Richards and Richards

[2011] FamCA 952

FAMILY COURT OF AUSTRALIA

RICHARDS & RICHARDS [2011] FamCA 952

FAMILY LAW – Transfer of Proceedings

APPLICANT: Ms Richards

RESPONDENT: Mr Richards

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1256 of 2010

DATE DELIVERED: 14 December 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 14 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Chalmers

SOLICITOR FOR THE APPLICANT: Bayside Solicitors

COUNSEL FOR THE RESPONDENT: Ms Cunningham

SOLICITOR FOR THE RESPONDENT: Herman Bersee

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER Ms Bonney

SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER Victoria Legal Aid

ORDERS

IT IS ORDERED:

1. THAT leave be granted to the solicitor for the mother to make an oral application for the transfer of file and relocation of all Court proceedings to the Brisbane Registry of the Family Court or Federal Magistrates Court.

2. THAT all proceedings in this matter be transferred to the Brisbane Registry of the Family Court of Australia or Federal Magistrates Court, as may be appropriate for all further hearings and directions.

3. THAT, if requested, the file in the Melbourne Registry in file No. 1256 of 2010 be transferred to and consolidated with any Brisbane Registry file opened in these proceedings and the records of this Court be accordingly noted.

4. THAT liberty is reserved to the respondent husband to apply on urgent short notice in the Brisbane Registry, but upon proper material filed, to reinstate any periods of time or telephone or other form of electronic communication with one or other of the children.

5. THAT the extempore reasons for judgment be urgently transcribed, be placed upon the Court file and forwarded to the Brisbane Registry of the Court.

6. THAT the appointment of a Melbourne based Independent Children’s Lawyer, made pursuant to the Order of Registrar Field on 14 September 2010 be discharged as to the provision by Victoria Legal Aid of such representation.

AND IT IS REQUESTED

1. THAT Brisbane Legal Aid forthwith provide such legal representation to the children as may there be appropriate pursuant to their guidelines or directions of a Judge or Federal Magistrate of those Courts.

2. THAT otherwise the proceedings be removed from the docket of Young J.

IT IS NOTED

A.THAT the Melbourne Registry Manager, Ms Reynolds, forthwith notified of this Order and be requested to take immediate action to implement the transfer of the proceedings to the Brisbane Registry of the Court.

IT IS NOTED that publication of this judgment under the pseudonym Richards & Richards 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 MELBOURNE

FILE NUMBER: MLC1256/2010

Ms Richards

Applicant

And

Mr Richards

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. I have before me proceedings which have been previously heard in the Federal Magistrate's Court initially in Dandenong and thereafter in the Melbourne Registry of the Court.  The most recent order in this file was made by Senior Registrar Fitzgibbon on 28 October 2010.  I can therefore presume without further reading the file that there had been a transfer of proceedings from the Federal Magistrate's Court to Family Court Melbourne Registry. 

2. The matter is before me and the respondent father is represented by Ms Cunningham of Herman Bersee, Barristers and Solicitors of B Town.  The father is present in the office of his solicitor and their appearance is by telephone.  Mr Chalmers, solicitor represents the applicant mother, though he has now informed the court that since February of this year she has been resident in Queensland with the two children of the marriage, whose ages are 13 and a half and 12 years approximately.

3. Ms Bonney of Counsel represents the children through the appointment of the Independent Children’s Lawyer. 

4. At a previous time when the matter was before the court there was an order made by consent and until further order that both C and D live with the wife.  It was further ordered that they spend no time with the husband, and otherwise the balance of interim applications then outstanding were dismissed.  I have read the earlier order made by Registrar Field which resulted in the appointment of the Independent Children’s Solicitor now represented before me today.  There has been a report prepared as part of the Child Responsive Program by family consultant, Mr E.  That report is dated 19 October 2010 and would have been before the court when the Senior Registrar made the orders earlier identified.  I have had the opportunity to read that report and the key issues which have been highlighted therein.

5. What is fundamentally apparent from the report was the highlighted filing of the notice of child abuse as was alleged by the mother, and that document was dated 19 April 2010.  Otherwise, the Department of Human Services have been involved as have various police investigations.  The brief of evidence that arose from the police investigation was submitted to senior police for consideration, and this report was prepared at a time prior to decisions being made and an outcome being found upon those allegations.  The conclusions of the family consultant at that time were for both children to live with the mother, though that was qualified by reference to such time as criminal matters are resolved.  I am advised by Ms Cunningham, and I accept her assurances, that any charges laid against the husband and any trial process that may have been contemplated have now been either withdrawn or discontinued.

