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[2009] ACTSC 84
procedural. The action was ordered to be transferred to the Family Court of Australia (para 14).
The ACT Supreme Court ordered transfer of a property dispute between former de facto partners, commenced in the ACT Supreme Court before Commonwealth amendments, to the Family Court. The Court applied the cross-vesting Act: once satisfied that transfer is in the interests of justice it must transfer. Because the Family Court is a specialist forum with ancillary services and experience, and both parties were unrepresented, transfer was ordered.
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1,928 words · generated 27/06/2026
This was an application recorded and decided by Master Harper in the Supreme Court of the Australian Capital Territory on 17 July 2009 in proceedings SC 790 of 2007, Brennan v McGuire. The plaintiff commenced proceedings in the ACT Supreme Court on 12 November 2007, seeking an adjustment of property interests under s 15 of the Domestic Relationships Act 1994 (ACT) following the breakdown of a de facto relationship said to have run from July 1981 to 6 December 2006 (see para 2). The defendant filed a defence and, effectively, a counterclaim seeking a property adjustment in her favour (para 3).
8 cited instruments linked from this judgment.
The matter proceeded through interlocutory steps including a listing hearing on 25 March 2009 which set a 4–5 day hearing for 9 November 2009 and directed affidavit timetables (para 5). A mediation was attempted and failed (para 5). By mid 2009 both litigants were in person (paras 4, 7). When the matter came before the Master for directions (5 and 12 June 2009), the Master indicated he was contemplating transferring the case to the Family Court of Australia; neither party opposed transfer (para 7).
By this time Commonwealth law had changed. The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (commencing 1 March 2009, for de facto relationships breaking down on or after that date) extended the Family Court’s jurisdiction to cover de facto property disputes prospectively (paras 8–9). The amendments did not operate retrospectively, so the Supreme Court retained jurisdiction over proceedings commenced before the change (para 8). Nevertheless, the cross-vesting regime (Jurisdiction of Courts (Cross-Vesting) Act 1993) provides a mechanism by which ACT matters may be heard in the Family Court (paras 11–12).
Applying s 4 and s 5(1) of the Cross-Vesting Act, and having regard to the particular features of this case, the Master concluded it was in the interests of justice that the action be determined by the Family Court and, because s 5(1) requires transfer once that condition is satisfied, ordered transfer to the Family Court (paras 11–14).
There are three legal building blocks to the decision.
The statutory duty under the cross-vesting Act. Section 5(1) provides that if a proceeding is pending in the Supreme Court and it appears to the Court that it is in the interests of justice for the proceeding to be determined by the Family Court, the Supreme Court must transfer the proceeding. The Master emphasised that, once satisfied, the Court has no discretion to decline transfer: “no question of a discretion arises” (para 12). That statutory provision therefore establishes the form of the legal inquiry: does the Court conclude it is in the interests of justice to transfer?
The matter is an ACT matter capable of being exercised by the Family Court via cross-vesting. The Master observed that the definition of “ACT matter” in the Act includes matters where the Supreme Court has jurisdiction otherwise than by reason of Commonwealth law; the present action falls plainly within that definition (para 11). Section 4 gives the Family Court original jurisdiction in respect of ACT matters.
The question whether the interests of justice required transfer turned on the facts of this case, and the Master identified the principal factual factor as the Family Court’s capacity to provide ancillary professional services and its specialisation in relationship-breakdown litigation. The Master explained that those services were not available in the ACT Supreme Court, and that this factor was particularly apposite because both parties were unrepresented. He noted that contested hearings before this Court over several days between two unrepresented litigants would be “an extraordinarily unusual event”, whereas unrepresented litigants are a reasonably common feature of litigation in the Family Court (para 13). The Court therefore concluded transfer was in the interests of justice and, applying s 5(1), ordered transfer (para 14).
Other textual material in the reasons, discussion of the policy behind the Family Law Amendment Act 2008, the Attorney-General’s second reading speech, and the Family Court’s decades of experience and ancillary services, serves to explain why the Family Court is the specialist forum, but the decisive legal mechanism is the mandatory transfer provision in the cross-vesting Act applied to the facts of this case (paras 8–10, 13).
Before the Family Law Amendment Act 2008 took effect (1 March 2009 in substance for relationships breaking down on or after that date), matters of de facto property in the ACT could be brought in the ACT Supreme Court under the Domestic Relationships Act (see para 2). The 2008 amending legislation extended the Family Court’s jurisdiction over de facto property matters in participating jurisdictions and via territorial powers for the Australian Capital Territory; this was intended to produce a consistent Commonwealth-level approach and to place de facto financial disputes in the specialist federal family law courts (paras 8–10).
