SCOTT & WALKER
[2010] FMCAfam 1081
•28 September 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SCOTT & WALKER | [2010] FMCAfam 1081 |
| FAMILY LAW – Children – child aged 10 – where mother lives in Victoria – where father lives in the Northern Territory. PRACTICE & PROCEDURE – Change of venue Application from Alice Springs to Melbourne – where matter is already listed for final hearing – no equal weight given to factors in reg. 8.01 – relevant matters within reg.8.01 – application of r.11.18 – injustice if change of venue is or is not allowed – balance of convenience – use of videolink in proceedings. |
| Family Law Rules 2004, r.11.18 Federal Magistrate Court Rules 2001, reg. 8.01 |
| Sheen & Paulo [2007] FamCA 1175 Gronow & Gronow (1979) 144 CLR 513 B & A [2003] FamCA 1189 K & S & V [2001] FamCA 243 National Holdings Proprietary Limited & Century Corporation (1988) 19 FCR 155 |
| Applicant: | MS SCOTT |
| Respondent: | MR WALKER |
| File Number: | ASC 36 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 27 September 2010 |
| Date of Last Submission: | 27 September 2010 |
| Delivered at: | Darwin |
| Delivered on: | 28 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms J. Truman |
| Solicitors for the Applicant: | Stynes Dixon Lawyers |
| Counsel for the Respondent: | Mr M. Story Duty Solicitor |
| Respondent: | Self represented Litigant |
ORDERS
That the application in a case of the mother filed 30 August 2010 for the change of venue from the Federal Magistrates Court Alice Springs to the Federal Magistrates Court in Melbourne is hereby dismissed.
That the matter remain listed for a 1 day hearing to take place at Alice Springs on 7 December 2010 at 10:00am.
That interim Order 3 sought by the father in his response filed
17 September 2010 is hereby dismissed. It is noted that the parties may attend if they so wish a Legal Aid conference to narrow or resolve the issues prior to the hearing on 7 December 2010.
That the Family Report writer Ms D prepare a short wishes report as to the wishes of the child [X] born [in] 2000 in respect to spending time with the father, such report to be released by 30 November 2010.
That leave is granted for the mother, her legal practitioners and any witnesses to attend the hearing on 7 December 2010 by way of video link provided the Federal Magistrates Court Darwin is notified on or before 30 November 2010 of the mother’s intention to attend by way of video link failing notification appearance will be required in person.
That the Report writer Ms D is given leave to appear at the hearing on 7 December 2010 by way of video link.
IT IS NOTED that publication of this judgment under the pseudonym Scott & Walker is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA |
ASC 36 of 2009
| MS SCOTT |
Applicant
And
| MR WALKER |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)
Application
I have before me for determination an application by the mother who was the respondent in the substantive proceedings for a change of venue from the Federal Magistrates Court in Alice Springs to the Federal Magistrates Court in Melbourne.
The father, who is self represented but assisted at the hearing by the duty lawyer, Mr Story, opposes the application. The father appeared in person.
The mother unfortunately was not available, as she was organising the children to fly to Darwin to spend time with the father. This delay was caused due to the fact that Virgin had had difficulties with their flights over the weekend. Ms Truman of counsel appeared, having been instructed by the principal Stynes Dixon Lawyers for the mother.
Background
By way of brief history, the father is aged 37 years and is employed as a [omitted] and resides and works in Alice Springs.
The mother is aged 35, is a full-time homemaker and mother, and lives in Victoria.
On 26 June 2009, the father filed an initiating application in the Alice Springs Registry seeking interim and final orders in respect to the child, [X], born [in] 2000, who is now aged 10. The father throughout the whole of the proceedings has been self represented.
The mother, who at all times has been legally represented, filed a response on 11 August 2009 seeking different orders in respect to the father’s time with the child, and in her interim orders, the mother also sought an order for a change of venue to Melbourne.
The child [X] was as a result of a brief relationship between the parties that commenced in the late 1990s and finished in 2001.
Both parties have since repartnered and have had more children. The mother has [Y], aged nearly five, and [Z], aged nearly two, and the father has a child aged six.
At no time has the child [X] lived in the Northern Territory, having been born and raised in Victoria. The only connection with the Northern Territory is that the father relocated here in or around 2006 and has continued to reside and work here ever since.
