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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nevins & Urwin (No 3)

Details

AGLC: Nevins & Urwin (No 3) [2022] FedCFamC1F 201
Case: [2022] FedCFamC1F 201
Decision Date

CaseChat Overview and Summary

The case of Nevins & Urwin (No 3) was heard before Justice Hogan of the Federal Circuit and Family Court of Australia. The proceedings were initiated many years ago and were set for trial in July and August 2019, before being adjourned indefinitely pending the resolution of criminal charges against the father. The proceedings were listed again in March 2022 to conclude the matter. At the time the proceedings were commenced, the Court was known as the Family Court of Australia, and its original jurisdiction was prescribed by section 31 of the Family Law Act 1975. However, this section was repealed on 1 September 2021, and the Federal Circuit and Family Court of Australia Act 2021 commenced on the same date, prescribing the Court's original jurisdiction in a different manner.

The legal issues before the Court were whether the Federal Circuit and Family Court of Australia (Division 1) had original jurisdiction to hear and determine proceedings that were commenced before 1 September 2021 in the court previously known as the Family Court of Australia and, if not, whether the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) had jurisdiction to transfer such proceedings to the Federal Circuit and Family Court of Australia (Division 2). Justice Hogan found that the circumstances were exceptional and that it was important to obtain an opinion about the questions of law from a Full Court of the Federal Circuit and Family Court of Australia (Division 1). The Court stated the case and reserved the questions for the Full Court, in accordance with section 34 of the Federal Circuit and Family Court of Australia Act 2021.

The Court considered the discretion to state a case and noted that it should only be exercised in exceptional circumstances where it may be important to get an opinion on a question of law. The Court found that the circumstances in this case warranted stating the case as it would ensure consistency in the application of the law and prevent different judges at first instance from arriving at different views about the issue of jurisdiction. Both the parents and the Independent Children's Lawyer supported the stating of a case, as it would avoid the parties having to recommence proceedings for parenting orders. The Full Court of the Federal Circuit and Family Court of Australia (Division 1) will now consider the questions stated and provide the necessary legal guidance on the matter.

Orders