FORSTER & BECKETT
[2015] FamCA 140
•10 March 2015
FAMILY COURT OF AUSTRALIA
| FORSTER & BECKETT | [2015] FamCA 140 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where proceedings were transferred to the Family Court from the Federal Circuit Court pursuant to rule 8.02 of the Federal Circuit Court Rules 2001 – Where Court considered the protocol for guidance as to which court matters should be commenced – Where Court noted the protocol is an administrative agreement between both jurisdictions and as such, cannot fetter the discretion of either court to transfer proceedings to the other – Where Court considered statutory mandatory considerations to have regard to and that may inform the exercise of discretion – Where Court considered whether or not the matter should be transferred back to the Federal Circuit Court pursuant to section 33B of the Family Law Act 1975 (Cth) – Where no reasons were delivered for the transfer of the matter to the Family Court – Where Court noted that the reasons to transfer to the Family Court would be a matter relevant to have regard to in determining whether or not to exercise discretion under s 33B Family Law Act 1975 (Cth) – Where it appears that matter which informed the Judge’s discretion to transfer the matter was the it was likely to take in excess of four days of hearing time – Where both solicitors agree that the matter would take three days, with the prospect of a fourth, but where neither asserted it would take in excess of four days – Where Court satisfied that the resources of the Federal Circuit Court in Cairns are sufficient to hear and determine the proceeding – Where Court satisfied that the interests of the administration and justice are best served by transferring the matter, which has no basis to be in the Family Court – Where the Court noted that the balancing other factors confirms and compels the transfer of the matter – Where order made transferring the matter to the Federal Circuit Court of Australia. |
| Family Law Act 1975 (Cth) s 33B Federal Circuit Court of Australia Act 1999 (Cth) s 39 Family Law Rules rr 11.17, 11.18 Federal Circuit Court Rules 2001 r 8.02 |
| Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 Summers & Shaw [2011] FamCA 889 Nemeck & Jump [2010] FamCA 1102 Re W: Publication Application (1997) 137FLR 205 Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 |
| APPLICANT: | Ms Forster |
| RESPONDENT: | Mr Beckett |
| FILE NUMBER: | CSC | 526 | of | 2014 |
| DATE DELIVERED: | 10 March 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 5 March 2015 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Roberts Family Law |
| SOLICITORS FOR THE RESPONDENT: | Hadley Family Law |
Orders
Pursuant to s 33B(1) and s 33B(2)(b) of the Family Law Act, these proceedings be transferred to the Federal Circuit Court at Cairns to be listed on a date fixed by that court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Forster & Beckett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: CSC526/2014
| Ms Forster |
Applicant
And
| Mr Beckett |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 3 February 2015 a Federal Circuit Court Judge made an order pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001 transferring this matter from the Federal Circuit Court to the Family Court of Australia. In notations which accompanied that order, it was said that “the estimate of witnesses is 12. The estimate of time is a minimum of four days.”
Of its own motion, this court listed the matter to obtain the parties’ submissions as to whether or not the matter should be transferred back to the Federal Circuit Court pursuant to s 33B of the Family Law Act.
For the reasons which follow, I am of the view that the matter should be so transferred.
HISTORY OF THE LITIGATION
These proceedings arise from the breakdown of the parties’ de-facto relationship, and were commenced by an Application filed by Ms Forster (“the wife”) in the Federal Circuit Court on 21 August 2014. By that Application she sought a division of the net assets of the party 60/40 in her favour. On 9 October 2014, Mr Beckett (“the husband”) filed his Response, which although seeking orders requiring him to pay the wife a specific monetary sum, it equated, so I was told by his solicitor for the husband, to a division of the property 90/10 in his favour.
Each party has filed an affidavit and a financial statement and the husband has undertaken disclosure. A Conciliation Conference conducted on 19 January 2015 failed to resolve the matter.
ISSUES RAISED BY THE PROCEEDINGS
The parties are agreed that their relationship terminated in May 2013. They are not agreed as to when it commenced: the wife says it commenced in September 2006; the husband says November 2008. It appears as though, irrespective of when it commenced, there may also be some disagreement as to whether the relationship continued without interruption thereafter, with the husband asserting some periods of separation occurred during the course of the relationship.
