Sachar & Kalita
[2021] FamCA 264
•4 MAY 2021
FAMILY COURT OF AUSTRALIA
Sachar & Kalita [2021] FamCA 264
File number(s): MLC 5428 of 2018 Judgment of: GILL J Date of judgment: 4 May 2021 Catchwords: FAMILY LAW – Transfer of matters between the Family Court of Australia and Federal Circuit Court – Discretion to transfer part proceedings – Undesirability of part transfer – Undesirability of splitting proceedings between courts – Particular circumstances. Legislation: Family Law Act 1975 (Cth) ss 33A, 33B & 33C
Family Law Rules 2004 (Cth) rr 11.17 & 11.18
Cases cited: Kaly & Kaly [2007] FamCA 628
Morris & Rosetti [2017] FamCA 249
Number of paragraphs: 49 Date of hearing: 27 April 2021 Place: Canberra Solicitor for the Applicant: Self-representing Solicitor for the Respondents: Legal Aid, ACT Solicitor for the Respondents: No appearance by or on behalf of Mr B Sachar ORDERS
MLC5428/2018 BETWEEN: MR SACHAR
ApplicantAND: MR KALITA
First RespondentMR B SACHAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
4 MAY 2021
THE COURT ORDERS THAT:
1.Pursuant to the Court’s discretion under s 33B of the Family Law Act 1975 (Cth), the property proceedings between the applicant father, respondent mother, and the second respondent will not be returned by transfer back to the Federal Circuit Court.
2.Pursuant to the Court’s discretion under s 33B of the Family Law Act, the child related matter relating to the second respondent’s application will not be returned by transfer to the Federal Circuit Court.
3.The matter is re-listed for directions on 3 June 2021 at 9 am.
4.An interpreter be provided for Mr Sachar.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sachar & Kalita has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
This judgment concerns the transfer of aspects of the proceedings between the three parties from the Federal Circuit Court to the Family Court of Australia, whilst a portion of the proceedings between the mother and father remain on foot in the Federal Circuit Court, awaiting judgment.
The property and child related proceedings were before the Federal Circuit Court for hearing on 6 to 8 October 2020. They concern, as far as I can identify, property proceedings touching on all three parties, with a s 106B application bearing upon the second respondent, who is the brother of the father, and also a late application (made on 7 October 2020, the second day of the trial) by the second respondent to spend time with, and to communicate with, the children of the mother and father.
The father filed an Application in a Case on 2 October 2020, shortly before the scheduled commencement of the trial, supported by an affidavit, seeking to vacate the hearing then listed before the Federal Circuit Court and to transfer the whole of the proceedings before the Family Court of Australia. That application was allowed in part and refused in part, as on 6 October 2020 Judge Neville transferred the property proceedings between the three parties to the Family Court of Australia.
Further, on 7 October 2020 Judge Neville adjourned and transferred the child related matter, insofar as it related to the application by the second respondent, to the Family Court of Australia. This was on the basis that the late inclusion of the application in the trial would be disruptive of the trial, leading to potential unfairness. This application was provided to the court via email on 7 October 2020. Accordingly, the second respondent’s child-related application was transferred to this Court with a request that the application be dealt with at the opening of the property proceedings.
The balance of the child related matter proceeded to hearing before his Honour and is currently reserved for judgment.
PROCEEDINGS BEFORE THIS COURT
On the matter’s first appearance before this court there was no appearance by the second respondent.
Although the father addressed the court in clear English at the commencement of the proceedings, he declined to conduct the proceedings in English, insisting on his need to use an interpreter for the entire hearing of the matter. It might be considered that where a party is competent in English, albeit as a second language, that party might well participate in the proceedings in English, obtaining the assistance of an interpreter where a lack of understanding or inability to communicate emerges. However, the father was insistent that he would not conduct the proceedings in such a manner, and so was provided with an interpreter for the entirety of the hearing.
