Bacon and Watkins

[2013] FCCA 1678

FEDERAL CIRCUIT COURT OF AUSTRALIA

BACON & WATKINS [2013] FCCA 1678

Catchwords:
FAMILY LAW – Oral application to transfer proceedings to the Family Court of Western Australia.

Legislation:

Federal Circuit Court Rules 2001, r.8.01, r.8.02

Family Law Act 1975, s.60CA

Applicant: MR BACON

Respondent: MS WATKINS

File Number: PAC 4294 of 2012

Judgment of: Judge Harman

Hearing date: 20 September 2013

Date of Last Submission: 20 September 2013

Delivered at: Parramatta

Delivered on: 20 September 2013

ORDERS

1. The proceedings are transferred to the Family Court of Australia, Western Australia sitting in Perth.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4294 of 2012

MR BACON

Applicant

And

MS WATKINS

Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced by Application filed 27 May 2013. 

2. The Applicant in the proceedings, Mr Bacon, is the Father of the child the subject of the proceedings, X, born (omitted) 2010 and accordingly 3 years of age.

3. The Respondent to the proceedings is X’s mother, Ms Watkins.

4. The proceedings have some history before this Court. 

5. An earlier set of proceedings had been commenced by an Application filed 26 September 2012. The Applicant in those proceedings was the Paternal Grandmother and the Father and the Mother was the Respondent. 

6. A Response was filed in those proceedings by the Mother.  A number of Court events occurred concluding with a final undefended hearing on 6 May 2013.

7. The Father’s fresh Application seeks orders which would have the effect of suspending, on an interim basis, and discharging, on a final basis, the final orders previously made by the Court.  The Father alleges that this should be so on the basis that the mother has lied and misled the Court in asserting that:

   a)The parties were separated at the time orders were made (the Father suggests that he and the Mother were cohabiting at that time); and

   b)She had little, if any, communication with the father and the father with the child for some months prior to the final hearing date (when the father, again, alleges the parties were cohabiting at that date).

8. The Mother denies the father’s allegation. 

9. The Mother has, since the conclusion of the last proceedings and, it would seem in May or June of 2013, relocated to Western Australia. 

10. The past proceedings were completed on a final and undefended basis and as each of Mr Bacon and his Mother who had been the Applicant, had filed a Notice of Discontinuance on 1 February 2013. 

11. Nothing was suggested to have been brought to the Court’s attention at the time of filing of said notice to suggest that the parties were reconciled.  That is not to suggest that it was an obligation upon the Applicant or the Father to do so. 

12. However, the Notice of Discontinuance purely evinced a desire to no longer prosecute or agitate an application before the Court and nothing else. 

13. The prior proceedings between the parties had involved substantial issues and allegations. Indeed, the Affidavits filed by each of the Applicants as they ultimately were styled in the proceedings, being the Paternal Grandmother and the Father, comprised 264 and 179 paragraphs respectively. 

14. Significant allegations were raised with respect to the Mother regarding her suggested involvement in prostitution, drug use and violent crime.  A number of those allegations were addressed at final hearing, albeit on an undefended basis, and including through the tender of material which, at least with respect to a number of the allegations, were corroborative of the absence of basis or accuracy for same. 

15. In any event, the past proceedings were heard, determined and completed. 

16. The allegations raised in the past proceedings referred to the likely existence of records which would, potentially, be relevant to the proceedings. Those documents have been returned.

17. There had been an Independent Children's Lawyer appointed in the past proceedings. The Independent Children’s Lawyer did not participate in the final, undefended hearing having sought discharge on the basis that the matter was to be concluded in that fashion. However, significant Subpoena were issued relating both to the Mother and Father. 

18. The majority of Subpoena filed had been caused to be filed by the attorneys for the mother and including Subpoena to the Ambulance Service, (omitted) Community Health, (omitted) Hospital, (omitted) Hospital, (omitted) Medical Centre, New South Wales Corrective Services and (omitted) Hospital. Those records primarily related to the father.  That is all material that, clearly, would have some potential relevance to any future determination of the proceedings. 

19. This present Application came before the Court on the first return date 25 June 2013. 

20. The Father suggests to the Court today, although not on oath, that he was aware at the date of filing his Application that the mother had relocated to Western Australia and was living there.  It is not referred to in his Affidavit sworn or affirmed and filed on 27 May 2013. 

