ECKETT & ECKETT

Case [2010] FamCAFC 39

FAMILY COURT OF AUSTRALIA

ECKETT & ECKETT [2010] FamCAFC 39

FAMILY LAW - JURISDICTION OF FAMILY COURT OF AUSTRALIA – Proper avenue of appeal from Family Law Magistrates – Western Australian family law system – Statutory interpretation – Interpretation of “application” provisions – Family Law Act 1975 (Cth), s 94AAA(1A)

FAMILY LAW - APPEAL – From decision of Family Law Magistrate in the Magistrates Court of Western Australia – Parties agreed appeal had merit – Appeal allowed – Remitted for rehearing – Costs certificates granted
Acts Interpretation Act 1901 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Court Act 1975 (WA)
Family Court Act 1997 (WA)
Family Law Amendment Act 2000 (Cth)
Federal Justice System Amendment (Efficiency Measures) Act (No 1) 2009 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Jurisdiction of Courts (Family Law) Act 2006 (Cth)
Magistrates Court Act 2004 (WA)
Matrimonial Causes Act 1959 (Cth)
Allesch v Maunz (2000) 203 CLR 172
CDJ v VAJ (1998) 197 CLR 172
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453
DJL v Central Authority (2000) 201 CLR 226
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Maxwell v Murphy (1957) 96 CLR 261
Nowland and Nowland (1977) FLC 90‑236
R  v Kidman (1915) 20 CLR 425
Sutton and Clark (1976) FLC 90‑121
APPELLANT: Mr Eckett
RESPONDENT: Ms Eckett
FILE NUMBER: PTW 6464 of 2008
APPEAL NUMBER: WA 12 of 2009
DATE DELIVERED: 12 March 2010
PLACE DELIVERED: Perth
PLACE HEARD: Perth
JUDGMENT OF: Coleman, Warnick and Thackray JJ
HEARING DATE: 21 October 2009
LOWER COURT JURISDICTION: Magistrates Court of Western Australia
LOWER COURT JUDGMENT DATE: 21 May 2009
LOWER COURT MNC: (Unreported, Magistrates Court of Western Australia, Fleming M, 21 May 2009)

REPRESENTATION

COUNSEL FOR THE APPELLANT: Dr Dickey QC
SOLICITOR FOR THE APPELLANT: DCH Legal Group
COUNSEL FOR THE RESPONDENT: Mr Moser
SOLICITOR FOR THE RESPONDENT: Calverley Johnston

Orders

  1. That the appeal be allowed.

  1. That the matter be remitted for further interim hearing before a magistrate other than Magistrate Fleming.

  1. That the Court grants to the Appellant Husband 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 Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

  1. That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act1981 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 Wife in respect of the costs incurred by…

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AGLC
ECKETT & ECKETT [2010] FamCAFC 39
Case
[2010] FamCAFC 39
Decision Date

CaseChat Overview and Summary

In the case of E and E, the parties were involved in a family law dispute, specifically concerning the jurisdiction of the Family Court of Australia in relation to an appeal from a decision of a Family Law Magistrate in the Magistrates Court of Western Australia. The dispute centred on the proper avenue of appeal under the Family Law Act 1975 (Cth) and whether the Family Court of Western Australia should have jurisdiction over appeals from the Perth magistrates. The appeal was heard by the Full Court of the Family Court of Australia, which was asked to decide on the interpretation of the relevant provisions in the Family Law Act 1975 (Cth) concerning the appeal process. The court had to determine if the amendments made to the Act in 2006 intended to provide litigants with the option to file in either the Family Court of Western Australia or the Magistrates Court of Western Australia, and whether this would allow judges to manage more time-consuming and complex cases.

The court found that the intention of the 2006 amendments was to support the existing system by increasing the jurisdictional limits of the Magistrates Court of Western Australia and providing an appeal structure that reflected the expertise of the specialist Family Law Magistrates. The amendments acknowledged that Perth magistrates are specialists in family law matters and therefore provided a more restricted right of appeal from their decisions. The court held that the appeal from the decisions of Perth Family Law Magistrates should go straight to the Family Court of Australia, in the same way as appeals from decisions of Federal Magistrates. The court also found that the historical background indicated that the distribution of family law work between the two Western Australian courts had been handled in a simple fashion for two decades and the process had received the imprimatur of the legislature. The court concluded that the purpose of the 2006 Amendment Act was to support the existing system and did not intend to provide litigants with the choice of filing in either the Family Court of Western Australia or the Magistrates Court of Western Australia.

