WOODBURY & FOWLER

[2019] FCCA 3069

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODBURY & FOWLER [2019] FCCA 3069

Catchwords:
FAMILY LAW – Where the parties consent to stepparent adoption – jurisdiction of the Federal Circuit Court of Australia – transfer of proceedings to the Family Court of Australia.

Legislation:

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s.4

Family Law Act 1975 (Cth), ss.60G, 69ZL

Federal Circuit Court Rules 2001 (Cth), r.8.02

Applicant: MS WOODBURY

Respondent: MR FOWLER

File Number: CAC 2580 of 2018

Judgment of: Judge Harman

Hearing date: 21 August 2019

Date of Last Submission: 21 August 2019

Delivered at: Canberra

Delivered on: 21 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Chapman

Solicitors for the Applicant: Evans Family Lawyers

The Respondent appeared in person

ORDERS

1. The proceedings are transferred to the Family Court of Australia sitting at Canberra.

2. Request that the file together with these reasons once settled be transmitted to Justice Gill as soon as possible so that his Honour might give consideration as to the appropriate case management of the proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 2580 of 2018

MS WOODBURY

Applicant

And

MR FOWLER

Respondent

REASONS FOR JUDGMENT

1. These proceedings are commenced by an Initiating Application filed 19 December, 2018. 

2. The parties to the proceedings are Ms Woodbury, the Applicant and the mother of the child whose welfare is the subject of the proceedings.  The Respondent is the child’s father, Mr Fowler. 

3. A Response is not yet filed.  For reasons that will be outlined, that does not cause any significant concern in the overall context of the proceedings and what will be done today. 

4. The matter relates to welfare arrangements for young X, born … 2010, thus nine, nearly ten years of age.  The Application seeks an investment in the mother of sole parental responsibility for major issues decisions for X.  The Application otherwise seeks orders to facilitate the child’s change of surname and various other orders that are suggested to follow therefrom. 

5. On the first return date of the proceedings, 11 June 2019, certain matters were communicated to the Court by Mr Fowler.  Those matters related to what was effectively a proposal put in open Court, as was noted within the orders issued that day, to resolve the matter on the basis of his consent to a stepparent adoption.  That was not the relief sought by Ms Woodbury and the proposal was something of a surprise to her.

6. Ms Woodbury has re-partnered.  Ms Woodbury’s evidence is that young X has, for a significant period of her life, lived in a household comprising herself and her partner. 

7. It would seem that consent to adoption is now forthcoming and that Ms Woodbury adopts that approach and seeks to proceed on that basis. 

8. Thus, by consent, it is sought that the proceedings be transferred to the Family Court of Australia. 

9. Whilst each of the factors in Rule 8.02 of the Federal Circuit Court Rules 2001 must be considered in regarding transfer, the transfer is irresistible. 

10. The Court is advised that, pursuant to section 4 of the relevant cross-vesting legislation, [1]that the Family Court of Australia, upon transfer, would be in a position to assume responsibility for the totality of determination of the adoption, (let alone the application that would be necessary and required were an adoption to proceed in another jurisdiction), for consent to commence proceedings. 

    [1] Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

11. Section 60G of the Family Law Act 1975 provides that the Family Court may grant leave for adoption proceedings by a “prescribed” adopting parent, being a step-parent, Ms Woodbury’s partner.  By the terms of that section, exclusive jurisdiction to grant such leave is vested in the Family Court of Australia, the Supreme Court of the Northern Territory or the Family Court of Western Australia.  The Federal Circuit Court is not specifically named as a Court having jurisdiction.  I am satisfied that this Court would not have such jurisdiction even if the order were to be made by consent. 

12. The Court cannot be vested with jurisdiction simply through submission of the parties.  If it is possible, under cross-vesting legislation, for the totality of the matter to be addressed within one Court, then that Court must be the Family Court.  The Family Court has jurisdiction under the Family Law Act 1975 and has the same status within the hierarchy of Courts as a Supreme Court of a State or Territory.  The Federal Circuit Court does not. 

13. For those reasons alone, transfer is, as already described, irresistible, indeed, mandatory.

14. In dealing briefly with the other matters required by the Federal Circuit Court Rules 2001 (and using the same paragraph lettering as the section): 

    a)The proceedings involve questions of general importance, (ie, the adoption of a child).  They were a matter in which the State has an interest, and thus the Family Court, as the superior court, should address the matter, having the exclusive jurisdiction to do so; 

    b)Not relevant; 

    c)Not relevant; 

    d)It is not so much a matter of appropriate procedures as being vested with jurisdiction whereas this Court is not; 

    e)Wishes of the parties - both parties seek transfer.

15. For those reasons, and noting that this judgment is delivered in short form pursuant to section 69ZL of the Family Law Act 1975, proceedings are transferred. 

16. Accordingly, Orders are made as follows.

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

Date: 31 October 2019