Nevins & Urwin
[2022] FedCFamC1A 57
•6 May 2022
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] FamCA 33
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44
COG15 & Child Support Registrarand Anor [2016] FamCAFC 272
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26
Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd (1934) 52 CLR 85; [1934] HCA 54
Esber v Commonwealth (1992) 174 CLR 430; [1992] HCA 20
Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434; [2018] HCA 62
Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591
G v H (1994) 181 CLR 387; [1994] HCA 48
Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121; [1932] HCA 10
Mineralogy Pty Ltd v Western Australia (2021) 393 ALR 551; [2021] HCA 30
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642; [2009] HCA 40
Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20
Nevins & Urwin (No.3) [2022] FedCFamC1F 201
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Secretary, Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15
Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19
Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89; [2019] WASCA 80
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
Number of paragraphs: 58 Date of hearing: 21 April 2022 Place: Sydney (via video link) Counsel for the Applicant: Mr Matthews QC with Dr Sayers Solicitor for the Applicant: Hofstee Lawyers Counsel for the Respondent: Mr North SC with Mr Waterman Solicitor for the Respondent: Amanda Fawaz Solicitor Counsel for the Independent Children's Lawyer: Mr Looney QC with Ms Chesterman Solicitor for the Independent Children's Lawyer: Legal Aid Queensland Counsel for the Intervener: Mr Howe QC with Ms Pham Solicitor for the Intervener: Australian Government Solicitor ORDERS
NAA 59 of 2022
BRC 5254 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nevins & Urwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALSTERGREN CJ, MCCLELLAND DCJ, AUSTIN, BENNETT & CLEARY JJ:
The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“the Transition Act”) both commenced operation on 1 September 2021, effecting structural reform to the manner in which family law proceedings are instituted and allocated between the courts seized of jurisdiction.
The Family Court of Australia (“the FCoA”) and the Federal Circuit Court of Australia (“the FCC”) were both preserved as federal courts by the reforms, but their respective names were changed to the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).
Before 1 September 2021, the jurisdictions of the FCoA and the FCC were largely, though not entirely, concurrent. The two courts maintained common registries, but litigants could choose the court in which they filed their causes of action. The distribution of work between the courts in instances of common jurisdiction was then organised under an agreement struck between the former heads of jurisdiction, recorded in a memorandum of understanding published on the courts’ websites, resulting in transfers between the courts when appropriate.
The Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) which preceded enactment of the new legislation explained how the reform was designed to provide a “single point of entry into the family law jurisdiction”, requiring all initiating process to be filed in Division 2, but enabling the transfer to Division 1 of all causes of action more appropriately determined by it as the superior court of record.
That objective was achieved by the removal of original jurisdiction from Division 1 and, in lieu thereof, its investiture with original jurisdiction in only those causes of action transferred to it from Division 2. However, the literal terminology of the legislative reform package has caused some disquiet about the preservation of jurisdiction enabling Division 1 to hear and determine those causes of action which were still pending in the FCoA as at 1 September 2021 (“the legacy cases”).
On 31 March 2021, a judge of Division 1 stated a case to the Full Court pursuant to s 34 of the FCFCA Act posing these questions (Nevins & Urwin (No.3) [2022] FedCFamC1F 201):
Question 1:
Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine proceedings which were commenced before 1 September 2021 in the court previously known as the Family Court of Australia?
Question 2:
If the answer to Question 1 is “No”, does the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer proceedings which were commenced 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)?
As submitted before us, we accept the questions should be recast because, as the High Court of Australia stated in Mineralogy Pty Ltd v Western Australia (2021) 393 ALR 551:
56.More than once in recent years, the Full Court giving judgment on a special case has had occasion to remind parties that they have no entitlement to expect an answer to a question of law they have agreed in stating in a special case unless the Full Court can be satisfied by reference to the facts and documents they have agreed in the special case that “there exists a state of facts which makes it necessary to decide [the] question in order to do justice in the given case and to determine the rights of the parties”.
(Footnote omitted)
So as not to give an entirely advisory opinion on questions alienated from the facts intrinsic to the underlying proceedings, we accept the questions should be reformulated 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?
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)?
