KUNTI & KOHL
[2016] FamCA 448
•7 June 2016
FAMILY COURT OF AUSTRALIA
| KUNTI & KOHL | [2016] FamCA 448 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings – Transfer from Family Court of Australia to Federal Circuit Court of Australia. FAMILY LAW – COSTS – Where husband made an application objecting to the Court’s jurisdiction – Where the husband subsequently withdrew the application at the hearing and the application was dismissed – Where the husband required the wife be available for cross-examination and the wife travelled from India for that purpose – Consideration of s 117 of the Family Law Act 1975 (Cth) – Husband ordered to pay the wife’s costs of and incidental to his Application in a Case and the wife’s costs incurred in travelling to Australia. |
| Family Law Act 1975 (Cth) s 117 Family Law Rules 2004 (Cth) r 11.18 |
| Forster & Beckett [2015] FamCA 140 Hawkins & Roe [2012] FamCAFC 77 Penfold v Penfold (1980) 144 CLR 311 |
| APPLICANT: | Ms Kunti |
| RESPONDENT: | Mr Kohl |
| FILE NUMBER: | SYC | 2222 | of | 2014 |
| DATE DELIVERED: | 7 June 2016 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 27 May 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Flanigan |
| SOLICITOR FOR THE APPLICANT: | Hammond Nguyen Turnbull |
| COUNSEL FOR THE RESPONDENT: | Ms Cantrall |
| SOLICITOR FOR THE RESPONDENT: | Walker Kissane & Plummer Solicitors |
Orders
That these proceedings be transferred to the Federal Circuit Court of Australia to be listed before a judge in a duty list on a date to be advised.
That the husband pay the wife’s costs of and incidental to his application in a case filed on 10 December 2015 as agreed within one month from this date or otherwise as assessed.
That the husband pay to the wife within one month from today’s date the sum of $1500.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kunti & Kohl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 2222 of 2014
| Ms Kunti |
Applicant
And
| Mr Kohl |
Respondent
REASONS FOR JUDGMENT
On 13 September 2014 the applicant wife and respondent husband in these proceedings were divorced.
On 8 September 2015 the wife commenced proceedings in this Court for orders as to property settlement. The orders sought by her in summary were orders seeking the sale of a property owned by the husband and wife in joint names at Suburb B, New South Wales with substantially a division of the net proceeds of sale equally to the husband and wife.
The husband has yet to file a response to the wife’s application for property settlement orders.
On 10 December 2015 the husband filed an Application in a Case seeking orders that the wife’s application for property settlement orders be dismissed and that she pay costs on an indemnity basis. That Application in a Case was amended on 23 May 2016 so as to seek in the alternative an order that the wife’s application for property settlement orders be stayed pending resolution of all current and future proceedings between the husband and wife in India.
The husband’s Application in a Case raised issues as to jurisdiction. The hearing of the husband’s Application in a Case was listed for determination on 27 May 2016.
On that day the husband sought leave to withdraw his Application in a Case and that Application in a Case was accordingly dismissed.
It was ordered that proceedings be transferred to the Federal Circuit Court of Australia. The wife made an application for costs in relation to the Application in a Case proceedings and judgment as to costs was reserved.
These are the reasons for judgment as to the order for transfer to the Federal Circuit Court of Australia and as to costs.
Context
The applicant wife is 35 years of age and the respondent husband is 38 years of age. The parties commenced to live together on the day of marriage in 2008. They finally separated on 19 June 2012 after a four year cohabitation.
There are no children of the marriage.
It is common ground that during the period of cohabitation the parties jointly acquired a real estate property at C Street, Suburb B. The circumstances as to that purchase are not known. It appears that the property on the husband’s part is asserted to have a value of about $550,000 and on the wife’s part a value of between $550,000 and $615,000. The property is encumbered by a mortgage of about $402,000.
Both parties have modest superannuation entitlements.
Clearly the resolution of property proceedings will focus on the actual history of financial contribution.
Counsel for both parties on 27 May 2016 informed the Court that the property hearing would likely take two days for determination.
Relevant Provisions as to Transfer
The relevant considerations were discussed by Tree J in Forster & Beckett [2015] FamCA 140 as follows:
THE PROTOCOL
11. The Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate court in which parties should commence proceedings. It provides as follows:
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).
1. International child abduction.
2. International relocation.
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.Transfers
1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.
