The question of a Court’s jurisdiction (or authority to hear a case or appeal) is always a complex one. It is also one that can have very significant consequences on the outcome of a case.

When the Federal Circuit and the Family Courts (FCFCOA) merged in 2021, the question of jurisdiction became a very real (and not an academic) issue. In Venter, the husband and others (in the context of a property settlement) sought to have parts of the wife’s claim dismissed. The wife objected to that application. The proceedings were initiated in the Family Court of Australia prior to the commencement of the FCFCOA on 1 September 2021. In this case, the court had to address whether Division 1 of the FCFCOA had the relevant jurisdiction to resolve the dispute.

Division 1 of the FCFCOA is a continuation of the previous Family Court of Australia. This jurisdiction only deals with family law matters which are considered to be more complex, in comparison to Division 2, which hears less complex disputes in matters under family, administrative, bankruptcy, industrial relations, migration and trade practices laws. The case pathway under the FCFCOA is to start in Division 2 and be transferred to Division 1 if deemed more complex.

Carew J asserted that this matter fell within a possible gap in the court’s jurisdiction. In her judgement, she asserted that:

“In every matter which comes before a judicial officer, the first question that must be answered is whether or not they have the jurisdiction to quell the dispute between the parties.”

Until the commencement day of the FCFCOA, the original jurisdiction of the Family Court was conferred by s 31 of Part IV of the Family Law Act 1975 (Cth) (“FLA”). This jurisdiction granted the Court authority to hear cases of the sort that were at issue in this Venter case. This case also acknowledges how the jurisdiction to hear matrimonial causes (such as divorce, property settlements etc.) was previously conferred upon the Family Court pursuant to s 39 FLA

Part IV of the FLA was repealed by Item 36 of Schedule 1 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions Act) 2021 (Cth) (“CATP Act”), and s 39 FLA was amended by Item 37 if the CATP Act. Item 37 removed reference to the Family Court and replaced it with ‘Federal Circuit and Family Court of Australia Division 2’. Importantly, these amendments apply to proceedings commenced before or after 1 September 2021.

Carew J summarised the jurisdiction of Division 1 of the FCFCOA as now largely being dependent upon the transfer of a matter from Division 2 of the FCFCOA. Based on the plain meaning of the relevant provisions, the jurisdiction of the Division 1 court in all matters prior to 1 September 2021 had been removed. On this basis, there are approximately 3000 cases that have fallen within this gap in jurisdiction.

Notably, the case of Urwin & Nevins (No 3) [2022], which was heard in the Full Court on 31 March 2022, sought to address the jurisdictional issue by answering the following questions:

• Does Division 1 of the FCFCOA have original jurisdiction to hear and determine proceedings which were commenced before 1 September 2021 in the Family Court of Australia?
• If not, does the Chief Justice of the FCFCOA have the jurisdiction to transfer proceedings which were commenced in the Family Court of Australia prior to 1 September 2021 to Division 2 of the FCFCOA?

Carew J held that minds may differ as to the correct interpretation of this jurisdictional issue, and therefore adjourned the matter until after the conclusion of the Full Court in Urwin & Nevins. In a judgement handed down on 6 May 2022, the Full Court determined that Division 1 of the FCFCOA did have jurisdiction to hear the matters in question. Therefore, in Venter & Venter (No 3) [2022], Carew J handed down a judgement on 29 April 2022 in which she was satisfied that she had jurisdiction to determine the matter in Division 1 of the FCFCOA.