For the reasons which follow, the answer to the first question must be affirmative, meaning the second question requires no response.
The respondent ultimately contended the second question could not – not merely should not – be answered, as it was incompetent due to the terms of s 34 of the FCFCA Act, but the affirmative answer to the first question rendered that debate superfluous.
The Judiciary Act 1903 (Cth)
The questions posed by the stated case entail consideration of whether or not, by reason of the proclamation of federal legislation, a superior court of record established under Chapter III of the Constitution is still seized of the jurisdiction it formerly possessed. Furthermore, since the power to dispose of litigation lies at the heart of judicial power, if legislation would have the effect of stultifying the exercise of such power in proceedings pending before a Commonwealth court, the Constitution would likely be infringed.
The questions tend to engage the operation of s 78B of the Judiciary Act 1903 (Cth) and, since the idea to state the case to the Full Court was that of a judge and not the parties, to avoid personal cost and inconvenience to any party, the Chief Justice promptly gave notice of these proceedings to the Attorneys-General of the Commonwealth, the States and the Territories.
Even if the stated case does not truly involve a “matter” arising under the Constitution or involving its interpretation, the cause still raised an issue of public importance and was likely to be of interest to the Attorneys-General.
The Attorney-General of the Commonwealth (“the Attorney”) duly appeared and intervened in the proceedings. None of the Attorneys-General of the States or Territories did so.
Jurisdiction before 1 September 2021
Before the reform legislation, the original jurisdiction of the FCoA was prescribed by s 31 of the Family Law Act 1975 (Cth) (“the Family Law Act”) in these terms:
31 Original jurisdiction of Family Court
(1) Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and
(b)matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted or continued under that Act; and
(c)matters arising under a law of a Territory (other than the Northern Territory) concerning:
(i)the adoption of children;
(iv)the property of the parties to a marriage or either of them, being matters arising between those parties other than matters referred to in the definition of matrimonial cause in subsection 4(1); or
(v)the rights and status of a person who is an ex‑nuptial child, and the relationship of such a person to his or her parents; and
(d)matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.
…
Other provisions of the Family Law Act supplemented the conferral of original jurisdiction in respect of particular causes of action: for example, matrimonial causes (s 39), de facto financial causes (s 39B), and causes relating to children (s 69H).
The conferral of original jurisdiction upon the FCoA flowed from the combined effect of those provisions (Clayton v Bant (2020) 385 ALR 41 at [22]; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 196).
Jurisdiction from 1 September 2021
Section 31 of the Family Law Act was repealed by the Transition Act (Sch 1, Pt 1, Item 36).
Sections 39, 39B and 69H of the Family Law Act were amended by the Transition Act to remove any references therein to the FCoA and to omit any references to Division 1 (Sch 1, Pt 1, Items 37–44, 46–47 and 92–94).
From 1 September 2021, the FCFCA Act substituted the original jurisdiction of Division 1 in these terms:
25 Original jurisdiction
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
…
That provision is supplemented by two others: one which prohibits the commencement of family law and child support proceedings within the original jurisdiction of Division 1 (s 50) and another which establishes the exclusive original jurisdiction of Division 2 in those causes of action (s 132).
It follows that, aside from legacy cases which are in question here, the original jurisdiction of Division 1 is now entirely dependent upon the transfer to it of causes of action validly before Division 2 (pursuant to either s 51 or s 149).
The perceived problem
At the moment in time the FCFCA Act commenced operation, there were many undetermined causes of action still pending before the FCoA. What was to become of them due to the changes to the original jurisdiction possessed by Division 1 as from 1 September 2021?
The Transition Act (Sch 1, Pt 2, Item 229) stipulates that the amendments to the Family Law Act apply in relation to proceedings commenced before, on and after 1 September 2021, stating:
229 Application
The amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply in relation to a proceeding commenced before, on or after the commencement day.
(Emphasis added)
Read literally and in isolation from all other provisions, the item could be construed as applying the new provisions of the FCFCA Act, including those truncating Division 1’s original jurisdiction, to any proceedings validly pending in the FCoA before 1 September 2021, thereby removing jurisdiction to hear legacy cases, of which there were, and still are, hundreds.
