Sanders & Jameson

[2007] FamCA 1296

FAMILY COURT OF AUSTRALIA

SANDERS & JAMESON [2007] FamCA 1296

FAMILY LAW – CHILDREN – With whom a child lives with – With whom a child spends time

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings

Family Law Act 1975 (Cth)

APPLICANT: Ms Sanders

RESPONDENT: Mr Jameson

FILE NUMBER: SYC 5122 of 2007

DATE DELIVERED: 1 August 2007

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 1 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ward

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: Jones Mitchell Lawyers

Orders

1. That the parties attend for family dispute resolution by arrangement with the Manager Child Dispute Services at Sydney.

2. The proceedings are transferred to the Federal Magistrates Court sitting in Brisbane on a date to be appointed AND the Court requested that the mater be given some priority.

3. The mother to pay to the solicitor for the father, costs of the father of and incidental to these proceedings as agreed between the parties or assessed by a taxing officer.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5122 of 2007

MS SANDERS  

Applicant

And

MR JAMESON  

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a very young child, I think eight months of age. The parties, mother and father, were born in 1983 and 1980.  They lived together from 2004 and separated earlier this month.  They were living in the south east Queensland area at the time of separation.  They have one child, H, she was born in November 2006 and I understand that the mother is pregnant with the parties' second child.  I do not understand that they have any other children.  

2. The mother's case is that she, on the point of separation and indeed a little bit before that, found herself intending to separate from the father. She found herself, she says, without family support in the area and made arrangements with her mother to come up from the Illawarra area to help her relocate there.  The father took possession of the child from day care. Nevertheless the mother came back to the Illawarra area and she started proceedings here. 

3. The first thing to be said about that is the legislation prevents parties bringing proceedings unless they have been to a family relationship centre.  That was a requirement that came in on 1 July.  There are exceptions to it, and I do not think any of the exceptions apply to this case. The one that is closest is urgency, but the mother has not really made a case for that.  The events of were all initiated by her and there is no apparent reason why she could not have sought urgent orders in Queensland at the point of, or immediately following, the separation.  The other problem is, the natural venue for the proceedings is south east Queensland. The proceedings should not have been commenced here. 

4. The legislation says the Court is not allowed to hear a matter without there being a certificate from a family relationship centre. The type of certificates cover all of the possible eventualities -  the parties have attended and explored settlement; neither party attended for some proper reason, family violence or whatever; only one party attended for some reason, and so on. But that was not done. 

5. As Mr Ward says, the matter has an additional complexity because there is about to be another child, and there is then the issue of how the parties are going to manage that. I gather they have limited resources and they have decided now to live a long way apart.  So they have a lot on their plate.

6. They have not been able to communicate well since separation to the extent that the father arranged for, and the mother apparently did not know about, counselling at a dispute resolution centre the day before yesterday.  Arrangements have been made through the good officers of the counselling service here for the parties to have an appointment tomorrow and the mother is happy to attend at that.  The father is happy to attend by phone.  But I am asked to hold the matter in the list until the matter can be determined. 

7. The matter, on the face of it, is a matter that would normally be dealt with by the Federal Magistrates Court. Further, it is not a Sydney matter at all. The parties may well be able to resolve it at counselling either tomorrow or some other day but it is a matter that I think I need to move on and because it is likely that the father is now in possession of the required certificate that there will be a no-impediment to the Court in Brisbane dealing with the matter.

ORDERS DELIVERED

1. There is an application for costs of the proceedings. Normally parties bear their own costs.  The Court has power to make an order and is required to take into account certain things.  As to the financial circumstances of the parties, I do not know anything about their financial circumstances except that I gather the parties were both in paid employment leading up to their separation.  There was some evidence that the child was in full time day care.  There has been no breach of Court orders and there have been no written offers of settlement that I am aware of. 

2. The relevant issues are that the mother has been wholly unsuccessful, and secondly, her conduct in bringing proceedings 1000 kilometres away from the natural venue of the proceedings. Happily, arrangements can be made, parties can attend by telephone and so on but this was always a Queensland case and the proceedings should have been started in Queensland.  The mother could have started the proceedings in Queensland even if she lived here and she chose not to do that and it is an abuse of process to start proceedings somewhere else.  So I appreciate she has tried to act in the best interests of the child and so on, and she has made certain decisions but really it is my obligation to discourage that behaviour.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Judicial Registrar Loughnan

Associate 

Date:  6 November 2007