Argyle and Jerrems
[2012] FMCAfam 149
•22 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ARGYLE & JERREMS | [2012] FMCAfam 149 |
| FAMILY LAW – Application for change of venue. |
| Family Law Act 1975, ss.69ZX, 60CA, 62G Federal Magistrates Court Rules 2001, R.8.01, Part 15 Evidence Act 1994, s.69 |
| Cowling [1998] FamCA 19 Griffiths (1981) FLC 91 - 064 Cilento (1980) FLC 90 - 847 Rainer (1982) FLC 91 – 239 Goode (2006) FLCA 93 - 286 Marvel [2010] FamCAFC 101 Rice & Asplund [1979] FLC 90 - 725 |
| Applicant: | MS ARGYLE |
| Respondent: | MR JERREMS |
| File Number: | AYC 319 of 2008 |
| Judgment of: | Harman FM |
| Hearing date: | 22 February 2012 |
| Date of Last Submission: | 22 February 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 22 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | James McDermott Barrister & Solicitor |
| Counsel for the Respondent: | Ms Elleray |
| Solicitors for the Respondent: | Nevin Lenne & Gross |
ORDERS
These proceedings be transferred to the Albury Registry of the Federal Magistrates Court.
The proceedings be listed for a mention by telephone at 9.30 am on Thursday, 23 February 2012.
Leave be granted to the attorney’s for the parties and the Independent Children’s Lawyer to appear by telephone and request that the Associate to her Honour, Federal Magistrate Henderson arrange a Telstra conference call to facilitate same.
There otherwise be orders, by consent, in terms of the Minute of Consent Orders signed by or on behalf of the parties and dated 21 February 2012 (“the Minute”).
IT IS DIRECTED THAT
The Minute be placed upon the Court file.
The solicitors for the mother engross the Minute and deliver a clean, duly certified copy of the same (“the Copy”) to the Registry of this Court within 7 days.
Upon delivery of the Copy to the Court, the within orders be extracted and the Copy be attached thereto.
THE COURT NOTES THAT
The listing on 23 February 2012 is to determine what procedural or administrative matters require address and specifically:
(a)whether a report pursuant to s.62G of the Family Law Act 1975 or Part 15 of the Federal Magistrates Court Rules 2001 is to be commissioned;
(b)subject to the above to determine the identity of the report writer and the specific questions and issues they are to be invited to address;
(c)whether the matter is ready to be listed for trial (and noting that the parties appear agreed that the matter requires 3 days of hearing time); and
(d)what other procedural matters may require redress.
IT IS NOTED that publication of this judgment under the pseudonym Argyle & Jerrems is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
AYC 319 of 2008
| MS ARGYLE |
Applicant
And
| MR JERREMS |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today with respect to an application for change of venue.
The proceedings relate to competing parenting applications on both a final and interim basis regarding a child, X, born on (omitted) 2005.
The interim parenting issues have been resolved between the parties and with the assistance of the Independent Children's Lawyer and I have earlier today made orders in accordance with a minute of proposed orders executed by the parties and the Independent Children's Lawyer. Those orders will, as it were, tide the matter over until final determination or such further interim or interlocutory application as may be made.
The parties to the proceedings are X’s parents. X’s mother is the applicant in this round of proceedings and X’s father, the respondent.
It is abundantly clear from the Court file and appears common ground between the parties that for the majority of this little girl’s life that there has been litigation and dispute between her parents. As a consequence of that dispute, litigation had concluded by judgment delivered by Henderson FM in July of 2009. That judgment had followed upon five days of hearing.
The reasons for judgment delivered by her Honour are substantial and each of the parties and the Independent Children's Lawyer have referred to those reasons although I have not, due to the pressure of time, considered the transcript in detail as has been made clear to the parties.
The transcript of those proceedings would be able to be tendered and relied upon in any hearing of issues at this point in time, and particularly noting the provisions of s.69ZX with respect thereto. To that extent, it is abundantly clear from those orders that at the time of that hearing, her Honour varied arrangements that had been in place for this little girl’s care until that time and such that X passed into the immediate care of her father. It would appear that the transition in fact occurred prior to the delivery of reasons.
The child has continued to live, as a consequence of those orders, with her father until about November of last year. At that time a number of allegations were raised by the mother and which are encapsulated within a notice of child abuse filed on 21 February 2012, and repeated in earlier affidavit material.
This round of proceedings in fact commenced by an application filed ironically on Armistice Day, 2011.
The proceedings have, since that time, developed substantially and such that in excess of 30 documents have now been filed in a short space of time.
The parties would appear to agree that the final hearing of the proceedings will take two to three days – and one would think from the quantity of material filed thus far, in all probability three days. On that basis, the matter is not of such complexity or likely length of hearing as to preclude its inclusion within a circuit. To include the matter in a circuit, if it were likely to take longer than that would, in all probability, create some grave difficulty in the efficient administration of the circuit.
The application for change of venue is agitated by the father who is the respondent in these proceedings. It is opposed by the applicant mother, and the Independent Children's Lawyer neither opposes nor supports the application and quite fairly and correctly points out that there is merit in both positions.