The necessary corollary of so narrowly interpreting Sch 1, Pt 2, Item 229 of the Transition Act is this:
(a)since 1 September 2021, Division 1 lacks jurisdiction to entertain any legacy case (and, by reason of the second question posed in the stated case, prospectively even lacks jurisdiction (or perhaps “power” rather than “jurisdiction”, as those two things are different) to transfer legacy cases to Division 2);
(b)any order made by Division 1 in any legacy case since 1 September 2021 would be, as an order made by a superior court of record, voidable (on an appeal to the Full Court or pursuant to prerogative writ issued by the High Court of Australia) by reason of it being made without jurisdiction;
(c)the legacy cases remain permanently suspended in the state they stood as at 31 August 2021; and so
(d)the time and expense incurred by litigants in advancing their causes of action in legacy cases up to and including 31 August 2021 is entirely wasted.
The mere articulation of the problem inexorably leads to the conclusion that the Parliament could not have intended such legal absurdity.
The solution
Despite the literal interpretation of the Transition Act leading to such absurdity, it is the premise for the case stated to this Court. The Attorney urged a quite different interpretation, advocating for an interpretation of the reform legislation which accommodates Division 1’s retention of original jurisdiction to entertain and decide legacy cases. The parties and the Independent Children’s Lawyer (“the ICL”) renounced their former doubts and vigorously supported the conclusion about the retention of jurisdiction by Division 1.
The modern approach to statutory interpretation is not in doubt, having been explained by the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 in this way (per McHugh, Gummow, Kirby and Hayne JJ):
69.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In [Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70.A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(Footnotes omitted)
The High Court has more recently affirmed that approach in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, saying (per Kiefel CJ, Nettle and Gordon JJ):
14.The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. …
(Footnotes omitted)
The same interpretative methodology applies whether construing provisions within a single law or construing provisions contained in multiple laws which constitute “a single legislative scheme to the complete operation of which all are necessary” requiring that “they should be construed together” (Deputy Federal Commissioner of Taxation (SA) v Ellis & Clark Ltd (1934) 52 CLR 85 at 89). Relevantly here, the FCFCA Act and the Transition Act were enacted simultaneously and constitute a composite legislative package or an “integrated scheme of reform”, as the Attorney described it.
In this instance, the 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, in the manner urged by the High Court. Some examples serve to illustrate the point.
First, the meaning of Sch 1, Pt 2, Item 229 of the Transition Act is susceptible to ambiguity. As it contemplates the legislative amendments will apply to cases commenced before 1 September 2021, it may be construed as pre-supposing the legacy cases remain pending before Division 1 for disposal. In instances of ambiguity, the construction avoiding irrational and unjust consequences should be adopted (Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350).
Secondly, the terms of ss 25(1)(c), 43 and 74 of the FCFCA Act appear sufficiently wide to provide that, from the moment of the legislation’s inception, Division 1 is conferred with ongoing original jurisdiction in legacy cases. When interpreting legislative provisions, the interpretation which would best achieve the purpose or object of the statute is to be preferred (s 15AA of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”)).
Thirdly, the Transition Act (Sch 5, Pt 5, Item 37) and the FCFCA Act (s 30(2)) provide that the new case management provisions of the FCFCA Act governing the conduct of proceedings before Division 1 will also apply in relation to legacy cases. There would be no point applying such provisions to legacy cases if Division 1 lacked the jurisdiction to hear them.
Fourthly, the Transition Act (Sch 5, Pt 2, Item 7) preserves the validity of anything done by the FCoA in proceedings before 1 September 2021. Such a saving provision would be pointless if the legacy cases were to fall into a permanent state of suspension as from 1 September 2021.
Fifthly, the Transition Act provides for the Minister to make rules, by legislative instrument, which prescribe transitional arrangements concerning the FCFCA Act and the amendments to the Family Law Act (Sch 5, Pt 5, Item 38). Pursuant to that rule-making power, the Minister promulgated the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth), which expressly contemplate how Division 1 will continue to entertain and determine legacy cases in these terms:
7 Proceedings before the Family Court of Australia before 1 September 2021
(1) This section applies in relation to a proceeding if:
(a)immediately before 1 September 2021, the proceeding, or part of the proceeding, was in the Family Court of Australia; and
(b)the proceeding had not been determined before that day.
