Smith and Waite
[2014] FCCA 795
•24 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SMITH & WAITE | [2014] FCCA 795 |
| Catchwords: FAMILY LAW – Relocation – whether in the interests of justice and/or convenience to the parties to transfer the matter to the Family Court of Western Australia on the Courts own motion. |
| Legislation: Family Law Act 1975, ss.41, 45 Federal Circuit Court of Australia Act 1999, s.39 |
| Applicant: | MR SMITH |
| Respondent: | MS WAITE |
| File Number: | MLC 1275 of 2014 |
| Judgment of: | Judge F. Turner |
| Hearing date: | 2 April 2014 |
| Date of Last Submission: | 2 April 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 24 April 2014 |
REPRESENTATION
| Counsel for the Applicant: | Ms Goldsworthy |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Solicitors for the Respondent: | Northern Suburbs Community Legal Centre |
ORDERS
All evidence is to be on Affidavit.
Until further order, the child X born (omitted) 2008 live with the mother.
Until further order, the child be available to spend unsupervised time with the father in Perth as follows:
(a)Each Saturday from 12 noon until 6pm WST; and
(b)Each Sunday from 10am until 5pm WST.
Such time to occur upon the father giving the mother, or her legal representative, 7 days written notice of his intention each time to spend time with the child.
Until further order, the parties are restrained by injunction from removing the child from Perth.
The parties MR SMITH born (omitted) 1983 and MS WAITE born
(omitted) 1984 are restrained from removing the child X born (omitted) 2008 from the Commonwealth of Australia without the written consent of the other party, or order of the Court.
The Court requests that the Commissioner of the Australian Federal Police take all necessary steps to immediately place the said child’s names on the Watch List at all points of international departure from Australia for the purpose of preventing the removal of the child from Australia in breach of these orders.
The Marshal of the Family Court of Australia and all officers of the Australian Federal Police and of the Police Forces and Services of the various States and Territories of Australia are required and empowered to give effect to these orders and to take all necessary steps to restrain MR SMITH and MS WAITE, their servants and/or agents from removing the said child from the Commonwealth of Australia.
The matter is fixed for final hearing in MELBOURNE at 10am on
5 June 2014 with an estimated hearing time of one day.Within 21 days, the mother is to file and serve all material on which she intends to rely on at the hearing.
Within 28 days, the father is to file and serve all material on which he intends to rely on at the hearing.
No later than 7 days prior to the hearing, each party is to file and serve an Outline of Case Document including the following:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60CC factors);
(d)a list of other contentions relevant to the decision;
(e)whether the presumption of equal shared parental responsibility applies (s.61DA), and if not the contentions relied upon;
(f)a list of the considerations relevant to considerations of equal and substantial parenting time (s.65DAA);
(g)a list of other relevant considerations (including the relevant section number, eg. ss.60CG, 61F, 65DAB, 65DAC, etc); and
(h)the actual orders sought.
AND THE COURT NOTES THAT:
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out hereto and these particulars are included in these orders.
The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Family Law (Fees) Regulation 2012.
In the event of noncompliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues.
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Smith & Waite is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 1275 of 2014
| MR SMITH |
Applicant
And
| MS WAITE |
Respondent
REASONS FOR JUDGMENT
The parents in this matter were residents of (country omitted). Both came to Australia and gained Refugee Status. They were married on (omitted) 2007 and separated finally in January 2013. They have one child of the relationship X (the “child”) who was born in Australia on (omitted) 2008.
The parties lived in Tasmania. After separation the father moved to Victoria. The mother then relocated from Tasmania to Victoria with the child. The mother previously had raised with the father the prospect of her relocating to Perth with the child. The father was opposed to this and issued proceedings in this Court on 18 February 2014 seeking orders including a restraining order against the mother, to prevent her from relocating with the child outside Victoria.
The papers were served on the mother. The Affidavit of Service states that the papers were served on 22 January 2014. That date must be a mistake as the Application was not filed until 18 February 2014. It appears that the correct date of service was 22 February 2014.
Being aware of the existence of that application, the mother nevertheless relocated with the child to Perth on 14 March 2014, without consulting the father.
The father’s application was in the Duty list on 2 April 2014 where he was represented by Ms Goldsworthy of Counsel. The mother was represented by Ms Leishman who appeared by telephone from Perth. The father sought an order that the mother return to Victoria with the child.
Ms Leishman told the Court:
·That the mother was very unhappy in Victoria and did not have support from the (country omitted) community;
·That she has support from the (country omitted) community in Perth and lives with a woman from that community;
·That the child is very happy in Perth;
·That the child is at school in Perth, is doing well, and has made many friends there;
·That if the mother returns to Victoria, she will have nowhere to live; and
·That it would be unfair to require the mother to return to Victoria with the child as the father seeks to spend limited time with the child and he can spend that time in Perth.
