Sampson and Hartnett (No. 4)

[2007] FamCA 403

FAMILY COURT OF AUSTRALIA

SAMPSON & HARTNETT (NO. 4) [2007] FamCA 403

FAMILY LAW - PRACTICE AND PROCEDURE – Registrar – Review of decision

Family Law Act 1975 (Cth)

APPLICANT: Ms Sampson

RESPONDENT: Mr Hartnett

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 8 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Moore J

HEARING DATE: 8 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Paul

THE RESPONDENT: In person

Orders

1. The application of the wife filed 27 March 2007 for review of the order made by a Registrar on 23 March 2007 is dismissed. 

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYF3827 of 2004

Ms Sampson

Applicant

And

Mr Hartnett

Respondent

REASONS FOR JUDGMENT

1. On 23 March a Registrar stuck out the application of the wife for a change of venue filed 19 February 2007.  By that application, the wife sought to have proceedings instituted by the husband alleging contravention of certain interim parenting orders transferred to the Melbourne Registry of this Court.  She now seeks a review of the Registrar’s decision. 

2. At the time the Registrar made the order, there was no appearance by or on behalf of the wife and the predictable result followed.  As I apprehend it, her solicitor appeared later [he relates an administrative breakdown in his office] but, having already dismissed it, the Registrar took the view the application could not be revived.  In any event, having exercised the right of review, the wife’s application for change of venue proceeds de novo. 

3. The matter has a history which for present purposes can be condensed to some essentials.  On 21 March 2007 I made final parenting and property orders after long running contested proceedings.  The wife filed an appeal and brought an application for a stay of certain of those orders pending appeal.  She has since brought an application for expedition of the appeal, as yet unheard.  On 30 April I dismissed her application for a stay and she has since filed an appeal against that refusal.  In the meantime, as the husband relates it, he has brought proceedings to enforce those orders [or certain of them] and they are presently part-heard before a Judicial Registrar. 

4. The husband’s contravention application to which the change of venue relates was filed on 29 January 2007, prior to the making of final orders.  It was initially returnable on 14 February, but in the absence of any appearance by or on behalf of the wife it was adjourned to 19 February, the day the wife filed her application to change the venue to Melbourne.  Both applications were adjourned to 21 March when they were not reached and stood over to 23 March.  On that day, absent appearance by the wife or Mr Paul, the Registrar struck out the application.  At the same time, the contravention application was placed before the Judicial Registrar who fixed it for hearing on 23 May, at least as I apprehend the unfolding of events, and directed the mother and her witnesses to be present on that day.  In his case the husband relies on an affidavit he swore on 29 January and an affidavit by Mrs J who lives in Geelong. 

5. Factors relevant to the exercise of the discretion involved are the availability of court to hear the matter, the limiting of expense and costs to the parties, the convenience of the parties, and any other relevant matter. 

6. The affidavit of the wife sworn 19 February raises a number of matters in support of her application:

   ·She wishes to cross-examine witnesses, more particularly Mrs J.

   ·She foreshadows calling evidence from two Victorian police officers who had some involvement in events on the day in question. 

   ·She refers to her financial circumstances as compared to those of the husband, the implication being that he is in a much stronger financial position. 

   ·She alleges the husband has not fulfilled his obligation to pay her costs of travel to Sydney as required by earlier interlocutory orders.

   ·She lives in Geelong and has difficulty instructing solicitors from such a distance. 

   ·She suggests legal aid may be available to her if the proceedings are conducted in Victoria.

   ·She is still breast feeding their son [then aged 2 years and 3 months].

   ·As the husband travels to Geelong 3 weeks in every 4 to spend time with the children, the matter could be heard in Melbourne on either a Friday or Monday around those weekends.

   ·She was not personally served with the application but it was delivered to her solicitors.

7. The husband in his affidavit responds to each of these points, in summary -

   ·The evidence of his witnesses, if required, could be taken by telephone or video or can be present for cross-examination. 

   ·Statements about his financial circumstances are inaccurate and do not reflect in any event the high cost to him of spending time with the children in the Geelong area. 

