Nemeck & Jump

[2010] FamCA 1012

FAMILY COURT OF AUSTRALIA

NEMECK & JUMP [2010] FamCA 1012

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to Federal Magistrates Court

Family Law Act 1975 (Cth)

APPLICANT: Ms Nemeck

RESPONDENT: Mr Jump

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 721 of 2010

DATE DELIVERED: 12 NOVEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: IN CHAMBERS

REPRESENTATION

SOLICITOR FOR THE APPLICANT: BAYSIDE SOLICITORS

SOLICITOR FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: REALE LAWYERS

Orders

1. That pursuant to s 33B(2)(b) of the Family Law Act 1975 (Cth), the application of the mother filed 5 March 2010 and the response of the father filed 11 March 2010 are transferred to the Federal Magistrates Court of Australia at Dandenong.

2. That the reasons for such transfer be placed on the Court file and be made available to the parties.

IT IS NOTED that publication of this judgment under the pseudonym Nemeck & Jump is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 721  of 2010

MS NEMECK

Applicant

And

MR JUMP

Respondent

REASONS FOR JUDGMENT

1. On 6 October 2010, O'Sullivan FM made orders that proceedings between Ms Nemeck (the mother) and Mr Jump (the father) be transferred to this Court.  The order of his Honour is endorsed with a notation that it is requested that the matter be considered for inclusion in the Magellan List of cases because of allegations raised by the Independent Children's Lawyer and the involvement of the Department of Human Services. 

2. Interestingly, his Honour also noted that it was “requested” that the matter not be transferred back to the Federal Magistrates Court.

3. This file was brought to me in chambers because a registrar had declined to accept the matter into the Magellan program. That decision was made by the registrar in her capacity as the Magellan Registrar. 

4. The Registrar had notified the parties that the matter would be brought to my attention in my capacity as the case management judge for the Melbourne Registry. The issue is as to what should happen with the case. To see where it should go, one has to look where it has been. That gives rise to questions of the “protocol” between this Court and the Federal Magistrates Court of Australia and issues of comity between courts.

5. The protocol between the two courts which is no more than a guide, provides that if a matter is designated by the Magellan Registrar of this Court to fit appropriately within the program of the Court, it be a case for determination by the Family Court of Australia. That designation must also consider the resources of both courts. That is the agreed position between the courts. 

6. However, in respect of “Magellan” matters, a further protocol or agreement between the courts is that prior to such a transfer, an assessment by the Magellan Registrar should occur to ensure that the case would fit within…