Epstein and Epstein

[2014] FCCA 3053

FEDERAL CIRCUIT COURT OF AUSTRALIA

EPSTEIN & EPSTEIN [2014] FCCA 3053

Catchwords:
FAMILY LAW – Practice and procedure – change of venue – consideration of rule 8.01 of the Federal Circuit Court Rules 2001.

Legislation:

Family Law Act 1975, ss.60B, 60CA

Federal Circuit Court Rules 2001, rr.1.03, 8.01
International Convention on the Rights of the Child

Applicant: MR EPSTEIN

Respondent: MS EPSTEIN

File Number: NCC 2048 of 2007

Judgment of: Judge Harman

Hearing date: 10 December 2014

Date of Last Submission: 10 December 2014

Delivered at: Albury

Delivered on: 10 December 2014

REPRESENTATION

Solicitors for the Applicant: Ms Irons of Maggie Orman Pty Ltd

Solicitors for the Respondent: Ms Cox as agent for Lbk Solicitors

ORDERS

1. Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall forthwith and within seven (7) days contact the intake officer of the Family Relationship Centre [W] and [T] respectively, for the purpose of arranging and attending the first available and offered intake appointment for the assessment of suitability for the provision of Family Counselling services by that organisation and, subject to the assessment of suitability, each party shall then:

   (a)Attend at such times, dates and places as may be advised; and

   (b)Pay such fees as may be charged;

   to participate in and complete such sessions of Family Counselling as are assessed as suitable and offered.

2. In the event that the provision of service is determined to be inappropriate or service is withdrawn or declined then the Family Counsellor or agency providing same is requested, pursuant to s.13D, to advise the Court in writing of that fact.

3. Each party shall, within 4 weeks, register with and complete the on-line program offered by that site and will, on completion, print a certificate demonstrating completion and provide a copy to all other parties and the Independent Children’s Lawyer (if appointed).

4. Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

5. Transfer the proceedings to the Newcastle Registry of the Federal Circuit Court of Australia and list the proceedings for mention at 9:30am on 10 February 2015.

6. IT IS NOTED that the Respondent mother will seek to have the proceedings heard on circuit in either Armidale or Tamworth and allocation to either circuit will be a matter for the docketed Judge.

EXHIBIT A

APPOINTMENT OF AN INDEPENDENT CHILDREN’S LAWYER

1. Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child the subject of these proceedings, [X] born [omitted] 2006.

2. The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order.

3. Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

4. Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission (Newcastle Office) copies of all any documents filed by them in these proceedings together with:

   (a)Any medical reports they hold relating to the child;

   (b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;

   (c)Any school reports they hold for the child;

   (d)Any other documents they hold and wish the Independent Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

5. Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child.

6. Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

7. The appointment of the Independents Children’s Lawyer is made on the following bases:

   (a)There is a history of litigation by either or both parents;

   (b)The child is of tender years and require protection from conflict;

   (c)The child are of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that the child have a voice in the proceedings and with respect to decisions that will affect their future;

   (d)There is a significantly acrimonious relationship between the parents and significant issues regarding both suggested non-compliance with orders and allegations of “alienation” and combined with an application to change of primary care.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

NCC 2048 of 2007

MR EPSTEIN

Applicant

And

MS EPSTEIN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings which come before the Court today with respect to separate applications. There is an Application for Contravention filed 26 September 2014, together with an Initiating Application, 26 September 2014. In each of those Applications, Mr Epstein, the father of the child the subject of the proceedings, is the Applicant.  The child’s mother, Ms Epstein, is the Respondent.

2. The Application for Contravention seeks to address 22 contraventions over a period commencing February 2012 to the present. It has been observed to the parties that the purpose and intention of the contravention provisions of the Family Law Act 1975 are to deal with and address suggested noncompliance with orders, and to do so promptly and efficiently as soon as possible after the suggested noncompliance is apparent. Accordingly, the historical contraventions, going back nearly some three years, create some difficulty in addressing that intent.

3. The Initiating Application seeks to discharge existing parenting orders relating to a child, [X], born [omitted] 2006.  She has recently turned eight years of age. There are existing orders in force with respect to that child, being orders of some complexity made by consent 28 May 2009. Those orders were made when proceedings between the parties were before the Family Court of Australia at Parramatta, proceedings that otherwise also involved a number of appearances before the Newcastle Registry of that Court.

