Primosi & Anor and Director-General, Communities Services Directorate

[2020] FamCA 330

FAMILY COURT OF AUSTRALIA

PRIMOSI AND ANOR & DIRECTOR-GENERAL, COMMUNITIES SERVICES DIRECTORATE [2020] FamCA 330

FAMILY LAW – ADOPTION – Cross-Vesting – Adoption under laws of the Australian Capital Territory – Transfer to the Supreme Court of the Australian Capital Territory

Family Law Act 1975 (Cth)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

1st APPLICANT: Mr Primosi

2nd APPLICANT: Ms Primosi

RESPONDENT: Director-General, Communities Services Directorate

FILE NUMBER: CAC 724 of 2020

DATE DELIVERED: 30 April 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 April 2020

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Campbell & Co

SOLICTOR FOR THE 2ND APPLICANT: Campbell & Co

SOLICITOR FOR THE RESPONDENT: ACT Government Solicitor

Orders

1. The Primosi proceedings are transferred to the Supreme Court of the Australian Capital Territory at a date to be notified by that court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Primosi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 724 of 2020

Mr Primosi and Ms Primosi

Applicants

And

Director-General, Communities Services Directorate 

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns an application for adoption and associated application to dispense with consent for adoption under the Adoption Act 1993 (ACT). These are proceedings that are usually conducted in the Supreme Court of the Australian Capital Territory (“the ACT”), although the proceedings have been brought in this Court pursuant to jurisdiction invested in this Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). That Act permits this Court to exercise the jurisdiction of the Supreme Court of the ACT. However, s 5(4) of that Act deals with the capacity of this Court or the Federal Court of Australia to transfer the proceedings to another court, being the Supreme Court of a State or Territory.

2. Subsection 5(4) requires the Court to have regard to a number of considerations in determining whether or not to order the transfer of proceedings.  The first of those considerations is whether, in the opinion of the first court, the relevant proceedings or a substantial part of it would have been incapable of being instituted in this Court but for the cross-vesting legislation.  It has been conceded by Ms Prest, who appears for the Primosis, that is the case here. This is a purely Territory matter that arises under Territory law and would only be conducted in the Supreme Court of the ACT but for the cross-vesting legislation. 

3. That conclusion answers s 5(4)(b)(ii)(B) which identifies that apart from this Act, the Supreme Court of the ACT would have had jurisdiction to deal with this matter. 

4. Section 5(4)(b)(ii)(C) deals with the extent to which the matters for determination in the relevant proceedings are matters arising under or involving questions as to the application, interpretation or validity of the law of the State or Territory.  In this case, that is wholly so. This is an Act of the ACT; the proceedings will involve interpretation of the Act and the application of that Act. 

5. The final consideration is an interests of justice consideration and it has been conceded by Ms Prest, who appears for the Primosis, that there is no interests of justice consideration that favours the Family Court of Australia over either the Supreme Court of the ACT or vice versa. 

6. Under that collection of circumstances, I determine that it is more appropriate for the relevant proceedings to be determined by the Supreme Court of the ACT.  That consideration comes also in the knowledge that the Supreme Court contains within it practices and procedures which it typically directs to the determination of both issues of dispensation with consent and to issues as to the granting of an adoption. 

7. Under those circumstances, I conclude that it is more appropriate that the relevant proceedings be determined by the Supreme Court of the ACT.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 April 2020.

Associate: 

Date: 4 May 2020