Bolton and Kingsford (No 2)

[2015] FamCA 905

FAMILY COURT OF AUSTRALIA

BOLTON & KINGSFORD (NO 2) [2015] FamCA 905

FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant has started a financial case in this court – Where the respondent had already commenced an application for property settlement in another jurisdiction – Where the respondent sought a permanent stay and “refusal” of the applicant’s application for property settlement – Whether Rule 13.05 Family Law Rules 2004 requires the respondent to file and serve a financial statement – Where the respondent is nonetheless in this case ordered to file a financial statement

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Ms Bolton

RESPONDENT: Mr Kingsford

FILE NUMBER: SYC 3556 of 2015

DATE DELIVERED: 21 October 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 15 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell, SC

SOLICITOR FOR THE APPLICANT: Karras Partners

COUNSEL FOR THE RESPONDENT: Mr Williams

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. Within 28 days the respondent file and serve a financial statement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bolton & Kingsford (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3556 of 2015

Ms Bolton

Applicant

And

Mr Kingsford

Respondent

REASONS FOR JUDGMENT

1. The applicant sought a procedural direction that the respondent file and serve a financial statement. The respondent opposed that direction being made.

2. The parties separated on 8 May 2015.

3. Rule 13.05 Family Law Rules 2004 (“FLR”) is in the following terms:

   (1)  A party starting, or filing a response or reply to, a financial case (other than by an Application for Consent Orders) must file a Financial Statement at the same time.

4. On 19 May 2015 the respondent filed an application for an order to dissolve the marriage of the parties in the Family Court at City D, New Zealand. On 21 May 2015 he filed an application for property orders pursuant to the Property (Relationships) Act 1976 in the Family Court at C Town, New Zealand.

5. On 3 June 2015 the applicant filed an Initiating Application in which, inter alia, she sought an order for property settlement in this court. The applicant has also sought an order that the respondent be restrained from further prosecuting any proceedings in any jurisdiction outside the Commonwealth of Australia, including but not limited to:

   5.1.The dissolution proceedings commenced in City D;

   5.2.The financial proceedings commenced in C Town.

6. On 15 July 2015 the respondent filed a Response to the applicant’s Initiating Application in which he sought an order in the following terms:

   That the financial proceedings commenced by the applicant pursuant to the Initiating Application filed 3 June 2015 be and are hereby permanently stayed and the final and interim financial orders sought by her refused.

7. It is the respondent’s contention that his Response to the applicant’s application for property settlement in Australia is not a Response to a financial case but rather an application to the court to decline to exercise jurisdiction to hear and determine the applicant’s application for property settlement.

8. The dictionary which forms part of the Rules defines “financial case” as meaning a case involving an application, inter alia, relating to the property of the parties to a marriage and includes an application for “permission to start a property case”. This means that the current Rules require a financial statement to be filed by both sides in any application pursuant to s 44(3) of the Family Law Act 1975 (Cth) (“the Act”) (compare the position under the old Regulation 98 as discussed by Nygh J in Atwill (1981) 7 Fam LR 573 at 574-5). The question in this case is whether or not a Response which seeks to object to jurisdiction attracts Rule 13.05 FLR.

9. In Norton & Locke (2013) FLC 93-567, the Full Court discussed whether or not the Federal Circuit Court had power to order the appellant to file and serve a financial statement in a de facto property case in circumstances where the appellant challenged the existence of the de facto relationship and consequently the existence of jurisdiction. The Full Court said:

   78. Part 24 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) is confined, in its application to “…proceedings in relation to financial matters” (r 24.01). “Financial matters” is defined, relevantly, in the FCC Rules as including proceedings under s 90SM of the Act. Section 90SM requires, for its application, “the breakdown of a de facto relationship”. Plainly enough, that must, in turn, depend upon the prior existence of a “de facto relationship”. The existence of a de facto relationship is, then, a jurisdictional fact in the sense earlier described.

   79. In our view, perforce of the reasons earlier outlined, until such time as the relevant jurisdictional facts are established, there is no power to order the provision of financial information pursuant to Part 24 of the Rules.

   80. However, as has been said, the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact. For example, the intermingling relationship or lack of intermingling of the parties’ respective financial affairs, may be directly relevant to the establishment of whether a de facto relationship exists (see, s 4AA(2)(d) of the Act).

   ....

   82. It is, in our view, difficult to see how the documents required by that rule [a reference to r.24.04 FCC Rules] could be required for the narrow purpose to which directions might be fashioned by the court for the limited “jurisdictional purpose” just outlined.

10. In this case, there is no doubt the applicant has filed an application starting a financial case which this court has jurisdiction to hear. There is power in s 123 of the Act for the judges of this court to make a rule requiring the filing of a financial statement by a respondent even if the respondent is asking the court to stay the exercise of jurisdiction. But is that what Rule.13.05 FLR does?

11. I have not found any decision relating to the meaning and application of Rule 13.05 FLR where the relief sought by the respondent is a permanent stay of the applicant’s property application.

12. Rules 9.01(1) and 9.03 FLR are in the following terms:

    9.01 Response to an Initiating Application (Family Law)

    (1) A respondent to an Initiating Application (Family Law) who seeks to oppose the orders sought in the application or seeks different orders must file a Response to an Initiating Application (Family Law).

    .....

    9.03 Response objecting to jurisdiction

    (1) A respondent seeking to object to the jurisdiction of the court:

    (a) must file a Response to an Initiating Application (Family Law); and

    (b) is not taken to have submitted to the jurisdiction of the court by seeking other orders in the Response to an Initiating Application (Family Law).

    (2) The objection to the jurisdiction must be determined before any other orders sought in the Response to an Initiating Application (Family Law).

13. In this case the respondent has done two things. Firstly by seeking a permanent stay he has, in effect, objected to the court exercising jurisdiction to entertain the applicant’s application for a property settlement order. In addition, he has sought an order dismissing (he has used the word ‘refused’) the applicant’s application for property order.

14. Rule 9.03(2) requires the objection to the jurisdiction to be determined before the order that he seeks dismissing the applicant’s application for a property settlement order.

15. Rule 13.05 creates a requirement when a Response has been filed to a financial case. Although the second part of the application made by the respondent is a Response to a financial case, it is not to be determined until the objection to jurisdiction is determined.

16. In my view, Rule 13.05 does not apply to a Response seeking to object to jurisdiction and so the Rule does not require the respondent to file a financial statement with a Response seeking to object to jurisdiction.

17. That is not the end of the matter however. As the Full Court made clear in Norton & Locke, financial information (albeit more limited than set out in the full financial statement) may be required to determine a jurisdictional fact or in this case, whether an objection to jurisdiction should succeed. Neither party in submissions before me addressed the issue as to the extent of financial information that the respondent should be required to file in order for the court to be in a position to properly determine the respondent’s objection to the exercise of jurisdiction.

18. It was common ground that in the proceedings in New Zealand, the respondent has filed a document in purported compliance with the requirement that a party to a financial case in New Zealand give full and frank disclosure. That document is in fact annexed to the applicant’s affidavit.

19. In those circumstances it is appropriate to order the respondent file and serve a financial statement in these proceedings. The parties agree that if I ordered the respondent to file and serve a financial statement, the respondent would have 28 days to do so.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 October 2015.

Associate: 

Date:  21.10.2015