Part VIII of the Federal Magistrates Court Rules2001 deals with the relevant criteria to be addressed by the Court with respect to change of venue.
Rule 8.01 provides specifically for change of venue between registries of this Court and in non-prescriptive fashion. Sub-s (2) provides that relevant considerations are:
a)the convenience of the parties; and
b)the limiting of expense and the cost of the proceedings;
c)whether the matter has been listed for final hearing; and
d)any other relevant matter.
a) Convenience of the parties
The father’s case does not suggest that the matter can or should be determined on the basis of balance of convenience for the parties. It is a strong element of the mother’s opposition to the transfer that it is suggested that there would be significant inconvenience to her and more germanely – having regard to s.60CA of the legislation – the child, X, together with a two year old child of the mother from a relationship subsequent to that with X’s father.
That relationship of itself would appear to be surrounded by some difficulty and as a consequence of which the interim orders made by me today impose a restraint upon X being brought into contact with the father of the two year old child, being the mother’s former de facto partner.
The convenience of the parties is a fairly mute point. Clearly, if the proceedings remain in Melbourne there will be an inconvenience to the father and the witnesses to be called in his case, including his mother and partner.
There will be inconvenience to the father’s household, which comprises three children at this point in time and had included four children until the time that X ceased to reside in his home after what is apparently conceded as the child’s retention, albeit as a consequence of concerns that are suggested to arise from observed injuries to the child. Whether those injuries were in fact observed, or manufactured as is suggested in the father’s case or anything else is not an issue relevant for the determination of the change of venue application.
What is relevant in that regard are the matters set out in Rule 8 and the limiting of expense, convenience and the like. The convenience of the parties favours neither transfer nor retention.
b) The limiting of expense and cost of the proceedings
An important element of the submissions put in the father’s case is that these proceedings have a history and a history that is known to a Federal Magistrate involved in the administration and conduct of the Albury circuit, where these proceedings have previously been conducted.
It is trite to say that a number of determinations of appeal courts and otherwise, both within the family law system and externally, enshrine the principle that an applicant is entitled to choose their venue.
It is suggested in the mother’s case that evidence with respect to the present proceedings is largely connected with Melbourne and, accordingly, the matter should remain here.
I hasten to add at that point that the hearing dates that could be allocated to the matter in either Melbourne or Albury are not dramatically dissimilar, such as there is no issue of delay in one venue or the other that would be of assistance in determining the question. However, the limiting of expense and cost would appear to relate to an issue of production of information.
Quite clearly, the investigations that have occurred to date and which the Court is advised are continuing being investigations by the Department of Human Services and/or Victorian Police, will be the subject of the issue of subpoena as they have been already. It is suggested that those subpoena are returnable before the Melbourne Registry of the Court and there would be inconvenience if the proceedings were transferred.
I do not accept that this is so as the Court has more than adequate arrangements in place to provide for the transfer and transportation of files and other materials. Similarly, material produced on subpoena is generally produced by the material being forwarded by post, particularly for regional registries such as Albury. That is a system that is well established and perfectly efficient and functioning.
Portions of the material that is to be produced by the Department of Human Services, Police and possibly others including schools and the like will, in all probability, be the subject of tender and would, prima facie, be admissible as an exception to the hearsay rule under s. 69 of the Evidence Act 1994. On that basis, there is unlikely to be any greater cost or expense in relation to those agencies, their investigation or otherwise, whether those records are produced to the Melbourne Registry or produced to Albury.
The documents will be subpoenaed, will be produced and will need to be inspected. Arrangements can be made for inspection of material to occur in registries other than that to which they are produced. Accordingly, the tender of those documents, assuming that deponents of individual records are not required for cross-examination, is not going to influence cost or expense of the hearing.
In relation to material that otherwise will be required for the hearing, it is to be noted that whilst it is asserted in the mother’s case that the child is now settled into arrangements in her care. I accept. in the context of the limited time that the child has been in the mother’s care, that this is so. It is heartening that the child has, with such resilience as she has left after many years of litigation between her parents, been able to do so. It is not an arrangement that within the context of cases such as Cowling[1998] FamCA 19, Griffiths (1981) FLC 91 - 064, Cilento (1980) FLC 90 - 847, Rainer (1982) FLC 91 - 239, Goode (2006) FLCA 93 - 286 and Marvel [2010] FamCAFC 101, could genuinely be described as “a settled arrangement”.
All and any evidence with respect of this child’s arrangements between the conclusion of the last set of litigation in June of 2009 and November of 2011, in all probability, is in or about the vicinity of the father’s residence. Accordingly, that factor is again of little benefit in either party’s case as the production of such material can occur no matter where the proceedings are held.
The travel of the parties is certainly an issue and quite clearly, the father’s residence is closer to the Albury Registry. The mother will be involved in greater travel if the matter is transferred. Certainly one or other of the households, and indeed in all probability, both will be disrupted irrespective of where the proceedings are held.
c) Whether the matter is being listed for final hearing
The proceedings have not been allocated final hearing dates and would appear to have been the subject of a number of interim orders, including orders by Walters FM on 23 January 2012, and the return of the proceedings to the Court today.
