Beaumont and Gardner and Anor
[2015] FCCA 3201
•26 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BEAUMONT & GARDNER & ANOR | [2015] FCCA 3201 |
| Catchwords: PRACTICE AND PROCEDURE – Application for transfer to Family Court – Applications for interim orders – whether interim applications should be heard in Family Court or Federal Circuit Court – whether interim applications can be dealt with in a reasonable time – where urgency claimed. |
| Legislation: Family Law Act 1975 (Cth) Federal Circuit Court of Australia Act 1999 (Cth), s.39 |
| Applicant: | MS BEAUMONT |
| First Respondent: Second Respondent | MR GARDNER (OMITTED) HOLDINGS PTY LTD |
| File Number: | SYC 5026 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 26 November 2015 |
| Date of Last Submission: | 26 November 2015 |
| Delivered at: | Sydney |
| Delivered on: | 26 November 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hodgson (direct brief) |
| Counsel for the First Respondent: | Ms Messner |
| Solicitors for the First Respondent: Solicitor for the Second Respondent: Solicitor for the Second Respondent: | Moylan Family Law Mr Forster Forsters’ Solicitors |
ORDERS
The Application is adjourned to 4 December 2015 at 10am for Interim Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Beaumont & Gardner & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5026 of 2013
| MS BEAUMONT |
Applicant
And
| MR GARDNER |
First Respondent
| (OMITTED) HOLDINGS PTY LTD |
Second Respondent
REASONS FOR JUDGMENT
There are, before the Court today, three Applications in a Case. The first in time was filed on behalf of the Applicant on the 20th of this month. In that application, she sought leave to include Mr Gardner as a party to the proceedings in his capacity as the executor of the will of the late Respondent Mr M Gardner. She also sought and seeks further orders by way of injunctions and an order for a lump sum of money to be paid by the estate to her. Whilst Mr Gardner has now been joined as a party and, indeed, in substitution for his late brother, the other orders have not been dealt with. It has been put the Court most forcefully by the Applicant’s counsel that they are matters of a considerable degree of urgency.
His client fears that she will face eviction from the property in which she currently resides. There is some support for that fear in that the second Application in a Case to be filed, which was filed yesterday, was filed on behalf of (omitted) Holdings which sought leave for it to be joined as a party, which has now happened, but is also seeking an order that the Applicant should vacate from the property at Property C no later than 2nd January 2016. It has been put to me why there is a degree of urgency in the eyes of both parties for that matter to be resolved.
The third Application in a Case was filed this morning. That application seeks a transfer of these proceedings to the Family Court and it is supported by an affidavit of Mr Paddy Moylan, solicitor.
In his affidavit, Mr Moylan deposes that he is now instructed by Mr Gardner, the late Respondent’s executor, and he gives an opinion at paragraph 8 of his affidavit that further hearing of the matter will require at least five days of hearing time, and in paragraphs A to F of that affidavit he sets out his reasons for expressing that opinion. He goes on to say, after having set out paragraph 9, a schedule of the assets and liabilities of the late respondent’s estate. Paragraph 10 he says:
The matter is now, in my humble opinion, quite complex.
And he goes on to say that, for those reasons, he is instructed to request that the matter be transferred to the Family Court of Australia, at the Sydney Registry. Ms Messner of counsel who appears for the now First Respondent, has made submissions in support of that Application. Mr Forster, solicitor for the Second respondent, (omitted) Holdings, has made submissions also in support of the Application. Mr Hodgson of counsel for the Applicant opposes the Application for transfer. He has pointed out to me the urgency of the need to resolve the interim matters in the other Applications in a Case.
Mr Hodgson expressed the view that it would be an extraordinary step for a court to transfer a proceeding which was part heard to another court. It certainly appears to me, on the submissions before me today, that such a step, whilst unusual, is not unknown, as another example was quoted to me in respect of a decision made by my brother, Kemp, after some three days of hearing.
It is also the submission of counsel for the Applicant that this matter does not have the complexity that the other parties claim that it has and that, in his estimation, the matter could be completed in this Court on a final basis in no more than three hearing days.
My own experience of hearing this matter is that, on the advice of the parties’ legal representatives, it required three days for hearing. Two hearing days were taken up or almost two hearing days were taken up until the matter could not proceed due to the illness of the Applicant, who was under cross-examination. The matter was part heard after two days with the Applicant’s evidence unfinished. Had the Applicant been able to continue with her cross-examination, it would still not have been possible, in my view, for the matter to have been completed within the original three days that were estimated.
