This is a sample (posted 21 November 2022) of “Latest Notable Cases”, which is posted monthly with live links for members at the Members’ Home Page under Members’ Practice News. Also available at our Members’ Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members’ Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

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Property – De facto thresholds – Judge’s denial of leave to proceed was “repugnant to” prior consent order granting leave under s 44(6) – De facto wife’s application could not be dismissed for want of prosecution

In Eden [2022] FedCFamC1A 178 (27 October 2022) Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, considered a decision of Judge Morley, where a de facto wife’s initiating application for property orders was dismissed for want of jurisdiction.

The parties were in a de facto relationship from 1989 to 22 November 2007. The de facto wife alleged that the parties reconciled in 2008 and the relationship continued for several years. There was uncertainty about the final date of separation, but consensus that the relationship ended by December 2014 ([5]). The de facto wife filed her application in August 2017.

The de facto husband initially sought dismissal of the application ([7]), but in April 2018 a different judge granted leave to proceed pursuant to s 44(6) of the Act, based on the de facto husband’s admission that jurisdiction existed ([10]-[12]).

Judge Morley found that if the relationship broke down prior to 1 March 2009, there was no jurisdiction to make any order other than dismissing the proceedings for lack of jurisdiction and an order under s 44(6) did not cure that jurisdictional issue ([17]).

Austin J said (from [18]):

“ … The minute of orders, representing the parties’ formal agreement, resolved the jurisdictional dispute. Acting on such evidence, the other judge granted leave to bring the claim for property settlement out of time, which order was entirely futile unless jurisdiction actually existed to entertain the appellant’s claim. The existence of jurisdiction could perhaps have been proven by the appellant if the issue had remained contested, but that became unnecessary when the respondent conceded.

[19] From the ancillary costs order made in the appellant’s favour, deferring the payment of such costs until after the respondent received his ‘share of entitlements’ upon resolution of the substantive property settlement claim, it is abundantly clear that the existence of jurisdiction was integral to the orders made in April 2018.

[20] The respondent’s deliberate decision to concede the existence of jurisdiction was confirmed by him before the primary judge in September 2020 and reiterated by him in the appeal, though without any apparent understanding of its significance.

( … )

[24] His Honour, despite being ‘acutely aware’ of the respondent’s admission …, wrongly rejected the appellant’s submission that his admission resolved the issue of jurisdiction in her favour …

[25] Parties are bound by the way in which they conduct their cases and these parties mutually conducted the original litigation on the premise that their de facto relationship existed at, and subsisted until sometime beyond, 1 March 2009. Jurisdiction to entertain the appellant’s substantive property settlement claim was therefore established …

[26] The primary judge observed how the order made under s 44(6) of the Act granting leave for the appellant to proceed with her substantive claim could not cure an absence of jurisdiction … but that observation requires some qualification. It is true parties cannot consensually invest courts with jurisdiction or power they do not possess (Harris v Caladine [1991] HCA 9 …), but there was no need to cure any jurisdictional lacuna here because the parties formally conceded the necessary jurisdictional facts.

[27] … The dissipation of any controversy over the existence of jurisdiction obviated any need for a finding on contested evidence. More than two years later, in the hearing conducted before the primary judge, it was not open to the respondent to adduce evidence contradicting the jurisdictional fact he formally admitted earlier in the same proceedings, at least without leave, which was neither sought nor given (s 191 of the Evidence Act 1995 (Cth)).

[28] Neither the primary judge nor the respondent was precluded by the principle of ‘issue estoppel’ from re-revisiting the issue of jurisdiction at the hearing, as the orders made in April 2018 were interlocutory in nature and did not finally resolve the issue of jurisdiction between the parties in the form of an anterior final judgment … Nevertheless, unless and until the parties were released from their binding concessions in the proceedings, the primary judge could not go behind the orders made by the other judge in April 2018.

[29] There would have been no impediment to his Honour dismissing the appellant’s substantive application for property settlement relief on merit, but her application could not be dismissed for want of jurisdiction … ”

The appeal was allowed and the proceedings remitted for re-hearing, with the court ordering costs certificates for the applicant for the appeal and the re-hearing. The respondent was self-represented.

 

Our latest notable cases this month also include summaries of cases that involve the following:

Procedure – Conflict of interest found where wife’s solicitor was also acting for wife’s litigation funder (which was owed $3.6 million) – Appeal from dollar for dollar costs order allowed where recoverability not adequately considered

Children – Finding of long-term pattern of “pervasive, coercive and controlling conduct” and an order for no time with father upheld

Property – Arbitration – Arguable that “review” of arbitral award under s 13J is not an appeal – Non-disclosure properly considered under s 75(2)(o)

Children – Sole parental responsibility – Mother’s application for no time with father dismissed despite intractable and unabated conflict between parents – Lump sum and non-periodic child support orders where father had not paid periodic assessment nor contributed to school fees

Children – Graduated increase in time with young child – Discomfort of supervision insignificant compared to potential long-term detriment to child if relationship with father not rekindled

Child support – Departure order from administrative assessment for two children now aged 22 – Withdrawal of superannuation prior to terminating event artificially increased father’s assessable income