Since the filing of both the application and the response, the matter has been before Terry FM on several occasions namely:
a)23 September 2009 for mention;
b)15 October 2009 when orders were made for [X] to spend time with the father in January 2010;
c)8 February 2010 whereby final consent orders in some limited children’s matters were made (where the child was to live), sole parental responsibility and the time the father is to spend with [X] in July, September and Christmas school holidays in 2010, telephone communication, provision of school reports and notices, and keeping each other informed as to the residential address and telephone numbers. Further, a family report was ordered, such report to be prepared in Melbourne;
d)On 10 May 2010, there was another mention whereby the matter was allocated a one-day hearing on 7 December 2010 in Alice Springs and comprehensive directions were made as to what was to occur leading up to the trial.
It appears that the mother and her solicitors have appeared by telephone at all Court events.
But at no time (and I cannot explain why) was a decision made by Terry FM as to a change of venue, although Ms Truman made submissions from the bar table that this unresolved issue was raised in correspondence to the Court and further at the last mention date on
10 February 2010.
It has now specifically been brought to the attention of the Court by way of an application in a case filed by the mother on 30 August 2010, the father having filed a response on 17 September 2010 opposing the request for the change of venue.
The evidence
In considering the application for the change of venue, I have had regard to the following material filed by the mother:
a)the application in a case filed 30 August 2010;
b)the affidavit in support of the application in a case filed 30 August 2010;
c)her response in the substantive issues filed on 11 August 2010;
d)her amended response filed 13 May 2010;
e)her affidavit in support of her initial response filed 11 August 2009; and
f)the submissions made by Ms Truman.
I have also considered the following material filed by the father:
a)the response to the application in a case filed 17 September 2010;
b)the affidavit in support of the response filed 17 September 2010;
c)his initiating application filed 26 June 2009, and I further had regard to the submissions made by the duty lawyer, Mr Story.
Further, so as to provide me with a better understanding as to the issues to be determined at the hearing, I have also read the family report released by Ms D on 5 May 2010.
The Law
The power to change a venue is set out in reg. 8.01 of the Federal Magistrate Court Rules 2001, which reads 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 costs of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.
Whilst the regulation has some common ground with its sister provision in r.11.18 of the Family Law Rules 2004, it is not as comprehensive, but I will canvass that rule later in my judgment.
The application of the Law
In considering the application of reg. 8.01, the Full Court single judge decision of Boland J in Sheen & Paulo [2007] FamCA 1175 refers to three aspects that must be considered:
Firstly, that the judgment of the Federal Magistrate is a discretionary one and that the ambit is a wide one and is not to be measured against what another judicial officer may consider as being correct in the decision.
In that case, Boland J states at [37] of the statement, when refusing the appeal, that:
Whilst other judicial officers may have reached a different conclusion on the change of venue in this change of venue application, I am not satisfied that his Honour’s –
referring to Altobelli FM -
exercise of discretion was outside the wide ambit of discretion available to him.
Boland J refers at [32] as to the difficulty of establishing an appeal on erroneous exercise of discretion and refers to Stephen J in Gronow & Gronow (1979) 144 CLR 513.
Secondly, reg.8.01 requires the exercise of discretion on a matter of practice and procedure. Boland J at [27] states:
Generally the appellate Court will apply particular caution in interfering with the discretionary judgment considering a matter of practice or procedure.
However, the third aspect I must consider is whether the decision I will make will work an injustice against the applicant. Again, referring to the decision of Sheen & Paulo (supra), Boland J goes on to state at [27]:
…through it will be more ready to interfere if it perceives that the decision was affected by error which has worked an injustice against the appellant.
There is no authority that equal weight should be given to each factor in the relevant rule Boland J states at [38] that:
… It is clear having regard to the drafting of the rule, that the rule does not require any particular weight to be given to any one factor. In some cases issues relating to a balance of convenience may be decisive. In other cases the proximity of the final hearing date and the availability of a judicial officer to hear an application may be the most influential factor in determining a venue application.
I am satisfied that there is no basis either in the rule itself or authority which requires equal consideration to be given to each subparagraph of the rule and subparagraph (d), which is necessarily general in its term, militates against such a construction. Bearing all this in mind, I now refer to reg. 8.01(2) of the Rules.
The first consideration is the convenience of the parties. The father resides in Alice Springs with his wife and child. Alice Springs is where the trial has been set down for on 7 December 2010. The matter remaining listed in Alice Springs will not inconvenience the father at all.
The mother, however, lives with her husband and the three children including [X], who is the child the subject of these proceedings, in Victoria. Whilst her legal fees are fully funded by Legal Aid, therefore causing little inconvenience to the mother, it is the cost that would be involved in the mother attending Alice Springs which causes her some concern.