6. In the fullness of time there will need to be concrete proof of that outcome filed with the court including full particulars of all charges that were laid, and copies of police statements that may have represented issues of and involving their investigation.  It is often noted that the standard of proof to be substantial beyond reasonable doubt with criminal courts may give rise to the withdrawing of charges which otherwise, in matters concerning the interests of children, would be involved and accepted in this court or in the Federal Magistrate's Court.  However, I carefully make no findings or any further comments. 

7. I am advised that the mother has relocated to Queensland with the children.  What is a fact of overwhelming importance is that I am told that relocation occurred on limited, but some notice to the father, and occurred in or about February of this year.  That is, these two near to teenage children have been living in the southeast of Queensland and attending school for approximately one year.  They have had no contact with the father.  The ongoing hearing in this court may have challenged that order of the Senior Registrar, and it may be that the father is still inclined to proceed with some application for a measure of shared parenting or otherwise time with the children.  I am not necessarily striking out any such final application that remains alive.

8. What I do observe is that there very urgently must be undertaken a proper assessment of the welfare and security of these children, how they have settled into their new home, school and environment, and all of the matters that relate to the fabric of their life.  None of that evidence is before the court. 

9. The mother’s solicitor seeks a transfer of proceedings to the Brisbane Registry of this court.  That is opposed, on instructions, by the solicitor for the father.  It is supported by the children’s lawyer. 

10. The first issue is whether an oral application can be made, so that the court may, on the papers, hear and determine the transfer of the proceedings to the Brisbane Registry.  The facility to make such oral application is also opposed by the husband’s solicitors upon instructions.

11. Whilst I know this issue is raised on short notice, one can understand that the father’s concern is to seek an immediate hearing of all matters, and now that criminal charges have not been processed and he has not been found guilty of any criminal offence, he no doubt purports to assert the right of the children to see him.  That, of course, must stand scrutiny. 

12. The first issue therefore is whether leave be granted for an oral application to be made, and in all the circumstances of this case, it is abundantly apparent that it is in the interests of the children to have matters moved forward to any hearing that may occur, and in a Registry that is primarily suitable to the children rather than one or other of the parents.  I therefore grant leave to make an oral application which Mr Chalmers foreshadowed would be that:

    Leave be granted to the mother to request the transfer of all proceedings contained within the Melbourne Registry in file number 1256 of 2010 to the Brisbane Registry of the Family Court.

13. It may of course be that the Brisbane Registry determines this is a matter appropriate for the Federal Magistrate's Court, and it may be then so listed in that court within the Brisbane Registry.  That is not matter upon which I have any comment. 

14. The issue now before me in which the wife is applicant is to transfer the file, and therefore all of the proceedings, to the Brisbane Registry.  That is wholly supported by the independent children’s lawyer and if such order is made, I would discharge the appointment of Victoria Legal Aid in providing such support for the children.  One would trust that would be urgently replaced by the appointment of the Independent Children’s Lawyer appropriately located in southeast Queensland.

15. My understanding of the father’s instructions to his solicitor is that his opposition is focused upon his locality, just over the border in South Australia in the town of B Town, and its proximity of some four hours to Melbourne.  That facilitates his travel and his ability to attend at court if the file remains in the Melbourne Registry.  He may or may not have the facility, the time and the inclination for travel to Queensland.  They are matters of his choice and future direction.  There is however a stark reality in that the mother gave some limited notice of her intention to relocate to Queensland almost a year ago.  The father took no court action and sought no restraining order, notwithstanding the difficult circumstances he was then in with no order for children to spend time with him and criminal charges pending.

16. The reality seems to be that, without any other order, or thought to transfer the proceedings to Brisbane by her solicitors, she and the children departed to Queensland, where they are living I do not know, but I do know that they have been there from February of this year.  There is no issue or complaint made about their relocation by the independent children’s lawyer and there are now new factors to be considered.  Their resettlement in Queensland, their lifestyle, friends, neighbours, schooling, and the mother’s circumstances are all matters that can be investigated in Queensland.  There will have to be a family consultant’s report prepared.  The children, because of their age, must be interviewed and their views respected.  That can only occur in Queensland. The mother likewise is a fundamental witness in the case, and she now lives in Queensland.

17. I have reflected on the disadvantages to the father and the distance involved.  They are overborne by all of the advantages to the children and it is fundamentally the welfare and best interests of the children that must primarily motivate the court.  There is also the practical and obvious circumstances of their current state domicile, and this trial could not be efficiently and meaningfully run from the Melbourne Registry. 

18. I conclude therefore that, with due respect to the opposition of the father, overwhelmingly all factors relate to a transfer of this file to the Brisbane Registry and I will so order.  These reasons are being delivered ex tempore without arising from the Bench, and thus they are both short, concise, but hopefully to be understood.   I will order that they be transcribed, placed upon the court file and made available to all parties.  

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Young delivered on 14 December 2011.

Associate:

Date:  14 December 2011