BIANCHI & HOLTON
[2020] FamCA 974
•20 November 2020
FAMILY COURT OF AUSTRALIA
| BIANCHI & HOLTON | [2020] FamCA 974 |
| FAMILY LAW – PRACTICE AND PROCEDURE – joinder of legal personal representatives of the applicant to press the deceased’s s 90SM property adjustment application – joinder orders made. |
| Family Law Act 1975 (Cth), ss 44, 79, 90SM(8) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Family Law Rules 2004, r 6.15 |
| Black v Black (2008) 38 Fam LR 503 Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (Federation Press, 2012) |
| APPLICANT: | Mr Bianchi (deceased) |
| RESPONDENT: | Ms Holton |
| FILE NUMBER: | DGC | 188 | of | 2019 |
| DATE DELIVERED: | 20 November 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 10 November 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr D. Mort |
| SOLICITOR FOR THE APPLICANT: | Vic Rajah Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Webb Korfiatis Family Law |
Orders
Pursuant to s 90SM(8) of the Family Law Act 1975 and Rule 6.15 of the Family Law Rules 2004, Mr C and Mr D are substituted for the deceased applicant Mr Bianchi in this proceeding.
This proceeding is referred to the docketed registrar for ongoing case management and allocation to a judicial docket.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Bianchi & Holton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 188 of 2019
| Mr Bianchi (deceased) |
Applicant
And
| Ms Holton |
Respondent
REASONS FOR JUDGMENT
Introduction
While sitting in the Judicial Duty List on 10 November 2020 I heard the applicant’s application in paragraph one of his application in a case filed 1 October 2020. That application was as follows –
1.That pursuant to section 90SM(8) of the Family Law Act 1975 and Rule 6.15 of the Family Law Rules 2004, Mr C and Mr D be substituted for the deceased Applicant, Mr Bianchi in these proceedings.
2.Such further or other Order as this Honourable Court deems appropriate.
The respondent sought the dismissal of that application as well as the dismissal of this entire litigation. Registrar Moser referred the dispute for my determination by order made on 16 October 2020.
This case concerned a relationship the duration of which conflicted. The respondent’s response filed 16 August 2019, when this proceeding was still in the Federal Circuit Court of Australia, included applications for orders for the dismissal of the entire proceeding.
The applicant contends in this proceeding that his de facto relationship with the respondent commenced in 2002 and ended in 2018, 16 years in total. Conversely, the respondent contended that their relationship commenced in 2005 and ended in 2008.
The evidence revealed that the applicant died on … 2020. The deceased’s legal personal representatives, Mr D and Mr C, sought substitution pursuant to s 90SM(8) of the Family Law Act and rule 6.15 of the Family Law Rules.
The respondent resisted the application in the application in a case, contending that –
a)a factual determination will be required on the issue of the existence and duration of the de facto relationship alleged;
b)the brothers Mr C and Mr D have no standing in this litigation until the existence of the de facto relationship is determined; and
c)in the circumstances, the application brought under s 90SM(8) should be addressed when the controversy about the existence of the de facto relationship is addressed.
Synopsis
For the reasons that follow, in my view the application under s 90SM(8) need not wait until the determination of the contested controversy about the existence and duration of the de facto relationship. Put differently, unless an order is made under s 90SM(8) now, the interest of Mr Bianchi will not be advanced so as to agitate the existence and duration of the de facto relationship. I take the view that the order sought by Mr C and Mr D in paragraph 1 of their application in a case filed 1 October 2020 should be granted and that this proceeding should be referred to the docketed registrar for allocation to a judge of the court for the determination of the contested issue of the existence and duration of the de facto relationship between Mr Bianchi and Ms Holton.
The competing contentions
Very few factual matters separated the parties in this application beyond the threshold issue of the existence and duration of a de facto relationship between Mr Bianchi and the respondent. The central proposition of the respondent was that this court has no power to make an order under s 90SM(8) unless and until this court determines whether or not a de facto relationship existed between Mr Bianchi and the respondent. She argued –
a)the parties in this case separated in 2008;
b)the provisions of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (“the 2009 Act”) commenced operation on 1 March 2009;
c)the separation date in this case preceded the operation of the 2009 Act;
d)when he was alive, Mr Bianchi had two years from the date of separation within which to commence his application for property settlement;
e)he failed to do so and therefore needed leave to commence this litigation out of time under s 44 of the Family Law Act;
f)he failed to seek such leave; and
g)in consequence, the applicants who seek orders under s 90SM(8) should have that application dealt with when the contested property adjustment application are dealt with including the existence and duration of the de facto relationship.
Quite properly, on behalf of the respondent Mr Korfiatis submitted that this court cannot create jurisdiction where none exists. That much is unarguably correct. However, in circumstances where a dispute exists about whether this court does or does not have jurisdiction, the first duty of the court is to determine facts that demonstrate the existence of its jurisdiction. In Karjala & Gallard[1] I wrote about the matter. It is utile to repeat here what I held in that case –
[1] [2020] FamCA 110.
