BENSON & OWENS - [2011] FamCAFC 236

FAMILY COURT OF AUSTRALIA

BENSON & OWENS

[2011] FamCAFC 236

FAMILY LAW ─ APPEAL ─ PRACTICE AND PROCEDURE ─ Application for leave to Appeal against order of Federal Magistrate that the hearing of the proceedings be transferred to the Federal Magistrates Court at Adelaide ─ Change of venue ─ Where it was asserted on behalf of the respondent wife that Adelaide was a more appropriate forum for the hearing of the contested proceedings between the parties ─ Where it was, properly in this Court’s view, not asserted that Sydney was a clearly inappropriate forum ─ Where it was not established that the learned Federal Magistrate erroneously failed to recognise any entitlement of the appellant husband to seek to continue to have the proceedings heard in the forum which he had selected ─ Where it is objectively difficult to suggest that the weight able to be, and in fact given to the circumstances of the parent of either party, who are to be witnesses in the contested proceedings, by the learned Federal Magistrate could have established, on the balance of probabilities, that, the interests of justice would be better served by transferring the proceedings to Adelaide ─ Where the fine balance between the difficulties for the appellant husband’s mother in potentially having to travel to Adelaide to give evidence, and for the respondent wife’s father to travel to Sydney to give evidence, and the reality that the learned Federal Magistrate did not say that the balance so favoured the wife as to allow her to conclude that the proceedings should be transferred to Adelaide, reinforce the Court’s conclusion in relation to her Honour’s reliance upon the fact of which she erroneously took judicial notice ─ Where the appellant husband demonstrated that his proposed appeal has merit, as it could not be successfully asserted that the application for a change of venue could not have had a different outcome ─ Application for leave to Appeal allowed ─ Order transferring the proceedings to Adelaide discharged

FAMILY LAW ─ DE FACTO RELATIONSHIPS – Where the duration of the de facto relationship between the parties is controversial and the circumstances of their financial relations and contributions made – Where, if, the Court concludes that the de facto relationship broke down in January 2010, as the appellant husband asserts, the Federal Magistrates Court sitting in South Australia would have jurisdiction to entertain the proceedings, is less than certain ─ Where what is certain is that, subject to issues in relation to the “geographical connection”, the Federal Magistrates Court sitting in New South Wales would have jurisdiction to do so, the date of commencement of Part VIIIAB of the Family Law Act 1975 (Cth) in the state of New South Wales having been 1 March 2009 – Where given the uncertainty as just what, and how, the “threshold” issues will evolve, and will be determined, the preferable course is that this Court do no more than remit the “the proceedings” to the Federal Magistrates Court ─ Proceedings remitted to the Federal Magistrates Court

FAMILY LAW ─ APPEAL ─ COSTS ─ Where to visit the costs of the application and the appeal on the respondent wife would be unjust given that the application and appeal was allowed as a consequence of an error of law ─ Where the Court concluded that both parties should be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 ─ Where that outcome was not canvassed with Counsel for the parties ─ Where the parties are to jointly notify the Court in writing of their desire that the Court make the orders granting costs certificates to both parties

Family Law Act 1975 (Cth); Part VIII, VIIIAB; ss 4, 90RD, 90RD(1), 90SB(c), 90SD, 90SK, 90SM, 90SM(4), 90SM(4)(a), (b) & (c),
Federal Magistrates Court Rules 2001(Cth) rr 8.01, 8.01(1), 8.01(2), 8.01(2)(d)
Federal Proceedings (Costs) Act 1981 ss 6, 9
Evidence Act 1995 (Cth) ss 144, 144(1)(a) & (b), 144(3), 144(4)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bruce F McLaren Holdings Pty Ltd and Others v McLaren and Another (2000) 155 FLR 403
De Winter v De Winter (1979) 23 ALR 211
Henry v Henry (1996) 185 CLR 571
Navarro & Jurado (2010) 247 FLR 374
Pagliotti & Hartner (2009) 223 FLR 121
Regie Nationale Renault v Zhang (2002) 210 CLR 491
Rutherford and Rutherford (1991) 105 FLR 41
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPELLANT:

