Scully and Scully and Anor

[2020] FCCA 803

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCULLY & SCULLY & ANOR [2020] FCCA 803

Catchwords:
FAMILY LAW – Property – transfer of proceedings to the Family Court of Australia – where there are significant and complex factual and legal issues involved in the proceedings – where the matter involves interactions between different jurisdictions.

Legislation:

Family Law Act 1975 (Cth).
Federal Circuit Court Rules 2001 (Cth), r.8.02.

Applicant: MS SULLY

First Respondent: MR SULLY

Second Respondent: MR A (AS TRUSTEE OF THE BANKRUPT ESTATE OF MS SULLY)

File Number: PAC 2399 of 2018

Judgment of: Judge Harman

Hearing date: 26 March 2020

Date of Last Submission: 26 March 2020

Delivered at: Parramatta

Delivered on: 26 March 2020

REPRESENTATION

The Applicant appeared in person

Solicitors for the First Respondent: Mr O'Neill of Era Legal, Commercial, Insolvency & Litigation Lawyers

Counsel for the Second Respondent: Mr Spencer

Solicitors for the Second Respondent: Dentons Australia

ORDERS

1. Transfer these proceedings to the Family Court of Australia.

2. Request that a Registrar give consideration to a Case Management Directions Hearing of the proceedings as soon as is practicable.

3. Note: There are proceedings connected with the subject matter of this case listed before the Federal Court of Australia on 16 April 2020 and the matter should not be listed on that date.

IT IS NOTED that publication of this judgment under the pseudonym Scully & Scully & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2399 of 2018

MS SULLY

Applicant

And

MR SULLY

First Respondent

MR A (AS TRUSTEE OF THE BANKRUPT ESTATE OF MS SULLY)

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court today for the third occasion.  However, it is the first occasion on which all of parties necessary to enable address of controversy have been involved. 

2. That is no criticism of the intervenor/trustee in bankruptcy, in particular, who has only recently been given full notice of these proceedings. 

3. The husband has previously been served and has purported to file material.  However, on the last occasion the matter was before the Court, that material was not upon the Court file.  At this time only the affidavit itself, not the voluminous annexures thereto, are available.  Further, the husband has changed legal representative since the matter was last before the Court, although the legal representatives previously retained by the husband did not appear on the prior occasions.

4. I proposed to transfer these proceedings to the Family Court of Australia, however, reasons must be given for doing so.  Thus, this judgment is delivered. 

5. The parties to the proceedings are numerous, comprising:

   a)Ms Sully, the applicant and the wife to the marriage which forms the jurisdictional basis for the proceedings under the Family Law Act 1975 (Cth);

   b)Mr Sully, the husband, the first respondent; and,

   c)The trustee in bankruptcy. 

6. The trustee in bankruptcy has previously administered the affairs of Ms Sully.  There is no controversy that Ms Sully is now discharged from bankruptcy.  However, there is an intimate connection between the bankruptcy and the Family Law Act 1975 (Supra) proceedings, which need not be significantly unbundled at this time, save and suffice to observe that two parcels of real estate, at Suburb B and Town C respectively, are the subject of these proceedings and were previously the subject of the bankruptcy proceedings. 

7. Those properties, and transactions with respect to them, are also still the subject of controversy before the Federal Court of Australia to some extent. 

8. In dealing with transfer I must have regard to each of the factor set out in Rule 8.02[1].  I will deal with each separately:

Whether the proceedings are likely to involve a question of general importance such that it would be desirable for a decision of the Federal Court or Family Court on one or more of those points. 

[1] Federal Circuit Court Rules 2001 (Cth), r.8.02.

1. That is certainly apposite to these proceedings. 

2. I am not satisfied that I would have full or appropriate jurisdiction to deal with all issues in these proceedings.  There are matters that would fall within the jurisdictions of both the Supreme Court and Federal Court and may, although I do not suggest necessarily would, require an exercise of accrued jurisdiction at that level.  Whilst I accept that the Federal Circuit Court has an inherent accrued jurisdiction it does not necessarily extend to that point. 

3. There are significant and complex factual and legal issues involved in these proceedings regarding:

   a)The interaction between jurisdictions;

   b)The jurisdiction of different Courts and at different levels, both State and Federal;

   c)Allegations of impropriety with respect to certain transactions, whether of the parties, the trustee or otherwise. I make clear that I do not adopt or make any finding with respect to those allegations, merely note that they are raised.

4. Those issues of themselves would warrant and support the transfer of proceedings. 

Whether, if the proceedings are transferred, they will be heard and determined at less cost and more convenience.

1. That is a difficult question to answer in the present circumstances in which Courts generally find themselves in response to the COVID-19 pandemic. 

2. There is no prospect that this matter could be addressed, as regards even an interlocutory determination, other than by telephone in the next few weeks.  Thereafter, it is possible that the matter might be dealt with by video conferencing facilities.  Those difficulties, of course, apply to both Courts.

3. Irrespective of the modality of hearing, any final hearing of the matter would, on present estimates, and even before the disruptions that are presently occurring with respect to the business of the Court, be some years hence.

4. It is not necessarily more cost-effective or convenient for the parties, one or more of them, to deal with proceedings before the Family Court.  It is the complexity of the matter that compels transfer. 

Whether the proceedings will be heard earlier in the superior Court.

1. This is unclear. 

The availability of particular procedures. 

1. It is not so much procedures, although they are relevant, but jurisdictional considerations that compel transfer. 

2. Procedural issues do have some relevance.  This is a matter that will require rigorous investigation and management.  That is far more readily available in the Family Court.  That is not to suggest the Family Court has greater resources.  Indeed, they do not.  But the processes and procedures that would be available, through Registrar-assisted case management in a complex financial case of this nature, would benefit the conduct and determination of the proceedings (in addition to the jurisdictional matters already addressed).

Wishes of the parties.

1. None of the parties oppose the transfer of the proceedings, (although I would not go so far as to suggest that each necessarily consents). 

2. For the above reasons alone, it would be sufficient to transfer the matter. 

3. An additional consideration, in accordance with the protocols between Courts, is that the final hearing of these proceedings, if that is where the matter is destined to conclude, is likely to exceed the “rule of thumb” of a four-day hearing and dramatically so.  It is difficult to understand how the complex evidence in these proceedings, spread over many years of transactions, would conclude in a hearing of less than a week, possibly much more than that. 

4. For those reasons I make Orders as follows.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date: 8 April 2020.