Vale and Vale (No 2)

[2016] FamCA 586

FAMILY COURT OF AUSTRALIA

VALE & VALE (NO 2) [2016] FamCA 586

FAMILY LAW – PRACTICE & PROCEDURE – Oral Application to transfer proceedings from one Registry to another – Application refused

Family Law Act 1975 (Cth)
Family Law Rules 2004

APPLICANT: Ms Vale

RESPONDENT: Mr Vale

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

FILE NUMBER: SYC 7455 of 2012

DATE DELIVERED: 18 July 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 18 July 2016

REPRESENTATION

APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Mr Ulbrick, G & D Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. The Applicant’s oral application made today for a transfer of the proceedings to the Sydney Registry of the Family Court of Australia is dismissed.

IT IS NOTED

A.It is inappropriate to communicate directly with Chambers other than in exceptional circumstances and any such necessary and exceptional communication must be with the consent of all parties and contemporaneously copied to all parties.

B.All communications, unless otherwise directed, should be via the Registry to the attention of the case manager or to the National Enquiry Centre on 1300 352 000.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vale & Vale (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 7455 of 2012

Ms Vale

Applicant

And

Mr Vale

Respondent

And

The Independent Children’s Lawyer

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me, as part of a number of interlocutory Applications listed for determination today, either:

   a)as contained within one of those documents filed by Ms Vale, an Application for an order transferring the proceedings to the Sydney Registry of this Court; or

   b)her oral Application, made by leave today, seeking such order. 

2. Such application is made possible pursuant to Rule 11.17 of the Family Law Rules, which provides that a party may apply to have a case heard at another place or transferred to another Registry exercising jurisdiction under the Family Law Act 1975 (Cth).

3. Rule 11.18 of the Family Law Rules outlines those matters to be considered by a Court in deciding whether to transfer a proceeding from one Registry of the Court to another.

4. The application by Ms Vale is opposed by the father’s legal representative on his behalf and also by Mr Andrew, who appears on behalf of the Independent Children’s Lawyer. 

5. The factors to be considered in determining an application for transfer between Registries include: the public interest;  whether the case, if transferred, is likely to be dealt with at less cost to the parties, at more convenience to the parties or earlier;  the availability of a judicial officer specialising in the type of case to which the application relates;  the availability of particular procedures appropriate to the case;  the financial value of the claim - which does not seem appropriate or relevant in this parenting application;  the complexity of facts, legal issues, remedies and procedures;  and adequacy of available facilities. 

6. In support of her Application, Ms Vale makes the following submissions, in summary: 

   a)the Court would be persuaded to make an order transferring the proceedings to the Sydney Registry because she currently lives there and has no accommodation available to her in Brisbane;  and

   b)she has access to a greater support network in Sydney which would assist her during the course of any hearing and she would not have access to the same in Brisbane;  and

   c)it would be more convenient and easier if the proceedings were heard in Sydney because it would eliminate the requirement for her to travel and would permit her, as I have said, to garner the support of family and friends;  and

   d)the majority of witnesses are in Sydney, although there is one – a specialist medical practitioner of some sort - based in Queensland;  and

   e)she would be able better to prepare her material if she were able to do so in Sydney and rely upon the accommodation recently obtained by her; and

   f)it would eliminate the cost to the father of having to travel - and have his legal representative travel - to Brisbane;  and

   g)it would be easier on the children. 

7. In opposing the Application, Mr Ulbrick, for the father, made the following submissions: 

   a)the proceedings are in this Registry of the Court as a consequence of the mother’s Application in about mid-2013 for the transfer of the proceedings here because she was then living in premises located at G Town;  and

   b)there is no evidence to suggest that such premises are not available to her should the proceedings continue before the Court in this Registry; and

   c)if the matter were now transferred to the Sydney Registry of the Court, there would be significant delay in its finalisation (when compared to the possibly available trial dates here in mid-November of this year) it being unlikely that the matter would be listed for final hearing at any time before, at the very best, it seems, toward the end of next year and it being likely that its first appearance before a Registrar in the Sydney Registry may well occur in about October of this year;  and

   d)there would be a loss of the resources already put into the matter as a result of its progression through and under the auspices of the management of the Brisbane Registry of the Court and, in particular, the involvement of Mr E in Brisbane in the preparation of two reports. 

8. In essence, Mr Ulbrick submitted that, if the matter was transferred there would, in essence, be a starting from scratch.  There would also be costs associated with the transfer of the proceedings in that the currently appointed Independent Children’s Lawyer would have to be replaced, it would seem, by another appointment, perhaps, or at least the file would need to be transferred to legal representatives in New South Wales. 

9. He also made the submission that, insofar as the existing Orders are concerned and the impost upon the children of the same, they provide for the children to travel on three occasions to spend supervised time with their mother, supervised by Mr E, and that his client, the father, was prepared to pay the children’s costs of that with Ms Vale to pay her own costs.  He also raised, in submission, the concern that a transfer of proceedings at this stage would, in essence, see the children have to be reinterviewed by someone other than Mr E, with the consequent potential impact upon them. 

10. Mr Andrew, who appeared on behalf of the Independent Children’s Lawyer, in opposing Ms Vale’s Application to transfer, reiterated some of the submissions, in essence, made by Mr Ulbrick and joined in them.  He made particular reference to paragraph 19 of the Reasons for Judgment delivered by the Principal Registrar on 11 February 2016 wherein reference is made to the delay in final hearings as between the Brisbane Registry and the Sydney Registry, the investment of public funds to date in the appointment of the current Independent Children’s Lawyer and the preparation of the expert reports - those being, of course, matters to which I have already referred in the course of outlining and recording Mr Ulbrick’s submissions. 