Mr Benson

RESPONDENT:

Ms Owens

FILE NUMBER:

SYC

1552

2011

APPEAL NUMBER:

EAA

2011

DATE DELIVERED:

15 December 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

5 December 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 June 2011

LOWER COURT MNC:

[2011] FMCAfam 757

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Anderson

SOLICITOR FOR THE APPELLANT:

Etheringtons Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Sansom

SOLICITOR FOR THE RESPONDENT:

Clelands Solicitors

Orders

That the application for leave to appeal filed on 6 July 2011 be allowed.
That the appeal against the orders of the Federal Magistrates Court of 8 June 2011 be allowed.
That order 1 of the Federal Magistrates Court of 8 June 2011 transferring the proceedings to the Federal Magistrates Court in Adelaide be set aside.
That the proceedings be remitted to the Federal Magistrates Court.
That the Court grants to the Appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs incurred by the Appellant in relation to the appeal.
That the Court grants to the Respondent a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent in respect of the costs incurred by the Respondent in relation to the appeal.
That the operation of the costs certificates orders 5 and 6 be stayed until 14 days after the date of judgment.
That either party have leave to apply in relation to orders 5 and 6 within 7 days.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EAA 80 of 2011
File Number: SYC 1552 of 2011

Mr Benson

Appellant

And

Ms Owens

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Notice of Appeal filed 6 July 2011 Mr Benson appealed against orders made by Federal Magistrate Walker on 8 June 2011 in proceedings between himself and Ms Owens. As the orders of the learned Federal Magistrate were interlocutory, leave to appeal was required. Sensibly, Counsel for the parties agitated the proceedings before this Court in the light of the authorities governing the granting of leave to appeal, although no formal application for leave had been filed.
Consistent with authority (see Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Bruce F McLaren Holdings Pty Ltd and Others v McLaren and Another (2000) 155 FLR 403 and Rutherford and Rutherford (1991) 105 FLR 41), the Court approaches the proceedings on the basis that, if any of the proposed challenges to the decision of the learned Federal Magistrate is found to have merit, leave to appeal will be granted and the appeal upheld.

MATERIAL FACTS

By way of background to the proceedings in this Court, the following matters emerge from the reasons for judgment of the learned Federal Magistrate. These matters are not controversial for present purposes.
On 14 March 2011 Mr Benson (who in the interests of clarity will be referred to as “the husband” throughout these Reasons) filed an application in the Federal Magistrates Court at Sydney seeking relief pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”), which deals with “financial matters relating to de facto relationships”.
On 18 May 2011 Ms Owens (who, also in the interests of clarity, will be referred to as “the wife” throughout these Reasons) filed an answer to the husband’s claim opposing the granting of relief in the terms sought by the husband and seeking alternate relief, pursuant to Part VIII of the Act.
For the purpose of the proceedings before the learned Federal Magistrate, and in this Court, it was accepted that the parties had cohabited in a de facto relationship within the meaning of those terms in section 4 of the Act from 2004 until at least 2006. The husband contended that the parties’ de facto relationship continued until January 2010. The wife denied that there had been a de facto relationship after 2006.
When the proceedings were commenced, both parties were resident in the State of South Australia. The wife continues to reside in South Australia. The evidence before the learned Federal Magistrate was that the husband may relocate to New South Wales.
The husband’s contention is that four of the six years, during which he asserts that the parties were living in a de facto relationship, were spent in the State of New South Wales where, it was asserted, most of the parties’ property dealings occurred.
The wife does not appear to dispute that, until the time at which she asserts the de facto relationship ended in 2006, the parties lived in the State of New South Wales. Although there is an issue as to the nature of her relationship with the husband thereafter, the wife lived and has continued to live in the State of South Australia since approximately 2008.
In about October 2007 the property at U in the State of South Australia was purchased in the sole name of the wife in circumstances which are controversial. The wife retains that property.
For reasons which she provided, on 1 August 2011, the learned Federal Magistrate ordered that the hearing of the proceedings be transferred to the Federal Magistrates Court at Adelaide.

