NOTICE TO PRACTITIONERS AND LITIGANTS
Part 1 - Preliminary
- The Relocation List has been established for the hearing of certain family law proceedings in Melbourne involving applications to vary existing orders or parenting arrangements primarily as a result of a proposed change of residence of a person with primary, majority, or shared care of a child or children.
- The Federal Circuit Judge sitting in the Relocation List shall be as nominated from time to time by the Chief Judge or Case Management Judge for Victoria. The Relocation List Judges are
- Judge Bender,
- Judge Curtain
- The Relocation List has been established to meet the needs of children who would be prejudiced if their carers are unable to expeditiously obtain a decision when seeking orders permitting them to change the place of residence of children, where such a change would result in the parent being unable to comply with existing parenting orders or arrangements.Commonly there will be a need for an expeditious determination, such as an offer of employment or a transfer of the place of employment of a parent or another significant person in the life of the parent or child.
- The principles guiding all proceedings conducted in the Relocation List are that:
- The time and expense devoted to a proceeding should be proportionate to the real issues in the proceeding;
- Co-operation, communication, civility and common sense should prevail amongst all parties and counsel;
- All parties should comply strictly with directions and court orders for the preparation and presentation of a case;
- The matters should be listed for trial as quickly as possible;
- Cases should be determined expeditiously (usually with orders being made within 7 days, and reasons provided thereafter upon request).
- Matters filed or transferred into the Relocation List will ordinarily meet the following mandatory criteria prior to filing:
- The case involves an application for residence or contact orders under Part VII of the Family Law Act 1975;
- The substantial issue in the application arises as a result of a person with primary care, majority care, or shared care seeking to change the residence of a child in circumstances that make existing parenting orders or arrangements impractical or unworkable;
- The applicant is able to fund (or hold a pre-existing grant of legal aid to fund) a private family report to be prepared on an urgent basis by a person appointed under Reg 7 of the Family Law Regulations 1984, or a person with equivalent expertise (It is noted that the Court will determine the appropriate contribution by the respondent on hearing the application).
- Whilst parties able to afford to fund legal representatives would ordinarily be able to fund a report, if the parties:
- are able to demonstrate that they are genuinely unable to fund such a report; and
- the legal representatives have advised the Court in writing of an application for an urgent Court funded Family Report (setting out the details of the matter including the file number and names, and identifying "Relocation List" in the Subject Line) by email firstname.lastname@example.org at least 7 days prior to the First Directions date in the Relocation List;
THEN details of resource availability will be provided to the relevant Chambers prior to the First Directions date and the docket Judge may make an order for the report to be commissioned by the Senior Family Consultant.
- Matters filed or transferred into the Relocation List will not ordinarily involve unresolved issues:
- Unresolved allegations of sexual abuse;
- Unresolved allegations of serious mental health issues;
- Significant child protection issues that have previously warranted the intervention of the Department of Human Services with respect to the children (whether or not Family Law proceedings were then pending) within the previous 12 months;
- Significant unresolved issues other than those directly related to the proposed relocation.
- An application, (which must be accompanied by an affidavit and financial statement), may be filed in the Relocation List upon written request confirming that the matter meets the mandatory criteria and identifying the relevant paragraphs of the supporting affidavit.
- Requests to file in the Relocation List in circumstances where the mandatory criteria are not met must be made in writing to the Duty Registrar, identifying the relevant paragraphs of the supporting affidavit.
- Applications will be listed before a Judge for directions between 16 and 21 days after filing, and marked 'Relocation List â€“ Note the Relocation List Practice Note applies to this case' on the first page of the application in red ink by the registry.
- Applications should be served within 48 hours after filing. When serving an application in the Relocation List, a copy of this practice direction must be served with the application, and attested to in the Affidavit of Service.
- A Response, Affidavit in support of the Response and Financial Statement must be filed within 14 days after service (as provided for in the Federal Circuit Court Rules).
Filing in, and Transfers to the Relocation List
- A matter that is suitable for the Relocation List may be transferred to it by a Judge who is hearing the matter on the first return date, or upon the first hearing date following circumstances arising that demonstrate that the matter is suitable for the Relocation List.
- Matters may be transferred to the Relocation List by consent for a directions hearing, provided the matters are suitable for the Relocation List.
First Directions date in the Relocation List
- If a party fails to appear at the first return date in the Relocation List, the matter will ordinarily proceed immediately as an undefended hearing.
- If the respondent fails to file and serve a response, affidavit and financial statement prior to the first return date, the Respondent must show cause why the matter should not be heard forthwith on an undefended basis.
- At the directions hearing the parties should provide:
- a list of at least 2 (and preferably 3) proposed Family Consultants together with their available interview dates, report release dates and costs (unless the parties are already agreed as to the Family Consultant to be used or are seeking a court funded Family Report); and
- draft directions, setting out a timetabled litigation plan including (but not limited to):
- obtaining a family report (including the name of the Family Consultant, tentative appointment dates, and a release date for the report);
- the date by which all subpoenas must be issued;
- the date for filing any further affidavits of evidence in chief to be relied upon by the applicant;
- the date for filing any further affidavits of evidence in chief to be relied upon by the respondent;
- the date for filing an outline of case by each party.
- Ordinarily the parties will be assigned a hearing date on the first directions day, usually as soon as the parties are able to obtain a family report and file material for trial.
- Parties are expected to be ready to proceed with matters for which hearing dates have been agreed to or set by the court.
- Adjournments shall be granted only for a material reason.If an adjournment is granted upon the request of (or default of) the applicant, the matter will usually be removed from the Relocation List and listed in the next available duty list in Melbourne.
- Consent of the parties is not, of itself, sufficient to justify an adjournment. A significant additional consideration with respect to any adjournment is the efficient administration of the relocation list.
- Parties are expected to retain counsel promptly. A request for an adjournment because counsel has not been retained promptly or because new counsel has been retained prior to the hearing shall be dealt with accordingly.
Confirmation that hearing is required
- Parties must confirm that the hearing is required at least two days in advance of the hearing by telephone or email to the Associate to the docketed Relocation List Judge hearing the matter.
Urgent interlocutory application
- A party who seeks to list a matter for an urgent directions hearing must contact the Associate to the Relocation List Judge by email, and copy the email to the other parties.
- Requests for the hearing of urgent applications will be heard on an "as required" basis, by the docketed Relocation List Judge. The Associate will notify the parties of the time and location for the hearing of the urgent application.
- Parties are strongly encouraged to file any materials for use of the court earlier than the dates specified in the directions, especially for more complex hearings.
Trial Documents List
- Each party (including the Independent Children's Lawyer) is required to a file and serve a list of material to be relied upon ('List of Trial Documents') at least 2 business days before the trial. A copy of the list must be served upon each other party together with copies of any documents in the list that have not previously been filed and served.
Part 4 - Expeditious Final Orders and Reasons for Judgment
- It is expected that final orders will usually be made within 7 days of the completion of the hearing.
- Often reasons for judgment will not be available at the time of making final orders, and will ordinarily be delivered orally (or in writing) a reasonable time thereafter, if requested by either party. If reasons are delivered orally, a request may be made for the reasons to be provided in a settled written form.
Part 5 - General
- This notice can be found on the Court's website: www.federalcircuitcourt.gov.au.
- The email address of the Associate to the docketed Relocation List Judge is in the following format: Associate.judge[Surname of judge]@federalcircuitcourt.gov.au.
- Parties and practitioners are reminded that ordinarily it is not appropriate to communicate with a Judge's chambers directly, and that any email sent to the associate of a Judge pursuant to this practice direction must also be copied to each other party in the proceedings.