Nevins & Urwin (No 3)

[2022] FedCFamC1F 201

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

Nevins & Urwin (No 3) [2022] FedCFamC1F 201

File number(s):

BRC 5254 of 2018

Judgment of:

HOGAN J

Date of judgment:

31 March 2022

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – CASE STATED – Where there is a question as to whether this Court now has original jurisdiction to hear and determine proceedings which were commenced in it (then known as the Family Court of Australia) before 1 September 2021 – Where the circumstances are exceptional – Where it is important to get an opinion about the questions of law from a Full Court of this Court – Where a case is stated.

Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)

Cases cited:

Bakhtiari Minister for Immigration Multicultural and Indigenous Affairs [2002] FamCA 767

Daff and Daff (1984) FLC 91-516; [1982] FamCA 13

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; [2004] HCA 20

Paul & Paul [2011] FamCA 672

Division:

Division 1 First Instance

Number of paragraphs:

20

Date of hearing:

28 & 29 March 2022

Place:

Brisbane

Counsel for the Applicant:

Mr McGregor

Solicitor for the Applicant:

Hofstee Lawyers

Counsel for the Respondent:

Mr Waterman

Solicitor for the Respondent:

Amanda Fawaz Solicitor

Counsel for the Independent Children's Lawyer:

Ms Chesterman

Solicitor for the Independent Children's Lawyer:

Legal Aid Queensland

ORDERS

BRC 5254 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS NEVINS

Applicant

AND:

MR URWIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	31 MARCH 2022

CASE STATED

1.Pursuant to s 34(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) the following questions are stated for the consideration of the Federal Circuit and Family Court of Australia (Division 1):

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)?

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

HOGAN J:

1. This Court may state any case or reserve any question concerning a matter with respect to which an appeal would lie from a judgment of the same for the consideration of the Federal Circuit and Family Court of Australia (Division 1); the jurisdiction of the Court in such a circumstance must be exercised by a Full Court of the Federal Circuit and Family Court of Australia (Division 1).[1]

   [1]           Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 34(1) and (2)(a).

2. It is clear that a decision to state a case is discretionary. Whilst neither the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCAA”) nor the relevant Rules in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021[2] provide any guidance about the matters to be taken into account in the exercise of the discretion, authority establishes that:

   (a)the procedure of a stated case should be resorted to only in exceptional circumstances, where it may be important to get an opinion on a question of law[3] and it should not be a method whereby a judge at first instance sidesteps a decision or a means by which such judge avoids making a decision on questions of jurisdiction, power or statutory interpretation;[4] and

   (b)when considering whether to state a case, the court should explore all the options and weigh all the advantages and disadvantages in a particular case; and

   (c)the exercise of the discretion in determining to state a case must be reasonable.[5]

   [2]Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.46 to 13.52 inclusive.

   [3]           Daff and Daff (1984) FLC 91-516 at 79,189.

   [4]           Bakhtiari& Minister for Immigration Multicultural and Indigenous Affairs [2002] FamCA 767 at [20]

   [5]Bakhtiari at [6]; Paul & Paul [2011] FamCA 672 at [21] to [22].

3. In reaching the decision to state the case, I have taken these matters into account. In order to demonstrate that this is the case and that I have exercised the discretion in the manner required, it is, I think, necessary to set out that which follows.

4. The current proceedings were commenced many years ago now. They proceeded to trial in July and August 2019 at which time they were adjourned indefinitely to await resolution of the criminal proceedings which resulted from the father being charged with a number of offences on the weekend before final submissions were to be received. Following completion of the father’s criminal trial in December 2021, the proceedings were listed again so that the trial about those parenting orders that each parent advocated as being in the best interests of their children could conclude.

5. At the time the current proceedings were commenced, this Court was known as the “Family Court of Australia”; its original jurisdiction was prescribed by s 31 of the Family Law Act 1975 (Cth) (“the FLA”), which was in the following 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 Act1961 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 of Australia under this Act or any other Act.

   (2) Subject to such restrictions and conditions (if any) as are contained in section 111AA, the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.

6. Section 31 of the FLA was repealed on 1 September 2021.[6]

   [6]Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), Schedule 1, item 36.

7. Item 229 of Division 2 (Application of amendments) of Part 2 (Application, saving and transitional provisions) of Schedule 1 (Amendments relating to the Federal Circuit and Family Court of Australia) of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“the Transitional Provisions Act”) provides that:

   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.

8. Consequently, the repeal of s 31 of the FLA applies to the current proceeding.

9. The FCFCAA commenced operation on 1 September 2021. It provides that the federal court known immediately before 1 September 2021 as the Family Court of Australia is continued in existence as the Federal Circuit and Family Court of Australia (Division 1)[7] and that it is a superior court of record.[8] It also prescribes this Court’s original jurisdiction in s 25,[9] which is, relevantly, in the following terms:

   [7]           Federal Circuit and Family Court of Australia Act 2021 (Cth) s 8(1).

   [8]           Federal Circuit and Family Court of Australia Act 2021 (Cth) s 9(1).

   [9]Located in Chapter 3 (Federal Circuit and Family Court of Australia (Division 1), Part 2 (Jurisdiction), Division 1 (Original Jurisdiction) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

   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.

