JANSSEN & JANSSEN
[2015] FamCAFC 168
•4 September 2015
FAMILY COURT OF AUSTRALIA
| JANSSEN & JANSSEN | [2015] FamCAFC 168 |
| FAMILY LAW – APPEAL – JURISDICTION – Where parenting proceedings commenced in the Federal Circuit Court of Australia – Where interim hearing following which judgment reserved – Where without giving judgment in the reserved interim hearing the judge transferred the proceedings to the Family Court of Australia – Three months after the transfer the judge of the Federal Circuit Court made interim parenting orders in the reserved matter – Where the mother appeals against the interim parenting orders – Whether the primary judge had power to make orders after transferring the proceedings to the Family Court – Where upon transfer there was no “proceeding” before the Federal Circuit Court – Consideration of ss 19, 39(1) and 39(5) of the Federal Circuit Court Act 1999 (Cth) – Subject to exceptions contained in s 19(2) of the Federal Circuit Court Act there cannot be parallel proceedings in each of the Family Court and Federal Circuit Court under the Family Law Act 1975 (Cth) at the same time – Where the Full Court found that after the Federal Circuit Court transferred the proceedings to the Family Court the Federal Circuit Court was not seized of the proceedings between the parties and the subsequent parenting orders under appeal were made in excess of the Federal Circuit Court’s jurisdiction – Where the parenting orders were not made by a superior court of record – Where presumptions concerning the validity of an order made by a superior court of record without jurisdiction do not apply to the Federal Circuit Court – Where the parenting orders under appeal are a nullity and must be set aside – Appeal allowed. FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where applications to adduce further evidence were filed by both the mother and the father – Where it is unnecessary to consider these applications as the appeal is allowed. FAMILY LAW – APPEAL – COSTS – Where the appeal succeeded on an error of law – Where the parties and Independent Children’s Lawyer applied for costs certificates pursuant to sections 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth) – Where the effect of the appeal is that there must be another hearing of the father’s interim parenting application – Where the Full Court is not satisfied that this further hearing satisfies the s 8 requirement of “a new trial” – Costs certificates ordered pursuant to sections 6 and 9. |
| Australian Constitution (Cth): s 77 Family Law Rules 2004 (Cth): r 22.11(3) |
| DMW v CGW (1982) 151 CLR 491 Flint v Richard Busuttil & Company Pty Ltd (2013) 216 FCR 375 Norton & Locke (2013) FLC 93-567 Re: Macks; Ex parte Saint (2000) 204 CLR 158 State of New South Wales v Kable (2013) 252 CLR 118 |
| APPELLANT: | Ms Janssen |
| RESPONDENT: | Mr Janssen |
| INDEPENDENT CHILDREN’S LAWYER: | Helen Volk Lawyers |
| FILE NUMBER: | SYC | 5802 | of | 2013 |
| APPEAL NUMBER: | EA | 122 | of | 2015 |
| ORDERS MADE: | 21 August 2015 and 4 September 2015 |
| DATE DELIVERED: | 4 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ryan & Aldridge JJ |
| HEARING DATE: | 21 August 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 June 2015 |
| LOWER COURT MNC: | [2015] FCCA 2131 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Williams |
| SOLICITOR FOR THE APPELLANT: | Reid Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Grew |
| SOLICITOR FOR THE RESPONDENT: | Verekers Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Helen Volk Lawyers |
Orders made 21 august 2015
By consent the orders made by Judge Scarlett on 8 April 2015 be varied pursuant to the slip rule such that the words “proceedings are” are substituted for the words “Application is”.
The appeal be allowed.
The orders made by Judge Scarlett on 30 June 2015 be set aside.
The Application in an Appeal filed by the appellant mother on 27 July 2015 and the Response to that Application filed by the respondent father on 12 August 2015 be dismissed.
The question of costs be reserved.
Orders made 4 September 2015
That the Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by her in relation to the appeal.
The Court grants to the respondent father a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by him in relation to the appeal.
