OBRECHT & CULLEN

[2020] FamCA 425

FAMILY COURT OF AUSTRALIA

OBRECHT & CULLEN [2020] FamCA 425

FAMILY LAW – CHILDREN – Where the mother and children reside in Western Australia and have done for some eight years – Where the Independent Children’s Lawyer brings an Application for transfer – Where there is no appearance by or on behalf of the father – Where the father had notice of the Application – Where the matter is transferred to the Perth Registry of the Family Court of Western Australia

Family Law Rules 2004 rr 11.17, 11.18
APPLICANT:	Mr Obrecht

RESPONDENT: Ms Cullen

FILE NUMBER: BRC 5919 of 2012

DATE DELIVERED: 24 April 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 24 April 2020

REPRESENTATION

THE APPLICANT: No Appearance

THE RESPONDENT: Self-Represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lavrick
Legal Aid

Orders

THE COURT NOTING:

A.That the Respondent mother and the children, X born … 2008 and Y born … 2007 live in Western Australia.

THE COURT ORDERS:

1. That these proceedings be transferred to the Perth Registry of the Family Court of Western Australia.

2. That the Independent Children’s Lawyer be discharged.

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 Obrecht & Cullen 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 BRISBANE

FILE NUMBER: BRC 5919 of 2012

Mr Obrecht

Applicant

And

Ms Cullen

Respondent

REASONS FOR JUDGMENT

(settled from the oral reasons delivered)

1. These substantive proceedings have been ongoing in one form or another for many years.  They relate to two children, X, born in 2007, who is now twelve and a half years of age, and Y, born in 2008, who is 11 years of age.  The father, Mr Obrecht, and the mother, Ms Cullen, separated, it seems, in or about September 2011.  At that stage X was four and Y was three.  Although there were proceedings commenced after separation and Orders made by the Federal Magistrates Court that the father spend time in a supervised environment with the children, it appears that the last physical contact visit between the father and the children occurred in 2012.

2. That, to a large degree, occurred because on or about 17 November 2012 the mother, having applied to relocate to Western Australia in her response filed

   
   

   3 July 2012, was permitted to do so by order of Federal Magistrate Lapthorn (as he then was) on 26 November 2012.  The matter did not seem to progress very much for nearly two years until Judge Lapthorn transferred the matter to the Family Court of Australia in August 2014, and thereafter a report by family report writer Mr B in April 2015 was procured and filed.

3. For the purpose of that report and, it seems, for the first time since 2012, the girls saw their father.  The matter had been listed for trial before Justice Tree in November 2015, and on the second day of the trial, namely, 17 November 2015, final orders were made by consent, the effect of which were to maintain the mother's entitlement to remain living in Western Australia with the children and to set up at Orders 10 through to 15 a process for initially supervised weekend visits in Western Australia at C Services, and then after four visits, the last three of which were to be unsupervised, Orders were made for holiday time to occur between the father and the children during 2017, 2018 and thereafter.

4. It is apparent from all the material that, sadly, for reasons which are disputed between the parties and despite an Order made by Judge Jarrett in the Federal Circuit Court after the father brought this current Application to vary orders on 21 November 2018, and Orders being made by Judge Jarrett on 30 July 2019 to change the place where time was to occur, no time has occurred.  Judge Jarrett on 30 July 2019 transferred this matter, being the father's application filed

   
   

   21 November 2018, to the Family Court because of its long history in this Court, quite appropriately.

5. The father's Application filed 21 November 2018 was filed by him as an unrepresented litigant, and, as such, it is difficult to really ascertain what orders he seeks.  At the very least, it seems to me, he wishes to maintain a relationship with his daughters, X and Y, who live in Western Australia and, as I say, have done so now for nearly eight years.  As best I can ascertain it, his Application is directed to seeking orders which allow the facilitation of an ongoing relationship.  Registrar Coutts on 30 October 2019, alert to the imprecise nature of the Application by the father, directed the father to file an amended application. He has not done so. 

6. Although there was some suggestion the mother may bring an application for these proceedings to be transferred to the Family Court of Western Australia, no such application is pursued by the mother, who, in any event, at this stage is unrepresented.  Ms Lavrick, the appointed Independent Children’s Lawyer in this matter, filed an Application on 9 April 2020 in which she as a party to the proceedings seeks that the proceedings be transferred to the Family Court of Western Australia. 

