Thayer & Caville & Ors [2015] FCCA 1039 (20 February 2015)

Last Updated: 13 May 2015

FEDERAL CIRCUIT COURT OF AUSTRALIA

THAYER & CAVILLE & ORS

[2015] FCCA 1039

Catchwords: FAMILY LAW – Parenting case – many complex issues – adjourned due to parentage and kinship issues – whether to transfer to Family Court of Australia.

Legislation: Federal Circuit Court Act 1999, s.39

Thayer & Caville & Ors [2014] FCCA 3157

Applicant:

MR THAYER

First Respondent:

MS CAVILLE

Second Respondent:

MS P CAVILLE

Third Respondent:

MS J CAVILLE

File Number:

WOC 602 of 2013

Judgment of:

Judge Altobelli

Hearing date:

20 February 2015

Date of Last Submission:

20 February 2015

Delivered at:

Wollongong

Delivered on:

20 February 2015

REPRESENTATION

Counsel for the Applicant:

Ms Humphreys

Solicitors for the Applicant:

Bailey Mullard Lawyers

Counsel for the First Respondent:

Ms Mahony

Solicitors for the First Respondent:

Women's Legal Service NSW

Counsel for the Second and Third Respondents:

Ms Saw

Solicitors for the Second and Third Respondents:

Shoalcoast Community Legal Centre

Counsel for the Independent Children's Lawyer:

Mr Alexander

Solicitors for the Independent Children's Lawyer:

Verekers Lawyers

ORDERS
BY CONSENT PENDING FURTHER ORDER THE COURT ORDERS THAT:

(1) Pursuant to Rule 13.04 of the Federal Circuit Court Rules 2001, Orders be made in accordance with the document marked “A” dated this day 14 April 2015 and attached hereto.
(2) Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders

THE COURT FURTHER ORDERS THAT:

(3) The Final Hearing listed for 14 – 16 April 2015 be vacated.
(4) The matter be transferred to the Family Court of Australia, Sydney Registry, to be listed before a Registrar on 15 June 2015 at 10:00am (changed in chambers).

THE COURT NOTES THAT:

1. This is a complex case involving 3 children of Indigenous background who have a non-Indigenous father.
2. There are aspects of the evidence of Dr R and Mr S that conflict.

100. There are serious allegations about family violence, mental health issues, neglect and drug and alcohol abuse that require factual findings.

4. There are significant kinship issues pertaining to the children.
5. The matter has twice been listed for hearing in Wollongong. On the first occasion, the matter as adjourned as a result of rulings on the admissibility of parts of Dr R’s evidence, and the need for expert evidence on Indigenous kinship issues. On the second occasion, the matter could not proceed as all parties agreed that there were real issues about paternity that first needed to be determined.
6. The current estimated hearing time is conservatively 6 days.
7. This Court recommend that, if at all possible, a final hearing be expedited once the paternity issues are resolved.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG

