Cao and Trong and Anor - [2018] FamCA 460

AMENDED PURSUANT TO RULE 17.02 OF THE FAMILY LAW RULES 2004
FAMILY COURT OF AUSTRALIA

CAO & TRONG AND ANOR

[2018] FamCA 460

FAMILY LAW – JURISDICTION – Where the Taxation Commissioner intervenes in a property dispute between husband and wife – where the husband is the nominated debtor – where the husband then discontinues his claim for any relief – where the wife has not discontinued but says that she does not seek orders under s 79 of the Act –where the Commissioner seeks to proceed under s79 against both husband and wife to recover the debt against either or both – where the wife maintains there is no jurisdiction – wife’s submissions rejected – where the court finds the jurisdiction is not denied by the discontinuance and/or refusal of the wife to proceed to seek orders –matter adjourned to enable final hearing to be set down.

Family Law Act 1975 (Cth)

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Deputy Commissioner of Taxation v Kliman & Another [2002] FamCA 629
Deputy Federal Commissioner of Taxation v Spanjich (1988) 93 FLR 98; FLC 91-974
Dougherty v Dougherty (1987) 163 CLR 278
In the Marriage of Biltoft (1995) FLC 92-614
In the Marriage of Prince (1984) 54 ALR 467
Martin & Martin [2015] FamCA 260
Phillip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457
Puddy & Grossvard [2010] FamCAFC 54
Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

APPLICANT:

Mr Cao

RESPONDENT:

Ms Trong

INTERVENOR:

Deputy Commissioner Of Taxation

FILE NUMBER:

MLC

2555

2016

DATE DELIVERED:

20 June 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:	Cronin J
HEARING DATE:	7 June 2018

REPRESENTATION

THE APPLICANT:

No Appearance

COUNSEL FOR THE RESPONDENT:

Mr Juebner

SOLICITOR FOR THE RESPONDENT:

JK Lawyers

COUNSEL FOR THE INTERVENOR:

Mr Sest QC with Mr Mazloum

SOLICITOR FOR THE INTERVENOR:

Deputy Commissioner Of Taxation

Orders

Paragraphs 1 to 16 of the wife’s response filed 27 October 2017 are adjourned to a date to be fixed for determination by the Case Management Judge upon allocation of the proceedings to a judge for trial.
That to the extent that the wife seeks orders in the form of paragraph 60 of her assertions contained in the outline of submissions filed on 22 January 2018, the application therein is adjourned in accordance with paragraph 1 hereof.
That to the extent that the wife seeks orders in the form of paragraph 58 and 59 of her assertions contained in the outline of submissions filed on 22 January 2018, the application therein is dismissed.
Having ruled that the Court has jurisdiction to hear the dispute contained in the amended application of the Commissioner as intervener filed 1 June 2018, paragraphs 1 to 8 of that application are consolidated with the response referred to in paragraph 1 hereof and also adjourned to a date to be fixed for determination by the Case Management Judge upon allocation of the proceedings to a judge for trial.

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 Cao & Trong and Anor 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: MLC 2555 of 2016

