Lepone and Hardamm

[2010] FamCA 210

FAMILY COURT OF AUSTRALIA

LEPONE & HARDAMM [2010] FamCA 210

FAMILY LAW – REVIEW – of Judicial Registrar’s orders

APPLICANT: Ms Lepone

RESPONDENT: Mr Hardamm

FILE NUMBER: SYC 1044 of 2009

DATE DELIVERED: 8 March 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Cohen J

HEARING DATE: 8 March 2010

REPRESENTATION

APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Capon & Hubert

Orders

1. That by consent, Order 5.4 made on 19 January 2010 by Judicial Registrar Johnston is amended by adding “and 1 to 11 April 2010”.

2. That otherwise the review of the mother filed 27 January 2010 is hereby dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1044 of 2009

MS LEPONE

Applicant

And

MR HARDAMM

Respondent

REASONS FOR JUDGMENT

1. In these proceedings there are only two issues. They are both based upon appeals from a judicial registrar.  The first issue relates to an order that the judicial registrar made that the wife have time with the two younger children of the marriage, C, who is about 14 and T, who is not yet 10;  that they have contact with the mother from 30 April to 4 May 2010 while mainly living with the father. Contact was also ordered on other days, but there seems to be no dispute about that.

2. The mother, in her appeal, seeks that contact between the children and herself be from 1 May to 9 May.  The reason for the change is a simple one.  She says that the children have not spent Mother’s Day with her for about three years and the younger child has not spent his birthday with her for the same period of time.  It is submitted, in order to remediate that fact and make it fairer, that there is a need to have contact between the children and her from 1 May to 9 May 2010.

3. T was born in early May.  In the event that either of the orders are made he will spend his birthday with the mother.  However, Mother’s Day is on 9 May and the only practical way, it is said, for the boys to spend Mother’s Day with her and allow T to spend his birthday with her is to extend contact from 1 May to 9 May.  That period is in school term, so it is easy to understand why the Judicial Registrar decided upon 30 April to 4 May.  That would allow the boys to have a few extra days with their mother, but not miss too much school. Essentially, they would miss two days instead of five. The latter is what they would miss if the orders that the mother seeks are made. 

4. Boys of these ages regard their birthdays as important and mothers regard Mother’s Day as important.  I think that the orders that the Judicial Registrar made are generally in the best interests of the children in that they will not miss as much school with those orders and T will still be allowed to spend his birthday with the mother. 

5. Of all the matters which have to be considered pursuant to the Act nothing except the simple facts need to be considered in coming to this decision, although I have considered all of those matters. The issue is such a narrow one that it would not warrant going through all of the other matters that one must consider and I have considered in detail, to determine the outcome. I shall not uphold the mother’s appeal in relation to Mother’s Day. 

6. The other issue between the parties on the appeal relates to the order that the Judicial Registrar made to transfer the proceedings from Sydney to the Canberra Federal Magistrates Court.

7. The mother says that she cannot afford it, and the father can afford it better, if the matter is continued in the Sydney Registry where it was commenced.  It is true that the mother is not in a good financial position, but I am not satisfied that she could not afford, for a short period, to obtain modest accommodation in the ACT and that she could not also afford the bus fare to travel from Sydney to and return. She now lives in Sydney.  That is the main thrust of her reasons for wishing to oppose the transfer.

8. Of course, one must consider where the father lives too.  The father lives on the New South Wales south coast with the two boys.  The mother lives in Sydney with the parties’ eldest child, a daughter who is now more than 18 years old.  The father says that it is a long way to come to Sydney from Canberra for a hearing and the matter should be transferred to Canberra for that reason.  In response to that what must be said is that, because he lives on the south coast, it is also a relatively long trip from there to Canberra, although not as long as it is from Sydney.

9. The truth about the matter is that he would not be so greatly put out by the trip from the south coast to Sydney compared with that from the south coast to Canberra, whereas the mother will be substantially put out by a trip to Canberra from Sydney. If the matter is heard in Sydney, she will not have to travel much at all and will incur few expenses and little inconvenience in travel.  However, it seems that the father’s solicitor has considered another matter which to me is of critical importance. It is this.  This matter has not been allocated to a judge in Sydney.  It is my experience that in such an instance it is highly unlikely to be heard, at best, for 18 months and possibly for two years or more. The evidence is that it can be heard to completion within a year of transfer to the Federal Magistrates Court in Canberra. 

10. The nature of the matter is that it is not suited to a hearing in the Family Court compared with its suitability for hearing in the Federal Magistrates Court.  Probably, it should be transferred to the Magistrates Court in Sydney rather than heard by this Court.  It seems that there is not very much property to fight over between the parties, although the mother claims that there is a lot.  The children’s issue seems to be highly likely to be decided by a situation which has been in existence since the parties separated in 2007, in that the boys, who go to school in the New South Wales south coast area, will continue to live with the father on the south caost.  Because of the distance between the mother’s and the father’s homes there will be severe restrictions on the mother’s contact with the boys, just as there are now.

11. This is a very simple matter, as I have said.  It should be transferred to a Magistrates Court.  On my understanding, in Sydney the federal magistrates are unlikely to hear a matter any faster than this Court.  In those circumstances, I think it is in the children’s best interests that the matter be transferred to Canberra despite the inconvenience and modest cost to the wife.  In view of that transfer, it is not appropriate for me to determine whether the children should be represented or whether or not there should be a family report.  That will be a matter for the magistrate.

12. I simply should dismiss the mother’s appeal in relation to the order made by the Judicial Registrar numbered 5.3, as well as that numbered 2. by the Judicial Registrar on 19 January 2010.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cohen

Associate:     

Date:              19 March 2010