THE APPLICATION FOR LEAVE TO APPEAL

In the course of comprehensive and cogently articulated submissions, Counsel for both parties raised a number of issues which require the Court’s consideration.
Counsel for the parties agreed that their submissions traversed five issues of potential significance. Given the helpful course which Counsel’s oral submissions took at the hearing of the husband’s application, it is convenient, and hopefully instructive, to consider the husband’s application, and the wife’s resistance to it by reference to the five topics of significance.

The husband’s choice of a forum which was not “clearly inappropriate”

As is not in doubt, at a time when he was resident in the State of South Australia, the husband filed his application under Part VIIIAB of the Act at Sydney in the State of New South Wales. Although the wife asserted that Adelaide was a more appropriate forum for the hearing of the contested proceedings between the parties, it was, properly in this Court’s view, not asserted that Sydney was a clearly inappropriate forum (see: Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538, Regie Nationale Renault v Zhang (2002) 210 CLR 491, Henry v Henry (1996) 185 CLR 571, Pagliotti & Hartner (2009) 223 FLR 121 & Navarro & Jurado (2010) 247 FLR 364). As will be seen, potentially the more significant issue which has emerged is whether South Australia would be a “clearly inappropriate forum”.
As Counsel for the husband frankly confirmed, a major complaint of the husband was that, having chosen a forum which was not clearly inappropriate, and did not involve “forum shopping”, he ought not be lightly denied the opportunity to have his claim determined by that forum. Given that it is the same Court wherever the proceedings are heard, references to “forum” in this context are perhaps less than completely appropriate.
The Court concludes that there is no presumption in favour of the husband’s application continuing to be heard at Sydney. The learned Federal Magistrate undoubtedly had power to grant the wife’s application to change the venue of the hearing of the proceedings. The Federal Magistrates Court Rules 2001 (Cth) expressly provide for orders being made changing the “registry” in which proceedings are heard, and stipulate the matters to which the Court must have regard in determining applications of that kind.
The Rules provides that:
8.01 Change of venue
(2) In considering an application, the Court must have regard to:
(a)the convenience of the parties; and
(b)the limiting of expense and the cost of the proceeding; and
(c)whether the matter has been listed for final hearing; and
(d)any other relevant matter.
Whilst the husband in this case was entitled to commence proceedings in Sydney, and that may be a matter of relevance within Rule 8.01(2)(d), that could not, having regard to the provision of the Rules, be conclusive of an application under Rule 8.01(1).
As is not in doubt, the learned Federal Magistrate proceeded on the basis that the husband was entitled to commence the proceedings in Sydney and drew no inferences adverse to him as a result of his having done so. As is also not in doubt, and sensibly so, Counsel for the husband resisted the wife’s application before the learned Federal Magistrate in reliance upon the circumstances of the parties and their witnesses. Nothing to which this Court has been referred establishes that the learned Federal Magistrate erroneously failed to recognise any entitlement of the husband to seek to continue to have the proceedings heard in the forum which he had selected.
There may be cases where the choice of forum by an applicant assumes significance, by being clearly inappropriate, or constituting “forum shopping”, or cases where it is apparent that the transfer of proceedings could potentially visit an injustice upon that party. Where, as is not in doubt, the substantive law to be applied will be the same whether the proceedings are heard in Sydney or Adelaide, or any other place within the Commonwealth, the scope for that occurring is limited. That is perhaps even more so when it is remembered that this dispute will be determined by the same Court. In this Court’s view, the fate of this application turns more on the learned Federal Magistrate’s determination of the venue application by reference to the Rules of the Federal Magistrates Court than to this factor.

Asserted inadequate weight given to the position of the husband’s primary witness

