OHB -v- MTM [2007] WASCA 6 (9 January 2007)

Courts and Judges - Jurisdiction of Court of Appeal to entertain appeal from parenting order made in Family Court of Western Australia - Child resident in Queensland

Cross­vesting - Whether jurisdiction of Courts (Cross­vesting) Act 1987 (Cth) confers jurisdiction on Court of Appeal - Whether Court of Appeal should transfer proceedings to the Full Court of the Family Court of Australia

Commonwealth Powers (Family Law - Children) Act 1990 (Qld), s 3(1)(b)

Family Court Act 1997(WA), s 36(3), s 58(1), s 210, s 211(3)

Family Law Act 1975 (Cth), Pt 7, s 4(1), s 61B, s 69ZJ, s 93A(1)(a), s 94(1)

Jurisdiction of Courts (Cross­vesting) Act 1987 (Cth), s 3(1), s 3(2), s 4(1), s 7(5), s 7(6), s 7(7), s 7(8), s 11(3)

Jurisdiction of Courts (Cross­vesting) Act 1987 (WA), s 7(5), s 7(6), s 7(7), s 7(8)

Supreme Court Act 1935 (WA), s 7(4), s 57, s 58, s 59, s 60

Appeal transferred to the Full Court of the Family Court of Australia

MTM and OHB [2006] FCWA 55

B & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; [2003] FCA 451

Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365; [2004] HCA 20

1 JUDGMENT OF THE COURT: The appellant appeals against a parenting order made by Martin J in the Family Court of Western Australia on 16 June 2006. The child representative has raised a question about the jurisdiction of this Court to entertain this appeal. The submission is that the Full Court of the Family Court of Australia has jurisdiction and this Court does not.

2 The appellant and the child reside in Queensland and have done so since 1998. The respondent lives in Western Australia and has done so since 1996. The child is the ex-nuptial child of the appellant and the respondent. The child was born in Western Australia on 26 August 1996.

The proceedings in the Family Court of Western Australia

3 The proceedings in the Family Court of Western Australia were brought by the respondent who had not seen the child since she was a baby. The respondent wanted the child to be informed of his existence and to have contact with him. The details of the application and the orders made are described in MTM and OHB [2006] FCWA 55. It is not necessary to repeat them. The only observation which should be made about the reasons for decision of Martin J is that they reveal her Honour considered she was exercising State jurisdiction when this was not so, as will appear below.

4 To understand the jurisdictional issue concerning this Court, it is necessary to first examine the jurisdictional foundation for the order which is under appeal. Section 36(3) of the Family Court Act 1997 (WA) ("the State Family Court Act") provides:

"Subject to this Act, the Court has non-federal jurisdiction under this Act to make -

(a) a parenting order ... in relation to a child ...

(c) the child in respect of whom the order is sought is then present in the State; and

(d) the applicant or the respondent in the proceedings in which the order is sought is resident in the State."

5 The effect of s 36(3) is that the Family Court of Western Australia did not have jurisdiction under that provision to make an order of the kind which is under appeal, because the conditions in s 36(3)(c) were not satisfied. However, the Family Court of Western Australia had federal jurisdiction to make the order in question, for the following reasons. Under s 51(xxii) of the Commonwealth Constitution the Commonwealth has power to make laws with respect to "divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants". Under the Constitution the Commonwealth does not have power to make laws in relation to ex-nuptial children. However, the Queensland Parliament has referred its power to legislate with respect to the custody and guardianship of, and access to, ex-nuptial children in that State to the Commonwealth. See s 3(1)(b) of the Commonwealth Powers (Family Law - Children) Act 1990 (Qld). As a result, the Commonwealth has power to legislate with respect to the custody and guardianship of, and access to, ex-nuptial children in Queensland, and it has done so in the Family Law Act 1975 (Cth) ("the Commonwealth Family Law Act"). Part 7 of that Act contains provisions which relate to children generally. Those provisions are not restricted only to children of a marriage.

6 The Commonwealth Family Law Act invests the Family Court of Western Australia with federal jurisdiction by virtue of s 69H(2), which reads:

"Each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Part."

Federal jurisdiction is also invested in the Family Court of Western Australia, in the circumstances of this case, by s 69ZJ, which states:

"In addition to the jurisdiction that, apart from this section, is invested in or conferred on a court under this Part, the court is invested with jurisdiction or jurisdiction is conferred on the court, as the case requires, in matters between residents of different States, being matters with respect to: ...

(b) parental responsibility in relation to children."

Parental responsibility in relation to a child is defined in s 61B to mean all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. Thus, the order under appeal was an order made by the Family Court of Western Australia exercising federal jurisdiction.

The jurisdiction of the Supreme Court and the Court of Appeal

7 By s 7(4) of the Supreme Court Act 1935 (WA), the General Division of the Supreme Court exercises all the jurisdiction of the Court other than the jurisdiction referred to in s 58(1) of that Act. Relevantly, s 58(1)(m) confers jurisdiction on the Court of Appeal in relation to all matters and proceedings which by any Act of this State, or Act of the Commonwealth of Australia, are required to be heard and determined by the Court of Appeal. In the circumstances, it is necessary to consider both State legislation and Commonwealth legislation.

8 Section 211(3) of the State Family Court Act confers jurisdiction on this Court to hear appeals from a decree of the Family Court of Western Australia in respect of non-federal jurisdictions. In relation to the federal jurisdiction of the Family Court of Western Australia, s 210 of the State Family Court Act reads:

"In respect of the federal jurisdiction of the Family Court of Western Australia ... the appeal provisions of the Family Law Act apply."

Section 94(1) of the Commonwealth Family Law Act states, relevantly:

" ... an appeal lies to a Full Court of the Family Court from -

(i) a Family Court of a State ...

(ii) ...

exercising original ... jurisdiction under this Act ... "

Also see s 93A(1)(a) of the Commonwealth Family Law Act.

9 The order made by Martin J was a decree. See s 4(1) of the Commonwealth Family Law Act. The decree was made by the Family Court of Western Australia exercising original jurisdiction which had been conferred under the Commonwealth Family Law Act. As a result, this Court does not have jurisdiction in relation to this appeal by virtue of State legislation. On the contrary, s 210 of the State Family Court Act provides that the appeal provisions of the Commonwealth Family Law Act apply, and s 94 of the Commonwealth Family Law Act confers jurisdiction on the Full Court of the Family Court of Australia to hear appeals from decrees of the Family Court of a State exercising jurisdiction conferred on it under the Commonwealth Family Law Act.

10 It is now necessary to consider s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ("the Commonwealth Cross-vesting Act"), which provides:

(a) the ... Family Court has jurisdiction with respect to a civil matter ... ; and

(b) the Supreme Court of a State ... would not, apart from this section, have jurisdiction with respect to that matter;

(c) in the case of the Supreme Court of a State ... - that court is invested with federal jurisdiction with respect to that matter; ... "

11 The reference in s 4(1)(a) to the "Family Court" is to the Family Court of Australia, and not the Family Court of Western Australia. See the definitions of "Family Court" and "State Family Court" in s 3(1).

12 In the present case, the condition in s 4(1)(a) is satisfied because the Family Court of Australia has jurisdiction to make orders in relation to this child, and the Full Court of the Family Court of Australia has jurisdiction to entertain an appeal from the decision of a single Judge of that Court or a single Judge of the Family Court of Western Australia in relation to this child. The condition in s 4(1)(b) is also satisfied, in the present case, because the Supreme Court of this State "would not, apart from this section, have jurisdiction" to entertain the appeal, for the reasons mentioned above. This is a civil matter and therefore s 4(1) invests jurisdiction in the Supreme Court.

