TALBOT & TALBOT - [2014] FamCA 128

FAMILY COURT OF AUSTRALIA

TALBOT & TALBOT

[2014] FamCA 128

FAMILY LAW – PRACTICE AND PROCEDURE – whether the Federal Circuit Court has original jurisdiction in relation to the Corporations Act 2001 (Cth) – transfer of proceedings to the Federal Circuit Court as the Court has jurisdiction pursuant to s 33B(8A) of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) s 33B (8A)
Corporations Act 2001 (Cth) s 1337C

APPLICANT:

Mr Talbot

RESPONDENT:

Ms Talbot

FILE NUMBER:

MLC

4263

2013

DATE DELIVERED:

17 February 2014

PLACE DELIVERED:

Launceston

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

17 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tucker

SOLICITOR FOR THE APPLICANT:

Medina Legal

COUNSEL FOR THE RESPONDENT:

Ms Mooney

SOLICITOR FOR THE RESPONDENT:

Walsh Day James Mihal

Orders

Pursuant to s 33B of the Family Law Act 1975 (Cth) these proceedings are transferred by the Family Court, of its own motion, to the Federal Circuit Court of Australia at the Launceston Registry.

IT IS REQUESTED

The Federal Circuit Court shall list this matter for trial directions at the next convenient date.
Pursuant to s 33B(8A) that the Federal Circuit Court has the jurisdiction which the Family Court would otherwise have had been able to exercise but for this transfer.

IT IS DIRECTED

A copy of the reasons for these orders be taken out and placed on the court file.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend

IT IS NOTED that publication of this judgment by this Court under the pseudonym Talbot v Talbot 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 LAUNCESTON