The Court grants to the Independent Children’s Lawyer a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) 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 in respect of the costs incurred by them in relation to the appeal.
The oral applications of the parties including the Independent Children’s Lawyer for costs certificates pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Janssen & Janssen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 122 of 2015
File Number: SYC 5802 of 2013
| Ms Janssen |
Appellant
And
| Mr Janssen |
Respondent
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 13 August 2015 Ms Janssen (“the mother”) appeals against interim parenting orders made by Judge Scarlett on 30 June 2015. His Honour made a suite of interim orders the effect of which was to suspend all prior parenting orders and for the children to live with the mother who was given sole parental responsibility. Provision was also made for the children to have telephone contact with Mr Janssen (“the father”), for him to be able to send them birthday cards and gifts and for the children to see their father each alternate Saturday under supervision. It is his Honour’s orders in relation to supervised time and the provision of birthday cards and presents against which the mother has appealed.
The orders made by the primary judge were made some three months after his Honour made an order which transferred the proceedings from the Federal Circuit Court of Australia to the Family Court of Australia. According to the mother, the proceedings having been transferred, his Honour’s jurisdiction over the parties was exhausted and the orders made on 30 June 2015 are a nullity. It is agreed that if these propositions are established, we need not consider the other grounds of appeal or the parties’ applications to adduce further evidence in the appeal.
As will become apparent, there was a degree of urgency in the appeal which made it appropriate that we pronounce our orders before we were in a position to publish our reasons for judgment. Thus, on 21 August 2015, we made orders which allowed the appeal, dismissed the various applications to adduce further evidence and, by consent, rectified the transfer order. These are our reasons for so doing and in relation to costs (which we reserved).
Background Facts
The parties, both of whom are medical professionals, separated in 2013.
They have three children: X who is seven years of age, Y who is five years of age and Z who is four years of age. The children live with the mother.
The mother commenced proceedings in the Federal Circuit Court in relation to the children on 3 October 2013.
Various applications for interim orders were heard by the primary judge on 17 December 2013 in relation to which he made orders on 19 December 2013. Relevantly, interim orders were made for the mother to have sole parental responsibility, for the children to live with her, for the children to have regular telephone contact with the father, and for him to be able to send them cards and gifts. The father’s application to spend time with the children and for the mother to return them to live in Town O, New South Wales (where until separation the family lived) was dismissed.
The proceedings were adjourned to 29 January 2014 by which time it was understood that an Independent Children’s Lawyer (“ICL”) would be appointed to represent the children’s interests, and charges of common assault and stalk and intimidate brought against the father would be determined. The father had entered pleas of not guilty to those charges. The mother was the alleged victim and, in addition to the father being charged with these offences, police obtained an interim apprehended domestic violence order against the father for the protection of the mother. The apprehended domestic violence order proceedings were listed concurrently with the criminal proceedings.
The father was convicted of both offences on 22 January 2014 and an apprehended domestic violence order was made the same day. He lodged an appeal against both convictions and the apprehended domestic violence order.
On 14 February 2014, the father filed an application for interim parenting orders, being equal shared parental responsibility and to spend time with the children, initially under supervision extending to unsupervised time for six hours each Saturday. This is the application which led to the orders under consideration in the appeal. In response, the mother sought that the father’s application be dismissed.
The primary judge heard the father’s application on 9 April 2014 following which his Honour reserved his decision. However, before judgment was given, the parties and children were assessed by Ms Q as a single expert, who provided her report to the court.
On 3 July 2014, the primary judge released the report which was also admitted as evidence in the reserved interim application. Directions were made on 17 July 2014 for the admission of further evidence and for written submissions. Written submissions were made by the parties and the ICL.
The District Court allowed the father’s appeal and on 22 August 2014 set aside the convictions and apprehended domestic violence order.
On 22 October 2014, the father filed an application to adduce further evidence in the reserved interim application. This application was withdrawn on 16 December 2014.
