Jamie and Jamie and Anor
[2014] FamCA 1084
•5 December 2014
FAMILY COURT OF AUSTRALIA
| JAMIE & JAMIE AND ANOR | [2014] FamCA 1084 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where the proceedings were transferred to the Family Court from the Federal Circuit Court pursuant to r 8.02 of the Federal Circuit Court Rules 2001 – Where a notation appears on the order directing that consideration be given by this Court to the proceedings being heard in the Family Court on an urgent basis and for a party to have leave to appear by telephone – Where the Federal Circuit Court does not have jurisdiction to direct the listing processes of the Family Court nor to determine whether or not a party to proceedings in this Court may appear at a hearing by electronic means – Where the Court is not satisfied that there are any complex issues of fact involved or any complex issues of law that require the determination of the proceedings in the Family Court – Transfer to the Federal Circuit Court pursuant to s 33B of the Family Law Act 1975 (Cth) |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Correy & Correy & Ors [2014] FCCA 1939 |
| APPLICANT: | Ms Jamie |
| FIRST RESPONDENT: | Mr Jamie |
| SECOND RESPONDENT: | Ms Eliot |
| FILE NUMBER: | ROC | 591 | of | 2014 |
| DATE DELIVERED: | 5 December 2014 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 5 December 2014 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE FIRST RESPONDENT: | Jamie Mitchell Lawyers |
| FOR THE SECOND RESPONDENT: | In person |
Orders
It is ordered that:
Pursuant to section 33B of the Family Law Act 1975 (Cth) the proceedings are transferred to the Federal Circuit Court, Brisbane Registry to be listed on a date fixed by that Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jamie & Jamie and Anor 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: ROC 591 of 2014
| Ms Jamie |
Applicant
And
| Mr Jamie |
First Respondent
And
Ms Eliot
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
These parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) were instituted by the filing of an Initiating Application in the Rockhampton Registry of the Federal Circuit Court on 21 November 2014.
A Registrar in the Federal Circuit Court abridged time for the return date of the application in circumstances of a claim for urgency by the applicant with the result that the first return date allocated was 26 November 2014.
Thus, on 26 November 2014 the matter came before Judge Demack of the Federal Circuit Court sitting in Rockhampton. Judge Demack made a number of orders on that date including an order for the filing of material by the respondents on a timetable with the last relevant date being 12 December 2014, that is next Friday.
Her Honour also made an order under s 11E of the Act for the involvement by, and report of, a family consultant. Relevantly for present purposes her Honour ordered in paragraph 8:
That pursuant to rule 8.02 of the Federal Circuit Court Rules 2001 (Cth), these proceedings be transferred to the Family Court of Australia at Brisbane to be listed on a date to be advised.
There is also on the order issued what seems to me to be a somewhat curious notation as follows:
That consideration be given to listing this matter urgently in the Family Court of Australia at Brisbane and that the applicant is granted leave to appear by telephone link.
I say that is somewhat curious because the Federal Circuit Court does not have jurisdiction to direct the listing processes of this Court nor to determine whether or not a party to proceedings in this Court may appear at a hearing by electronic means. These are matters for this Court to determine in respect of proceedings that are pending in this Court. However for reasons which will become apparent it is not necessary to address that aspect further.
The Court file does not contain any Reasons for Judgment of Judge Demack for the transfer order referred to, so it is a matter somewhat of speculation as to what Judge Demack had in mind in determining that the proceedings should be transferred from the Federal Circuit Court to this Court. No party in the hearing on 26 November 2014 sought an order for transfer and I am informed at today’s appearance that her Honour made that order of her own volition.
Section 39 of the Federal Circuit Court of Australia Act 1999 (Cth) contains the source of power for that court to order a transfer of proceedings to this Court. Relevantly s 39(4)(c) requires the Federal Circuit Court to have regard to: whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and in sub-paragraph (d), the interests of the administration of justice. That section also requires the court to have regard to any relevant rules of the Federal Circuit Court.
As already noted, her Honour’s order made specific reference to r 8.02 of the Federal Circuit Court Rules. Under sub-rule (4) of that rule there are a number of factors to be considered by the Federal Circuit Court when considering a transfer of proceedings to the Family Court. Relevantly, sub-paragraph (a) concerns, 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 Family Court on one or more of the points in issue; in sub-paragraph (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; in sub-paragraph (c) whether the proceeding will be heard earlier in the Court; sub-paragraph (d) is irrelevant for current purposes; and sub-paragraph (e) refers to the wishes of the parties. As to the last of those, I have already noted that no party sought the transfer to this Court.
In Correy & Correy & Ors [2014] FCCA 1939, the Federal Circuit Court dealt with the question of transferring proceedings to this Court. In agreeing to the transfer the court there analysed the matters for consideration in r 8.02 noting that the matter involved complex questions of jurisdiction and law (see paragraphs 10 to 19).
Section 33B of the Family Law Act1975 (Cth) provides the source of power for this Court to transfer proceedings to the Federal Circuit Court. I make it clear that no party before me has sought that transfer and it is a matter I have raised with the parties so that any transfer is of this Court’s own initiative.
Sub-section (6) of s 33B sets out a number of matters for this Court to consider or have regard to in transferring a matter to the Federal Circuit Court. Relevantly sub-paragraph (c) of that section requires this Court to have regard to the resources of the Federal Circuit Court of Australia and whether these are sufficient to hear and determine the proceedings and in sub-paragraph (d) reference is made to the interests of the administration of justice.
Rule 11.18 of the Family Law Rules 2004 (Cth) sets out factors to be considered where that rule applies in respect of cases to be transferred. It reflects similar concepts as the rules and sections already discussed. For example, one of the sub-rules refers to costs of the parties, the convenience to the parties and whether a hearing can be had earlier if it is heard in another court. It also refers to the complexity of the facts, legal issues, remedies and procedures involved and again, the wishes of the parties.
The report ordered by Judge Demack on 26 November 2014 is now available and obviously Judge Demack did not have the report at the time she made the order for transfer. Perhaps her Honour had it in mind or anticipated that that report would highlight or reveal particular issues of complexity.
In the result, having read the material thus far filed in this case that is on the file and having read the report referred to, I am not satisfied that there are any complex issues of fact or any complex issues of law involved in this case. I emphasise that obviously the issues are important to the parties, but the question is whether there is sufficient complexity of fact or law as would warrant the proceeding being heard in this Court rather than the Federal Circuit Court. I have also had regard to the protocol for the division of work between this Court and the Federal Circuit Court as agreed between the respective heads of jurisdiction. That again in many respects is directed to the complexity of the matter.
The reality of this case is that a hearing before the Federal Circuit Court, where it is claimed that there is some urgency; is likely to be had far more quickly than I could allocate a hearing in this Court. That aspect aside, in circumstances where there is no sufficient complexity demonstrated on the material thus far, including the report I have referred to, it would not be proper in my view in the interests of justice or its administration for this Court to retain the matter rather than it being transferred to the Federal Circuit Court.
For these reasons I order pursuant to s 33B of the Act that the proceedings be transferred to the Federal Circuit Court at Brisbane.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 5 December 2014.
Associate:
Date: 5 December 2014
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