Ruttley and Ruttley

[2014] FamCA 378

FAMILY COURT OF AUSTRALIA

RUTTLEY & RUTTLEY [2014] FamCA 378

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer to the Federal Circuit Court pursuant to s 33B(6) Family Law Act 1975

Family Law Act 1975 (Cth)

APPLICANT: Ms Ruttley

RESPONDENT: Mr Ruttley

FILE NUMBER: BRC 2769 of 2013

DATE DELIVERED: 4 June 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 4 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Williams

SOLICITOR FOR THE APPLICANT: Barry Nilsson Lawyers

COUNSEL FOR THE RESPONDENT: Mr Coulsen

SOLICITOR FOR THE RESPONDENT: ABA Lawyers

Orders

It is ordered that

1. The Applicant Wife have leave to re-file her Application in a Case filed in the Federal Circuit Court on 21 May 2014 in this Court and that application be deemed to have been filed today in this Court.

2. Pursuant to section 33B of the Family Law Act 1975 (Cth) the proceeding be transferred to the Federal Circuit Court of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ruttley & Ruttley 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 2769 of 2013

Ms Ruttley

Applicant

And

Mr Ruttley

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In this matter property proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) were instituted on 12 April 2013, and prosecuted, in the Federal Circuit Court.

2. On 21 May 2014 the Wife filed an Application in a Case seeking to join a company as the second respondent to the proceedings and seeking relief under Corporations Law with respect to the company. The parties are the only directors and shareholders of the subject company.

3. By order today Judge Jarrett of the Federal Circuit Court transferred the proceedings to this Court because the Federal Circuit Court is not invested with jurisdiction under the Corporations Law. Currently then the proceedings are “pending” in this Court within the meaning of s 33B of the Act.

4. A question arises as to whether the Application in a Case filed on 21 May 2014 is a nullity given the lack of jurisdiction in the Federal Circuit Court to entertain that application.

5. In the circumstances, and without objection, I give leave to the Wife to re-file the application filed on 21 May 2014 and it may be taken that that application is to be treated as having been refiled today in this Court and forms part of the “proceeding” within the meaning of s 33B of the Act.

6. Both parties seek an order for the proceeding to be transferred to the Federal Circuit Court noting that by operation of s 33B(8A) that will result in that Court having the requisite jurisdiction.

7. I am satisfied, in circumstances where the case has been progressing through the Federal Circuit Court, that within the meaning of s 33B(6) the discretion ought be exercised to make an order for transfer of the proceeding to the Federal Circuit Court and I so order.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 4 June 2014.

Associate:

Date: 6 June 2014