Davies and Pine

[2007] FamCA 1117

FAMILY COURT OF AUSTRALIA

DAVIES & PINE [2007] FamCA 1117

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Davies  

RESPONDENT: Ms Pine

FILE NUMBER: BRC 1100 of 2007

DATE DELIVERED: 20 July 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 20 July 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Ulaszyn, Solicitor of Nathan Lawyers appeared for the Applicant Father

SOLICITOR FOR THE RESPONDENT: Ms Schuetze, Solicitor as agent for Legal Aid Tasmania appeared for the Respondent Mother

Orders

1. The proceedings are transferred to the Family Court, Hobart for listing on a date to be fixed by that Court.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1100 of 2007

MR DAVIES

Applicant

And

MS PINE  

Respondent

REASONS FOR JUDGMENT

1. By an amended application in a case filed on 5 June this year the father seeks orders in the following terms:

   “The mother and the father share equal responsibility for the child.”

2. This child is a three year old child having been born in August 2003. She currently resides with the mother in Tasmania, the father resides in south-east Queensland. 

3. He further seeks an order that each party should be responsible for the day-to-day care and welfare of the child whilst the child is in their care, and if the mother returns to Brisbane he seeks an order the child live with the mother and that the child spend time with the father as agreed, failing agreement on a weekly cycle with the father from 5.00 pm Sunday until 5.00 pm the following Sunday.

4. If the mother does not return to Brisbane he seeks an order that the child live with him in the Brisbane area and that the child spend time with the mother as may be agreed between the parties, but the mother is to be responsible for all costs associated with her spending time with the child.  There would be provision for telephone contact and other orders authorising the parents to communicate in relation to health and education issues, also non-denigration type clauses.

5. The mother filed a response document on 13 July.  Her material is far more succinct.  She seeks that the child live with her, that she have sole parental responsibility for the child and the further hearing of this matter be transferred to the Hobart registry of the Court. 

6. Each party has been legally represented in the proceedings before me and, I observe, competently and capably represented.  The material is considerable and that has been well prepared. 

7. There are a number of affidavits relied on by the father.  In particular there is an affidavit of 17 July, which is a response style affidavit.  Each party makes a series of allegations, the one against the other.  The father has produced through his legal representative detailed written submissions and I have had regard to the terms of those submissions which sets out the detailed chronology of the parties' relationship over the past six or so years. 

8. It appears that the mother left south-east Queensland late last year.  The Court certainly does not condone the practice of one party acting unilaterally to remove a child a considerable distance.  It certainly cannot be the law that the party can engage in that style of conduct and then insist that wherever the party has ended up, be it Alice Springs or Perth or Tasmania, that that should be the appropriate venue.  However, the matter has to be assessed having regard to the terms of r 11.81.  It also has to be assessed in the general sense of the law relying on the principles of the best interests of the child.

9. The mother has filed a detailed affidavit from herself, but she also relies on an affidavit of a case worker, Ms J.  She works for Centacare in Tasmania.  She says she has had 23 years of experience working in the field of counselling.  She met the mother earlier this year.  She details in her material the extreme anxiety the mother feels, the genuine fear that the mother experiences.  I conclude from this material that if the mother's anxiety and fear is increased in any way this would be to the detriment of her ability to parent.  I have to comment that the capacity of each party to parent has been severely compromised by their behaviour over the years in terms of criminal conduct, in terms of heavy drug use and incidents of violence.

10. At paragraph 14 of her affidavit Ms J says:

    “[The child] is now much more settled.  Her behaviour suggests she feels a level of safety that I notice she did not have when I first met her.”

    At paragraph 15 she says: 

    “I would have grave concerns about [the child] and [the mother’s] safety and welfare if they had to return to Queensland or have any contact with [the father].”

11. The difficulty as I assess it for the father's case is that the orders he seeks clearly envisage that the mother is a good enough parent as he is proposing she have the child one week in every two in the event that she was to come back to the Brisbane area.  The mother is not so gracious in her approach and she says in effect that there be- - -

RECORDED:  NOT TRANSCRIBED

She's not proposing any contact as I understand the situation in the final orders that she seeks.

1. Clearly there are concerns in this matter on both sides.  Both parties have engaged in heavy drug use, opiates, amphetamines and cannabis.  There appears to be a history of violence and that is redolent throughout the extensive subpoenaed material.  One does not build up extensive medical files, police files and Department of Child Safety files if one is leading a regular and normal life.  There are allegations of violence, primarily the allegations against the father of violence directed towards the mother - although there is a concerning incident about a fractured skull for the child.  I make no finding on that at this stage.  What is also of concern is a diagnosis in the hospital file from the Royal Brisbane General Hospital of the father having a borderline personality disorder.  That is very concerning.  It would concern me if he was to be the parent vested with the care of the child.

2. The matter is difficult.  The matter clearly calls for the appointment of an Independent Children's Lawyer.  He would call for an assessment of the parties by a psychiatric, preparation of family reports and all the usual steps and procedures that are necessitated in proceedings of this nature.

3. For the moment, the primary consideration is who is going to have the home ground advantage.  The mother, as I have said, has unilaterally moved to Tasmania.  The fact that she has done so leads to no presumption that therefore Hobart will be the preferred venue.  The matter falls to be decided under the provisions of r 11.18. 

4. The first matter that the Court must consider is the public interest and the second concern, issues of cost, convenience of the parties and whether the matter can come on earlier.

5. As I understand the position the parties are legally aided.

RECORDED:  NOT TRANSCRIBED

The parties are legally aided in both instances so that issue is neutral.

1. In my experience the Tasmanian Registry is much more likely to be able to deal with this matter expeditiously.  There is a judicial officer clearly available in both jurisdictions.

2. I understand and appreciate that much of the subpoenaed material in this matter is to be found in Queensland rather than in Tasmania, but that is incidental.  The records speak for themselves.  They can be shipped to Tasmania and witnesses can be cross-examined by phone if any challenge is made.  It is my experience in these matters the documents are evidence as official records and they speak for themselves and rarely, if ever, are the authors of the various reports or notes called to delineate the material in those records.

3. Mainly because of my concerns about the personality disorder, and my concerns of violence, the allegations which are considerable and extensive and serious, my concerns that the anxiety level of the mother having to be brought back to litigate - she could stay in Tasmania, of course, but having to come back and litigate in south-east Queensland - is such that it may impact on her ability to properly parent this child.

4. For the above reasons I find this case is an exception to the normal rule and accordingly I will accede to the request to transfer the matter to the Hobart Registry.  Further Orders as to the appointment of an Independent Children’s Lawyer can be made in that Court.  I direct that the subpoenaed material also be forwarded with the file.

ORDERS DELIVERED

RECORDED:  NOT TRANSCRIBED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate

Date:  20 July 2007