It was submitted that the learned Federal Magistrate could not have concluded as she did, had appropriate weight been given to the circumstances of the husband’s mother who, it is not in doubt, is a material witness in support of his case.
As noted earlier, the duration of the de facto relationship between the parties is controversial. So are the circumstances of their financial relations and contributions made by each of them until 2006, and thereafter, whatever the nature and status of the parties’ relationship in that period. The husband’s mother’s evidence is material to both issues.
The husband’s mother deposed in her affidavit to events which she claimed to have seen in New South Wales subsequent to 2006, and to conversations which she alleged she had with the wife in that period, and financial and other provisions which she asserted that she had made for or on behalf of the parties.
The husband’s mother’s evidence is clearly relevant to determining whether or not a de facto relationship existed after 2006 (see section 4 of the Act) and, if the Court does not find a de facto relationship within section 90RD(1), whether “substantial contributions” of the kind referred to in s 90SM(4)(a), (b) or (c) are established, thereby potentially enlivening the operation of Part VIIIAB of the Act.
The husband’s mother is 67 years of age and “in reasonable health”. In her affidavit, the husband’s mother deposed to being the carer for her 47 year old daughter who has “Downs Syndrome and is mentally retarded”.
Inferentially, although her affidavit does not assert it, the husband’s mother contends that the care of her intellectually impaired adult daughter would create difficulty for her if she has to travel to South Australia to give evidence, as is likely if the proceedings are to be heard there.
The learned Federal Magistrate recorded in relation to the evidence of the husband’s mother (at paragraph 7) that:
7.On behalf of the husband it was also contended that a key witness in his case was his mother, Ms [A]. She is aged 67. It was acknowledged that she was in reasonable health but it was contended that she was the primary carer of an adult daughter aged 47, who was described as “mentally retarded.” It was argued that if the proceedings were transferred to Adelaide it would cause expense and inconvenience to this witness who had sworn an affidavit in the proceedings. It was further argued that Ms [A] was currently employed, and that as a consequence, a further inconvenience was the fact that she would need to take time off work to be a witness in Adelaide proceedings. It was suggested that her evidence would be relevant, in particular, because of her contention that she had incurred certain expenses in relation to the parties, and because of her evidence relating to a compensation cheque received by her in the sum of $17,562.35.
Nothing to which this Court has been referred establishes that anything there recorded by the learned Federal Magistrate was factually erroneous. Later in her reasons, her Honour reiterated (at paragraph 12) that:
12.…The husband’s mother was said to be inconvenienced because of her care of her disabled daughter. At the same time it was also asserted that she was in employment and leave from her employment would be an inconvenience for her.
Having regard to the terms of Rule 8.01, the husband’s mother’s circumstances were relevant to the exercise of her Honour’s discretion, and were a significant factor in support of the husband’s resistance to the wife’s application to transfer the proceedings to Adelaide.
As is not in doubt, the husband’s complaint was to the weight the learned Federal Magistrate gave his mother’s circumstances, rather than to any asserted error of fact in relation to it (see De Winter v De Winter (1979) 23 ALR 211). It is seldom possible to meaningfully consider weight challenges in isolation, as the weight able to be given to a particular fact or circumstance, is significantly influenced by the weight able to be given to other relevant facts and circumstances. In order to determine this challenge, it is necessary to refer to the other weight challenges sought to be agitated on behalf of the husband.

Asserted excessive weight given to the position of the wife’s primary witness

Counsel for the husband submitted that the learned Federal Magistrate could only have concluded as she did by affording inadequate weight to the circumstances of the wife’s father, who, it is not in doubt, is a material witness in her case.
In her affidavit the wife asserted in support of her application for a transfer of the proceedings to Adelaide that:
33.6.I anticipate that one of the primary witnesses in my case will be my elderly father who is now aged 87. My father has lived with me in Adelaide from May 2008 to date and is best placed to provide to the court evidence in relation to the nature of my former relationship with the Applicant during a disputed period of what the Applicant suggests was our ongoing relationship. My fathers has had two (2) major heart attacks and is frail. I anticipate that it will be far easier, safer, and cost effective for my elderly father to appear in person and give his evidence in Adelaide as opposed to having to travel to Sydney.

