FAMILY COURT OF AUSTRALIA

Collins & Ricardo (No 2)	[2015] FamCA 779	

FAMILY LAW – TRANSFER – Competing applications for the transfer of the proceedings to the Federal Circuit Court at Wollongong and to the Family Court at Cairns – Where the mother and the child live in Cairns – Where the father lives nearer Wollongong – Where the mother has consistently failed to appear in person in Sydney citing ill health or lack of means – Where it is unlikely the mother’s full participation in the hearing, or the participation of the mother and the child in the preparation of a Family report, will be secured if the matter remains in Sydney – Where the father has travelled to Cairns to spend time with the child – Where there will be inconvenience to one party whether the proceedings remain in Sydney or are transferred to Cairns – Where it was found that the matter is not suitable for determination by the Federal Circuit Court – Where it was found that the balance of competing factors set out in rule 11.18 of the Family Law Rules 2004 (Cth) lay in favour of the transfer of the proceedings to Cairns.

Family Law Act 1975 (Cth) 
Family Law Rules 2004 (Cth), rules 11.17, 11.18	

APPLICANT:	Mr Collins	

RESPONDENT:	Ms Ricardo	

Independent children’s lawyer:	Independent Children's Lawyer	

FILE NUMBER:	SYC	4959		of	2009	

DATE DELIVERED:	17 September 2015	

PLACE DELIVERED:	Sydney	

PLACE HEARD:	Sydney	

JUDGMENT OF:	Rees J	

HEARING DATE:	14 September 2015	

REPRESENTATION

THE APPLICANT:	In Person	

THE RESPONDENT:	In Person	

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Brian Samuel & Associates	

Orders
IT IS ORDERED
(1)	That these proceedings be transferred to the Cairns Registry of the Family Court of Australia. 
IT IS NOTED that publication of this judgment by this Court under the pseudonym Collins & Ricardo 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 4959  of 2009