The mother has deposed, and it has been submitted, that the mother would have to travel to Alice Springs and bring with her the youngest child, aged two, and that arrangements would have to be put in place for that child to be cared for whilst the mother attended the trial.
The mother states that, as her husband works full-time, he cannot have time off to care for the youngest child and that there is no family members that can assist in that regard.
However, nothing was deposed to in the affidavit filed 30 August 2010, or in the submissions made by Ms Truman, as to what arrangements were going to be put in place for the care of [X] and the middle child, [Y], who is aged nearly five, which leaves me a little confused as to why it would be necessary for the mother to bring the youngest child to Court.
Further, the father indicated from the outset that he had no objection to the mother appearing by video link at the trial. When Ms Truman was asked why the mother could not appear by video link, it was raised that the mother would be physically disadvantaged if she appeared by link and likened it to being perceived as a character on a television screen. Further, it was raised that it would make proceedings difficult for the mother to be able to give instructions to her solicitor.
I agree that in some cases the giving of video evidence and the conduct of Court by way of video proceedings is undesirable, especially where issues of credibility are at the forefront and where a party may be disadvantaged to the proceedings being conducted in this manner.
However, this is a case where the issues are narrow and credibility is not the main player. Where the child is to live is not in dispute. Final orders were made for that, together with sole parental responsibility to the mother and for [X] to live with the mother, such orders being made on 8 February 2010.
Whether the father should spend time with the child is also not in dispute. Comprehensive orders as to holiday time for 2010 were again the subject of the final orders made by consent on 8 February 2010.
Whether time with the father should be supervised is also not an issue for the Court, as [X] has had, and will continue to have, unsupervised time with the father. Domestic violence and family violence issues are also issues that the Court need not determine in this matter.
The dispute requiring determination boils down to three issues as identified by Ms D in her family report released on 5 May 2010, at paragraph 20 on page 7:
·Duration of time [X] spends with the father during each school holiday period;
· the change of name for [X]; and
· Christmas 2010 arrangements.
I suspect leading up to trial there will be a fourth issue; that is, the wishes of [X] now that he has had some time to spend with his father.
Because of the narrowness and the nature of the issues, I do not consider that it would be inconvenient or disadvantaged for the mother to attend the trial together with her solicitors by way of video link if she chooses to do so.
I further find that it would not be a disadvantage for the expert witness, Ms D, and any other witness to give evidence by video.
Lastly, the father, who is self represented, has informed the Court that, as a [occupation omitted], he himself has given evidence by video link and has no problems with the trial being conducted in that manner.
The cost to the parties proceeding by way of video link from Alice Springs to the Federal Magistrates Court at Melbourne will be nil. Video link should be embraced. As stated by Coleman J in B & A [2003] FamCA 1189 at [13]:
It must be kept in mind that Courts are not entirely successfully resistant to the advances of technology. Realistically there is very considerable potential for cost saving both in terms of lawyers, witnesses, and parties by way of use of a video link.
This is supported by the Full Court of the Family Court in K & S & V [2001] FamCA 243 at [23]:
the use of technological advances in the conduct of civil litigation is to be encouraged where there can be significant time and cost savings while ensuring that all parties have a reasonable opportunity to partake in proceeding.
I therefore find that, in respect of convenience to the parties, that there is no ground to transfer the matter to Melbourne and that the mother, her lawyers and witnesses can appear by video link at the hearing if they choose to do so.
The second consideration as set out in reg.8.01 is the limiting of expense and the costs of the proceedings. The mother deposes, and
Ms Truman submits, that the mother would unnecessarily incur costs should the matter proceed in Alice Springs and costs that she can ill afford due to her husband being the only breadwinner.
Unusually, no details were provided as to the costs that would be incurred by the mother for travelling for herself and the young child should she be required to attend a one-day hearing in Alice Springs.
However, it was clear that there would be only costs incurred by the mother as all legal expenses are being covered by Legal Aid.
The father questions the mother’s financial situation is as bleak as painted by the mother, as the father had heard that her husband, the mother and the children had recently only returned from a trip to Germany.
I find that, in light of my comments made as to the availability of the use of a video link for the trial, that the issue of costs is not a consideration I need take into account for a change of venue application in this matter, as there will be little or no costs incurred by the mother if she proceeds to trial through the use of a video link.
The next consideration as set out in reg.8.01 is whether the matter is listed for a final hearing. Put simply, it is. It is set down for one day, commencing 7 December 2010 at Alice Springs. Not only has it been listed but comprehensive trial directions were also made on 10 May 2010 by Terry FM. If there is a change of venue, under no circumstances would the matter be ready to proceed to hearing in Melbourne this year.
