BOLTON & CREASEY - [2016] FamCA 303

FAMILY COURT OF AUSTRALIA

BOLTON & CREASEY

[2016] FamCA 303

FAMILY LAW – PRACTICE AND PROCEDURE – whether proceedings transferred from the Federal Circuit Court should be transferred back to the Federal Circuit Court – considerations bearing on transfer between Courts – whether the matter was commenced in accordance with relevant protocol – protocol for division of work between the Family Court of Australia and the Federal Circuit Court – where court considers transfer on its own motion, not though application of party – where there is a failure to give reasons for judicial decision.

Family Law Act 1975 (Cth) s 33B, s 65DAA(3)
Family Law Rules 2004 (Cth) r 11
Federal Circuit Court of Australia Act 1999 (Cth) s39
Federal Circuit Court Rules 2001 (Cth) r 8.02

Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102
Nemeck & Jump [2010] FamCA 1012
Re W: Publication Application (1997) 137 FLR 205
Soulemezis v Dudley Holdings (1987) 10 NSWLR 247
Summers & Shaw [2011] FamCA 889

APPLICANT:

Mr Bolton

RESPONDENT:

Ms Creasey

INDEPENDENT CHILDREN’S LAWYER:

Ms Cope

FILE NUMBER:

CSC

774

2015

DATE DELIVERED:

3 May 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

3 May 2016

REPRESENTATION

THE APPLICANT:

In person

SOLICITORS FOR THE RESPONDENT:

Newman Family Law

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER:

Cope Family Law

Orders

Pursuant to s 33B(1) and s 33B(2)(b) of the Family Law Act, these proceedings be transferred to the Federal Circuit Court at Cairns to be listed on a date fixed by that court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bolton & Creasey 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 BRISBANE

FILE NUMBER: CSC774/2015

Mr Bolton

Applicant

And

Ms Creasey

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 14 April 2016 a Federal Circuit Court Judge made an order pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001 (“FCCR”) transferring these parenting proceedings from the Federal Circuit Court to the Family Court of Australia. In the prelude to that part of the order which actually effected the transfer, it was said:
This matter involves serious allegations of actual violence (kicking, punching, fractured and bleeding nose), threats to knock the mother out, cut her inner thigh if she cheated on [the father], kill her if she took the matter to Court, father’s agents trying to break her door down at night, grabbing the mother by the throat, stalking the mother particularly since the father has been released from jail, and mental health issues.
[The father] is currently on parole until August 2016. He has been convicted of trafficking steroids (jailed between August 2013 and October 2014), 2012 for possession of steroids twice in trafficking steroids. [The father] has been subject to approximately 4 raids in relation to him trafficking cocaine by police and [defence service] in 2009.
[The mother]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BOLTON & CREASEY

Details

AGLC: BOLTON & CREASEY [2016] FamCA 303
Case: [2016] FamCA 303
Decision Date: 3 May 2016

CaseChat Overview and Summary

In *Bolton & Creasey*, heard before Tree J, the proceedings concerned the transfer of a matter between the Federal Circuit Court and the Family Court of Australia. The central dispute revolved around whether the proceedings, having been transferred from the Federal Circuit Court, should be transferred back to that court.

The primary legal issue before the court was to determine the appropriate forum for the proceedings, considering the established protocols for the division of work between the Family Court and the Federal Circuit Court. The court was required to consider the factors relevant to such a transfer, particularly when the court initiates the consideration of transfer on its own motion rather than upon an application by a party, and in circumstances where reasons for a prior judicial decision were not provided.

Tree J considered the relevant provisions of the *Family Law Act 1975* (Cth), specifically sections 33B(1) and 33B(2)(b), which govern the transfer of proceedings. The court's reasoning focused on the efficient administration of justice and adherence to the established protocols for case management between the two courts. The failure to provide reasons for a previous judicial decision was also a factor influencing the court's consideration of the transfer.

Consequently, pursuant to sections 33B(1) and 33B(2)(b) of the *Family Law Act*, the court ordered that the proceedings be transferred to the Federal Circuit Court at Cairns, to be listed on a date to be fixed by that court.

Orders

Orders of the court

Pursuant to s 33B(1) and s 33B(2)(b) of the Family Law Act, these proceedings be transferred to the Federal Circuit Court at Cairns to be listed on a date fixed by that court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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