4. The Initiating Application, in addition to seeking discharge of those orders, seeks that [X] would pass from the primary care of her mother to the primary care of her father. That is essentially grounded in an allegation of what is described by the attorneys for the father as alienation of the child. Whether that is intended to fall within the ambit of the theory of Gardner, or perhaps within the theories of Johnson et al. regarding alienation is unclear, but I need not determine it. They are matters that can and will be dealt with on a future occasion.

5. The Respondent has filed a Response to the Initiating Application. In light of the Respondent’s right of silence as regards the Application for Contravention, no material is filed in response thereto. That is entirely appropriate. 

6. The interests of the child in the substantive proceedings – whilst not the contravention proceedings – would appear to require the appointment of an Independent Children’s Lawyer. Certainly, it is suggested that there are significant issues with respect to the child’s views, the child’s present relationships with the parents or either of them, the impact that either parent has had upon those views, and the issue as raised of alienation or alignment. They are all matters which will require some degree of exploration, including, in due course, by a family consultant or Part 15 expert.  They, again, will be matters for the docketed judge.

7. The Respondent also seeks transfer of the proceedings to the Newcastle Registry of this Court. In dealing with any application for change of venue, I must address each of the matters in rule 8.01 of the Federal Circuit Court Rules 2001. Accordingly, I propose to deal with each briefly.

Convenience of the parties

1. The father resides in the [E] area, approximate to [W].  The mother resides close to [T]. 

2. The travel for the mother to the Albury Registry of the Court is something in the nature of 10 hours. The travel to be undertaken by the father to the Albury Registry is something in the order of two hours.  Clearly, the burden of travel is reversed if the proceedings move to Newcastle.  The mother will be some two hours or so away from the primary Registry, but if the matter is ultimately heard on circuit in either Tamworth or Armidale, it will be far easier for the mother to attend.  It will be far more difficult for the father.  It is submitted, and I accept, appropriately so, that the father will, in the substantive proceedings, need to call evidence from his partner. They have a two year old child of their relationship. Accordingly, if travel is required, it would seem that the entire household will be inconvenienced.

3. The mother has indicated that if the substantive matter proceeds to a final hearing, that she will need to call evidence from herself and her father, thus, each of them would be inconvenienced. The father proposes that the proceedings might be transferred to the Parramatta Registry, being a midway point, as it were, between the parties. However, I am concerned that that would not obviate the inconvenience for either party.  It would simply generate a circumstance of mutual inconvenience. 

4. Most importantly – and these being parenting proceedings – I am satisfied that I must have some regard to section 60CA of the legislation, which prioritises as the paramount consideration the child’s best interests. I am conscious in considering that section, however, that the determination to be made by me regarding a change of venue is an interlocutory application and not a parenting order, and thus, it might be validly argued that section 60CA would not specifically apply. However, I am satisfied that whether it applies specifically or not, the convenience or burden upon the child [X] is something which should be borne in mind.

5. The orders that are presently in force, notwithstanding the suggested noncompliance at various times and for specific periods, see this child undertaking significant travel already. The parties live something in the nature of eight hours apart. The orders provide, at order 2.B., that [X] will spend time with her father for two weekends each school term from Friday afternoon until Sunday afternoon, together with a period during each school holidays. The changeovers for those periods occur, for the block periods at least, by the parties meeting in [D], again, a point that is somewhat midway between their respective homes, but which could fairly be described as a point of mutual inconvenience. It does, however, facilitate the time, breaks up the travel, and ensures that the parties each share to some extent in their travel. For the weekend periods of time, the father has the burden of travel, travelling to the mother’s locality, as would be clear and apparent, is appropriate having regard to the period that occurs.  It is always difficult.

6. Changeovers at weekend periods occur in [E] and [D] respectively, such that the father bears the greater burden of travel but each party has some sharing of travel. What is clear and apparent from the above, however, is that the focus of burden of travel upon the parents is somewhat irrelevant and erroneous. 

7. The Court is concerned with the burden of travel on this child.  That is not to suggest that it is not in the child’s best interests to be spending time with the father in accordance with the existing order.  It is the bargain that was achieved between these parents and it is suggested, at least on the mother’s case, to be working sufficiently well. On the father’s case it is suggested to be working well absent the suggested attitudes of the mother towards it and the father’s relationship to the child. However, convenience on a simplistic view would favour transfer of the proceedings. 