   ·On two occasions in the past the wife has sought before two separate judicial officers to change the venue of proceedings to Melbourne and on both occasions she was unsuccessful. 

   ·He has met on every occasion her costs of travel to Sydney as required by the interlocutory orders. 

   ·Their son now drinks from a cup and, he believes, is no longer being breast fed. 

   ·This court is no less available than the court at Melbourne to hear and determine a contravention application [he elaborated in his submissions with the advice that the hearing has already been fixed by the Judicial Registrar for 23 May]. 

   ·At no occasion since proceedings have been pending in this Registry has the wife suggested difficulty in instructing solicitors.  Her current solicitor, whom she has instructed since February 2006, is here in Sydney.  Her solicitor prior to that was also from Sydney.  [Earlier solicitors she retained were from Melbourne]. 

   ·If the wife is entitled to legal aid, he maintains there is no reason it could not be available to her in New South Wales.  In fact, she gives no evidence of the relevant test and nor any indication of having applied for legal aid. 

8. Submissions by Mr Paul and the husband canvassed some but not all of these topics and some supplementary arguments were put.  In particular, Mr Paul says the wife still resides in Geelong and whether she continues to do so or not may depend on the outcome in due course of her appeal against the refusal to grant a stay.  However, the children are presently in Sydney and time with their father is occurring according to the orders.  A relevant consideration is the expense to the wife of the proceedings remaining in Sydney by reason of her need to travel to Sydney on two occasions: first, for the hearing about whether a prima facie case is made out and, if it is, then subsequently for the hearing of her defence after the filing and service of affidavits of evidence in chief.  However, Mr Paul conceded after a brief exchange with me that if there is a finding of a prima facie case, the need for an adjournment in the face of service of the wife evidence going to her defence would be a matter for the husband and his advisors, if he has them, having regard to the view taken of her case and his ability to deal with it on the day.  Mr Paul also foreshadowed her case would include evidence from two police officers whose role is related in the husband’s supporting affidavit.  But of course affidavit evidence from any police officers is not presently available and so there can be no certainty they will be called, and nor can the need for them to be in attendance at court be evaluated.  Having said that, I am told the Judicial Registrar directed the wife to have her witnesses available on the 23 May hearing date and so the decision has to take account of the possibility of her having the cost of those witnesses travelling to Sydney, assuming they swear affidavits in the first place and assuming their evidence is not dealt with in some other way.  Mr Paul acknowledges the change to Melbourne would involve the husband having to travel there, but he contends the preponderance of prospective witnesses living in the Geelong area favour the change being made.  Mr Paul also submits that in the absence of any previous contravention applications and the ongoing and increasing litigation about other matters, there is no reason why there should be any hurry to get this matter heard and it would not be unreasonable if there were delay in having the matter heard in Melbourne.  The general submission is made that the balance of convenience favours the matter being transferred. 

9. Contrary to this, in my opinion the application should be dismissed.  It is acknowledged the application remaining in this Registry produces inconvenience and expense to the wife by reason of her need to travel to Sydney for the hearing at least once [possibly twice though that cannot be reliably foreseen], accommodate herself overnight, and possibly present any witnesses in her defence if a prima facie case is made out.  That is a consideration of some merit to be weighed in the balance but there is nothing of any substance in other matters raised.  More particularly, the position put about legal aid is speculative and unsupported by any proper evidence or even an undetermined application.  Nor do I accept the proposition that the delay that would necessarily be inherent in the matter being transferred to Melbourne would be, in effect, a reasonable outcome.  On the contrary, the substantive proceedings have been in this Registry for a long time and there are currently other proceedings apart from this application pending, both at first instance and appellate level.  Not to be forgotten, the contravention application is related to parenting orders and the sooner at least this strand of the litigation is disposed of, the better it will be for the two young children at the centre of it.  I do not accept, therefore, that delay is of no moment and I regard the fact that there has already been fixed in this Registry a hearing to take place 15 days from today as a very weighty factor.  As I assess it, that tips the balance solidly in favour of the proceedings remaining here and being heard on 23 May. 

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate: 

Date:  8 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as SAMPSON & HARTNETT