Stott & Stott
[2021] FCCA 1690
•23 July 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Stott & Stott [2021] FCCA 1690
File number(s): MLC 12498 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 23 July 2021 Catchwords: FAMILY LAW – interim – change of forum – competing transfer applications based on convenience to each party – where mother seeks transfer of matter to Family Court of Western Australia – where father seeks transfer of matter to Melbourne Registry of the Federal Circuit Court – question as to whether Court has power to transfer matter to Family Court of Western Australia – where Court finds that it does have power to order transfer to Family Court of Western Australia – matter transferred to Family Court of Western Australia Legislation: Family Law Rules 2004 (Cth), rr 1.2, 11.17 and 11.18
Federal Circuit Court Rules 2004 (Cth), r 8.01 and r 1.06
Federal Circuit Court of Australia Act1999 (Cth), ss 39, 42 and 57
Family Law Act1975 (Cth), ss 41(1), 45(2), 60CC, and 68L(2); pt V div 2 and div 3 and part XI div 2)
Cases cited: Brunton & Kramer [2014] FCCA 131 at [35] to [37]
Collins and Ricardo (No.2) [2015] FamCA 779 at [26]
Project Blue Sky v ABA [1998] HCA 28 at [69] to [71]
Smith and Waite [2014] FCCA 795
Number of paragraphs: 52 Date of hearing: 7 July 2021 Place: Hobart Solicitor for the Applicant: Ms M Scolyer of Murdoch Clarke Counsel for the Respondent: The Respondent in person Counsel for the Independent Children's Lawyer: Mr P Fitzgerald Solicitor for the Independent Children's Lawyer: Legal Aid Commission of Tasmania ORDERS
MLC 12498 of 2020 BETWEEN: MR STOTT
Applicant
AND: MS STOTT
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
23 JULY 2021
THE COURT ORDERS THAT:
1.Pursuant to Rule 1.06 of the Federal Circuit Court Rules 2001, the requirements of the Rules of Court for filing, service and hearing of an application in a case by the mother for transfer of proceedings to the Family Court of Western Australia is dispensed with.
2.These proceedings, including the father’s contravention application filed on 7 July 2021, be transferred to the Family Court of Western Australia.
3.The listing on 2 August 2021 at 2:45pm in the Hobart Registry is vacated.
AND THE COURT NOTES:
A. That a request should be made to Legal Aid in Western Australia for a grant of aid to an Independent Children’s Lawyer in that State, so to ensure the child continues to receive independent representation according to the order made on by this Court on 9 February 2021.
B. The Application for Divorce filed by Mr Stott on 8 July 2021 will remain listed in the Federal Circuit Court of Australia on 25 August 2021 at 11:30am.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Stott & Stott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TAGLIERI
These are parenting proceedings between Mr Stott (“the father”) and Ms Stott (“the mother”) regarding arrangements for their child X (“the child”). The father commenced proceedings on an urgent basis on 16 November 2020 by way of an Initiating Application filed in the Hobart Registry. This application was referred to a Registrar in the Melbourne Registry and the documents were entered into the Court computer system in that jurisdiction, however in her order of 19 November 2020 Registrar Mathews noted that:-
A.For the avoidance of doubt, this matter was filed in the Hobart registry of the Federal Circuit Court of Australia, noting that the Mother intends to seek a transfer of this matter to Western Australia.
There are current interim orders which were made by consent on 7 June 2021. These provide that the parties have equal shared parental responsibility, that the child spend time with the father during the July 2021 school holidays, for practical arrangements to facilitate the holiday time and various injunctive orders.
The father made an Application in a Case dated 23 June 2021 which was before me for interim hearing on 7 July 2021. At that time, there were competing applications regarding the venue in which the substantive issues ought to be heard and determined. The father’s application in a case seeks that the matter be transferred to the Melbourne Registry. The mother having previously indicated that she sought an order that the matter is transferred to the Family Court of Western Australia opposes the transfer to Victoria. She has not filed a written application seeking transfer of the proceedings to Western Australia.