Mr Cao

Applicant

And

Ms Trong

Respondent

And

Deputy Commissioner of Taxation
Intervener

REASONS FOR JUDGMENT

Mr Cao (the husband) and Ms Trong (the wife) were married to each other in 2010. They had lived together since 2004. Their relationship ended in March 2016 and they were divorced in August 2017. In between separation and divorce, on 24 March 2016, the husband issued parenting proceedings in the Federal Circuit Court and the wife joined issue with him but only in respect of parenting matters.
Three children, X, Y and Z were born to the husband and wife between 2004 and 2013 and they were the focus of the parenting proceedings.
The parties’ respective applications were first before Judge Riethmuller in the Federal Circuit Court on 18 May 2016 but on that day, the wife filed an application in a case seeking what she described as final orders for a property settlement. The relief sought was described as:
That pursuant to Section 79 of the Family Law Act 1975, Orders be made by this Honourable Court to enable an equitable distribution of matrimonial assets between the parties.
The wife also sought spousal maintenance.
Although the relief sought was imprecise, she then sought that specific assets be retained by her and did not seek that any legal or equitable interests be altered save for what appears on the parties’ documents to be the husband’s superannuation. Relevantly, she sought that the husband indemnify her:
against any liability present or contingent including tax….in respect of E Pty Ltd.
She then sought a specific order that the husband:
Shall be responsible for all income tax assessed on income received or deemed to have been received by (the husband) for the income tax year (sic) 1 July 2004 to the date of these orders.
Between 2005 and 2012, the Husband incurred a taxation liability. As at 29 May 2018, it was quantified at $5,519,200.55 and said to be unpaid.
Thus, as at May 2016, there can be little doubt that the wife was troubled enough about the husband’s tax debt to seek an indemnity from him.
The husband presumably did not get a chance to respond to that proposed relief because it was only produced on the return date and it may have been on the wrong form not that that matters.
Both husband and wife were represented before Judge Riethmuller but it would seem that matters were not compromised as his Honour made orders. Most of them related to parenting issues however his Honour’s orders indicate that the financial issues were alive between the parties. Those orders included:
[9]The Husband pay to the Wife until further order the sum of $2,000 per month commencing on 27 May 2016 and each month thereafter on the 27th of the month.
There were other financial provisions for the wife which are not presently relevant and then:
[12]Both parties be and are hereby restrained from encumbering, selling, dealing with or otherwise disposing of the real property or any other asset without the other’s prior written consent.
…
[14]The Husband make, file and serve any Amended Initiating Application and further Affidavits in support by 25 July 2016.
Provision was made in the orders for the wife to respond to the husband’s application.
On 26 July 2016, an application in a case was filed by the Commissioner of Taxation seeking leave to intervene in the proceedings. At that point in the chronology, only the wife had filed any application for relief but the affidavit in support of the Commissioner’s application for leave to intervene asserted:
·The failure by the Husband to pay his tax related liabilities has increased the gross value of the asset pool of the Husband and (the wife);
·The wife has filed an application in this Court seeking orders in respect of the property of the marriage; and
·The outcome of the Application will determine the rights and entitlements of the parties in respect of the property of the Husband and the Wife and accordingly which assets will remain available to pay the tax related liability owed by the Husband to the Commissioner.
The orders sought by the Commissioner included the following:
[2]By way of final property settlement or order as between the parties and prior to the distribution of such property to the Husband and the Wife or either of them this Honourable Court:
(a)Take into account the taxation liabilities of the Husband…..; and
(b)First make provision for the payment of the taxation liabilities of the Husband to the Deputy Commissioner of Taxation prior to any distribution to the Husband and Wife.
There could therefore have been no doubt about what the Commissioner was pursuing. Below, I consider the various arguments of the parties but one relates to the Commissioner seeking a property settlement. The words used in that application were “final property settlement or order as between the parties” and there is some relevance in what that means and whether the Court has power to provide that type of relief.
It would be hard for the husband to say that he did not know what was happening in the litigation at that time because, albeit late, he filed an amended application on 3 August 2016. Apart from anything else, and relevant to the rights of the Commissioner to participate whether granted leave or not under s92 of the Act, the Commissioner filed a “Notice of Intervention by Person Entitled to Intervene” pursuant to Rule 6.06 of the Family Law Rules on 25 July 2016. He was asserting that as a creditor, he did not need leave because of s 79(10) of the Act. Thus, there is an issue whether a creditor has standing absent s 92.
For his part, and within the gaze of the Commissioner, but also presumably with his own knowledge of the approach being taken by the Commissioner, the husband joined issue with the wife in respect of property matters because, relevantly, he sought an order:
[8]That there be a just and equitable property adjustment pursuant to Section 79 of the Family Law Act between the Applicant and the Respondent.
Although pleaded imprecisely, he then asked to be excused from particularising his proposed relief “pending the Applicant and the Respondent’s compliance with their respective duty of disclosure, including ascertaining the outcome of the Applicant’s objection to the Notices of Assessment issued by the Australian Taxation Office.”
In a financial statement filed by the husband in the Federal Circuit Court on 3 August 2016 with his application for orders, he set out his assets which he totalled at “$E 236,620”. He set out superannuation of about $682,000. Under the heading of “liabilities” he showed a taxation assessment to which he noted objection had been taken to the Commissioner’s assessment of $16,537,582. He then set out details of disposed property.
