Collins and Ricardo (No 2) - [2015] FamCA 779

FAMILY COURT OF AUSTRALIA

COLLINS & RICARDO (NO 2)

[2015] FamCA 779

FAMILY LAW – TRANSFER – Competing applications for the transfer of the proceedings to the Federal Circuit Court at Wollongong and to the Family Court at Cairns – Where the mother and the child live in Cairns – Where the father lives nearer Wollongong – Where the mother has consistently failed to appear in person in Sydney citing ill health or lack of means – Where it is unlikely the mother’s full participation in the hearing, or the participation of the mother and the child in the preparation of a Family report, will be secured if the matter remains in Sydney – Where the father has travelled to Cairns to spend time with the child – Where there will be inconvenience to one party whether the proceedings remain in Sydney or are transferred to Cairns – Where it was found that the matter is not suitable for determination by the Federal Circuit Court – Where it was found that the balance of competing factors set out in rule 11.18 of the Family Law Rules 2004 (Cth) lay in favour of the transfer of the proceedings to Cairns.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), rules 11.17, 11.18

APPLICANT:

Mr Collins

RESPONDENT:

Ms Ricardo

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

4959

2009

DATE DELIVERED:

17 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

14 September 2015

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

IT IS ORDERED

That these proceedings be transferred to the Cairns Registry of the Family Court of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4959 of 2009

Mr Collins

Applicant

And

Ms Ricardo

Respondent

REASONS FOR JUDGMENT

The substantive proceedings before the Court concern parenting arrangements for a little girl, S (“the child”), who was born in 2008. Her parents are Mr Collins (“the father”) and Ms Ricardo (“the mother”).
The father lives at YY Town, west of City 2 on the South Coast of New South Wales. The mother lives at Cairns in Queensland. Each of the parents has made an application to the Court for a change of venue. The mother asks that the proceedings be transferred to the Cairns Registry of the Family Court of Australia. The father asks that the proceedings be transferred to the Wollongong Registry. The Family Court of Australia does not sit in Wollongong so a transfer to Wollongong would require that the matter be remitted to the Federal Circuit Court of Australia.
A protocol exists between the Family Court of Australia and the Federal Circuit Court of Australia for the determination of which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Collins and Ricardo (No 2)

Details

AGLC: Collins and Ricardo (No 2) [2015] FamCA 779
Case: [2015] FamCA 779
Decision Date: 17 September 2015

CaseChat Overview and Summary

In *Collins and Ricardo (No 2)*, the dispute concerned competing applications for the transfer of family law proceedings. The mother and child resided in Cairns, while the father lived closer to Wollongong. The proceedings had been listed in Sydney, but the mother had repeatedly failed to appear in person, citing ill health or lack of financial means.

The court was required to determine whether to transfer the proceedings to the Federal Circuit Court at Wollongong or the Family Court at Cairns. A key consideration was the mother's ability to participate fully in the proceedings and in the preparation of a Family Report if the matter remained in Sydney, given her stated difficulties. The court also had to weigh the inconvenience to each party depending on the chosen location, noting the father had travelled to Cairns to spend time with the child.

Rees J found that the matter was not suitable for determination by the Federal Circuit Court. Applying the factors set out in rule 11.18 of the *Family Law Rules 2004* (Cth), her Honour concluded that the balance of competing factors favoured the transfer of the proceedings to Cairns. The court ordered that the proceedings be transferred to the Cairns Registry of the Family Court of Australia.

Orders

Orders of the court

IT IS ORDERED

That these proceedings be transferred to the Cairns Registry of the Family Court of Australia.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.