Mr Collins 	
Applicant

And

Ms Ricardo 	
Respondent

REASONS FOR JUDGMENT
1.	The substantive proceedings before the Court concern parenting arrangements for a little girl, S (“the child”), who was born in 2008. Her parents are Mr Collins (“the father”) and Ms Ricardo (“the mother”). 
2.	The father lives at YY Town, west of City 2 on the South Coast of New South Wales. The mother lives at Cairns in Queensland. Each of the parents has made an application to the Court for a change of venue. The mother asks that the proceedings be transferred to the Cairns Registry of the Family Court of Australia. The father asks that the proceedings be transferred to the Wollongong Registry. The Family Court of Australia does not sit in Wollongong so a transfer to Wollongong would require that the matter be remitted to the Federal Circuit Court of Australia.
3.	A protocol exists between the Family Court of Australia and the Federal Circuit Court of Australia for the determination of which matters should be heard by each Court. In general terms, those matters which are legally or factually complex and which require more than four hearing days should be dealt with in the Family Court of Australia.
4.	The Court file shows that the matter first came before the Sydney Registry of the Federal Magistrates Court (as it then was) in August 2009. At that time both of the parents lived in the City 2 area and both represented themselves.
5.	On 25 May 2010 the proceedings were transferred to the Sydney Registry of the Family Court of Australia.
6.	The matter came before Watts J for directions on 2 March 2011. The father represented himself and the mother was represented by a solicitor. Directions were made for the filing of trial affidavits and the matter was listed before Watts J for hearing for five days commencing on 27 June 2011. A number of procedural applications ensued. By the time the hearing commenced, the mother had moved with the child to live in Western Australia.
7.	Judgement was delivered on 12 January 2012. The orders provided for the child to live with the mother and for limited, supervised contact with the father to take place on two occasions each year at a contact centre in Western Australia and on two further occasions each year at a contact centre on Wollongong.
8.	On 23 September 2011 the father filed the first of many contravention applications. At the hearing of the applications for change of venue, the father informed me that there had been 32 contravention applications filed. A number of those applications have been dismissed. In three applications, a contravention has been established and the question of penalty has been reserved and is awaiting the determination of the substantive proceedings. A further 18 contravention applications and two contempt applications remain to be dealt with.
9.	The father appealed against the orders of Watts J.
10.	In November 2012 the mother and the child moved to Cairns. In March 2013 the Court was notified that the mother had moved to Cairns.
11.	On 21 January 2014 the father filed a fresh application seeking parenting orders in relation to the child.
12.	On 5 December 2014 the first day of the trial was listed before me. Because the judgement of the Full Court was not yet delivered, the trial could not proceed and was adjourned to a date to be fixed after the delivery of the judgement on the Appeal.
13.	The Full Court judgement was delivered on 7 May 2015. The appeal was dismissed. The father filed an application seeking special leave to appeal to the High Court. That application has been dismissed.
14.	The adjourned hearing came before me on 29 May 2015. Both parties appeared by phone. Both were self-represented. The mother indicated that she wanted to press an application for change of venue to Cairns and was directed to file an application and an affidavit in support by 4pm on 15 June 2015. The father was directed to file a response and affidavit in support by 4pm on 30 July 2015.  
15.	The matter was listed for determination of the competing applications for change of venue on 14 September 2015.
16.	The recitation set out above does not attempt to catalogue the numerous interlocutory applications which have been made in the proceedings. Judgements were handed down by Loughnan J on 4 September 2009 and 19 December 2014 and by Stevenson J on 15 January 2015. However, the history of the proceedings, such as is set out, demonstrates that the matter is not suitable for determination by the Federal Circuit Court at Wollongong.
17.	Thus, the competing applications are the mother’s application that the proceedings be transferred to Cairns and the father’s application that, since they cannot be heard in Wollongong, they remain in Sydney.
18.	The father submitted that, because the mother did not comply with the directions for filing her application and affidavit, her application should be dismissed. The father relied upon the fact that applications which he made to the Full Court to proceed out of time were dismissed. Different considerations apply to this application.
19.	The mother submitted that she had already filed an application for change of venue in February 2014 and that application had not been determined. She conceded that the material upon which she relied was filed late because, she said, her then solicitor was not available within the specified time period. She filed the material on which she relied on 22 July 2015. The father did not submit that he was unable to deal with the mother’s material or seek to have the matter adjourned. It is appropriate to hear and determine the competing applications.
20.	I note that, shortly after the hearing of this application concluded, it came to the attention of Chambers that the mother had e-filed an Application in a Case and an affidavit in support on Friday 11 September 2015, being one working day prior to the hearing. These documents were not referred to by the mother in the course of the hearing on 14 September 2015, nor is there any indication on the material before the Court that the father has been served with these documents. In any case, the father cannot be expected to have dealt with this material prior to the hearing scheduled on 14 September 2015. Accordingly, I have not read or had regard to the additional material filed by the mother on 11 September 2015 in the determination of this application.
21.	The applications are governed by the provisions of rules 11.17 and 11.18 of the Family Law Rules 2004 (Cth) (“the Rules”), which are set out below: 
FAMILY LAW RULES 2004 - RULE 11.17  
Transfer to another court or registry
A party may apply to have a case: 
(a) heard at another place; or  
(b) transferred to another registry or court exercising jurisdiction under the Act.
22.	Rule 11.18 of the Rules provides that the Court may consider a number of factors. They are:
(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. 
23.	I propose to deal with each of the factors set out in rule 11.18.
(a) the public interest