The issue then raised with the parties was whether the proceedings should remain in the Family Court of Australia or be returned to the Federal Circuit Court by transfer. Given the nature of this issue, and its potential impact on the conduct of the proceedings, this matter was dealt with before considering other procedural aspects of the proceedings.
The mother indicated that she could not oppose transfer back to the Federal Circuit Court, noting that she had opposed the initial transfer to this court.
The father did oppose such a course, relying in his application and affidavit in support of transfer, along with other matters identified in submissions.
The issues raised by the father were at times difficult to relate to the question of transfer. A number of the matters raised by the father appeared to be advanced as general complaints about the proceedings, and were not relevant to the issue of whether the proceedings should be returned to the Federal Circuit Court. For example, the father identified that he had faced a jury trial in June and July of 2020 and that the mother had allegedly made representations to his family members prior to the proceedings that were inconsistent with her case in the proceedings, that there had been issues in relation to securing legal representation under the s 102NA scheme, that the Registrar had declined to allow the issue of particular subpoenas, and that the matter had been moved to the Canberra Registry from the Melbourne Registry.
Further, toward the end of the proceedings the father complained that the issues were complex and that he had no legal advice. Observing that the father did not raise this issue until close to the end of the proceedings, the father was asked what he wanted the court to do, and whether he sought an adjournment to obtain such advice. Asserting that he did not know what could be done to obtain advice, the father did not press an adjournment application.
The decision as to transfer was reserved, and the proceeding adjourned, when it became apparent that the father was no longer addressing the issue of transfer.
As noted above, it will be appropriate to deal with other procedural issues once the issue of transfer is resolved.
In relying on his affidavit of 2 October 2020 in resistance to the transfer, it may be observed that a single paragraph was directed to that issue, asserting a transfer was justified by the complexity of the matter and that the matter would run in excess of five days. In the balance of the affidavit a number of matters were raised in relation to the preparation of the matter, or lack thereof, the complexity of the matter, and as to further evidence and witnesses the father intends to lead for the trial of the child related matter and the property proceedings.
Relevant to the issue of transfer, the father asserted that, despite the bulk of the child related proceedings having been dealt with, he anticipated that the balance of the matter would take in excess of five days, and that he intended to call 20–25 witnesses, mostly from overseas. So far, he has identified 17 witnesses (either in the affidavits he has filed, or as set out in his affidavit of 2 October 2020 at [11-13]), leaving a number of unidentified witnesses referred to as “various other friends” and “various witnesses.”
There is little identification of the complexity asserted in the property proceedings, other than an intention to lead evidence in respect of dowry, a contest about a claim in relation to property held by the second respondent, and a contest in respect of a claim in relation to superannuation.
The issues, however, still raise some level of complexity. It may also be thought that the involvement of an interpreter will lead to the matter proceeding more slowly than if conducted purely or substantially in the English language. It is not clear that the matter will take in excess of five days now, given the pending resolution of the bulk of the child related matters. It is, however, not clear that the matter will take less than five days.
The law in relation to transfer between the Family Court and the Federal Circuit Court
The institution of proceedings in the Family Court of Australia in the context of pending proceedings in the Federal Circuit Court, and transfer to the Federal Circuit Court, is governed by ss 33A, 33B and 33C of the Family Law Act 1975 (‘the Act’). A similar scheme is contained in the Federal Circuit Court of Australia Act 1999 (Cth) for transfers to the Family Court.[1]
[1] See Federal Circuit Court of Australia Act 1999 (Cth) ss 19, 39, 40, 41.
Section 33A prevents the institution of proceedings in the Family Court if an associated matter is before the Federal Circuit Court, providing that:
(1) Proceedings must not be instituted in the Family Court in respect of a matter if:
(a) the Federal Circuit Court of Australia has jurisdiction in that matter; and
(b) proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia.
(2) Subsection (1) does not apply to:
(a) proceedings for a divorce order; or
(b) proceedings instituted in the Family Court under Division 13A of Part VII or under Part XIII or XIIIA.
