HEFFERON & MALTBY - [2010] FMCAfam 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEFFERON & MALTBY

[2010] FMCAfam 440

FAMILY LAW – Proceedings irregularly commenced – application for transfer to Family Court – meaning of ‘pending’ application – whether order to transfer constitutes an exercise of jurisdiction – meaning of ‘proceedings’ – discretion of Court pursuant to s.39 of the Federal Magistrates Act 1999.

JURISDICTION – Federal Magistrates Court’s jurisdiction to determine whether a matter falls within its jurisdiction – jurisdiction of Federal Magistrates Court to transfer a matter over which it has no jurisdiction to the Family Court – proceedings transferred from Federal Magistrates Court.

WORDS AND PHRASES – “proceeding pending”.

Family Law Act1975, s.118
Federal Magistrates Act 1999, ss.39(1), 39(4)

Stewart v Pegasus Investments and Holdings Pty Ltd (2004) FMCA 712
O’Neill v Minister for Immigration and Multicultural Affairs (2006) FMCA 1912
Fisher v Minister for Immigration and Citizenship (2007) FCA 591

Applicant:

MS HEFFERON

Respondent:

MR MALTBY

File Number:

ROC 625 of 2009

Judgment of:

Jarrett FM

Hearing date:

16 February 2010

Date of Last Submission:

23 February 2010

Delivered at:

Brisbane

Delivered on:

23 March 2010

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Madden & Co.

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Stacks//The Law Firm

ORDERS

That pursuant to s.39(1) of the Federal Magistrates Act1999, these proceedings be transferred to the Family Court of Australia at Brisbane to be listed on a date to be fixed by that Court.
That the applicant pay the respondent’s costs of and incidental to the appearance in this court on 16 February, 2010 in Rockhampton, to be agreed between the parties and failing agreement to be assessed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

ROC 625 of 2009

MS HEFFERON

Applicant

And

MR MALTBY

Respondent

REASONS FOR JUDGMENT

Revised from the transcript

By her initiating application filed on 26 October 2009, the applicant Ms Hefferon, seeks final orders that discharge certain parenting orders made by the Family Court of Australia at Melbourne on 4 May, 2005. In their stead she seeks orders that she spends time and communicates with the parties’ child as is ordered by the court.
By way of interim and procedural orders, she seeks an order that, pursuant to s.118(2) of the Family Law Act1975, she be granted leave to bring this application, that that application for leave be heard ex parte, and that clause 9 of an order made in the Family Court of Australia at Melbourne on 4 May, 2005 be discharged (that order prevents her from commencing proceedings without the leave of a judge or Court). She seeks other orders which are designed to prosecute her application for final parenting orders.
On 4 May, 2005 orders were made in the Family Court of Australia in Melbourne by Mushin J. Paragraph 9 of those orders is in the following terms:
That pursuant to section 118 of the Family Law Act 1975, the mother be and is hereby restrained from bringing any proceeding within the jurisdiction of this court or the family law jurisdiction of the Federal Magistrates Court or other court of competent jurisdiction, save with the leave of a judge of this court first had and obtained, such leave to be sought in the first instance on an ex parte basis.
Ms Hefferon’s initiating application came before me in Rockhampton on 16 February this year. For reasons that are not entirely apparent and which are not particularly relevant, the respondent appeared and sought to have the entire application dismissed.
One of the matters raised, initially by me but also raised by the respondent, was whether leave had been properly sought pursuant to paragraph 9 of Mushin J’s order. The submission was made that having ordered that leave of a judge of “this court” was necessary before the institution and prosecution of any further applications, such leave could not be granted by the Federal Magistrates Court. Clearly, the reference in paragraph 9 of his Honour’s orders to “this court” was a reference to the Family Court of Australia.
His Honour specifically refers to the Federal Magistrates Court of Australia in its family law jurisdiction and other courts of competent jurisdiction earlier in order 9, and so it seems to me that it could not be suggested that his Honour’s later reference to “this court” as the Family Court of Australia is a slip or an error, and his Honour was really intending to refer to a court exercising jurisdiction under the Family Law Act. Clearly, his Honour intended that leave be granted by a judge of the Family Court.
It goes without saying that I am not a judge of the Family Court and this court and the federal magistrates that constitute it have no power to grant the leave that his Honour suggested would be necessary in paragraph 9 of his order. The application, at least insofar as it concerns interim relief, is therefore unable to be dealt with in this court.
The substantive application before me that seeks to discharge some parenting orders and have other parenting orders made in their stead, it seems to me, is irregular because it was commenced without the requisite leave having first been obtained. This court clearly has jurisdiction to entertain such proceedings, subject to the order made by Mushin J pursuant to s.118 of the Family Law Act.
That brings me to an issue about which I sought further submissions in writing from the parties. If this court is not properly seized of jurisdiction, because its jurisdiction has not been regularly invoked does the court nonetheless have power pursuant to s.39 of the Federal Magistrates Act1999 to transfer the proceedings to another court?

