Nestor & Dusek [2025] FedCFamC2F 1335 (25 August 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. Today I am hearing an Application for Review.
2. Mr Dusek (the husband) and Ms Nestor (the wife) married in 2021 in Australia.
3. On 22 April 2022, they each signed a written binding financial agreement (the BFA), having each received, on the face of that document, independent legal advice. The wife now seeks to question the validity of the BFA and seeks to have it set aside.
4. Her Initiating Application was filed in the Canberra Registry of this Court, and that Initiating Application was subsequently amended on 9 September 2024 wherein she pleaded her application that the BFA is voidable due to fraud, duress, undue influence and unconscionable conduct, presumably seeking to apply the precedent in Thorne & Kennedy [2016] FamCAFC 189; (2016) FLC 93-737. The husband seeks to uphold the validity of the BFA.
5. The hearing of that Amended Initiating Application that is to determine the validity of the BFA was listed before Judge Leishman for hearing on 8 August 2025 in the Canberra Registry of this Court.
6. On the husband's application, Judge Leishman vacated that hearing date.
7. In the pathway towards the hearing on 8 August 2025, the husband had filed an Application in a Proceeding on 30 April 2025 seeking a change of venue from the Canberra Registry of the Court to the Sydney Registry of the Court.
8. On 15 July 2025, Judicial Registrar Hiles heard that application to change venue, by way of delegation, and dismissed it and ordered as follows:
   1. The copy of the binding financial agreement which was signed by the parties on 22 April 2022 be formally entered into the Court record as exhibit A1.
   2. The application in a proceeding filed by the respondent on 30 April 2025 seeking a change of venue is hereby dismissed.
   3. The matter remains listed for hearing before her Honour Judge Leishman on 8 August 2025 at 10 am.
   4. The application in a proceeding filed by the respondent on 3 July 2025 is adjourned at 10 am on 8 August 2025.
9. On 22 July 2025, the husband filed an Application for Review seeking to review orders 1, 2, 3 and 4 made by the Judicial Registrar.
10. Rule 9.01 of the Federal Circuit and Family Court of Australia Family Law Rules 2021 is relevant to the issue of venue of hearing, in that subrule (3) of that rule provides:

In considering an application under subrule (1), that is to have the proceedings heard in another registry of the Court, the Court must have regard to: (a) the adequacy of the available facilities having regard to any disability of a party or witness and any safety concerns; and, (b) the convenience of the parties; and, (c) limiting the expense and cost of the proceeding; and, (d) whether the matter has been listed for final hearing; and, (e) any other relevant matter.

1. About the issue of venue, each of the husband and wife has had filed written submissions which I have read and considered, and each submits that those written submissions are more than adequate for the purposes of the determination that I am required to undertake.
2. The husband filed his written submissions on 21 August 2025.
3. The wife's written submissions are contained in a case outline filed on 21 August 2025.
4. The husband, for his part, says that he now lives at an address both in Suburb J, which is in the Suburb B region of NSW, and in Sydney.
5. The wife lives in Suburb C.
6. Geographically Sydney is more convenient to the husband. Canberra is more geographically convenient to the wife who also has the care of an eight year old child.
7. The husband says that he suffers from generalised anxiety disorder and post-traumatic stress disorder, asserting that they arise from incidents of family violence, and submits that the Sydney Registry offers superior facilities in terms of accommodating his disability and protecting his safety. The example he offers is that the Sydney registry is more proximate to his medical practitioner than is the Canberra Registry should he need, during the course of the proceedings, to consult his medical practitioners.
8. It is clear that each of the Sydney registry and the Canberra registry has more than adequate facilities to meet any person's disability and meet any person's safety concerns.
9. The facilities for disabled persons and for persons whose safety needs protection are identical in each of those two registries.
10. Both registries also have audio technology which would enable any person who has fears for their safety to give their evidence remotely.
11. The husband asserts that one of his witnesses will require the assistance of audio technology because of a hearing disability. Both registries have audio technology available in the form of hearing loops and other methodology that would enable a person suffering from a hearing disability to give their evidence and both registries have identical facilities.
12. The husband submits potential witnesses live in Sydney, City K, City L and regional New South Wales.
13. As I have said, each of the Sydney and Canberra registries have advanced audio visual capabilities and could, if the presiding judge permits, facilitate electronic attendance by any witness.
14. Travel time and costs, it is submitted by the husband, would be reduced by a change in venue. Self-evidently that would be so especially for him if he were, during the course of the hearing, residing in his address near Sydney.
15. The wife lives with the child in Suburb C and if the venue were changed would increase her travel time and her travel cost.
16. Conversely, if the case remains listed in the Canberra registry the husband's travel times and travel costs would be increased.
17. The wife would still have travel times and travel costs but the distance and geography would mean that her travel times would be less and could, if in a multi-day hearing, foreseeably, transport herself by car from her home to the registry thereby reducing her accommodation costs.
18. Both parties have appeared electronically today and both parties have, at stages, appeared electronically in the past.
19. Although it is likely for the determination of the issue as to whether or not the BFA is to be upheld, will require each of the husband and wife to make a personal appearance before the presiding judge, that may not be necessary so for their witnesses, but the presiding judge will be able to make that determination.
20. The husband also raises an issue as to the involvement of external agencies interested in the proceedings. The interest of those external agencies is entirely irrelevant to the determination of the venue and is likely neutral in the terms of whether or not the BFA is to be upheld or set aside.
21. Another significant determinant relevant to venue is an issue that both parties concede that they have not dealt with, being how soon the hearing can be accommodated in either the Sydney registry or the Canberra registry.
22. It is to be noted that the case had already been listed for determination in the Canberra registry on 8 August 2025 but that those dates have been vacated.
23. There is no likelihood that this case would obtain a date in the Sydney registry for hearing in 2025. It is probably incapable of being listed in the Canberra registry in 2025 but not entirely a no possibility.
24. A final hearing date if the venue is changed would be well into 2026 in Sydney, and if the venue remains in Canberra would likely be early 2026. That much is apparent to me in my role as the national case management judge for this Court.
25. By way of wide margin, I am satisfied that the hearing will be quicker to be listed in Canberra than in Sydney. Indeed, had the case not been set aside, the issue of enforceability would already have been heard in Canberra.
26. On balance then of the above, the venue that is best for the hearing of this case is the Canberra registry, not the Sydney registry. The review for these reasons is therefore dismissed, and it is ordered.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley.