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 Teams.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Venter & Venter has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAREW J:
Substantive proceedings for property settlement were commenced in this Court on 11 August 2021 by Ms Venter (whom I will refer to for convenience as “the wife”) against Mr Venter (whom I will refer to for convenience as “the husband”). The wife’s Initiating Application joined to the proceedings her three adult children, Mr B Venter (the second respondent), Mr C Venter (the third respondent) and Ms Glynn (the fourth respondent) (whom I will refer to by their first names for convenience), and three other respondents being three entities, namely, D Group Holdings Family Pty Ltd as trustee for the D Group Holdings Discretionary Trust (the fifth respondent), T Pty Ltd as trustee for T Discretionary Trust (the sixth respondent and now in liquidation) and R Pty Ltd (the seventh respondent). A further corporate respondent, G Pty Ltd, (the eighth respondent) was subsequently joined to the proceedings by the wife.
Ms Glynn and the sixth respondent have taken no part in the proceedings to date but I am satisfied they were served and have knowledge of the proceedings.
The matters for determination today concern the following:
(1)The Application in a Proceeding filed on 6 December 2021 by Mr B Venter, Mr C Venter, the fifth and seventh respondents seeking that paragraphs 4, 9 and 10(a) of the wife’s Amended Initiating Application filed 12 October 2021 be summarily dismissed, and paragraphs 2.5, 25, 26 and 41 to 49 of the wife’s Points of Claim dated 12 October 2021 be struck out; and
(2)The application by the eighth respondent as contained in its Response to the Application in a Proceeding filed 16 February 2022 which joins with the relief sought in the Application in a Proceeding as identified in the preceding paragraph and also to be removed as a party to the proceedings (an amendment to the Response being made with leave today).
The wife opposes the making of orders as sought by the various respondents.
Although I propose to adjourn the determination of the issues currently before me until a date subsequent to 21 April 2022 (a course accepted by the parties), it is nevertheless appropriate that I provide some reasons for that course. I should record that although the matter will be adjourned, I permitted the parties to make submissions on the matters in contention. In normal circumstances my decision would simply be reserved, however given the unusual circumstances in which the Court finds itself I have come to the view that the more appropriate order is to adjourn the proceedings. My reasons for doing so arise as a result of case stated to the Full Court concerning the jurisdiction of this Court to determine matters pending as at 1 September 2021, a date from which the jurisdiction of this Court changed.
As already noted the substantive proceedings were commenced in this Court prior to 1 September 2021. Accordingly, this is a matter which is affected by what is a possible lacuna in the Court’s jurisdiction with respect to such matters.
In every matter that comes before a judicial officer, the first question that must be answered is whether or not they have jurisdiction to quell the dispute between the parties.[1]
[1] Hazeldell Ltd v The Commonwealth (1924) 34 CLR 442 at 446.
Until 1 September 2021 (the commencement day) the original jurisdiction of this Court was conferred by s 31 of Part IV of the Family Law Act 1975 (Cth) (“the FLA”) and relevantly 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 a matter previously conferred on this Court by s 39 of the FLA and was therefore a matter arising under the Act. Part IV of the FLA was repealed by Item 36 of Schedule 1 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth) (“the CATP Act”) with effect from 1 September 2021 and s 39 was amended by Item 37 of the CATP Act (removing reference to the Family Court and replacing with Federal Circuit and Family Court of Australia Division 2).
Importantly, Item 229 of Schedule 1 of the CATP Act relevantly provides as follows:
The amendments of the Family Law Act 1975 … made by this Schedule apply in relation to a proceeding commenced before, on or after [1 September 2021]”.
(Emphasis added)
The original jurisdiction of this 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)). Section 25 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the new Act”) confers jurisdiction on this Court as follows:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
A family or child support proceeding is defined by s 7 of the new Act and means “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132”.
