Dufour & Ono
[2025] FedCFamC1F 246
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Dufour & Ono [2025] FedCFamC1F 246
File number(s): BRC 5418 of 2023 Judgment of: BRASCH J Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – PARENTING – PRACTICE AND PROCEDURE – Where the mother has a history of failing to attend court events – Where the mother has relocated interstate – Where an oral application is brought by the Independent Children’s Lawyer for a change in venue - Where transferring the matter to the state in which the mother resides would reduce excuses for the mother’s non-attendance – Where the father has the financial resources to travel interstate if required – Where the application for change of venue is granted Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 9.01 Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 4 April 2025 Place: Brisbane The Applicant: Litigant in person The Respondent: No appearance Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
BRC 5418 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DUFOUR
Applicant
AND: MS ONO
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BRASCH J
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
1.Pursuant to Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the venue of the hearing of these proceedings is transferred to the Melbourne registry of the Federal Circuit and Family Court of Australia (Division 1) and adjourned to a date to be fixed by that registry.
2.The Independent Children’s Lawyer, Ms Barbara Fox, appointed through Legal Aid Queensland is discharged.
3.Pursuant to s 68L(2) of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for:
(a)X, born in 2022 (“the child”).
4.Victoria Legal Aid is requested to make arrangements as soon as possible for appropriate representation for the child, and forthwith upon such appointment, the Independent Children’s Lawyer file a Notice of Address for Service.
5.The Court advise the Victoria Legal Aid contact (…@...) of this order forthwith.
6.The applicant father is to file an Amended Initiating Application setting out with precision the parenting orders that he seeks by close of business 2 May 2025.
7.The respondent mother is to file an Amended Response setting out with precision the parenting orders that she seeks by close of business 2 May 2025.
AND THE COURT NOTES THAT:
A.There are current orders in place dated 29 August 2023 for the child to spend supervised time with the father, albeit they relate to a Queensland Contact Centre (B Contact Centre, Suburb C).
B.That time-with Order has not been varied or discharged.
C.It is the father’s position that the mother has unilaterally relocated with the child out of Queensland and without his knowledge or consent.
D.An earlier Justice of this Court made orders that provided for the Independent Children’s Lawyer to locate the mother via Information / Location Orders, and she has since been found to be living with the child in Victoria.
E.The venue of the matter has been changed today from the Brisbane Registry of this Court to the Melbourne Registry to maximise the prospects of the mother’s appearance and engagement in the proceedings.
F.On the Court’s count, the mother has not attended 13 court events between 12 June 2023 and 9 October 2024 and again did not appear today on the previously foreshadowed change of venue application, although she was aware of the hearing. To that end, the mother emailed chambers yesterday saying she did not oppose the ICL attending today’s hearing by Microsoft Teams.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dufour & Ono has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BRASCH J
These are my Ex Tempore reasons, which I will revise to make the spoken word more amenable to reading.
Background
When this matter was last in court on 13 March 2025 before a different Justice of this Division, the Independent Children’s lawyer (“ICL”) made an oral application that the venue for the hearing of this proceeding be changed from the Brisbane Registry to the Melbourne Registry of this court.
The father did not attend that hearing and the earlier Justice decided not to hear that oral application, given both parties were self-represented and the father did not appear.
Before me today, the father has appeared. as has Ms Fox, the ICL. The mother has not [but was called three times]. It is a curiosity that she has not, when she emailed chambers yesterday saying she did not object to Ms Fox appearing electronically at today's hearing. That would suggest very much that she is aware of the hearing today. My Associates have been watching the court link and there has been no attempt by her to be admitted.
The mother though, has a very long history of not attending court. On my count, there have been 13 hearings, commencing on 12 June 2023 to 9 October 2024, where she has not attended. It seems now that the mother resides somewhere in Melbourne. That means if she was to attend in Brisbane, she would have accommodation and airfares which are costs that would fall to her. She also has an older child, D, at school.
Alternatively, whilst the father's resources are diminishing, he has indicated he can go to Melbourne, for example, for a Family Report and ultimately, for trial. He is also alert to the fact that for mentions, he could file a Request to Attend by Electronic Communication, but, of course, that will be for another Justice to determine should he file a Request.
Legal Principles
Rule 9.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) deals with a change of venue. As I said, the oral application was brought on 13 March 2025 and his Honour included a Notation to the effect that the application was alive and on foot. Accordingly, both parties must have been on notice that this was something up for consideration.
Rule 9.01(3) tells me the things to which I must have regard.
(a) the adequacy of the available facilities, having regard to any disability of a party, witness and any safety concerns; and
I am satisfied that both the Melbourne Registry and the Brisbane Registry have adequate facilities and can address any safety concerns that either party may raise.
(b) is the convenience of the parties; and
It would be far more convenient to the father to have the matter in Brisbane; however, he accepts, and wisely so, that securing the mother's attendance may, and I stress may, be better facilitated if the venue is changed to Melbourne. As indicated, if the mother was to come to Brisbane, then she has accommodation costs, airfares, an older child not subject to the proceedings at school, and of course, X himself has only just turned three. She apparently has a mother living in Region E, but I know nothing about that in terms of supports. In other words, Melbourne will be far more convenient to the mother and hearings in Melbourne may reduce any excuse she may otherwise have, for not coming to Brisbane.
On my view, this is a matter that needs a family report and a trial in person - although it will be ultimately a matter for a different judicial officer. The father, to his credit, accepts that going to Melbourne might help, and I say again, might help, securing the mother's attendance. I say might because he is of the view that the mother is simply not going to engage wherever the Court is convened, but at least he accepts, from his perspective, there will be one less excuse for the mother in not coming to Brisbane if the venue is changed to Melbourne.
(c) is limiting the expense and cost of the proceeding; and
This is much of a muchness either way, as between Brisbane and Melbourne. The mother would have costs coming here if she chose to come to Brisbane. The father will have costs going to Melbourne, but he has indicated to me that the trial really needs to get going, and he is content to go to Melbourne to do so.
(d) is whether the matter has been listed for final hearing; and
It has not. I have already indicated to the parties that I would be unable to hear the matter this year. I have no idea about the [listing] circumstances in Melbourne but could hazard a guess it is unlikely the matter will be able to be heard this year in Melbourne either. The parties, though, are likely to need a family report, so that will take some time, and they will need a new ICL, when I discharge the Brisbane-based ICL and request Victoria Legal Aid to provide a Melbourne-based lawyer.
(e) is any other relevant matter.
I do not see any other relevant matters.
For those reasons, primarily the convenience of the parties, and by that, I mean trying to get the mother to engage in a court location where she does not have accommodation costs and airfares, a transfer of venues might ultimately be in X’s best interest, so this matter can be brought to a head.
Orders
For those reasons, I will make the orders that I have discussed with the parties.
(1)The first will be changing the venue of the proceeding from the Brisbane Registry to the Melbourne Registry.
(2)The second will be discharging the Brisbane ICL.
(3)The third will be requesting Victoria Legal Aid to appoint a Melbourne-based ICL.
The parties' orders that they seek in their moving documents are unparticularised. I accept Ms Fox's submissions, and the father also accepted, that it will be useful for the Melbourne Registry to understand what each of the parties are seeking. Accordingly, I will make an order that within 28 days, each of the mother and the father are to file an Amended Initiating Application (on the father's behalf) and an Amended Response (on the mother's behalf) setting out, with particularity, the parenting orders that they seek.
For all of those reasons, they are the orders that I will make.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Brasch. Associate:
Dated: 15 April 2025
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