day. On 1 July 2009 the court wrote to the legal representatives of the parties, advising that judgment would be delivered on 10 July. The parties were invited to advise whether any further matters needed to be brought to the courts attention. This provoked a flurry of activity. By application filed 8 July, the father sought to re-open the evidence, and by application filed 9 July, the mother sought to do likewise. It then emerged that there had been further involvement of the Department of Child Safety in April 2009, and more importantly, that an application for a child protection order was filed by the Department, and a child protection order was made by the Southport Magistrates Court on 6 May 2009. No explanation was offered by any party as to why that matter was not brought earlier to the courts attention. The making of such an order seriously circumscribed the powers of this court by reason of s.69ZK of Family Law Act 1975 (the Act). Accordingly, on 10 July this Court made orders requiring the Department of Child Safety to provide information pursuant to s.69ZW of the Act, and invited the Director-General to intervene in these proceedings, pursuant to s.91B of the Act. The Director-General has declined that invitation. The matter was then adjourned to 28 September 2009 for further directions, as a final hearing of the proceedings in the Southport Magistrates Court was scheduled to take place in November. On 1 September 2009 the solicitors for the father filed an application for a PACE alert. That application was heard on 8 September 2009. It was precipitated by the mothers refusal, on 31 August 2009, to provide the child for time with the father supervised by an officer of the Department of Child Safety. On the hearing of that application, and without having prepared their own application, or given notice to the fathers representatives, each of

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the legal representatives for the mother and the Independent Childrens Lawyer applied for the matter to be transferred to the Family Court of Australia for inclusion in the Magellan list. The mother also sought to again agitate parenting matters, notwithstanding the currency of a child protection order in the State court. 9. I declined to hear the oral applications instanter and directed that they be filed and served in the appropriate manner. On 10 September 2009 an application was filed on behalf of the mother, seeking orders that the matter be transferred to the Family Court of Australia, and for interim parenting orders. That application was listed for hearing on 17 September 2009. When the matter came on for hearing on 17 September, I was informed from the bar table, that being a recurring hallmark of this matter, that the proceedings in the State Magistrates Court, which had been listed for hearing for three days in November this year, had on the previous day been stayed, primarily, it seems, on the ground that this Court or the Family Court was the more appropriate forum to deal with the issues pertaining to the child. The reasons of Mr ODriscoll were tendered into evidence. The stay of the State proceedings has opened the way for this court to proceed to make parenting orders. I was also told from the bar table that the Independent Childrens Lawyer has commissioned an updated report from the family report writer, Ms Quigley, and from the expert psychiatrist, Dr Harden. Reports from those two experts are expected to be received by the end of November this year. Against that background, I turn to the application to transfer this matter to the Family Court for inclusion on the Magellan list. Section 39(4) Federal Magistrates Act 1999, provides that: In deciding whether to transfer a proceeding to the Family Court, this court must have regard to: (a) (b) any rules of court made for that purpose; whether proceedings in respect of an associated matter are pending in the Family Court;

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(c) (d) 13.

whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings; and the interests of the administration of justice.

Rule 8.02 Federal Magistrates Court Rules deals with transfers of proceedings to, inter alia, the Family Court. The rules envisage, by Rule 8.02(2), that a request for transfer is made expeditiously on or before the first court date for the proceedings. The request must be included in a response or made by application supported by affidavit. Rule 8.02(4) provides that: In addition to the factors required to be considered under section 39(4) of the Act, 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 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 Federal Magistrates Court; (d) the availability of particular procedures appropriate for the class of proceeding; (e) the wishes of the parties.

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Neither party made any submissions directed to what I consider to be an important threshold issue, namely, whether proceedings which have already been heard and where no order has yet been made permitting either party to re-open them; or assuming that such an order will be made, where proceedings are part-heard, can be transferred to another court. In the absence of submissions, it is inappropriate that I make a determination on that matter. Assuming that the proceedings can be transferred part-heard, notwithstanding the fact that considerable resources, not only of the parties, and legal aid. But also of this court, having been consumed to date, one needs to consider the advantages and disadvantages of such a

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transfer in the context of the factors referred to both in the statute and in the rules of this court. 16. I was told, again from the bar table, that the advantage to the parties of being on the Magellan list would be that the case would be micromanaged. Counsel for the mother contended that a family consultant would be assigned to the matter and be available on call to deal with issues that arise. This was disputed by the solicitor for the Independent Childrens Lawyer. In any event, I note that a family consultant has been engaged in this matter and is to prepare an undated family report in the relatively near future. I informed the parties that I would make inquiries regarding the likely progress of this matter if it was transferred to the Family Court and was accepted for inclusion in the Magellan list, a matter assumed by both the mother and the Independent Childrens Lawyer. I have spoken to the registrar in charge of the Magellan list, Ms Turner. She has informed me that the matter could be put on for a first mention date on 9 October next. If no interim orders were sought and there were no other procedural matters to attend to, the matter would ordinarily be adjourned to November for trial directions. As matters presently stand, a trial could not be offered before the end of March or early April 2010. Further, in terms of case management, Ms Turner advised me that given that an Independent Childrens Lawyer was already involved in these proceedings, that there was the involvement and evidence of an expert psychiatrist and family consultant, that there had been and would be further evidence from the Queensland Police Service, the Department of Child Safety, and potentially from one or more counsellors, and that there were s.93A interviews, and extensive subpoenaed material had been obtained, there was little further case management that could be offered to the parties by the Family Court. Ms Turner advised me that given the extensive resources devoted to this matter to date, no additional resources would be allocated by the Family Court if the matter was transferred there. Ms Turner expressly gave me permission to include these matters in these reasons. In terms of the Rules of this court, these proceedings do not involve questions of general importance. They undoubtedly involved questions

