MOORE & SHIRLEY

[2014] FamCA 773

FAMILY COURT OF AUSTRALIA

MOORE & SHIRLEY [2014] FamCA 773

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – consideration of the provisions of Rule 11.18 – consideration of relevant issues – proceedings transferred.

Family Law Rules 2004 (Cth) rr 11.17, 11.18
APPLICANT:	Ms Moore

RESPONDENT: Mr Shirley

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

FILE NUMBER: PAC 3139 of 2013

DATE DELIVERED:

ORDERS DELIVERED:

11 September 2014

8 September 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 8 September 2014

REPRESENTATION

COUNSEL FOR THE RESPONDENT: Ms Druitt

SOLICITOR FOR THE RESPONDENT: A R Walmsley & Co

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. These proceedings be transferred to the Brisbane Registry of Family Court of Australia.

2. These proceedings be listed before a Docket Registrar with priority in order that consideration can be given at an early date to appropriate directions to proceed this matter firstly to an interim hearing if pressed and secondly for the preparation of a Single Expert report with the issue of an appropriate reporter being a matter for the court’s consideration.

3. The Independent Children’s Lawyer appointed through Legal Aid New South Wales be discharged.

IT IS NOTED THAT:

(A)It is contemplated by the Applicant Father that there be a Chapter 15 child and family psychiatrist appointed and the Court is informed by the Independent Children’s Lawyer today that there is a reasonable prospect that Legal Aid Queensland may provide assistance to the Mother and that Legal Aid Queensland may well fund part or all of the cost of any proposed Chapter 15 expert.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Moore & Shirley 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 PARRAMATTA

FILE NUMBER: PAC 3139  of 2013

Ms Moore

Applicant

And

Mr Shirley

Respondent

REASONS FOR JUDGMENT

1. The discrete application for determination in this matter is the mother’s application for a transfer of these parenting proceedings to the Brisbane Registry of this court.

2. The primary applications relate to the parenting arrangements for the child B (“the child”) born in March 2013.

3. The child is the only child of the father and the mother in these proceedings.

4. The father commenced proceedings in the Federal Circuit Court of Australia with his application filed on 25 July 2013. In summary in that application he sought orders that provided:

   a)That the mother and father have equal shared parental responsibility;

   b)That the child live with the father;

   c)That the child spend certain defined time with the mother;

   d)That in the event that the child does not live with the father then the parties be restrained from living more than 50 km from J Town, New South Wales and that there be a shared care arrangement on a week-about basis.

5. The mother filed a response on 16 August 2013 and that response has subsequently been amended by the filing of an amended response on 11 July 2014.

6. In the amended response the mother seeks orders in summary:

   a)That the mother have sole parental responsibility for the child;

   b)That the child live with the mother;

   c)That the child spend supervised time with the father.

7. The mother and father did not cohabit and it appears common ground that the child of their relationship was born as a consequence of a brief liaison between the parties. The nature of that liaison is in dispute and will be subject of evidence at final trial.

8. It is also common ground that the relationship between the mother and father is extraordinarily conflictual.

9. The father’s application was before the court on 21 August 2013 and on that day directions were made adjourning the matter to 4 October 2013 for interim hearing with the parties to file and serve documents by 20 September 2013.

10. The father sought interim orders in summary that provided:

    a)That the mother be restrained from removing the child from his current address at J Town or beyond a radius of 50 km from J Town, New South Wales;

    b)That the child live with the father;

    c)That the mother spend time with the child as agreed between the parties or from 3:00pm to 6:00pm on no more than 15 calendar days per month provided that the mother give to the father not less than 7 days’ notice of her intention to spend time with the child;

    d)In the event that the child is to live with the mother then the father spend time with the child as agreed between the father and mother and if not agreed from 3:00pm to 6:00pm on no more than 15 calendar days per month provided the father gives the mother at least 7 days’ notice of his intention to spend time with the child.

11. The mother in her initial response sought interim orders that provided as follows:

    a)That the mother have sole parental responsibility for the child;

    b)That the child live with the mother;

    c)That the child spend time with the father at K Contact Centre for not less than 2 hours once a month and that the father pay for the cost of supervision;

    d)That the mother be permitted to relocate the child’s residence pursuant to her posting by Government Agency L in the course of her employment.

