S and P (No.1)

[2003] FMCAfam 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & P (No.1) [2003] FMCAfam 182

FAMILY LAW – Children – contact – interim orders.

PRACTICE AND PROCEDURE – Transfer of proceedings – change of venue to Brisbane – father lives on NSW Central Coast – mother and child reside in Queensland – matters to be considered.

Federal Magistrates Court Rules 2001, r 8.01

Applicant: JS

Respondent: SP

File No: PAM 495 of 2003

Delivered on: 7 May 2003

Delivered at: Parramatta

Hearing date: 11 April 2003

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Ms King

Solicitors for the Applicant: Vaughan Barnes

Counsel for the Respondent: Ms Baldwin

Solicitors for the Respondent: Baldwins Lawyers

ORDERS

1. The Respondent’s application to transfer these proceedings to the Brisbane Registry of the Court is refused.

2. The application to vary the contact orders is adjourned to Monday
   16 June 2003 for interim hearing at 10.00am

3. The Respondent’s solicitor is granted leave to appear by telephone.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 495 of 2003

JS

Applicant

And

SP

Respondent

REASONS FOR JUDGMENT

Application

1. The application before the Court is an interlocutory application that the matter be transferred to the Brisbane Registry of the Federal Magistrates Court.  The primary application before the Court is an application relating to contact between the applicant father and the child of the parties who resides with the respondent.  The father resides in New South Wales, the mother and the child reside in Gympie in the State of Queensland.  The mother has brought an application that the venue of these proceedings be changed. 

2. The issues basically between the parties are of residence, contact, the issue of a passport and the issue of the child travelling with the father to visit family in the father's native New Zealand. These issues have not been resolved at this stage. It is significant that the child has lived in Queensland for approximately eight years and there are some issues about her wishes. The law relating to change of venue is conveniently set out in Rule 8.01 of the Federal Magistrates Court Rules 2001.  Matters that need to be addressed by the Court are:

   a)convenience;

   b)the limiting of expenses;

   c)whether or not the matter has been listed for a final hearing; and

   d)any other relevant matter.

3. Quite clearly the issue of expense is relevant to both parties and indeed the respondent has been granted permission to have her solicitor attend by telephone link-up rather than appear physically in the Court.  The applicant's solicitor has been attending personally but of course she does not have nearly as far to travel.  These are all matters that I see are of importance.  It is significant that interim contact arrangements do not appear to be satisfactory to the parties.  The affidavits contain accounts of contact arrangements going drastically wrong where the child in fact returning to Queensland without the father actually seeing her or vice versa.  There are issues too about the father's wish for this child to accompany him to New Zealand to see extended family.  These are issues that do not necessarily need to wait until a final hearing and I am mindful of the fact that a final hearing could well be a number of months off.

4. As far as a final hearing is concerned I would be of the view that a Family Report would assist the parties as it would provide some independent evidence as to the wishes of the child, because the wishes of the child are relevant.  The child resides in Queensland and it would appear to be appropriate that a Family Report should be prepared by the counsellor of the Brisbane Registry, which would tend to suggest that a final hearing should more preferably be in Brisbane.  I am reluctant however to transfer the matter at this stage.  As I said the need for interim contact arrangements to be sorted out and issues about the father's proposed travel to New Zealand are matters that can be dealt with by way of a properly constituted interim hearing, by way of affidavits appropriately drafted and the parties solicitors seem to have no difficulty in preparing appropriate affidavits which set out the parties’ reciting of the facts that they believe go to these particular issues.

5. The parties’ solicitors have had no difficulty in presenting to the Court submissions about this particular interlocutory matter, whether it has been personally in Court or by attendance over the telephone.  I see no reason why the parties’ solicitors would not be able to provide the Court with appropriate assistance as to the resolution of these interim issues with the matter remaining for the time being in this Registry.  It is for that reason that I do not propose to change the venue of these proceedings to the Brisbane Registry at this stage.

6. I am also mindful of the fact that the Brisbane Registry is a very busy Registry, even busier than Parramatta, and that I would be concerned that this matter could, through the very nature of a transfer, lose some priority and the ability to have interim issues at least resolved at an early stage.  It is for the purpose of early resolution of interim issues that I believe that the matter should remain here for the time being.  The question of change of venue can be revisited at a later stage.  For the time being the interim application to transfer the proceedings to Brisbane until further order will not be acceded to.

7. What I propose to do is to arrange a suitable date when interim proceedings can be heard about the issues that I mentioned, which I understand certainly seem to me to be quite important and need early resolution. 

8. Monday, 16 June for interim hearing, 10.00 am.  Respondent's solicitor granted leave to appear by telephone link-up.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  S. Polley

Date:  30 May 2003