(3) If:
(a) proceedings are instituted in the Family Court in contravention of subsection (1); and
(b) the proceedings are subsequently transferred to the Federal Circuit Court of Australia;
the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
Section 33B permits the discretionary transfer of proceedings to the Federal Circuit Court, providing that:
(1) If a proceeding is pending in the Family Court, the Family Court may, by order, transfer the proceeding from the Family Court to the Federal Circuit Court of Australia.
(2) The Family Court may transfer a proceeding under subsection (1):
(a) on the application of a party to the proceeding; or
(b) on its own initiative.
(3) The standard Rules of Court may make provision in relation to the transfer of proceedings to the Federal Circuit Court of Australia under subsection (1).
(4) In particular, the standard Rules of Court may set out factors that are to be taken into account by the Family Court in deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1).
(5) Before standard Rules of Court are made for the purposes of subsection (3) or (4), the Family Court must consult the Federal Circuit Court of Australia.
(6) In deciding whether to transfer a proceeding to the Federal Circuit Court of Australia under subsection (1), the Family Court must have regard to:
(a) any standard Rules of Court made for the purposes of subsection (4); and
(b) whether proceedings in respect of an associated matter are pending in the Federal Circuit Court of Australia; and
(c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceeding; and
(d) the interests of the administration of justice.
(7) If an order is made under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceeding by the Federal Circuit Court of Australia.
(8) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(8A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.
(9) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(10) This section does not apply to proceedings of a kind specified in the regulations.
Section 33C contemplates proceedings which must be transferred to the Federal Circuit Court, such that:
(1) If a proceeding of a kind specified in regulations made for the purposes of this subsection is pending in the Family Court, the Family Court must, before going on to hear and determine the proceeding, transfer the proceeding to the Federal Circuit Court of Australia.
(2) If a proceeding is transferred under subsection (1), the Family Court may make such orders as it considers necessary pending the disposal of the proceedings by the Federal Circuit Court of Australia.
(3) An appeal does not lie from a decision of the Family Court in relation to the transfer of a proceeding under subsection (1).
(3A) The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is the subject of a proceeding transferred to the court under this section; and
(b) is a matter in which the court does not have jurisdiction apart from this subsection.
To avoid doubt, the court’s jurisdiction under this subsection is not subject to limits set by another provision.
(4) The reference in subsection (1) to a proceeding pending in the Family Court includes a reference to a proceeding that was instituted in contravention of section 33A.
(5) The Minister must cause a copy of regulations (transfer regulations) made for the purposes of subsection (1) to be tabled in each House of the Parliament.
(6) Either House may, following a motion upon notice, pass a resolution disallowing the transfer regulations. To be effective, the resolution must be passed within 15 sittings days of the House after the copy of the transfer regulations was tabled in the House.
(7) If neither House passes such a resolution, the transfer regulations commence on the day immediately after the last day upon which such a resolution could have been passed.
(8) Subsections (5), (6) and (7) have effect despite anything in:
(a) the Acts Interpretation Act 1901; or
(b) the Legislation Act 2003.
Regulations have not been created pursuant to s 33C specifying proceedings which must be transferred to the Federal Circuit Court, or under s 33B(10) specifying proceedings which may not be the subject of a discretionary transfer to the Federal Circuit Court.
It may be observed, then, that there are no proceedings of a character that mandatorily require or prevent transfer pursuant to either s 33C or s 33B currently before the court.
The issue that remains relates to whether a determination should be made to return the part proceedings to the Federal Circuit Court. That issue is informed firstly by an assessment of the capacity of a court to transfer a part proceeding and then whether a discretionary determination ought to be made to transfer the proceedings.
The first question as to capacity to transfer is whether the s 33A prohibition on instituting proceedings in the Family Court where associated matters are pending in the Federal Circuit Court encompasses proceedings which have been transferred to the Family Court by the Federal Circuit Court, whilst associated proceedings remain on foot in the Federal Circuit Court. If it does, there is no capacity to transfer the proceedings to this court, and the proceedings should be returned. This question turns on the meaning of “institute” proceedings.