No matter how far the case had managed to go on the third day, it would still have gone over part heard. I have expressed the view that there has been a drastic change in circumstances. The circumstances have been brought about by a tragic incident, the untimely death of the Respondent, Mr M Gardner. As a result of orders that have been made today, the deceased’s brother and the executor of his will, to whom a grant of probate has been made, Mr Gardner, has now become a party as the deceased’s legal personal representative.
Again, the company, (omitted) Holdings, has sought to become a party and that application has been acceded to. I expressed the view this morning that the change of circumstances was somewhat drastic and in the course of argument, Mr Forster, solicitor for (omitted) Holdings, in his submission before lunch, took up that point and agreed that the circumstances of the case had changed drastically.
In her submission to the Court this afternoon, Ms Messner of counsel for the First Respondent submitted that this was not a relatively simple matter, and that the death of the late Mr M Gardner has made the matter more complicated. She went on to submit that it was now an entirely different case.
In my view, that is correct. It is an entirely different case. It has been put to me on behalf of the Respondents that further evidence will need to be adduced. Part of that is due to the fact that the late Mr M is no longer available to give evidence. That seems to me to be a reasonable submission in the circumstances. Whilst Mr Hodgson is of the view that a further three days could complete the hearing of this case, I am more inclined to accede to the view put by Mr Moylan in his affidavit that some five days would be required. And indeed, Ms Messner of counsel, in her submission, expressed the view that the case could take longer than that.
With the addition of an extra party, it is always going to take more time. There is a protocol between the Family Court and the Federal Circuit Court about the sorts of matters which should be dealt with in each court. It is my experience that the Courts adhere to that protocol and it is certainly my view that this Court should be seen to adhere to a protocol worked out between the two courts for the more efficient administration of cases that the Courts have to hear. One of the reasons why a matter could be seen as being suitable and, indeed, appropriate for transfer from this Court to the Family Court would be the length of time required for its completion.
If it is estimated to take in excess of four days, then it is a more suitable matter for the Family Court, which has the resources to deal with longer cases. If it is a case where the fact situation or the legal situation is more complex, then it is also a suitable matter for the Family Court. It has often been said by his Honour the Chief Judge of this Court that the Federal Circuit Court is a quick turnover court and with the greatest of respect, I agree. But this raises another issue and that is that whilst there is one Application to transfer the matter to the Family Court, supported by one of the other parties and opposed by the other, there are two other Applications in a Case seeking relatively urgent interim orders.
It was put to me by Ms Messner of counsel this morning that if the Court is going to transfer the matter to the Family Court, then the more appropriate course would be to transfer the matter as soon as possible with a request for urgency or expedition so that the interim matters could be dealt with in that Court, which is the Court that would be dealing with the final hearing. In principle, that is correct.
What I have to consider in respect of any application to transfer are the requirements of section 39 of the Federal Circuit Court of Australia Act 1999 (Cth) which deals with transfers from this Court, to the Federal Court and the Family Court, and the requirements of rule 8.02 of this Court which provides that the Court may at the request of a party or of its own motion transfer a proceeding to the Federal Court or the Family Court.
The rule goes on to say, at subrule (4), that in addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act, there are other factors that are relevant: (a) whether the proceeding is likely to involve questions of general importance, or (b) whether if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenient to the parties than if the proceeding is not transferred. There are other considerations, of course, in section 39 to which I have had regard.
Mr Hodgson of counsel told the Court this afternoon that he had not in the limited time available to him been able to ascertain whether the Family Court would be able to entertain this matter, presumably on either an interim or a final basis. I have over the luncheon adjournment caused my own inquiries to be made. I am reliably informed that the earliest possible date that the matter could come before the Family Court and, therefore, for the interim Applications to be considered is 25th February 2016. It is patently obvious that if the Family Court is not able to offer a date prior to 25th February, then some other steps must be taken to deal with the interim applications, which I am told have a significant degree of urgency.
Conclusions
My view is that in the circumstances this Court must undertake a hearing to deal with those interim matters so that the parties are aware in the month of December what interim arrangements are to be in force so that when the matter is transferred, if it is to be transferred, and comes before the Family Court on 25th February those matters have at least been resolved.
My view is, in an overall view, that this is a proper matter to go to the Family Court. I think it will take five days for a final hearing. I cannot see any change in under five days. Were it not for the fact that there are these interim issues that need to be considered in the relatively near future, I would transfer the matter today. However, my obligation is to do right by all manner of people.
I will find a date for half a day in the next week or so in which I will hear submissions on these interim matters. Once I have decided those interim matters, I will transfer the matter to the Family Court, but I cannot do justice to the parties by leaving the interim matters undecided if the matter is going to go over to a date that is way past the time that I am told is required for the interim matters to be resolved.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 1 December 2015
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