Venter & Venter (No 2) - [2022] FedCFamC1F 230

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Venter & Venter (No 2) [2022] FedCFamC1F 230

File number(s): BRC 10651 of 2021

Judgment of: CAREW J

Date of judgment: 7 April 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE - Where there is a question as to whether this Court now has original jurisdiction to hear and determine proceedings which were commenced in it (then known as the Family Court of Australia) before 1 September 2021 – Where a case has been stated to the Full Court of this Court to determine the jurisdictional question – Where the matter is adjourned pending the delivery of judgment by the Full Court

Legislation:
Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth)

Federal Circuit and Family Court or Australia (Family Law) Rules 2021 (Cth)

Cases cited:
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442

Hoggard & Hoggard [2022] FedCFamC1F 98

Porter & Porter [2022] FedCFamC1F 102

Stopford Malloy & Malloy [2022] FedCFamC1F 118

Stredwick & Lindner [2022] FedCFamC1F 21

Tomney & Bartells [2021] FedCFamC1F 332

Number of paragraphs: 22

Date of hearing: 7 April 2022

Place: Brisbane

Counsel for the Applicant: Mr Shaw QC with Dr Matta

Solicitor for the Applicant: Damien Greer Lawyers

Solicitor for the First Respondent: Mr Burreket, Broun Abrahams Burreket Family Lawyers

Counsel for the Second, Third, Fifth and Seventh Respondents: Mr Henry SC

Solicitor for the Second, Third, Fifth and Seventh Respondents: Barkus Doolan Family Lawyers

Fourth Respondent: No appearance

Sixth Respondent: No appearance

Counsel for the Eighth Respondent: Mr Rogan

Solicitor for the Eighth Respondent: Pearson Emerson Lawyers
ORDER

BRC 10651 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VENTER

Applicant

AND:
MR VENTER

First Respondent

MR B VENTER

Second Respondent

MR C VENTER (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

CAREW J

DATE OF ORDER:

7 APRIL 2022

THE COURT ORDERS THAT:
1.The determination of the Application in a Proceeding filed 6 December 2021 and the Response to an Application in a Proceeding filed 16 February 2022 (as amended by leave) and the Response to an Application in a Proceeding filed 4 April 2022 be adjourned until after delivery of judgment by the Full Court in the case stated as to the jurisdiction of this Court to determine matters pending in this Court as at 1 September 2021.
2.Any outstanding objections to subpoena be listed for hearing before Registrar Gray on 26 April 2022 at 11:00am.
3.Each party has liberty to request the relisting of this matter before the Honourable Justice Carew upon the giving of forty-eight (48) hours written notice to the other parties.
NOTATION
A.It is noted that the case stated to the Full Court is listed for hearing on 21 April 2022.
B.It is further noted that all parties appeared via Microsoft…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Venter & Venter (No 2)

Details

AGLC: Venter & Venter (No 2) [2022] FedCFamC1F 230
Case: [2022] FedCFamC1F 230
Decision Date

CaseChat Overview and Summary

Ms Venter, the wife, commenced substantive proceedings for property settlement in the Federal Circuit and Family Court of Australia on 11 August 2021 against Mr Venter, the husband, and others. The substantive proceedings were heard by Carew J, who was required to decide whether the Court had jurisdiction to hear and determine the proceedings, which were commenced before 1 September 2021. The question of jurisdiction arose because the original jurisdiction of the Court changed on 1 September 2021. The Court found it appropriate to adjourn the determination of the issues until after the Full Court delivers judgment in a case stated to it on the jurisdiction question.

Carew J noted that the original jurisdiction of the Court was conferred by s 31 of Part IV of the Family Law Act 1975 (Cth) and included jurisdiction “with respect to …matters arising under this Act”. The jurisdiction with respect to matrimonial causes of the type involved in this case was conferred on the Court by s 39 of the Family Law Act 1975 (Cth) and was therefore a matter arising under the Act. However, Part IV of the Family Law Act 1975 (Cth) was repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth) with effect from 1 September 2021. The original jurisdiction of the Court is now largely dependent upon proceedings being transferred to it from an inferior court (the Federal Circuit and Family Court of Australia (Division 2)). The Court found that the plain meaning of the relevant provisions in the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth) is to remove the jurisdiction of the Court in all matters instituted before 1 September 2021. However, it has been suggested that such an interpretation leads to an absurd result. The Court found that it would not be appropriate to impute to the legislature an intention that is contrary to the plain meaning of the relevant provisions and that it was appropriate to await the Full Court’s determination of the jurisdiction question.

THE COURT ORDERS THAT:1.The determination of the Application in a Proceeding filed 6 December 2021 and the Response to an Application in a Proceeding filed 16 February 2022 (as amended by leave) and the Response to an Application in a Proceeding filed 4 April 2022 be adjourned until after delivery of judgment by the Full Court in the case stated as to the jurisdiction of this Court to determine matters pending in this Court as at 1 September 2021.2.Any outstanding objections to subpoena be listed for hearing before Registrar Gray on 26 April 2022 at 11:00am.3.Each party has liberty to request the relisting of this matter before the Honourable Justice Carew upon the giving of forty-eight (48) hours written notice to the other parties.

Orders