The term “institute” is not defined in the interpretation section of the Act, although it is defined in relation to civil proceedings as “the taking of a step or the making of an application that may be necessary before proceedings can be started against a party” in s 102Q for the purposes of Part XIB which deals with vexatious proceedings. Although the definition is not applicable to the interpretation of s 33A, that meaning reflects the common meaning of “institute”. On the ordinary understanding that proceedings are instituted by taking the initial step in commencing an action, it may be observed that all actions arising for determination in this case were instituted in the Federal Circuit Court. It would strain the meaning of the term “instituted” to find that proceedings which have been validly instituted in the Federal Circuit Court that are subsequently transferred to the Family Court have been instituted in the Family Court in contravention of s 33A(1) as a result of the transfer.
Here the proceedings were instituted in the Federal Circuit Court and therefore were not instituted in contravention with s 33A or the equivalent provision in the Federal Circuit Court of Australia Act 1999 (Cth) s 19. Section 33A has no operation in relation to the transferred proceedings.
What may be discerned is that the scheme is designed to ensure that proceedings may not be instituted in both courts so that proceedings may not be split by virtue of the manner of the institution of the proceedings. The provision does not speak directly to the transfer of part proceedings.
In considering the effect of the balance of the transfer provisions for each court, it may be observed that there is a legislative purpose of avoiding the splitting of proceedings across the two courts.
This identification of legislative purpose is consistent with the analysis of Bennett J in her ex tempore judgment in Kaly & Kaly [2007] FamCA 628, where her Honour analysed the Explanatory Memorandum and the structure of the Family Law Act and the Federal Circuit Court Act. She observed that the transfer provisions are drafted in a manner to, as described in the Explanatory Memorandum to the Federal Magistrates (Consequential Amendments) Bill 1999:
Ensure that proceedings dealing with related issues are not split between different federal courts.
Her Honour further observed at [19] that the legislation establishing the then Federal Magistrates Court provided that court with “sufficient power to deal with and determine all matters of controversy between the parties completely and finally.” Again, taking from the Explanatory Memorandum for the Bill, her Honour emphasised:
Clause 14 gives the Court the power to conclusively determine all the claims that are before the Court and to grant whatever remedies are necessary to do so. This provision is designed to avoid multiple proceedings arising from the same dispute between the parties.
Having observed the legislative purpose,[2] her Honour’s judgment further suggests that there is a jurisdictional bar on transferring part of proceedings between the same parties between courts.[3] Justice Bennett reached this conclusion on the basis that the definition of “proceeding” in s 4 of the Act is not expressed as including “part of a proceeding.”[4]
[2] Kaly & Kaly [17]–[22].
[3] Kaly & Kaly [3].
[4] Kaly & Kaly [13]–[14].
If it was beyond the power of the court to transfer part proceedings, then "notwithstanding that an appeal does not lie from a decision of the Federal Circuit Court in relation to the discretionary transfer of a proceeding to this Court" (s 39(6) Federal Circuit Court of Australia Act) the transfer back to the Federal Circuit Court would be irresistible.
Respectfully, and noting that the judgment was ex tempore and without the benefit of full submissions, it is not clear that the reference to “proceedings” necessitates the conclusion that either court lacks the power to split proceedings between separate courts.
If different actions between the same parties or arising from the same underlying facts are always to be treated as an indivisible singular proceeding, the concept of “incidental proceeding” as used in s 4, which captures proceedings “in the course of or in connexion with a proceeding”, is redundant. Further, the references to the various proceedings in the definition of “matrimonial cause” would become incongruous.
Hence, it may be taken that the reference to proceedings is not such as to prevent the transfer of proceedings, being a part of the proceedings between the parties, from one court to the other.
