Tam and Nong

[2018] FCCA 3496

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAM & NONG [2018] FCCA 3496

Catchwords:
FAMILY LAW – Property proceedings – proceedings transferred to the Family Court of Australia – order made.

Legislation:

Federal Circuit Court of Australia Act 1999, s.39
Federal Circuit Court Rules 2001, r.8.02

Cases cited:

Morris & Rosetti [2017] FamCA 249

Applicant: MR TAM

Respondent: MS NONG

File Number: PAC 2903 of 2018

Judgment of: Judge Newbrun

Hearing date: 28 November 2018

Date of Last Submission: 28 November 2018

Delivered at: Parramatta

Delivered on: 30 November 2018

REPRESENTATION

Solicitors for the Applicant:	Mr Nguyen of Tnap Legal
Counsel for the Respondent:	Ms Manfre

Solicitors for the Respondent: Armstrong Legal

ORDERS

1. These proceedings are forthwith transferred to the Family Court of Australia in Parramatta, and are listed for mention on 22 January 2019 at 9:30 am.

NOTATION

The Court will issue brief Reasons for Judgment in relation to the above transfer Order. The Court notes that these are proceedings relating to the setting aside of a financial agreement, with likely six witnesses including two witnesses being legal practitioners, and both parties requiring Vietnamese interpreters.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 2903 of 2018

MR TAM

Applicant

And

MS NONG

Respondent

REASONS FOR JUDGMENT

1. The within Reasons for Judgment relate to this Court’s Order of 28 November 2018 that these property proceedings be transferred to the Family Court of Australia.

2. The proceedings instituted by the husband relate to his proposed Orders that a section 90C Financial Agreement be set aside, and that property adjustment Orders be made.

3. Both parties, the husband and wife, hail from Vietnam and will require interpreters at the final hearing.

4. The husband is aged 56, and he asserts their relationship spanned some thirteen years.

5. The wife’s material has not yet been filed but her solicitor informs the Court that the husband’s proposed Orders are opposed and the wife will seek to uphold the Financial Agreement.

Issues in dispute

1. The issues in dispute, as submitted by the parties’ solicitors today, are as follows:

   a)Whether the Financial Agreement should be set aside under section 90K(1)(a), the fraud ground;

   b)Whether the Financial Agreement should be set aside under section 90K(1)(e), the unconscionable ground;

   c)Whether the Financial Agreement should be set aside under common law principles, namely relating to misrepresentation and mistake (this contended issue appears to be contrary to section 90K(1) at first glance);

   d)If the Financial Agreement is set aside, what, if any, property adjustment Orders should be made.

Relevant statutory provisions and principles

1. The Court refers to the decision of Tree J in Morris & Rosetti [2017] FamCA 249. His Honour sets out in that decision, in relation to transfers of proceedings between this Court and the Family Court of Australia, the relevant statutory provisions and principles, and refers to a Protocol, agreed to between the heads of jurisdiction of this Court and the Family Court of Australia, in relation to such transfers, as follows:

   14. The heads of jurisdiction of both Family Court and the Federal Circuit Court have agreed upon, and published, a protocol for the guidance as the appropriate court in which parties should commence proceedings. It provides as follows:

   If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (“FCoA”), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Magistrate Court (“FMC”).

   1. International child abduction.

   2. International relocation.

   3. Disputes as to whether a case should be heard in Australia.

   4. Special medical procedures (of the type such as gender reassignment and sterilisation).

   5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

   6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.

   7. Complex questions of jurisdiction or law.

   8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.

   Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

   Transfers

   1. Either Court on its own motion or on application of a party can transfer a matter to the other Court.

   2. There is no right of appeal from a decision as to transfer.

   15. It is pertinent to make the following observations in relation to the protocol:

   ·    The protocol speaks about the appropriate court in which proceedings should be commenced. It does not speak, necessarily or directly, to the matters which might inform transfer by either court, although there may be an expectation that the matters enumerated in it would be relevant to the exercise of the discretion to transfer;

   ·    The language of the protocol admits of exception: for instance the direction that certain matters “ordinarily” should be filed in the Family Court, and the reference to “if judicial resources permit;”

   ·    Some of the criteria require a degree subjective interpretation, for instance, the reference to “serious” allegations of abuse, and “complex” questions of law. Necessarily, these are matters upon which reasonable minds may legitimately reach different conclusions;

   ·    Notwithstanding those observations, the intent of the protocol is to effect a relatively clear division of work between the two courts, with the Family Court undertaking work more suited to a superior court of record. Whilst terms such as “complex,” “difficult” or “complicated” might on occasion be used to try and describe that division, none are perfectly apt to describe the line of demarcation between the two courts work. That is because, particularly in children’s matters, there is almost always some degree of complexity, difficulty and complication involved in determining where the best interests of children lie.

