Brennan v McGuire [2009] ACTSC 84 (17 July 2009)

Last Updated: 1 September 2009

ROBERT GEORGE BRENNAN v GLENYS FREYA McGUIRE
[2009] ACTSC 84 (17 July 2009)

COURTS – cross-vesting legislation – transfer of proceedings – property dispute following breakdown of de facto relationship – whether in interests of justice that proceeding be determined by Family Court of Australia – relevant considerations – transfer ordered

Domestic Relationships Act 1994, s 15
Family Law Act 1975 (Commonwealth)
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Commonwealth)
Jurisdiction of Courts (Cross-Vesting) Act 1993, s 4, s 5(1)

No. SC 790 OF 2007

Judge: Master Harper
Supreme Court of the ACT
Date: 17 July 2009

IN THE SUPREME COURT OF THE )
) No. SC 790 of 2007
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT GEORGE BRENNAN

Plaintiff

AND: GLENYS FREYA McGUIRE

Defendant

ORDER

Judge: Master Harper
Date: 17 July 2009
Place: Canberra

THE COURT ORDERS:

That this action be transferred to the Family Court of Australia.

1. I have decided to transfer this action to the Family Court of Australia. These are my reasons for doing so.
2. The action was commenced on 12 November 2007 by originating claim. The plaintiff seeks an order pursuant to section 15 of the Domestic Relationships Act 1994 adjusting the interests of the property of the plaintiff and the defendant in his favour. In the statement of claim accompanying the originating claim, the plaintiff asserts that he and the defendant are residents of the Australian Capital Territory and that they lived in a domestic relationship as defined in that Act from July 1981 until 6 December 2006. The defendant has a son and a daughter from a previous relationship, now aged 36 and 35. There is a daughter of the relationship between the plaintiff and the defendant, now aged 25. The plaintiff sets out in the statement of claim assets brought into the relationship by each of the parties, and particulars of financial contributions made by him.
3. On 17 January 2008, the defendant filed a defence which included, although not so described, a counterclaim seeking an adjustment of the property interests of the parties under the same Act in her favour.
4. Initially both the plaintiff and the defendant were represented by solicitors. In June 2008 the defendant filed a notice that she would be acting in person. The plaintiff changed solicitors in December 2008, and filed a notice on 9 June 2009 that he was then acting in person.
5. Although there does not appear to have been an order made at any time that the evidence in chief on the hearing of the action be in affidavit form, the parties seem to have assumed that this would be the mode of trial. On 25 March 2009 the Deputy Registrar conducted a listing hearing, and ordered that the action be set down for hearing on 9 November 2009, noting an estimate of 4 to 5 days. She directed that the plaintiff was to file any affidavits on which he intended to rely by 20 April, and that the defendant was to file any affidavit in response by 25 September 2009. She noted that a mediation had taken place the previous day but had been unsuccessful in resolving the matter.
6. The matter has been before the Court on a few occasions since then, for the making of directions in relation to documents produced on notice for non-party production and on subpoena.
7. The matter came before me on 5 June and again on 12 June, in relation to inspection of documents. By 12 June, as I have said, both parties were unrepresented. I informed the parties that I was contemplating a transfer of the proceedings to the Family Court. Neither party expressed any opposition to such a course.
8. Since the proceedings were commenced, the Family Law Act 1975 (Commonwealth) has been amended to confer on the Family Court exclusive jurisdiction to hear and determine applications for adjustment of interests in property between persons who are or who have been in a de facto relationship. The amendments do not operate retrospectively so as to deprive State and Territory Supreme Courts of jurisdiction to hear and determine proceedings which had been commenced prior to the amendments coming into effect. However, in the future actions of the present kind between residents of the Australian Capital Territory will be commenced in, and heard and determined by, Commonwealth courts with jurisdiction under the Family Law Act and not by this Court.
9. The amendments to the Family Law Act were made by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. That Act received Royal Assent on 21 November 2008, and its substantive provisions commenced on 1 March 2009, applying to de facto relationships breaking down on and after that date. In his second reading speech, the Commonwealth Attorney-General, the Honourable Robert McClelland, made reference to the fact that the bill gave effect to an agreement between the Commonwealth, States and Territories made in 2002 and followed the enactment of legislation by a majority of states referring necessary powers to the Commonwealth. The Attorney-General noted that the legislation relied on the territories power for its application in the Australian Capital Territory and other territories. He described the reform as long overdue and much needed, and said that it would give separating de facto couples the same rights as divorcing couples under a comprehensive Commonwealth family law system, at the same time providing a consistent approach to de facto property disputes across state and territory borders. He noted that the federal family law courts were the specialist courts in Australia with vast experience in relationship breakdown matters, and that they had procedures and dispute resolution mechanisms which were more suited to handling family litigation arising on relationship breakdown.
10. The amending Act reflects the belief of the attorneys-general of the Commonwealth and of the participating States and Territories that the Commonwealth courts exercising jurisdiction under the Family Law Act are the preferable courts to determine property disputes between parties to a de facto relationship. The Family Court of Australia is a specialist court dealing exclusively with disputes about custody of and access to children, and disputes about division of property between parties to a marriage. The Family Court has 34 years of experience in determining such disputes. The Family Court offers ancillary services by counsellors and professionals in fields relevant to such disputes, services which this Court is unable to offer. The intention of the amending legislation is plainly that, following a transitional period, all such disputes will be determined by Commonwealth courts, whether or not the parties to the relationship are or were married.
11. The Family Court would not have jurisdiction to determine the present action under the Family Law Act. However, section 4 of the Jurisdiction of Courts (Cross-Vesting) Act 1993 provides that the Family Court has and may exercise original and appellate jurisdiction in respect of ACT matters. An ACT matter is defined in the dictionary to the Act so as to include a matter in which the Supreme Court has jurisdiction otherwise than by reason of the law of the Commonwealth or of a State or another Territory. The present action is plainly an ACT matter as defined.
12. Section 5(1) of the Act relevantly provides that if a proceeding is pending in this Court, and it appears to this Court that it is in the interests of justice that the proceeding be determined by the Family Court, this Court must transfer the proceeding to the Family Court. Once the Court is satisfied that the subsection applies to the proceeding, the Court must order the transfer: no question of a discretion arises.
13. Whilst it is not necessarily the case that every pending action under the Domestic Relationships Act should, in the interests of justice, be determined by the Family Court, I am satisfied that there are a number of factors in the present action which favour the conclusion that it is in the interests of justice that this action be so determined. The major factor to my mind is that the Family Court is able to provide ancillary services by appropriately qualified professionals to assist the parties in achieving a resolution of their dispute, such facilities being unavailable in this Court. It seems to me that this factor is particularly apposite in circumstances where each of the parties is unrepresented, so that this Court does not have, and would not have at the hearing of the action, the benefit of counsel to present the parties’ cases, and to present those cases consistently with the overriding duty of counsel to the Court. The hearing of an action over a period of some days between two unrepresented parties is, in this Court, an extraordinarily unusual event. My understanding is that proceedings involving unrepresented litigants are by contrast a reasonably common feature of litigation in the Family Court.
14. For these reasons I am satisfied that it is in the interests of justice that the present action be determined by the Family Court of Australia. Having come to that conclusion, I am obliged to order its transfer to that court, which I do.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 17 July 2009

Plaintiff: In person
Defendant: In person
Date of decision: 17 July 2009