Wiupa and Kogoya (No. 2)

[2007] FamCA 417

FAMILY COURT OF AUSTRALIA

WIUPA & KOGOYA (NO. 2) [2007] FamCA 417

FAMILY LAW - CHILDREN – Interim – Transfer to another registry

Family Law Act 1975 (Cth)

HUSBAND: Mr Wiupa

WIFE: Ms Kogoya

INDEPENDENT CHILDREN’S LAWYER: Independent Children's lawyer

FILE NUMBER: MLF 3213 of 2006

DATE DELIVERED: 30 March, 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 30 March, 2007

REPRESENTATION

COUNSEL FOR THE HUSBAND: Ms. Brennan

SOLICITOR FOR THE HUSBAND: Kennedy Wisewoulds

COUNSEL FOR THE WIFE: Ms. Boymal

SOLICITOR FOR THE WIFE: Legal Aid Queensland

INDEPENDENT CHILDREN’S LAWYER COUNSEL: Ms. Agresta

INDEPENDENT CHILDREN’S LAWYER SOLICITOR: Victoria Legal Aid

Orders

1. That all extant applications be transferred to the Brisbane Registry of this Court and listed on a date to be advised with, as far as is practicable, no loss of priority.

2. That pursuant to s.68L(2) of the Family Law Act 1975 the interests of the children M and J both born … April, 2003 be independently represented by a lawyer AND IT IS REQUESTED  that Queensland Legal Aid arrange such independent representation and that Victoria Legal Aid liaise to the extent necessary with Queensland Legal Aid to facilitate this order.

3. That forthwith upon appointment by Queensland Legal Aid or otherwise the independent children’s lawyer file a Notice of Address for Service.

4. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

5. That pursuant to s.62G(2) of the Family Law Act 1975 a Family Report be prepared and released as soon as practicable in the Brisbane Registry of this Court.

6. That the reasons for judgment this day be transcribed and copies made available to the parties.

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 3213  of 2006

MR WIUPA

Husband

And

MS KOGOYA

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. This matter came into this list by transfer from the Federal Magistrates Court in November last year, the father having filed an application in that Court on 22 August 2006. 

2. The background can be summarised briefly.  The parties lived together for a period in West Papua;  they have twins born in April 2003, who are thus nearly four.  They were both involved in political activism in West Papua and came to Australia in 2006.  Initially, they were located interstate.  Subsequently, they relocated to Melbourne and were provided with temporary protection visas.  Their applications for permanent resident visas are pending.  Melbourne was their choice from a short list of Australian cities.

3. When the case was before Bennett J, she requested the independent children's lawyer to collate a bundle of documents from those produced pursuant to subpoena, to form a court book.  That was done and I have read those documents.  There is a good deal of repetition in them, understandably.  Much of the material goes to the circumstances in which the parties separated, or sought to separate, in March 2006.  As will be clear from the fact they relocated to Melbourne together, they subsequently reconciled. 

4. It is the mother's case that she was the target of significant violence at the father’s hands;  the father alleges that she was the perpetrator of violence against him.  The case is in the Magellan list as the mother has alleged abuse of the children by the father.  There is a deal of evidence about the relevance of cultural values and cultural practices to the behaviour of each, and to what is likely to be in the children's best interests. 

5. The reality is that the mother travelled with the children to Brisbane in May 2006, very soon after the parties came to Melbourne.  She went with the father’s consent.  The father's evidence, supported by one lay witness, is that she was to stay in Queensland for only a couple of months.  The mother's evidence is contrary to that.  The role the father saw himself as playing in the children’s lives in the short term is unclear, although he complains of the mother frustrating such contact as he sought. 

6. As I said to counsel in the course of discussion, the father’s evidence is of the mother obtaining support from the Lions Club to acquire furniture for herself and the children in Brisbane, which sits a little uncomfortably with the notion of a very short stay.  It is possible the Lions Club were furnishing a house or apartment to be used for short-term stays and it was coincidental that this mother and children were there.  Those are the sort of matters that will have to be teased out in the trial. 

7. The husband in his affidavit deposed that he did strike the mother on one occasion before coming to Melbourne.  That is the extent of his concession. 

8. The mother's application is that the case be transferred to the Brisbane registry of the Court.  She is now resident in that area.  She says the balance of convenience lies there.  Many of the witnesses are government witnesses, being immigration and medical staff.  They will be giving evidence by video in any event, from overseas and like places.  There may be some medical evidence from Victoria, but it will not be lengthy.  The father and his lay witnesses are here, together with the group of activists who have been supporting him.  The mother and her lay witnesses are in Brisbane, together with a group who have been supporting her since May. 

9. The father complains about the political affiliations of those with whom the mother has been associating in Brisbane.  She gives some evidence about that;  it is a highly contested factual dispute.  The court cannot make findings today about those facts in issue. 

10. The mother contends that the balance of convenience lies in the proceedings being transferred to Brisbane.  That is where she and the children live.  It would be best if the family report were done there and the matter continued under the Magellan umbrella in Brisbane.

11. Counsel for the independent children's lawyer's instructions are to support the preparation of a family report here.  That is, he does not support the transfer of the proceedings at this time but does not seek (as does the father) an order for the immediate return of the mother.  If that were done, the decision about the place of trial would be deferred but if the case was transferred, the family consultant from Melbourne would have to travel or give evidence by video.  In the event the matter were transferred and the trial judge wanted an updated family report, the consultant would have to travel, or – and this is rarely satisfactory – a different consultant would assess the family.

12. I am mindful of the submission made on behalf of Victoria Legal Aid, but in my judgment, the balance of convenience lies with a transfer to Brisbane. 

I certify that the preceding
12 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the           day of            2007.

…………………………………………
Associate.

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as WIUPA & KOGOYA