It is not in doubt that the wife’s father had not sworn an affidavit. Sensibly, in the context of the interlocutory application before the learned Federal Magistrate, Counsel then appearing for the husband did not object to the learned Federal Magistrate relying upon the wife’s evidence in relation to her father. The wife’s evidence was thus able to be accepted. The wife’s allegations were not glaringly improbable having regard to both the age of her father and his potential relevance in the proceedings. The wife’s evidence in relation to her father’s circumstances was not disputed before the learned Federal Magistrate or this Court. It is readily apparent that the wife did not assert that her father could not travel to Sydney, though clearly doing so would be difficult for him.
The learned Federal Magistrate said in relation to the wife’s father:
5.…that difficulties would be caused for her main witness who, it was asserted, would be able to give evidence about the central issue in the proceedings i.e., the duration of the de facto relationship. This witness was the wife’s father aged 87. It was asserted that he was in poor health. The significance of his evidence, it was said, arose from the fact that he had lived in the household of the parties. It was contended that travel to Sydney would be difficult for him and that it would not be satisfactory in such a matter, for him to give his evidence by telephone…
Her Honour concluded that:
11.The Court is guided by the factors to be considered as set out in Rule 8.01. It is relevant that the parties live in Adelaide and have both lived there for some years. Further, the Court accepts that the wife’s father would be a primary witness in relation to the threshold issue and that travel would be difficult for him, as would be the giving of evidence by telephone, given his age.
Later in her reasons, her Honour reiterated her reliance upon “the circumstances of the wife’s father, who would be a witness in the initial proceedings” in support of her conclusion that the proceedings should be transferred to Adelaide. It is not suggested that the learned Federal Magistrate erred in fact in any material way in relation to the evidence with respect to the circumstances of the wife’s father, or the potential relevance of his evidence to the issue of the existence or otherwise of a de facto relationship. The husband’s complaint is, accordingly, purely a “weight” challenge. The submission of Counsel for the husband is that her Honour gave excessive weight to that factor.
As with the challenge to the weight afforded the evidence in relation to the circumstances of the husband’s mother, this challenge is best determined in the context of all the weight challenges sought to be agitated on behalf of the husband, given the interaction of the facts and circumstances relevant to the exercise of the learned Federal Magistrate’s discretion.

The judicial notice error

In her reasons for judgment, the learned Federal Magistrate said that:
13.The Court takes judicial notice of the fact that the matter is likely to obtain a hearing date in Adelaide earlier than it would get a hearing date in Sydney.
It was submitted by Counsel for the husband that her Honour erred in principle in taking judicial notice of the matter to which she there referred. It was thus submitted that, so doing being material to its exercise, her Honour’s discretion miscarried.
Counsel for the wife effectively, and fairly, conceded that, in the circumstances, the learned Federal Magistrate could not permissibly have taken judicial notice that the proceedings were likely to obtain an earlier hearing date in Adelaide than in Sydney. Counsel for the wife submitted however that her Honour had not necessarily taken that matter into account in the exercise of her discretion.
Support for that contention was sought to be gained from the following and final paragraph of her Honour’s reasons in which she recorded that:
14.In the circumstances of this matter, given that both parties live in Adelaide, and given the circumstances of the wife’s father, who would be a witness in the initial proceedings, the Court finds that the balance of convenience is that the matter should be transferred to the Adelaide Registry of the Court.
The absence of reference to the prospect of an earlier hearing in Adelaide in the pivotal paragraph of the learned Federal Magistrate’s reasons was submitted to support the conclusion that her Honour had not relied upon that prospect.
In the alternative, Counsel for the wife submitted that, if her Honour had erroneously relied upon the matter of which she may have impermissibly taken judicial notice, there remained sufficient other undisputed facts and circumstances which would have supported the exercise of her discretion.
It is necessary first to consider whether the learned Federal Magistrate erred in principle in paragraph 13 of her reasons, which is set out above. As is not in doubt, “matters of common knowledge” or “judicial notice” are governed by the provisions of section 144 of the Evidence Act 1995 (Cth) (“the Evidence Act”) which provides:
144Matters of common knowledge
(1)Proof is not required about knowledge that is not reasonably open to question and is:
(a)common knowledge in the locality in which the proceeding is being held or generally; or
(b)capable of verification by reference to a document the authority of
which cannot reasonably be questioned.
(2)The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3)The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4)The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