7. I am satisfied from the evidence before the Court that the father is aware of the Application has received a copy of the Application and has been given the opportunity today to appear.  Apart from the fact that he, like the Independent Children’s Lawyer Ms Lavrick, and the mother, who lives in Western Australia, got the same information as to how to connect with the Court by telephone, the father has chosen, it seems to me, not to do so.

8. As a further courtesy to the father, my associate has today sought to contact him by telephone on two occasions and has been unable to get a response.  In these circumstances, I am satisfied, therefore, that it is appropriate to deal with the matter in the absence of the father. 

9. Whether the matter ought be transferred to another Court involves a consideration of both Rule 11.17(b) of the Family Law Rules 2004, which is a power to transfer to another Court, and Rule 11.18(1) of the Family Law Rules 2004, which provides that in making a decision under Rule 11.17 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;

   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.

10. In a very fulsome manner, the Independent Children’s Lawyer, in a case outline filed by her, has engaged with the requirements under the rules, and no real point is served in repeating what is already stated in the case outline with which I agree. In summary, however, whilst adopting the arguments set out by the Independent Children’s Lawyer, I also note that:

    a)The children having lived in Western Australia now for nearly eight years – any determination of what Orders into the future to vary the orders would need to be seen within the context of evidence which is almost entirely present in the state of Western Australia, whether that be in relation to Court experts who might be appointed to provide, for example, family report interviews;  whether that be in terms of contact centres who may be involved in observing the children with the father, if that was to occur;  whether the Court thinks it is appropriate to obtain any information, for example, from the children’s school, and if the children are undertaking or have undertaken (since 2012) counselling from those counsellors or therapists.  The overwhelming amount of evidence is all in Western Australia.

    b)Although even in these times where electronic communication is the preferred and only mode by which the Court is really able to communicate with the parties, it is inevitable that if the matter was transferred to the Family Court of Western Australia the father, if he pursues his application, would have every opportunity to appear by electronic means from Queensland without having to travel to Western Australia for that purpose.  It seems to me the history of this matter is that the father has not, either by choice or because of costs, which could well be the case, been able to travel to Western Australia to pursue time with the children.  Just as the mother, who is unrepresented, appears from Western Australia today by telephone, so could, if the matter is transferred, the father appear by telephone or other electronic means before the Family Court of Western Australia. 

    c)There is no evidence before me that the procedures, delays or processes of the Family Court of Western Australia are any more substantially different to those being applied by the Family Court of Australia in the Brisbane registry, and therefore no inconvenience to the parties from a transfer is likely to occur other than the father will be required to appear by phone, and if the matter proceeds to trial will, subject to any leave of the Court otherwise given, be required to appear personally in the Family Court of Western Australia in Perth.

11. For all these reasons, it is appropriate, in my view, that the application of the Independent Children’s Lawyer be permitted, and that the orders sought by the Independent Children’s Lawyer are to be made, namely, as per the Application in a Case filed 9 April 2020.

12. I cannot, however, conclude these reasons without referring to the highly offensive correspondence which the father sent to the Independent Children’s Lawyer on 16 April 2020, and which is attached to an Affidavit of Ms Lavrick – the Independent Children’s Lawyer – filed 17 April 2020.  It only needs to be read to accept that my description of it as being highly offensive, derogatory and completely unhelpful is apt.  I do not in respect of these reasons choose to repeat the comments made. 

13. I mention that because on the face of that affidavit – and I am told by Ms Lavrick today – a subsequent similarly toned email from the unrepresented father was received on or about 21 April 2020, it might have been appropriate to consider – and it may in the future be appropriate for the Family Court of Western Australia to consider, whether the father’s Application actually be dismissed.

14. No such application has been filed in this matter, and the father has not, as a result, been alert to any opportunity that might be available to him to contest that if such an application is made.  That is a matter, ultimately, for the parties and the Family Court of Western Australia.

15. I make the Orders which appear at the commencement of these Reasons.

I certify that the preceding fifteen (15) paragraphs are a true copy of the Reasons for judgment of the Honourable Justice Baumann delivered on 24 April 2020.

Associate: 

Date: 29 May 2020