SCVG and KLD (No 2)

[2019] FamCA 245

FAMILY COURT OF AUSTRALIA

SCVG & KLD (NO. 2) [2019] FamCA 245

FAMILY LAW – JURISDICTION – Inherent jurisdiction – Transfer of Proceedings.

Administrative Appeals Tribunal Act 1975 (Cth) Part IVA

Federal Circuit Court of Australia Act 1999 (Cth) s 39
Federal Circuit Court Rules 2001 (Cth) rule 16.05(2)(b)

Tribunals Amalgamation Act 2015 (Cth)

Norton & Locke [2013] FamCAFC 202
SCVG & KLD [2018] FamCA 27

APPLICANT: Mr SCVG

RESPONDENT: Ms KLD

FILE NUMBER: SYC 5956 of 2016

DATE DELIVERED: 18 April 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Mr Stenhouse

SOLICITOR FOR THE RESPONDENT: Macphillamy's Lawyers

Orders

1. The Family Court of Australia has jurisdiction to determine the application by Mr SCVG to set aside by reason of fraud orders relating to an appeal from the SSAT made by Judge Scarlett of the Federal Circuit Court on 30 April 2015.

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 SCVG & KLD 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: SYC 5956 of 2016

Mr SCVG

Applicant

And

Ms KLD

Respondent

REASONS FOR JUDGMENT

1. By an application in a case filed 11 December 2017 Mr SCVG seeks to set aside orders made by Judge Scarlett of the Federal Circuit Court on 30 April 2015, being a determination on appeal from a decision of the Social Security Appeals Tribunal. The application seeks to set aside the orders on the basis of fraud pursuant to rule 16.05(2)(b) of the Federal Circuit Court Rules 2001 (Cth). An issue has arisen as to the jurisdiction of this Court to entertain such an application.

2. Although the issue of jurisdiction was initially raised by Ms KLD, both parties agree that the Court does have jurisdiction (while accepting that consent does not confer jurisdiction). In order to assist the Court, and as a matter of courtesy, Ms KLD provided written submissions to support the case for jurisdiction.  Mr SCVG did not seek to add to those submissions.

3. The proceedings before Judge Scarlett were an appeal from a decision of the Social Security Appeals Tribunal (the “SSAT”) made in March 2013, setting aside an earlier decision by the Child Support Agency.  The jurisdiction exercised by Judge Scarlett is now controlled by Part IVA of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and, while at the time the jurisdiction exercised by Judge Scarlett could also have been exercised by this Court, it is no longer a jurisdiction conferred on the Family Court of Australia.

4. The transitional provisions contained in the amending legislation which changed the jurisdictional arrangements, the Tribunals Amalgamation Act 2015 (Cth), provided for the immediate application of the new provisions from the commencement day, including in relation to either pending proceedings or decisions already made, as here.

5. At the time of Mr SCVG’s Application in a Case the Family Court no longer had jurisdiction to hear an appeal from the SSAT.

6. Mr SCVG’s application was transferred by Judge Henderson (as she then was) from the Federal Circuit Court to the Family Court of Australia on 15 May 2018 pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth).

7. The question of jurisdiction is dependent upon the characterisation of the proceedings before the Circuit Court and now before this Court. If the proceedings are characterised as an appeal from the SSAT, then jurisdiction would need to be derived as either associated or accrued jurisdiction.

8. However, the application made by Mr SCVG was reliant upon rule 16.05(2)(b) of the Federal Circuit Court Rules 2001 (Cth) which relevantly states:

   16.05  Setting aside or varying judgments or orders

   (2)The Court or a Registrar may vary or set aside a judgment or order after it has been entered if:

   (b)  it was obtained by fraud;

9. The application by Mr SCVG pursuant to this Rule was described by Ms KLD as “a request for the discretionary exercise of an ‘inherent jurisdiction’ of a statutory court (or, more correctly, the power over its own processes incidental to all Courts, inferior as well as superior to act to inter alia prevent an abuse of process giving rise to injustice: Norton & Locke [2013] FamCAFC 202 at [57], [58]). The SSAT application is not a request for the exercise of a specific (expressly given) statutory jurisdiction within each Court.”

10. I accept this characterisation.  Norton & Locke established that the Federal Circuit Court, “when exercising the judicial power of the Commonwealth has, as does the Family Court and the Federal Court, the power to control its own processes: ‘[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so , the court would be obliged to sit still and see its own process abused for the purpose of the injustice…’ (Emphasis added)”.

11. The Rule, allowing the setting aside based on fraud, and the inherent power upon which it is based, are the same in both the Federal Circuit Court and the Family Court of Australia.

12. The application made by Mr SCVG was directed to this source of jurisdiction, rather than to one sourced within the AAT Act.

13. What is now before the Family Court of Australia are the proceedings which were reliant upon the inherent jurisdiction of the Federal Circuit Court, transferred to this Court pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth), and now reliant upon that same jurisdiction before this Court.

14. Accordingly I determine that the Family Court of Australia has jurisdiction to deal with Mr SCVG’s application to set aside the judgment of Judge Scarlett on the basis of fraud.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 18 April 2019.

Associate: 

Date:  18 April 2019