LEWIS &WITTNER

[2014] FamCA 513

FAMILY COURT OF AUSTRALIA

LEWIS &WITTNER [2014] FamCA 513

FAMILY LAW – PRACTICE AND PROCEDURE – Property settlement proceedings – Father seeks review of Registrar’s decision refusing application for change of venue – Notation granting leave to father to review Registrar’s decision out of time – Balance of considerations – Potential witnesses – Poor health of the wife – Locale of each party – Costs of proceedings –  Notation that application for change of venue is dismissed – Notation providing for inspection of documents out of state – Orders made for costs to be reserved.

Family Law Rules 2004 (Cth) reg 11.18

APPLICANT: Mr Lewis

RESPONDENT: Ms Wittner

FILE NUMBER: SYC 3643 of 2013

DATE DELIVERED: 7 July 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 7 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Schetzer Constantinou

COUNSEL FOR THE RESPONDENT: Mr Jackson

SOLICITOR FOR THE RESPONDENT: York Law Family Law Specialists

Orders

IT IS NOTED

1. That leave is granted to the husband to review the decision of Senior Registrar Campbell out of time.

2. That the application of the husband for change of venue to the Melbourne Registry of the Family Court of Australia is dismissed.

3. That it is agreed between the parties that if documents which are currently located in Melbourne are to be inspected by the Legal Representatives of the wife then in the first instance they will be inspected in Melbourne.

4. That the above notation applies to documents held by Thomson Greer in relation to the taxation audit of the superannuation fund and documents held by the accountant Mr C in relation to D Pty Ltd.

IT IS ORDERED

1. That the costs of both parties is reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lewis and Wittner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3643 of 2013

Mr Lewis

Applicant

And

Ms Wittner

Respondent

REASONS FOR JUDGMENT

1. The substantive proceeding before the Court is an application for property settlement between Ms Wittner (“the wife”) and Mr Lewis (“the husband”). The proceedings today involve a review of a decision of Senior Registrar Campbell made on 17 April 2014 whereby the Senior Registrar refused an application of the husband to transfer the proceedings to the Melbourne Registry.

2. At the commencement of the hearing, Senior Counsel for the husband sought leave to file the application to review the decision of the Senior Registrar out of time. Counsel for the wife did not oppose the application for leave. The slight delay in filing the application was adequately explained. Leave was granted.

3. The application for property settlement was filed in Sydney on 1 July 2013. The wife at the time the application was filed was then, and remains, a resident of Sydney. The wife engaged solicitors and counsel in Sydney.

4. The husband also engaged solicitors and counsel in Sydney.

5. An interim application was heard in Sydney on 22 July 2013. There was a procedural application on 9 September 2013 when orders were made, and a Conciliation Conference was set for 29 November 2013. On 25 November 2013 the husband ceased to instruct solicitors in Sydney, and engaged solicitors in Melbourne. On 5 June 2014 when the matter came for hearing before Aldridge J the husband briefed Senior Counsel from Sydney. 

6. The Australian Taxation Office is presently conducting an audit of the parties’ self-managed superannuation fund. There is no indication of when the audit will be finalised and the consequences of that audit made clear to the parties.

7. The husband relies upon the assertion that there are numerous witnesses who live in Melbourne and who might be called to give oral evidence in the proceedings. The husband also relies upon his assertion that the matter will be dealt with in Melbourne more quickly than it will be in Sydney. 

8. It would seem to me that the time when the matter might be heard will not be dependent upon the Court or Registry where the matter is being dealt with, but when the valuation issues between the parties can be made ready for hearing. The husband points to numerous valuation issues which may require experts. They will, of course, be single experts, and whether they will be required for cross-examination remains to be seen. Since the issues have not yet been defined, the witnesses to which the husband makes reference may not be required, and in any event, evidence may be able to be given by telephone if the witnesses are less contentious. 

9. The wife in opposing the application relies primarily upon the issue of her health. Before the Court is an affidavit of Dr B who is the wife’s treating psychiatrist. Dr B, in his report, says that the wife is at risk of suicide attempt should she become overly distressed.

10. I accept the submission of Senior Counsel for the husband that if the proceedings were transferred to Melbourne the wife would not be required also to move to Melbourne.

11. The husband has the means to travel to Sydney and find accommodation in Sydney. He has briefed Senior Counsel in Sydney. 

12. The factors which are to be considered in dealing with the transfer are set out in regulation 11.18 of the Family Law Rules 2004:

    REG 11.18 FACTORS TO BE CONSIDERED FOR TRANSFER

    11.18(1)  In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:

    (a) the public interest; 

    (b) whether the case, if transferred or removed, is likely to be dealt with:

    (i) at less cost to the parties;

    (ii) at more convenience to the parties; or

    (iii) earlier; 

    (c) the availability of a judicial officer specialising in the type of case to  which the application relates; 

    (d) the availability of particular procedures appropriate to the case; 

    (e) the financial value of the claim; 

    (f) the complexity of the facts, legal issues, remedies and procedures  involved; 

    (g) the adequacy of the available facilities, having regard to any disability of a party or witness; and 

    (h) the wishes of the parties.

13. The applicant properly concedes that the wife is entitled to choose her venue, and, does not contend that her choice was capricious.

14. I am required to balance on the one hand the potential of increased costs if the proceedings remain in Sydney against the evidence of Dr B that the wife is at risk of a suicide attempt should she become overly stressed by the proceedings being moved to Melbourne.

15. In my view the balance of those considerations requires that the proceedings remain in Sydney and the application is dismissed.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 July 2014.

Associate: 

Date:  7 July 2014