I was greatly assisted by the submissions delivered by the applicant in the case and I record my appreciation for those fulsome submissions.
Sub-sections 39(1) and (4) of the Federal Magistrates Act provide the court with a discretion to transfer proceedings to another court. The occasion to exercise that discretion will arise where there are proceedings pending in this court. Are there presently pending proceedings in this court, given that the proceedings before me have been irregularly commenced?
What amounts to a pending proceeding has been the subject of some determinations. In O’Neill v Minister for Immigration and Multicultural Affairs (2006) FMCA 1912, McInnis FM considered what amounted to pending proceedings in this court. His Honour said this:
11.    It is my view that in this matter the application, absent of the court's formal determination of the objection to competency, is properly regarded as a pending application. I note that the new Shorter Oxford English Dictionary defines "pending" to include:
“Remaining undecided, awaiting decision or settlement.”
12.    I have been referred by the parties to a number of decisions which relate to the question of "pending". It is sufficient in my view to refer to the decision of Dunn v Bevan (1922) 1 Ch 276. In that case, Sargant J at 284, quoting from "the well‑known work of Oswald on Contempt of Court, Second Edition, p.62", applies the following quotation:
“Proceedings are pending immediately the writ is issued and as long as any proceedings can be taken.”
13.    It should be noted that that was in the context of a contempt of court hearing, and further in the context of comments that may have been made after judgment. Nevertheless, the quotation adopted by Sargant J from Oswald on Contempt of Court is apposite to the present case.
14. There are many ways in which the court can describe what is meant by "pending", however for present purposes I do not see any need to go beyond the dictionary definition referred to earlier in this judgment, and to also note that in this case, adapting the words referred to by Sargant J, it is my view that the application is pending immediately the application is filed in this court and as long as any proceedings can be taken in this court. Proceedings will include notices of objection to competency and other applications, which in my view also relevantly include an application pursuant to s.39 of the Federal Magistrates Act to transfer the proceedings to the Federal Court.
Those words are mirrored in a decision of Phipps FM in Stewart v Pegasus Investments and Holdings Pty Ltd (2004) FMCA 712, where his Honour dealt with the question of pending proceedings. His Honour referred to the dictionary definition of “pending,” as did McInnis FM and again his Honour referred to the decision of Dunn v Bevan.
Subsequently, in Fisher v Minister for Immigration and Citizenship (2007) FCA 591, Stone J in the Federal Court considered what was meant by the expression “pending” or “pending proceedings” as it appears in s.39 of the Federal Magistrates Act. In that decision her Honour said this:
22 The respondent points out that s 39 requires that there be a proceeding ‘pending’ in the FMC for the power of transfer to this Court to arise and submits that a proceeding cannot be ‘pending’ in a court that does not have jurisdiction in respect of it. This submission fails to take into account that while the Federal Magistrate did not have jurisdiction to review the Tribunal’s decision, his Honour did have limited jurisdiction in respect of the proceeding. Mr Lloyd did not contend otherwise; in fact his submission was premised on the Federal Magistrate having jurisdiction to decide if his jurisdiction extended to the substantive issues.
23 That leaves open the question whether the Federal Magistrate had jurisdiction to transfer the matter to a court that has jurisdiction over the substantive issues. …
24 Section 39 applies to a proceeding that is ‘pending’ in the FMC. The Macquarie Dictionary gives the meaning of ‘pending’ as including ‘remaining undecided, awaiting decision’. This is an appropriate description of the proceeding as it was until the Federal Magistrate made an order disposing of it. That order could have been to dismiss it or, as occurred, an order to transfer it to this Court. I see no reason why his Honour’s jurisdiction did not extend to the latter order.