10. Item 37 of Part 5 (Miscellaneous) of Schedule 5 (Transitional provisions) of the Transitional Provisions Act provides that:

    37       Application

    The Federal Circuit and Family Court of Australia Act 2021, including the following provisions of that Act:

    (a)       Division 4 of Part 5 of Chapter 3 (Case management);

    (b)      Division 4 of Part 6 of Chapter 4 (Case management);

    applies in relation to a proceeding commenced before, on or after the commencement day.

11. Consequently, the FCFCAA applies in relation to the current proceeding.

12. There are no provisions of the Transitional Proceedings Act which relate specifically to proceedings, commenced in the previously prescribed original jurisdiction of this Court before 1 September 2021, which have not been finalised by 1 September 2021.

13. This differs from the situation in relation to appeals: for example, item 30 of Division 3 (Matters substantively heard, in whole or part, before the commencement day) of Part 4 of Schedule 5 relevantly provides that:

    30       Matters before the Full Court of the Family Court of Australia

    Judgment to be delivered by the Federal Circuit and Family Court of Australia (Division 1)

    (1)      If:

    (a)before the commencement day, a Full Court of the Family Court of Australia has heard, in whole or in part, any of the following:

    (i)an application made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;

    (ii)an appeal allowed by Part X of that Act;

    (iii)an appeal referred under subsection 96(5) of that Act;

    (iv)a special case for the opinion of the Full Court; and

    (b)on the day before the commencement day, either:

    (i)a substantive hearing of the application, appeal or special case has not concluded; or

    (ii)a substantive hearing of the application, appeal or special case has concluded, but judgment has not been delivered in relation to the application, appeal or special case;

    then, on or after the commencement day, despite the amendments to the Family Law Act 1975 made by this Act, the Federal Circuit and Family Court of Australia (Division 1), constituted as a Full Court, must:

    (c)if required, conclude the substantive hearing of the application, appeal or special case; and

    (d)deliver the judgment in relation to the application, appeal or special case.

    Regard may be had to prior evidence

    (2)A Full Court of the Federal Circuit and Family Court of Australia (Division 1) may have regard to any evidence given or received, and arguments adduced, by or before the Full Court of the Family Court of Australia, as constituted before the commencement day.

    …

    Appellate jurisdiction

    (5)To avoid doubt, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) has appellate jurisdiction for the purposes of this item.

14. Reference to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) (“the Transitional Provisions Rules”) reveals that r 7 of the same provides as follows:

    7Proceedings 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).

    Brief discussion

15. It is trite to repeat that this Court quells controversies between citizens in cases where jurisdiction (the authority to decide) is conferred on it; it is also trite to repeat that this Court does not have an unlimited jurisdiction. Although it is a superior court of record, it is a court of defined, specialised jurisdiction and, like any other court, its jurisdiction must be distinguished from the powers, expressly (or impliedly) conferred by the legislation which governs it, that it may use in the exercise of its jurisdiction.[10]

    [10]See, for example: Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9 per Toohey J at [25].

16. It seems to me that a number of issues arise in the consideration of whether this Court now has original jurisdiction to hear and determine proceedings which were commenced in it (then known as the Family Court of Australia) before 1 September 2021 and that these include (but are not restricted to):

    (a)whether, as a consequence of the application of the amendments to the FLA (which removed the jurisdiction previously conferred on it by the now repealed s 31 of the FLA) and the application of the provisions of the FCFCAA to proceedings “commenced before, on or after the commencement day”, this Court now has original jurisdiction to hear and determine such proceedings; and

    (b)whether, despite the clear terms of s 25 of the FCFCAA and the absence of any provision in the Transitional Provisions Act (in contrast to the situation regarding appeals) specifically stating that this Court retains original jurisdiction in relation to proceedings pending in it as at 1 September 2021, r 7 of the Transitional Provisions Rules ensures that this Court now has the original jurisdiction to hear and determine such proceedings; and

    (c)whether the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) has the jurisdiction to transfer such proceedings to the Federal Circuit and Family Court of Australia (Division 2) so as to enable the transfer back of the same from that court to this court for the purpose of satisfying the legislative requirements imposed by s 25 of the FCFCAA for the conferral of original jurisdiction.

17. Both the parents and the Independent Children’s Lawyer supported the stating of a case. Whilst doing so will delay the finalisation of the proceedings, determining the resolution of the answer to the questions stated may lead to its dismissal on the basis of a conclusion that this Court no longer has the jurisdiction to determine the proceedings; whereas, if the first question stated is answered in the affirmative and the Full Court concludes that this Court has jurisdiction to continue to hear the proceedings despite the changes to its jurisdiction implemented on 1 September 2021, then the evidence led during the five days of its hearing in 2019 will not be lost and the parties will not have to recommence proceedings for parenting orders.

18. In addition, there are no facts beyond those already set out in these Reasons which need to be settled in order for the Full Court to answer the case stated and, as such, there is no risk that the facts relied upon by the Full Court may differ in some way from those ultimately established or that important factual information which the Full Court may consider important to its decision may be omitted from the case.

19. Further, having the questions stated answered by the Full Court of this Court would remove the possibility of different judges at first instance arriving at different views about the seminal issue of jurisdiction.

20. Given all of the above, I am easily satisfied that the circumstances are exceptional and that it is important to get an opinion about the questions of law, as particularised, from a Full Court of this Court. I am also easily satisfied that, in stating the case, I am not improperly or unreasonably avoiding making a decision on questions of jurisdiction, power or statutory interpretation.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate: 

Dated:       31 March 2022