D and H - [2003] FMCAfam 285

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & H

[2003] FMCAfam 285

FAMILY LAW – PRACTICE AND PROCEDURE – Application to transfer proceedings to the Family Court – application dismissed.

Applicant:

K V D

Respondent:

D A H H

File No:

NCM2581 of 2000

Delivered on:

16 May 2003

Delivered at:

Parramatta

Hearing Date:

16 May 2003

Judgment of:

Ryan FM

REPRESENTATION

Applicant:

No appearance

Respondent:

In person

ORDERS

That the application to transfer the proceedings to the Family Court in Sydney is refused.
Pursuant to section 68L of the Family Law Act, that the children S T K H born 25 October 1991 and A L H born 4 July 1997 be separately represented and I request the Legal Aid Commission of New South Wales to provide that representation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

NCM2581 of 2000

K V D

Applicant

And

D A H H

Respondent

REASONS FOR JUDGMENT

This is an application by D H to transfer parenting proceedings from the Federal Magistrates Court at Parramatta to the Family Court at Sydney. His application was filed on 23 April 2003.
The applicant, K D, filed an application in the Federal Magistrates Court at Newcastle on 2 October 2002 asking that she be granted residence of the parties' two children, S and A. The children live with their father at Empire Bay, an arrangement that was formalised when the parties entered consent orders in the Family Court at Sydney on

28 August 2002.
On 4 November 2002 the father filed his response which reveals that he opposes her application.
The respondent, D H has already made an application to transfer the proceedings to the Family Court in Sydney. His application was filed on 20 December 2002 and determined by Donald FM on 23 December 2002. On that occasion the mother appeared on her own behalf and Mr Cohen of David H. Cohen solicitors appeared for Mr H. Federal Magistrate Donald refused the transfer application and transferred the proceedings for hearing to the Parramatta Registry of the Federal Magistrates Court. As far as I am aware the father has not sought to appeal Donald FM’s order. On 24 January 2003 the mother’s application was listed for final hearing. It is listed to commence on

29 September 2003 as a two-day matter before me. A family report has been ordered pursuant to s.62G(2) of the Act.
I explained to the father that even if there is power to appeal Donald FM’s refusal to transfer, which I doubt, I do not sit on appeal from Donald FM and cannot grant Mr H leave to do so. Appeal issues are matters for the Full Court of the Family Court to consider. Nonetheless the issue he raises is a procedural one and I have determined that I should look at his application on its merits. Section 39 of the Federal Magistrates Court Act provides for the discretionary transfer of proceedings to the Family Court. It is the source of the rule making power that underpins Part 8 rule 2 of the Federal Magistrates Court Rules.
The applicant lives at Highfields and the respondent lives at Empire Bay. Sydney if public transport is used is more convenient to both parties than Parramatta. I do not accept, however, that the distinction between the two venues in terms of the effort involved for both parties in getting to Parramatta is substantial. Parramatta probably involves changing trains at Central or Strathfield and then about an extra

30 minutes travelling time. Mr H has a physical disability and says the train and car journey to Parramatta would be difficult. His material did not persuade me that these difficulties would be significant. He says he can arrange for a friend to drive him to Sydney, perhaps the same friend could drive him to Parramatta. He has managed to get here today. He says that he has many friends and associates in Sydney and that he could use his time in Sydney to take the children to the dentist, see friends and catch up with his support network. I was not persuaded that these factors contributed materially to whether the proceedings should occur in Sydney or Parramatta.
The next matter is limiting the expense and the cost of the proceedings. This matter is listed for trial. The pre-trial procedures have been attended to in the sense that trial directions have been given and a family report ordered. It seems to me that the matter can be brought on for hearing with less expense than if it is transferred to the Family Court, and the parties required to prepare in accordance with another Court's pre-trial procedures. As I indicated during submissions, should any unforseen pre-trial issues arise the father can appear before me by telephone by arrangement with my Associate. Mr H says that his solicitor in the Sydney proceedings advised him that that the prior hearing could take at least 5 days. Apparently Ms D had filed a large affidavit that the father says was 300 pages long. She has not done so thus far. I advised the father that I would consider an application to limit the length of any affidavits filed in these proceedings. Mr H should file and serve any such application reasonably soon. At this stage neither party has filed any affidavits from other witnesses, although they may still do so. It seems to me that the matter ought to be contained within two days. On balance, the subparagraph favours the proceedings remaining where they are.
Nextly, the matter has been listed for hearing at the end of September 2003. The applicant does not make submissions as to when the matter is likely to come on for trial if it is heard in the Family Court in Sydney. My understanding that if transferred now it is unlikely to be heard on a final basis this year. Thus the applicant in the substantive proceedings would need to wait much longer for her case to be heard than if the matter remains here. It is generally accepted that continuing to live within the shadow of litigation is stressful for parties and their children. On balance, the subparagraph favours the proceedings remaining where they are.
As to any other relevant matter, Mr H submits that the Family Court in Sydney is much more familiar with these parties, and that in particular Ms Sylvia Martin has previously prepared a family report for the 2000 proceedings. The earlier proceedings were settled and did not go to trial in the sense of requiring a judicial decision. In the circumstances I am not satisfied that there is such an intimate knowledge of the matter in the Family Court’s Sydney registry per se that the parties or litigation will receive some form of differential treatment that would be advantageous to the disposition of the matter. As compared to letting the matter continue in this Court. It seems to me that this matter may benefit from individual judicial management. If the Director of Court Counselling considers it desirable that Ms Martin completes the current report, there was nothing that would interfere with her capacity to do so. Who prepares the report is a usually a matter for consideration by the Director of Court Counselling. There are advantages in continuity but there can also be good reasons why someone coming to the matter fresh may be preferable. I will leave the usual processes to take their course. If Mr H disagrees with the approach suggested by the Director of Court Counselling he may relist the matter before me for directions.
The father said he wanted to use the child minding facilities in the Sydney registry. He was unaware that this registry has equivalent facilities that are available every day. Apparently he plans that the children come to court for the hearing, a step I suggested that he reconsider. There is no distinction between the two courts in this sense. Mr H contemplates that he may stay overnight near Sydney during the hearing and convenience lies with Sydney. I accept that this is so, but for the reasons already given am not satisfied that the distinction between the two court venues should be determinative of the issue.
During submissions the father said that he felt he would have better prospects of obtaining a skilled lawyer in Sydney. He has already had ten lawyers decline his invitation to act on his behalf. The pool of available lawyers in Parramatta is substantial and in my opinion the prospects of retaining a lawyer are unlikely to be influenced by the venue of the hearing.
Mr H brings to my attention that Ms S. Mordant has previously represented the children. In the circumstances of this case it seems to me desirable that I make a further order for the children to be represented. Ideally Ms Mordant would be appointed to be the representative for the children on the further hearing of the matter.
It seems to me that the proceedings can be contained within the two days allocated. This does not appear to be a matter that raises complex issues of fact or law. As the matter is listed for hearing and is well under way I am not persuaded that I should transfer the mother’s application to the Family Court in Sydney. Although there is some inconvenience to the father I am satisfied that any inconvenience is within manageable limits. His application for the transfer of proceedings is accordingly refused.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:

Date: 21 July 2003