JANSSEN & JANSSEN

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.