FILE NUMBER: MLC 4263 of 2011

Mr Talbot

Applicant

And

Ms Talbot

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

Mr Talbot (“the husband”) and Ms Talbot (“the wife”) are engaged in property proceedings which were commenced by the husband in the Family Court of Australia Melbourne Registry by application filed 29 May 2013. The wife filed a response to that application on 20 June 2013 in which she also sought property and parenting orders.
At the time of commencement of the proceedings, the husband lived in northern Victoria and the wife lived in north east Tasmania. There is one child of the proceedings, C, who is aged four and who lives with the wife in Tasmania.
The proceedings came before Senior Registrar Fitzgibbon on 20 June 2013 and procedural orders were made as well as some interim orders. The proceedings where then transferred to the Family Court of Australia at the Launceston Registry.
On 15 July 2013, the matter was listed before me and some consent orders were made, some interim orders were made and directions were made to prepare the matter for hearing including a valuation of the property. At that time, I raised the question as to why the proceedings ought not to be conducted in the Federal Circuit Court. However, I was persuaded to leave the matter in the Family Court and directed that a conciliation conference take place on 11 September 2013. Unfortunately, the conciliation conference did not resolve the matter and the parties now seek to have the matter listed for hearing.
The husband is aged 39 and is a managing director by occupation. The wife is aged 36 and is an office manager.
The parties commenced cohabitation according to the husband in about 2007/2008. They married in January 2010 and according to the husband, separated in April 2013.
The husband asserts that the parties own a number of properties in Tasmania and have a business or businesses operating in Tasmania. The husband contends that the wife has acted improperly in relation to the terms of the management of the businesses and, through counsel, the husband asserted that there are various remedies he may seek in relation to a number of companies, such relief to be dealt with under the Family Court’s original jurisdiction pursuant to the Corporations Act 2001 (Cth) (“the Corporations Act”).
For the purpose of these reasons, I note that the meaning of a court has been defined in the Corporations Act in its dictionary as the meaning given to it by s 58AA of the Corporations Act. Section 58AA of the Corporations Act defines the meaning of a court as being any of the following courts:-
a)the Federal Court;
b)the Supreme Court of a State or Territory:
c)the Family Court of Australia;
d)a court to which section 41 of the Family Law Act 1975 applies because of a proclamation under subsection (41)(2) of that Act.
It is clear that the Federal Circuit Court does not derive jurisdiction under the Corporations Act pursuant to this section. Section 1337C of the Corporations Act confers upon the Family Court jurisdiction with regard to civil matters arising under the Corporations Act. If the proceedings had have been commenced in the Federal Circuit Court, there is doubt as to whether the Federal Circuit Court had jurisdiction. It may have been that a Federal Circuit Court judge could exercise jurisdiction under the accrued jurisdiction of that court, however that is dependant on a number of factors which I will not elucidate here but which the Courts and the profession are clearly aware.
Interestingly, the Federal Circuit Court, the Family Court and the Federal Court all have what is known as the associated jurisdiction. In the Federal Circuit Court, it is contained in s 18 of the Federal Circuit Court Act 1999 (Cth) and provides:-
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit Court of Australia in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit Court of Australia is invoked.
There is a similar but not identical provision under s 33 of the Family Law Act 1975 (Cth) (“Family Law Act”) and a similar but not identical provision under s 32 of the Federal Court of Australia Act 1976 (Cth).
The question of associated jurisdiction has been discussed in a number of cases and it is far from clear as to the nature and extent of that jurisdiction. In particular, I refer to decisions such as New South Wales Department of Housing v Moskalev (2007) 158 FCR 206 and the then Barwick CJ in Philip Morris Incorporated & Anor v Adam P Brown Male Fashions Proprietary Limited; United States Surgical Corporation v Hospital Products International Proprietary Limited & Anor [1981] HCA 7, (1981) 148 CLR 457. As with the accrued jurisdiction, there is an ongoing debate as to whether the associated jurisdiction would be sufficient to empower the Federal Circuit Court in respect of the Corporations Act.
However, there is the power to transfer with jurisdiction pursuant to s 33B(8A) of the Family Law Act. That section provides provision for a transfer of proceedings as a discretionary matter to the Federal Circuit Court of Australia. Section 33B(8A) sets out:-
The Federal Circuit Court of Australia has jurisdiction in a matter that:
(a) is a subject of proceedings 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 the limits set by another provision.
From a reading of this section, it is clear to me that when a proceeding is transferred from the Family Court of Australia to the Federal Court of Australia, the entire jurisdiction of the Family Court travels with the proceeding to the Federal Circuit Court. Section 33B(8A) of the Family Court Act is in almost identical form to s 33AB of the Federal Courts of Australia Act 1976 (Cth) which provides the same jurisdiction to the Federal Court to enable the transfer of proceedings and jurisdiction from it to the Federal Circuit Court.
The Full Court of the Federal Court in Nokia Corporation v Liu (2009) FCAFC 138 at paragraph 52 noted:-
52.In a trademark proceeding, only the Federal Court and the State and Territory Courts are ‘prescribed courts’ for the purpose of the Trademark Act: see s190. There has been no direct conferral of the jurisdiction under the Act on inferior courts. Nonetheless, under s32AB of the Federal Courts of Australia Act 1976 the Federal Court can remit an infringement proceeding to the Federal Magistrates Court [as it then was] in accordance with the requirements of s32AB(6) and order 82 of the Rules. Such remittance was not applied for in this matter and it is by no means clear that the transfer to the Federal Magistrates Court [as it then was] was realistically available option …
So it seems to me that the Full Court of the Federal Court made it clear that the jurisdiction would pass although in that particular case, it determined not to do so.
I am also assisted by a decision in the Federal Magistrates Court (as it then was) before the then Federal Magistrate Riethmuller in Keene v King [2011] FMCA 1117 which is where his Honour was looking at the power of the then Federal Magistrates Court in relation to nullity. His Honour observed at paragraph 14 of his reasons:-
14.Having noted that, the Court does not have jurisdiction to make declarations as to nullity of a marriage, it seems, (based upon the principles set out by Finkelstein J in Ogawa v Phipps [2006] FCA 361; 151 FCR 311), that such jurisdiction would not be part of the Court’s accrued or associated jurisdiction under the Act (because it has been specifically denied to the Court by the legislature). It is, however, a jurisdiction that this Court would have if the matter were transferred to the Family Court and transferred back to the Federal Magistrates Court because of the provisions of Family Law Act that give this Court full jurisdiction with respect to matters transferred to it by the Family Court of Australia (see s.33B(8A)(b) of the Family Law Act 1975).
It may be in some cases that some form of ‘Yo Yo’ process could be employed with the Federal Circuit Court transferring proceedings to the Family Court (sans jurisdiction) followed by an immediate return (with broader jurisdiction).
Accordingly, and having regard to the provisions of s 33B(8A) of the Act, I am satisfied in this case that the applicant husband would not be deprived of jurisdiction if the proceedings were transferred by this Court, of its own motion, to the Federal Circuit Court and I intend to do so.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 17 February 2014.

Associate:

Date: 17 February 2014