T is for transfer of proceedings – A-Z of Family Law

Upon the Federal Circuit and Family Court of Australia coming into being in 2021, two divisions were created (Division 1 and Division 2) with a clear mandate each from a family law perspective. Division 1 replaced the Family Court of Australia, whereas Division 2 replaced the Federal Circuit Court of Australia (section 8 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (‘the Act’).

Division 2 is a ‘first instance’ court that handles the vast majority of family law matters, including applications for consent orders, divorce applications, and contested parenting and property applications.

Conversely, Division 1 has two roles, being a ‘first instance’ court for complex matters, as well as being an appeals court.

All proceedings (aside from appeals) start in Division 2, but may be transferred to Division 1 in certain circumstances. Alternatively, a proceeding may be transferred to a different registry within the same division in certain circumstances as well.

A transfer from Division 2 to Division 1 may arise following a party’s application or upon the Court’s own initiative.

Meanwhile, an application for a change of venue (Part 9.1 of the Rules) is primarily dependent upon a party’s application and involves considerations such as the adequacy of the available facilities, costs, convenience, and the progress of the matter at that time.

The power to transfer proceedings can be found in a variety of sources (chapter 9 of the Family Law Rules, section 51 of the Act) but primarily, Part 3 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth). A variety of factors must be considered, including:

· The involvement of ‘questions of general importance’.

· The value of the assets involved.

· The complexity of facts, issues, remedies and procedures.

· The likelihood of the proceedings being dealt with at less cost, quicker, or with more convenience.

· The availability of judicial officers, resources and facilities.

· The wishes of the parties.

In the case of Shala & Shala (No 2) [2025] FedCFamC2F 478, Judge Taglieri was asked by the wife to consider her application to, among other things, transfer the proceedings from Division 2 to Division 1 and to the Melbourne registry. Later, the wife also requested that if the Melbourne registry was not accepted, that the Hobart registry be accepted.

The husband did not consent to the wife’s position, opposing any transfer to Division 1 or another registry.

Judge Taglieri considered Rule 3.01 of Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth) in the context of the wife’s submissions:

· The wife flagged the number of witnesses she intended to call, the complexity of the legal issues, and the length of the hearing.

· The wife failed to acknowledge that she lived in Tasmania, and that all relevant real property was located in Tasmania.

· The husband submitted that the wife would not call all of the witnesses she intended to, and that their evidence was irrelevant, that the matter was not complex, that delays had gone on too long, that there was no real connection to Melbourne.

Judge Taglieri reached the following conclusions:

· The proceedings were complex given the nature of the evidence, the widespread allegations against each party by the other, the potential witnesses called, the degree of disputed facts, and the general contentiousness of the litigation.

· Division 1 has powers involving matters under the Corporations Act that Division 2 does not, as well as better capacity within the Hobart registry.

· There was an insufficient nexus between the facts and a transfer to the Melbourne registry, particularly when considering costs and convenience.

Ultimately, the proceedings were transferred to Division 1 in the Hobart registry.

If the appropriate forum is a relevant consideration in a proceeding, Shala shows that:

1. The Court will likely take the party seeking the transfer at the highest of their evidence.

2. Each relevant factor per Rule 3.01 should be thoroughly considered and addressed.

3. There must be a sound basis for any transfer to a different registry, particularly so where a transfer may increase costs and cause inconvenience.