Maddock and Lowe

[2018] FamCA 439

FAMILY COURT OF AUSTRALIA

MADDOCK & LOWE [2018] FamCA 439

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – where matter reached first day allocation to a judge – where applicant moved to a residence remote from Registry in which application originally filed – respondent overseas and will appear electronically – transfer to Registry closest to applicant.

APPLICANT: Mr Maddock

RESPONDENT: Ms Lowe

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5727 of 2013

DATE DELIVERED: 12 June 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 12 June 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT:

Orders

IT IS ORDERED THAT:

1. These proceedings be transferred to the Brisbane Registry of the Family Court of Australia and referred to the Case Management Judge of that Registry as a matter transferred on the First Day of Hearing.

2. There be liberty to the parties to seek a hearing of the matter as an interim hearing and / or a final hearing with priority.

3. This matter be otherwise removed from my docket.

4. My reasons for decision this day be transcribed and when settled placed on the Court file.

AND IT IS NOTED that the applicant was not in a position this day to address the issue of jurisdiction (but should have been).

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 Maddock & Lowe 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 MELBOURNE

FILE NUMBER: MLC 5727 of 2013

Mr Maddock

Applicant

And

Ms Lowe

Respondent

REASONS FOR JUDGMENT

1. This matter of Maddock & Lowe comes before me as the first day of hearing for proceedings in which the applicant father seeks to vary his liability to provide financial support to the mother for the parties’ son, X, born in 2007.  The father resides in Suburb B in C Town in the State of Queensland.  The mother is in the United States of America in City D. The mother and the father both appeared by telephone today.

RECORDED:  NOT TRANSCRIBED

1. I asked the applicant to address me on what jurisdiction there is for me to vary the orders as proposed and he was unable to tell me other than to say that because amounts of money were deducted from his income that he had been told there was jurisdiction in the Australian Court to vary the orders made in the United States, in particular, in the Superior Court of E State on 11 February 2013 and/or the Superior Court of E State on 5 June 2013. 

2. It may well be the case that there is jurisdiction in this Court to vary that order, either on a provisional or a final basis, but it is for the applicant to identify the jurisdiction so that the respondent is able to meet that case.  The father is an applicant in the case, not a passenger.  This is not the first time jurisdiction has been raised.  The respondent in her response to the initiating application challenges the Australian jurisdiction in the first paragraph, quite possibly not on legitimate grounds, but, nonetheless, it is challenged so the father should have been able to identify jurisdiction today.

3. The next issue is the child support application is based on the income and financial resources of the father, in short, his capacity to pay.  It is alleged by the mother that the father has been purposefully underemployed and has a greater income-earning capacity for the purpose of child support than he is exercising.  If the mother is right, and the father is paying child support in accordance with an income which is lower than his true capacity, there is little incentive for him to push these proceedings along.

4. The father is a resident of C Town.  He recently moved to Suburb B from Melbourne.

5. The father will be required to attend court personally, presumably, for the purpose of cross-examination, and it may be that other persons are required to attend court to give evidence in person.  In all of the circumstances, it seems to me more sensible to have the proceedings transferred to the Brisbane registry which is most proximate to the father’s residence.  It appears that the mother will, in any event, be required to attend by video link or telephone link.  Two telephone or video links is not an efficient means of conducting proceedings.  As indicated, the father is not well organised.

6. Whilst the father says that he will attend court in Melbourne and does not want the proceedings “further delayed”, I can foresee a situation where he would seek to attend by telephone subsequently and the hearing would not be able to proceed smoothly.  Accordingly, I transfer the proceedings to the Brisbane registry of the Family Court of Australia. 

7. It is open to the parties to seek to have this matter determined with priority to reflect the fact that the case has been pending in this Court for long enough for it to have been allocated to a judge for hearing.  It is the father’s relocation to C Town that necessitates the transfer.

8. The parties should contact a case coordinator to obtain information as to how applications for priority are made to the case management judge.  The mother queries whether or not there could be an interim hearing which would increase the rate at which the father is currently paying child support and that also is a matter for the new registry.  The file will be sent to the Judicial Services Coordinator for the Brisbane Registry.  Once the transfer is actioned the parties will be notified of the Case Coordinator for their matter in the Brisbane Registry and any enquiries may be directed through that channel.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett delivered on 12 June 2018.

Associate: 

Date:  18 June 2018