Orbach and Schroder

[2014] FCCA 3056

FEDERAL CIRCUIT COURT OF AUSTRALIA

ORBACH & SCHRODER [2014] FCCA 3056

Catchwords:
FAMILY LAW – Practice and procedure – change of venue – consideration of rules 8.01 and 8.02 of the Federal Circuit Court Rules 2001.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 62G, 68L

International Convention on the Rights of the Child
Federal Circuit Court Rules 2001, pt.15, rr.8.01, 8.02
Federal Circuit Court of Australia Act 1999, s.3

H & W (1995) FLC 92-598
Re R Children’s Wishes [2000] FamCA 43
AMS & AIF (1999) CLR 160

Applicant: MS ORBACH

Respondent: MR SCHRODER

File Number: CAC 1077 of 2009

Judgment of: Judge Harman

Hearing date: 10 December 2014

Date of Last Submission: 10 December 2014

Delivered at: Albury

Delivered on: 10 December 2014

REPRESENTATION

Solicitors for the Applicant: Ms Murrell of Farrell Lusher Solicitors

The Respondent appeared in person.

ORDERS

1. Vacate the hearing 30 September 2015 (being a hearing of the Contravention Applications filed 28 September 2013, 13 February 2014, 1 September 2014 and 24 September 2014).

2. Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

3. Transfer these proceeding and all extant Applications (comprising the above Contravention Applications together with the Initiating Application filed 1 December 2014) to the Newcastle Registry of the Federal Circuit Court of Australia.

4. List the proceedings for mention 9.30am 3 February 2015.

5. Order the Reasons delivered today, to be forwarded with the file to assist the Federal Circuit Court Judge upon whose docket the matter will ultimately reside.

IT IS NOTED that publication of this judgment under the pseudonym Orbach & Schroder is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

Exhibit A

Appointment of an Independent Children’s Lawyer

1. Pursuant to s.68L of the Family Law Act 1975 an Independent Children’s Lawyer shall be appointed to represent the interests of the child the subject of these proceedings; X born (omitted) 1999.

2. The Legal Aid Commission of NSW is requested to make arrangements as soon as practicable to facilitate the above order,

3. Each of the parties shall within seven (7) days of any request complete and provide to the Independent Children’s Lawyer a parenting questionnaire and/or such other information as may be requested.

4. Each of the parties shall within seven (7) days (or forthwith upon filing) forward to the Legal Aid Commission (Sydney Office) copies of all any documents filed by them in these proceedings together with:

   (a)Any medical reports they hold relating to the child;

   (b)Any psychological or school counsellor or pre-school intervention reports they hold relating to the child;

   (c)Any school reports they hold for the child;

   (d)Any other documents they hold and wish the Independents Children’s Lawyer to see and/or that they intend to seek to tender to the Court or rely on in these proceedings.

5. Each of the parties shall present the child to such places and at such times and dates as are requested and/or advised by the Independents Children’s Lawyer for the purpose of the Independents Children’s Lawyer meeting with the child.

6. Leave is granted to the Independents Children’s Lawyer to inspect the Court file and any material produced to the Court pursuant to s.69ZW and/or in response to subpoena.

7. The appointment of the Independents Children’s Lawyer is made on the following bases:

   (a)There is a history of litigation by either or both parents;

   (b)The child is of an age and apparent maturity whereby the International Convention on the Rights of the Child would require that the child have a voice in the proceedings and with respect to decisions that will affect their future; and

   (c)It is suggested that the child is expressing clear views to which weight would be attached and/or with respect to which there are allegations that such views have been influenced such as to not warrant the attachment of weight and/or are suggested not to accord with their best interests.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ALBURY

CAC 1077 of 2009

MS ORBACH

Applicant

And

MR SCHRODER

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court by way of an Initiating Application filed 1 December 2014. The application has been subject to abridgement of time and has thus come on at short notice. The parties to the proceedings are Ms Orbach who is the Applicant and the mother of the child, the subject of the application, and Mr Schroder, the Respondent father of the subject child. The child who is the subject of the proceedings is X, born (omitted) 1999, presently 15 years of age. 

