Lorreck and Watts

[2017] FamCA 191

FAMILY COURT OF AUSTRALIA

LORRECK & WATTS [2017] FamCA 191

FAMILY LAW – PRACTICE AND PROCEDURE - Change of Venue

APPLICANT: Ms Lorreck

RESPONDENT: Mr Watts

FILE NUMBER: CAC 23 of 2009

DATE DELIVERED: 30 March 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 15 December 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The application to transfer the proceedings to the Cairns Registry of the Family Court of Australia is refused.

2. Pursuant to s 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for X, born … 2002, and Y, born… 2007, and the Legal Aid Commission of the Australian Capital Territory is requested to provide such representation.

3. The parties are to provide to the Canberra office of the Legal Aid Commission of the Australian Capital Territory at 2 Allsop Street Canberra City ACT 2601 or GPO Box 512 Canberra ACT 2601 forthwith copies of all documents thus far filed by them in these proceedings.

4. Leave is granted to the Independent Children’s Lawyer to issue such subpoena as they consider relevant to the issues before the Court.

5. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

6. Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by communication with the Court in Chambers in appropriate circumstances.

7. I direct that the father provide the passports for the children, X and Y forthwith and in any event within 7 days of today’s date.

8. I direct that the mother return the passports for X and Y to the father by 30 June 2017.

9. The matter is listed for directions on 30 May 2017 at 2:15pm.  The parties have leave to attend by telephone provided they make arrangements with the Canberra Registry seven days in advance to do so. 

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 23 of 2009

Ms Lorreck

Applicant

And

Mr Watts

Respondent

REASONS FOR JUDGMENT

1. Final orders were made in 2011 providing that the children, X (who is now almost 15) and Y (who is now almost 10) would relocate from Canberra with their mother to live in B Town, and spend time with their father who lives in Canberra. 

2. In June 2016 the father filed an Initiating Application in the Federal Circuit Court in Canberra asking that the children live primarily with him in Canberra.  The matter was transferred to this Court.  Following a visit to their father in Canberra, the children remained in Canberra.  In August, I ordered their return to B Town.

3. The father asserted in a Notice of Risk filed 30 June 2016 that the children are at risk with their mother, being subjected to physical and psychological abuse by the mother.  The mother disputes this and says that the father has obstructed her relationship with the children, both in restricting their contact with the mother when with him and by retaining them in Canberra.

4. Given the ages of the children their views, if expressed, are important considerations in the resolution of the current matter.  The parties sensibly agree that there ought to be an Independent Children’s Lawyer (“ICL”) appointed and that there be an expert assessment of the children to resolve the issues. 

5. The present matter primarily involves whether the litigation should be transferred from the Canberra Registry of the Family Court to the Cairns Registry.  The mother seeks the transfer.  The father resists it.

6. Relevant considerations are set out at Rule 11.18 of the Family Law Rules 2004 (Cth) ("the Rules"), which are set out below:

   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.

7. The critical factors advanced by the parties fell within (b)(ii) above.  No differential between the facilities or availability of the two registries was identified in the evidence.

8. The matter focussed upon the relative convenience of the two registries, including the financial capacities of the parties to facilitate litigation in either of the two places.

9. The mother and children live in B Town.  The father lives in Canberra and the children travel to Canberra to spend time with him. 

10. Litigation in Cairns will involve the father travelling to Cairns.  Conversely litigation in Canberra will involve the mother travelling to Canberra.

11. No expert has yet been identified.  The relative availability of an expert was not addressed. Some travel will be required to participate in assessment with either a Single Expert or a Family Consultant (the “expert”).  As the children travel to Canberra, this could be accommodated in either Canberra or Cairns without necessarily requiring extra travel for them.  An Expert in Cairns would require travel by the father.  An Expert in Canberra would require travel by the mother. Potentially the Expert could give evidence by video link, whether the proceedings were in Canberra or Cairns.

12. If an ICL is appointed in Canberra he or she can see the children when they visit Canberra.  If appointed in Cairns, he or she can see the children in Cairns.

13. The essential difference then between Cairns and Canberra is that if the proceedings are held in Cairns the father may need to travel to Cairns for assessment and would need to travel to Cairns for the trial.  He would then bear the greater financial burden of travel for the proceedings.  Conversely, if the proceedings are held in Canberra the mother may need to travel to Canberra for assessment and would need to travel for the trial.  She would then bear the greater financial burden for the proceedings.

14. In either venue, both of the parties will suffer some disruption to their lives by virtue of the proceedings themselves.  The mother’s commitments in B Town would be disrupted.  They would also face disruption if the trial were to be held in Cairns.  Similar observations can be made for the father.  The father has the added difficulty of having insufficient leave available for travel for assessment if that was to happen in Cairns.

15. The mother’s application to transfer depends upon whether she can demonstrate that the relative convenience of the father bearing the burden is greater than the relative convenience of the mother bearing the burden, such as to justify making the order for transfer.

16. At paragraphs [10]-[12] of her affidavit of 7 October 2016 the mother set out her financial circumstances.  She has recently incurred costs of travel to Canberra on the children being withheld here following time with their father.  She was about to commence on Austudy. 

17. The father set out financial issues for both himself and the mother at [9] - [12] of his affidavit of 1 November 2016.  He sets out his general expenses and says that he has little left over for unexpected expenses.

18. The father contends that the mother operates a business in addition to her government benefit.

19. The father further contends that there is a differential between how the parties fund the current travel for the children to spend time with the father.  He says that he pays for it and the mother uses the points accumulated by these payments to fund her obligations regarding the travel.

20. Despite the differences in what each says about their income and expenditure, without more it would appear that neither is left with capacity to fund travel for the litigation.

21. However, both of the parties are planning overseas travel for themselves and the children this year.  The father identifies that this will involve he and his wife going without to fund the travel.  The mother, despite asserting an intention to travel in the first part of this year to Asia with the children, does not identify how she is able to fund the travel.

22. I am able to infer that each party has capacity to fund international travel for themselves and the children despite otherwise limited financial resources.  This gives some confidence that, perhaps at the expense of the overseas travel, each parent has capacity to fund travel for the litigation.  I cannot say whether one party is in a superior position to the other in terms of ability to fund the travel.  I therefore cannot determine that there is a relative convenience of one venue or the other.

23. At present the proceedings are being conducted in Canberra.  The mother seeks the transfer.  It is incumbent upon her to justify the exercise of the discretion to transfer.  She has failed to do so.  Her application for transfer is refused.

Passports

1. The parties have competing positions regarding who should hold the children’s passports at present.  The father currently holds them.  He attests to previous difficulties and litigation involved in obtaining the passports when the mother held them.  He is concerned that if he provides the passports to the mother he will need to litigate to have them returned.

2. He says that travel is planned for 2018.

3. The mother complains that she has sought the passports for the travel to Asia during the Easter holidays, but that they have not been provided.  I am not given any specifics as to when that travel is planned for, and so whether there is any necessity for the passports to be provided at this stage.

4. The father has said that if the mother books and pays for travel for the children he will share the passports with her.

5. Given the scope of the need for each of the parties to hold the passports as identified in the material before me, it appears that the mother will have a requirement for the passports that will end at the end of the Easter school holidays.  The father does not require the passports until after that.

6. Both of the parties’ requirements for the passports can be met without inconvenience to the other.  Orders can be made to facilitate the mother having the passports until after the Easter holidays and for them to be then returned to the father.

7. I will make orders that the passports be provided to the mother forthwith, and further orders that they be returned to the father by 30 June 2017.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 March 2017.

Associate: 

Date:  30 March 2017