2. There is no right of appeal from a decision as to transfer.
12. It is pertinent to make the following observations in relation to the protocol:
The protocol speaks about the appropriate court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;
The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”
Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;
Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two courts, with the Family Court undertaking work more suited to a superior court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two courts work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.
13. The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.
RELEVANT STATUTORY PROVISIONS AND PRINCIPLES
…
16. The provisions which govern transfer from the Family Court of Australia to the Federal Circuit Court are relevantly contained in s.33B of the Family Law Act:
(1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.
(2) The Family Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.(3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1).
(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1).
(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia.
(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:
(a) any standard Rules of Court made for the purposes of subsection (4); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; 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.(7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.
(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings of a kind specified in the regulations.
17. The phrase “the interests of the administration of justice” is a very broad one, capturing may (sic) potential considerations. No point is to be served in seeking to, in advance, describe what may fall as legitimate considerations under such a criterion, however it is useful to note that in Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102 at [42] White J identified that the prospect of a poor public perception if transfers were embarked upon by the courts “in the manner of a tennis match” was a relevant consideration.
18. Further, whilst s.33B (6) establishes mandatory considerations that the court must have regard to, other matters may inform the exercise of the discretion. Previous decisions have identified the following as being potentially relevant:
The workload of the judge likely to thereafter be seized of the matter: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [43];
The probability of the recurrence of transfers to the court in like circumstances: see Fair Work Ombudsman v Ecosway Pty Ltd (supra) at [44];
Whether the matter was commenced in accordance with any relevant protocol: Summers & Shaw [2011] FamCA 889 at [30].
19. Rule 11 of the Family Law Rules contains the relevant standard rules of court for the purposes of s 33B(4). Relevantly it provides as follows:
11.17. A party may apply to have a case:
(a) heard at another place; or
(b) transferred to another registry or court exercising jurisdiction under the Act.11.18(1). In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:
(a) the public interest;
(b) whether the case, if transferred or removed, is likely to be dealt with:
(i) at less cost to the parties;
(ii) at more convenience to the parties; or
(iii) earlier;
(c) the availability of the judicial officer specialising in the type of case to which the application relates;
(d) the availability of particular procedures appropriate to the case;
(e) the financial value of the claim;
(f) the complexity of the facts, legal issues, remedies and procedures involved;
(g) the adequacy of the available facilities, having regard to any disability of a party or witness; and
(h) the wishes of the parties.11.18(2) …
20. It will be appreciated that since r 11.17 on its face only applies to an application for transfer made by a party, strictly speaking r 11.18 would have no application to the present facts, where the court is considering transfer on its own motion. However logically, the matters therein enumerated will also be potentially relevant in considering an own motion transfer. The other point worthy of note is that the rule does not make it mandatory to consider the matters listed in r 11.18(1).
It is common ground that there are no complex issues of fact or law involved in this case.
The property pool is modest and limited. This is a short marriage whereof necessity a court considering the question of property adjustment will focus upon the parties’ actual financial contributions to the subject property.
A consideration of the Protocol leads to the inescapable conclusion that these proceedings should initially have been commenced in the Federal Circuit Court of Australia even if there remained an outstanding issue as to jurisdiction.
There are presently no associated proceedings in the Federal Circuit Court of Australia.
Whilst the Federal Circuit Court of Australia at Parramatta is a busy registry, the appointment of an additional judge to that court and registry on 30 May 2016 is indicative of that court having adequate resources to hear this non-complex property matter.
The ability of the Family Court of Australia particularly at Parramatta to list short matters for trial is compromised by the reality that many of the trials listed at Parramatta are four or five days plus. Ultimately by reason of necessity short matters such as the present one would be provided with a listing only as a “reserve matter” depended upon a longer trial settling or its hearing dates being vacated so as to then give the reserve matter priority. Thus there is a significant risk that whilst listed for hearing such reserve matter would not be reached and would be listed again at a later date for hearing at significant additional cost to the parties. It is thus appropriate that such short matters be heard in a court specifically set up as a high-volume trial court to deal with such matters so as to not compromise the appropriate administration of justice in the Family Court of Australia.
A consideration of the matters set out in r 11.18 makes it abundantly clear that the subject matter is appropriate for determination in the Federal Circuit Court of Australia.
It is in the public interest that this Court be able to engage in hearing of matters that are clearly within its contemplated jurisdiction and not be burdened as it were by small claims or issues that can be readily be determined in a high-volume trial court.
