BOLTON & CREASEY
[2016] FamCA 303
•3 May 2016
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 | of | 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] holds grave fears for her personal safety and that of the child.
Seemingly related to that recital of allegations, the relevant order then continued:
The matter is deemed appropriate for transfer to a Judicial Officer (sic) the Family Court of Australia pursuant to r 8.02 of the Federal Circuit Court Rules 2001, at Cairns to be listed on a date to be advised.
Of its own motion this Court listed the matter to obtain the parties’ submissions as to whether or not the matter should be transferred back to the Federal Circuit Court pursuant to s 33B of the Family Law Act 1975 (Cth). For the reasons which follow, I am of the view that this matter should be so transferred.
HISTORY OF THE PROCEEDINGS
These proceedings commenced on 17 December 2015 by way of Initiating Application filed by the father. They are therefore still relatively recent in origin. By that Application the father sought final orders that the parties’ only child, Z, born in 2013 and hence presently three years of age (“the child”) spend unsupervised time with him every second weekend from 4:00 pm Friday until 9:00 am on Monday, together with some special days. He also sought, apparently, orders for equal shared parental responsibility.
The mother filed a response in these proceedings on 1 March 2016. By that response she sought orders that she have sole parental responsibility for the child, who would live with her but spend, in default of agreement, time with the father in week one of a two weeks cycle, from Saturday 9:00 am until 5:30 pm, and in the next week, from Tuesday after school until 6:00 pm. She also made provision for special days.
On 7 March 2016 a Federal Circuit Court Judge appointed an Independent Children's Lawyer to these proceedings. That lawyer filed a Notice of Address for Service on 29 March 2016.
On 13 April 2016 a Family Consultant’s memorandum was prepared and released to the parties. That appeared to precipitate consent interim orders on 14 April 2016 which gave the mother sole parental responsibility for the child, who would live with her and spend, in three of every four weeks, unspecified time with the father on Sunday in the first week, Saturday in the second week, and Sunday in the third week. They also provided for the child to spend time with the father on Father’s Day from 9:30 am until 5:00 pm. A range of other orders were made including various restraints upon the father. It was on that occasion that the proceedings were also transferred to this court.
ISSUES RAISED BY THE PROCEEDINGS
The Federal Circuit Court judge correctly identified that indeed the matter does involve serious allegations of family violence, and it is incontestable that the father has a criminal history for numerous drug related offences. Likewise it is correct that the mother apparently holds grave fears for her personal safety, and allegedly also that of the child.
However an analysis of the final orders which the parties seek, shows that in fact the only matters in dispute between them are:
·Whether or not there should be equal shared parental responsibility, or sole parental responsibility to the mother;
·Whether the child should spend any overnight time with the father;
·The extent to which the child should spend time with the father.
Particularly it is important to note that the matter does not involve disputes as to whether the alleged risk posed by the father to the child requires his time to either be severely restricted, or supervised, or both.
To the extent that there are allegations of serious family violence, it therefore appears as though they will primarily inform whether or not there should be an order for equal shared parental responsibility. However even if an order were made for equal shared parental responsibility, on no view does the time which the father seeks constitute equal shared time, or substantial and significant time as defined under the Family Law Act s 65DAA(3). Therefore even if there has been family violence as alleged by the mother, on her own case it appears to only inform parental responsibility, and perhaps whether or not the father represents such a risk as to preclude him spending overnight time with the children.
THE PROTOCOL
The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate court in which parties should commence proceedings. It provides as follows:
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).
1. International child abduction.
2. International relocation.
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
Transfers
1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.
2. There is no right of appeal from a decision as to transfer.
It is pertinent to make the following observations in relation to the protocol:
·The protocol speaks about the appropriate court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;
·The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”
·Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;
·Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two courts, with the Family Court undertaking work more suited to a superior court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two courts’ work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.
The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.
RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
Section 39 of the Federal Circuit Court of Australia Act 1999 (Cth) relevantly provides:
(1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to .. the Family Court.
…
(4) In deciding whether to transfer a proceeding to the Family under subsection (1), the Federal Circuit of Australia must have regard to:
(a)any Rules of court made for the purposes of subsection 40(4);
(b)whether proceedings in respect of an associated matter are pending in the Family Court;
(c)whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and
(d)the interests of the administration of justice.
…
Rule 8.02 of the Federal Circuit Court Rules provides as follows:
(1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.
(2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.
(3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.
(4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
The provisions which govern transfer from the Family Court of Australia to the Federal Circuit Court are relevantly contained in s 33B of the Family Law Act.
(1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.
(2) The Family Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1).
(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1).
(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia.
(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:
(a) any standard Rules of Court made for the purposes of subsection (4); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.
(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.
(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings of a kind specified in the regulations.
The phrase “the interests of the administration of justice” is a very broad one, capturing many potential considerations. No point is to be served in seeking to, in advance, describe what may fall as legitimate considerations under such a criterion, however it is useful to note that in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [42] White J identified that the prospect of a poor public perception if transfers were embarked upon by the courts “in the manner of a tennis match” was a relevant consideration.