12. On 4 October 2013 the interim proceedings were adjourned part heard to 15 November 2013 and both parties were directed to file and serve any further affidavits relied upon by 8 November 2013.

13. On 15 November 2013 the interim proceedings were again adjourned part heard to 5 December 2013 and the parties were ordered to file and serve any further affidavits to be relied upon by 2 December 2013. By consent the court made orders pending further order in summary as follows:

    a)That the parties have equal shared parental responsibility for the child;

    b)That the child live with the mother;

    c)That the child spend time with the father for 2 hours on each of 30 November, 1 December, the date of the adjourned proceedings and the date after the adjourned proceedings with such time to be supervised by C Organisation, the cost of such supervision to be paid by the father and such time not to be in the presence of Ms Shirley;

    d)That all communications regarding the child be through “[Website M]”;

    e)That in the event that the mother has not received notice of a posting to J Town within a further 7 days the mother do all things to apply forthwith for a “preferential treatment” transfer to J Town.

14. On 5 December 2013 the interim hearing between the parties was once again adjourned part heard to 15 April 2014. Further interim orders by consent were made that provided as follows:

    a)That the child live with the mother;

    b)That the child spend time with the father:

    i)In Sydney on 21 and 22 December for 4 hours supervised by C Organisation with the father to pay for the mother’s airfares to attend the same;

    ii)On 4 and 5 January 2014 for 4 hours with changeovers to be at McDonald’s Suburb D;

    iii)Thereafter each alternate weekend for 4 hours per day in the E Town/Suburb D area until determination of the interim hearing;

    c)That the mother and father each pay half the costs of the father’s airfares;

    d)That in the event that the father is able to travel for an extended time to Queensland and gives the mother at least 7 days written notice the child shall spend time with the father up to a maximum 7 days on an alternate daily basis;

    e)That within 7 days the mother apply for a transfer to J Town and in the event the mother has not received notice of a posting to J Town within 28 days the mother apply for a “preferential treatment” transfer to J Town.

15. On 15 April 2014 the proceedings were once again before the court in relation to the outstanding interim application. Proceedings were further adjourned to 23 July 2014 for a continuation of the interim hearing and directions were made for the parties to file an amended application and response and updating affidavit material.

16. On 15 April the court also had before it competing contravention applications filed by both parties and these applications were adjourned for mention on 23 July 2014.

17. In the intervening period and on 16 June 2014 proceedings were transferred from the Federal Circuit Court of Australia to this court.

18. On 22 July 2014 the proceedings were before a Registrar of this court. An order was made for the appointment of an Independent Children’s Lawyer to represent the interests of the child.

19. On 4 August proceedings came before the court. Directions were made to facilitate a hearing on 8 September 2014 of the mother’s application to transfer proceedings to the Brisbane registry.

20. Otherwise are by consent orders in relation to the child’s time with the father were varied in summary to provide:

    a)That the child’s time with the father each alternate weekend be from 1:00pm to 5:00pm Saturday and Sunday;

    b)That changeovers be at the McDonald’s Family Restaurant at Suburb D;

    c)That the father’s time with the child pending further order will be generally in the presence of the maternal grandmother Ms A Moore or such other person known to the child as the father and mother might reasonably agree;

    d)That the father notify the mother by email or SMS communication by no later than 5:00pm on the Wednesday preceding his time with the child confirming his attendance and in default of notification the mother is not required to attend for the purposes of such time;

    e)Otherwise the father and mother communicate by SMS or email communication except in cases of emergency.

Discussion

1. An application for transfer of proceedings between registries under Rule 11.17 enlivens the considerations set out in Rule 11.18.

2. The rule provides:

   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.

3. The application for transfer of the proceedings to Brisbane is supported by the Independent Children’s Lawyer.

4. Relevant considerations are:

5. Public interest: relevantly the mother in the proceedings is an employee of Government Agency L and now based at Suburb N near Brisbane. It is to be inferred that she has endeavoured but has not been able to obtain a transfer to Government Agency L at J Town, New South Wales.