The wife asserts that she brought into the relationship the sum of $35,000.00 which she invested into the husband’s then fledgling business. It seems to be agreed that the husband had little by way of assets at the commencement of the relationship, irrespective of when it began.
During the relationship, both parties were in employment, albeit for a large part of that time, that employment was in their own business. There are no children of the relationship. There is no dispute as to the identity of the assets in the pool, or the liabilities. The value of the parties’ real estate is agreed and the parties are in the process of having a joint valuation of the husband’s business conducted. The wife says that the net value of the assets is about $579,000.00; and husband says that it is $539,000.00.
Both parties agree that the only issues which will need to be determined at trial are firstly, the length of the relationship in question, and secondly the nature and extent of the wife’s contribution to the assets of the parties. As to these matters, the wife intends to rely upon the evidence of four lay witnesses (including herself). The husband expects to rely upon the evidence of six lay witnesses (including himself). It might reasonably be expected that all of those witnesses will be required for cross-examination, with the prospect that some of them may be challenged in relation to credit. The wife contemplates that there is a prospect that she may call another one or two witnesses, but is presently unsure.
Before me, both solicitors agree that the matter would take three days, with the prospect that it could go into a fourth day. Neither asserted that the matter would take in excess of four days. Both solicitors also expressed some optimism that the matter may yet settle, as the reality of the costs of litigation, and their progressive erosion of the parties’ relatively modest assets, becomes apparent.
THE PROTOCOL
The 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.
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.
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
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.
…
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.
The provisions which govern transfer from the Family Court of Australia to the Federal Circuit Court are relevantly contained in s 33B of the Family Law Act.
(1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.
(2) The Family Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1).
(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1).
(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia.
(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:
(a) any standard Rules of Court made for the purposes of subsection (4); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.
(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.
(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings of a kind specified in the regulations.
The phrase “the interests of the administration of justice” is a very broad one, capturing may potential considerations. No point is to be served in seeking to, in advance, describe what may fall as legitimate considerations under such a criterion, however it is useful to note that in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [42] White J identified that the prospect of a poor public perception if transfers were embarked upon by the courts “in the manner of a tennis match” was a relevant consideration.
Further, whilst s 33B(6) establishes mandatory considerations that the court must have regard to, other matters may inform the exercise of the discretion. Previous decisions have identified the following as being potentially relevant:
·The workload of the judge likely to thereafter be seized of the matter: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [43];
·The probability of the recurrence of transfers to the court in like circumstances: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [44];
·Whether the matter was commenced in accordance with any relevant protocol: Summers & Shaw [2011] FamCA 889 at [30].
Rule 11 of the Family Law Rules contains the relevant standard rules of court for the purposes of s 33B(4). Relevantly it provides as follows:
11.17. A party may apply to have a case:
(a)heard at another place; or
(b)transferred to another registry or court exercising jurisdiction under the Act.
11.18(1). In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:
(a) the public interest;
(b)whether the case, if transferred or removed, is likely to be dealt with:
(i)at less cost to the parties;
(ii)at more convenience to the parties; or
(iii)earlier;
(c)the availability of the judicial officer specialising in the type of case to which the application relates;
(d)the availability of particular procedures appropriate to the case;
(e)the financial value of the claim;
(f)the complexity of the facts, legal issues, remedies and procedures involved;
(g)the adequacy of the available facilities, having regard to any disability of a party or witness; and
(h)the wishes of the parties.
11.18(2) …
It will be appreciated that since r 11.17 on its face only applies to an application for transfer made by a party, strictly speaking r 11.18 would have no application to the present facts, where the court is considering transfer on its own motion. However logically, the matters therein enumerated will also be potentially relevant in considering an own motion transfer. The other point worthy of note is that the rule does not make it mandatory to consider the matters listed in r 11.18(1).
THE REASONS FOR THE TRANSFER TO THIS COURT
Whilst apparently no reasons were delivered for the transfer to this court on 3 February 2015, there was a notation to the orders as follows:
THE COURT NOTES that this property application has failed to settle at a Court ordered mediation and that the parties are intent on challenging various issues at trial. Those issues include the co-habitation period with the applicant alleging the relationship spanned almost 7 years, and the respondent saying it was less than half that time at 3 years. The parties also have polarized positions in relation the financial and non-financial contributions to the business and the remainder of the asset pool. Each estimates that they will be calling six witnesses to prosecute their positions. The estimate of witnesses is 12. The estimate of time is a minimum of 4 days.
