KDSP v Secretary of the Department of Home Affairs

In KDSP v Secretary of the Department of Home Affairs, the matter involved a decision by a judge of the Federal Circuit and Family Court of Australia (Division 2) to transfer a proceeding to the Federal Court of Australia. The respondents challenged the transfer order, arguing that the judge did not consider the mandatory criterion of the parties' wishes and denied them procedural fairness. The Federal Court of Australia was required to determine whether the order transferring the proceeding should be confirmed under section 32AD of the Federal Court of Australia Act 1976 (Cth).

The court found that the judge failed to consider the mandatory criterion of the parties' wishes as required by rule 8.02(4)(e) of the Federal Circuit and Family Court of Australia Rules. The respondents were not given the opportunity to express their wishes on the transfer before the order was made, and thus, the judge did not take their wishes into account. This led to the conclusion that the judge misunderstood his task under the Federal Circuit and Family Court of Australia Act and the Federal Circuit and Family Court of Australia Rules, failed to consider a mandatory relevant consideration, and denied the respondents procedural fairness.

The court also found that the statements made by the judge at [14]-[16] of his reasons were problematic. The precise import of the judge's statement at [16] of his reasons was unclear, and it appeared to be an awkwardly expressed statement that he had the benefit of relevant information following what he understood to be consultation between the heads of jurisdiction. Additionally, the judge's suggestion that the Federal Circuit and Family Court of Australia Rules expressly contemplate "dialogue" between the two heads of jurisdiction about whether an order for transfer should be made in respect of any particular proceeding seemed to be in error. The court concluded that the transfer order should not be confirmed, and the proceeding should remain in the Federal Circuit and Family Court of Australia (Division 2) for its management and determination.

ORDERS:
1. Pursuant to section 32AD(1) of the Federal Court of Australia Act 1976 (Cth), the application for confirmation of the order made by the Federal Circuit and Family Court of Australia (Division 2) on 16 August 2022 transferring proceeding No. MLG 1875 of 2022 to the Federal Court of Australia be refused.