6. It is submitted by the Independent Children’s Lawyer that it is in the public interest to have proceedings determined in a Registry close to the mother’s home and the mother’s place of employment in order that absences from her Government Agency L duties can be minimised.

7. Cost and convenience:  The mother presently resides in a four-bedroom home in the Brisbane area with the child. The home she presently resides in is close to the child’s day care arrangements and the mother’s workplace at Government Agency L at Suburb N. The mother’s home is also close to the child’s doctor. The mother’s home is made available to her on a subsidised rent basis from her employer. It appears that the mother’s present posting at suburb N will be for the next 3 or 4 years with a high possibility of remaining at that base for a further 3 or 4 years thereafter. The mother, she asserts, has been unable to obtain a posting to J Town.

8. The mother is in modest financial circumstances after rent receiving income of $330 per week and receiving supplementary single parent government benefits. She pays about $99 per week for the child’s day care. The father at present pays $544 a month for child support.

9. The mother has extended maternal family support in the Brisbane area.

10. The Independent Children’s Lawyer informed the court that there was some prospect that notwithstanding the mother’s employment she would be eligible for legal aid from Legal Aid Queensland that would no doubt assist her in the proper presentation of her case.

11. The father on the other hand is ceasing employment with Government Agency L. He is transitioning from employment with Government Agency L to the general workforce. He provides no details of his proposed further employment. He is married with 2 other children. He owns a modest home with a mortgage.

12. Clearly a hearing of the mother’s case will comprise herself and various members of her extended maternal family, all of whom reside in the Brisbane area. Any treating practitioners for the child it is inferred will be in the Brisbane area. The father on the other hand would presumably adduce evidence from himself and his wife.

13. With the care of the young child as a primary concern there would be significant dislocation of the mother and her child care arrangements should she be required to travel to Parramatta on occasions for the purposes of either further interim hearings, engagement with family consultants in terms of the preparation of a children’s and parenting intake assessment, thereafter engagement with a family consultant or single expert for the purposes of a family report, and attendance for trial. Otherwise proceedings in Sydney would necessitate her arranging accommodation and travel for her witnesses.

14. The father on the other hand, subject to making care arrangements for his 2 children, would be required to attend Brisbane on the occasions referred to but be in a better position to accommodate that travel with his wife able to care for their children in his absence.

15. An Independent Children’s Lawyer instructed in these proceedings would be better if based in Brisbane close to the mother and child.

16. There is no issue between the parties that appropriate family consultants are available in or through the Brisbane registry and that appropriate single experts if required can be instructed in Brisbane.

17. After inquiry the Independent Children’s Lawyer informed the court that the expected time to hearing in the Brisbane Registry is not dissimilar to that presently available in the Parramatta Registry. No disadvantage in this regard would be occasioned to the parties or either of them by transfer.

18. Judicial Officers: The Brisbane registry is a larger registry than Parramatta with more judges available undertaking trial work on a regular basis.

19. Procedures: The Brisbane registry will adopt and implement similar procedures to case management that are applied mostly uniformly throughout the registries in Australia.

20. Otherwise the Independent Children’s Lawyer informed the court that in proceedings in the Brisbane registry Legal Aid Queensland is more likely to fund part, if not all, of a Chapter 15 Single Expert’s report if same is ordered by the court.  Such a prospect in New South Wales is extremely poor.

21. Wishes: The mother seeks an order for transfer and that transfer is opposed by the father.

Conclusion

1. Having regard to the considerations referred to above they are clearly indicative of these proceedings being transferred to the Brisbane registry of this court.

2. Orders are presently in place for the child to spend time with the father on an alternate weekend basis or extended basis and those orders will continue pending determination of any further interim applications agitated by the parties or final hearing in due course.

3. These proceedings can be listed with little delay for a case management hearing in the Brisbane registry.

4. Accordingly an order will be made for the transfer of these proceedings to the Brisbane registry.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 11 September 2014.

Associate: 

Date:  11 September 2014