However, the amendments were not retrospective. Importantly for Brennan v McGuire, proceedings already commenced in state or territory courts before the Family Law amendments commenced were not automatically displaced by the new Commonwealth jurisdiction (para 8). Cross-vesting then provides the operational mechanism by which an ACT Supreme Court may transfer an ACT matter to the Family Court (s 4 and s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1993). Thus, after the amendments, new de facto property claims (post-1 March 2009 breakdowns) would normally be commenced in Commonwealth courts; older claims remain in state/territory courts but can be transferred if the interests of justice so require (paras 8, 11–12).
The decision therefore sits at the intersection of non-retrospective expansion of Commonwealth jurisdiction and the cross-vesting regime which allows reallocation of existing matters to the Family Court when justice requires.
Para 12 (legal instruction): “Section 5(1) ... if a proceeding is pending in this Court, and it appears ... in the interests of justice ... this Court must transfer the proceeding ... no question of a discretion arises.”
Para 11 (jurisdictional link): “Section 4 ... provides that the Family Court has and may exercise original and appellate jurisdiction in respect of ACT matters.”
Para 13 (reason for transfer): “The major factor to my mind is that the Family Court is able to provide ancillary services by appropriately qualified professionals ... such facilities being unavailable in this Court ... particularly apposite ... where each of the parties is unrepresented.”
Para 8 (temporal operation of amendments): “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.”
Brennan v McGuire illustrates when s 5(1) of the cross-vesting Act will be engaged and satisfied:
The judgment is careful to note that not every pending Domestic Relationships Act action automatically merits transfer; rather, the “interests of justice” enquiry is fact-specific (para 13). Thus the precedent is triggered where the combination of institutional competence and the litigants’ circumstances makes transfer the appropriate outcome.
The reasons in Brennan v McGuire are self-contained to this Court’s application of s 5(1) to the particular facts. The judgment itself does not report subsequent treatments by other courts. The decision does, however, articulate a straightforward application of the statutory test in s 5(1) that later courts or registrars performing transfer assessments can follow: identify whether the case is an ACT matter, assess whether the Family Court is the better forum having regard to its specialisation and available services, and if so apply the mandatory transfer obligation.
Practitioners and courts wanting to understand later judicial treatment will need to search later authorities for instances where other Supreme Courts or Masters applied s 5(1) in similar fact patterns. Those later treatments are not recorded within this judgment and therefore cannot be asserted or summarised here without further research.
Brennan v McGuire resolves transfer in this case but leaves a number of questions that practitioners may need to consider on a case-by-case basis:
The scope of “interests of justice” is fact-specific and not exhaustively defined in the judgment. The Master highlighted ancillary services and unrepresented parties as decisive in this case (para 13), and expressly acknowledged that not every pending Domestic Relationships Act action should be transferred (para 13). That leaves open how different or competing considerations (for example, convenience of witnesses, previous interlocutory activity in the originating court, or specialist local knowledge of assets) will be balanced in future cases.
The judgment does not articulate a comprehensive checklist of factors for the s 5(1) inquiry. It identifies and applies certain factors; courts and practitioners must determine what weight to give those factors in different factual matrices.
Practical consequences for case management and costs. The judgment orders transfer but does not discuss consequences for costs ordering or the management of evidentiary processes already advanced in the Supreme Court (for example, affidavit timetables, subpoenas for documents). Those practical transition issues will arise and require resolution in transfer orders or by the receiving court.
Interaction with parties’ forum choice. Although neither party opposed transfer here (para 7), the judgment does not explore in detail how a firm objection by a party should be treated when the Court otherwise believes transfer is in the interests of justice. Since s 5(1) is framed by the Court’s view of the interests of justice, a party’s objection is a relevant factor but not determinative.
The effect of the Family Law Amendment Act’s prospective operation on borderline cases where relationship breakdown dates or commencement dates of proceedings are close to the 1 March 2009 commencement: the judgment describes the non-retrospective operation (para 8) but issues of precise application timing may arise in other matters.
For these reasons, Brennan v McGuire is a useful, clear application of the cross-vesting mandatory-transfer provision. It establishes tangible, pragmatic considerations that favour sending a de facto property dispute to the Family Court, but it leaves open the broader articulation of the "interests of justice" test for future contexts.
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.
Brennan
McGuire [2009] ACTSC 84
The action was ordered to be transferred to the Family Court of Australia (para 14).