Section 132 of the new Act provides as follows:
(1)The Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction:
(a) with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975; or
(b) with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act; or
(c) with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning:
(i) the adoption of children; or
(ii)the property of the parties to a marriage or either of them, being matters between those parties referred to in the definition of matrimonial cause in the Family Law Act 1975; or
(iii)the rights and status of a person who is an ex‑nuptial child, and the relationship of such a person to the person’s parents; or
(d)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by:
(i) the Child Support (Assessment) Act 1989; or
(ii) the Child Support (Registration and Collection) Act 1988.
On its face, the plain meaning of the relevant provisions in the new Act and the CATP Act is to remove the jurisdiction of this Court in all matters instituted before 1 September 2021 i.e. pending as at that date.
It has been suggested that such an interpretation leads to an absurd result. Such a proposition is hard to resist. However, the question arises as to whether an absurd result can be overcome by imputing to the legislature an intention that is contrary to the plain meaning of the relevant provisions.
Overcoming what may be an absurdity would perhaps be easier if the CATP Act had not made specific transitional provision for some matters, namely appeals. By Part 4 of Schedule 5 of the CATP Act, appeals already instituted prior to 1 September 2021 are to be heard as if the appeal were made to the newly named Federal Circuit and Family Court of Australia (Division 1). Item 28 of Part 4 of Schedule 5 provides as follows:
Matters to be substantively heard by the Federal Circuit and Family Court of Australia (Division 1)
(1)Subject to subitems (3) and (4), if:
(a)before the commencement day, any of the following occur:
(i) an application is made under section 94AA of the Family Law Act 1975 for leave to appeal under Part X of that Act;
(ii) an appeal is instituted, as allowed by Part X of that Act;
(iii)facts and a question of law are stated in the form of a special case for the opinion of a Full Court of the Family Court of Australia; and
(b) on the day before the commencement day, either:
(i)there has not been a substantive hearing of the application, appeal or special case by the Full Court of the Family Court of Australia; or
(ii)in the case of an application referred to in subparagraph (a)(i) that could be determined by a single Judge of the Family Court of Australia, there has not been a substantive hearing of the application by a single Judge of the Court;
then, on or after the commencement day, the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the application, appeal or special case, as if the application were made to, the appeal instituted in, or the special case stated for, the Federal Circuit and Family Court of Australia (Division 1).
(2)To avoid doubt, the Federal Circuit and Family Court of Australia (Division 1) is to hear and determine the application, appeal or special case according to:
(a)the Federal Circuit and Family Court of Australia Act 2021; and
(b)the Family Law Act 1975, as amended by this Act; and
(c)any other law of the Commonwealth, as relevant.
Federal Circuit and Family Court of Australia (Division 1) to deal with certain applications of a procedural nature first
(3)If, on the day before the commencement day, a Full Court of the Family Court of Australia has reserved judgment on an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975) in relation to an application or appeal mentioned in paragraph (1)(a), then, on or after the commencement day, a Full Court of the Federal Circuit and Family Court of Australia (Division 1) must deliver the judgment on the procedural application.
(4)If, on the day before the commencement day, a single Judge of the Family Court of Australia has reserved judgment on an application of a procedural nature (as mentioned in subsection 94(2D) or 94AAA(10) of the Family Law Act 1975) in relation to an application or appeal mentioned in paragraph (1)(a), then, on or after the commencement day, a single Judge of the Federal Circuit and Family Court of Australia (Division 1) must deliver the judgment on the procedural application.
It might be argued that the legislature, having given particular consideration to saving provisions in respect of appeals, determined not to make the same provisions for other matters pending as at 1 September 2021.
The fact that similar provisions were not included in the transitional provisions with respect to proceedings pending in this Court at first instance is problematic to say the least. It has led to arguably an absurdity of its own, involving transfer orders being made from this Court to the other court and back again purportedly pursuant to ss 52 and 149 of the new Act. Such orders have been made without notice and without hearing from the parties despite the mandatory factors to which regard must be had when considering such transfers as set out in s 52 of the new Act and r 9.02 of the Federal Circuit and Family Court or Australia (Family Law) Rules 2021 (Cth) (“the new Rules”).