21. The Mother indicates that she has attended upon an attorney in Western Australia and provided preliminary instructions to them, that she has made an application for legal aid funding through Legal Aid Western Australia but has not received any response, or at least no favourable response, noting that the present proceedings are before a Court in New South Wales and, thus, any application for funding should appropriately be made through the New South Wales Commission. 

22. The Mother has not filed a Response but has travelled from Perth today for the purpose of appearing and to oppose the orders sought by the Father. 

23. The Mother seeks leave to make an oral application for the transfer of the proceedings to the Family Court of Western Australia. 

24. It is not possible to transfer the proceedings between registries of this court and to, thus, treat the matter as an application for change of venue.  The Federal Circuit Court of Australia has no jurisdiction in family law in Western Australia. 

25. In dealing with the proceedings I am required to have regard to Part 8 of the Federal Circuit Court Rules2001. 

26. Regulation 8.02 is that most germane to a transfer of proceedings from the Federal Circuit Court to either the Federal Court or Family Court, in this case, of Western Australia. 

27. Regulation 8.01 deals with change of venue and whilst this application proceeds as a Transfer between Courts rather than a change of venue I propose to address those matters also. In turning to each of those matters:

    a)Convenience of the parties. 

    That is somewhat neutral. Clearly, there is convenience to the mother of transfer and inconvenience to the Father of a transfer.  The converse applies if the proceedings remain before this Registry. However, the convenience of the Mother favours the transfer on the basis that she has the full-time care of the three year old child and thus she is more inconvenienced.

    b)Limiting of expense and cost.  The proceedings will involve cost one way or another. The mother proposes to be legally represented.  The Father is not presently legally represented and it is entirely a matter for him whether he chooses to be in the future.  The parties are each able to attend and participate by telephone and video link for most, if not all, purposes in the proceedings save possibly family report interviews and/or final hearing.  Determination of such applications are a matter for the Judicial Officer seized with the case whether before this Court in Parramatta or the Family Court of Western Australia in Perth. The factor is neutral.

    c)Whether the matter has been listed for final hearing. These proceedings come before the Court today on the first occasion following service of the mother and with her appearance entered.  Accordingly, the matter clearly has not been listed for final hearing although a final hearing, albeit undefended, occurred some few months ago.

28. Other relevant matters I propose to address through regulation 8.02 addressing transfer.

29. Whether the proceedings involve questions of general importance such as would make it desirable for the decision to be made by the higher court.  I am satisfied that that is so.  The Father raises allegations that suggest significant evidential complexity will flow.  The father alleges that the mother has and/or is engaged in a course of conduct which, if ultimately found to be proven, would:

    a)Undermine the integrity of the orders made by me on a final and undefended basis and which would then be suggested to be based upon an unreliable acceptance of the Mother’s sworn testimony;  and

    b)Potentially expose the mother to prosecution for perjury and possibly other offences.

30. In those circumstances, I am satisfied that both the matter should be viewed with fresh eyes rather than the issue of whether the mother has misled the Court being determined by me as the Judicial Officer who had accepted and relied upon her evidence in completing the proceedings, and that there are issues of general importance to the community and the administration of justice which warrant the attention of the higher court.

31. Whether, if the proceedings are transferred, it is likely to be heard and determined at less cost. In light of the evidential complexity the proceedings are likely to involve greater cost than would be the case had the parties not been in the circumstances in which they find themselves.  Thus, little can be done to address that.

32. Whether the proceedings will be heard earlier in this Court or the Family Court of Western Australia. There have been recent appointments to the Family Court of Western Australia and it may well be that the matter will be heard as quickly or more quickly in that Court.

33. Neither party is in a position to advise of present delays and I am not cognisant of them. The delay for the matter being heard and determined in this court, if it remains in my docket with well in excess of 400 other matters and with significant delay in preparation of a Family Report (if required), is significant and the matter is unlikely to reach hearing before 2015.

34. The availability of particular procedures. I am satisfied that the superior court is the court best in a position to hear and determine these proceedings whether the matter was transferred to the Family Court of Australia sitting at Parramatta or the Family Court of Western Australia.

35. In light of the substantial factor in the mother’s favour, being convenience and limiting of her expense, and noting that the child lives in her full-time care and by reference to 60CA of the Family Law Act1975, the child’s best interests are the paramount consideration in all determination made in the proceedings, I am satisfied that the proceedings should be transferred. 

36. Accordingly, I make the following order.

I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date: 22 October 2013