   16. The other point which should be made about the protocol is that it is an agreement between the heads of both jurisdictions. As such, it cannot lawfully fetter the discretion of either court to transfer proceedings to the other: see for instance, Re W: Publication Application (1997) 137 FLR 205 at 240 per Finn J. In fairness to those who drafted the protocol, it does not, on a plain reading of its contents, seek to do so in any event. To cast that proposition slightly differently, a judicial officer who regarded the exercise of their discretion to transfer as being required to be in conformity with the protocol would be imposing an unlawful fetter. At most, the protocol is a potentially relevant consideration.

   RELEVANT STATUTORY PROVISIONS AND PRINCIPLES

   17. Section 39 of the Federal Circuit Court of Australia Act 1999 relevantly provides:

   (1) If a proceeding is pending in the Federal Circuit Court of Australia, the Federal Circuit Court of Australia may, by order, transfer the proceeding from the Federal Circuit Court of Australia to ... the Family Court.

   ...

   (4) In deciding whether to transfer a proceeding to the Family under subsection (1), the Federal Circuit of Australia must have regard to:

   (a)     any Rules of court made for the purposes of subsection 40(4);

   (b)     whether proceedings in respect of an associated matter are pending in the Family Court;

   (c) whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings; and

   (d)     the interests of the administration of justice.

   ...

   18. Rule 8.02 of the Federal Circuit Court Rules provides as follows:

   (1) The Court may, at the request of a party or of its own motion, transfer a proceeding to the Federal Court or the Family Court.

   (2) Unless the Court otherwise orders, a request for transfer must be made on or before the first court date for the proceeding.

   (3) Unless the Court otherwise orders, the request must be included in a response or made by application supported by an affidavit.

   (4) In addition to the factors required to be considered by the Court under subsections 39(3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:

   (a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;

   (b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;

   (c) whether the proceeding will be heard earlier in the Court;

   (d) the availability of particular procedures appropriate for the class of proceeding;

   (e) the wishes of the parties.

Discussion

1. There is likely to be significant evidence, including cross-examination, in relation to all of the above issues (under the heading, at the beginning of these Reasons, “Issues in Dispute”).

2. The parties will require Vietnamese interpreters, which will significantly add to the length of any final hearing.

3. The parties propose to call lay witnesses to give evidence.  The husband’s witness, Mr T, may well require an interpreter.  Additionally, the two solicitors involved in relation to the Financial Agreement will have to give evidence, and they both may well need interpreters, being Vietnamese speaking solicitors.

4. If the Financial Agreement is set aside, the Court will need to determine the proposed property adjustment Orders.

5. It will be necessary for the Court, at the final hearing of these proceedings, to hear the competing oral submissions of the parties, based upon the likely extensive evidence before the Court.

6. In the above circumstances, there is a significant prospect that these proceedings will take more than four days of final hearing, and, in the view of the Court, having regard to the Protocol alone, the proceedings should be transferred.

7. Further, as to section 39(4)(c) of the Act, the resources of this Court are not sufficient to hear and determine the proceedings. There have been two directions hearings in this Court to date. There are likely to be continued interlocutory proceedings relating to the Financial Agreement and property adjustment sets of proceedings.

8. Further, as to section 39(4) of the Federal Circuit Court of Australia Act 1999 and Rule 8.02 of the Federal Circuit Court Rules 2001:

   ·The proceedings are likely to be heard and determined at less cost and more convenience to the parties than if the proceedings are not transferred; in this Court, there are likely to be significant waiting periods between the dates of directions hearings, and delays in appointing fixtures for interlocutory disputes, compared to the Family Court of Australia. Further, in proceedings of this nature, relating to Financial Agreements and applications to set them aside, the Family Court of Australia has greater expertise;

   ·The final hearing of these proceedings is likely to be heard earlier in the Family Court of Australia than in this Court; property proceedings alone in this Court, once ready for final hearing (which this case is not), are likely to receive a final hearing date at least twelve months thereafter;

   ·Neither party opposed the proceedings being transferred to the Family Court of Australia;

   ·These proceedings are complex by reason of the above issues to be determined in relation to the Financial Agreement, and the Court refers to its discussion above in these Reasons;

   ·Again, having regard to the issues to be determined between the parties, and the need for Vietnamese interpreters, there is a significant prospect that these proceedings will take in excess of four final hearing days;

   ·The administration of justice is best served by transferring these proceedings, and the Court has regard to its discussions above.

9. The Court, in the exercise of its discretion, transfer these proceedings to the Family Court of Australia of its own motion, but notes again that neither party opposed such transfer.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 30 November 2018