On 21 January 2015, the mother filed an application for interim restraining orders which was listed before the primary judge on 8 April 2015. In the meantime, the parties executed mutual undertakings which were filed with the court.
On 8 April 2015, the primary judge made the following order:
1.The Application is transferred to the Family Court of Australia at Sydney under the provisions of s. 39 of the Federal Circuit Court of Australia Act 1999 to be listed for mention before a Registrar for directions on 10 August 2015.
The parties and ICL agree that s 39 of the Federal Circuit Court Act 1999 (Cth) (“FCC Act”) gave his Honour the power to transfer the proceedings but did not permit his Honour to transfer an unspecified application other than a proceeding of the type referred to in s 19(2) of the FCC Act. This is a matter to which we will return.
In any event, and with the consent of parties and the ICL, we amended the transfer order so as to delete the words “Application is” and substitute the words “proceedings are”. The effect of the amendment is that the transfer order of 8 April 2015 now reads as follows:
1.The proceedings are transferred to the Family Court of Australia at Sydney under the provisions of s. 39 of the Federal Circuit Court of Australia Act 1999 to be listed for mention before a Registrar for directions on 10 August 2015.
The amendment to the order of 8 April 2015 does not affect the substance of the order, and is not relevant to this appeal.
On 30 June 2015, the primary judge made the orders under appeal, namely:
1.All earlier parenting Orders are suspended.
2.The mother is to have sole parental responsibility for [the children].
3.[The children] are to live with the mother.
4.The father is to have telephone communication with all three children [the children] for a period of no longer than fifteen (15) minutes between the hours of 5:00 pm and 6:00 pm each Tuesday and Thursday and the mother is to do all acts and things necessary to facilitate such calls.
5.The father is permitted to send birthday cards and reasonable birthday gifts to the children by forwarding the cards and gifts to the address of the mother’s solicitors who are to forward those cards and gifts on to the mother for her to give to the children.
6.[The children] are to spend time with the father each alternate Saturday commencing on 1 August 2015 from 10:00 am to 11:00 am supervised by …, such supervision to occur in Sydney, until 30 September 2015.
7.From and after Saturday 3 October 2015 [the children] are to spend time with the father each alternate Saturday in Sydney from 10:00 am until 12:00 noon, supervised by …, until Further Order of the Court.
Notwithstanding that his Honour’s reasons for judgment indicate that the reasons were published on 30 June 2015, it is an agreed fact that his Honour did not deliver reasons on 30 June 2015. Rather, those reasons were given and published on 7 August 2015, namely, on the same day as the mother’s application to expedite her appeal filed on 27 July 2015 was listed for hearing.
Grounds of appeal
Although the mother presented seven grounds of appeal, as indicated earlier, in the event that we are satisfied the orders of 30 June 2015 were made in excess of jurisdiction and are a nullity, the remaining grounds need not be considered.
The effect of s 39 of the Federal Circuit Court Act
It is the mother’s contention that once the order for transfer made on 8 April 2015 took effect, which it did on the day it was given (r 16.02 Federal Circuit Court Rules 2001 (Cth) (“FCCR”)), the primary judge had no power to make the orders which he did on 30 June 2015. This is because there was no “proceeding” before the Federal Circuit Court and the Family Court was seized of the proceeding in its original jurisdiction. Counsel for the ICL and the father argued that the effect of s 39(5) of the FCC Act is that until the Family Court has disposed of the proceeding in its entirety, the Federal Circuit Court retains jurisdiction to make such interim orders as it considers necessary and in aid of the transfer. It follows, that the order for transfer did not complete proceedings in the Federal Circuit Court and thus his Honour had the power to make the 30 June 2015 orders.
It is appropriate we set out s 39 of the FCC Act at the outset:
(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 Federal Court or the Family Court.
(2) The Federal Circuit Court of Australia may transfer a proceeding under this section:
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) In deciding whether to transfer a proceeding to the Federal Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(2); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Court; 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.
