JANSSEN & JANSSEN - [2015] FamCAFC 168

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 Act 1975 (Cth): ss 39(5), 39(5AA), 39(5A), 64B(2), 68B, 69E, 69H, 114(1)
Federal Circuit Court Act 1999 (Cth): ss 15, 19, 39(1), 39(5)
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8, 9

Family Law Rules 2004 (Cth): r 22.11(3)
Federal Circuit Court Rules 2001 (Cth): rr 16.02, 18.02

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…

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.

Continue reading JANSSEN & JANSSEN

Details

AGLC: JANSSEN & JANSSEN [2015] FamCAFC 168
Case: [2015] FamCAFC 168
Decision Date: 4 September 2015

CaseChat Overview and Summary

The matter before the court involved an appeal by the mother against interim parenting orders made by a judge of the Federal Circuit Court of Australia. The parenting proceedings initially commenced in the Federal Circuit Court, with an interim hearing held, and judgment reserved. However, before giving judgment in the reserved interim hearing, the judge transferred the proceedings to the Family Court of Australia. Three months later, the judge of the Federal Circuit Court issued interim parenting orders in the reserved matter. The mother subsequently appealed against these orders, arguing that the primary judge lacked the power to make such orders after transferring the proceedings to the Family Court.

The central legal issue before the court was whether the Federal Circuit Court judge had the authority to make the interim parenting orders after transferring the proceedings to the Family Court. The court considered relevant sections of the Federal Circuit Court Act 1999, specifically sections 19, 39(1), and 39(5). The court determined that upon transfer of the proceedings, there was no "proceeding" before the Federal Circuit Court, as there cannot be parallel proceedings under the Family Law Act 1975 in both the Family Court and the Federal Circuit Court at the same time, except as provided in section 19(2). Consequently, the Full Court found that the Federal Circuit Court was not seized of the proceedings between the parties once they were transferred to the Family Court, and the subsequent parenting orders were made beyond the Federal Circuit Court’s jurisdiction.

The court held that the interim parenting orders were a nullity and must be set aside. As the appeal succeeded on an error of law, the parties and the Independent Children’s Lawyer applied for costs certificates under sections 6, 8, and 9 of the Federal Proceedings (Costs) Act 1981. However, the Full Court was not satisfied that the further hearing of the father's interim parenting application would constitute "a new trial" as required by section 8. Therefore, costs certificates were ordered under sections 6 and 9 of the Act. The appeal was allowed, and the interim parenting orders were set aside.

Orders