24.	As was pointed out by the father in the hearing of this application, the mother has consistently failed to appear in person in the Court in Sydney, citing variously ill health and lack of means. She was specifically ordered to appear in person on 5 December 2014 and did not appear. Nor did she appear by telephone.
25.	The issues which are raised in the competing parenting applications are complex and the determination of them will have significant, far reaching and long term implications for the child. The father seeks an order that the child live with him. Thus far the child has had very little time with the father. It is not entirely clear what application the mother will seek at trial but it could reasonably be assumed that she will seek orders that the child have either no contact with the father or minimal, supervised contact. Either outcome will have a considerable impact on the child.
26.	These are not proceedings in which the best interests of the child are the paramount consideration. However, the public interest requires that the Court have the opportunity to determine what orders should be made for her welfare on the basis of the best available evidence. That includes the active and personal participation of both of her parents in the proceedings. 
27.	The father has travelled to Cairns to spend time with the child in accordance with the existing orders. The mother has not brought the child to Wollongong to spend time with the father and she has not herself come to Sydney to participate in the proceedings before me. It is not likely that, if the proceedings are heard in Sydney, the mother will attend in person. She has already made an application to attend all proceedings by telephone. If that application is not successful then it is foreseeable that she will not attend at all. 
28.	The father may well consider that the mother, by refusing or declining to appear in Sydney, is being advantaged by her own behaviour. That would not be an unreasonable belief. However, if the Court is required to determine what orders are in the child’s best interests, the active participation of both parents is necessary.
29.	It will also be necessary to facilitate the preparation of a Family Report by a family consultant attached to the Court. This can be done either in Cairns or in Sydney. The mother and the child live in Cairns. The preparation of the report will require both the mother and the child to be present for interview with the family consultant. Ideally, both parents and the child should be present as the family consultant would be assisted by seeing the child individually and with each of her parents. A report which is prepared as a result of electronic interviews between the child and one of her parents would be of little assistance in comparison with a report prepared after the family consultant has seen the family in person.
30.	It is not likely that the mother will bring the child to Sydney to participate in the preparation of the report. However, the father has travelled to Cairns to see the child and I am confident that he will again travel to Cairns to participate in the report process, hopefully in conjunction with one of his scheduled contact visits.
31.	Again, the father may well feel that the mother is being rewarded for her recalcitrance but the attitude of each parent to their responsibilities will be a matter that will be considered in the substantive proceedings.
32.	It is unlikely that the mother’s full participation in the hearing, or the participation of the mother and the child in the preparation of the Family Report, will be secured if the matter remains in Sydney. 
(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
33.	No evidence was led by either party about the likely hearing times available in the Cairns Registry. Whether the matter can be dealt with more quickly in Sydney or in Cairns is not possible to determine.
34.	The cost to the parties is a relevant factor however no evidence was put before the Court by either party as to their anticipated costs of travel and accommodation. The father did not rely on any financial statement or provide any evidence of his current financial position. The mother filed a financial statement sworn in February 2014 where she asserts that she is in receipt of Commonwealth benefits and has no other income. The father disputes the accuracy of that assertion but there is presently no evidence on which that issue could be determined.
35.	The convenience of the parties is also relevant. Again there is no evidence from either party of any particular inconvenience other than that the father, in oral submissions, told the Court that he could more easily attend to his farming work in the morning and evening if the proceedings were in Wollongong. Proceedings in either Sydney or Cairns would take the father away from his farm.
36.	The father intends to call evidence from a number of witnesses who are based in the Wollongong area, including but not limited to a psychologist who conducted a drug and alcohol assessment and a consultant psychiatrist.
37.	Whether those witnesses will be required for cross-examination will depend on whether the reports are admitted at trial. Given that the material dates from 2012, its admission cannot be assumed.
38.	The mother, in her material, refers to her treating psychiatrist, a child psychologist who is currently seeing the child, and a school counsellor who referred the child for psychological assistance.
39.	Whether the matter is heard in Cairns or in Sydney, these witnesses will either be required to travel or arrangements will be made to take their evidence by telephone or video link.
40.	Either scenario involves inconvenience to one party.
(c) the availability of a judicial officer specialising in the type of case to which the application relates
41.	A Judge of the Family Court of Australia sits in Cairns. If the matter remains in Sydney, a Judge is available to hear it. 
(d) the availability of particular procedures appropriate to the case
42.	This factor is not relevant.
(e) the financial value of the claim
43.	This factor is not relevant. 
(f) the complexity of the facts, legal issues, remedies and procedures involved
44.	The complexity of the issues can be accommodated in either venue.
(g) the adequacy of the available facilities, having regard to any disability of a party or witness, and
45.	There is no evidence that any party or witness has a disability. The mother alleges that she suffers from depression and is unable to travel. She relies on a certificate to that effect from her treating psychiatrist, Dr ZZ, dated 16 July 2015. No doubt that evidence will be the subject of challenge in the substantive proceedings but I am required to take it into account.
(h) the wishes of the parties. 
46.	Unfortunately, the parties have opposing wishes and both cannot be accommodated.
47.	Upon consideration of all of the matters mandated to be taken into account, the balance lies in favour of the transfer to Cairns. 
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 September 2015.

Associate:  

Date:  17/9/2015