Booker and Booker

[2018] FCCA 1698

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOOKER & BOOKER [2018] FCCA 1698

Catchwords:
FAMILY LAW – Property proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, Rule 8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MS BOOKER

Respondent: MR BOOKER

File Number: PAC 1892 of 2018

Judgment of: Judge Newbrun

Hearing date: 25 June 2018

Date of Last Submission: 25 June 2018

Delivered at: Parramatta

Delivered on: 2 July 2018

REPRESENTATION

Solicitors for the Applicant: Ms Watson of Watson Law Pty Ltd

Solicitors for the Respondent: Mr Cahill of Meehans Solicitors

ORDERS

1. These property proceedings are forthwith transferred to the Family Court of Australia at Parramatta.

NOTATION

The Court refers to its written judgment in relation to the above transfer Order.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1892 of 2018

MS BOOKER

Applicant

And

MR BOOKER

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s order of 25 June 2018 that these property proceedings be transferred to the Family Court of Australia.

2. The parties are aged in their mid-forties, their relationship spanned some 25 years, and they have three adult children.

3. The husband operates two businesses through corporate entities.  The wife conducts a business through a corporate entity.  There are two trust structures that the parties have established.  The parties have widely differing positions as to the net value of the matrimonial property pool.

Issues in dispute

1. The parties and their legal representatives attended Court on 25 June 2018 and confirmed that at least the following issues are in dispute:

   a)Valuation of the following businesses operated by the husband:

   ·    Business A Pty Ltd (this corporation operates a (business activity omitted) husband contends that he is not permitted to sell this business at a profit, which contention is disputed by the wife);

   ·    Business B Pty Ltd (this corporation operates a (business activity omitted).  The wife contends, disputed by the husband, that the property at Property A, at which the business is situated, should be valued separately from the business).

   b)Valuation of the following business operated by the wife:

   ·Business C trading as Business C (this business involves the wife (business activity omitted)).

   c)Whether the wife’s establishment of the above company Business C, resulting in the parties’ adult son Mr L holding a 50% interest in that company, represented a relevant transaction to defeat claims under section 106B of the Family Law Act 1975 (Cth) (the husband contends that the wife’s income previously obtained by her from administering contracts (client omitted) used to be income of the Mr Booker Family Trust, prior to her establishment of the above company);

   d)Whether proper financial disclosure has been provided by each party in relation to the above three corporate entities and Mr Booker Family Trust and the Booker Unit Trust.  In this context, the husband’s solicitor contended that voluminous documentation has already been supplied by the husband of the wife.  The wife’s proposed interim financial disclosure Orders are extensive and are likely, if made, to require the husband to produce voluminous documentation.

2. The Court also observes from the wife’s Affidavit the following significant assertions made by her:

   a)An allegation that the husband purchased motor vehicles during the relationship without informing the wife;

   b)An allegation by the wife that the husband purchased expensive items on his expensive dive trips without informing the wife;

   c)An allegation by the wife that the husband invested $40,000, during the relationship, in a company, without the wife’s permission and resulting in the loss of this investment;

   d)An allegation by the wife that the husband obtained loans for (business equipment) and other items without the wife’s knowledge until after purchase;

   e)An allegation by the wife that the husband had improperly failed to direct income from the business (operated by the husband) to pay off debt relating to that business;

   f)An allegation by the wife that the husband had withdrawn cash monies from the parties’ joint bank accounts without informing her.

Relevant statutory provisions and principles

1. The Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such transfers, as follows:

   14. The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate court in which parties should commence proceedings. It provides as follows:

   If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).

   1. International child abduction.

   2. International relocation.

   3. Disputes as to whether a case should be heard in Australia.

   4. Special medical procedures (of the type such as gender reassignment and sterilisation).

   5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

   6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.

   7. Complex questions of jurisdiction or law.

   8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.

   Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

   Transfers

   1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.

   2. There is no right of appeal from a decision as to transfer.

   15. It is pertinent to make the following observations in relation to the protocol:

   ·    The protocol speaks about the appropriate court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;

   ·    The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”

   ·    Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;

   ·    Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two courts, with the Family Court undertaking work more suited to a superior court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two courts work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.

   16. The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.

   RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

   17. Section 39 of the Federal Circuit Court of Australia Act 1999 relevantly provides:

   (1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to ... the Family Court.

   ...

   (4) In deciding whether to transfer a proceeding to the Family under subsection (1), the Federal Circuit of Australia must have regard to:

   (a)     any Rules of court made for the purposes of subsection 40(4);

   (b)     whether proceedings in respect of an associated matter are pending in the Family Court;

   (c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and

   (d)     the interests of the administration of justice.

   ...

   18. Rule 8.02 of the Federal Circuit Court Rules provides as follows:

   (1) 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.

   (2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.

   (3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.

   (4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

   (a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

   (b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

   (c) whether the proceeding will be heard earlier in the Court;

   (d) the availability of particular procedures appropriate for the class of proceeding;

   (e) the wishes of the parties.

Discussion

1. As to section 39(4)(c) of the Federal Circuit Court of Australia Act 1999, the resources of this Court are not sufficient to determine the likely interlocutory proceedings between the parties, relating to valuation issues and related financial disclosure issues.

2. Further, as to section 39(4) of the Federal Circuit Court of Australia Act 1999 and Rule 8.02 of the Federal Circuit Court Rules 2001:

   ·The proceedings are likely to be heard and determined at less cost and more convenience to the parties than if the proceedings are not transferred; in this Court, there are likely to be significant waiting periods between the dates of directions hearings, and delays in appointing fixtures for interlocutory disputes, compared to the Family Court of Australia. Further, in property proceedings of this nature, in particular involving significant disputes as to business valuations, financial disclosure disputes relating to corporate entities and family trusts, and disputes as to transactions to defeat claims under section 106B of the Family Law Act 1975 (Cth), the Family Court of Australia has greater expertise;

   ·The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court; property proceedings in this Court, once ready for final hearing (which this case is not), are likely to receive a final hearing date at least twelve months thereafter;

   ·Both parties expressed a desire for the proceedings to be transferred to the Family Court of Australia;

   ·These proceedings are complex by reason of the significant dispute involving business valuations, dispute as to the contended transaction to defeat claims under section 106B, and financial disclosure disputes relating to three corporate entities, and two family trusts;

   ·There is a real prospect that these proceedings are likely to take in excess of four final hearing days;

   ·The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.

3. The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia of its own motion, but notes, again, that on 25 June 2018 the parties confirmed their consent to the proceedings been transferred to the Family Court of Australia.  

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 2 July 2018