There is little difference in the pathway to trial in either court particularly having regard to the additional judicial resource now available to the Federal Circuit Court of Australia at Parramatta.
The judges of the Federal Circuit Court of Australia are well able to deal with the property issues arising in the present proceedings.
The monetary value of the present property proceedings would be regarded as “a small property pool” although its division is a significant issue for each of the parties.
There are no complex facts, legal issues, remedies or procedures involved in the case. There are other proceedings commenced by the wife in India that have only tangential relevance to the outcome of proceedings here in Australia.
Ultimately when the Court’s proposal for transfer of the proceedings to the Federal Circuit Court of Australia was made known, neither counsel sought to be heard in relation to the transfer.
In all the circumstances it is appropriate that these proceedings be transferred to the Federal Circuit Court of Australia.
Costs
The wife makes application for her costs of and incidental to the Application in a Case filed by the husband raising the question of jurisdiction presumably arguing that Australia was “a clearly inappropriate forum”.
Ultimately the husband’s objection to jurisdiction was withdrawn and his Application in a Case filed on 10 December 2015 as amended was dismissed on 27 May 2016.
It is contended on behalf of the wife that the withdrawal was tantamount to an abandonment of the application. That seems to follow as a matter of common sense.
Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that each party to the proceedings shall bear his or her own costs.
That principle is, however, subject to the discretion afforded to the trial judge in subparagraph (2), which provides that if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may, subject to further subsections thereof and the applicable Rules of the Court, make such order as to costs as the Court considers just.
Although s 117(2) requires a finding of justifiable circumstances as an essential preliminary to making an order for costs, there is no additional or special onus on an applicant who seeks an order for costs: see Penfold v Penfold (1980) 144 CLR 311.
The matters relevant to determining what order, if any, should be made for costs are set out in subsection (2A) of that section. They relevantly, in these proceedings, relate to the following:
a)The financial circumstances of each of the parties to the proceedings;
b)Whether any party has legal aid and the terms of any grant of aid;
c)The conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)Such other matters as the Court considers relevant.
The Full Court in Hawkins & Roe [2012] FamCAFC 77 said:
17. With respect to the application of the section, in Penfold and Penfold (1980) 144 CLR 311, the High Court said at 315 and 316:
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
(footnotes omitted)
18. The weight to be given to a particular consideration under s 117(2A) is a matter for the discretion of the judge. However, in I and I (No 2) (1995) FLC 92-625 the Full Court of this Court held that the relevant matters in s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”. That is not to say that one single matter may not ultimately be determinative. The Full Court confirmed this in Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at paragraph 41:
… A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
The parties to the present proceedings have not insignificant assets, substantially being the equity in the jointly owned real estate property. They both have some accumulated superannuation entitlements. Any order for costs made can be enforced as against the parties’ ultimate interest in the real property as appropriate.
Neither party is in receipt of a grant of legal aid.
The conduct of the parties in relation to interlocutory issues is not the subject of contention nor were the proceedings necessitated by the failure of a party to comply with previous orders of the Court.
The applicant wife primarily relies upon the fact that she has been wholly successful on the question of jurisdiction with the husband abandoning his objection to jurisdiction as it were at the last moment. She had been put to the cost of opposing his application. This factor is clearly indicative that the normal rule should not apply.
There is no evidence as to any relevant offer of settlement.
As to any other relevant matter, Exhibit A reveals that the wife through her solicitors on 2 May 2016 wrote to the husband’s solicitors in the following terms:
As you may be aware, our client resides in India.
We confirm your advice to our office on Friday 29 April 2016 that you require our client to attend court to be cross examined.
You are on notice that in the event that our client is successful, our client will be seeking costs against your client in relation to his Application in A Case.
This includes but is not limited to all of the costs of our client’s travel from her home in India and return, all accommodation and other related expenses arising from or related to this event.
The wife was personally present in Court on 27 May 2016 as required. The wife seeks an order for reimbursement to her of her airfares incurred in travelling to Australia in the sum of $1500. She avoided the necessity of paying accommodation costs, staying with friends in Sydney.
In all of the circumstances it is appropriate that there be an order that the husband pay the wife’s costs of and incidental to his application in a case filed on 10 December 2015 in addition to payment of the sum of $1500 to the wife in reimbursement of airfares incurred in travelling to Australia
Orders will be made accordingly.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 7 June 2016.
Associate:
Date: 7 June 2016
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