Zagoreos and Zagoreos

[2017] FamCA 478

FAMILY COURT OF AUSTRALIA

ZAGOREOS & ZAGOREOS [2017] FamCA 478

FAMILY LAW – PRACTICE AND PROCEDURE –Where the husband seeks review of Registrar’s decision refusing application for change of venue – Where the husband seeks a change of venue from Sydney to Brisbane – Balance of considerations – Potential witnesses – Poor health of the wife –Costs of proceedings – Orders made for the matter to be transferred to Brisbane – Orders made discharging the Orders made by the Registrar.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth), r 11.18

APPLICANT: Mr Zagoreos

RESPONDENT: Ms Zagoreos

FILE NUMBER: SYC 1519 of 2017

DATE DELIVERED: 7 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 3 July 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirk QC

SOLICITOR FOR THE APPLICANT: Hirst & Co Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr White

SOLICITOR FOR THE RESPONDENT: Michael Conley Lawyers

Orders

1. The Orders made by a Registrar on 10 May 2017 are discharged.

2. Proceedings SYC1519/2017 are transferred to the Brisbane Registry of the Family Court of Australia.

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 Zagoreos & Zagoreos 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 SYDNEY

FILE NUMBER: SYC 1519  of 2017

Mr Zagoreos

Applicant

And

Ms Zagoreos

Respondent

REASONS FOR JUDGMENT

The proceedings

1. Ms Zagoreos and Mr Zagoreos are parties to litigation concerning alteration of property interests.  The wife commenced proceedings by way of an Initiating Application filed on 10 March 2017 in the Sydney Registry.  The husband filed a Response on 7 April 2017, which included an application for a change of venue from Sydney to Brisbane.

2. On 10 May 2017 a Registrar dismissed the husband's application for a change of venue and ordered that he pay the wife's costs in the sum of $8,609.26.  By an Application in a Case filed on 17 May 2017 the husband sought a review of this decision of the Registrar.  The wife opposed the application of the husband.

Background

1. The husband and the wife, who are aged 52 and 44 respectively, began to live together at B Town in Queensland in 2006 or 2008.  They married in the US in 2009 and separated finally in April 2016.

2. At the commencement of cohabitation the husband owned substantial assets located in Brisbane and B Town.  The wife professional employed by Company as a First Officer.

3. The parties lived together at B Town until 2014, when the wife moved into a property situated at C Street, Suburb D.  Late in 2013 the wife was transferred to Sydney from Brisbane in the course of her employment.

4. In mid-2014 the parties purchased the Suburb D property in joint names, using funds provided by the husband.  They carried out renovations before the wife moved into the property.

5. Between May and September 2015 the wife undertook training.  She abandoned this training in September 2015 and, in November 2015, she was deemed unfit to hold a practice license.  Consequently, the wife was unable to continue to work and took twelve months leave without pay.  She remains an employee of Company E but deposed that she expected to receive no income from that source after May 2017.

6. In April 2016 the husband caused a sum of $500,000 to be transferred to the wife.  According to her Financial Statement of 9 March 2017, the wife held a total of approximately $461,000 in various bank accounts at that time.

7. In his affidavit of 5 April 2017 the husband listed nine parcels of real estate in Brisbane or B Town, which he owns in his name or through various corporate entities.  The only real estate which the parties own in Sydney is the Suburb D property.

8. The husband deposed that his accountant of ten years is located in Brisbane and that all of his financial documents are located in that person's office.  The husband deposed further that his architect, project manager and conveyancing solicitor are all located in south-east Queensland.

9. In June 2016 the wife instructed the solicitors J Lawyers to act for her in the proceedings for property settlement.  This firm is located in Brisbane and engaged in correspondence with the husband's family law solicitors during 2016.  On 31 October 2016 the husband's solicitor received a letter from Michael Conley & Associates, a Sydney-based firm, which indicated that they had been retained by the wife.

10. On 26 April 2017 a psychiatrist, Dr F, provided a report in relation to the wife.  He made a diagnosis of major depressive disorder with no current psychotic features and made these recommendations:

    Recommendations for treatment

    [Ms Zagoreos] requires continuous supportive predictable care over the foreseeable future and this is undoubtedly best provided by the team she is already engaged with in Sydney.  She has now had 5 session (sic) in total with myself I believe is now comfortable in a therapeutic relationship.

    She should continue on her antidepressant with regular review of the effectiveness and any side effects and has appointments to see me weekly for the next few months.

    She is about to commence psycho-therapy with a local psychotherapist which will most likely require attendance at least 1-2 x per week as well as a plan to engage with her support network which is strongly based in Sydney."