(2)For the purposes of the FCFCA Act, on and after 1 September 2021, that proceeding is taken to be a proceeding in the Federal Circuit and Family Court of Australia (Division 1).
Lastly, to the extent it may be necessary to also rely upon extrinsic aids (pursuant to s 15AB of the Acts Interpretation Act), the Explanatory Memorandum published to explain the Transition Bill stated this in the General Outline:
5.For the avoidance of doubt, any first-instance proceedings on foot in the Family Court … as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) … This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) … under the FCFC Bill.
It is well accepted 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 unmistakeable (Shergold v Tanner (2002) 209 CLR 126 at [34]; Magrath v Goldsbrough, Mort & Co Ltd (1932) 47 CLR 121 at 134). No such clear and unmistakeable implication is evident here. On the contrary, the reform legislation preserved the FCoA as a court, albeit by the different name of Division 1. While the reforms were designed to introduce a single point of entry for all family law proceedings in Division 2, they were certainly not intended to deprive Division 1 of its authority to complete the work already pending before it.
The primary judge observed (at [12]–[13]) that, unlike the express transition provisions for appeals pending before the FCoA, the reform legislation contains no counterpart express transition provision for pending proceedings within the original jurisdiction of the FCoA. That may be so, but it is no proper basis for imputing an illogical intention to oust the original jurisdiction of Division 1 in legacy cases. The transition provisions especially for appeals were desirable, if not essential, because of the abolition of the Appeal Division of the FCoA.
Neither the absence of any transition provision expressly preserving the original jurisdiction of Division 1 in legacy cases, nor the latent ambiguity of Sch 1, Pt 2, Item 229 of the Transition Act, detracts from the overall construction of the legislative package which points strongly to the retention of original jurisdiction by Division 1 in legacy cases.
If it were considered necessary, it is permissible to imply words into legislation which go beyond correcting obvious printing or drafting errors if it is apparent the text of the legislation does not conform to the actual intention of the Parliament (Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 305 and 321; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642 at [9]; Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531 (“Taylor”) at [37]–[39]).
By employing that principle, the words which would be necessary to save the original jurisdiction of Division 1 in legacy cases could be implied into Sch 1, Pt 2, Item 229 of the Transition Act, which could be understood in this way, consistently with the submission made by the respondent:
Where the context permits, [t]he amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply in relation to a proceeding commenced before, on or after the commencement day.
(Bold print added)
The opinion of the High Court of Australia was divided in Taylor. The majority envisaged the implication of corrective words into legislation. The minority still agreed words may be implied into legislation to both limit and extend the operation of the statute, but only by way of explanation and not by way of repair. However, the construction of Sch 1, Pt 2, Item 229 in the manner expressed above is neither the divination of “unexpressed legislative intention” nor “speculation” in the manner deprecated by the minority (Taylor at [65]–[66]). Rather, it coincides easily with the intention which patently emerges from consideration of the entirety of the reform legislation.
Another route to the same conclusion that Division 1 retains original jurisdiction in legacy cases follows from the application of s 7(2) of the Acts Interpretation Act, which relevantly provides that, subject to clearly expressed contrary intention (s 2(2)), the repeal or amendment of any statute does not affect an accrued right or privilege or any legal proceedings in respect of such right or privilege.
Section 7(2) of the Acts Interpretation Act provides as follows:
Effect or repeal or amendment of Act
...
No effect on previous operation of Act or part
(2)If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:
(a)revive anything not in force or existing at the time at which the repeal or amendment takes effect; or
(b)affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or
(c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or
(d)affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or
(e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.
(Emphasis added)
Without indulging in lengthy deliberation of what amounts to a “right” or “privilege” so as to engage s 7(2) of the Acts Interpretation Act, the parties here certainly had the right or privilege, accrued under the Family Law Act, to litigate their interests in respect of their children and their property. The property proceedings between them under Pt VIII of the Family Law Act were concluded by orders made in August 2019, but the dispute over their children under Pt VII of the Family Law Act was still pending before the FCoA when the reform legislation commenced operation on 1 September 2021.