Nothing to which this Court has been referred establishes that the threshold created by section 144(1)(a) or (b) of the Evidence Act was satisfied in this case. Even if the requirement of section 144(1)(a) may have been able to have been met, fundamental difficulties would have remained by virtue of section 144(4).
In the course of the understandably brief hearing of the venue application, the learned Federal Magistrate enquired of the solicitor for the wife whether he had made any inquiries as to when the proceedings could be heard in Adelaide. The solicitor for the wife informed her Honour that he had not. Nothing more was said about the matter by Counsel for the parties or the learned Federal Magistrate.
Her Honour did not suggest to the parties that the proceedings would be likely to be heard sooner in Adelaide than in Sydney. In the circumstances, her Honour could not take judicial notice that the proceedings were likely to be heard sooner in Adelaide than in Sydney. That being so, her Honour’s discretion to transfer the proceedings could not permissibly have been influenced by the matter of which she took judicial notice.
Taking into account a relevant fact or circumstance which has not been conceded or otherwise established would enliven appellate intervention if the exercise of discretion were not otherwise sustainable by reference to relevant facts and circumstances. Erroneously relying upon a fact or circumstance will not necessarily vitiate the exercise of discretion in this case. However, so doing does mean that the party, in whose favour the discretion has been exercised, needs to demonstrate that relevant facts and circumstances, which were relied upon, were sufficient to render the exercise of discretion reasonable.
The factors which impelled the exercise of her Honour’s discretion were, appropriately, briefly recorded in her reasons for judgment. Having referred to Rule 8.01, her Honour referred to the position of the wife’s father, to the position of the husband’s mother, and then to the matter of which she took judicial notice before expressing her conclusions in the terms set out above. It is difficult to accept that her Honour did not have regard in the exercise of her discretion to the matter of which she took judicial notice.
Given that her Honour could not permissibly rely, in the wife’s favour, upon the proceedings being likely to be heard earlier in Adelaide than Sydney, or in the husband’s favour upon the converse, it is necessary to consider whether, the other factors, including those which give rise to earlier complaints identified above, render the exercise of discretion erroneous.
On the evidence before the learned Federal Magistrate, where the parties were living rendered their convenience neutral. There is no evidence before this Court that, whatever the husband intended or anticipated, he has in fact moved from South Australia to New South Wales. Even if he had, that would not be a matter which would necessarily materially impact upon the complaints under consideration.
It is obvious that one party will potentially be adversely impacted in terms of legal fees depending upon where the proceedings are heard. That could not be avoided by any order her Honour could have made. The matter has not been “listed for final hearing” in Sydney or Adelaide. It is apparent that the application before the learned Federal Magistrate fell to be determined by reference to other relevant matters pursuant to Rule 8.01(2)(d).
The circumstances of the husband’s mother on the one hand and the wife’s father on the other were clearly relevant to the exercise of the learned Federal Magistrate’s discretion. As noted earlier, no factual error permeated her Honour’s consideration of the circumstances of those two material witnesses. The relative convenience of the parents of the parties was really the only matter by reference to which her Honour could permissibly have informed the exercise of her discretion.
It can be asked rhetorically why would the learned Federal Magistrate have taken judicial notice of the likelihood of an earlier hearing in Adelaide than in Sydney if she did not intend to rely upon it. Although her Honour did not purport to take judicial notice by reference to section 144 of the Evidence Act, having taken judicial notice of a fact, which could only be done pursuant to section 144, section 144(3) required the learned Federal Magistrate to take the fact “into account” in reaching her decision.
Although the learned Federal Magistrate did not, in paragraph 14 of her reasons for judgment, reiterate the fact of which she took judicial notice, in paragraph 13 of her reasons, the Court is persuaded that the exercise of her Honour’s decision must have been materially impacted by that matter. It is objectively difficult to suggest that the weight able to be, and in fact given to the circumstances of the parent of either party by the learned Federal Magistrate could have established, on the balance of probabilities, that, the interests of justice would be better served by transferring the proceedings to Adelaide. Albeit in different ways, the circumstances of both parents were compelling. It could not reasonably be suggested that the circumstances of one were materially more compelling than of the other. The possibility that the need for either parent to travel might be averted by the use of video link facilities rendered elevating the difficulties of one parent above those of the other more problematic.
The fine balance between the difficulties for the husband’s mother in potentially having to travel to Adelaide to give evidence, and for the wife’s father to travel to Sydney to give evidence, and the reality that the learned Federal Magistrate did not say that the balance so favoured the wife as to allow her to conclude that the proceedings should be transferred to Adelaide, reinforce the Court’s conclusion in relation to her Honour’s reliance upon the fact of which she erroneously took judicial notice.
The proposed challenge has merit, as it could not be successfully asserted that the application for a change of venue could not have had a different outcome.
Leave to appeal should be granted, and the appeal upheld.