11. Dr F addressed specifically the issue of the likely effect upon the wife of a change in venue of this litigation.  He opined as follows:

    Opinion

    Her condition still has a severe impact on her quality of life and she remains depressed, tearful and vulnerable to relapse. I am extremely concerned by the prospect of her being required to relocate to Brisbane for periods of time in order to deal with the court proceedings of her marriage break up when she has a significant mental illness and her treatment and her supports are based in Sydney.  The case will be a huge trigger for her depression and PTSD and without support she will be extremely vulnerable to relapse and worsening her condition.

    I strongly request that the court consider basing the court proceedings in Sydney to allow the best possible outcome in relation to [Ms Zagoreos's] mental health."

12. On 1 July 2017 the wife consulted an ophthalmologist, Dr G, who offered a provisional opinion that she suffers from a medical condition.  Dr G reported as follows:

    I had advised [Ms Zagoreos] to also seek a referral to an immunologist locally in view of the … symptoms and signs in the meantime as well, such as with [Prof H].  A copy of this letter can accompany referral.  Lastly, as there is visual function compromise, I would prefer [Ms Zagoreos] to stay locally for the investigations (eg: MRI and your reviews) and multidisciplinary approach to reduce the chances of poor followup, since there is likely to be need of frequent reviews when visual function is involved."

Consideration

1. Rule 11.18 sets out a number of factors which may be considered in determining an application for a change of venue.  This Rule relevantly provides as follows:

   11.18  Factors to be considered for transfer

   (1)In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46 (3A) of the Act, the court may consider:

   (a)     the public interest;

   (b)whether the case, if transferred or removed, is likely to be dealt with:

   (i)       at less cost to the parties;

   (ii)     at more convenience to the parties; or

   (iii)     earlier;

   (c)the availability of a judicial officer specialising in the type of case to which the application relates;

   (d)the availability of particular procedures appropriate to the case;

   (e)the financial value of the claim;

   (f)the complexity of the facts, legal issues, remedies and procedures involved;

   (g)the adequacy of the available facilities, having regard to any disability of a party or witness; and

   (h)the wishes of the parties."

2. Rule 11.18 does not prevent a Court from considering additional matters in determining an application for change of venue.  The Rule provides that the listed factors "may" be taken into consideration by a Court in determining such an application.  Accordingly, the determination of an application for a change of venue is a matter of discretion.

3. The wife deposed that she would call six Sydney-based witnesses in a final hearing.  These potential witnesses included two medical specialists, one of whom was Dr F. The husband deposed that he may call seven witnesses, all of whom were based in Queensland.  These potential witnesses included his accountant, architect and project manager, a real estate valuer and a single expert forensic accountant.

4. Obviously, the wishes of the parties are at odds in relation to the venue for their litigation at this stage.  Between June and October 2016, however, the wife was content to instruct solicitors in Brisbane.

5. One of the parties will be required to meet the costs of travel and accommodation for himself or herself, lawyers and witnesses, whether or not there is a change in venue.  It is obvious that the husband is in a vastly superior financial position but nothing precludes the wife from making an application for litigation funding or a partial property settlement in appropriate circumstances.

6. It seems to me that there would be advantages of cost and convenience, in terms of witnesses, if there is a change of venue to Brisbane.  The husband's financial and accounting documents are in Brisbane or at B Town.  I accept the submission on behalf of the husband to the effect that his accountant may well be required to confer with the single expert who undertakes a valuation of his corporate entities.

7. It would be open to the wife to make application for the evidence of her proposed medical witnesses to be taken by video link or telephone if the trial proceeds in Brisbane.  It might reasonably be anticipated that a court would look favourably on such an application, in circumstances where the husband sought a change of venue.

8. I do not accept that each of the parties must necessarily be present at every court event, as contended by the husband.  In my view it might reasonably be expected that a Court would look favourably on an application by the wife to be excused from personal attendance in appropriate circumstances, where when the husband sought a change of venue.

9. In my view this application is finely balanced, with the competing considerations essentially being the obvious practical advantages in preparation of the litigation and conduct of a trial in Brisbane and the health of the wife.  I consider that the outcome is far from clear cut but, on balance, I consider that the proceedings should be transferred to the Brisbane Registry.

10. I reach that conclusion being conscious that the wife could bring an application for a change of venue back to Sydney.  She could take this step in the event that her health deteriorates and she is able to satisfy the Court that she would have real difficulties in effectively participating in a trial in Brisbane.

11. As noted, the Registrar ordered the husband to pay the wife's costs in a sum of $8,609.26. As indicated, I consider that the outcome of this application was finely balanced and I will discharge the order for costs made by the Registrar.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 7 July 2017.

Associate: 

Date:  7 July 2017