Also attached to the financial statement was a copy of a letter written by a firm of solicitors addressed by email to both husband and wife concerning the sale of the home at F Street, Suburb C. The letter shows that at settlement, $3,247,109.20 was due to them.
In the course of a later document of the wife, it became apparent that the husband had lodged a caveat over the wife’s residential property at G Street of which she was the sole registered proprietor. He apparently alleged his caveatable interest arose by virtue of a trust.
The Commissioner’s application at that time for relief may be described as seeking the sale of the wife’s real property and that the proceeds be applied, first to pay expenses of the sale, second, to discharge the mortgage, and thirdly, for the Commissioner to be paid the assessed tax and finally, any surplus be distributed as the Court deemed fit or as agreed between the parties. Thus, it will be seen that whether the Commissioner wanted a property settlement or not, he was certainly pursuing a debt and apparently going to allege that the wife’s property should satisfy that debt despite it only the being in the husband’s name.
On 8 August 2016, Judge Riethmuller granted the Commissioner leave to intervene on his application. The order notes that the husband and wife consented to that order. The proceedings were at that point transferred to this Court. Out of what would have apparently been an abundance of caution, his Honour noted that his orders of 18 May 2016 continued “in full force and effect”.
The first hearing in this Court was 5 October 2016 when the case came before a registrar. By consent of all parties, the injunctions in paragraph [12] of the 18 May 2016 order was varied to permit disposals in the ordinary course of business.
By 1 May 2017 both parenting and property issues were extant and Macmillan J listed the case for a 4 day trial before Cleary J in November 2017.
No doubt in anticipation of that final hearing, the wife filed an amended response on 27 October 2017. This document could only be described as clumsily and unflatteringly drawn. It had asterisks indicating that amounts were to be inserted but its intent was clear. It sought orders that:
·The husband pay the wife (unspecified) money;
·The value (unspecified) of the wife’s G Street property be seen as future spousal maintenance relying on s 77A of the Act;
·Pursuant to s 79 of the Act, the wife receive the whole of the G Street property and funds in the major superannuation fund and the husband receive an unspecified amount identified by an asterisk; and
·The husband withdraw his caveat over G Street.
The wife repeated the previous 2016 order seeking the husband “be responsible for” the outstanding tax.
Significantly, and relevantly to the present dispute, before Cleary J on 20 November 2017, and at a time when all parties were represented except the husband who did not attend at all, an order was made that:
[1]Any and all outstanding applications in relation to parenting are withdrawn and dismissed.
[3]The proceedings in relation to property are adjourned to a date to be fixed.
The order of Cleary J was amended a month later under rule 17.02 to add a timetable for the filing of material but her Honour thought it sufficiently important to add a notation to the new order, that the husband had filed a notice of discontinuance of his application. The notation went on to say that the Commissioner wished to pursue “an argument” in relation to power and jurisdiction “to proceed against the property of the parties in circumstances where neither party is presently asking the Court to make orders”. (my emphasis)
At first blush, that notation seemed appropriate but there was still extant the wife’s application for a superannuation splitting order. Despite the indication of what the wife wants to do, that application remains extant.
An affidavit of the Commissioner’s witness explains what seems to have occurred before Cleary J saying that on 15 November 2017 the Commissioner was served with a case summary by the wife (which does not seem to have been filed with the Court) that said the husband and wife “have resolved various issues in dispute between them” after they “entered into negotiations with a view to resolving the issues in dispute”. Uncontroversially, the affidavit asserts that the Commissioner was not privy to those negotiations.
The wife’s case summary sought discharge of all prior orders and the dismissal of all pending applications and asserted that “[s]ince the Court will not be asked to make orders under s79 of the Family Law Act as between the [husband and the wife], there is no basis upon which the [intervener] can seek orders for the alteration of property interests”.
After the orders were made, the Commissioner wrote to the Wife requesting details of the arrangement between husband and wife and, on 4 December 2017, received a response that no agreement had been entered into “in relation to the division of assets of the marriage or for the provision of spousal maintenance”. However, a binding child support agreement had been executed but the wife said it did not deal with the division of the assets of the marriage or spousal maintenance.
The Commissioner took the view that the agreement breached the injunction referred to earlier and sought an undertaking that no steps would be taken to give effect to those parts of the agreement until the proceeding was finalised. The wife, but not the husband, gave that undertaking. A further agreement on 12 February 2018 was prepared to make clear that the agreement was subject to the injunction being discharged.
A cursory reading of the agreement which is now in evidence shows [paragraph 10(a)] that the amount to be paid in child support was what the wife sought for herself in maintenance. The document is a child maintenance trust so to that extent, the property with which it deals must ultimately belong to the beneficiaries and earn sufficient income to meet the child maintenance obligations.
When the matter first came before me, the principal issues as canvassed were:
·Whether the Court had jurisdiction and power to hear the intervener’s application where the husband had discontinued proceedings and the wife sought a dismissal of her application under s 79 of the Act;
·Whether the intervener’s pursuit of his application amounted to an abuse of the Court’s process; and
·Whether the Court had, and should exercise, accrued jurisdiction in respect of the intervener’s alternate claims.
On 7 June 2018, Mr Sest QC appeared with Mr Mazloum for the Commissioner and Mr Juebner of counsel appeared for the wife. Obviously, having filed a notice of discontinuance, the husband did not appear. In colloquial terms, the present dispute was said to be a test case about what happens where there is an intervener but the parties, who began the litigation, cease to fight.

