Brunton and Kramer
[2014] FCCA 131
•31 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BRUNTON & KRAMER | [2014] FCCA 131 |
| Catchwords: FAMILY LAW ̶ Whether parties were in a de facto relationship in the State of Victoria – whether part of the parties de facto relationship was in a participating jurisdiction ̶ whether application has reasonable prospect of success ̶ whether application should be summarily dismissed. |
| Legislation: Family Law Act 1975 (Cth), ss.4AA, 90SL, 90SM, 90SK Family Law Act 1997 (WA) |
| Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Bell Group Limited v Westpac Banking Corporation [2000] FCR 104, (2000) FCA 439 Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) FCR 42, [2001] FCA 421 |
| Applicant: | MS BRUNTON |
| Respondent: | MR KRAMER |
| File Number: | DGC 928 of 2013 |
| Judgment of: | Judge Phipps |
| Hearing date: | 29 November 2013 |
| Date of Last Submission: | 29 November 2013 |
| Delivered at: | Dandenong |
| Delivered on: | 31 January 2014 |
REPRESENTATION
| The Applicant: | Appearing in person |
| Solicitor for the Respondent: | Mr McNeill |
| Solicitors for the Respondent: | North Lake Legal |
ORDERS
The application is dismissed pursuant to s.17A of the Federal Circuit Court of Australia Act 1999 (Cth).
That the question of costs be reserved.
AND THE COURT NOTES:
The application is dismissed because the court finds it has no jurisdiction.
IT IS NOTED that publication of this judgment under the pseudonym Brunton & Kramer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT DANDENONG |
DGC 928 of 2013
| MS BRUNTON |
Applicant
And
| MR KRAMER |
Respondent
REASONS FOR JUDGMENT
The applicant filed this proceeding on 15 April 2013 in the Dandenong Registry of the Federal Circuit Court of Australia. The Dandenong Registry is in the State of Victoria. The applicant applies for an order for alteration of property interests of a de facto relationship. Although the application does not say so specifically it is an application for an order for alteration of property interests pursuant to s.90SM of the Family Law Act 1975 (Cth) or perhaps an application for a declaration under s.90SL.
The respondent applies for summary dismissal of the application. He says that the whole of the de facto relationship took place in the State of Western Australia and so the Federal Circuit Court of Australia has no jurisdiction.
The applicant says that the de facto relationship commenced in about September 2001 when the parties were residing in Victoria. In October 2004 the parties moved to Western Australia and lived in a de facto relationship there until April or May 2011 when the de facto relationship broke down. The respondent says that while the parties were in a boyfriend girlfriend relationship in Victoria the de facto relationship did not commence until they moved to Western Australia in October 2004. He says the relationship broke down in February 2011 and so, since the applicant did not commence the proceeding within two years of the breakdown, she is out of time. This is not an issue in the summary dismissal application. The respondent says that the application cannot be transferred to the Family Court of Western Australia.
Section 90SK must be satisfied if the Federal Circuit Court of Australia is to have jurisdiction. The section provides:
(1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and
(b) that either:
(i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.
(1A) The alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
(2) For the purposes of paragraph (1)(b), a State need not have been a participating jurisdiction during the de facto relationship.
The following are common ground. The State of Victoria is a participating jurisdiction. The State of Western Australia is not. There are no children of the relationship. The applicant did not make substantial contributions in relation to the de facto relationship, of a kind mentioned in s.90SM(4)(a), (b) or (c) in the State of Victoria. Both parties were ordinarily resident in the State of Western Australia when the relationship broke down. The applicant was ordinarily resident in the State of Victoria when the application was made.
The two issues on the jurisdictional question are whether the parties were in a de facto relationship when both were ordinarily resident in the State of Victoria and if so, whether that was at least one third of the de facto relationship.
Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth) provides for summary judgement:
(1) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is prosecuting the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.
(2) The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a) the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a) hopeless; or
(b) bound to fail;
for it to have no reasonable prospect of success.
The definition of de facto relationship is in s.4AA of the Family Law Act 1975 (Cth):
Meaning of de facto relationship
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
For the summary judgement application to succeed the court must be satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding. In Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 Finkelstein J at [23] said of the equivalent section in the Federal Court of Australia Act, s.31A:
In other words, the section requires the judge to conduct what might loosely be described as a preliminary trial and look more closely than he would under an O 14 application to a party’s assertion that there is a real question of law or fact to be decided. Such an assertion is to be examined with a critical eye. The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. There will be others where the opposing party has not been able to show that the asserted facts are likely to be established at a trial. On questions of law, the judge should conduct an inquiry into their merit, not for the purpose of resolving them (though this can be done – see Rosser v Austral Wine and Spirit Co Pty Ltd [1980] VR 313, 320) and also not simply to determine whether the argument is hopeless, but in order to decide whether it is sufficiently strong to warrant a trial. If the judge is satisfied that he (or she) is able to resolve any contested legal issue at a summary hearing and without undue delay, it may be better all around if that be done. If not, then at least the merits must be tested. That will then give s 31A a substantial operation, which is what, it seems to me, was intended.
In Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 Rares J at [45] said of the same section:
I am of opinion that in assessing what reasonable prospects of success are for the purposes of s 31A, the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have such an ambivalent character prior to a final determination, I am of opinion that then, as a matter of law, at that point there are reasonable prospects of success within the meaning of s 31A. Unless only one conclusion can be said to be reasonable, the moving party will not have discharged its onus to enliven the discretion to authorize a summary termination of the proceedings which s 31A envisages. In moving the second reading of the bill introducing s 31A (the Migration Litigation Reform Bill 2005) the Attorney-General said that it strengthened ‘... the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases’.
The applicant says that the parties were in a de facto relationship in the State of Victoria from when they met until October 2004 when they moved to Western Australia a period of three years and one month. She says that they were in a de facto relationship in Western Australia from October 2004 until April or May 2011. Using the date of April 2011 that is six years and six months. This makes the total length of the relationship nine years and seven months. Three years and one month is less than a third of this and so on the applicant’s version jurisdiction does not exist because both parties to that de facto relationship were not ordinarily resident in Victoria during at least a third of the de facto relationship.
The respondent says that the relationship broke down in February 2011. If this is correct the period of the de facto relationship in Western Australia was six years and four months. Added to the three years and one month the applicant alleges in Victoria makes nine years and five months. Three years and one month is still less than one third of the total amount, but only just.
Initially I will consider the application for summary judgement on the issue of whether a de facto relationship between the parties existed in Victoria, and then consider the time issue. I will assume that what the applicant says in her affidavit is correct.
The applicant says that the parties met on 29 August 2001 and from about September 2001 had entered into a fully committed relationship. They did not reside under the same roof on a permanent basis. The applicant lived in a rented house in [E] with her two sons and the respondent lived in rented premises in [C] shared with another person.
The applicant says that from the time they met the respondent stayed at her house in [E] on the weekends and sometimes on a weeknight as well. She says they were spending time together and rarely went anywhere alone. She says that in August 2003 she had an operation to remove her adrenal gland. She was unwell and required the assistance of the full-time nurse for approximately 6 months. She says that instead of hiring a nurse the respondent lived with her on a permanent basis and took on the role of carer. She says he stayed approximately 3 months after surgery. She says she believes they did not live together on a full-time basis in Victoria because the respondent wanted to wait until they moved to Perth.
The applicant says that in September 2001 her two sons met the respondent. She purchased a motorbike for her sons in 2001 or 2002 and on weekends the respondent would sometimes take them out riding. The respondent took her on a holiday to [omitted] over the summer of 2001 and 2002.
The applicant says that the respondent spent every Mother’s Day with her and her parents from 2002 to 2004 and he always paid for their meals. He spent every Christmas Day with her children and her at her family’s house from 2001 to 2003. The respondent sometimes attended her son [X]’s [sport omitted] matches during the period of 2001 and 2002 and at a one point was asked to coach the team. The applicant says that her son [X] went off the rails with drugs and committed numerous crimes during her relationship with the respondent. She says the respondent supported her and came with her to visit [X] at the [omitted] prison in [omitted].
The applicant says that the respondent regularly attended her friend’s birthday parties with her. She says he attended numerous barbecues and social gatherings with her and her friends, he attended working bees at a [omitted] club of which she was a member and he came away on a holiday with her to stay with a group of friends in [omitted] Victoria. From 2001 to 2003 the respondent came with the applicant to all her Christmas work functions.
The applicant says she introduced the respondent to her elderly parents as well as her friends. The respondent’s father came to Melbourne for the sole purpose of meeting her and she and her parents took him to lunch at [omitted]. The respondent’s brother flew to Melbourne to meet her. The respondent obtained his [omitted] and for his graduation he took her to the restaurant at [omitted]. In about November 2003 the respondent took her to his boss’ wedding.
The parties were in a de facto relationship if having regard to all the circumstances of their relationship, they had a relationship as a couple living together on a genuine domestic basis. The circumstances may include any or all of those set out in paragraph (2) of the definition. Accepting the applicant’s evidence the following is established for each of the circumstances:
The duration of the relationship;
The relationship in Victoria lasted three years and one month.
The nature and extent of their common residence;
The parties did not have a common residence. While the applicant says, and for the purposes of this application I must accept, that the respondent spent weekends and some times during the week at her residence, it was not a common residence, it was her residence. The respondent had his own residence. While the applicant was ill the respondent lived at the applicant’s residence for three months caring for her. This is the only continuous period of residence together. It is three months out of three years and one month and was in unusual circumstances.
