Nevins & Urwin (No 3)

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 However, this section was repealed on 1 September 2021, and the Federal Circuit and Family Court of Australia Act 2021 commenced on the same date, prescribing the Court's original jurisdiction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.