WOC 602 of 2013

MR THAYER

Applicant

And

MS CAVILLE

First Respondent

MS P CAVILLE

Second Respondent

MS J CAVILLE

Third Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In the matter of Thayer & Caville, I provided the following ex tempore reasons. The case before me is a very complicated case relating to three children, X who is seven, Y who is five, and Z who is four. The matter has been before me several times and Interim Orders are in place. I do not think it is necessary in the circumstances to go through the procedural history in detail other than to note that the matter was listed before me for final hearing from 14 to 17 April 2015, so the time has been made available.
2. The matter was previously listed before me for final hearing on 24 to 27 June 2014, again in circumstances where a substantial time had been set aside for the case. However, the matter could not proceed due to issues with expert evidence. Those reasons are published as [2014] FCCA 3157.
3. The matter came before me today, the parties having spent yesterday in discussions, quite appropriately so, and, it should be recorded, at my request in circumstances where on short notice I could not be available. When the matter came before me this morning there was an application for adjournment having regard to issues that had arisen, it would seem in the mind of the all parties, about parentage relating to the children.
4. I had the benefit of hearing from the Second and Third Respondents, the Maternal Aunt and Maternal Grandmother, and the Father about the issue of paternity. I am satisfied, especially after hearing from them, that it is in fact in the best interests of X, Y and Z that these outstanding issues about paternity be resolved. This is in the context of a very difficult case where there are kinship issues because of the children’s Indigenous background.
5. Accordingly, I am satisfied and I informed the parties that it was appropriate to adjourn this case, though I record some reservation because this matter, from the children’s perspective, is going to be put off again. In any event, the options open to the Court, having made that decision, were to relist it at a later date before this Court or to transfer the matter to the Family Court. That is in fact the application of the Applicant Father, supported by the Independent Children's Lawyer. By any estimation this is a complex matter.
6. Having regard to the estimates of Counsel on behalf of the parties, it probably will take more than five days. Indeed, according to Ms Humphreys, it may take at least seven days. The history of the matter in my docket suggests that the complexities continue to evolve and unravel in this case.
7. The Court has a discretionary power to transfer proceedings to the Family Court of Australia pursuant to s.39 of the Federal Circuit Court Act 1999. In addition to this, there exists a protocol between the two Courts which outlines the criteria for transfer:
   • Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court
   • The Chief Justice and the Chief Judge have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them. The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
   • 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 Circuit Court (‘FCC’).
   • 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 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.

According to this protocol, the matter certainly meets the criteria for transfer.

8. Against that, however, there are the issues raised by the Respondent Mother and the Second and Third Respondents, as well as concerns that this Court itself has. The First, Second and Third Respondents all point to the geographical benefits of being a regional court and having much closer knowledge and access to the services that are available to assist this family. They currently live in the (omitted) area. This is an important consideration. I think implicit in those submissions, and in any event a matter that the Court raises itself, is the benefit to the children and to the parties of the matter remaining in my docket in circumstances where it has been in my docket for two years and where as a result of now two aborted hearings, I am quite familiar with this case. If the matter is transferred it will have to go to a new judicial officer who will have to familiarise herself or himself with all of the evidence.
9. There are good reasons to transfer and there are good reasons to keep the matter. If I were to keep the matter I could not find seven days of hearing time this year. The very nature of the work undertaken here at the Wollongong registry of the Court, and the very large docket that is served here, would make it impossible to deal with this case in less than one year’s time. It is possible indeed, perhaps with a recommendation as to expedition by myself, even likely, that this matter could be dealt with quicker in the Family Court in Sydney, even taking into account the fact that somebody will need to familiarise themselves with this case.
10. The unfortunate fact – and I say this to Mr Thayer and Ms Caville – is that I feel a responsibility not just towards X, Y and Z but to all of the children whose cases are here, and I simply cannot do anything to accelerate it so this case could be heard quicker. If I make room in my docket, it is only because I move other children’s case, and that simply would not be right, especially in circumstances where the Family Court is geared up to do the longer and more complex cases. I am satisfied that it is in the best interests of the children, and I think in the best interests of the parents, that I do transfer this matter to the Family Court of Australia.
11. I am going to transfer it and list it for mention before a registrar in the first instance on a date to be advised. I am going to make a recommendation as to the matter being expedited. I am going to include a number of notations, some notations that give the procedural history of the matter that point out to some of the more obvious complexities that exist. I will not try to articulate those notations now. I will simply do that in Chambers. Rest assured that I will do what I can, not just through any notation but, if the parties have no objection, by an email to the Case Management Judge simply requesting that this case be drawn to their attention at the earliest time to consider the matter being expedited.
12. I will only undertake that communication, however, if there is no objection from those at the Bar Table.
13. I might just note that all the parties have agreed that there should be parentage testing, and a Minute of Order will be filed in Chambers today before the Order transferring the matter is embraced.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate:

Date: 1 May 2015