A question as to the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1)

On 31 March 2022, the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) released a statement addressing concerns raised by the legal profession regarding the jurisdiction of Division 1 to hear and determine matters that were pending in the Family Court of Australia immediately prior to 1 September 2021. That date is relevant as it is the date on which the Federal Circuit and Family Court of Australia Act 2021 and the court known as Division 1 commenced.

The questions raised

Prior to 1 September 2021, the then Family Court of Australia was conferred with inherent jurisdiction to deal with matters under the Family Law Act 1975 in respect of matrimonial causes and de facto financial cases (amongst others) under section 31 of the Family Law Act. However, the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) repealed section 31 of the Family Law Act in anticipation of the creation of the courts to be known as Division 1 and Division 2 of the Federal Circuit and Family Court of Australia.

When the Federal Circuit and Family Court of Australia Act 2021 commenced, proceedings that were on foot in the Family Court of Australia were transferred to the Federal Circuit and Family Court of Australia (Division 1) and proceedings that were on foot in the Federal Circuit Court of Australia were transferred to the Federal Circuit and Family Court of Australia (Division 2). This process has now caused some concern as to whether the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction to hear and determine the matters that were transferred to that court on 1 September 2021 without first having been transferred to the Federal Circuit and Family Court of Australia (Division 2).

Division 1 was conferred with jurisdiction in relation to the above matters by virtue of section 25 of the Federal Circuit and Family Court of Australia Act 2021, which provides that Division 1 has original jurisdiction (subject to some restrictions and conditions):

• if a matter, being the subject of a family law or child support proceeding, is transferred to Division 1 from Division 2 under section 51 or by another judicial officer under section 149; or
• as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

The questions that have subsequently been raised are:

• Does the Federal Circuit and Family Court of Australia (Division 1) have original jurisdiction to hear and determine proceedings that were commenced before 1 September 2021 in the court previously known as the Family Court of Australia?
• If the answer to the primary question is "no", does the Chief Justice of the Federal Circuit and Family Court of Australia (Division 1) have the jurisdiction to transfer proceedings that 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)?
• Whether, despite s 25 of the Federal Circuit and Family Court of Australia Act and the absence of any provision in the Transitional Provisions Act specifically stating that Division 1 retains original jurisdiction in relation to proceedings pending in it as at 1 September 2021, r 7 of the Transitional Provisions Rules ensures that Division 1 now has original jurisdiction to hear and determine such proceedings.

It is important to determine these questions to ensure proceedings before the court can be finally resolved.

In the matter of Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

In the matter of Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208, Justice Aldridge of the Federal Circuit and Family Court of Australia (Division 1) considered the above questions. This appears to be the first published judgment regarding the controversy, but it is likely there will be other decisions to come.

As to question 1, Justice Aldridge noted that on a literal reading of Schedule 1, Item 229 of the Consequential Amendments and Transitional Provisions Act which provides "The amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply to a proceeding commenced before, on or after the commencement day", Division 1 was deprived of jurisdiction in respect of proceedings commenced in the Family Court before 1 September 2021 (noting the repeal of section 31 of the Family Law Act took place on 1 September 2021).¹ (emphasis added)

However, His Honour went on to consider whether this was the consequence that was intended by the legislation. His Honour found that it was not.

At paragraph 19 of the Judgement, His Honour noted:

"It is plain that the legislature did not intend to deprive the court of jurisdiction in matters already filed in it that had not been the subject of transfer from Division 2. This is because the Family Court of Australia continued in operation, albeit under a new name, with the clear intention that it would continue to operate as a superior court of record. There is no provision in any of the legislation which provides for matters filed in the Family Court of Australia to be transferred to any other court. They remain in the Family Court of Australia with the obvious legislative intent that they be heard and determined by it in the exercise of the jurisdiction provided by s 31 of the Family Law Act".²

His Honour noted that he did not consider there to be "any ambiguity about this"³ and that "any interpretation of the amending provisions that would deprive Division 1 of jurisdiction to determine matters which had been filed in it and remained to be considered, would be irrational".⁴

His Honour then concluded that "to the extent necessary, words should be implied into section 25 of the Federal Circuit and Family Court of Australia Act so as to make it clear that Division 1 acquired the jurisdiction in respect of matters filed in it prior to 1 September 2021, as was previously conferred by s 31 of the Family Law Act".⁵

As to question 2, His Honour found that the Chief Justice's jurisdiction and power to transfer matters from Division 1 to Division 2 pursuant to section 52 of the Federal Circuit and Family Court of Australia Act is an independent power and stands apart from the exercise of power under the original jurisdiction of the court. His Honour found the transfer to be valid.

His Honour otherwise found that no question could arise as to the power to retransfer a matter and the subsequent conferring of jurisdiction under section 25 of the Federal Circuit and Family Court of Australia Act.

The effect of his Honour's decision was that the Federal Circuit and Family Court of Australia (Division 1) was found to have jurisdiction to continue to hear and determine the proceedings.

Conclusion

As this is a first instance judgment, there may yet be an appeals decision that provides further guidance. Otherwise, where the legislation cannot be amended until after the upcoming election, the situation remains a live one which family lawyers will need to bear in mind when advising clients in respect to affected matters.

¹Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 paragraph 18.

²Ibid paragraph 19.

³Ibid paragraph 20.

⁴Ibid paragraph 21.

⁵Ibid paragraph 28.

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