11. Mr Andrew also made the submission that there was, in essence, no way that this matter would come to final hearing anywhere near as quickly as it can in this Registry if it were transferred to Sydney and that there would be, in essence, a significant loss of public funds by way of costs thrown away as a consequence of any transfer.  Mr Andrew also submitted, in essence, that there would be costs associated with the mother’s Queensland-based witness appearing in Sydney.  He concluded his submissions by iterating that, for Ms Vale, the preparation of her material and preparing for trial would, in essence, be the same, irrespective of where that preparation was carried out. 

12. In her reply, Ms Vale re-emphasised her concern about the lack of support available to her, including the lack of resources available to her in presenting her case if the matter remains for hearing in this Registry.  She also urged that this time was an appropriate time for a transfer order, given that Mr E is on some leave in or around November of this year and, therefore, it would be appropriate to make an order transferring the proceedings at this point.  She emphasised that, whilst she was the person who sought the transfer of the proceedings in 2013, it was in fact in 2013 and, thus, some three years ago that that decision was made and acted upon and that there have been a change of circumstances such that it is no longer appropriate, in essence, that the matter remain for hearing out of this Registry. 

13. In arriving at my determination, I do not place any weight upon the fact that Ms Vale was the party who moved the Court in 2013 to transfer the proceedings to this Registry.  I accept her submission that three years have passed and, in essence, that circumstances change or have changed relevantly as between now and then. 

14. I do, however, take into account and place significant weight upon the public interest in the sense of a final determination of this matter being possible before the end of this year if it remains in the Brisbane Registry of this Court, as opposed to the significant delay which will attend its finalisation if an order is now made for its transfer to the Sydney Registry of this Court. 

15. I also take into account and place significant weight upon the fact that, if an order for transfer of the proceedings was now made, there would be significant costs thrown away as a consequence of the necessity which would follow in relation to the transfer of the file to an Independent Children’s Lawyer; also, I suspect delays would be associated with the appointment of a replacement Independent Children’s Lawyer.  I suspect further cost may attend if it were thought appropriate for the preparation of additional Family Reports by someone other than Mr E. 

16. In the event that it was determined to be appropriate that Mr E’s reports continue to be received into evidence, there would be, of course, the costs associated with him attending at the hearing in Sydney also. 

17. I take into account that there may well be difficulties for Ms Vale in obtaining accommodation if the matter remains in this Registry.  However, I note that, since I am in a position today to advise the parties of the anticipated trial dates in mid-November of this year, that will afford to her an appropriate timeframe within which to make appropriate arrangements for her own accommodation during that week long period. 

18. Of course, if the matter remains in Brisbane, there is no necessity for Ms Vale to undertake her preparation for trial in Brisbane.  Rather, she will be in a position to continue her preparations from Sydney or wherever it is that she may be living at the particular time. 

19. I also take into account the information provided by Ms Vale to the Court that she has been homeless from the beginning of May 2016 until 3 July 2016. 

20. I take into account the availability of witnesses:  for example, Mr E based in Brisbane and also a witness, a medical specialist, adverted to by Ms Vale who is, it seems, based and located in Queensland.  I take into account, then, that the costs of that person being made available for cross-examination (if required) are likely to be less if the hearing proceeds in Brisbane as compared to what they may be if it proceeds to be heard in Sydney if it were transferred. 

21. I take into account also and place particular weight upon the fact that the matter is able to be afforded a final hearing date for five days in November of this year in this Registry.  I take that into account, particularly in this case, because it seems from any perusal of the material that a resolution - by the making of final orders after affording the parties the opportunity to cross-examine - is something that is much more likely to be in the best interests of the children. 

22. I take that into account in particular given, as I understand it, that, in the mother’s case, there are allegations of family violence as against herself and the children and that, in the father’s case, there are allegations that the children are at risk of being subjected to emotional harm as a consequence of their interaction with their mother.  Both of those issues, as I understand it from the material I have been able to read thus far, rest upon a number of contentious and disputed factual assertions – such assertions can only be resolved in the most appropriate way by affording the parties the opportunity to undertake cross-examination and to be heard in submission following that cross-examination. 

23. Therefore, the ability to allocate to this matter relatively speedy hearing dates in November 2016 will enable each of the parties, as well as the Independent Children’s Lawyer, to address those issues which by their nature remain difficult to conclude on an interim basis given the absence of the availability of cross-examination at such hearings. 

24. I have taken into account, of course, that Ms Vale wishes the matter to be transferred to the Sydney Registry of the Court.

25. But, for the reasons I have expressed, whilst there may be additional costs and additional inconvenience to the parties, I am persuaded, in the exercise of discretion, that the availability to determine the matter earlier and to afford to the children relief from continued involvement in the proceedings outweighs either the individual or cumulative costs of inconvenience and/or other costs, be they financial or otherwise. 

26. I am also satisfied that being able to tell the parties today of the hearing dates will ensure that Ms Vale is able to make appropriate arrangements to be supported by family and/or friends for the week during which the matter will be heard. 

27. For those reasons, then, I refuse the application for an order transferring the proceedings to the Sydney Registry of this Court. 

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 18 July 2016.

Associate:                 

Date:    18 July 2016