25 The construction I have adopted is consistent with the views expressed on a number of occasions when the issue has come before the FMC; Stewart v Pegasus Investments & Holdings Pty Ltd [2004] FMCA 712 at [9] – [15], O’Neill v Minister for Immigration and Multicultural Affairs [2006] FMCA 1912 at [11] - 16]. Although there is no authority in this Court directly on point I note that in Ogawa v Phipps [2006] FCA 361; (2006) 151 FCR 311, which concerned a matter within the exclusive jurisdiction of the Federal Court, Finkelstein J made an order in the nature of mandamus requiring Phipps FM to order that the proceeding be transferred to the Federal Court. The matter was so transferred and addressed by the Federal Court in Ogawa v Registrar of the High Court of Australia [2006] FCA 607, though ultimately it was dismissed by consent.
Earlier in Fisher, Stone J pointed out that this court, as well as every other Australian court, has jurisdiction to determine whether it has jurisdiction to deal with an application before it:
13 Once the documents were filed in the FMC, that court had, at the very least, the limited jurisdiction to consider whether it had jurisdiction to deal with the application for an extension of time and with the substantive issues raised by the application. This proposition was embraced by Katz J in Katry & Price, where his Honour said: ‘Every Australian court must have at least the limited jurisdiction in every proceeding in which its jurisdiction is purportedly invoked, namely a jurisdiction to determine whether it has the jurisdiction which has been purportedly invoked.’
The upshot of all of that is that I have jurisdiction in this case to determine whether the jurisdiction of this court has been properly invoked. There is necessarily before me “pending proceedings” sufficient to support the operation of s.39 of the Federal Magistrates Act. In my view, it is not correct to say that because the original proceedings have been irregularly commenced that this court must therefore dismiss these proceedings rather than transfer them to the Family Court.
The discretion conferred by s.39 is alive and well in this case. The next issue, therefore, is whether I should exercise that discretion in favour of transfer to the Family Court. In my view, I should. There is little to be gained by simply dismissing this application.
The respondent argues that the proceedings have been improperly commenced and they ought to be dismissed and the applicant ought to be put to the trouble of recommencing the proceedings if she so chooses. The applicant argues that there would be a significant waste of time and money if that was to occur. She argues that because she is legally aided, it would be a more efficient use of those resources to simply transfer the matter to the Family Court, the court which will have jurisdiction to deal with her application for leave. And perhaps subsequently, her application for substantive orders.
This court, by the Federal Magistrates Act, is mandated to act and conduct proceedings as efficiently as possible. It seems to me that an efficient use of the court’s time, paying due regard to the objects of set out in the Federal Magistrates Act, demands that the discretion to transfer the proceedings to the Family Court be exercised in favour of a transfer. I will so order.
There is a question of costs. The respondent argues that if the application is dismissed, he should have his costs. Although they do not expressly say so, I read the submissions filed on behalf of the respondent as seeking his costs of the appearances in Rockhampton irrespective of the disposition of the application.
In my view, the respondent should have his costs of the appearance in Rockhampton when the matter was last before me. The proceedings ought never have been commenced in this court. The appearance in Rockhampton on 16 February was a wasted appearance in the sense that, had the proceedings been properly commenced in the appropriate court, one fewer appearance would have been required. In my view, and notwithstanding that the applicant is legally aided, it is appropriate to make an order for costs.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate: Lynnette Chin

Date: 6 May 2010