The father’s solicitor filed a Case Outline on 6 June 2021 and relied upon it. Three affidavits filed by the father were read into evidence, being the father’s affidavits of 15 June 2021 and 8 April 2021 and an affidavit of his solicitor of 15 June 2021. His argument was structured in terms of Rule 11.17 and the relevant considerations in Rule 11.18 of the Family Law Rules 2004. He submitted that the public interest is served by transfer to Melbourne, that the matter will be dealt with at less cost and inconvenience to the parties as the they both have accommodation in Victoria, and that the father wishes the matter be transferred to the Melbourne Registry while the mother has not provided evidence of her wishes.
The father deposes in his affidavit filed contemporaneously with his Application in a Case that he now resides in Victoria with his current partner, and that they are expecting a child in 2021. He states at paragraph 4:-
“I originally initiated these proceedings in the Melbourne registry of the Federal Circuit Court. They were transferred to the Hobart registry when I moved to Tasmania work [sic] in October 2020.”
This evidence is at odds with the notation to the orders of Registrar Mathews on 19 November 2020. For present purposes, the Registry of origin of the proceedings seems irrelevant as both parties have participated in the proceedings as a Hobart Registry matter.
The father’s affidavit also outlines that the mother’s immediate and extended family currently reside in Victoria, including her children from a previous relationship. From a historical perspective, he states that the parties lived in Victoria for the majority of their five year relationship.
The mother, who is unrepresented, has not filed any documents in response to the Application in a Case. She attended the hearing by way of telephone communication. At the hearing she asked that the matter be transferred to the Family Court of Western Australia. Her reasons for seeking transfer of the proceedings to Western Australia were said to be because:-
·she and the child currently reside in Western Australia;
·the costs of travelling to Victoria for the purposes of court proceedings would be prohibitive, especially as she is reliant on Centrelink for income;
·She disputed the father’s claims that she would have support and accommodation from her family in Victoria, and so she said she had no less support in Western Australia than Victoria while attending court.
·She claimed not to have been able to obtain representation from Legal Aid to date and if the matter were to continue in either Melbourne or Hobart while she is in Western Australia, she would not be eligible for legal aid.
·She suffers from an arthritic condition that impacts on her capacity to travel and fly by plane and such travel was likely to be impacted by Covid-19 restrictions.
An order had been made prior to the hearing on 7 July for the child to be independently represented pursuant section 68L(2) of the Family Law Act 1975 (Cth). The Independent Children’s Lawyer (“the ICL”) appearing on the transfer application by the father made submissions that:-
·He did not oppose the transfer of proceedings to Victoria as it was not appropriate for the proceedings to remain in Tasmania as neither party or the child were in this State; and
·This Court does not have jurisdiction to transfer proceedings to the Family Court of Western Australia. He cited a number of authorities said to support this.
The ICL noted that the order of Judge McGuire of 9 February 2021 originally appointing an ICL contains a request that the Legal Aid Commission of Tasmania fund that appointment. He submitted that in the event that the matter is transferred to Victoria, the order of 9 February should be varied to reflect that future representation of the child in Victoria should be requested of the Legal Aid Commission in the corresponding jurisdiction.
The ICL told the Court that he was troubled by the mother’s assertion that she has been unable to obtain Legal Aid funding as she resided in a different jurisdiction from that in which the matter was proceeding. He outlined the ‘forum test’ applied by the Legal Aid Commissions, which would allow for the Commission in the jurisdiction in which the matter is heard to consider applications for aid from parties regardless of where they reside.
THE RELEVANT LAW
The father’s counsel referred the court to Collins and Ricardo (No.2) [2015] FamCA 779, citing [26] to support the contention that there was established practice in this court of transferring proceedings between registries if it was in the public interest to do so.
The ICL submitted that in the limited time he had, he found no authority that squarely dealt with the issue of the jurisdiction of the Federal Circuit Court to transfer a proceeding to the Family Court of Western Australia. He referred the court to Smith and Waite [2014] FCCA 795, submitting respectfully that Judge Turner was in error to conclude there was such jurisdiction.
In Smith and Waite, Judge Turner refused to transfer a proceeding from the Federal Circuit Court to the Family Court of Western Australia, but that was on the basis that the court was not satisfied it was in the interest of justice to do so. The ICL submitted respectfully, that in addressing the relevant statutory provisions, the judge had erred in concluding that there was jurisdiction. It was submitted that the Court erred in finding its power to transfer in section 39(1) of the Federal Circuit Court of Australia Act1999 and the rules thereunder, particularly rule 8.02. The error was submitted to lie in the judge treating the reference to “the Family Court” in section 39 as including a reference to the Family Court of Western Australia.
