Whitcomb and Whitcomb (No.2)

[2020] FCCA 2380

FEDERAL CIRCUIT COURT OF AUSTRALIA

WHITCOMB & WHITCOMB (No.2) [2020] FCCA 2380

Catchwords:
FAMILY LAW – Parenting Proceedings – application for contravention – transfer of proceedings to another registry – need to balance convenience for the parties in circumstances where hearings may be conducted in-person or remotely.

Legislation:

Federal Circuit Court Rules 2011 (Cth), r.8.01.

Cases cited:

Re A(Children) (Remote Hearing: Care and Placement Orders) [2020] EWCA Civ 583,
Re B(Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584.

Applicant: MR WHITCOMB

Respondent: MS WHITCOMB

File Number: PAC 6361 of 2017

Judgment of: Judge Harman

Hearing date: 3 August 2020

Date of Last Submission: 3 August 2020

Delivered at: Parramatta

Delivered on: 3 August 2020

REPRESENTATION

Solicitors for the Applicant: In person

Solicitors for the Respondent: Glenn R Walters & Co

ORDERS

1. Transfer these proceedings to the Brisbane Registry of the Federal Circuit Court.

2. List the matter for directions before Judge Jarrett on 6 November 2020 at 9.30am.

3. Vacate all future listings of the proceedings which were scheduled to occur before this Court, namely, 10 September 2020 and 30 September 2020, being listings before Judge Harman and Judge Dunkley respectively.

IT IS NOTED that publication of this judgment under the pseudonym Whitcomb & Whitcomb (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

No. PAC 6361 of 2017

MR WHITCOMB

Applicant

And

MS WHITCOMB

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court today for the first occasion in this tranche of litigation. 

2. The matter has some history before the Court, having previously been the subject of a final hearing and determination, and subsequent appeal. 

3. The Application that is filed on this occasion is an Application for Contravention.  The Application contains one allegation, namely, that on 29 March 2020, the respondent, not wanting to comply with the consent orders, tried to prevent the applicant from spending time with the child, using COVID-19 as an excuse.  There are further particulars provided, but in any event, that is the singular allegation raised.

4. The proceedings are also subject of an Application in a Case, not before the Court today, but seeking disqualification on the basis of actual bias.  The merits of that Application need not be considered for present purposes, particularly as it is not before the Court today. 

5. There is now a second Application for Contravention that is, for some curious reason best known to the system, listed before another Judge.

6. The further Application for Contravention was filed on 31 July 2020, that is, the business day prior to this mention.  That Application would appear to have been the subject of a mention before the COVID Registrar and one can only presume, thus, that the proceedings have some connection with that list. 

7. For reasons that are completely inexplicable, indeed, nonsensical, that Application has been listed before a different judicial officer on 30 September 2020 - thus, a third date for the matter. 

8. The applicant in the proceedings is Mr Whitcomb, the father of a child the subject of Final Parenting Orders, which Orders are suggested to be the subject of contravention by the current Application. 

9. The child’s mother, Ms Whitcomb, is the respondent. 

10. Mr Whitcomb lives in Region G.  Ms Whitcomb lives in Town E, Queensland.

11. In relation to the proceedings, I propose to transfer them to the Brisbane Registry of the Court. 

12. An application for change of venue is dealt with under rule 8.01 of the Federal Circuit Court Rules 2001 (Cth). Thereunder, I must have regard to the following.

Convenience of the parties

1. This is of very little assistance in this case. 

2. The mother retains legal representatives in Sydney at present, but on the basis, no doubt - not intending to be in any fashion pejorative of that retainer - that those legal representatives are familiar with the matter, having dealt with it at the latter stages of the last proceedings and the appeal.  At that point, of course, Ms Whitcomb lived with the children in Sydney.  She has since relocated to Queensland.

3. As is pointed out by Mr Whitcomb, the proceedings are presently, as a consequence of COVID-19 restrictions, dealt with remotely, that is, by telephone or, in the case of final hearings, AV link.  It is possible, however, that it may be determined by a judicial officer, whomever may be seized of the matter, as appropriate for the proceedings to be heard in person. 

4. That determination will be made at a later time.  It is certainly a category of case that by reference to decisions of the Court of Appeal of England and Wales, particularly, Re A (Children) (Remote Hearing: Care and placement Orders) [2020] EWCA Civ 583 and Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA Civ 584, might lend itself to an in-person rather than remote hearing.

5. If that were to arise, the convenience of the parties is very much met by the proceedings being heard and determined in Queensland.  If it were not to arise and the matter dealt with remotely, then there is no convenience or lack thereof to either party as each can appear electronically no matter where they are from.

Limiting expense and cost

1. That is very much a moot issue.  To the extent that it is relevant, it would fall in favour of transfer. 

2. Ms Whitcomb is legally represented and, accordingly, she incurs costs.  Mr Whitcomb, in this tranche of litigation, is not represented, thus, legal costs would not arise.

Whether the matter has been listed for final hearing

1. It has not.  It is the first return date of the proceedings today.

Other relevant matters

1. In the event that the proceedings are to require any form of substantive intervention, beyond the hearing of evidence by the parties, such as, for example, a broadening or reopening of issues between these parties, then it is probable that further interventions might be required in the nature of Child Dispute Services, Independent Children’s Lawyers or otherwise.  They would all, if they came to be realities, fall in favour of transfer of the proceedings. 

2. The escalating Applications in the matter would suggest that it is probable that the above interventions might become necessary and, accordingly, that convenience should also be considered.  It falls in favour of transfer for those reasons.  

3. For those reasons, orders are made as follows.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date: 26 August 2020