Nevins & Urwin

Case [2022] FedCFamC1A 57

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Nevins & Urwin [2022] FedCFamC1A 57

Appeal from: Nevins & Urwin (No.3) [2022] FedCFamC1F 201
Appeal number(s): NAA 59 of 2022
File number(s): BRC 5254 of 2018
Judgment of: ALSTERGREN CJ, MCCLELLAND DCJ, AUSTIN, BENNETT & CLEARY JJ
Date of judgment: 6 May 2022
Catchwords:

FAMILY LAW – CASE STATED – Jurisdiction – Question 1: Does the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) have original jurisdiction to hear and determine this proceeding which was pending in the Court previously known as the Family Court of Australia before 1 September 2021 (“a legacy case”) – Whether the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (together, “the reform legislation”) could be construed as removing the original jurisdiction of Division 1 to hear legacy cases – Where such literal interpretation leads to an absurdity – Where Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole – Where statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakable – Where no such implication is evident – Where pursuant to s 7(2) of the Acts Interpretation Act 1901 (Cth), subject to clearly expressed contrary intention, the repeal or amendment of any statute does not affect any legal proceedings in respect of an accrued right or privilege – Where no such contrary intention is found – Answer to Question 1: Yes.

Question 2: Does the Chief Justice of Division 1 have the jurisdiction to transfer this proceeding to the Federal Circuit and Family Court of Australia (Division 2) – Where the answer to the first question in the affirmative renders the second question otiose – Need not be answered.

Legislation:

Commonwealth of Australia Constitution Act 1900 (Cth) Ch III

Acts Interpretation Act 1901 (Cth) ss 2, 7, 15AA, 15AB

Family Law Act 1975 (Cth) Pts VII, VIII ss 31, 39, 39B 60B, 61B, 61C, 65C, 69C, 69E, 69H

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1, Pt 1, Items 36, 37, 38, 29, 40, 41, 42, 43, 44, 46, 47, 92, 93, 94, Sch 1, Pt 2, Item 229, Sch 5, Pt 2, Item 7, Sch 5, Pt 5, Items 37, 38, 39

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 30, 34, 43, 50, 51, 74, 132, 149

Judiciary Act 1903 (Cth) s 78B

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) r 7

Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth)
Cases cited:

B & B: Family Law Reform Act 1995 (1997) FLC 92-755; [1997]…

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AGLC
Nevins & Urwin [2022] FedCFamC1A 57
Case
[2022] FedCFamC1A 57
Decision Date

CaseChat Overview and Summary

In the matter of Nevins & Urwin, the Federal Circuit and Family Court of Australia (Division 1 Appellate Jurisdiction) addressed the jurisdiction of Division 1 to hear a proceeding that was pending in the Court previously known as the Family Court of Australia before the establishment of the Federal Circuit and Family Court of Australia on 1 September 2021. The case involved an application by the Attorney-General of the Commonwealth to intervene in the proceedings between Ms Nevins and Mr Urwin, with the Independent Children’s Lawyer also participating. The primary legal issues concerned whether Division 1 retained original jurisdiction over cases that were legacy matters from the Family Court of Australia and, if not, whether the Chief Justice of Division 1 had the authority to transfer such proceedings to Division 2.

The court found that the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) did not intend to remove Division 1’s original jurisdiction over legacy cases. The court reasoned that while the literal interpretation of the reform legislation might suggest otherwise, such an interpretation would lead to an absurdity. Instead, the court held that Parliament’s intention was to retain Division 1’s jurisdiction to finalise legacy cases, as inferred from the context of the reform legislation viewed as a whole. The court further noted that statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakable, and no such implication was evident here. Additionally, pursuant to section 7(2) of the Acts Interpretation Act 1901 (Cth), the repeal or amendment of any statute does not affect any legal proceedings in respect of an accrued right or privilege, unless there is a clearly expressed contrary intention, which was not found in this case. Consequently, the court answered the first question in the affirmative, rendering the second question otiose.

The court's orders granted the intervener leave to rely on written submissions that exceeded the stipulated page limit and confirmed that the reformulated questions should be answered as follows: Division 1 of the Federal Circuit and Family Court of Australia has original jurisdiction to hear and determine the proceeding which was pending before 1 September 2021 in the Court previously known as the Family Court of Australia. The second question regarding the transfer of the proceeding to Division 2 did not need to be answered as the first question was answered in the affirmative.

Orders

Orders of the court

NAA 59 of 2022

BRC 5254 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS NEVINS

Applicant

AND:

MR URWIN

Respondent

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Intervener

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALSTERGREN CJ, MCCLELLAND DCJ, AUSTIN, BENNETT & CLEARY JJ

DATE OF ORDER:

21 APRIL 2022

THE COURT ORDERED ON 21 APRIL 2022 THAT:

1. The Intervener have leave to rely upon their written submissions, which exceeded the page limit stipulated by rule 13.23(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

2. The reformulated questions stated for the opinion of the Full Court should be answered as follows:

Question 1:

Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine this proceeding which was pending before 1 September 2021 in the court previously known as the Family Court of Australia?

Answer:

Yes.

Question 2:

If the answer to Question 1 is “No”, did the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer this proceeding which was pending before 1 September 2021 in the court previously known as the Family Court of Australia to the Federal Circuit and Family Court of Australia (Division 2)?

Answer:

Need not be answered.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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