I note that on 31 March 2022, a statement issued to professional bodies under the banner - “Federal Circuit and Family Court of Australia” - purportedly from “the Federal Circuit and Family Court of Australia (Division 1)”. It is not clear on the face of the statement under what authority the statement issued. As to its contents I make the following observations:
(a)The statement commences with the following paragraph:
There has been recent discussion in court proceedings and in the profession concerning the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) to hear a small, discrete number of cases that were pending in the Family Court of Australia immediately prior to 1 September 2021 when the Federal Circuit and Family Court of Australia Act 2021 commenced.
On the information available to me, the number of cases pending in this Court as at 1 September 2021 was in the vicinity of 3,000.
(b)The statement suggests that the transfers involving proceedings pending in this Court as a 1 September 2021 (from this Court to the other court and back again) is a “pragmatic step which is taken to ensure, for the avoidance of doubt, that the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) under the Family Law Act 1975 is enlivened to hear and determine these cases” and “to remove uncertainty and avoid delay in the Court hearing these cases”. If the statement is intended to convey that the Judges of this Court have considered and decided that this process overcomes any potential jurisdictional issue, the statement is incorrect;
(c)The statement further states that “[t]he Court will work with Government to ensure a legislative clarification can be progressed at the earliest opportunity”. Other than bringing the potential issue to the attention of “Government” it is unclear what further “work” would be appropriate. In this context I note that a potential issue as to jurisdiction was referred to in a number of cases dating back to December 2021.[2]
[2] Tomney & Bartells [2021] FedCFamC1F 332; Stredwick & Lindner [2022] FedCFamC1F 21; Hoggard & Hoggard [2022] FedCFamC1F 98; Stopford Malloy & Malloy [2022] FedCFamC1F 118; Porter & Porter [2022] FedCFamC1F 102.
On 31 March 2022 a case was stated to the Full Court by Hogan J[3] on the following questions:
Question 1
Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine proceedings which were commenced before 1 September 2021 in the court previously known as the Family Court of Australia?
Question 2
If the answer to Question 1 is “No”, does the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer proceedings which were commenced before 1 September 2021 in the court previously known as the Family Court of Australia to the Federal Circuit and Family Court of Australia (Division 2)?
[3] Urwin & Nevins (No 3) [2022] FedCFamC1F 201.
Respectfully, I observe, given the apparent lacuna in the transitional provisions, the stating of a case to the Full Court was an entirely conventional and appropriate course.
The case stated has apparently been listed before a Full Court of five Judges for hearing on 21 April 2022. An important consideration by Hogan J in stating the case was “having the questions stated answered by the Full Court of this Court would remove the possibility of different judges at first instance arriving at different views about the seminal issue of jurisdiction”. Again, with respect, such a consideration was entirely conventional and appropriate.
I note that an ex tempore judgment was delivered by another Judge of this Court on 4 April 2022[4] (who may have been unaware of the case stated) in which it was determined that the Court does have jurisdiction in matters pending in this Court as at 1 September 2021 or, if it did not, the transfer regime pursuant to ss 52 and 149 of the new Act was an appropriate remedy to overcome an absence of jurisdiction. While that decision may be correct, minds may differ. I simply observe that in my case I have come to the conclusion that the appropriate course is to avoid further deliberation on the issue of jurisdiction and await the Full Court’s determination.
[4] Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 8 April 2022
SCHEDULE OF PARTIES
BRC 1065 of 2021 Respondents
Fourth Respondent:
MS GLYNN
Fifth Respondent:
D GROUP HOLDINGS FAMILY PTY LTD ATF D GROUP HOLDINGS DISCRETIONARY TRUST
Sixth Respondent:
T PTY LTD ATF T DISCRETIONARY TRUST
Seventh Respondent:
R PTY LTD
Eighth Respondent:
G PTY LTD
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