I agree that the reference to “the Family Court” in section 39 of the Federal Circuit Court Act, is a reference to the Family Court of Australia, the Commonwealth court established under the Family Law Act 1975. However, the submissions by the ICL ignore paragraphs 8 to 13 of Judge Turner’s reasons for decision. It is apparent from these passages of the reasons that her Honour was also relying on section 45(2) of the Family Law Act 1975 as the basis for concluding there was power to transfer from this Court to the Family Court of Western Australia. I agree that her Honour is correct in that regard for the reasons that follow.
Section 45(2) relevantly provides that:-
“where there are pending in a court proceedings that have been instituted under this Act ……. 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.”. [emphasis added]
Subparagraphs 45(2) (a) and (b) then provide exceptions to the jurisdiction and power created by section 45(2), but those exceptions are not relevant as they relate to transfers between the Family Court of Australia (Commonwealth) and Federal Circuit Court of Australia.
Accordingly, in my view, other than as provided in the exceptions, where there are validly instituted proceedings pending in a court with jurisdiction to determine matters under the Family Law Act 1975, whatever court that may be (the first court), section 45(2) enables that court to transfer the proceedings to another court with jurisdiction under the Family Law Act 1975, properly conferred or invested upon it (the second court) by the Family Law Act 1975.
Section 41(1) of the Family Law Act 1975 provides for establishment of State courts to be known as Family Courts. Although the Family Court of Western Australia is established pursuant to State legislation, it is nevertheless a court contemplated within section 41(1).[1] Courts established under section 41(1) exercise conferred or invested jurisdiction in respect of specific matrimonial causes pursuant to the Family Law Act 1975 and the Family Law Rules 2004.[2] This is because pursuant to section 41(3) of the Family Law Act 1975, the reference to a Supreme Court of a State in section 39 is taken to refer to the Family Court of Western Australia.
[1] Proclamation dated 4.11.91 and gazette No. S300 of 1991
[2] Section 41(2) and 41(3) of the Family Law Act 1975.
The reasoning outlined in [16] to [19] above conforms to recognised and well established statutory interpretation principles,[3] including, that words used in provisions be given their ordinary English meaning and ambiguity if any be resolved by contextual interpretation of relevant provisions. There is no sound basis for limiting the meaning of “another court” in section 45(2) of the Family Law Act 1975 to only Commonwealth courts exercising family law jurisdiction. My reasoning is also consistent with the views of Judge Phipps in Brunton & Kramer [2014] FCCA 131 at [35] to [37]. Parenting matters are not excluded matrimonial causes.
[3] Project Blue Sky v ABA [1998] HCA 28 at [69] to [71]
The statutory scheme of Division 2 and 3 of Part V of the Family Law Act 1975 reveals that it was intended by Parliament to provide for State or Territory courts to be established to exercise jurisdiction under and in accordance with the Family Law Act 1975 in regard of non-excluded matrimonial causes. Section 42(1) read together with subsections 41(1), 41(2) and 41(3) of the Family Law Act 1975 makes this relatively plain when considered in the context of the other provisions in Part V of that Act. Establishment of the Family Court of Australia, its functions and jurisdiction and exercise of powers only exist because of the provisions Family Law Act 1975 to which I have referred. I see no basis for limiting the meaning of “in another court having jurisdiction under this Act and “the other court” in section 45(2) to exclude the Family Court of Western Australia. This is especially so, because “court” is defined by section 4 of the Family Law Act 1975, to be “any court” exercising jurisdiction in proceedings “by virtue of this Act”.
As I reject the submission that there is no jurisdiction to transfer these proceedings to the Family Court of Western Australia, it is necessary for me to evaluate the competing applications by the applicant and respondent. Although the mother had not made a written application for transfer, given that she is unrepresented and the other parties are legally represented in the absence of prejudice, I consider I should entertain the oral application. There was no particular prejudice identified by counsel upon my enquiry.
The court has latitude and discretion to dispense with formal requirements in cases of unrepresented parties under Rule 1.12 of the Family Law Rules 2004 and Rule 1.06 of the Federal Circuit Court Rules 2001. Sections 42 and 57 of the Federal Circuit Court Act 1999, also convey that proceedings be dealt with efficiently and without undue formality.