Although the parties do not have anything akin to proprietary rights over their children, their status as parents invests them with duties, powers and responsibilities pertaining to the children (ss 60B(1)(d), 61B and 61C of the Family Law Act: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365 at [21] and [39]; B & B: Family Law Reform Act 1995 (1997) FLC 92-755 at [3.1], [3.31], [9.19], [9.25] and [10.47]–[10.57]; G v H (1994) 181 CLR 387 at 391–392 and 399–400; Secretary, Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218 at 235–237, 277–281 and 312–318). The parties had standing, and therefore the right, to commence and contest the parenting proceedings under the Family Law Act (ss 65C(a) and 69C(2)(a)), which were being validly entertained by the FCoA (ss 31, 69E and 69H).
If the Transition Act is interpreted in the dry way contemplated by the primary judge then it would affect the continuing conduct of the legal proceedings and trammel the parties’ vested right or privilege to obtain orders regulating the care of their children, thereby infringing the prohibition imposed by s 7(2) of the Acts Interpretation Act. It must then follow that the Transition Act does not prevent the continuity of such proceedings before Division 1.
The former iteration of s 7(2) of the Acts Interpretation Act was employed to similar effect in analogous circumstances (Esber v Commonwealth (1992) 174 CLR 430) (“Esber”). More recently, s 7(2) in its current form has also been used in that way (COG15 & Child Support Registrar and Anor [2016] FamCAFC 272) (“COG15”).
In Esber, an accrued right to pursue an application for redemption of workers compensation, the subject of litigation under a federal statute, was affected by the transitional repeal of the statute. The High Court of Australia held the litigation could still be prosecuted to finality despite the repeal because the amending statute did not evince a contrary intention.
In COG15, an unheard appeal to the FCC in a child support cause was affected by an amendment which required such appeals to instead be filed in the Federal Court of Australia. The Full Court of the FCoA held that the pending appeal could still be heard and determined by the FCC.
As we have already explained, the reform legislation does not evince Parliamentary intention to rob Division 1 of original jurisdiction in legacy cases and so the operation of s 7(2) is not curtailed by the application of the proviso in s 2(2) of the Acts Interpretation Act. Any lingering doubt about that must surely be dispelled by the express provision found within the Transition Act (Sch 5, Pt 5, Item 39), which states:
39 Schedule does not limit certain provisions of the Acts Interpretation Act 1901
This Schedule does not limit the operation of section 7 or subsection 25B(1) of the Acts Interpretation Act 1901.
The answers
The answer to the first question must be: Yes.
The second question is rendered otiose by the answer to the first and so need not be answered.
As mentioned earlier, the respondent submitted the second question could not be answered, whereas the Attorney, the applicant and the ICL each considered it was unnecessary to answer it. Without resolving that debate, it was uniformly submitted that, if it was both permissible and desirable to answer the second question, it too should be answered affirmatively. Were it necessary to decide, we would agree.
Courts are empowered to determine whether they are seized of jurisdiction and to make ancillary procedural orders, dismissal orders and costs orders, even when lacking substantive jurisdiction (Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at [15]–[16]). Courts may also transfer proceedings to another court when they lack jurisdiction (Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299 at 303–306; Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89 at [404], and [412]–[413]).
Use of the “stated case” procedure
The use of the “stated case” procedure should be used only in exceptional circumstances (Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434 at [13], [38] and [93]–[96]). Although the primary judge found the circumstances here were exceptional (at [20]), that conclusion is not easily defended. The existence of jurisdiction was integral to the disposal of this long-standing litigation in which the trial is still part-heard three years after it started but, if the primary judge doubted the continuing existence of jurisdiction, we think it would have been more expedient and less costly if her Honour had proceeded to determine the issue herself – as other judges have done, both before and since, with each finding that Division 1 does retain original jurisdiction in legacy cases.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Chief Justice Alstergren, Deputy Chief Justice McClelland, and Justices Austin, Bennett & Cleary. Associate:
Dated: 6 May 2022
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