Zu and Hamnet

[2012] FamCA 620

FAMILY COURT OF AUSTRALIA

ZU & HAMNET [2012] FamCA 620

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – Where all but one of the witnesses resides in Melbourne – Orders that the proceedings be transferred to the Melbourne Registry

APPLICANT: Ms Zu

RESPONDENT: Mr Hamnet

FILE NUMBER: SYC 1856 of 2012

DATE DELIVERED: 16 July 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 16 July 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: Wood Marshall Williams

COUNSEL FOR THE RESPONDENT: Mr Hammett

SOLICITOR FOR THE RESPONDENT: MNG Lawyers

Orders

IT IS ORDERED

1. That the proceedings in this matter be transferred to the Melbourne Registry of the Family Court of Australia.

2. That the costs of both parties be reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zu & Hamnet has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1856 of 2012

Ms Zu

Applicant

And

Mr Hamnet

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application for change of venue from Sydney to Melbourne. The proceedings before the court are, as Counsel for the wife rightly points out, complex.  They relate to an application to set aside a binding financial agreement which was entered into shortly prior to the marriage of the parties.  The issues which will need to be determined relate to the circumstances surrounding the parties’ entering into the agreement.  In the event that the binding financial agreement is set aside, then the court will need to determine an application for property settlement and, in the interim, applications for spousal maintenance. 

2. The application for change of venue falls to be determined according to the interests of justice and the convenience of each of the parties.  The property in relation to which any proceedings will relate is situated either in the vicinity of Melbourne, or in China.  The husband resides in Melbourne.  The wife resides in Sydney but there is no evidence of any long term or substantial connection with Sydney and, indeed, her affidavit evidence is that she is residing in emergency short-term accommodation.  None of the property is in Sydney and none of the witnesses, apart from the wife, is in Sydney. 

3. In the event that the matter proceeds, I am advised by the legal representatives for both parties that there are two solicitors in Melbourne, Mr Novacelik and Mr Mirabella, who will be required to give evidence and, in addition, an interpreter who will be required to give evidence on the issue of the wife’s understanding of the binding financial agreement.  That person is also resident in Melbourne.  In the event that the matter proceeds to an application for property settlement, it is the husband’s submission that his two sons, his sister and another person will be required to give evidence, that evidence going to the ability of the wife to speak English and, therefore, perhaps relevant in terms of the application to set aside the binding financial agreement. 

4. If the matter proceeds to property settlement, the husband proposes that the properties would be valued by valuers in Melbourne and, it is true, that it may be that there will be no need for cross-examination but, if cross-examination is required, then those witnesses will be in Melbourne.  The husband also says that if the matter proceeds to property settlement, evidence will need to be called from his accountant who is in Melbourne and a general medical practitioner who is in Melbourne. 

5. There is no evidence before me which would suggest that the matter is likely to be dealt with more expeditiously in Sydney than it will be in Melbourne. 

6. Counsel for the wife submits that if witnesses need to be cross-examined in Sydney, that can be done electronically.  In my view, that is an inefficient and difficult way to cross-examine witnesses who may well have to be shown documents. 

7. I accept that the matter is complex.  I accept that it is potentially lengthy.  I am urged by counsel for the wife not to transfer the property yet but to have the matter proceed to a conciliation conference in Sydney.  I do not proceed to take that course.  The order that I shall make will be to transfer the proceedings to the Family Court in Melbourne.  In my view, the interests of justice are best served by the matter being dealt with in the place where all but one of the witnesses resides. 

8. The order of the court in the matter of Zu & Hamnet is that the proceedings be transferred to the Melbourne Registry of the Family Court of Australia.  The costs of both parties are reserved.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 16 July 2012.

Associate: 

Date:  1 August 2012