8. I must have regard to the case management of the proceedings.  I have today appointed an Independent Children’s Lawyer to represent this child’s interests. I am conscious that that is a decision which should properly devolve to the judge upon whose docket this matter will come to reside. However, it is open to that judge to discharge the orders should they wish and I make clear that I intend no disrespect to my colleague by making the appointment in the time of transfer. It is intended, in fact, to facilitate and expedite the address of issues between the parties and the conduct of the proceedings. I hope no offence is taken.

9. The independent representation of this child’s interests will require the appointment of a legal practitioner approximate to the child. There is an obligation, not only created by the Legal Aid Commission’s expectation of those undertaking work for which they are funded but created by the International Convention on the Rights of the Child, that the person representing the child’s interests will meet with them and engage with them.

10. Article 12 of the International Convention incorporated into the Family Law Act 1975 in its totality by section 60B requires that the Court allow children to have a voice in proceedings. I make clear, a child of this age would have a voice in the proceedings but not necessarily a choice. However, they also have a right of participation in proceedings. That has recently been addressed by the Australian Institute of Family Studies.

11. It has previously been addressed by Dr Nicola Ross at the University of Newcastle and is in the process of being addressed through research undertaken by Ms Bell at the University of Sydney. In particular, research points to the difficulties that are apprehended in the representation of children and, in particular, the facilitation of their participation in an appropriate fashion. It is not sufficient that an Independent Children’s Lawyer reads material and represents, in some objective fashion, the interests of a child or young person whom they have never met.

12. The child has the right to meet the person representing their interests and to interact and communicate with them as they desire and as is appropriate. Accordingly, it would be impossible for the child’s interests to be properly and fully represented in the proceedings by any representative who was not proximate to the child. That is not to suggest that they must be from the same town but it must be possible for the child to interact with them and to do so without great inconvenience such as travelling to Parramatta, a trip of some four to five hours.

13. Accordingly, convenience would favour transfer.

Limiting of expense and cost of the proceedings

1. These parties are about to engage upon a very expensive and protracted round of litigation. It is not their first, regrettably, although they have not been engaged in proceedings under the Family Law Act since March 2010. 

2. The proceedings had principally been conducted in the Newcastle Registry of the Court. The parties had commenced in the Parramatta Registry of the Court but the matter was, at a very early stage, transferred to Newcastle. That is, accordingly, a Registry in which the parties have some history even if the majority of their dealings dealt with financial issues.

3. The parties will each incur cost in conducting these proceedings and it is likely, if all issues go to hearing, to be substantial cost. Cost which they will not be able to, thus, devolve to their child in other than debt, i.e., the child will miss out on the benefit of the funds that are expended in the litigation. It is cost that will be increased for the father. I accept if the proceedings are transferred to Newcastle it is costs that will be limited for the mother.

4. I accept that there will be additional costs incurred in that the father and his partner will need to travel for processes and procedures related to the proceedings. Although they can, and should, in all probability be limited to family report interviews or/and a final hearing. The Federal Circuit Court[1] is required to deal with proceedings with as little formality as possible and utilising electronic means of attendance and communication as far as possible. 

   [1] Federal Circuit Court Rules 2001, r 1.03.

5. Accordingly, and subject to the exercise of discretion by the judge who will be seized of conduct of these proceedings, the matter can and should, in all probability, be dealt with through telephone mentions when at all possible. Clearly the parties will need to travel for report interviews.  It is likely that both parties, and importantly [X], will need to travel as those interviews will likely be undertaken in Newcastle. Thus, I am satisfied that the limiting of expense and cost, whilst it may impact to some extent harder upon the father, would still support the transfer of the proceedings. 

Whether the matter is being listed for final hearing

1. The proceedings come before the Court today for the first occasion.  Accordingly, I am satisfied that the address of transfer of the matter is appropriately dealt with on the first occasion rather than case management of the matter for some time and then determining to transfer the proceedings. That would be disrespectful to my colleagues and which of my colleagues receives the matter upon their docket.  They should be permitted to conduct the litigation and manage it in accordance with their practices and procedures. Accordingly, that supports a transfer at this point.

2. For all of those reasons I am satisfied that the proceedings can and should be transferred to the Newcastle Registry for further conduct. Accordingly, orders as above are made.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  15 January 2015