Jurisdiction and power

The Commissioner submits the Court retains jurisdiction and power to hear and determine his application but if that is not correct, as an alternative, it has accrued jurisdiction to determine the controversy between the parties which includes the Commissioner.
The Commissioner submits the nature of the proceedings continues to be a ‘matrimonial cause’ as defined in section 4 (ca)(i) or (f) of the Act regardless of what the husband and wife have done.
By her response on 18 May 2016, the wife instituted a ‘matrimonial cause’ within the meaning of sections 31(1), 39(1) and 4 of the Act. Having instituted the proceeding and with the final hearing looming, she pleaded that the relief she was seeking was as I have set out. That was drawn from her incomplete response filed 27 October 2017. There is no dispute about those matters. That is, these were, and at least at present, remain, proceedings between the parties to the marriage with respect to the property of the parties to the marriage or either of them, being proceedings…arising out of the martial relationship (see the definition of “matrimonial cause”: s4(1)(ca)(i) of the Act)
The wife submits that where the parties to the marriage no longer seek an alteration of their property interests, and the risk of not being paid which gave the creditor a right to “participate” no longer exists because neither husband nor wife pursue an exercise of the Court’s power, the Commissioner should not be allowed to press for section 79 orders nor for that matter, orders under section 80.
The wife submits that the Commissioner’s application filed 25 July 2016 (see paragraph [10] above) “does not seek orders under s 79 or 80 independent of the orders that were previously sought by the Husband and the Wife. It merely seeks that the taxation liabilities be taken into account as part of the final property settlement ‘prior to any distribution to the husband or the wife’, so as not to prejudice the [intervener].”
The Commissioner submits the wife’s analysis ignores paragraph 2 of his proposed orders because he sought that by way of final property settlement or order as between the parties [ie not just the husband and wife] and prior to the distribution of such property to the husband and the wife, the Court take into account the husband’s taxation liabilities; and “First make provision for the payment of taxation liabilities of the Husband [to the Commissioner] prior to any distribution to the husband and wife” (emphasis retained from Commissioner’s written submissions in reply).