(4) In deciding whether to transfer a proceeding to the Family Court under subsection (1), the Federal Circuit Court of Australia must have regard to:
(a) any Rules of Court made for the purposes of subsection 40(4); and
(b) whether proceedings in respect of an associated matter are pending in the Family Court; 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.
(5) If an order is made under subsection (1), the Federal Circuit Court of Australia may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Court or the Family Court, as the case requires.
(6) An appeal does not lie from a decision of the Federal Circuit Court of Australia in relation to the transfer of a proceeding under subsection (1).
(7) A reference in subsection (1) to a proceeding pending in the Federal Circuit Court of Australia includes a reference to a proceeding that was instituted in contravention of subsection 19(1).
(8) This section does not apply to proceedings of a kind specified in the regulations.
The Federal Circuit Court is a federal court of limited jurisdiction and neither a common law court nor a superior court of record (Norton & Locke (2013) FLC 93-567; Flint v Richard Busuttil & Co Pty Limited (2013) 216 FCR 375). Federal courts of limited jurisdiction are presumed to have implied power to make such orders as are necessary for them to perform their functions and to control their own processes. In this regard, “…[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior…” (Norton & Locke at [58]) (original emphasis).
There is no contention that the orders of 30 June 2015 were made in the exercise of the Federal Circuit Court’s implied powers. The consequence is that whatever power his Honour purported to exercise must be found in legislation. We use the word purported because his Honour’s reasons are silent about how it is he determined he had power to make the orders after he transferred the proceedings to the Family Court.
Jurisdiction with respect to matters arising under the Family Law Act 1975 (Cth) (“the Act”) is conferred on the Federal Circuit Court pursuant to various provisions of that Act. By s 69H(4) of the Act, jurisdiction is conferred on the Federal Circuit Court in relation to matters arising under Pt VII of the Act (other than proceedings for leave under s 60G). Jurisdiction with respect to various other matters arising under the Act is conferred on the Federal Circuit Court pursuant to ss 39(5AA) and (5A) of the Act. This means that the Federal Circuit Court has the power to make a parenting order in accordance with s 64B(2) and an injunction in relation to a child pursuant to s 68B. Hence his Honour was conferred with the power to make each type of order sought by the parties.
It follows that we do not agree with the proposition advanced by all counsel that s 15 of the FCC Act is the provision which confers power on the Federal Circuit Court to make orders of the type under consideration. Section 15 of the FCC Act confers general power on that court to make orders and issue writs as appropriate, provided the court has jurisdiction. However that power should only be exercised in circumstances where the Act which conferred original jurisdiction, or the relevant rules and regulations, do not provide the power to address the matter in issue. Given the breadth of powers conferred on the Federal Circuit Court under the Act, s 15 of the FCC Act is irrelevant to the determination of this appeal.
Because the conditions for the exercise of jurisdiction under Pt VII are met (s 69E – child or parent to be present in Australia, etc), the combined effect of ss 69E and 69H of the Act is that the parties were able to commence proceedings in the Federal Circuit Court. The only qualification to their right to initiate proceedings is found in s 19 of the FCC Act which provides that proceedings must not be instituted in that court in respect of a particular matter if proceedings in respect of an associated matter are pending in the Family Court (or the Federal Court of Australia). In the family law context, s 19(2) permits concurrent proceedings in another court for divorce, contravention applications and enforcement of decrees. If per chance proceedings are commenced in contravention of s 19(1), the effect of s 19(3) is that the proceedings are taken to be valid. In the event that proceedings are commenced in breach of s 19(1), pursuant to s 39(1) and r 18.02 of the FCCR they should be transferred to the Family Court.
We agree with the submission made by counsel for the mother that reference to the word “matter” in s 19 of the FCC Act describes the justiciable controversy and encompasses all claims within the scope of the controversy.
It follows that notwithstanding the Family Court has concurrent jurisdiction in relation to the matter types under consideration (save for the limited exceptions referred to in s 19(2) of the FCC Act) there can only be one proceeding between the parties under the Act pending at the same time in the Family Court and Federal Circuit Court. In other words, there cannot be parallel proceedings in each of the Family Court and the Federal Circuit Court in respect of the same matter.
