EDWARDS & CANDEE
[2019] FCCA 2886
•17 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDWARDS & CANDEE | [2019] FCCA 2886 |
| 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, r.8.02 |
| Cases cited: Morris & Rosetti [2017] FamCA 249 Surridge & Surridge [2017] FamCAFC 10, |
| Applicant: | MR EDWARDS |
| Respondent: | MS CANDEE |
| File Number: | PAC 3548 of 2017 |
| Judgment of: | Judge Newbrun |
| Hearing date: | 25 September 2019 |
| Date of Last Submission: | 25 September 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 17 October 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Lloyd |
| Solicitors for the Respondent: | Mr Daniel |
ORDERS
These proceedings are forthwith transferred to the Family Court of Australia at Parramatta, with the matter to be mentioned on 30 October 2019 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Edwards & Candee is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3548 of 2017
| MR EDWARDS |
Applicant
And
| MS CANDEE |
Respondent
REASONS FOR JUDGMENT
The within Reasons for Judgment relate to this Court’s recent Order that these property proceedings be transferred to the Family Court of Australia at Parramatta.
Issues in dispute
The issues in dispute include the following:
a)whether or not the husband’s “hurt on duty” pension should be notionally commuted to a lump sum figure (a value of $1,860,332 has been attributed to this pension) and included in the balance sheet (counsel for the husband contended that the decision of Surridge & Surridge [2017] FamCAFC 10, a decision of the Full Court of the Family Court of Australia, an appeal from a decision of Foster J in the Family Court of Australia, is relevant in this context);
b)whether or not the parties, or one of them, or the wife’s company A Pty Ltd, owes taxation debts to the Australian Taxation Office of about $120,000 (such debts relating to the company’s superannuation guarantee, NPA reach, PAYG withholding liabilities);
c)whether or not an amount of in excess of $300,000, allegedly received by the wife from the mortgage loan account over a property at Town B should be added back into the balance sheet;
d)the appropriate assessment of contributions during the parties relationship, and post separation contributions by the parties;
e)the appropriate valuations of two pieces of real estate;
f)the appropriate valuation of the wife’s interest in her above company;
g)whether or not certain payments by the wife’s company to the wife, should be assessed as taxable under Division 7A of the Income Tax Assessment Act, 1936 (determination of this issue will require, inter alia, examination of the loan accounts between the wife’s company and the wife, and the appropriate construction of relevant provisions of Division 7A of the said Act).
h)The needs of the parties under section 75(2) of the Family Law Act, 1975.
Relevant statutory provisions and principles
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
There is likely to be significant evidence, including cross-examination, in relation to all the above issues (under the heading, at the beginning of these Reasons, “Issues in Dispute”).
There is likely to be extensive and significant cross-examination at the final hearing of:
a)Expert witness as to valuation of real estate and value of company;
b)The husband and wife, in relation to a multiplicity of issues, as referred to above;
To date, the parties have filed numerous Affidavits. Subpoenae for production of documents have already been issued to at least two entities including Employer C, and D Organisation.
There is likely to be tendered in evidence extensive documentary evidence.
It will be necessary for the Court, at the final hearing of these proceedings, to hear the competing oral submissions of the parties, based upon the likely extensive evidence before the Court.
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:
a)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 delays in appointing a fixture for a final hearing, compared to the Family Court of Australia.
b)Further, in property proceedings of this nature, in particular involving complex legal issues relating to the proper characterisation of Employer C “hurt on duty” pensions, the appropriate statutory construction of relevant provisions of Division 7A of the Income Tax Assessment Act 1936, the appropriate interpretation of corporate loan accounts, the Family Court of Australia has greater expertise.
c)The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court.
d)These proceedings are complex by reason, inter alia, of the significant dispute between the parties relating to the proper characterisation of Employer C “hurt on duty” pensions, the appropriate statutory construction of relevant provisions of Division 7A of the Income Tax Assessment Act 1936, the appropriate valuation of real estate and valuation of the wife’s shareholding in her company, and the appropriate interpretation of corporate loan accounts.
e)The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.
The Court, in the exercise of its discretion, transfers these proceedings to the Family Court of Australia, on the application of the husband and the wife.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Newbrun
Associate:
Date: 17 October 2019
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