Sally Maree Esther Bray v Brian Andrew Morris

[2009] ACTSC 163

SALLY MAREE ESTHER BRAY v BRIAN ANDREW MORRIS
[2009] ACTSC 163 (11 December 2009)

COURTS – cross-vesting legislation – transfer of proceedings – property dispute following breakdown of de facto relationship – whether in interests of justice that proceeding be determined by Family Court of Australia – relevant considerations – transfer ordered

Domestic Relationships Act 1994
Family Law Act 1975 (Commonwealth), Part VIII
Jurisdiction of Courts (Cross-vesting) Act 1993, ss 4, 5

Brennan v McGuire [2009] ACTSC 84
Roth v Aqua Distributors Pty Ltd (1996) 21 FamLR 138

No.  SC 342 of 2009

Judge:             Master Harper
Supreme Court of the ACT

Date:              11 December 2009

IN THE SUPREME COURT OF THE     )
  )          No.  SC 342 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:SALLY MAREE ESTHER BRAY

Plaintiff

AND:BRIAN ANDREW MORRIS

Defendant

ORDER

Judge:  Master Harper
Date:  11 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

That this action be transferred to the Family Court of Australia.

1. This is an application by the plaintiff for an order that the action be transferred to the Family Court of Australia.  The plaintiff’s claim is for declaratory and other relief under the Domestic Relationships Act 1994.  The plaintiff and the defendant lived in a domestic relationship in the Australian Capital Territory from 1993 until they separated on 6 April 2008.  They have a daughter who was born in May 2007.

2. Both parties are represented by solicitors and were represented by counsel on the hearing of the application for transfer.  A Statement of claim and defence have been filed.  It is apparent that the plaintiff’s claim is to be vigorously defended.  The plaintiff asserts that the defendant has substantial assets and business interests, while she is in modest circumstances.

3. There are proceedings between the parties in the Family Court of Australia already:  the plaintiff has applied for orders which would permit her to move to Sydney with the parties’ daughter.  The defendant is unrepresented in the Family Court proceedings.

4. On the plaintiff’s application I made a number of orders on 20 March 2009, designed to preserve the status quo in relation to the defendant’s assets.  Minor variations were made to these orders by consent on 31 March.

5. The Family Court would not have jurisdiction to determine the present action under the Family Law Act 1975 (Commonwealth). However, s 4 of the Jurisdiction of Courts (Cross-vesting) Act 1993 provides that the Family Court has and may exercise original and appellate jurisdiction in respect of ACT matters.  The present action is an ACT matter for the purposes of the section.

6. S 5(1) of the Cross-vesting Act relevantly provides that if a proceeding is pending in this Court, and it appears to this Court that it is in the interests of justice that the proceeding be determined by the Family Court, this Court must transfer the proceeding to the Family Court. Once the Court is satisfied that the subsection applies to the proceeding, no question of a discretion arises and the transfer is mandatory.

7. If the parties had separated twelve months later than they did, the Family Court would have had exclusive jurisdiction to determine the present action, and this Court would have had no jurisdiction to do so.  The Family Law Act was amended with effect from 1 March 2009, applying to de facto relationships breaking down on and after that date, so as to confer on the Family Court exclusive jurisdiction to hear and determine applications for adjustment of interests in property between persons who are or have been in a de facto relationship.

8. In his second reading speech, the Commonwealth Attorney-General, the Honourable Robert McClelland, said that the bill gave effect to an agreement between the Commonwealth, States and Territories made in 2002, and followed the enactment of legislation by a majority of States referring necessary powers to the Commonwealth.  The Attorney-General noted that the legislation relied on the Territories power for its application in the Australian Capital Territory and other Territories.  He described the reform as long overdue and much needed.  He said that it would give separating de facto couples the same rights as divorcing couples under a comprehensive Commonwealth Family Law system, at the same time providing a consistent approach to de facto property disputes across State and Territory orders.  He noted that the Federal Family Law Courts were the specialist courts in Australia with vast experience in relationship breakdown matters, and that they offered procedures and dispute resolution mechanisms which were more suited to handling family litigation arising on relationship breakdown than the courts of the States and Territories.

9. The Family Law Act, as now amended, reflects the belief of the Attorneys-General of the Commonwealth and of the participating States and Territories that the Commonwealth courts exercising jurisdiction under the Family Law Act are the preferable courts to determine property disputes between parties to a de facto relationship as well as a marriage.  The Family Court of Australia is a specialist court dealing exclusively with disputes about custody of and access to children, and division of property between parties to a marriage.  The Family Court has thirty-four years of experience in determining such disputes, and offers ancillary services by counsellors and professionals in fields relevant to such disputes, services which this Court is unable to offer.  The intention of the amending legislation is plainly that, following a transitional period, all such disputes will be determined by Commonwealth courts, whether or not the parties to the relationship are or were married.

10. In Brennan v McGuire [2009] ACTSC 84, I ordered the transfer of a property dispute under the Domestic Relationships Act to the Family Court.  In that case, whilst there were no concurrent proceedings in the Family Court, I was influenced by the fact that both parties were unrepresented, and that the Family Court offered the services of appropriately qualified professionals to assist the parties in achieving a resolution of their dispute, a facility unavailable in this Court.

11. Counsel for the plaintiff drew my attention, also, to a decision of Merkel J, sitting in the Federal Court of Australia, in Roth v Aqua Distributors Pty Ltd (1996) 21 FamLR 138. Merkel J ordered the transfer of proceedings from the Federal Court of Australia to the Family Court, in circumstances where there were concurrent proceedings in the Family Court, and where the proceeding before his Honour was an application for the winding up of a family company. His Honour referred to the proceedings in the Federal Court as “clearly part of the matter to be resolved in the Family Court.” His Honour referred to a number of factors leading to the conclusion that, in the interests of justice, the proceeding should be transferred. These included the fact that there was a substantial overlap of issues, it would be more efficient and less costly for the two sets of proceedings to be resolved in the one court, the removal of the risk of inconsistent findings if the proceedings were determined in different courts, and the wide powers available to the Family Court under Part VIII of the Family Law Act.  His Honour noted that there were no third party shareholders or creditors affected by the application to wind the company up.

12. In the present case, a factor of significance is the existence of concurrent proceedings between the same parties in the Family Court.  Whilst, as I said in Brennan v McGuire, it is not necessarily the case that every pending action under the Domestic Relationships Act, should, in the interests of justice, be determined by the Family Court, I am satisfied that on the facts of the present case, it is in the interests of justice that the action be determined by the Family Court.  Having arrived at that conclusion, the legislation requires me to order the transfer, and I do so.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 11 December 2009

Counsel for the plaintiff:  RI Maurice
Solicitors for the plaintiff:  Dobinson Davey Clifford Simpson
Counsel for the defendant:  JJ Millar
Solicitors for the defendant:  Certus Law
Date of hearing:  25 September 2009
Date of judgment:  11 December 2009