Further, the terms of the order itself contain within it something in the nature of reasons as follows:
That pursuant to rule 8.02 of the Federal Circuit Court (sic) 2001, this matter is deemed appropriate for transfer pursuant to the protocols on the division of work and that these proceedings be transferred to the Family Court of Australia at Cairns to be listed in Cairns on a date to be advised.
From a combined reading of the notation and order, it appears as though the matter which informed her Honour’s discretion as to transfer was that the matter was captured within paragraph 8 of the protocol, namely “it is likely that it would take in excess of four days of hearing time” at trial.
Absent reasons, it is not possible to determine how her Honour had regard to any of the three relevant matters that she was obliged to have regard to in s 39(4) of the Federal Circuit Court of Australia Act, and particularly any conclusion that her Honour made in relation to the interests of the administration of justice. Further, although s 39(4)(a) obliged her Honour to have regard to FCCR r 8.02, it is not possible to ascertain what conclusions her Honour reached as regards the five factors listed in FCCR r 8.02(4). That therefore makes the task of this court considerably more difficult than it otherwise would be, because it is without the benefit of any findings or conclusions in relation to those matters. Necessarily in my view, the reasons for any transfer to the Family Court would be a matter relevant to have regard to in determining whether or not this court should exercise the discretion under s 33B.
Whilst perhaps the absence of reasons might be explained by the absence of any right of appeal from the decision to transfer (see Federal Circuit Court of Australia Act s 39(6)), it is well established that reasons are desirable to satisfy a number of other purposes. Thus in Soulemezis v Dudley Holdings (1987) 10 NSWLR 247 at 279 McHugh JA (as his Honour then was) said:
The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do the justice”: The Writing of Judgments (1948) 26 Can Bar Rev at 491. Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said (In Defence of Judicial Candor (1987) 100 Harv L Rev 731 at 737):
“… A requirement that judges give reasons for their decisions – grounds of decision that can be debated, attacked, and defended – serves a vital function in constraining the judiciary’s exercise of power.”
Thirdly, under the common law system of adjudication, courts not only resolve disputes – they formulate rules for application in future cases: Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1 at 3-4. Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
In this case, the absence of reasons, together with the reference to the protocol in the order, may give the protocol the appearance of disproportionate significance in her Honour’s reasoning. However plainly, the protocol cannot supplant s 39(4) and FCCR r 8.02(4).
RELEVANT CONSIDERATIONS HERE
I identify the following matters as relevant to the exercise in my discretion in this case:
·That the parties commenced the proceedings in the Federal Circuit Court of Australia, and no application to transfer was made by either party in accordance with FCCR r 8.02(2);
·Whether the matter was commenced in accordance with the relevant protocol or, if commenced now would, in conformity with the protocol, be required to be commenced or heard in this court;
·The adequacy of the resources of the Federal Circuit Court to hear and determine the proceeding;
·The adequacy of the resources of the Family Court to hear and determine the proceedings;
·The jurisdiction in which the parties are likely to obtain the earliest trial date;
·The wishes of the parties;
·The degree of complexity of the proceedings;
·Whether the proceeding involves one or more questions of general importance;
·The public interest in not having litigants transferred between courts “in the manner of a tennis match”;
·How far the matter has progressed in this court since transfer;
·The financial value of the claim.
I will discuss those matters in that order.
Proceedings commenced in Federal Circuit Court and no application to transfer
The proceedings were filed on 21 August 2014 and the first date allocated to them was 21 October 2014. FCCR r 8.02(2) is mandatory in its terms. The failure of either party to make an application in accordance with its provisions necessarily means that both parties accepted that the Federal Circuit Court was the appropriate court for the determination of their dispute.
Application of the protocol at filing and now
There is no suggestion that at the time of the commencement of the proceedings either party apprehended that the protocol meant that the proceedings should have been commenced anywhere other than the Federal Circuit Court. Even if the proceedings were commenced afresh today, given that the parties are agreed that the matter is unlikely to take more than four days, and that the issues in dispute are exclusively ones of fact relating to the length of the parties’ relationship, and the nature and extent of the wife’s contribution to the parties’ assets, the matter would still properly be commenced in the Federal Circuit Court.
