On 1 September 2021, the Federal Circuit Court (“FCC”) and the Family Court of Australia (“FCoA”) merged to become the aptly named Federal Circuit and Family Court of Australia (“FCFCOA”).
The FCFCOA has two divisions. All new matters commence in Division 2 (the former FCC) but may be transferred to Division 1 (the former FCoA). The reform was designed to create a “single point of entry into the family law jurisdiction”[1].
Proceedings that were on foot in the FCoA prior to 1 September 2021 (“legacy matters”) remained on foot in Division 1. However, unlike the FCoA which was seized with original jurisdiction to hear family law proceedings, the original jurisdiction of Division 1 is now entirely dependent upon the transfer to it of causes of action validly before Division 2.
Therein lay the issue – does Division 1 of the FCFCOA retain jurisdiction to determine legacy matters, given those matters had not been transferred from Division 2?
After conflicting first instance decisions, the appellate jurisdiction of Division 1 (Alstergren CJ, McClelland DCJ, Austin, Bennett & Cleary JJ) heard a case stated in April 2022 (Nevins & Urwin [2022] FedCFamC1A 57).
Two questions were posed (and reformulated by the Full Court):
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?
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)?
The Full Court had regard to various items in the transitional legislation, and sections of the new Federal Circuit and Family Court of Australia Act 2021 (Cth) and concluded at [32] 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 Full Court further held at [42]-[43] that words to save the original jurisdiction of Division 1 to hear legacy matters could be implied into the relevant item in the transitional legislation.
Although the Court determined it was not necessary to answer Question 2, it said at [56] that it would answer it affirmatively.
Does this finalise the issue?
Yes, in respect of legacy matters. However, there may be some further jurisdictional quandaries that have not yet been considered. For example, can a judge in Division 1 determining parenting proceedings (that had commenced in Division 2 after 1 September 2021, but have been transferred to Division 1) also determine financial proceedings if those financial proceedings were commenced by way of an Amended Initiating Application or Response to Initiating Application when the proceedings were in Division 1? Watch this space!
[1] Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth)
