Aviani v Loh (No 2)

Case [2022] NSWSC 1148


Supreme Court


New South Wales

Medium Neutral Citation: Aviani v Loh (No 2) [2022] NSWSC 1148
Hearing dates: 8 – 9, 17 (submissions) and 25 August 2022
Date of orders: 25 August 2022
Decision date: 31 August 2022
Jurisdiction:Equity
Before: Meek J
Decision:

Proceedings stayed on terms.

Catchwords:

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

FAMILY LAW – JURISDICTION – Whether the Supreme Court has jurisdiction in “de facto financial causes” consequent upon the passing of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and amendments to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – serious doubt that Supreme Court has such jurisdiction

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

Legislation Cited:

Acts Interpretation Act 1901 (Cth)

Australian Consumer Law

Civil Procedure Act2005 (NSW)

Conveyancing Act 1919 (NSW)

District Court Act 1973 (NSW)

Family Law Act 1975 (Cth)

Family Law Regulations 1975 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth)

Interpretation Act 1987 (NSW)

Judiciary Act 1903 (Cth)

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth)

Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)

Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW)

Property (Relationships) Act

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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.

Orders

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Background

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