Adequacy of Federal Circuit Court resources
The Federal Circuit Court has a resident judge based in Cairns and other judges of that court circuit there from time to time. There is no reason to think that the Federal Circuit Court does not have adequate resources to deal with this matter.
Adequacy of Family Court resources
The Family Court does not have a resident judge in Cairns, but has always serviced the Registry by visiting judges, in recent years to the extent of about 12 to 14 weeks per year. The capacity of the court to continue to service Cairns at that level must be moot giving the diminishing judicial resources of the Family Court in Queensland, at least at this point in time. There are, effectively, presently only three and a half trial division Family Court Judges servicing not only the Queensland population of 4.7 million, but also northern New South Wales with a population of about 300,000, as well. Far North Queensland only has a population of 275,000 people. Plainly there are resource issues in relation to the Family Court.
Jurisdiction likely to have earlier trial
Inevitably the complex Family Court children’s matters in Cairns often take priority over property matters. That is because the welfare of children at alleged risk is a matter of public interest and importance. Unless it is of some vintage, a matter such as this is unlikely to enjoy any listing priority when in competition with children’s matters involving allegations of violence, sexual abuse or the like. I therefore conclude this matter is far more likely to get an earlier hearing date in the Federal Circuit Court than it would in this court.
The wishes of the parties
No party expressed any wish as to where the matter should proceed; the husband expressly said he had no view about that.
Complexity
Patently this matter is not complex. The question of the duration of the de-facto relationship is a simple matter of fact, to be determined by reference to the circumstances of the parties’ relationship as enumerated in s 4AA(2) of the Family Law Act. The nature and extent of the wife’s contributions to the property of the parties is likewise a simple matter to be determined by accepting or rejecting the evidence of the several witnesses. This is precisely the sort of matter which should ordinarily be in the Federal Circuit Court.
Questions of general importance
No question of general importance is raised by this case.
“Tennis match” concerns
Whilst I accept the validity of the comments in this respect made by White J in Fair Work Ombudsman v Ecosway Pty Ltd (supra), there are many instances in this court where judges have, of their own motion, re-transferred recently transferred matters back to the Federal Circuit Court: Nemeck & Jump [2010] FamCA 1012 is but one of many such cases.
Ultimately the question becomes whether, in the exercise of the discretion, the weight that should be given to any such public concern outweighs legitimate public concerns that scarce resources of this court are being employed to deal with matters not properly otherwise suitable for this court. Whilst different judges may legitimately have different views as to the weight to be given to “tennis match” concerns, as a general proposition, so long as any transfer back is made promptly, and no party is disadvantaged by the loss of an imminent trial date, then in my view this court should be vigilant to ensure that it only does that work that is appropriate for it. If there is otherwise no basis for this court to retain a case, questions of public perception are unlikely to loom large in the exercise of the discretion under s 33B.
I should say that whilst this appears to have been an important consideration in Fair Work Ombudsman v Ecosway Pty Ltd (supra), there is an important distinction to be drawn between the facts of that case and this. In that case, it appeared that there was the imminent prospect of a transfer protocol being negotiated between the two courts, and as such it was improbable that there would be a recurrence of a transfer of that kind to the Federal Court of Australia. In this case however, the relevant protocol is already in existence, and indeed has been in existence for many years.
Progress in this court so far
This matter has not progressed at all in this court since its transfer on 3 February. Particularly FCCR 8.05 has not been adhered to.
The financial value of the claim
Whilst no doubt of significance to the parties, the value of the parties’ property is unremarkable.
EXERCISE OF THE DISCRETION
I am satisfied that the resources of the Federal Circuit Court in Cairns are sufficient to hear and determine this proceeding. I am satisfied that the interests of the administration of justice are best served by transferring a matter, which has no proper basis to be in this court, to the appropriate jurisdiction. I am otherwise satisfied that, balancing the other factors to which I have adverted above, confirms, and indeed compels, transfer back to the Federal Circuit Court.
CONCLUSION
There will be an order under s 33B(1) and s 33B(2)(b) that these proceedings be transferred to the Federal Circuit Court of Australia at Cairns.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 10 March 2015.
Associate:
Date: 10 March 2015
4
4