RUTH & HUTTON

[2015] FamCA 863

FAMILY COURT OF AUSTRALIA

RUTH & HUTTON [2015] FamCA 863

FAMILY LAW – CHILDREN – Interim – Orders sought to be made by consent – Orders made and matter transferred to the Federal Circuit Court.

APPLICANT: Ms Ruth

RESPONDENT: Mr Hutton

FILE NUMBER: BRC 6188 of 2008

DATE DELIVERED: 14 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 14 October 2015

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Mylne, Turnbull Mylne Solicitors

FOR THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT THAT:

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS ORDERED THAT:

1. The Mother’s Application in a Case filed on 8 October 2015 be removed from the pending cases list.

2. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

IT IS DIRECTED THAT:

1. The Minutes of Consent remain upon the Court file.

IT IS FURTHER ORDERED THAT:

1. Pursuant to section 33B of the Family Law Act 1975 (Cth) the proceedings are transferred to the Federal Circuit Court and adjourned to a date to be fixed before that Court.

2. The directions hearing listed before the Registrar on 19 November 2015 is vacated.

MINUTES OF CONSENT

1. The Father forthwith deliver up the Australian and United States of America passports for the child B born … 2005 to the Mother’s Solicitors.

2. The Solicitors for the Mother retain in its trust account the sum of $30,000 constituting the travel bond until the Mother has returned with the child to Australia.

3. The Mother be permitted to travel to the United States of America with the child from 19 October 2015 to 12 November 2015.

4. Upon the Mother’s return to Australia with the child, the child’s passports shall be held by the Solicitors for the Mother in safe custody to be released only on the written and verified agreement of both parties or an order of the Court.

5. That the Father telephone the child B on the numbers provided to the Father three times in each calendar week.  In the alternative the Father may call the house telephone of the Mother’s family.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruth & Hutton 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 6188 of 2008

Ms Ruth

Applicant

And

Mr Hutton

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These parenting proceedings concern a child born in 2005.  Final orders were made by Federal Magistrate Cassidy, as her Honour then was, on 28 September 2010. 

2. I am informed that there was an appeal from those orders which was unsuccessful.  The orders themselves make reference to the prospect of an application being filed to vary those orders and there is reference in the orders to such an application being listed before her Honour, if that is possible.

3. By an Initiating Application filed in this Court on 7 July 2015, the mother seeks the discharge of the final orders made on 28 September 2010 and a series of other parenting orders.  Having read that application and the affidavit filed in support of it, it is clear that there is longstanding and troubling conflict between these parents, and there is at least the potential that it is that conflict which contributes to certain behavioural difficulties it seems that the child demonstrates, particularly in a school setting.

4. The affidavit, however, does not indicate to me that whilst the issues underlying this matter are undoubtedly of critical importance, particularly to the child the subject of them, that they are of such complexity or of such a nature to warrant them being heard and determined in this Court, as opposed to being heard and determined in the Federal Circuit Court. 

5. In circumstances where there has been such longstanding conflict, it is relevant to note that the current trial capacity of this Registry of this Court is limited in that with Full Court commitments there is only the equivalent of about 2.5 trial judges available to hear and determine trial matters, and an extensive pending cases list in which cases often seek expedition because of urgency created by the delay in them arriving at a trial.

6. In comparison, the Federal Circuit Court has some greater capacity to provide trial dates at an earlier time than this Court.  Moreover, it is said that there is some prospect in this case of these parties being able to reach some agreement at a forthcoming proposed mediation and Mr Mylne for the mother, and the father, who appears for himself, expressed some optimism about that occurring. 

7. It seems to me that in circumstances where it is said that there is at least the prospect of the parties being able to reach agreement, it cannot be said that there is such a sufficient degree of complexity about the issues involved in the parenting case, I repeat, no doubt important issues, but so far as complexity is concerned, as to warrant the proceedings remaining in this court.

8. For these reasons I will make orders, apart from the consent orders that I have made this morning, transferring the proceedings to the Federal Circuit Court.  I will formally vacate the directions hearing that was listed before the Registrar on 19 November 2015 and the parties will, no doubt, be informed by the Registry of the Federal Circuit Court of the further listing of the matter once the proceedings are taken into the listings of the Federal Circuit Court. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 14 October 2015.

Associate: 

Date:  15 October 2015