In my view the wording of the relief sought does not matter because in any event, the Commissioner filed an amended application in a case on 1 June 2018. Once a party, and leaving aside the question of what the wife wants to do, as distinct from what she has done, he has all of the procedural rights to file documents in a live proceeding. The Commissioner seeks:
·By way of final property settlement or order as between the parties and prior to any distribution of such property to the Husband and the Wife or either of them this Honourable Court:
·Take into account the taxation liabilities of the Husband…; and
·First make provision for the payment of the taxation liabilities of the Husband to the Commissioner of Taxation prior to any distribution to the Husband and Wife.
·By way of final property settlement or order as between the parties, the balance of the proceeds of sale of the G Street property…be paid to the Commissioner of Taxation in respect of the taxation liabilities of the Husband.
·By way of final property settlement or orders as between the parties, the B Ltd shares be sold and the proceeds of such sale be applied as follows:
(i)First, in discharge of the costs reasonably incurred in connection with the sale, and in payment of any taxes (including capital gains tax) in respect of the sale; and
(ii)Secondly, the balance be paid to the Commissioner of Taxation in respect of the taxation liabilities of the Husband.
I reject the wife’s submission that the court can only contemplate or deal with the original application because it was the basis of the leave of the court to intervene under section 92(1) of the Act. The wife’s submission seems to distinguish between the court ordering that leave on a contested basis and here, where the parties all consented to the order. In my view, the distinction makes no difference because the power of the court was exercised whether consensually or not.
Counsel for the wife submitted that as the Commissioner had initially sought to be paid “as part of the orders made as between the husband and the wife” but now sought to rely on the words “or order” which was an expansion of the basis for the joinder he ought not be allowed to do so. In my view, that too is a distinction without a difference. Once a party to the proceedings, the Commissioner has all of the rights and liabilities of any other litigant and is entitled to alter his position as to proposed relief at times when discovery discloses something new or indeed other evidence emerges. That is particularly so in a jurisdiction where under s 79(2), the court is not permitted to make an order which is not just and equitable. Thus, the court is not constrained by the parameters of the inter partes dispute and so long as natural justice is provided to enable those parties to consider and object to any order contemplated by the court, it is at large. Thus, as cases progress, parties must be entitled to alter their stances.
The wife’s submission focuses on the basis for the intervention as a creditor. It is submitted that now that neither husband nor wife seeks orders under s 79, the Commissioner no longer satisfies the test under section 79(10)(a). That is, the entitlement to intervene arose because of the potential for prejudice to the Commissioner in that if ignored, the tax might not be paid. However, it is submitted neither party proposes an “order” that would prejudice that chance of recovery. Indeed, the Commissioner has rights outside of this Court to issue proceedings including to argue that the wife is holding property which belongs to the husband or in which he has an interest against which an attachment could be made.
The nub of the wife’s last mentioned submission is that the Act does not provide a creditor with an independent basis to assert rights to compel the parties to alter their interests in matrimonial assets under the Act.
The Commissioner’s submission is that notwithstanding that the order for intervention made by Judge Riethmuller, he did not need leave under s 92(1) of the Act. Rather, he says he had an entitlement to intervene pursuant to s 79(10) of the Act as of right, and did so by his “Notice of Intervention by Person Entitled to Intervene” pursuant to Rule 6.06 and filed 25 July 2016.
Section 79(10)(a) provides that “the following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to the marriage: …a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made.”
I accept the Commissioner’s submission that regardless of what pathway he followed, the fact that he sought leave to intervene when it was unnecessary to do so, does not negate the correct operation of the Act and the Rules which provides him an entitlement to intervene.
The wife then submits that the Commissioner cannot make an application under s 79 independent of any contest as between the husband and the wife.
An intervener’s rights are found in section 92(3) which states:
Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.
The wife relied on what Gibbs J said in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337. His Honour said of s 92(3) (at 356-7):
It is obvious that this subsection must be read down; it cannot mean that any intervener, whatever his, her or its situation, is to have all the rights and liabilities of a party to a marriage. For example, if the Registrar-General were to intervene in proceedings in the Family Court (as he did in In the Marriage of Harrison (1978) 18 ALR 689; 4 Fam LR 18) he would not thereby assume the liabilities of a party to the marriage, such as the liability to maintain the wife. Section 92(3) enables the court to make an order either in favour of or against an intervener if such order is one that can properly be made as a matter of substantive law; the sub-section removes a possible procedural obstacle, but does not alter substantive rights and duties. It does not give the Family Court power to impose new duties upon, or to annul the rights of, third parties who are interveners. If the court had no power, apart from s 92(3), to order Ascot Investments to register the transfers, that sub-section did not confer that power on it.
Counsel for the wife submitted that this theme was picked up by Ellis and Finn JJ in Deputy Commissioner of Taxation v Kliman & Another [2002] FamCA 629, where, after referring to the passage above, their Honours said, at [21]:
It is thus clear that while s 92(3) operates to deem an intervener to be a party to the proceedings with all the rights, duties and liabilities of a party, the subsection does not confer on the intervener the right to seek any substantive relief which is not otherwise available to the intervener under some other provision of the Act. We would add that we do not understand any party to have asserted a contrary position before us.
