FAMILY LAW – De facto relationship requirements – Whether “breakdown” of relationship – Test to be applied – “De facto financial cause” – Threshold jurisdictional requirements
REMEDIES – Declaratory relief “equitable” antecedents does not define statutory relief – The character of a statutory power, such as a power to make declarations, does not become “legal” or “equitable” according to the character of its subject matter
JURISDICTION – Transfer of proceedings – ss 45(2) & 40(6) Family Law Act 1975 (Cth) – Criteria for transfer – Meaning of “interests of justice” – Relevance of cross-vesting legislation criteria – Whether transfer power is only engaged upon the hypothesis that the jurisdiction of the court to which the application is made is regularly invoked – Differences between transfer applications where no jurisdiction is conceded or is seriously doubtful on one hand or where there is a bona fide claim to jurisdiction on other hand
JURISDICTION – Jurisdiction of Supreme Court to consider whether an application before it is of a nature that constitutes a cause the jurisdiction of which is allocated to another court – Generally parties cannot by consent confer jurisdiction on a court to make orders which the court lacks power to make
CIVIL PROCEDURE – Stay of proceedings – De facto financial cause – Changes to legislation commencing 1 September 2021 – Proceedings heard over 2 days and judgment reserved – Uncertainty as to whether Supreme Court has jurisdiction to hear and determine or transfer to Federal Circuit and Family Court of Australia (Division 2) (‘Division 2 Court’) – Proceedings stayed to allow opportunity for commencement of proceedings in the Division 2 Court
LEGAL PROFESSION – Duties of practitioners to consider jurisdiction of Court and legislative changes which might impact on jurisdiction
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Aviani v Loh (No 2)
Sign in free to access the full text
Details
AGLC
Aviani v Loh (No 2) [2022] NSWSC 1148
Case
[2022] NSWSC 1148
Decision Date
CaseChat Overview and Summary
The parties involved in the case are Aviani and Loh, and the dispute revolves around the requirements for a de facto relationship, whether there was a breakdown of such a relationship, and the jurisdictional implications of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and the amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth). The case was heard in the Supreme Court. The court was required to determine several legal issues, including the applicability of the de facto relationship test, the definition of "de facto financial cause," and whether the Supreme Court retained jurisdiction over such matters following legislative changes. The court also had to consider whether the transfer of proceedings was appropriate under the Family Law Act 1975 (Cth) and whether the Supreme Court could stay proceedings to allow for the initiation of new proceedings in the Federal Circuit and Family Court of Australia (Division 2).
The court reasoned that the statutory power to make declarations is not inherently equitable or legal, and it cannot be defined by the subject matter of the declaration. The court held that the Supreme Court's jurisdiction over de facto financial causes was seriously doubtful following the legislative amendments. The court also considered the criteria for transferring proceedings and whether the interests of justice required such a transfer. The court found that the transfer power was only engaged when there was a bona fide claim to jurisdiction or where there was a serious doubt about the existing court's jurisdiction. The court ultimately decided to stay the proceedings to allow the parties the opportunity to commence new proceedings in the Federal Circuit and Family Court of Australia (Division 2 Court).
The court emphasised the duty of legal practitioners to consider the jurisdiction of the court and any legislative changes that might impact jurisdiction. The final orders of the court were to stay the proceedings to allow the parties an opportunity to commence new proceedings in the Federal Circuit and Family Court of Australia (Division 2 Court), recognising the uncertainty and potential jurisdictional issues arising from the legislative changes.