Murphy and Muir

[2015] FamCA 20

FAMILY COURT OF AUSTRALIA

MURPHY & MUIR [2015] FamCA 20

FAMILY LAW – PRACTICE AND PROCEDURE – Proceedings transferred to the Canberra Registry of the Federal Circuit Court

APPLICANT: Ms Murphy

RESPONDENT: Mr Muir

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER: Barbara Fox Solicitor

FILE NUMBER: BRC 6274 of 2011

DATE DELIVERED: 19 January 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 January 2015

REPRESENTATION

APPLICANT: In person

RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr George

Orders

IT IS ORDERED THAT

1. Pursuant to s 27A and s 33B(2)(b) of the Family Law Act 1975 (Cth), the proceedings are transferred to the Canberra Registry of the Federal Circuit Court of Australia.

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Within seven (7) days of today, each party contact the B Contact Centre (located at …, Australian Capital Territory) by telephoning (02) … to place their respective names on any list which may exist for the purpose of intake sessions.

2. Each party attend at the first intake session made available to them by the B Contact Centre.

3. In the event that the B Contact Centre can facilitate supervised time between the children and the mother, the parties accept the first available appointment offered by the Contact Centre and, if possible, time between the children and the mother occur on a weekly basis supervised at the Contact Centre or at such frequency as the Contact Centre can provide.

4. The parties share equally in the costs associated with any supervised time between the children and the mother which occurs at the B Contact Centre.

5. The children have telephone communication with the mother at all reasonable times and at least each Monday and Thursday at 4.00 pm (local time where the children are) with:

   (a)the father to ensure the children are available to accept the mother’s telephone call and the mother to telephone the children using the father’s mobile telephone number (…);  and

   (b)the father to ensure that the child C is available to answer the telephone;   and

   (c)the father to afford privacy to all of the children during the telephone communication with the mother.

6. Both parties are restrained from speaking with the children about the proceedings or the issues in dispute in the proceedings.

7. The father provide the mother with a copy of each child’s school progress report by email within seven days (7) of him receiving the same.

8. The father is permitted to redact the location and any other information regarding the location of the schools attended by the children prior to sending the children’s school reports to the mother. 

9. The father is restrained from changing or ceasing to use the mobile telephone number … .

10. Pursuant to s 121 of the Family Law Act 1975 (Cth), the parties are permitted to provide the B Contact Centre with a copy of this Order.

11. The Independent Children’s Lawyer forthwith forward correspondence enclosing a copy of this Order to the B Contact Centre with such correspondence to give notice that the parties are required by this Order to contact the B Contact Centre.

12. The Independent Children’s Lawyer is discharged following compliance with clause 12.

IT IS DIRECTED

1. A copy of the transcript of today’s proceeding be placed on and kept with the Court file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murphy & Muir 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 6274 of 2011

Ms Murphy

Applicant

And

Mr Muir

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. It is apparent that, pursuant to s 27A of the Family Law Act 1975 (Cth), the Court has the power at any stage of the proceeding to direct that a proceeding or part of a proceeding be conducted or continued at a place specified in the order.

2. Reference to the interchange that has preceded the delivery of these very short Reasons, will provide a clear indication as to the reasons behind the Court’s determination that it is appropriate that the proceedings be conducted, in the future, out of the Canberra Registry. 

3. That is because of a combination of the following.

4. The father and children live closer to that Registry now.  Importantly, the mother’s position, before this Court is that it is her intention to move to live closer, geographically, to the children so as to continue and facilitate a relationship with them.

5. Additionally, the mother made it clear that she has no difficulty continuing the litigation between the parties, in either Sydney or in Canberra.

6. The father has today, as I understand it, travelled to the Canberra Registry of the Court, no doubt hopeful that his late faxed Application for Leave to appear and participate in these proceedings by video link, would be successful.  He has thus demonstrated a capacity to attend at the Court in that city.

