Duibh & Duibh
[2024] FedCFamC1F 565
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Duibh & Duibh [2024] FedCFamC1F 565
File number(s): BRC 7823 of 2023
BRC 11480 of 2024Judgment of: CAREW J Date of judgment: 26 August 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Amendment to final Order - Where the parties provided a jointly signed minute of order on 12 August 2024 seeking an amendment to the final Order made 29 May 2024 pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) – Where this Court was functus officio upon the making of the final Order – Where an Application for Consent Order was filed by the parties on 22 August 2024 and given a new file number – Where the Application was transferred to this Court on 26 August 2024 and an Order made in chambers in terms of the minute Where family law or child support proceedings cannot be instituted in this Court and the result of such jurisdictional problems creates uncertainty and unnecessary costs for litigants Legislation: Family Law Act 1975 (Cth) ss 79, 79A(1A)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 50
Cases cited: Gilford & Cavaco 2024 FedCFamC1A 55 Number of paragraphs: 12 Date of hearing: 26 August 2024 Place: Brisbane For the Applicant: Mr Wilson, HopgoodGanim Lawyers For the Respondent: Litigant in person ORDER
BRC 7823 of 2023
BRC 11480 of 2024FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DUIBH
Applicant
AND: MS DUIBH
Respondent
ORDER MADE BY:
CAREW J
DATE OF ORDER:
26 AUGUST 2024
UPON THE UNDERTAKING of the respondent wife that she will desist from:
(a)any further communications seeking that which is inconsistent with the Order made by the Honourable Justice Carew in proceeding number BRC7823/2023 on 29 May 2024 (“the Order”)
(b)Communicating to and involving the children of the marriage by any means whatsoever in matters concerning these proceedings, the evidence before these proceedings, the orders of this Honourable Court including the Order and the dispute between the parties.
THE COURT ORDERS BY CONSENT:
1.That pursuant to s 79A(1A) of the Family Law Act 1975 (Cth) and under paragraphs 30 and 31 of the Order, the Order be varied only in the following respects:
(a)The definition of “Settlement Date” in paragraph 1(t) of the Order be varied by:
(i)deleting the words “10th of August 2024” and
(ii)substituting the words “26th of August 2024”;
(b)Paragraph 2 of the Order be varied by
(i)deleting the words “to the trust account of the solicitors of the wife” and
(ii)substituting the words “to the following bank account of the respondent wife, account name […], BSB […] account number […30]”;
(c)Paragraph 8(e) of the Order be varied by
(i)deleting the words “the husband and/or his nominee be at liberty to inspect the property at a mutually agreed time 7 days prior to the Settlement or in the absence of agreement 48 hours prior to the Settlement Date to ensure that the wife has complied with her obligations under this subparagraph” and
(ii)substituting the words “the husband and/or his nominee be at liberty to:
1.attend the property at:
a.8.30am on Friday the 9th of August 2024; and
b.at a mutually agreed time to be no later than the 20th of August 2024 or in the absence of agreement on the 20th August 2024;
strictly for the purposes of inspecting the property on the 2 specified dates to ensure that the wife has complied with her obligations under this subparagraph; and
2.causing tradesperson to attend the property to commence any repairs he deems necessary, on specified dates which he will nominate depending upon availability of the tradesperson.”
NOTATION:
A.That in respect of the above variation to paragraph 1(t) of the Order the respondent wife has informed the applicant husband and his solicitors and she duly acknowledges that there are no outstanding legal fees owing to her former solicitors Hirst & Co and it is on that basis that the applicant husband enters this consent Order.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
Carew J.
After three days of what was to be a four day trial, I made a final property order pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) on 29 May 2024 in proceedings number BRC7823/2023. At that point this Court was functus officio, as all proceedings before it had been finalised.
On 12 August 2024, the parties jointly communicated with my chambers requesting a variation to the final property order pursuant to s 79A (1A) and for that purpose a signed minute of consent was provided.
Section 79A(1A) provides as follows:
Section 79A Setting aside of orders altering property interests
…
(1A)A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
On 16 August 2024, the parties were advised that the matter had been listed before me for mention on 26 August 2024 to address the question of the Court’s jurisdiction to make the order proposed in the minute of consent.
As a result of amendments to the Act which came into force on 1 September 2021, this Court’s original jurisdiction in family law matters was removed and by virtue of s 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), this Court’s jurisdiction in family law and child support matters is now entirely dependent upon those proceedings being transferred to this Court from a lower court, namely, the Federal Circuit and Family Court of Australia (Division 2) (“FCFCOA (Division 2)”), which, contrary to popular belief in some quarters, is a separate and distinct court to this Court.
Family law or child support proceedings cannot be instituted in this Court (see s 50 FCFCOA Act). The Full Court in Gilford & Cavaco[1] considered this unsatisfactory predicament and by majority held that even where there were proceedings on foot in this Court, if an amended Initiating Application is filed that purports to add a new cause of action, this Court has no jurisdiction as that new cause of action would be required to be transferred to this Court. The result of such jurisdictional problems creates uncertainty and unnecessary costs for litigants.
[1] 2024 FedCFamC1A 55.
The difficulties for litigants created by the limitations placed on this Court’s jurisdiction are exacerbated by the misrepresentation of the two courts as one court even in material emanating from the courts. For example, the two courts do not have separate court forms which differentiate between the two courts. There is a non-existent court named on the court forms i.e., “The Federal Circuit and Family Court of Australia”. Even when matters have been transferred to this Court there is no way of knowing from the courts’ own forms which court is seized of the matter. Further, the seal affixed to all filed documents perpetuates the myth of one court as it too represents a non-existent court, namely, “The Federal Circuit and Family Court of Australia”. The design of the seal affixed to orders issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the then Attorney-General.
It is very difficult for litigants, particularly litigants representing themselves, but even those represented by lawyers, to appreciate the jurisdictional limitations on this Court that have been created by the 2021 amendments.
[REDACTED]
In my view, it would be helpful for legislative amendments to be introduced as soon as possible to remedy the jurisdictional difficulties created by the 2021 amendments and, in order to address the continuing confusion about the continued existence of the two courts, it would also be helpful to revert to the previous names for the two courts and to the two previous court seals.
By the time the present case came before me, the lawyers representing one party had recognised the issue and filed a fresh application on 22 August 2024 in the FCFCOA (Division 2) in proceedings number BRC11480/2024. I was able to assist the parties achieve their desired and appropriate outcome by arranging for a registrar to transfer the proceedings to this Court and make the order pursuant to the minute of order provided by the parties on 12 August 2024 without further delay. It is also problematic that judges of this Court (a superior court of record) do not have an uplift power but have to rely upon the transfer of matters by registrars in a lower court.
Finally, the allocation of a new file number for the fresh application delayed my ability to arrange a transfer of the proceedings because my chambers were unaware of a new file having been created. It is unclear to me why this practice of allocating new file numbers was implemented in or about 2019 without checking existing files for the same parties. In this case, the order I propose to make varies a previous order, and the application should have been filed using the same file number. To further assist the parties, I will ensure that the variation of the 29 May 2024 order is included on both Court files.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 27 August 2024
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