The possible disadvantage to the husband by reason of the date of referral of State powers

Although it is not essential that this challenge be considered, particularly as it does not seem to have been agitated before the learned Federal Magistrate, analysis of this complaint reinforces the Court’s conclusion that leave to appeal should be granted, and the husband’s appeal upheld.
This issue was articulated in Grounds 2 and 3 of the husband’s proposed Notice of Appeal. Those complaints provided that:
2.The South Australian parliament did not refer its powers to deal with de facto relationships to the Commonwealth until 1 July 2010. The parties’ relationship ended on January 2010, thus there is no jurisdiction for the Application to be dealt with in South Australia under the Family Law Act 1975 (Cth).
3.Even if the parties agreed that the threshold issue of the existence and duration of a de facto relationship could be determined by the Adelaide Registry, the Court could well decline to do so given the absence of jurisdictions and the issue of futility.
It was common ground that the referral of power with respect to de facto relationships by the State of South Australia became operative on 1 July 2010. It was submitted that, if the husband’s assertion that the de facto relationship between the parties ended in January 2010, the Federal Magistrates Court may not have jurisdiction to determine the proceedings if they were heard in South Australia, rather than in New South Wales where the referral of powers became effective on 1 March 2009.
In his written submission Counsel for the husband submitted:
17.The threshold issue of jurisdiction of the Federal Magistrates Court of Australia to hear this matter can be determined in the Sydney Registry. It is respectfully submitted that it is in the interests of justice for the threshold issue to be determined prior to any transfer of the proceedings, due to the primary thrust of the respondent’s argument as to jurisdiction of the Court, due to the geographical connection, and the chronology of the referral of power by South Australia to become a participating jurisdiction. It is also respectfully submitted that it is wasteful of the parties limited resources, and the court’s hearing time, to separate the two issues, and they should be heard together.
Counsel for the wife submitted that:
14.As to the first ground that alleges that the Learned Federal Magistrate determined the threshold issue could be determined by the Adelaide Registry [i]t is contended that the Learned Federal Magistrate did nothing of the sort. She dealt with the venue application pursuant to the Rules of that Court and transferred the proceedings. The only reference to matters of this type appear at paragraphs 9 and 10 of the Reasons for Judgment [text removed] and no findings were made in relation to those paragraphs.
It was further submitted on behalf of the wife that:
17.The Appellant has sought to invoke the jurisdiction of a Federal Court operating under a federal law. Clearly, it does not matter where that court is located for the purposes of the exercise of jurisdiction. In the decision appealed from the matter was of course remitted to the Registry in the State where both parties live.
The “threshold issue” was identified earlier in the submissions of Counsel for the husband as relating to the “geographical conclusions” in the following terms:
14.The respondent seeks that the matter is transferred to South Australia because it would appear the geographical requirement contained in section 90SK FLA is considered by her to be helpful to the respondent’s argument if the matter is heard in South Australia. The geographical requirement before an order can be made adjusting property settlement under section 90SM FLA, is that both parties to the relationship were ordinarily resident during at least a third of the de facto relationship, or the applicant made substantial contributions in one ore more states that are participating jurisdiction at the application time. South Australia was not a participating jurisdiction until after the cesser of the relationship. The parties were resident in New South Wales for the major proportion of the de facto relationship. New South Wales was a participating jurisdiction at the time the relationship ceased in 2010. There is therefore a strong geographical connection to New South Wales.
15.Alternatively, the geographical requirement is satisfied if the parties were ordinarily resident in a participating jurisdiction when the relationship broke down. South Australia was not a participating jurisdiction when the relationship broke down.
The “threshold issue of jurisdiction” is not without complexity. Aspects of the issue appear to involve questions of law, primarily involving statutory interpretation: does the Federal Magistrates Court sitting in the state of South Australia have jurisdiction under Part VIIIAB of the Act with respect to de facto relationships which concluded after 1 March 2009 but prior to 1 July 2010? Having regard to the terms of section 90SB(c) and 90SM(4) of the Act, that issue may involve questions of fact, and law. Other aspects of the issue appear to primarily involve issues of fact, although the terms of section 90SD of the Act suggest that questions of law would also arise in that context.
As is not in doubt, the issues raised before the Court in the submissions of Counsel for both parties were not agitated before the learned Federal Magistrate. They are, as Counsel for both parties acknowledged, issues of potential complexity. Without criticising Counsel for the parties in this Court, the issue has not been fully ventilated, and may not have been able to be, or appropriately be agitated before this Court in this application. In the light of the factual issues in dispute between the parties, it is difficult to see how some of the “threshold” issues could be properly determined without the Federal Magistrates Court having heard the evidence of the parties and their witnesses tested and made findings of fact in relation to it.
If the Federal Magistrates Court concludes that the de facto relationship between the parties concluded in 2006, as the wife asserts, it will make no practical difference where that issue is determined. The Federal Magistrates Court would have no jurisdiction to entertain the proceedings, having regard to the terms of Item 86 of Part 2 of Schedule 1 to the Act which amended the Family Law Act to introduce Part VIIIAB.
Whether, if, the Court concludes that the de facto relationship broke down in January 2010, as the husband asserts, the Federal Magistrates Court sitting in South Australia would have jurisdiction to entertain the proceedings, is less than certain. What is certain is that, subject to issues in relation to the “geographical connection”, the Federal Magistrates Court sitting in New South Wales would have jurisdiction to do so, the date of commencement of Part VIIIAB of the Act in the state of New South Wales having been 1 March 2009.
Without being comfortable, or necessarily able to express a concluded view, the submission of Counsel for the husband (at paragraph 16) that:
16.It is not known how the court will interpret the provisions of this legislation concerning geographical requirements. In the circumstances, it is prudent that the proceedings be heard in the state in which there is a significant geographical connection for the relationship.
resonates with this Court.
As the submissions of Counsel for the parties recognised, complex jurisdictional issues arise for determination in these proceedings. It is difficult to see how those issues could be determined in the absence of findings of fact in relation to the various matters which would inform the determination of those issues. Given the absence of a clear imbalance of convenience, as suggested earlier, whatever the ultimate outcome of the proceedings, their continued hearing in Sydney appears to involve least potential for multiple actions, and consequential increases in legal fees.