The stark factual situation is that the mother has relocated to Perth with the child without consulting the father. Even worse, she relocated to Perth with the child notwithstanding that she was aware that there were proceedings on foot seeking orders to prevent her from doing so. She did not take the proper course of contesting these proceedings, but moved before the hearing could occur.
Whether to transfer the matter to Perth?
Pursuant to s.41(2) of the Family Law Act 1975 (the “Act”), the State of Western Australia has created a State Family Court, known as the Family Court of Western Australia. That Court has federal jurisdiction under the Act. By proclamation made on 27 May 1976, the Governor-General declared that on or after 1 June 1976, s.41 of the Act applied to the Family Court of Western Australia.
Section 41(3) of the Act provides:
(3)Where, by virtue of a Proclamation under subsection (2), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation, and in relation to proceedings so instituted and proceedings transferred to that court in accordance with this Act, as if references in sections 39, 46, 94 and 96 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly.
Sections 45(2), (3) and (4) of the Act provide:
(2)Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court. However, this subsection does not apply to particular proceedings if:
(a)the first-mentioned court is the Family Court and the other court is the Federal Circuit Court of Australia; or
(b)the first-mentioned court is the Federal Circuit Court of Australia and the other court is the Family Court.
Note 1: For transfers from the Family Court to the Federal Circuit Court of Australia, see section 33B.
Note 2: For transfers from the Federal Circuit Court of Australia to the Family Court, see section 39 of the Federal Circuit Court of Australia Act 1999 .
(3)A transfer under subsection (2) may be made on the application of any party to the proceedings.
(4)A transfer under subsection (2) may be made on the transferring court's own initiative if the transfer is:
(a)from a Family Court of a State to a court of summary jurisdiction prescribed in regulations made for the purposes of section 44A; or
(b)from a court of summary jurisdiction prescribed in those regulations to a Family Court of a State.
The Court may transfer matters to the Family Court of Western Australia if it appears that it is in the interests of justice or of convenience to the parties. It can transfer a matter on the Court’s own initiative. Neither party has applied for a transfer.
The first question is whether it is in the interests of justice to transfer the matter? [s.45(2)]. The Court finds that where the mother decided to relocate knowing that proceedings were already pending in Victoria on the issue of relocation, it is not in the interests of justice to require the father to conduct his case in Western Australia.
Also under s.45(2), the Court must consider the ‘convenience to the parties’. If the mother returns to Victoria, the mother, the child, and perhaps the person with whom the mother resides in Perth, will have to travel to Melbourne and then perhaps return to Perth, if allowed to do so by the Court. Possibly the mother and the person she resides with will be required for cross-examination. If the matter is transferred to Western Australia, only the father will have to travel. A hearing in Western Australia would be more convenient to the mother and the child.
The Court must also consider r.8.02 of the Federal Circuit Court Rules 2001 (the “Rules”) and s.39(4) of the Federal Circuit Court of Australia Act1999 (the “FCC Act”).
Rule 8.02 of the Rules provides:
(1)The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2)Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3)Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(4)In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a)whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b)whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c)whether the proceeding will be heard earlier in the Court;
(d)the availability of particular procedures appropriate for the class of proceeding;
(e)the wishes of the parties.
Note: See subsections 39(3) and (4) of the Act for matters the Court must have regard to in deciding whether to transfer a proceeding to the Federal Court or the Family Court.
Section 39(4) of the FCC Act provides:
(4)In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a)any Rules of Court made for the purposes of subsection 40(4); and
(b)whether proceedings in respect of an associated matter are pending in the Family Court; and
(c)whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d)the interests of the administration of justice.
Section 39(4)(b) – The Court is not aware of any proceedings in respect of an associated matter pending in the Family Court of Western Australia.
Section 39(4)(c) – The resources of the Federal Circuit Court are sufficient to hear the matter.
Rule 8.02(4)(a) – There are questions of general importance being:
·Whether a parent is free to relocate with a child to another State, without the consent of the other parent? and
·Whether that parent is free to relocate when they are aware that proceedings are pending that are directly relevant to that issue?
Rule 8.02(4)(b) – If transferred, the proceedings are likely to be heard at less cost and more convenience to the parties than if not transferred (see comments under s.45(2) above).
Rule 8.02(4)(c) – The Court is not able to determine which Court will be able to hear the matter earlier, but it can be heard in this Court on
5 June 2014.
Rule 8.02(4)(d) – The Court is not aware of the availability of any particular procedure appropriate for these proceedings in the Family Court of Western Australia. The Federal Circuit Court has special relocation lists but this proceeding would not be heard earlier if transferred to that list as the next available date for mention in that list is 21 May 2014.
Rule 8.02(4)(e) – The transfer to the Family Court of Western Australia can be made on the Court’s own motion [r.8.02(1)]. Neither party has expressed a view.
The Court finds that it is not in the interests of justice to transfer the matter to the Family Court of Western Australia.
The Court makes orders and directions as appear above.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge F. Turner
Associate:
Date: 24 April 2014
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