In my experience, in my previous life as a registrar and my existing life as a Federal Magistrate, where I have had the privilege to observe the lists in Melbourne (which is an extremely busy Court) if the matter was transferred it would be mentioned some time most likely in late October or early November and would more than likely not get a listing until some time in the first half of the next year.
This, I find, would be an injustice to the father for two reasons:
i)the ongoing dispute over the full arrangements for Christmas 2010 would not be resolved; and
ii)there is nothing in place for the father's time with [X] in Easter 2011, and even if the matter was heard before then in Melbourne, which I doubt, it may be that judgment may not be available, which would result in the father not seeing [X] until June/July 2011.
This matter is ready to proceed. To remove it from the list now and place it into a busy Registry, where the future hearing is an unknown, would be an injustice not only for the father but also to [X]. Having applied that consideration, I find that there should not be a change of venue.
The last consideration in reg.8.012(d) is any other relevant factor. In considering any relevant factor, I am going to consider the comparable rule as appears in the Family Law Rules 2004 r.11.18 which, as I pointed out earlier, is far more comprehensive than reg. 8.01.
My ability to refer to this rule is supported by Boland J in the previously referred to decision of Sheen & Paulo at [42].
Whilst each of these matters referring to r. 11.18 fall within the topics specifically referred to, I am not persuaded his Honour’s consideration of the matters constitute an appellable error. Rather, I am satisfied each matter was a relevant factor to be considered in the exercise of his discretion.
The relevant parts of r.11.18 are as follows:
(1)In making a decision under rule 11.17 or in deciding whether to remove a case from another Court, the Court may consider:
(a)the public interest;
(b)whether the case if transferred or removed is likely to be dealt with (i) at less cost to the parties; (ii) at more convenience to the parties, or (iii) earlier;
(c)the availability of a judicial officer specialising in the type of case to which the applicant relates;
(d)the availability of particular procedures appropriate to the case;
(e)the financial value of the claim;
(f)the complexity of the facts, legal issues, remedies and procedures involved;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness;
(h)the wishes of the parties.
I do not intend to make a comment on public interest as I do not think that applies in this case.
As to r.11.18(1)(b)(i), I have addressed the issue of costs and how no costs will be incurred by the mother if she chooses to attend by video link.
As to r.11.8(1)(b)(ii), I have addressed the issue of convenience as no party will be inconvenienced if the matter remains listed in Alice Springs, as the father can appear in person and the mother and the legal representatives can appear, if they choose to do so, by video link.
As to r.11.8(1)(c), I am available on 7 December 2010 to hear this matter. There are no competing cases on that day, so a hearing is guaranteed.
As to r.11.18(1)(d), the same procedures appropriate to the case are available whether the proceedings are heard in Alice Springs or whether the parties appear by telephone link or video link.
As to r.11.18(1)(f), I am of the view that there is no complexity, legal issues, remedies or procedures that require firstly, that the matter be transferred to Melbourne, and secondly, that cannot be addressed at a trial in Alice Springs, even if the party and legal representatives appear by video link.
Lastly, r.11.18(1)(h) refers to wishes of the parties. The mother in her request to have the venue changed does not clearly state her wishes why. Whilst her affidavit filed with her initiating response, or her initial response on 11 August 2009, refers to the financial situation, it does not set out the financial hardship should the trial be heard in Alice Springs. Her affidavit filed 30 August 2010 provides even less of an insight, relying only on the fact that [X], herself and the report writer live in Victoria.
The father’s wishes as to why the matter should remain listed in Alice Springs are clearer, as set out in his affidavit filed 17 September 2010. Simply, he wants the matter heard. He has organised to be available on that day. He is concerned about the delay, and he notes that there has already been considerable time taken since the application was filed in June 2009.
Further in considering other relevant factors, I refer to the decision of National Holdings Proprietary Limited & Century Corporation (1988) 19 FCR 155, where it states at [34]:
…The Court must weigh [these] factors in each case. Residence of the parties and of witnesses, expense to the parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant and in particular circumstances.
[35] The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case…
The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceedings be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place why should it be changed? On the one hand if the party who commenced the proceedings chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for sometime at the place of commencement with many steps having been taken there, for example filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing the proceedings should continue at a different place.
[36] The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely and precisely.
Conclusion
Bearing in mind the interests of all the parties, including what is best for [X], I cannot at this late stage consider a change of venue when the hearing has a guaranteed start of 7 December 2010; where the mother, if she chooses to do so, can appear by video link, and where the issues to be determined are narrow.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 4 October 2010
0
4
2