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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: HEFFERON & MALTBY [2010] FMCAfam 440
Case: [2010] FMCAfam 440
Decision Date: 23 March 2010

CaseChat Overview and Summary

Hefferon and Maltby involves a dispute where an application was initiated in the Federal Magistrates Court, but it was determined that the matter fell within the jurisdiction of the Family Court. The nature of the dispute is the irregular commencement of family law proceedings and the subsequent application for the transfer of these proceedings to the Family Court. The court in this case had to decide several key legal issues, including the interpretation of the term ‘pending’ in the context of an application and whether an order to transfer proceedings constitutes an exercise of jurisdiction. Additionally, the court examined the meaning of ‘proceedings’ and the extent of its discretion under section 39 of the Federal Magistrates Act 1999.

The court's reasoning was focused on the statutory language and the jurisdictional boundaries set by the Federal Magistrates Act and the Family Law Act. The court found that the term ‘proceedings pending’ was not limited to proceedings that had already been formally commenced but could include those that were in a preparatory stage. The court further determined that an order to transfer proceedings did not constitute an exercise of jurisdiction by the Federal Magistrates Court but rather a procedural direction. Finally, the court considered its discretion under section 39 of the Act, concluding that it was appropriate to exercise this discretion to transfer the matter to the Family Court, given that the matter clearly fell within the jurisdiction of the latter.

The final orders of the court were to transfer the proceedings to the Family Court pursuant to section 39(1) of the Federal Magistrates Act 1999, thereby ensuring that the matter was appropriately dealt with by the correct judicial body. The decision highlights the importance of correctly identifying the jurisdiction of the courts involved and the procedural steps required to ensure that family law matters are resolved in the appropriate forum.

Orders

Orders of the court

That pursuant to s.39(1) of the

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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