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…
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CaseChat Overview and Summary
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.
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