74.It is well settled that every court, superior or otherwise, undoubtedly possesses implied jurisdiction upon the principle that a grant of power carries with it everything necessary for its exercise. The High Court has so held in Grassby v The Queen[2] and in Pelechowski v Registrar, Court of Appeal (NSW).[3] As Dr Mark Leeming SC wrote (prior to his Honour’s elevation as the Honourable Justice Leeming) –
[2] (1989) 168 CLR 1.
[3] (1999) 198 CLR 435.
That implied jurisdiction includes the authority to decide whether the court’s jurisdiction has been validly invoked, whenever an issue arises (say, because a defendant asserts an immunity from service or that a subject matter limitation has been exceeded).[4]
75.In Hazeldell Ltd v Commonwealth[5] Isaacs ACJ held that the very first duty of any court in approaching a cause before it is to consider its jurisdiction. That proposition has been repeated, at length, in such cases as Federated Engine-Drivers and Firemen’s Association of Australasia v Broken Hill Pty Co Ltd,[6] Old UGC Inc v Industrial Relations Commission of New South Wales,[7] Robins v Incentive Dynamics Pty Ltd[8] and Zhang v Zemin[9] to name a few.
76.Even if parties do not raise the court’s jurisdiction, it is competent and proper for the court to do so of its own motion as was held in Official Trustee in Bankruptcy v Nedlands Pty Ltd (in liq).[10]
77.Parties cannot consent to jurisdiction if jurisdiction does not exist. That statement is generally attributed to Coleridge J in Bunbury v Fuller.[11]
78.Where highly contestable questions of fact arise upon which the court’s authority depends, the grant of jurisdiction carries with it power to determine the existence of facts upon which jurisdiction depends. Authority at High Court level has repeatedly so held in such cases as D.M.W. v C.G.W.,[12] R v Gray; ex parte Marsh,[13] Re Macks; ex parte Saint,[14] Kennon v Spry[15] and Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia.[16]
79.If a court finds that it has no jurisdiction to determine the controversy presented in the application, then in the exercise of implied jurisdiction, it has authority to stay or dismiss the proceeding for want of jurisdiction making a costs order. The High Court so held in Peacock v Newtown Marrickville and General Co-operative Building Society No 4 Ltd[17] and Willocks v Anderson.[18] The Full Court of the Family Court of Australia has also considered matters on point in such authorities as In the Marriage of Yunghanns,[19] Black v Black[20] and Norton & Locke,[21] to name but a few.
80.There is no doubt that I have power to determine jurisdiction about whether s 79 applies to the facts of this case.
[4] Mark Leeming, Authority to Decide – The Law of Jurisdiction in Australia (Federation Press, 2012) paragraph 2.5.
[5] (1924) 34 CLR 442.
[6] (1911) 12 CLR 398.
[7] (2006) 225 CLR 274.
[8] (1999) 91 FCR 423.
[9] (2010) 79 NSWLR 513.
[10] (2000) 99 FCR 554.
[11] [1853] 156 ER 47.
[12] (1982) 151 CLR 491.
[13] (1985) 157 CLR 351.
[14] (2000) 204 CLR 158.
[15] (2008) 238 CLR 366.
[16] (2012) 249 CLR 398.
[17] (1943) 67 CLR 25.
[18] (1971) 124 CLR 293.
[19] (1999) 24 Fam LR 400.
[20] (2008) 38 Fam LR 503.
[21] (2013) 50 Fam LR 517.
Neither Mr Mort nor Mr Korfiatis meaningfully opposed the notion that this dispute required a determination on the existence of and duration of the de facto relationship alleged by Mr Bianchi when he was alive. Now that he is dead, the issue is whether that point can and, on the facts of this case should, be advanced by Mr Bianchi’s legal personal representatives.
Self-evidently, unless Mr Bianchi’s legal personal representatives advance this litigation there will be no contradictor to challenge the respondent’s assertions in this case.
Mr Mort contended that under the last will of Mr Bianchi, the deceased intended to distribute property upon his death. Mr Mort submitted that it would not be just and equitable for there to be no property adjustment orders in this case.
Mr Mort disputed the submission put by Mr Korfiatis concerning the application requiring an extension of time. Mr Mort argued that the version of events as given by Mr Bianchi was to the effect that the separation date was April 2018 and this proceeding was commenced within the prescribed time. Naturally, a determination on the actual separation date must be made.
Determination
It seems to me that it is appropriate to make an order appointing the legal personal representatives as the applicants in this proceeding, the named applicant having died. Unless such an order is made it is highly unlikely that any property adjustment orders will be made. While the phenomenon and duration of a de facto relationship is in dispute, that dispute must be determined in order for facts to be known upon which this court’s jurisdiction under s 90SM is premised. In view of the death of Mr Bianchi, the only people who are presently willing and able to advance the interests of the deceased are the legal personal representatives of the deceased.
There may be debate about whether leave to apply out of time is required. No application was on foot for an order in those terms so it is inappropriate for me to make any order to that effect on this hearing.
In those circumstances I make an order in the terms sought in the application in a case filed on 1 October 2020, as urged by Mr Mort. I also refer this proceeding to the docketed registrar for ongoing case management.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 20 November 2020.
Associate:
Date: 20 November 2020
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