On behalf of the Commissioner, Mr Sest QC submitted that that part of the judgment in Ascot Investments cannot be read in isolation. I agree.
In Ascot Investments, the Full Court made orders in favour of the wife to compel the husband and the directors of a third party company to register a transfer of shares in the company from the husband to the wife. Mrs Harper’s entitlement to lump sum maintenance arose from an order of the Supreme Court of Victoria which was secured by a transfer to her of the husband’s shares in the company. Although the husband was a shareholder and director of the company, there were three adult children of the Harper marriage with shareholdings and his shareholding did not give him control of the company. Importantly, the company’s memorandum and articles gave the directors absolute discretion to refuse to register the shares.
The High Court considered the position of the company. It had intervened in the proceedings and appealed against the order of the Full Court. The company’s appeal was successful and the High Court (Barwick CJ, Gibbs, Stephen, Mason, Aickin and Wilson JJ) held that a third party cannot be ordered, either directly or indirectly to do what they were not legally bound to do.
The Commissioner’s submission in relation to Ascot Investments is that it is authority for the proposition that a third party cannot be burdened with an obligation or a liability which it otherwise does not have. (my emphasis) That, he submits, is distinguishable from what occurred in the present case. The Commissioner submits that the authority of Ascot Investments supports his position because it recognises third party rights which cannot be subordinated to the interests of the parties to a marriage. Gibbs J said:
The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform. The general words of ss 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words. It can safely be assumed that the Parliament intended that the powers of the Family Court should be wide enough to prevent either of the parties to a marriage from evading his or her obligations to the other party, but it does not follow that the Parliament intended that the legitimate interests of third parties should be subordinated to the interests of a party to a marriage, or that the Family Court should be able to make orders that would operate to the detriment of third parties. There is nothing in the words of the sections that suggests that the Family Court is intended to have power to defeat or prejudice the rights, or nullify the powers, of third parties, or to require them to perform duties which they were not previously liable to perform. It is one thing to order a party to a marriage to do whatever is within his power to comply with an order of the court, even if what he does may have some effect on the position of third parties, but it is quite another to order third parties to do what they are not legally bound to do. If the sections had been intended to prejudice the interests of third parties in this way, it would have been necessary to consider their constitutional validity.
Of course, Ascot Investments was decided prior to the introduction of both s 79(10) and Part VIIIAA of the Act both of which were designed to protect third parties whilst the latter was designed to enable the entitlements of parties to a property proceeding to have their orders implemented. Both must be seen to have been introduced as a result of difficulties such as those encountered in Ascot Investments.
Third party rights have also been contemplated in a number of cases in this Court. For example, In the Marriage of Biltoft (1995) FLC 92-614 at 82, 128 Nicholson CJ, Ellis and Buckley JJ, said:
There is no requirement that the rights of an unsecured creditor or a claim by a third party must be considered and dealt with prior to the court making an order under s 79, nor is there a rule of priority as between a creditor claimant and a spouse...
There is an obligation on both parties to disclose any significant creditors or any significant claim against either of them by a third party. If, as a result of the order of the court in the property [proceedings], the ability of a creditor or claimant to recover his or her debt or claim is likely to be affected, notice of the Family Court proceedings must [be] given to that creditor or claimant. He/she may then intervene in the Family Court proceedings and either seek a stay [of] those proceedings or some appropriate order which recognises his/her rights.
So too in Puddy & Grossvard [2010] FamCAFC 54, the Full Court of the Family Court considered whether the Court had jurisdiction to make orders in favour of a third party liquidator after the introduction of Pt VIIIAA ss 79(10) and 75(2)(ha) of the Act. In that judgment, Coleman J (with whom Warnick and Boland JJ agreed) said:
[54]Not uncommonly, ordering the extinguishment of a liability, in preference to ordering one party to indemnify the other party with respect to it, will be necessary to secure a just and equitable determination of parties’ property rights. As was submitted on behalf of the liquidator, in the passage earlier referred to, fundamental to a determination of the “property” of the parties to the marriage in the circumstances of this case was a determination of the indebtedness of the parties or either of them to the liquidator of [K, to whom the husband was indebted]. It is logically difficult to suggest why, having made that determination the trial judge could not have made the order which she did for payment of such indebtedness. Whether that is sufficient to enliven jurisdiction to entertain disputed claims by third parties is another question.
[55]Nothing to which the court has been referred persuades me that there is necessarily any prohibition upon the court ordering parties to a marriage to make payments to a third party creditor out of their property, whether that be in reliance upon the provisions of the Act and/or the court’s accrued jurisdiction at the time Biltoft was decided, or subsequent to the enactment of s 90AE in 2003, or the amendments to s 79 which were enacted in 2005. The issue remains whether the jurisdiction to make orders with respect to “debts” in reliance upon ss 90AE and/or 79 extends to determining the existence and quantum of debts asserted by a creditor which are disputed by the alleged debtor or debtors in circumstances where the issue has not been resolved by the judgment of a court of competent jurisdiction.