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of importance to these parties, but the criteria in Rule 8.02(4)(a) is not engaged. This court is able to offer the parties a further hearing in the week commencing 7 December this year. Therefore the matter can be heard earlier in this court than in the Family Court. 21. Having regard to the matters which I have already raised, there are no particular procedures available for this proceeding that are not available in this Court, but which would be available in the Family Court. I acknowledge that it is the wish of the mother and the Independent Childrens Lawyer that the proceedings be transferred to the Family Court. There are no associated matters pending in the Family Court. The resources of this court are sufficient to hear and determine the proceeding. Considerable resources, as I have said, have already been allocated to this matter. There would be, inevitably, some duplication in resources if the matter were transferred to the Family Court. The interests of the administration of justice are therefore engaged in the matter remaining in this court. Further, having regard to the history of this matter to date, it is important to these parties that the matter be listed for final hearing as soon as a court can offer. There have, as the brief history of the proceedings outlined by me demonstrates, been numerous interlocutory applications, and it seems that each party is determined to fight on every front available to them. I refuse the application to transfer the matter to the Family Court. I give leave to all parties to call further evidence in these proceedings. The matter is listed for final hearing for up to five days on 7 December 2009. This matter has already been adjourned to 1 October 2009 for further directions. I propose to maintain that date. The parties are directed to confer and prepare before that date a trial plan so that there is no unnecessary repetition of evidence in the forthcoming hearing. On 17 September the mother also sought to agitate for further interim parenting orders. Not surprisingly, the solicitor for the father was taken by surprise, given that the proceedings in the State court had been stayed only the day before. Nevertheless, the material put before the court demonstrates that there are a large number of ongoing disputes between the parties. The father, through his solicitor, has put into evidence what purports to be a further interview conducted under s.93A
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of the Evidence Act 1977 (Qld) with the child. There is a potential dispute as to the accuracy of that recording or of the transcript prepared. How that matter is to be approached needs to be resolved in the trial plan to which I have referred. 25. The mother was unwilling to provide the child to spend time with the father pursuant to orders made in the State court and to be supervised by the Department of Child Safety. The Independent Childrens Lawyer, in her submissions said that the child has a relationship with the father and that time spent with him would be of benefit to the child. I agree. The Independent Childrens Lawyer submitted that she has serious concerns as to the validity of the more recent allegations made by the mother. Until all of the evidence is tested, it is inappropriate for me to make any concluded statement about that matter. The Independent Childrens Lawyer also submitted that the court needs to act cautiously whilst the further matters that have been raised are investigated. I agree with that. It is important that the father spend time with the child between now and the resumed hearing date. I consider that such time should be supervised, out of an abundance of caution. The father will recognise that it is only 10 or 11 weeks until the trial will resume, so that any interim orders that are made are of necessarily short duration. The solicitor for the father sought to put on further material regarding interim parenting orders. It may, having regard to the fact that the trial is to resume on 7 December, be unnecessary for him to do so. The matter is coming back before this court on 1 October and if it is absolutely necessary, variations to parenting orders can be agitated at that time. However, that is not to encourage either party from unnecessarily seeking to do so. The Independent Childrens Lawyer put into evidence as exhibit 3, proposed interim orders. I propose to make orders in terms of paragraphs 2 to 10 of that proposal, with some minor variations. In order 10, the word confidential should be inserted before the word counselling and the words as directed by either Ms K or the be deleted and the words by a counsellor selected by the Independent Childrens Lawyer be inserted.

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29.

In order 4, in my view, the fathers time with the child should be for two periods of one and a half hours each week. Given that the child now attends preparatory school, realistically between now and the resumed trial date, obtaining the services of a contact centre is likely to be problematic, particularly on weekends. The Independent Childrens Lawyer is in the process of making inquiries as to the availability of an appropriate contact centre or some other mechanism by which the father can spend time on two non-consecutive afternoons during the school week with the child. If the parties cannot reach agreement about that matter, I will have to determine it on 1 October next. It is, however, my strong view that if a mechanism can be put in place for the father to spend time for one and a half hours on two afternoons per week, that should be done. That matter will otherwise be adjourned to 1 October at 9.30 am.

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I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Wilson FM Associate: Lynnette Chin Date: 23 September 2009

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