THE COMPETING TRANSFER APPLICATIONS
Regarding the mother’s application, as section 45(2) of the Family Law Act 1975 applies, I am to determine if it is in the interests of justice or convenience to the parties that the proceedings be dealt with by the Family Court of Western Australia.
The father’s submissions, relied on Rule 11.17 and Rule 11.18 of the Family Law Rules 2004, but the Federal Circuit Court Rules 2001, specifically provide for transfers between registries of the Federal Circuit Court[4]. The considerations to be taken into account are narrower under Rule 8.01(2) of the Federal Circuit Court Rules 2004 than Rule 11.18 of the Family Law Rules 2004 although there is some overlap. Rule 8.01(2) also permits a judge of the Federal Circuit Court to have regard to “any other relevant matter”, indicating a broad and unfettered discretion regarding considerations thought to be relevant in any given case.
[4] Rule 8.01(1)
Pursuant to both section 45(2) of the Family Law Act 1975 and the Rule 8.01 of the Federal Circuit Court Rules 2001, the convenience of the parties is to be considered as is the cost of proceeding in the alternative court/registry. The latter consideration of cost is a component of the consideration of what is in the interests of justice pursuant to section 45(2) of the Family Law Act 1975.
Given that the parties have elected to live in different states for their own personal reasons, what is more convenient differs for each of them. The mother also disputes much of the father’s evidence as to what is convenient for her.
The mother resides in Western Australia with the child and I accept that it is more convenient for her and likely less disruptive to the child to have the proceedings in Western Australia. This would avoid long air flights and significant costs being incurred by her. Conversely, the father resides in Victoria and seeks to have the child relocate to live with him. He has witnesses in Victoria and desires to avoid travel away from his new partner who is pregnant and may give birth at a time during which he is required to be in Western Australia if the proceedings are transferred there. It would be more convenient for him for the proceedings to be transferred to the Melbourne registry.
Noting the competing conveniences to the parties, in my view, I should be guided in this case by the interests of justice including regard for the respective costs of proceedings, in arriving at finalisation of the proceedings in the best interests of the child. In relation to the father’s transfer application, pursuant to Rule 8.01(2)(d) of the Federal Circuit Court Rules 2001, I also consider the following factors to be relevant:-
(a)that the history of the parties’ relationship and residences;
(b)circumstances at separation;
(c)the parties participation in these proceedings; and
(d)the ease and practicality attaching to the parties each being given opportunity to call witnesses and present their cases; and
(e)personal circumstances of each party and how they impact on a fair hearing.
As these factors broadly are relevant to what may be in the interests of justice, I consider they can equally be considered in relation to the mother’s transfer application.
CONSIDERATION AND CONCLUSION
The parties and the child were residing in Western Australia when they separated. Prior to that the affidavit evidence is that they had moved fairly frequently for the father’s work. According to the father, the move to Western Australia was for the mother’s personal reasons but regardless, he agreed to move there. The parties have lived in South Australia, Western Australia and Victoria. Movement and travel around Australia does not appear to have been strongly opposed by either party in the past.
The evidence suggests that the mother excluded the father from the family home to achieve separation, but while he remained in Western Australia he did have contact with the child and mother.
The father says he moved back to Victoria for mental health and family support. He later moved to Tasmania for work. He has moved around since separation, albeit for his own good reasons.
Conversely the mother has remained in Western Australia and intends to remain there. Interim orders were consented to that she live there with the child.
The mother has not filed any substantial materials in these proceedings. She states that she has been without legal aid and therefore must represent herself and cannot produce materials and file documents. I have some difficulty accepting this claim as there are many community legal services and the ICL in this case put in issue the contentions made about being unable to secure legal aid.
I have considerable affidavit material from the father addressing what witnesses he would call, the family relationships between the child and other significant persons. The evidence is that relevant witnesses are mostly resident in Victoria and the cost of them giving evidence in Western Australia is higher. The mother did not dispute this evidence.
If the proceedings are conducted in Victoria, the mother and child would need to travel for a defended hearing at a minimum, incurring the costs that entails. I accept it would be a greater financial imposition on her to undertake the travel than the father, who has full-time employment.
Neither party made submissions about the capacity for use of audio-visual equipment and whether there were compatible means of conducting procedural hearings and appointments for Family Reports, mediations and defended hearings. These matters are important given the relevance of practical convenience for each party to present their case and be fairly heard.