It is against this background that s 39 and s 39(5) of the FCC Act in particular must be construed. Section 39 is concerned with the circumstances under which the Federal Circuit Court may transfer proceedings pending in that court to the Family Court (and Federal Court) and the consequences of an order of that type. In relation to s 39(5), it is important that the provision commences with the words “if an order is made”. The use of these words provides a temporal nexus between the order for transfer (s 39(1)) and the power of the Federal Circuit Court to make orders pending disposal of the transferred proceedings by the Family Court. The use of present tense in s 39(5) indicates that the power conferred by s 39(5) is to be exercised contemporaneously with the power to transfer contained in s 39(1). In other words, after the contemporaneous exercise of power pursuant to ss 39(1) and 39(5), there will not be proceedings pending in the Federal Circuit Court in relation to which that court is seized of jurisdiction.
The exceptions to this include proceedings of the type referred to in s 19(2) of the FCC Act which for present purposes are irrelevant and when there is an appeal against orders made in the Federal Circuit Court either before or simultaneously with the order for transfer. Although as presently advised we are unable to identify other exceptions, we accept it is possible there may be exceptions not raised before us. The rationale for the first exception is
self-explanatory. As to the second, the power to order a stay is incidental to the right of appeal and derives from the implied power of the court to preserve the subject matter of the proceedings. No doubt this is the rationale for r 22.11(3) of the Family Law Rules 2004 (Cth) which, without qualification, provides that an application for a stay is to be made to the judge of the Federal Circuit Court who made the order under appeal.
It follows that we are satisfied that after 8 April 2015 the Federal Circuit Court was not seized of proceedings between the parties and that the orders of 30 June 2015 were made in excess of that court’s jurisdiction.
Orders made in excess of jurisdiction
The powers given to the Commonwealth Parliament and, in particular, the power given by s 77 of the Constitution to define the jurisdiction of any federal court other than the High Court, extend to a power to confer the authority implicit in the legislative characterisation of federal courts as superior courts of record (Re: Macks; Ex parte Saint (2000) 204 CLR 158). Both the Family Court and the Federal Court are created as superior courts of record. Because these courts are designated superior courts of record and unless there is a statutory provision to the contrary, orders made by those courts in excess of jurisdiction are valid until they are set aside (Re: Macks; Ex parte Saint; DMW v CGW (1982) 151 CLR 491; State of New South Wales v Kable (2013) 252 CLR 118).
However, Parliament did not designate the Federal Circuit Court to be a superior court of record. The significance of this is that unless the FCC Act or another legislative provision provides that an order of that court made in excess of jurisdiction is valid until it is set aside, the order is a nullity. Section 19(3) of the FCC Act might be categorised as such a provision. However, there are no other provisions in the FCC Act which would make the orders of 30 June 2015 valid until they are set aside.
So that the point is clear, the presumptions concerning the validity of an order made by a superior court without jurisdiction do not apply to the Federal Circuit Court.
Thus, the orders of 30 June 2015 are a nullity and must be set aside.
Conclusion & Costs
Error in the manner raised by ground 1 having been established, we do not need to address the remaining grounds.
The parties agreed that if ground 1 was established, the nature of the error made it inappropriate for there to be an order for costs. We agree. We also agree that the parties and ICL should have the benefit of certificates for the appeal pursuant to the Federal Proceedings (Costs) Act1981 (Cth).
Both parties and the ICL sought certificates in relation to the further hearing of the father’s application for interim parenting orders. That hearing is listed on 7 September 2015 and all parties seek a certificate pursuant to s 8 of the Federal Proceedings (Costs) Act1981 (Cth). Though the effect of this appeal is that there must be another hearing we are not persuaded that this further hearing satisfies the requirement in s 8 of “a new trial”.
I certify that the preceding forty two (41) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Aldridge JJ) delivered on 4 September 2015.
Associate:
Date: 4 September 2015
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