Further, it may be observed that circumstances arise in other jurisdictions which necessitate dividing closely related proceedings between separate courts. For instance, it is not unusual for criminal proceedings arising out of the same facts, but where some charges are purely summary, to be split between summary and superior courts.
This is not to suggest that fracturing proceedings between different courts is desirable. It is generally highly undesirable, as reflected in the legislative purpose identified by Bennett J. It is merely to conclude that it is not beyond the power of the courts to effect such a result.
It will nonetheless be frequently unwise to split proceedings between separate courts for the reasons set out by Bennett J. This caution is important to keep in mind when considering whether to exercise the Court’s discretionary power to transfer part proceedings to another Court.
Hence, in this case it may be observed that the partial transfer of the various proceedings between the parties was not beyond the power of the Federal Circuit Court.
It remains to be considered, then, whether the proceedings should be transferred back to the Federal Circuit Court or remain in the Family Court as a matter of discretion. The source of the power to do so is found in s 33B of the Act (set out above) and Rule 11.17 of the Family Law Rules 2004 (Cth). Rule 11.17 provides:
A party may apply to have a case:
(a) heard at another place; or
(b) transferred to another registry or court exercising jurisdiction under the Act.
The relevant parts of Rule 11.18 set out the factors that may be considered in making a transfer decision.
11.18 Factors to be considered for transfer
(1) In making a decision under rule 11.17 or in deciding whether to remove a case from another court under subsection 46(3A) of the Act, the court may consider:
(a) the public interest;
(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;
(c) the availability of a judicial officer specialising in the type of case to which the application relates;
(d) the availability of particular procedures appropriate to the case;
(e) the financial value of the claim;
(f) the complexity of the facts, legal issues, remedies and procedures involved;
(g) the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns; and
(h) the wishes of the parties.
Note: Subsection 33B(6) of the Act provides that, in deciding whether a case should be transferred to the Federal Circuit Court, the court must have regard to:
(a) any rules of the court applying to the transfer of cases;
(b) whether cases in respect of an associated matter are pending in the Federal Circuit Court;
(c) whether the resources of the Federal Circuit Court are sufficient to hear and determine the case; and
(d) the interests of the administration of justice.
Here, there is an associated matter before the Federal Circuit Court. While that is a matter that points toward transfer, the circumstances by which the various proceedings were transferred to this court point in the opposite direction.
The children’s matter was transferred in the context that it could not be heard with the balance of the child related matters (which have now been heard and await judgment) without derailing the trial of those matters. It remains on foot between the same parties involved in the property matter, giving the two sets of proceedings transferred to this court the quality of being associated matters.
The duration and complexity of the property matter falls within the sorts of matters habitually transferred in accordance with the protocols between the courts for transfer.[5] Although neither court is replete with the resources to promptly deal with matters, the protocol identifies the relative resources of the two courts to deal with particular matters, with matters requiring the attention of a superior court of record being dealt with by the Family Court, and the balance of matters being dealt with by the Federal Circuit Court. The protocol recognises the difference in the nature of the cases to be dealt with by each court, notwithstanding their overlapping jurisdiction.
[5] Ref protocols
A further matter pointing away from transfer back to the Federal Circuit Court is the potential impact on confidence in the administration of justice if matters are transferred “in the manner of a tennis match”, and that such an impact on public perception may be relevant to considering the interests of the administration of justice as required under s 33B(6)(d).[6]
[6] Morris & Rosetti [2017] FamCA 249, [20], quoting Fair Work Ombudsman v Ecosway Pty Ltd [2015] FCA 102, [42] (White J).
It serves neither the convenience of the parties, nor consideration of the public interest, to return the matter shortly after its transfer to this court.
These matters are sufficient to determine that the matters should not be returned to the Federal Circuit Court, even though there remain associated matters before that court. This is not to suggest that it is desirable to transfer part matters. It is not. However, the unusual and particular circumstances of this matter limit the impact on the parties of having proceedings in the two courts, and point to the need to retain the part proceedings in this court.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 4 May 2021
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