B v M

Case [2024] WASCA 34 5 April 2024

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   B -v- M [2024] WASCA 34
CORAM:   BUSS P
MITCHELL JA
VAUGHAN JA

HEARD:   21 APRIL 2023
DELIVERED          :   5 APRIL 2024
FILE NO/S:   CACV 18 of 2022
BETWEEN:   B
Appellant
AND
M
First Respondent
Q
Second Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   FLYNN DCJ
Citation: [2022] WADC 7
File Number            :   CIV 3011 of 2020

Catchwords:

Family Law - Jurisdiction - Exclusive jurisdiction of Family Court of Western Australia - Where alleged loan agreement between de facto partners - Where claim for breach of loan agreement brought in District Court - Whether the Family Court Act deprived the District Court of jurisdiction conferred by the District Court Act - Whether de facto relationship subsisted for two years - Whether primary judge erred in striking out the action in District Court for lack of jurisdiction

Legislation:

District Court of Western Australia Act 1969 (WA), s 6(1)
Family Court Act 1997 (WA), s 205Z, s 205ZA

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	P J Hannan
First Respondent	:	F A Robertson & T Camp
Second Respondent	:	No appearance

Solicitors:

Appellant	:	Nova Legal
First Respondent	:	Butcher Paull & Calder
Second Respondent	:	HHG Legal Group

Case(s) referred to in decision(s):

Britt v Office of the State Coroner [2022] WASCA 75
Emerald v Emerald [2018] FamCAFC 217
Fairbairn v Radecki [2022] HCA 18; (2022) 96 ALJR 529
G v O [2018] WASCA 211; (2018) 53 WAR 393
G v O [2022] WASCA 23
H v P [2011] WASCA 78
Hibberson v George (1989) 12 Fam LR 725
Keremestevski v McLeod [2024] WASCA 12
L v C [2005] FCWA 23
Lynam v Director General of Social Security (1983) 52 ALR 128
Mrowka v Format Finishing Pty Ltd [2009] WASCA 184; (2009) 240 FLR 1
Rennie v Higgon (1981) FLC 91-087
Sewell v Wilson [2010] WASCA 152; (2010) 242 FLR 402
Wilson v Arwon Finance Pty Ltd [2020] WASCA 137

JUDGMENT OF THE COURT:

Overview

The appellant appeals against a decision[1] of a judge in the District Court of Western Australia (Flynn DCJ) striking out the appellant's action for lack of jurisdiction.
[1] [2022] WADC 7 (primary reasons). The primary reasons have been suppressed. To avoid any necessity for suppression of this court's reasons it has been necessary to describe the actors and places in the events that give rise to the litigation in a way that does not identify the parties.
The appellant brought proceedings against the respondents. The first respondent is the appellant's ex‑wife and former de facto partner. The second respondent is the appellant's and the first respondent's son. The second respondent did not participate in the proceedings in the District Court other than as a witness. Similarly, on appeal, the second respondent has given notice that he will abide the outcome and only wishes to…

Grounds of appeal

[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 B v M

Details

AGLC: B v M [2024] WASCA 34
Case: [2024] WASCA 34
Decision Date: 5 APRIL 2024

CaseChat Overview and Summary

The case of B v M involved a dispute between two de facto partners, B and M. The central issue was a claim by B against M for the return of a loan that B alleged had been made under an agreement between the two. B initially filed the claim in the District Court of Western Australia. M subsequently applied for the matter to be transferred to the Family Court of Western Australia, arguing that the Family Court had exclusive jurisdiction over the matter due to the de facto relationship between the parties. The primary judge struck out B's claim on the basis that the Family Court had exclusive jurisdiction and that the de facto relationship had subsisted for two years, rendering the District Court without jurisdiction.

The legal issues before the court were whether the Family Court Act deprived the District Court of jurisdiction over the matter and whether the primary judge was correct in finding that the de facto relationship had subsisted for two years. The court had to determine if the provisions of the Family Court Act, which confer exclusive jurisdiction over certain family law matters, applied to the circumstances of this case. Additionally, the court needed to establish whether the relationship between B and M had indeed lasted for two years, which would further support the Family Court's exclusive jurisdiction.

The court held that the Family Court Act did indeed deprive the District Court of jurisdiction in this case. The court found that the relationship between B and M met the criteria for a de facto relationship under the Family Law Act, and because it had subsisted for two years, the Family Court had exclusive jurisdiction. The court also determined that the primary judge was correct in striking out the claim for lack of jurisdiction. The court held that the Family Court was the appropriate forum for resolving disputes between de facto partners, particularly those concerning financial arrangements made during the relationship.

The final orders of the court were that the appeal by B was dismissed, and the decision of the primary judge was affirmed. The claim brought by B in the District Court was struck out for lack of jurisdiction, and it was determined that the matter should be heard in the Family Court of Western Australia. The court's decision underscores the importance of determining the correct jurisdiction when dealing with family law matters, particularly those involving de facto relationships.

Orders