FLAST NEWS
 ·   ·  709 posts
  •  ·  4329 friends

Parties Dispute Jurisdiction of Court

Nevins & Urwin [2022] FedCFamC1A 57 (6 May 2022)

The parties are in dispute over the original jurisdiction of Division 1 to hear legacy cases.  It is asserted that the Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole.  The Court, in resolving this dispute, assessed 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). 

Facts:

The Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“the Transition Act”) both commenced operation on 1 September 2021, effecting structural reform to the manner in which family law proceedings are instituted and allocated between the courts seized of jurisdiction.  The Family Court of Australia (“the FCoA”) and the Federal Circuit Court of Australia (“the FCC”) were both preserved as federal courts by the reforms, but their respective names were changed to the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) and the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”).  Before 1 September 2021, the jurisdictions of the FCoA and the FCC were largely, though not entirely, concurrent.  The two courts maintained common registries, but litigants could choose the court in which they filed their causes of action. 

The Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) which preceded enactment of the new legislation explained how the reform was designed to provide a “single point of entry into the family law jurisdiction”, requiring all initiating process to be filed in Division 2, but enabling the transfer to Division 1 of all causes of action more appropriately determined by it as the superior court of record.  That objective was achieved by the removal of original jurisdiction from Division 1 and, in lieu thereof, its investiture with original jurisdiction in only those causes of action transferred to it from Division 2.  The literal terminology of the legislative reform package has caused some disquiet about the preservation of jurisdiction enabling Division 1 to hear and determine those causes of action which were still pending in the FCoA as at 1 September 2021 (“the legacy cases”).

On 31 March 2021, a judge of Division 1 stated a case to the Full Court pursuant to s 34 of the FCFCA Act posing these questions:  Firstly, "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?" and secondly, "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)?"

The Court accepted that the questions should be reformulated as such: First, "Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine this proceeding which was pending before 1 September 2021 in the court previously known as the Family Court of Australia?" and second "If the answer to Question 1 is “No”, did the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer this proceeding which was pending 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)?"

Issue:

Whether 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) (together, “the reform legislation”) could be construed as removing the original jurisdiction of Division 1 to hear legacy cases.

Applicable law:

Acts Interpretation Act 1901 (Cth) s 15AA - provides that when interpreting legislative provisions, the interpretation which would best achieve the purpose or object of the statute is to be preferred.
 
Family Law Act 1975 (Cth) Pts VII, VIII s 69H - relied upon in holding that the parties had standing, and therefore the right, to commence and contest the parenting proceedings under the Family Law Act (ss 65C(a) and 69C(2)(a)), which were being validly entertained by the FCoA.
 
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Pt 2, Item 229 - stipulates that the amendments to the Family Law Act apply in relation to proceedings commenced before, on and after 1 September 2021.
 
Federal Circuit and Family Court of Australia Act 2021 (Cth) s149 - pursuant to which, aside from legacy cases which are in question here, the original jurisdiction of Division 1 is now entirely dependent upon the transfer to it of causes of action validly before Division 2. 
 
Judiciary Act 1903 (Cth) s 78B - provides that a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court. 
 
Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) - preceded enactment of the new legislation explained how the reform was designed to provide a “single point of entry into the family law jurisdiction”, requiring all initiating process to be filed in Division 2, but enabling the transfer to Division 1 of all causes of action more appropriately determined by it as the superior court of record.
 
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 - provides that courts are empowered to determine whether they are seized of jurisdiction and to make ancillary procedural orders, dismissal orders and costs orders, even when lacking substantive jurisdiction. 
 
Esber v Commonwealth (1992) 174 CLR 430; [1992] HCA 20 - provides that the former iteration of s 7(2) of the Acts Interpretation Act was employed to similar effect in analogous circumstances.
 
Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434; [2018] HCA 62 - provides that the use of the “stated case” procedure should be used only in exceptional circumstances.
 
Fisher v Minister for Immigration and Citizenship (2007) 162 FCR 299; [2007] FCA 591 - provides that courts may also transfer proceedings to another court when they lack jurisdiction.
 
Mineralogy Pty Ltd v Western Australia (2021) 393 ALR 551; [2021] HCA 30 - provides that the Full Court giving judgment on a special case has had occasion to remind parties that they have no entitlement to expect an answer to a question of law they have agreed in stating in a special case unless the Full Court can be satisfied by reference to the facts and documents they have agreed in the special case that “there exists a state of facts which makes it necessary to decide [the] question in order to do justice in the given case and to determine the rights of the parties”.
 
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 - provides that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. 
 
Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336; [1975] HCA 28 - provides that in instances of ambiguity, the construction avoiding irrational and unjust consequences should be adopted.
 
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82 - provides that the conferral of original jurisdiction upon the FCoA flowed from the combined effect of those provisions.
 
Secretary, Department of Health & Community Services v JWB & SMB (Marion’s Case) (1992) 175 CLR 218; [1992] HCA 15 - provides that although the parties do not have anything akin to proprietary rights over their children, their status as parents invests them with duties, powers and responsibilities pertaining to the children.
 
Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19 - provides that statutes should not be interpreted as withdrawing or limiting the conferral of jurisdiction upon courts unless the implication to do so is clear and unmistakeable.
 
Sino Iron Pty Ltd v Mineralogy Pty Ltd (2019) 55 WAR 89; [2019] WASCA 80 - provides that courts may also transfer proceedings to another court when they lack jurisdiction.
 
Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 - provides that if it were considered necessary, it is permissible to imply words into legislation which go beyond correcting obvious printing or drafting errors if it is apparent the text of the legislation does not conform to the actual intention of the Parliament. 

Analysis:

Despite the literal interpretation of the Transition Act leading to such absurdity, it is the premise for the case stated to this Court. The Attorney urged a quite different interpretation, advocating for an interpretation of the reform legislation which accommodates Division 1’s retention of original jurisdiction to entertain and decide legacy cases.  The parties and the Independent Children’s Lawyer (“the ICL”) renounced their former doubts and vigorously supported the conclusion about the retention of jurisdiction by Division 1.  In this instance, the Parliament’s intention that Division 1 would retain original jurisdiction to finalise legacy cases is readily inferred from the context of the reform legislation when viewed as a whole, in the manner urged by the High Court.  The meaning of Sch 1, Pt 2, Item 229 of the Transition Act is susceptible to ambiguity. The terms of ss 25(1)(c), 43 and 74 of the FCFCA Act appear sufficiently wide to provide that, from the moment of the legislation’s inception, Division 1 is conferred with ongoing original jurisdiction in legacy cases.

The Transition Act (Sch 5, Pt 5, Item 37) and the FCFCA Act (s 30(2)) provide that the new case management provisions of the FCFCA Act governing the conduct of proceedings before Division 1 will also apply in relation to legacy cases.  The Transition Act (Sch 5, Pt 2, Item 7) preserves the validity of anything done by the FCoA in proceedings before 1 September 2021.  The Transition Act provides for the Minister to make rules, by legislative instrument, which prescribe transitional arrangements concerning the FCFCA Act and the amendments to the Family Law Act (Sch 5, Pt 5, Item 38).  The application of s 7(2) of the Acts Interpretation Act, which relevantly provides that, subject to clearly expressed contrary intention (s 2(2)), the repeal or amendment of any statute does not affect an accrued right or privilege or any legal proceedings in respect of such right or privilege.

Conclusion:

The Intervener has leave to rely upon their written submissions, which exceeded the page limit stipulated by rule 13.23(2)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).  The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction to hear and determine this proceeding.

Comments (0)
Login or Join to comment.

FLAST

Close