2. The parties are engaged in collateral proceedings, the father having filed Applications for Contravention, 28 September 2013, 13 February 2014 and 1 September 2014. Those applications came before the Court on 24 September 2014 at which time the proceedings were adjourned for hearing to 30 September 2015. An additional Application for Contravention was filed on the above return date, 24 September 2014.  It has been consolidated for hearing with the previous Contravention Applications. 

3. The application now filed seeks the discharge of existing orders made with respect to X and seeks a restraint upon the filing of any further application by either party without the Court’s leave. The basis of that order is not established for present purposes nor need it be. On an interim basis, orders are sought regarding the suspension or discharge of the existing orders.  It is clear between the parties, without canvassing that which would impinge upon the rights of either parent in dealing with the contravention proceedings, that troubles have befallen compliance with the orders 7 December 2012. 

4. It is certainly alleged by Mr Schroder that X has not presented for periods of time.  It would appear clear in the context of this application, and without canvassing the merits of any prosecution of or defence of the Applications for Contravention, that the mother asserts that X has formed her own independent will to not attend and that her views and wishes should be given some regard. It is clear from the basis of the application and that alleged with respect to X’s views and wishes that they must be fully and properly ascertained. 

5. It is also clear, consistent with the objects and principles set out in section 60B of the legislation and incorporating, as they do, the entirety of the International Convention on the Rights of the Child, that this child has a right to participate in the proceedings and, consistent with authorities such as H & W (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43 to express her views regarding arrangements that will affect her future and to have those views taken into account and to ensure that it is clear that the views have been taken into account.

6. On the above basis, it would appear irresistible that an Independent Children's Lawyer would be appointed to represent the views of this child.  Indeed, I am satisfied it would be remiss of me and constitute appellable error to fail to do so in those circumstances. The International Convention imposes, by article 12, a clear right for children and young people to participate in decisions that affect their future, at least when determinations are made under the Family Law Act 1975 regarding their future arrangements when their parents are separated and to participate in proceedings to the extent that is consistent with their best interests. 

7. This young woman, at 15 years of age, is suggested to express clear and strong views. Thus, they must be represented and brought forward in the proceedings.  In the event that her views are to be represented by an Independent Children’s Lawyer, it is obvious that the lawyer representing her views must come from the area where she lives. It would not be practical or feasible to expect that X’s interests would be represented by a person who cannot meet with her and with whom she cannot engage any dialogue.   

8. There is a clear obligation on the Independent Children’s Lawyer created by section 68L of the legislation to ensure that they have ascertained the views of young persons whose interests they represent and to ensure that those views are placed before the Court in admissible form. Thus, it would seem also inevitable that a report of some fashion whether commissioned pursuant to section 62G of the Act or part 15 of the Federal Circuit Court Rules 2001, will be required. Again, that is an issue of convenience to the parties and, most importantly, to young X. 

9. It would clearly be more readily facilitated through a mechanism that occurs close to or approximate to this child. The Independent Children’s Lawyer is expected to meet with X and, one would hope, meet with her and communicate with her as frequently as X may desire. There is much controversy, indeed academic, as to the bases of the representation of children’s views in circumstances where the child or young person does not meet the person seized with representation of their interests. 

10. The recent Australian Institute of Family Studies report on that issue is but one example of such research. There are various other projects by Ph.D. students, and otherwise, presently in train dealing with that very issue and the perceived inconsistencies throughout the Commonwealth as well as the perceptions of children whose views have been represented in the past when they have not had ready access to meet the person representing their views. There is nothing on the evidence to suggest that X is other than an articulate 15 year old person. 

11. On that basis, she is entitled to and indeed the representation of her interests could not occur save through the free, ready and appropriate access by her to the person representing her views and interests. That, by definition, would involve more than a one-off appointment. She would be entitled to meet with the person representing her views as frequently as she desired and as frequently as was appropriate in the circumstances. These parties have a long running history of litigation. 