Further, whilst s 33B(6) establishes mandatory considerations that the court must have regard to, other matters may inform the exercise of the discretion. Previous decisions have identified the following as being potentially relevant:
·The workload of the judge likely to thereafter be seized of the matter: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [43];
·The probability of the recurrence of transfers to the court in like circumstances: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [44];
·Whether the matter was commenced in accordance with any relevant protocol: Summers & Shaw [2011] FamCA 889 at [30].
Rule 11 of the Family Law Rules contains the relevant standard rules of court for the purposes of s 33B(4). Relevantly it provides as follows:
11.17. 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.
11.18(1). In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:
(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 the 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.
11.18(2) …
It will be appreciated that since r 11.17 on its face only applies to an application for transfer made by a party, strictly speaking r 11.18 would have no application to the present facts, where the court is considering transfer on its own motion. However logically, the matters therein enumerated will also be potentially relevant in considering an own motion transfer. The other point worthy of note is that the rule does not make it mandatory to consider the matters listed in r 11.18(1).
THE REASONS FOR THE TRANSFER TO THIS COURT
Whilst apparently no reasons were delivered for the transfer to this court on 14 April 2016, I have already observed that the prelude to the substantive transfer recited references to the alleged violence and stalking, unspecified mental health issues, the fact of the father’s previous criminal history, and the mother’s fears in relation to her safety. From that, it appears as though those are the matters which informed her Honour’s discretion to transfer. However, it is unclear whether her Honour perceived that the matter fell within the protocol, and if so on what basis, or what otherwise motivated the transfer. Particularly none of the eight matters specified in the protocol appear to be engaged, at least by reference to the matters recited by her Honour. Perhaps her Honour had in mind the question of whether there are serious allegations of controlling family violence warranting the attention of a superior court, but whilst it may be accepted that the allegations relate to serious controlling family violence, there is nothing in the recital to the transfer order which explains why they warrant the attention of a superior court.
Absent reasons, it is not possible to determine how her Honour had regard to any of the three relevant matters that she was obliged to have regard to in s 39(4) of the Federal Circuit Court of Australia Act, and particularly any conclusion that her Honour made in relation to the interests of the administration of justice. Further, although s 39(4)(a) obliged her Honour to have regard to FCCR r 8.02, it is not possible to ascertain what conclusions her Honour reached as regards the five factors listed in FCCR r 8.02(4). That therefore makes the task of this court considerably more difficult than it otherwise would be, because it is without the benefit of any findings or conclusions in relation to those matters. Necessarily in my view, the reasons for any transfer to the Family Court would be a matter relevant to have regard to in determining whether or not this court should exercise the discretion under s 33B.
Whilst perhaps the absence of reasons might be explained by the absence of any right of appeal from the decision to transfer (see Federal Circuit Court of Australia Act s 39(6)), it is well established that reasons are desirable to satisfy a number of other purposes. Thus in Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 at 279 McHugh JA (as his Honour then was) said:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do the justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“… A requirement that judges give reasons for their decisions – grounds of decision that can be debated, attacked, and defended – serves a vital function in constraining the judiciary’s exercise of power.”
Thirdly, under the common law system of adjudication, courts not only resolve disputes – they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
In this case, the absence of reasons, together with the reference to the protocol in the order, may give the protocol the appearance of disproportionate significance in her Honour’s reasoning. However plainly, the protocol cannot supplant s 39(4) and FCCR r 8.02(4).
RELEVANT CONSIDERATIONS HERE
I identify the following matters as relevant to the exercise in my discretion in this case:
·That the parties commenced the proceedings in the Federal Circuit Court of Australia, and no application to transfer was made by either party in accordance with FCCR r 8.02(2);
·Whether the matter was commenced in accordance with the relevant protocol or, if commenced now would, in conformity with the protocol, be required to be commenced or heard in this court;
·The adequacy of the resources of the Federal Circuit Court to hear and determine the proceeding;
·The adequacy of the resources of the Family Court to hear and determine the proceedings;
·The jurisdiction in which the parties are likely to obtain the earliest trial date;
·The wishes of the parties;
·The degree of complexity of the proceedings;
·Whether the proceeding involves one or more questions of general importance;
·The public interest in not having litigants transferred between courts “in the manner of a tennis match”;
·How far the matter has progressed in this court since transfer.
I will discuss those matters in that order.
Proceedings commenced in Federal Circuit Court and no application to transfer
The proceedings were filed on 17 December 2015, and the first date allocated to them was 7 March 2016. FCCR r 8.02(2) is mandatory in its terms. The failure of either party to make an application in accordance with its provisions necessarily means that both parties accepted that the Federal Circuit Court was the appropriate court for the determination of their dispute.
Application of the protocol at filing and now
It is possible, given the allegations raised by the mother, that the protocol may have suggested that they should be commenced in this Court rather than the Federal Circuit Court. However as I have already observed, the parties appear not be in dispute that such risk as the father presents to the child does not preclude him from having unsupervised time with the child. To the extent that he presents as a risk, it appears to motivate the mother’s desire to not have that time extend to overnight time, and to propose a less generous regime than that sought by the father. Therefore whilst there may well be serious allegations of family violence, it is highly doubtful that they warrant the attention of a superior court, as they do not appear to substantially inform the outcome of the care regime for the child, such as suggesting that the father should spend no time or only supervised time with the child.