[56]The terms of s 90AE appear sufficiently broad to encompass determining the existence of disputed debts. Read in their entirety however, the terms of the section appear to contemplate that the relationship of debtor and creditor is not controversial, and that “re-arranging” established liabilities is the focus of the section. Some support for such a narrow interpretation can be gained from the judgment of the High Court in Ascot Investments v Harper. Although, for reasons which are later suggested, it is not necessary to express a concluded view about the matter, such a limited interpretation of s 90AE would not be likely to defeat the interests of either the party/parties asserting a debt, or the party/parties denying such claims. The disputed indebtedness of the party/parties to a marriage to a third party will almost always be relevant to determining the property of the parties to the marriage and, if controversial, thus be able to be determined by the court in the exercise of its accrued jurisdiction, without needing to rely upon s 90AE. Absent specific legislative provision enabling the rights between creditors and debtors to be varied in the way in which s 90AE provides, the accrued jurisdiction of the court may be insufficient to enable outcomes of the kind articulated in the section to be achieved. Conversely, s 90AE alone may be insufficient to enable the court to determine disputed debts. However, these are matters best left for determination in an appropriate case.
[57]The 2005 amendments to the Family Law Act 1975 (Cth) (the Act) introduced s 79(10) relevantly provided:
The following are entitled to become a party to proceedings in which an application is made for an order under this section:
a.a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;
b.any other person whose interests would be affected by the making of the order.
[58] It would be surprising, and illogical, if, notwithstanding the rights conferred upon creditors and other interested third parties by those provisions, the court could not make orders in their favour with respect to such debts or interests. Some support for that proposition can be gained from the decision of the court in Worsnop v Worsnop. Whether the court would make such orders in a particular case is another question. Accepting the submission now made on behalf of the husband would at least limit the practical utility of intervention by a creditor or interested person. These matters however would not of themselves necessarily enliven the court’s jurisdiction to entertain disputed third party claims asserting a debt in reliance upon s 79 of the Act.
[59]The potential availability of jurisdiction to entertain the liquidator’s claim appears to be further supported by the terms of s 75(2)(ha) which was enacted in 2005, and requires courts exercising powers under s 79 to consider:
… the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
[60]It would be surprising if, notwithstanding that provision, the court could not make an order as between the parties to the marriage which avoided a creditor’s entitlement to recover its debt being defeated, if so doing was considered just and equitable. Sections 79(10)(a) and 75(2)(ha) both appear to refer to a debt which is not controversial. Section 79(10)(b) appears to refer to interests which are not controversial.
[61]However, I am not convinced that the combination of these sections provides a jurisdictional basis for entertaining the liquidator’s claim. These provisions enable a creditor to intervene in proceedings in the circumstances referred to in s 79(10)(a), and oblige the court in such circumstances to have regard to the matter identified in s 75(2)(ha). There is a material distinction between being a “creditor” and asserting an indebtedness which is disputed. A jurisdictional basis other than s 79 thus needs to be enlivened in order for the court to entertain disputed debt claims.
[62]There has never been any real doubt that the court could order one party to a marriage to indemnify the other party to the marriage with respect to a liability to a third party. Subsequent to the 2003 amendments, and subject to compliance with the relevant provisions of the Act, the court may be able to order that a creditor be limited to its rights against one party to the marriage, notwithstanding that both parties to the marriage were indebted to it. As has been earlier noted it is less than clear that s 90AE provides an independent jurisdictional basis for the court to entertain a claim such as that of the liquidator in this case.
[63]To the extent that, at least inferentially, the trial judge relied upon the court’s accrued jurisdiction as the basis upon which the liquidator’s claim could be entertained, nothing to which this court has been referred persuades me that so doing was erroneous. As earlier noted, the “first step” in determining the property settlement proceedings before her required the trial judge to determine the property of the parties to the marriage. So doing involved identifying and quantifying the parties’ assets and liabilities. It could not be successfully asserted that the liquidator’s claim lacked the requisite justiciable connection with the proceedings before the trial judge. Indeed, so far as the determination of the property of the parties was concerned, that was the most significant issue, and was not severable or disparate from the property settlement proceedings between the husband and wife.
[64] I am persuaded that the trial judge had jurisdiction to determine the liquidator’s claim in the exercise of accrued jurisdiction. Given the matters to which reference has been made with respect to the course the trial took before her, the trial judge’s reasons were adequate. There was never any suggestion before the trial judge, on behalf of the husband, that she lacked the jurisdiction to entertain the liquidator’s claim. To provide reasons for not accepting arguments which were never put is not a requirement recognised by the authorities relating to the adequacy of reasons for judicial decisions.
[65]I am thus not persuaded by anything to which we have been referred that the trial judge lacked the jurisdiction to hear and determine the liquidator’s claim, or that her Honour failed to give adequate reasons for concluding that she had such jurisdiction. In reliance upon the court’s accrued jurisdiction, her Honour was able to entertain the liquidator’s claim on the basis she indicated in the passages of her judgment which have earlier been chronicled.