12. It would appear from a cursory examination of the folio of the file that the parties have been engaged in litigation now for approaching six years with little, if any, respite. The Court is advised that during the course of those various courses of litigation, that the young person’s interests have been represented in proceedings by at least two Independent Children’s Lawyers. Clearly and regrettably, it would seem that X will need to engage and develop a rapport with a third representative. 

13. In light of the inevitability of the appointment of an Independent Children’s Lawyer and, similarly, the inevitability that a report will need to be commissioned representing her views, I am concerned of the Court’s own motion that the proceedings would be better addressed in a registry proximate to this child. Transfer of proceedings is dealt with by part 8 of the Federal Circuit Court Rules 2001. I propose to deal with the factors set out in rule 8.01, dealing with change of venue, and rule 8.02, dealing with transfer of proceedings between the Federal Circuit Court and Family Court of Australia. 

14. I do not propose to transfer the proceedings to the Family Court.  However, I am satisfied for more abundant caution that the factors set out in both of those rules should be considered. Rule 8.01 provides as follows:

    (1) A party who files an application or response in a proceeding may apply to have the proceeding heard in another registry of the Court.

    (2) In considering an application, the Court must have regard to:

    (a) the convenience of the parties; and

    (b) the limiting of expense and the cost of the proceeding; and

    (c) whether the matter has been listed for final hearing; and

    (d) any other relevant matter.

15. I propose to deal with each of the factors set out therein individually.

The convenience of the parties

1. Mr Schroder lives in the (omitted) area. The mother lives in a township of (omitted) which is apparently in or about the (omitted) region. That falls within the Newcastle Registry’s catchment.  The child lives with the mother. There is no issue, dispute or controversy that that will continue to be the case. Mr Schroder indicates to the Court that he will have great difficulty in prosecuting any application or resisting that of Ms Orbach if the proceedings are transferred. 

2. I am conscious that by the relevant provisions of the Federal Circuit Court of Australia Act 1999[1] that this Court is obliged to both deal with proceedings with as much informality and lack of formal process as possible and to maximise the utilisation of electronic means of attendance: telephone, video-link and the like. I accept, however, that it is more difficult for a litigant, represented or not, to deal with proceedings that are some significant distance from them. 

   [1] Section 3.

3. However, for all but family report interviews and final hearing, it is probable that leave would be granted, if application were made, to appear by telephone. Similar difficulties arise for Ms Orbach. She is required to instruct attorneys some distance from her and the proceedings are the same distance from Ms Orbach as they are for Mr Schroder. Indeed, on the basis of the Newcastle Registry’s circuit to Maitland or Armidale, it would seem that Ms Orbach is closer to a Registry than Mr Schroder is to this. 

4. Importantly, however, as regards convenience and by reference to section 60CA of the Act dictating that in all decisions made in parenting proceedings and whilst the determination to be made as to the transfer of proceedings is an interlocutory order rather than a parenting order, I am satisfied that the same considerations should apply. The child’s best interests are paramount. This child lives with her mother in the (omitted). As Mr Schroder opines, the child travels, whether with other siblings or her mother, to the (omitted) area from time to time. However, that is different to a place of habitual residence. Accordingly, I am satisfied the convenience of the parties would support a transfer.

The limiting of expense and cost of the proceedings

1. Mr Schroder is not legally represented. Ms Orbach is. It is possible for Ms Orbach to retain her attorneys and for them to continue to represent her interests by electronic means such as telephone attendance. She may choose to instruct attorneys closer to her place of residence. The expense that will be incurred by the parties, or each of them, as regards travel for family report interviews or final hearing is similar, although on the basis that young X will need to travel with her mother for family report interviews, if they are to occur in either (omitted) or (omitted), the costs base for Ms Orbach will be greater. There is the potential for Ms Orbach to limit her legal expenses by instructing attorneys closer to her if they are able to then attend upon the Registry at either Newcastle or in circuit in Maitland or Armidale without the significant travel from (omitted).  That again supports transfer.

