RAVAL & RAVAL

[2015] FamCA 780

FAMILY COURT OF AUSTRALIA

RAVAL & RAVAL [2015] FamCA 780

FAMILY LAW – TRANSFER – Application for the review of a Registrar’s decision not to transfer the proceedings from the Family Court to the Federal Circuit Court – Where there was a dispute between the parties about the complexity of the issues and the likely hearing time – Where the respondent submitted that the applicant could not appeal from the Registrar’s decision in relation to a transfer of proceedings due to s 33B(8) of the Family Law Act 1975 (Cth) – Where it was held that the decision by the Registrar was an exercise of delegated power and that the application would proceed by way of hearing de novo – Where the balance of competing factors set out in rule 11.18 of the Family Law Rules 2004 (Cth) required that the matter remain in the Family Court – Application dismissed.

Family Law Act 1975 (Cth) s 33B, 37A
Family Law Rules 2004 (Cth), rule 11.18

Harris v Caladine (1991) 172 CLR 84

APPLICANT: Ms Raval

RESPONDENT: Mr Raval

FILE NUMBER: SYC 54 of 2015

DATE DELIVERED: 17 September 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 September 2015 in Chambers

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A – In Chambers

SOLICITOR FOR THE APPLICANT: Dimocks Family Lawyers

COUNSEL FOR THE RESPONDENT: N/A – In Chambers

SOLICITOR FOR THE RESPONDENT: Aitken Lawyers

Orders

IT IS ORDERED

1. That the application of the wife to transfer the proceedings to the Federal Circuit Court of Australia be dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 54  of 2015

Ms Raval

Applicant

And

Mr Raval

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application to review a decision of a Registrar made on 18 August 2015, refusing to transfer financial proceedings from the Family Court of Australia to the Federal Circuit Court of Australia (“FCC”). The applicant is the wife, Ms Raval (“the applicant”), and the respondent is the husband, Mr Raval (“the respondent”).

2. Each of the parties has filed written submissions in relation to the application and the matter has been considered in Chambers on the papers. In addition to the written submissions, the applicant relies on an affidavit by her solicitor.

3. The initiating application for property and parenting orders was filed on 7 January 2015. The parenting application was resolved by consent orders on 9 March 2015.

4. A conciliation conference was listed for 11 May 2015 but could not proceed because the respondent was overseas. At a procedural hearing before the Registrar on 18 August 2015, he declined to list the matter for a further conciliation conference because the respondent asserted that there had not been full and complete disclosure. The applicant made an oral application to the Registrar to transfer the matter to the FCC but the Registrar refused to do so.

5. The applicant now seeks to review the decision of the Registrar.

6. The transfer provisions are contained in s 33Bof the Family Law Act1975 (Cth) (“the Act”).

7. As a preliminary matter, the respondent submits that, because of the provisions of s 33B(8), the applicant cannot appeal from the Registrar’s decision. That section provides:

   An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).

8. I do not accept that submission. In dealing with the application to transfer the proceedings, the Registrar was exercising delegated power.

9. In Harris v Caladine (1991) 172 CLR 84 at 95, Mason CJ and Deane J said in relation to delegated power:

   The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration.

10. The opportunity to review the exercise of delegated power is central to the validity of the delegation.

11. A review of the exercise of delegated power by a Registrar proceeds by way of a hearing de novo. That is, a complete re-hearing of the matter.

12. Section 37A(9)-(10) of the Act states:

    (9)  A party to proceedings in which a Registrar has exercised any of the powers of the Court pursuant to a delegation under subsection (1) may, within the time prescribed by, or within such further time as is allowed in accordance with, applicable Rules of Court made by the Judges or a majority of them for the purposes of this subsection, apply to the Court to review that exercise of power.

    (10)  The Court may, on application under subsection (9) or of its own motion, review an exercise of power by a Registrar pursuant to a delegation under this section and may make such order or orders as it considers appropriate with respect to the matter with respect to which the power was exercised.

13. The exercise of delegated power must be reviewable and the review proceeds by hearing de novo.

FACTORS TO BE CONSIDERED

1. Rule 11.18 of the Family Law Rules 2004 (Cth) sets out the factors to be considered. I propose to deal with them individually.

(a) the public interest

1. A protocol exists between the Family Court of Australia and the FCC to govern the work which should be done by each court. Matters which are complex or likely to take more than four hearing days are to be dealt with in the Family Court of Australia. There is a dispute between the parties to these proceedings about both the complexity of the proceedings and the likely hearing time.

2. The applicant contends that there are no complex issues and the matter will be completed in two days. The respondent contends that the matter will take five days, and that it involves the applicant’s interest in a discretionary trust from which she received benefits during the relationship, superannuation interests in Australia, the Country B and the Country C and the valuation of a minority interest in real property in Australia. The respondent contends that there is also a dispute about the legal and beneficial ownership of that property.

3. The material before me does not allow an assessment of the competing claims. The trial affidavits have not been filed. However, if the issues are ultimately as asserted by the respondent, then the estimate of five days may be realistic.

4. I cannot find, on the evidence before me, that the matter can be concluded in two days as the applicant asserts.

(b) whether the case, if transferred or removed, is likely to be dealt with:

(i) at less cost to the parties

(ii) at more convenience to the parties, or

(iii) earlier

1. There is no evidence before me as to the likely time frame in which the matter can be concluded in the FCC. A conciliation conference will still be required. The conference will not be allocated an earlier date because the matter has been transferred. The mechanics of the transfer process will probably mean that a later date will be allocated.

2. Enquiries could have been made of the List Judge in the FCC to ascertain when the matter might be first listed and when it might be listed for final hearing. There is no evidence that such enquiries were made.

3. Nothing in the evidence suggests that proceedings in the FCC would be conducted at less cost or more convenience than proceedings in the Family Court of Australia.

(c) the availability of a judicial officer specialising in the type of case to which the application relates

1. There are Judges available in either court who are able to hear a case of this nature.

(d) the availability of particular procedures appropriate to the case

1. This factor is not relevant.

(e) the financial value of the claim

1. The applicant asserts that the net asset pool is approximately $3.5 million. The respondent contends for a greater amount, which may be made out if the Court finds a greater value for the applicant’s interest in the real property in Australia and ascribes a value to her interest as a beneficiary in the discretionary trust. However, the value of the property is not a factor which would influence the decision.

(f) the complexity of the facts, legal issues, remedies and procedures involved

1. The complexity of the issues, as asserted by the respondent, has been described under subsection (a). If the issues are found to be as the respondent describes, they involve some complexity.

(g) the adequacy of the available facilities, having regard to any disability of a party or witness, and

1. There is no evidence that any party or witness has a disability.

(h) the wishes of the parties.

1. Unfortunately, the parties have opposing wishes and both cannot be accommodated.

2. The balancing of the competing factors requires that the matter remain in the Family Court of Australia.

3. The application will be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 September 2015.

Associate: 

Date:  17/9/2015