The mother suffers from an arthritic condition. The father admits this, but he disputes that it incapacitates air travel or would cause an unreasonable burden on the mother to fly between Perth to Victoria. The mother claimed that this would involve great personal cost. While her claim may be exaggerated, I accept that she would suffer some additional pain or discomfort during and after a flight.
The mother asserts that she cannot qualify for a grant of legal aid for legal representation if the proceedings are in Victoria. The father disputes this and the submissions by the ICL are corroborative of his position. I suspect the mother has not exercised all her efforts to obtaining legal aid as she admitted she had not made an application for legal aid.
The mother works part-time and also receives Centrelink benefits. I can infer that her income is relatively low. Although I have no information about the amount of the father's earnings, he states in his affidavit of 8 April 2021 that he is employed and has offered on a number of occasions to pay for the mother and child’s flights to Victoria to facilitate time between him and the child and the child's siblings.[5] This suggests greater financial capacity to meet travel costs and other incidental costs of the proceedings.
[5] [40](3)(d) of affidavit
The father's counsel submitted that it would be more advantageous if the proceedings are heard in Victoria and that is the order that the Court should make.
It was also submitted for the father that if there was jurisdiction to transfer the proceedings to the Family Court of Western Australia, it was one hour away from where the mother lived, so the burden of travel between her home and the registry still existed. The Court could not be confident that the mother would actively participate if proceedings were in Western Australia. Emphasis was placed upon the mother’s non-compliance and engagement to date.
I do have some concerns about the mother’s lack of compliance with procedural directions to date. However, as these proceedings concern parenting arrangements for the child, it is in the interests of justice to conduct these proceedings where it is more likely to obtain relevant information enabling final determination of the substantive proceedings, in the best interests of the child accounting for the considerations in section 60CC of the Family Law Act 1975.
Although I cannot be certain that the mother will better participate in proceedings in Western Australia, on balance I consider that is more likely, than if the proceedings are in Victoria. The child has remained in Western Australia since separation in February 2020 and the mother is more likely to engage in these proceedings as it will be more convenient for her and the child.
No information was put before me about how quickly proceedings could be heard in either the Family Court of Western Australia or Melbourne registry of this court. This factor which is often material to the interests of justice, does not assist in the determination to be made in this case.
Finally, it is highly relevant at this present time in Australia that there are frequently changing restrictions on travel and mobility of persons across the country due to Covid-19 outbreaks. In recent weeks, there have been lock-downs in Perth, Brisbane, Sydney and, as of midnight 16 July 2021, Victoria. These restrictions have been sudden and rapidly change. In my view this justifies an increased need to rely on audio-visual technology to facilitate hearings and court events. This need is imperative to ensure that cases before the court can proceed without delay, particularly where the interests of children are concerned.
Increasingly, the functions of courts in the family law jurisdiction will be discharged by utilising the flexibility afforded by Division 2 of Part XI of the Family Law Act1975 (Use of video link, audio link and other means). In this case, it can safely be anticipated that these means can alleviate the concerns of the father about calling witnesses, family consultant interviews and inconvenience to him, should the proceedings be conducted in Western Australia.
The father to his credit is motivated to spend time with the child and has actively pursued these proceedings. He is to be commended for doing so and I am confident given the history of the proceedings that the will continue to engage.
For the foregoing reasons, I have reluctantly concluded that the proceedings should be transferred to the Family Court of Western Australia. I note that that court also has the powers in Division 2 of Part XI of the Family Law Act 1975 concerning use of technology for facilitation of hearings, being conferred upon it because of section 42(1) of the Family Law Act 1975 which provides:-
(1)The jurisdiction conferred on a court, or with which a court is invested, by this Act shall be exercised in accordance with this Act and the applicable Rules of Court.
There will be an order that these proceedings be transferred to the Family Court of Western Australia, and a request to list the matter before the Registrar of that court at the earliest opportunity for directions.
Further, to facilitate a smooth transfer of proceedings it should be noted that:
(a)The entire proceedings are to be transferred, including the Contravention application filed by the father on 7 July 2021; and
(b)A request should be made by the Registrar of the Family Court of Western Australia for a grant of aid from Legal Aid in Western Australia, to ensure that the child continues to be receive independent representation according to the order already made on 9 February 2021.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 23 July 2021
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