Adequacy of Federal Circuit Court resources
The Federal Circuit Court has a resident judge based in Cairns, and other judges of that court circuit there from time to time. There is no reason to think that the Federal Circuit Court does not have adequate resources to deal with this matter
Adequacy of Family Court resources
The Family Court does not have a resident judge in Cairns, but has always serviced the Registry by visiting judges, in recent years to the extent of about 12 to 14 weeks per year. The capacity of the court to continue to service Cairns at that level must be moot giving the diminishing judicial resources of the Family Court in Queensland, at least at this point in time. There are, effectively, presently only four trial division Family Court Judges servicing not only the Queensland population of 4.7 million, but also northern New South Wales with a population of about 300,000, as well. Far North Queensland only has a population of 275,000 people. Plainly there are resource issues in relation to the Family Court.
Jurisdiction likely to have earlier trial
It is possible, given the relative workloads of both courts in Cairns, that an earlier trial could be had in the Family Court rather than the Federal Circuit Court. That said the Family Court is not due to sit in Cairns again until 12 September 2016, and the list for those sittings is already being filled. It does not appear likely that this matter would be ready for those sittings, and indeed may not be ready for the next sittings in this court in Cairns, due to commence 28 November 2016 or even not until 2017. Therefore there is no reason to conclude that there is a substantial likelihood of an earlier trial in this court than the Federal Circuit Court.
The wishes of the parties
No party expressed any wish as to where the matter should proceed.
Complexity
Patently this matter is not complex. In saying that I mean no disrespect to the seriousness of the allegations of family violence. The question of whether or not the father has behaved in the manner alleged to the mother may require resolution of conflicting evidence, but it does not seem likely to be complex in nature. The question of the father’s criminality and convictions for drug offences appears incontestable. Any mental health issues are likely to be adequately addressed by a psychiatric assessment by a single expert. The basis for the mother’s alleged grave fears in relation to her personal safety and the child’s safety firstly need to be considered in light of the final orders which she seeks, but also will no doubt largely fall to be determined by the findings in relation to past, historical family violence.
As distasteful as such allegations are, the unpleasantness of them does not of itself make them complex. Indeed no doubt contemporaneous medical or counselling records relating to the mother and father will presumably make the resolution of questions of past historical conduct relatively simple to resolve. Even if those contemporaneous and independent documents are not available, that itself may inform the likely resolution of the disputed questions of fact.
Unfortunately in modern day Australia, allegations of family violence are all too common. The fact that they are made, does not of itself mean that they warrant the attention of a superior court. In my view those sorts of matters ought properly warrant the attention of a superior court when they stand to substantially impact upon the parental relationship with the child. This is not such a case. It is not complex, at least on the presently available material.
Questions of general importance
No question of general importance is raised by this case.
“Tennis match” concerns
Whilst I accept the validity of the comments in this respect made by White J in Fair Work Ombudsman v Ecosway Pty Ltd (supra), there are many instances in this court where judges have, of their own motion, re-transferred recently transferred matters back to the Federal Circuit Court: Nemeck & Jump [2010] FamCA 1012 is but one of many such cases.
Ultimately the question becomes whether, in the exercise of the discretion, the weight that should be given to any such public concern outweighs legitimate public concerns that scarce resources of this court are being employed to deal with matters not properly otherwise suitable for this court. Whilst different judges may legitimately have different views as to the weight to be given to “tennis match” concerns, as a general proposition, so long as any transfer back is made promptly, and no party is disadvantaged by the loss of an imminent trial date, then in my view this court should be vigilant to ensure that it only does that work that is appropriate for it. If there is otherwise no basis for this court to retain a case, questions of public perception are unlikely to loom large in the exercise of the discretion under s 33B.
I should say that whilst this appears to have been an important consideration in Fair Work Ombudsman v Ecosway Pty Ltd (supra), there is an important distinction to be drawn between the facts of that case and this. In that case, it appeared that there was the imminent prospect of a transfer protocol being negotiated between the two courts, and as such it was improbable that there would be a recurrence of a transfer of that kind to the Federal Court of Australia. In this case however, the relevant protocol is already in existence, and indeed has been in existence for many years.
Progress in this court so far
This matter has not progressed at all in this court since its transfer on 14 April 2016.
EXERCISE OF THE DISCRETION
I am satisfied that the resources of the Federal Circuit Court in Cairns are sufficient to hear and determine this proceeding. I am satisfied that the interests of the administration of justice are best served by transferring a matter, which has no proper basis to be in this court, to the appropriate jurisdiction. I am otherwise satisfied that, balancing the other factors to which I have adverted above, confirms, and indeed compels, transfer back to the Federal Circuit Court.
CONCLUSION
There will be an order under s 33B(1) and s 33B(2)(b) that these proceedings be transferred to the Federal Circuit Court of Australia at Cairns.
I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 3 May 2016.
Associate:
Date: 3 May 2016
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