CREESE & LAPTHORNE

[2015] FamCA 98

FAMILY COURT OF AUSTRALIA

CREESE & LAPTHORNE [2015] FamCA 98

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made for the filing of documents – matter adjourned to a fixed date for a hearing

Family Law Act 1975 (Cth) s 27A
Family Law Rules 2004 (Cth) s 11.17, 11.18

Norton & Locke [2013] FamCAFC 202; 50 Fam LR 517

APPLICANT: Mr Creese

RESPONDENT: Ms Lapthorne

FILE NUMBER: DGC 2539 of 2014

DATE DELIVERED: 13 January 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Benjamin J

HEARING DATE: 13 January 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Christie

SOLICITOR FOR THE RESPONDENT: Clearys Commercial Lawyers

Orders

1. These proceedings be transferred to the Sydney Registry of the Family Court of Australia and the hearing of the declaration as to the de facto relationship be expedited.

IT IS REQUESTED

1. These proceedings be listed for directions hearing before a Registrar of the Family Court at Sydney on or after 3 May 2015.

IT IS DIRECTED

1. Each party file an affidavit of discovery of all relevant material in relation to the jurisdictional argument on or before 3 May 2015.

2. The applicant file and serve all affidavits upon which he seeks to rely in relation to the jurisdictional issues as to the de facto relationship on or before 13 March 2015.

3. The respondent file and serve her response and her affidavits in reply on or before 15 April 2015.

4. The applicant file any affidavits in reply to the respondent’s affidavits on or before 3 May 2015.

5. A copy of the reasons for these orders be taken out and placed on the court file.

IT IS NOTED

1. The application for injunction filed by the applicant on 11 November 2014 has not been determined and is stood over until after jurisdictional facts have been established.

2. The affidavit of discovery can include, or can be included in terms of the affidavits of the parties filed in accordance with these directions.

3. Any annexures or exhibited documents will need to be consecutively numbered and indexed and provided in hard copy form.

IT IS FURTHER ORDERED

1. Costs of both parties be reserved.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Creese & Lapthorne 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 MELBOURNE

FILE NUMBER: DGC 2539 of 2014

Mr Creese

Applicant

And

Ms Lapthorne

Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Mr Creese (‘the applicant’) and Ms Lapthorne (‘the respondent’) arising out of proceedings which were commenced on 22 August 2014 in the Family Court, in its Dandenong registry.  The applicant sought orders relating to the adjustment of property pursuant to the Court’s jurisdiction in relation to parties in a de facto relationship.  The applicant filed an amended application setting out orders and the respondent denies, in her response filed 21 October 2014 which was a response to the amended application, denies that a de facto relationship within the definition of the Family Law Act 1975 (Cth) (‘Act’) did not exist. Those proceedings have been operating through the Dandenong registry of the Family Court, but I think now are in the Melbourne registry of the Family Court.

2. I am not sure if they have actually been transferred from Melbourne to Dandenong, but they have certainly been conducted in this registry as the Family Court does not have a sitting judge in Dandenong.

3. By an application in a case filed on 11 November 2014, the husband sought injunctions in relation to properties owned or in the control of the respondent in B Town and C Town in the State of New South Wales.  In support of that application, the applicant relied upon his affidavit filed 11 November 2018 [sic].  It was that application that came before the Court today together with the response of the respondent, in which she sought that the interim application be dismissed, that the applicant pay the respondent’s costs and the proceedings be transferred to Sydney.

4. The applicant was made aware of the Full Court decision in Norton & Locke [2013] FamCAFC 202; 50 Fam LR 517 and has elected not to pursue his interim application at this time. Accordingly, the matters that remain before me are (a) the urgent hearing of the jurisdictional facts in relation to the de facto relationship as set out in paragraph 41 in the decision of Norton & Locke, and secondly, whether that application ought to be heard here in the Melbourne registry or heard in the Sydney registry of the Family Court. In that respect I have regard to the affidavits of each of the parties and the submissions made by them. Section 27A of the Act provides:-

   The Court or a judge may at any stage of proceedings direct that the proceedings or part of the proceedings be conducted or continued in a place specified in the order subject to such conditions, if any, as the Court or judge imposes.

5. That gives the Court power to transfer proceedings from one registry to another. The Family Law Rules set out in rule 11.17 the following:

   A party may apply to have a case heard in another place or transferred to another registry or Court exercising jurisdiction under the Act.

6. That rule, clearly, is based upon the powers set out in s 27A of the Act. Rule 11.18 sets out the factors to consider when making a transfer which include:-

   (a)the public interest;

   (b)whether the case, if transferred or removed, is likely to be dealt with:

   (i)at less cost to the parties;

   (ii)at more convenience to the parties; or

   (iii)earlier;

   (c)the availability of a judicial officer specialising in the type of case to which the application relates;

   (d)the availability of particular procedures appropriate to the case;

   (e)the financial value of the claim;

   (f)the complexity of the facts, legal issues, remedies and procedures involved;

   (g)the adequacy of the available facilities, having regard to any disability of a party or witness; and

   (h)the wishes of the parties.

7. The evidence of the applicant in his primary affidavit is that the respondent has assets in the vicinity of some $25 million which includes, or may have been in the vicinity of some $25 million, but which includes a property called D which has, in his view, a value which may be up to $7 million and a property at C Town. There is considerable property which the husband asserts and it appears that that property is in New South Wales. There is no issue of public interest in this particular case and in that regard I note the provisions of s 121 of the Act.

8. The question of cost looms large in this case.  The applicant deposes that his only income is some $256 per week from Newstart Allowance and that he has assets totalling some $59,000.  He asserts, as I said, that the respondent is a person of considerable wealth. 

9. The respondent says that in terms of the de facto issue, that she proposes to call at least 13 witnesses, including herself, her former husband, a child, neighbours, real estate agents, accountants, interior decorators, contractors and the like, and that the cost of bringing those witnesses to Melbourne would be of great expense.  I note that the applicant indicated that he wished to cross-examine those witnesses.  The applicant says that there are a number of witnesses he will call but makes no assertion as to the whereabouts of those witnesses and I form no view either one way or the other, although, of course, he is in Melbourne.  It is clear that the assets to which the applicant claims are primarily in New South Wales, as are the witnesses.

10. Counsel for the respondent says that the likely outcome of this case given the material so far is that there will be an order for costs and that in deference to the applicant, who would bear those costs orders if they were successful, it would be cheaper for him to travel to Sydney.  It seems unlikely given the applicant’s circumstances that even if a costs order was made, there are assets sufficient to fund those costs orders given the nature of the assets.

11. There is no evidence before me as to the time it will take to determine the matter.  This matter, whilst being expedited, is not going to be rushed to a hearing given the need to provide evidence and we are looking at probably four months before the parties are ready for the matter to be heard, given that the applicant seeks eight weeks, the respondent’s four weeks in reply, and then I would give the applicant a further two weeks to reply to the respondent’s material.  There seems to be no evidence one way or the other that the matter could be heard sooner rather than later in Sydney or Melbourne.

12. The applicant’s concerns were the inconvenience to him in travelling to and from Sydney, of which there will, no doubt, be some inconvenience; and the disadvantage to him in that he would not have his McKenzie friend available.  There is no evidence as to what assistance or what material the McKenzie friend would bring to the applicant.  Having given all those facts and circumstances, I intend to transfer these proceedings to the Sydney registry of the Family Court. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 13 January 2015.

Associate:     

Date:              13 January 2015