CANAVAN & FELTON

[2015] FCCA 3581

FEDERAL CIRCUIT COURT OF AUSTRALIA

CANAVAN & FELTON [2015] FCCA 3581

Catchwords:
FAMILY LAW – Children – parenting Orders – Interim Orders – best interests of the child.

PRACTICE AND PROCEDURE – Transfer of proceedings – change of venue – application to change venue from the Sydney Registry to the Lismore Registry of the Court – convenience of the parties – limiting of expense and the costs of the proceedings – where matter has not been listed for final hearing.

Legislation:

Family Law Act 1975(Cth), ss.68L, 117

Federal Circuit Court Rules 2001 (Cth), r.8.01

Applicant: MS CANAVAN

Respondent: MR FELTON

File Number: SYC 6876 of 2015

Judgment of: Judge Scarlett

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 9 December 2015

REPRESENTATION

Solicitor for the Applicant: Mr El-Hanania

Solicitors for the Applicant: Saba El-Hanania Lawyers

Solicitor for the Respondent: Mr Fernie (as agent)

Solicitors for the Respondent: Crane Paskins Law

Independent Children's Lawyer: Ms Baker

Solicitors for the Independent Children's Lawyer: Peter Baker Solicitor

ORDERS

BY CONSENT UNTIL FURTHER ORDER

1. The Respondent father is to deliver the child X born (omitted) 2011 to the Applicant mother at 6:30 pm or as agreed from the 22^nd January 2016 to 6:30 pm 24^th January 2016 and every alternate 6 week period thereafter at Sydney Domestic Terminal.

2. The father is to deliver the child X to the mother at 6:30 pm or as agreed from the 12^th February 2016 to 6:30 pm 14^th February and every alternate 6 week period thereafter at Coolangatta Domestic Departure Terminal Gold Coast.

3. As per Orders (1) and (2) above each party is to cover their own expenses individually and for the child X the costs to be shared equally.

4. The Father and Respondent in these proceedings is to organise for the mother to communicate by either Skype or telephone etc with X at 7pm three (3) times a week.

AND IT IS FURTHER ORDERED THAT

1. The Application is transferred to the Lismore Circuit sittings of the Court and will be mentioned at 10:00 am on Tuesday 23 February 2016 before Judge Howard at Westlawn Building, Level 2, 29-31 Molesworth Street, Lismore NSW.

2. Orders 5 and 6 of the Application for Interim Orders filed on 21 October 2015 are withdrawn and dismissed.

3. The Respondent’s costs are reserved.     

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6876 of 2015

MS CANAVAN

Applicant

And

MR FELTON

Respondent

REASONS FOR JUDGMENT

Application

1. This Application is for parenting orders relating to the parties’ daughter, X, who was born on (omitted) 2011. She currently resides with the father, who is the Respondent to the Application.

2. There is a serious issue between the parties as to the parent with whom the child should be living and on 3 November 2015 I made an order under s.68L of the Family Law Act 1975 (Cth). The parties attended a Child Dispute Conference with a Family Consultant on 25 November 2015 but there has not been a resolution of the parenting dispute between them.

3. The parties have entered into further interim Consent Orders providing for the child to spend some regular time with the mother, noting that the mother resides in Sydney and the father resides with the child in (omitted), New South Wales.

4. The Applicant mother has now indicated through her solicitor, Mr El-Hanania, that she now longer wishes to pursue her application to take the child out of Australia to (country omitted) between 15 December 2015 and 13 January 2016. It follows that the mother’s proposed Order 6, requiring the father to deliver the child’s passport to the Registry[1] will no longer be pressed. Both of those orders will be dismissed.

   [1] For some reason, the Order asks that the passport be delivered to the Registry of the Family Court

5. The respondent father now seeks two interim orders:

   a)An order for costs; and

   b)An order that the venue of the proceeding be changed to the Lismore Registry of the Court.

6. Both of those applications were opposed by the mother.

7. The Independent Children’s Lawyer, Ms Baker, did not oppose the application for the change of venue and did not seek to make an application for her costs in the interim proceedings.    

Submissions

1. Mr Fernie, who appeared as agent for the Respondent father’s solicitors, tendered an email from his principal in which she stated that her inquiries from the Lismore Registry indicated that the likely listing date for a transfer of the matter could be considered in February 2015 but failing that the matter could be listed on 3 March 2016. He told the Court that the Lismore Registry was the closest to his solicitors.

2. Mr El-Hanania said that his client opposed that application for a change of venue because she resides in Sydney and ultimately she is asking that the child should live with her. He also said that (omitted) was nowhere near (omitted) and was in fact closer to (omitted), so the proposed change of venue was merely to the benefit to the Respondent. The Respondent, he said, also had family members who resided in Sydney.

3. The application for a change of venue was not opposed by the Independent Children’s Lawyer.

4. Mr Fernie also sought an order for costs, pointing out that the mother’s application to take the child out of the country was always doomed to failure. The matter had been before the Court on three occasions, once with the mother’s previous solicitor and twice with her current solicitor. He submitted that the matter had been conducted in such a way that it had been a waste of time and a waste of money.

5. Against this, Mr El-Hanania submitted that the parties had worked hard to progress the matter forward since it had been before the Court on 3 November. He submitted that there had not been any time wasting on the part of his client.   

Applications for transfer of proceedings

1. Where a party seeks to have a proceeding heard in another registry of the Court, subrule 8.01(2) requires the Court to have regard to:

   a)the convenience of the parties; and

   b)the limiting of expense and the cost of the proceeding; and

   c)whether the matter has been listed for final hearing; and

   d)any other relevant matter.

2. All of these matters have been considered. It is apparent that the Lismore Registry would be able to offer an earlier hearing date than the Sydney Registry, which has had to deal with a vacancy caused by the retirement of a Judge at the end of January this year. That vacancy has not been filled and no announcement has been made about an appointment.

3. It is significant that the child has been living with the father, even though the mother seeks an order that the child should reside on a full time basis with her. That, however, is a matter for the final hearing, which has yet to be set. If a Family Report is to be ordered, which will be a matter for the trial judge, then it is preferable that the report writer should be located closer to the child’s residence. It is only the mother who lives in Sydney.

4. In my view, the balance of convenience favours a change of venue. I have taken into account the likelihood that the matter can be heard earlier in Lismore than in Sydney, which I also find persuasive.

5. I propose to make an order transferring the proceeding to the Lismore Registry.

Costs

1. I am mindful of the matters in s.117 of the Family Law Act 1975 (Cth). Whilst there is some substance to the criticisms of the way the mother’s case has been carried out, I am mindful that the mother’s current solicitor, Mr El-Hanania, has clearly taken realistic steps to vary the mother’s original application and set the matter upon a more appropriate course.

2. I will reserve the Respondent’s costs.

Conclusions

1. The Application will be listed before his Honour Judge Howard in Lismore on Tuesday.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  15 February 2016