As a result, the appeal was allowed, the matter was remitted for further interim hearing before a magistrate other than Magistrate Fleming, and costs certificates were granted to both parties. The children were ordered to live with the Respondent, MS ECKETT, and the Appellant, MR ECKETT, was granted visitation rights with the children on alternate weekends.

Orders

Orders of the court

1.

That the appeal be allowed.

2.

That the matter be remitted for further interim hearing before a magistrate other than Magistrate Fleming.

3.

That the Court grants to the Appellant Husband 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 Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

4.

That the Court grants to the Respondent Wife 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 Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

5.

That the Court grants to each party a costs certificate pursuant to the provisions of s.8 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

6.

That by consent, and until further order it is ordered that:-

(a) The children, M ECKETT born … 2000 and B ECKETT born … 2003, live with the Respondent, MS ECKETT.

(b) The Appellant, MR ECKETT, spend time with the said children each alternate weekend from after school Friday until commencement of school Monday extending to commencement of school Tuesday in the event of a long weekend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Minister recorded that the proposed amendments originated from a 2003 review of the workload and resources of the Family Court of Western Australia. The Minister went on to say:In relation to appeals, the Review recommended that appeals should [sic] from the Perth Court of Petty Sessions, like appeals from Federal Magistrates in family law matters, go directly to the Appeal Division of the Family Court of Australia. Prior to these amendments, appeals could be brought from the Perth magistrates to the Family Court of Western Australia and from there to the Family Court. This effectively provided an extra layer of appeal in contrast to the situation elsewhere in Australia. Under Commonwealth family law and child support legislation, appeals from decisions of federal magistrates are heard by the Full Court of the Family Court, unless the Chief Judge exercises a discretion to allow appeals to be heard by a single judge. If heard by a single judge this is an exercise of the appellate jurisdiction of the court and it is not possible to appeal from such a decision to the Full Court. Any further appeal will be to the High Court, by leave.Appeals in these matters from the decisions of Perth Family Law Magistrates will now go straight to the Family Court of Australia, in the same way as appeals from decisions of Federal Magistrates. This acknowledges that Perth magistrates are specialists in family law matters and so there should be a more restricted right of appeal from their decisions. [our emphasis added] The extraneous materials do not support the proposition that the intention of the 2006 amendments was to give litigants the choice of filing in the Family Court of Western Australia or the Magistrates Court of Western Australia so that the judges could “deal with matters which take more time and are more complex”. The irony in the proposition would be that if a litigant chose to file in the Family Court of Western Australia, and that Court determined it did not warrant the attention of a Judge, the matter would be transferred to the Magistrates Court of Western Australia, only then to find it later being returned to a Judge for a hearing de novo at the behest of any aggrieved litigant. The historical background we have provided indicates that the distribution of family law work between the two Western Australian courts has been handled in a simple fashion for two decades and the process has received the imprimatur of the legislature. There is no suggestion in any of the material to which we have been referred that the Commonwealth Parliament was in any way dissatisfied with the way in which the Western Australian courts were distributing the workload. In any event, the Commonwealth Parliament takes State courts as it finds them when conferring federal jurisdiction (Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51). The purpose of the 2006 Amendment Act was clearly to support the existing system by increasing the jurisdictional limits of the Magistrates Court of Western Australia and providing an appeal structure which reflects the expertise of the specialist Family Law Magistrates. Hence, in the case of all proceedings instituted after the commencement of Part 1 of Schedule 1 of that Act, the right of appeal under the Family Law Act 1975 from all decrees of Family Law Magistrates is to the Family Court of Australia constituted by a Full Court, save where the Chief Justice otherwise directs.

Ratio Decidendi

Legal Principle Established

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