Kingston and Mellor

[2015] FCCA 3468

FEDERAL CIRCUIT COURT OF AUSTRALIA

KINGSTON & MELLOR [2015] FCCA 3468

Catchwords:
FAMILY LAW – Application for change of venue.

Applicant: MR KINGSTON

Respondent: MS MELLOR

File Number: MLC 11153 of 2013

Judgment of: Judge Harland

Hearing date: 11 December 2015

Date of Last Submission: 11 December 2015

Delivered at: Melbourne

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the Applicant: Mr Cooper

Solicitors for the Applicant: Randles Cooper & Co

Counsel for the Respondent: Ms Elleray

Solicitors for the Respondent: Lampe Family Lawyers

ORDERS

1. The proceedings remain within the Melbourne Registry and be listed on 15 August 2016 at 10.00am for final hearing (with an estimated hearing time of 3 days).

2. Pursuant to s.62G(2) of the Family Law Act 1975, the mother and the father and the child X born (omitted) 2012 attend upon a family consultant nominated by the Regional Coordinator of Child Dispute Services in the Melbourne Registry of the Federal Circuit Court of Australia for the preparation of an updated family report to be given to the court on or before 15 April 2016.

3. The updated family report deal with the following matters:

   (a)any views expressed by the child and any matters (such as the child maturity or level of understanding) that would affect the weight that the court should place on those views;

   (b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)any other matters that the family consultant considers important to the welfare or best interests of the child.

4. The mother and the father comply with all reasonable directions as to attendance upon the family consultant as and when required by the consultant.

5. The solicitor for each of the parents (or, if unrepresented, then the parent himself or herself) deliver or cause to be delivered to the family consultant copies of the following documents:

   (a)all relevant applications, responses and affidavits filed by that parent in these proceedings; and

   (b)any intervention or restraining orders currently in force.

6. The family consultant have leave to inspect any documents produced under subpoena in this matter provided that they have been released for inspection by at least one parent.

7. If either parent requires the relevant family consultant to attend for cross examination at the final hearing then that parent give the relevant family consultant seven (7) days’ notice in writing.

8. Upon the updated family report being provided to the court, the court will provide a copy to each party (or if represented the party’s lawyer) and to any independent children’s lawyer in the proceedings.

9. Unless a party objects, in writing, within 14 days of the date of releasing the family report, the court may provide copies of the family report to the following, if the court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

   (a)a children’s court;

   (b)a child protection authority;

   (c)a state or territory legal aid authority; and

   (d)a convener of any legal dispute resolution conference.

10. Unless otherwise ordered, no person release the family report, or provide access to the family report, to any other person.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11153 of 2013

MR KINGSTON

Applicant

And

MS MELLOR

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. The mother makes an application to change the venue from the Federal Circuit Court in Melbourne to the Federal Circuit Court in Sydney.  The proceedings commenced on 19 February 2014 by the father.  It is clear from the orders that were made by consent on 6 November 2014 that the father’s consent to the mother relocating to Sydney was on the basis that the mother would facilitate supervised time between the father and the child in Melbourne.

3. Those orders provide for there to be time initially on alternate weekends and then every four weeks.  The four weeks was due to commence after the mother relocated as the orders provided for the mother to be permitted to relocate in late January.  There was a specific notation that the father’s consent to paragraph 4 permitting the mother to do so was conditional upon the mother complying with paragraph 3, which set out the time the father and the child were to spend.

4. I also note that the matter had been listed for a final hearing to commence on 10 March 2015, though that date was vacated, with the matter to be listed for mention on 7 September 2015.  Presumably that was to enable there to be regular time between the child and the father and also, the father was to complete a parenting course. The parties were also going to attend a further Roundtable Dispute Management Conference in August.  It is also significant that a family report was prepared on 18 April 2014 by family consultant Mr B.

5. Whilst the proceedings are not yet listed for final hearing, the proceedings are significantly advanced in the Melbourne registry and it seems to me that the time to apply for a change of venue was long before now.  I am also aware that the delays in both the Sydney and Parramatta registries are worse than they are in Melbourne, through registry contacts and it is information that is readily and publicly available. There have been several newspaper reports in recent times. That is a relevant factor to consider as well.

6. It certainly is apparent that neither party is in a strong financial position.  The father has recently commenced employment, earning a fairly modest wage.  I accept that the mother has witnesses that she wishes to call who are in Sydney and that there will be inconvenience and expense associated with that, although certainly in terms of supporting witnesses for her case, I will grant leave for those witnesses to give their evidence by video link, which is an easy thing to arrange when it is between two Federal Circuit Court registries.

7. I anticipate that perhaps one of the mother’s witnesses, being either her father or brother, will attend in Melbourne in any event, as the mother is not permitted by reasons of her religion to travel without a male accompanying her, and her father is here today.  I am going to order an updated report by Mr B, having just checked that he is still with the Court. He will be able to provide that report.  If the matter was transferred to Sydney, then it would be necessary to obtain another family report by a different consultant. That would lead to potentially having two family consultants having to give evidence. 

8. It is also a matter where, given that I will order an updated family report, I have decided that this matter needs to be listed next year and have found dates for it, given the length of the matter and that a delay is not going to assist either party.  One of the things that the father is going to have to seriously consider is the practicalities of whether or not he also relocates to New South Wales.  The mother is from Sydney and has family support in Sydney.  The father does not have family in Australia and it seems to me that if he is going to be able to build on and develop his relationship with his daughter, realistically that is unlikely to happen given the strained financial circumstances of the parties, unless he is much closer.

9. The parties’ daughter is still very young, having only just turned three.  Of course it may be that, depending on the allegations that are made with respect to the father sexually abusing a teenager, there may be issues about what sort of time he should have with his daughter, and that is going to be one of the issues for determination at the hearing.  It is an allegation that the father denies. However, considering those issues, in my view, the matter should remain in the Melbourne registry. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date:  23 December 2015