Aviani v Loh (No 2)

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.