There has been some involvement of a Family Consultant in the matter, and a transcript of evidence given by the Family Consultant is noted on the folio of the Court file as being held on the file, but is not suggested as relevant for the purpose of this determination.
A family report has previously been prepared in the concluded proceedings and by Family Consultant Mr D, who remains within the Albury Registry of the Court.
As a listing of the matter for final hearing has not occurred and there being no significant difference in the hearing dates that could be allocated irrespective of venue, this factor is, again, not a matter of any great significance.
d) Other relevant matters
It is put with some force by Counsel for the father that the matter should return to the registry in which previous proceedings occurred, and ideally before the Judicial Officer who had dealt with those proceedings.
It is conceded, and again fairly and appropriately so by Counsel for the father, that the allocation of judicial resources to the hearing of the matter is and should be a matter for the manager of that circuit if it is transferred, being Henderson FM, who had dealt with the previous proceedings. If there were to be an application for recusal (and that has not been raised or suggested today) then similarly that is an application that should be dealt with by her Honour.
If the proceedings remain in Melbourne, it is inevitable that a different Judicial Officer will deal with the case.
During submissions by Counsel for the father I have made reference to an academic work by Martinson J (now retired) of the Bench of the British Columbia Supreme Court and published in the Association of Family and Conciliation Courts Journal during 2010-2011. Submissions from all were sought regarding the central theme of that work.
That article addressed and opined the potential benefit, in matters of complexity and particularly, within the context of that article, cases involving issues or allegations of alienation or other behaviours which result in ongoing conflict and dispute between parties, of such cases being addressed and managed with a continuity of resources. In her Honour’s article and as opined by her this had included judicial resources but also social science resources so that some continuity and historical context would be available.
Counsel for the mother has indicated, appropriately so, that as a consequence of the passage of time between the conclusion of the last round of litigation – and one suspects that this round may be the last round of litigation for this poor child – that her Honour Henderson FM, were the matter to return to her, would have little recollection of the matter. Certainly some significant time has passed and a great volume of work has flowed past her Honour’s eyes. However, that continuity and a recollection and ability to consider past notes and the like may be of some considerable assistance in shortening the hearing time of the matter, clarifying issues, and or being able to quickly absorb that which has been occurring in the matter since last before the Court.
There is some force to the submission put on the father’s part in this regard.
If the matter were to remain in Melbourne, there is potentially the benefit, contrary to that submission, that a fresh set of eyes would be brought to the matter. It is submitted in the mother’s case that, indeed, this may be beneficial as the issues raised in the matter at this point in time are entirely new and separate. I am concerned, and with the greatest of respect to that submission as it is appropriately put, that there is some degree of artificiality in that.
In the event that any Rice & Asplund [1979] FLC 90 - 725 issue were to arise, and from what I can apprehend of the evidence filed in this matter to date that is unlikely, one must have regard to past evidence and in accordance with the provisions of Division 12A, this will enable the tender and reliance upon, in such fashion as the Court considers appropriate, transcripts of past proceedings. One must consider the past to be able to determine whether there has been a change.
In the context of this case, and as the father has quite clearly and fairly identified he proposes to conduct the case on the basis of a suggestion that the present allegations lack veracity and represent a consistent pattern of behaviour. That is not to suggest that I accept that submission, but simply to identify that this is at this early stage in the matter, clearly identified as an issue that will be raised at trial. Accordingly, there is some benefit and some greater force then attached to the submission put in the father’s case.
On that basis and noting that the convenience of the parties will, with the possible exception of disruption to this little girl in having to travel with respect to the proceedings or other alternative arrangements being made as to which I have no evidence, I am satisfied that the proceedings should be transferred to the Albury circuit.
Certainly this little girl will be disrupted in being required to attend Albury, subject to such discretion or sensitivity as is exercised in the conduct of Family Reports in light of the allegations of child abuse raised by the mother, for the purpose of observation sessions. However, that will involve absence from school and the like irrespective of where those appointments are conducted. Further, the parties in the past conduct of litigation and their dealings with each other have already caused significant disruption for this little girl with fair less worthwhile purpose.
There may also be, on the basis that one can infer from the position advanced by the father, some suggestion that the child is being overly-exposed to interview, investigation and assessment. There is some slight lessening – and it is very slight – of the potential for this child to be over-exposed by at least returning to a Family Consultant whom she has previously met.
The child of course will not be required to attend the hearing and one would hope that alternative care arrangements can be made. On the basis that there is – as a consequence of the interim orders that I have been invited to make and have made by consent today – overnight time with this child spent with her father, one would hope, although the optimism I can express in that regard from the little I have gleaned from the history of the matter today is not high, that some arrangement could be made for the child to be accommodated, if that were what was required, with the father or his extended family so that she was close to both parents during a trial.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 1 March 2012
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