Whether a sexual relationship exists;
The applicant says, and I must accept for the purpose of this application, that the parties had an exclusive sexual relationship.
The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
On the applicant’s affidavit the respondent purchased meals, and paid for outings and holidays, but she was employed and supporting herself. There was no financial dependence by the applicant on the respondent, there was no interdependence and no arrangements for financial support between them. The applicant says that she does not recall the respondent and her sharing money or supporting each other financially. She says she did not believe that they consciously chose not to share their finances, there was just no need at the time.
The ownership, use and acquisition of their property;
The applicant says that at the time the relationship commenced each had a motor vehicle and money in bank accounts. They did not own property together, use property together or acquire property together.
The degree of mutual commitment to a shared life;
The applicant says, and I must accept for the purpose of this application, that the parties were mutually committed to each other and she describes the shared social and family engagements they attended.
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
The relationship was not registered.
The care and support of children;
The applicant describes how the respondent attended [omitted] games, and went on occasion’s [omitted] with her sons and was involved in family events. What the wife describes the respondent doing does not meet the description of the care and support of children.
The reputation and public aspects of the relationship.
The respondent met and attended family events with the applicant’s family and members of the respondent’s family met the applicant. On the wife’s affidavit she and the respondent attended family and all normal social engagements, including combined work and social engagements, together. They went on holidays together. On the wife’s evidence this does not go beyond what a boyfriend and girlfriend in an exclusive relationship might do. By reputation they had separate homes and to anybody who knew them well enough, separate finances. The only inference that can be drawn, putting the most favourable view on the applicant’s description of the relationship, is that anybody who knew them well would not regard them as living together.
The evidence about the circumstances has to be taken into account, but the requirement is that the court has to be able to find that “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”. They were not living together. They had separate residences. They spent considerable amounts of time together at each other’s residences, mostly the applicant’s, but they were not living together. They did not share finances. Telling is the wife’s statement in paragraph 11 of her affidavit sworn 28 October 2013 “I believe we did not live together on a full-time basis whilst we were both in Victoria because the respondent wanted to wait until we moved to Perth”. The only conclusion, accepting the correctness of everything the applicant says, is that the parties were not in a de facto relationship while they were living in Victoria.
I have already described the dates and periods of the parties relationship in Victoria and Western Australia. Accepting the applicant’s statement for the commencement and the respondent’s statement for the breakdown of the relationship the parties cannot have been ordinarily resident in the State of Victoria for at least one third of the relationship.
Accepting the applicant’s date for the commencement of the relationship is to assume that the relationship commenced as soon as the parties met, or at least as soon as the respondent first spent a weekend, or even a night, at the applicant’s residence. Even if I am wrong in finding that the applicant has no reasonable prospect of establishing that the parties were in a de facto relationship in Victoria, her claim that the de facto relationship commenced as soon as or soon after the parties met can fairly be described as hopeless. This means even applying a more stringent test than that required by s.17A of the Federal Circuit Court of Australia Act 1999 (Cth) the period of the relationship in Victoria is substantially less than one third of the total period of the relationship rather than just less than one third.
Once these conclusions are reached the applicant cannot establish the factual basis for the Federal Circuit Court of Australia to have jurisdiction. I am satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding.
The Family Court of Western Australia does have jurisdiction over the de facto property claim by the wife. That is common ground.
The parties’ submissions dealt with the question of transfer of the proceeding to that court. The Federal Circuit Court of Australia can transfer matters to the Family Court of Australia but not to the Family Court of Western Australia. The Federal Circuit Court of Australia’s powers of transfer are in s.39 and s.41 of the Federal Circuit Court of Australia Act 1999 (Cth). These give power to transfer to the Family Court of Australia or the Federal Court of Australia. While a matter which is not within the jurisdiction of the Federal Circuit Court of Australia might be transferred to either of the Superior Courts which do have jurisdiction Bell Group Limited v Westpac Banking Corporation [2000] FCR 104, (2000) FCA 439, Johnson Tiles Pty Ltd v Esso Australia Ltd (2001) FCR 42, [2001] FCA 421, the finding I have made means that the Family Court of Australia does not have jurisdiction. I cannot transfer the application to the Family Court of Australia.
Section 45(2) of the Family Court Act 1997 (Cth) provides:
Where there are pending in a court proceedings that have been instituted under this Act or are being continued in accordance with any of the provisions of section 9 and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court.
The jurisdiction of the Family Court of Western Australia over de facto property matters is under the Family Law Act 1997 (WA). It does not have jurisdiction under the Commonwealth Family Law Act1975 (Cth) so s.45(2) does not apply.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Phipps
Date: 31 January 2014
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