Whether the matter has been listed for final hearing

1. This application has not. It comes before the Court for the first occasion today. The contravention proceedings have been listed for final hearing. However, I am satisfied that if a transfer of one application is to be made, it should be a transfer of the entire file.  It is impractical, indeed illogical, for it to be otherwise. That would involve the vacation of hearing dates which have already been allocated.  However, those dates are a year away. There is a significant delay on this circuit. I am not aware of the delays that would be faced by the matter upon transfer to Newcastle although I am conscious that the Newcastle Registry has recently experienced a 33 per cent reduction in its resources not dissimilar to that which has been experienced by the Parramatta Registry which services this circuit, being a 40 per cent reduction.  In those circumstances, it is a somewhat neutral point.

2. In turning to rule 8.02, which I incorporate herein:

   (1)  The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.

   (2)  Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.

   (3)  Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.

   (4)  In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

   (a)  whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

   (b)  whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

   (c)  whether the proceeding will be heard earlier in the Court;

   (d)  the availability of particular procedures appropriate for the class of proceeding;

   (e)  the wishes of the parties.

   Note:         See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.

3. I propose to again deal with each of the factors individually.

Whether the proceedings involve questions of general importance

1. That is a factor specifically referable to a transfer to the superior court.  However, there is clearly a complex dynamic engaged between these parties and relating to this young person. In those circumstances, I am satisfied that:

   a)The proceeding should be heard together;

   b)The proceeding should be heard as quickly as possible;  and

   c)That the proceedings will require judicial management.

2. I am conscious that if the proceedings are managed in a major registry, such as Newcastle, that will more likely be achieved expeditiously than it will be upon circuit here with five weeks of hearing per year.

If the proceedings are transferred, whether they will likely be heard and determined at less cost and more convenience to the parties

1. I am satisfied that this, as discussed above, favours transfer. It adds to the issue of convenience, the very specific issue of cost. Whilst Mr Schroder is not represented, Ms Orbach is. Accordingly, her legal costs will be reduced by transfer – that would support transfer.

Whether the proceedings will be heard earlier in the other court

1. It is unclear what delays presently apply in Newcastle or what will arise following the departure by retirement of Judge Coker.  However, I am satisfied that they are unlikely to be more extensive than delays on this circuit. I am also conscious to not transfer work to my colleagues already beleaguered by a lack of resources. However, that is but one factor which I must consider and I am satisfied that the convenience of the parties and, more importantly, the child’s best interests would outweigh that. I am certainly content to offer any assistance in return which might be required by that Registry if it can be provided.

Availability of particular procedures

1. There is no specific issue as to procedures to be applied. What is required is for the matter to be, as it were, taken by the scruff of the neck as quickly as possible and to attempt to bring this litigation to a conclusion. In light of the history of proceedings between the parties thus far, with relatively continuous litigation since 2009, the proceedings are rapidly reaching a point whereby the parties, and more importantly X, must be becoming depleted if not exhausted emotionally and financially.

1. As the High Court has remarked in authorities such as AMS & AIF (1999) CLR 160 there is a cost to litigation, a cost to the individual, a cost to the family, a cost to relationships and a cost to the Court and thus the taxpayer. The costs of the conduct of this litigation to date are vast. The costs, more importantly, to these parties and this young woman are significant. X has had litigation in her life now for about one half of her years. She deserves better.

2. In all of those circumstances I am satisfied that:

   (a)X’s interests will be best met through the proceedings being dealt with in a Registry close to her and her place of residence.

   (b) The resources that will be needed to ensure the full and proper address of the child’s best interests will be better provided by the proceedings being heard and determined approximate to X’s place of residence. That includes the Independent Children’s Lawyer and family report writer. 

   (c)The convenience of the parties would be better met, although only slightly, through a transfer of the proceedings. More importantly, however, X’s interests would be better met.

3. For those reasons I propose to transfer all extant applications to the Newcastle Registry to be listed as soon as practicable. 

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Harman

Date:  15 January 2015