HARRIS & HADFIELD

Case [2017] FCCA 1185

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARRIS & HADFIELD [2017] FCCA 1185
Catchwords:
FAMILY LAW – Transfer to Family Court of Australia – parenting proceedings – previous orders remain in full force and effect.

Legislation:

Evidence Act 1995 (Cth), ss.120, 128

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 62B, 65DA, 68L

Federal Circuit Court of Australia Act1999 (Cth), ss.39(2), 40(1)
Federal Circuit Court Rules 2001 (Cth), rr.8.02(1), 15.29(1)
Cases cited:
Aiden & Grant [2016] FAMCA 861
Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 59
Goode & Goode (2006) 36 Fam LR 422
Hadfield & Harris [2014] FamCAFC 41
Hadfield & Harris [2012] FMCAfam 2
Hart & Sellwood [2016] FamCAFC 254
Films Rover International Ltd v Cannon Film Sales Ltd [1987] 1 WLR 670
HRF Nominees Pty Ltd (In Liq’n) v Pavjo Pty Ltd [2014] VSC 93
Jiang & Yip [2017] FamCA 224
Lowe & Lowe (Unrep’ HCA 6 April 1990)
M v M (1988) 166 CLR 69
Millar & Harrington (2008) FLC 93-383
Oswald & Karrington [2016] FamCAFC 152
Poisat & Poisat [2014] FamCAFC 128
Rice v Asplund (1979) FLC 90-725
Sims v Jooste & Ors(No.3) [2016] FCCA 1751
Sweeney v Sweeney [2016] VSC 483
SZVCP v Ng [2017] FCA 455
Applicant: MR HARRIS
Respondent: MS HADFIELD
File Number: MLC 8871 of 2008
Judgment of: Judge A Kelly
Hearing date: 26 May 2017
Date of Last Submission: 26 May 2017
Delivered at: Melbourne
Delivered on: 1 June 2017

REPRESENTATION

The Applicant: In person
Counsel for the Respondent: Mr Arnold
Solicitors for the Respondent: Leonard & Associates
Counsel for the Independent Children’s Lawyer: Ms Elleray
Solicitors for the Independent Children’s Lawyer: Perry Weston Lawyers

THE COURT ORDERS THAT:

  1. Upon the application by the Independent Children’s Lawyer and with the consent of the Respondent, pursuant to s.39(2)(a) of the Federal Circuit Court of Australia Act1999 (Cth) and r 8.02(1) of the Federal Circuit Court Rules 2001, this proceeding be transferred to the Melbourne Registry of the Family Court of Australia.

  2. Pursuant to r.15.29(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the affidavit affirmed by the Applicant on 14 March 2017 be struck out.

  3. For the avoidance of doubt, Order 4 made by this court on 24 February 2012 remains in full force and effect.

  4. Costs be reserved.

THE COURT DIRECTS THAT:

  1. The affidavit affirmed by the Applicant on 14 March 2017 remain on the court file in an envelope marked Not to be opened unless by Order of the Court.

  2. Exhibit 1, being the bundle of documents produced by (omitted) on 22 March 2017, remain on the court file in an envelope marked Not to be opened unless by Order of the Court.

  3. Exhibit 2, being the bundle of documents produced by DHHS on        29 March 2017 remain on the court file in an envelope marked Not to be opened unless by Order of the Court.

THE COURT NOTES THAT:

A.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 (Cth)…

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HARRIS & HADFIELD [2017] FCCA 1185
Case
[2017] FCCA 1185
Decision Date

CaseChat Overview and Summary

In this matter before Judge A Kelly, the dispute concerned parenting orders and a contravention application. The applicant, the father, sought to vary existing parenting orders, while the respondent, the mother, had filed a contravention application. The Independent Children’s Lawyer applied for the proceeding to be transferred to the Melbourne Registry of the Family Court of Australia.

The court was required to determine whether to transfer the proceeding to the Family Court of Australia, strike out an affidavit affirmed by the applicant, and address the costs of the proceedings. The court also needed to consider the implications of existing orders, particularly an order made on 24 February 2012, which had been affirmed by the Full Court of the Family Court of Australia.

The court ordered the transfer of the proceeding to the Family Court of Australia, citing the complexity of the issues raised by the contravention application and the application to vary parenting orders, as well as the anticipated length of any final hearing. The court also struck out the applicant's affidavit affirmed on 14 March 2017 and directed that it, along with certain exhibits, be sealed. Costs were reserved. The respondent's contravention application was to be listed with priority by the Family Court.

Orders

Orders of the court

1.

Upon the application by the Independent Children’s Lawyer and with the consent of the Respondent, pursuant to s.39(2)(a) of the Federal Circuit Court of Australia Act 1999 (Cth) and r 8.02(1) of the Federal Circuit Court Rules 2001, this proceeding be transferred to the Melbourne Registry of the Family Court of Australia.

2.

Pursuant to r.15.29(1)(a) of the Federal Circuit Court Rules 2001 (Cth), the affidavit affirmed by the Applicant on 14 March 2017 be struck out.

3.

For the avoidance of doubt, Order 4 made by this court on 24 February 2012 remains in full force and effect.

4.

Costs be reserved.

THE COURT DIRECTS THAT:

5.

The affidavit affirmed by the Applicant on 14 March 2017 remain on the court file in an envelope marked Not to be opened unless by Order of the Court.

6.

Exhibit 1, being the bundle of documents produced by (omitted) on 22 March 2017, remain on the court file in an envelope marked Not to be opened unless by Order of the Court.

7.

Exhibit 2, being the bundle of documents produced by DHHS on 29 March 2017 remain on the court file in an envelope marked Not to be opened unless by Order of the Court.

THE COURT NOTES THAT:

A. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

B. Order 4 made by this court on 24 February 2012 provides:

(4) A and B spend no time with the husband and communication between A and B and the husband be solely as provided for in these orders.

C. Order 4 was amongst the orders affirmed by the Full Court of the Family Court of Australia by the order dismissing the appeal to that court on 14 March 2014.

D. The respondent’s contravention application filed on 28 April 2017 be listed with such priority as the Family Court may afford.

E. The transfer of this proceeding was effected by reason of the complexity of the questions arising in the Respondent mother’s contravention application and the Applicant father’s application to vary the parenting orders made on 24 February 2012, and the court’s agreement in the assessment that if the matter proceeds to a final hearing, it is likely such hearing would take in excess of four days of hearing time.

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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