· 2021-08-16T08:13:43+0000 · 677 posts

Parties Oppose Each Other's Transfer Applications

Stott & Stott [2021] FCCA 1690 (23 July 2021)

The parties are in dispute over their differing transfer applications based on each of the party's convenience. The mother seeks transfer of matter to the Family Court of Western Australia. On the other hand, the father seeks transfer of matter to the Melbourne Registry of the Federal Circuit Court. The Court, in assessing its power to order transfer this matter to the Family Court of Western Australia, took into consideration personal circumstances of each party and how they impact on a fair hearing.

Facts:

Interim orders were made by consent on 7 June 2021 which provided for the parties to have an equal shared parental responsibility and for the child to spend time with the father during the July 2021 school holidays, for practical arrangements to facilitate the holiday time and various injunctive orders. On 23 June 2021, the father sought for the matter to be transferred to Melbourne Registry. The mother, having sought an order for the matter to be transferred to the Family Court of Western Australia, opposed the father's application. The father commenced proceedings by way of initiating Application in the Hobart Registry.

The application was referred to in Melbourne Registry. On 19 November 2020, Registrar Mathews noted that the matter was filed in the Hobart registry as the Mother seeks a transfer of the matter to Western Australia. The father submitted that the public interest is served by transfer to Melbourne, that the matter will be dealt with at less cost and inconvenience to the parties as they both have accommodation in Victoria. He deposes that he now resides in Victoria with his current partner, and that they are expecting a child in 2021. He states that the parties lived in Victoria for the majority of their five year relationship.

The mother deposes that she and the child currently reside in Western Australia, that and the costs of travelling to Victoria for the purposes of court proceedings would be prohibitive, especially as she is reliant on Centrelink for income. She said she had no less support in Western Australia than Victoria while attending court. She claimed not to have been able to obtain representation from Legal Aid to date and if the matter were to continue in either Melbourne or Hobart while she is in Western Australia, she would not be eligible for legal aid.

Issue:

Whether or not the Court has the power to transfer matter to the Family Court of Western Australia.

Applicable law:

Federal Circuit Court Rules 2004 (Cth), r 8.01 and r 1.06 - provides that the Court, in making orders regarding transfer applications, should consider the history of the parties’ relationship and residences, the circumstances at separation, the parties participation in these proceedings, and the ease and practicality attaching to the parties each being given opportunity to call witnesses and present their cases, and personal circumstances of each party and how they impact on a fair hearing.

Brunton & Kramer [2014] FCCA 131 at [35] to [37] - provides that parenting matters are not excluded matrimonial causes.

Collins and Ricardo (No.2) [2015] FamCA 779 at [26] - case cited by the father to support the contention that there was established practice in this court of transferring proceedings between registries if it was in the public interest to do so.

Project Blue Sky v ABA [1998] HCA 28 at [69] to [71] - provides for the well established statutory principle which provides that words used in provisions be given their ordinary English meaning and ambiguity if any be resolved by contextual interpretation of relevant provisions.

Smith and Waite [2014] FCCA 795 - where Judge Turner refused to transfer a proceeding from the Federal Circuit Court to the Family Court of Western Australia, but that was on the basis that the court was not satisfied it was in the interest of justice to do so. The ICL submitted respectfully, that in addressing the relevant statutory provisions, the judge had erred in concluding that there was jurisdiction.

Analysis:

The parties and the child were residing in Western Australia when they separated. Prior to that the affidavit evidence is that they had moved fairly frequently for the father’s work. According to the father, the move to Western Australia was for the mother’s personal reasons but regardless, he agreed to move there. The parties have lived in South Australia, Western Australia and Victoria. Movement and travel around Australia does not appear to have been strongly opposed by either party in the past.

If the proceedings are conducted in Victoria, the mother and child would need to travel for a defended hearing at a minimum, incurring the costs that entails. On the other hand, the father has full-time employment and his witnesses are mostly resident in Victoria and the cost of them giving evidence in Western Australia is higher.

Conclusion:

The Court ordered the requirements of the Rules of Court for filing, service and hearing of an application in a case by the mother for transfer of proceedings to the Family Court of Western Australia dispensed with. The proceedings, including the father’s contravention application filed on 7 July 2021, are to be transferred to the Family Court of Western Australia. The listing on 2 August 2021 at 2:45pm in the Hobart Registry is vacated. The Court notes that a request should be made to Legal Aid in Western Australia for a grant of aid to an Independent Children’s Lawyer in that State, so to ensure the child continues to receive independent representation according to the order made on by this Court on 9 February 2021. The Application for Divorce filed by Mr Stott on 8 July 2021 will remain listed in the Federal Circuit Court of Australia on 25 August 2021 at 11:30am.

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