Parties Dispute Court's Original Jurisdiction

Venter & Venter (No 2) [2022] FedCFamC1F 230 (7 April 2022)

A case has been stated to the Full Court of this Court to determine the jurisdictional question. 

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.  The Court, in making its orders, relied upon the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth) "CATP".

Facts:

Substantive proceedings for property settlement were commenced by Ms Venter “the wife” against Mr Venter “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) 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.  

The Application in a Proceeding filed on 6 December 2021 by Mr B Venter, Mr C Venter, the fifth and seventh respondents seeks 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. 

The application by the eighth respondent as contained in its Response to the Application in a Proceeding filed 16 February 2022 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.  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.

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)”.  

The statement commences with "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."  

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”.  

Issue:

Whether or not the Court has original jurisdiction to hear and determine proceedings which were commenced in it before 1 September 2021.

Applicable law:

Analysis:

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.  

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). 

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 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 s.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”).  

If the 31 March 2022 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.  Given the apparent lacuna in the transitional provisions, the stating of a case to the Full Court was an entirely conventional and appropriate course.  

Conclusion:

The Court ordered 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 to 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.  

Any outstanding objections to subpoena should be listed for hearing before Registrar Gray on 26 April 2022 at 11:00am.  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.

#Jurisdiction