7. It seems to me, given those circumstances as briefly outlined, that is appropriate, as I have said that the litigation continue in Canberra.  In that way, the Court will have the opportunity to have the parties, who at this stage appear on their own behalf, appear in person before the Court.

8. Whilst Ms D has prepared a Family Report, and has done so by travelling from Queensland interstate to facilitate that process, it is, I consider, more desirable that a witness who has prepared a Family Report in a professional capacity be made available by video link for cross-examination (if required), rather than a party conduct the litigation by video link, particularly where that party appears in person.

9. For those reasons it seems to me to be appropriate, as I have said, that the litigation continue out of the Canberra Registry of the Court.

10. Additionally, I raised with the parties and Counsel who appears for the Independent Children's Lawyer, the prospect of a transfer of the proceedings from this Court to the Federal Circuit Court.  So much is made possible by s 33B of the Act which, at subparagraph (6), outlines matters to which this Court must have regard.

11. It is clear that the Federal Circuit Court has a number of judicial officers who sit in Canberra.  Thus, the resources of that Court appear to me to be sufficient to hear and determine these proceeding.

12. Insofar as the interests of the administration of justice are concerned, it seems to me that in circumstances where:  

    a)the father has failed to comply with an order for the timely filing of an Application to appear to prosecute the proceedings by video link, (such that he does not appear in person before me today), and

    b)the mother seeks an adjournment of the proceedings listed to commence today so as to enable her to seek legal advice as she tells the Court that she has come to the realisation, more recently, that she is not in a position to prosecute her case herself;  and

    c)the mother is not prepared or ready to proceed to do so today;   and

    d)for whatever reason, the father does not have available to him a copy of the most recent Family Report prepared by Ms D, despite the same being sent to a now unused email address by the Independent Children's Lawyer,

    this matter could not proceed for final determination before me today.

13. Consequently, for the “interests of justice” in this case a consideration of the same must take the fact of an adjournment into account.

14. The children and father now live closer to the Canberra Registry of the Court. The mother, as I have said, has expressed a willingness to continue the litigation in either the Sydney or Canberra Registry. 

15. In all the circumstances, it seems to me to be appropriate that an order is made transferring the proceedings to the Federal Circuit Court, with the file to be forwarded to the Canberra Registry of that Court.

16. Additionally, there is nothing in the material to suggest that the issues between the parties are so complex or that the facts in issue between the parties are so complex or that the issues of law between the parties, if any, are so complex as to warrant the matter remaining for determination within this Court rather than the Federal Circuit Court.

17. I have no doubt that the Federal Circuit Court is well placed to deal with this matter and to make whatever appropriate directions are determined by the relevant judicial officer as necessary for its finalisation.

18. For these very brief Reasons, I intend to make an order that the matter is transferred to the Federal Circuit Court and to the Canberra Registry of that Court.

19. As the Court is empowered to do, pursuant to s 33B(7) of the Act, I intend also to make an additional interim parenting order as I am persuaded that that order is necessary pending the disposal of the proceedings by the Federal Circuit Court of Australia.

20. I have been assisted by the submissions made by Mr George of Counsel, on behalf of the Independent Children's Lawyer, as to the form of the order and his reference to that which is contained at page 2 of the document entitled “Orders Proposed by the Independent Children's Lawyer as a Preliminary Position” filed on 12 January 2015.

21. I intend, therefore, to make interim parenting orders in the following terms.

22. It would be of assistance if prior to the discharge of the Independent Children's Lawyer, the Independent Children's Lawyer corresponded to the B Contact Centre and provided a copy of the Order to put that Centre on notice that the parties are required to contact that Centre.

23. I will also order that a copy of the transcript of the proceedings today be obtained. I direct that a copy of that transcript be placed on the file in the hope that it provides some assistance to whoever hears and determines this matter in the future.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 19 January 2015.

Associate:                 

Date:    19 January 2015