13 Having decided that the Supreme Court has jurisdiction to entertain the appeal, the next question is whether the Court of Appeal has jurisdiction, and the answer is that it does, as will be seen from the statutory provisions referred to below. Three of the definitions in s 3(1) of the Commonwealth Cross-vesting Act are relevant. "Family Court" is defined to mean "the Family Court of Australia". "Full Court" is defined to mean "in relation to a Supreme Court of a State, includes any court of the State to which appeals lie from a single Judge of that Supreme Court". "State Family Court" is defined, in relation to a State, to mean "a court of that State to which section 41 of the Family Law Act 1975 applies by virtue of a Proclamation made under subsection 41(2) of that Act". The Court of Appeal is a court of this State to which appeals lie from a single Judge of this Supreme Court. See s 57 to s 60 of the Supreme Court Act.

14 Section 3(2) of the Commonwealth Cross-vesting Act provides:

"A reference in this Act, other than a reference in subsection 4(1), 5(3) or 7(4), to the Supreme Court of a State includes, if there is a State Family Court of that State, a reference to that State Family Court."

15 Sections 7(5), 7(6), 7(7) and 7(8) of the Commonwealth Cross-vesting Act provide:

"(5) Subject to subsections (7) and (8), where it appears that a matter for determination in a proceeding by way of an appeal from a decision of a single judge of the Supreme Court of a State or Territory (not being a proceeding to which subsection (6) applies) is a matter arising under an Act specified in the Schedule, that proceeding shall be instituted only in, and shall be determined only by -

(a) the Full Court of the Federal Court or of the Family Court, as the case requires; or

(b) with special leave of the High Court, the High Court.

(6) A proceeding by way of an appeal from a decision of a judge of a State Family Court, being a proceeding involving the determination of -

(a) a matter arising under an Act specified in the Schedule; and

(b) another matter;

may be dealt with as if no matter for determination in the proceeding were a matter arising under an Act specified in the Schedule.

(a) the Full Court of the Supreme Court of a State or Territory commences to hear a proceeding by way of an appeal; and

(b) before the Court determines the proceeding, it appears to the Court that the proceeding is a proceeding to which subsection (5) applies;

the Court shall, unless the interests of justice require that the Court proceed to determine the proceeding, transfer the proceeding to the Full Court of the Federal Court or of the Family Court, as the case requires.

(8) Where the Full Court of the Supreme Court of a State or Territory -

(a) determines a proceeding to which subsection (5) applies as mentioned in subsection (7); or

(b) through inadvertence, determines a proceeding to which subsection (5) applies;

nothing in this section invalidates the decision of that court."

The Acts specified in the Schedule include the Commonwealth Family Law Act.

16 In this case, s 7(7) of the Commonwealth Cross-vesting Act applies. It is a case where the "Full Court of the Supreme Court" (meaning, in this case, the Court of Appeal) has commenced to hear the proceeding by way of appeal. The Court of Appeal has not determined the proceeding, and it appears to us that the proceeding is a proceeding to which s 7(5) applies. The interests of justice do not require the Court of Appeal to determine the proceeding. The result is that s 7(7) requires this Court to transfer the proceeding to the Full Court of the Family Court of Australia.

17 We note, for completeness, that s 7(5), s 7(6), s 7(7) and s 7(8) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) contain provisions which are identical in substance to those contained in s 7(5), s 7(6), s 7(7) and s 7(8) of the Commonwealth Cross-vesting Act.

18 Finally, for the information of the transferee court, it should be noted that a stay of proceedings was earlier ordered by Wheeler JA. When the appeal is transferred to the Full Court of the Family Court of Australia, that Court will be obliged to deal with the proceeding as if, subject to any order of that Court, the steps that have been taken for the purposes of the proceeding in this Court, or similar steps, had been taken in the Full Court of the Family Court. See s 11(3) of the Commonwealth Cross-vesting Act.

(a) the proceedings be and are hereby transferred to the Full Court of the Family Court of Australia;

(b) the date for the hearing of the appeal in this Court be vacated;

• The proceedings in the Family Court of Western Australia
• The jurisdiction of the Supreme Court and the Court of Appeal
• The disposition of the appeal