CONCLUSION

The husband having demonstrated that his proposed appeal has merit, and it not being possible to conclude that the proceedings could not have been determined otherwise, it is appropriate to grant leave to appeal and to allow the husband’s appeal. As a consequence of doing so, the order transferring the proceedings to Adelaide will be discharged.
Given the uncertainty as just what, and how, the “threshold” issues will evolve, and will be determined, the preferable course is that this Court do no more than remit the “the proceedings” to the Federal Magistrates Court. To the extent that the venue for the further hearing of the proceedings remains controversial, it may be re-agitated in the Federal Magistrates Court.

COSTS

Whilst it was common ground at the hearing that the costs of the application should “follow the event”, the Court is uncomfortable doing so given that the application and appeal have been allowed as a consequence of an error of law in relation to section 144 of the Evidence Act on the part of the learned Federal Magistrate.
In those circumstances, to visit the costs of the application and the appeal on the wife would be unjust. As these reasons hopefully reveal, the application raised issues of complexity. The wife’s resistance to the application was entirely reasonable. The Court concludes that the parties should be granted costs certificates pursuant to the Federal Proceedings (Costs) Act 1981.
That outcome having not been canvassed with Counsel for the parties, the Court is uncomfortable to make an order in those terms without qualification.
That if, within 14 days, the parties jointly notify the Court in writing of their desire that it do so, the Court will order that costs certificates be granted to both parties.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 15 December 2011.

Associate:

Date: 15.12.2011