CULLEN & OBRECHT

[2015] FamCA 1018

FAMILY COURT OF AUSTRALIA

CULLEN & OBRECHT [2015] FamCA 1018

FAMILY LAW – PROCEDURE – property proceedings remitted back to the Federal Circuit Court for hearing – where the proceeding was not ready to proceed – where the pool falls within the jurisdiction of the Federal Circuit Court.

Family Law Act 1975 (Cth) s 33B
Family Law Rules (Cth) r 11.18

APPLICANT: Ms Cullen

RESPONDENT:	Mr Obrecht
INDEPENDENT CHILDREN'S LAWYER:	Ms Toomey

FILE NUMBER: BRC 5919 of 2012

DATE DELIVERED: 17 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Tree J

HEARING DATE: 17 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Seaholme

SOLICITORS FOR THE APPLICANT: Carswell & Company

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Mr Theile

SOLICITORS FOR THE INDEPENDENT

CHILDREN'S LAWYER:

Schultz Toomey O’Brien

Orders

1. The property proceedings are transferred to the Federal Circuit Court to be listed on a date fixed by that Court. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cullen & Obrecht 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: BRC 5919 of 2012

Ms Cullen

Applicant

And

Mr Obrecht

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. The trial of both the parenting and property aspects of these proceedings was listed to commence before me yesterday, although the parties proved able to resolve the children’s matters.  At the commencement of the hearing, however, I raised with the parties the prospect that the property matters were not in a position to in fact then proceed to trial.  The parties did not argue strenuously to the contrary and unfortunately, a mediation which was convened in relation to the property proceedings today has been unable to resolve them.  At the conclusion of those failed negotiation attempts, counsel for the wife sought that the matter be remitted to the Federal Circuit Court.

2. Whilst the father is understandably annoyed that, after all this time, the property proceedings are not in a position to proceed, he nonetheless, albeit begrudgingly, accepts that such is indeed the case, and accepts that the matter should now proceed in the Federal Circuit Court.  That is unfortunate, because the proceedings originally commenced in the Federal Circuit Court, separately as regards the children’s and parenting matters, and were only transferred to this court (after they had been consolidated) because of what then appeared to be some substantially complex allegations that were raised in the children’s proceedings.  Those allegations ultimately wholly fell away.

3. Therefore, whilst the property proceedings have been on foot since about 2014, and have been in this court for about a year, nonetheless they are not in a position where they could proceed to trial.  I am told without any contradiction that the parties remain about $200,000 apart in relevant property valuations.  The problem is that there is no affidavit put on by either party from a valuer, and the most valuable property cannot be ordered to be sold to ascertain its value because possession of it has been taken by a bank (as the mortgage over the property is in default) and the bank has no notice of these proceedings.  Additionally the parties remain at odds as to the quantum of their liabilities. 

4. Further, it appears as though there are issues in relation to disclosure, particularly in relation to the movement, it is alleged, of some moneys from a superannuation fund relating to the father, and real issues presently attend the father’s health.  (He is suffering from a brain tumour which requires urgent removal).  There is also said to be other deficiencies in relation to disclosure in the parties’ material which, on any view, is patently not up-to-date.  It is unfortunate to record that that situation has come about, notwithstanding the fact that it has had relatively active management in this court for nigh on 12 months.

5. However the parties’ consent does not oblige me to remit the matter, nor indeed, merely because its transfer would be supported by, and fall within, the relevant protocol agreed between the Chief Judge of the Federal Circuit Court and the Chief Justice of the Family Court, does it determine the exercise of my discretion as to whether or not it should be remitted. That discretion remains to be exercised by reference to the factors articulated in section 33B(6) of the Family Law Act and enumerated in rule 11.18 of the Family Law Rules.

6. By reference to those criterion, I make the following observations.   There are no matters pending in the Federal Circuit Court of Australia; there are sufficient resources of the Federal Circuit Court of Australia to hear and determine the proceedings; and it is in the interests of the administration of justice that the resources of the Family Court be deployed on complex matters and the resources of the Federal Circuit Court be deployed on less complex matters.

7. By reference to the factors in rule 11.18, I note that the comments I have already made in relation to the administration of justice also apply in relation to considerations of the public interest.  The next criterion deals with the prospect, if the matter were transferred, that the matter could be dealt with at less cost, more convenience or quicker.  Whilst there is no evidence as to any of those matters, I am prepared to accept that on a general basis, matters do proceed at less cost in the Federal Circuit Court and that there are more judicial resources available in Brisbane in that court to deal with matters than in this court, particularly at the moment.

8. Therefore, I am satisfied that it is likely that if remitted, the matter would proceed at less cost, at more convenience and perhaps earlier than it would in this court.  There is no suggestion that there is a specialist judicial officer required for this case, nor that there are particular procedures which need to be deployed.  The financial value of the claim is relatively modest.  On no view, on my calculations, does it exceed $300,000, which although I accept is a substantial sum to these parties, is not in a general run of things, seen as a large financial claim.

9. There is no special complexity of the facts, legal issues, remedies or procedures involved.  There seems to be a relatively straightforward history between the parties, albeit that there may be some slight twists in the facts.  Although the father is presently unwell, it is not suggested that he presently requires any special facilities in consequence of his brain tumour.  Finally, I note that both parties acknowledge that the matter should proceed in the Federal Circuit Court. 

10. Weighing those matters in the balance, I am satisfied that the matter should, be remitted to the Federal Circuit Court and will so order.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 17 November 2015.

Associate: 

Date:  17 November 2015