The Commissioner relies on Puddy (supra) in support of his proposition that he has an independent right to seek orders under s 79, by virtue of his position under s 79(10) and s 75(2)(ha). There is some doubt as to whether the debt due to the Commissioner is a settled sum but in my view, that does not affect the fact that there is an acknowledged debt. Both husband and wife set out clearly in their respective court documents in 2016 that there was an unpaid liability to the Commissioner even if it was the subject of a dispute as to quantum. Thus, in my view, the debt to the Commissioner is either a sum certain or alternatively, if any party so desired, any objection could be determined by the Court. S 80(1)(f) also supports that proposition because it provides that the court in exercising its powers under Part VIII of the Act and as the Commissioner submitted it “could not be clearer as a provision designed to provide substantive relief to the Commissioner, as a ‘public authority’, in the form of an order for payment of the tax debt.”
The Commissioner’s position is that once he became a party, he was entitled to argue and have a position about the making of orders under s 79. It was submitted that, as a party to the proceedings, he was entitled to apply for any order which the Court is empowered to make in the proceedings. That submission leads to a consideration of the analysis of Brennan J in Dougherty v Dougherty (1987) 163 CLR 278 at 296 relating to the entitlement of a person who has been deemed to be a party under s 92(3).
Dougherty was a case about a claim by an adult child of the parties to a marriage who felt that he had an unfulfilled promise of an assignment of some of the family’s property. The son (Michael) maintained that by agreement with his father, he had worked on the family’s property rather than obtaining a trade. In proceedings between the husband and wife (or Michael’s parents) the husband objected to his son’s application arguing there was no jurisdiction to entertain it. Brennan J observed amongst other things, the following:
There are three bases on which Michael's application might be said to have effectively invoked the Court's power to make an order under s.79(1) in his favour. The first basis treats Michael's application as a proceeding different from, and independent of, the proceeding between his parents and identifies Michael's proceeding as a matrimonial cause answering the definition in par.(cg). The second basis treats Michael's application as a proceeding different from, but related to, the proceeding between his parents and identifies Michael's proceeding as a matrimonial cause answering the definition in par.(f). The third basis treats Michael's application as a mere aspect of the proceeding already current between the husband and wife, the application being no more than an invitation to the Court to make in his favour an order in exercise of the power conferred on the Court in the existing proceeding. The existing proceeding between husband and wife admittedly answers the definition of matrimonial cause in par.(ca).
The paragraphs in the definition of "matrimonial cause" in s.4(1) prescribe the categories of proceedings which the Court is empowered to entertain, but they do not confer by themselves a right to make a claim. The definition of "matrimonial cause" in s.4(1) defines the Court's jurisdiction and is thus part of the definition of the scope of rights, including the right to apply for an order under s.79(1), conferred in general terms by other provisions of the Act.
Section 79 does not precisely prescribe the criteria governing the exercise of the power thereby conferred. Sub-section (1) empowers the Court to make "such order as it thinks fit", and sub-s.(2) directs the Court not to make an order "unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Although sub-s.(4) prescribes matters which the Court must take into account, it is not exhaustive. The generality of the terms in which s.79 is drawn has led to a submission that an order might be made under s.79 to satisfy a claim which does not arise out of the marital relationship, and that a claim by an adult independent child of a marriage for an interest in the property of his parents does not arise out of the marital relationship. Thus it is said that, in the present case, Michael's claim is founded on some contractual or equitable obligation and that an obligation of that kind might be owed to a person irrespective of his being a child of the marriage. If it be right to say that the proceeding, in so far as it might result in an order in Michael's favour, does not arise out of the marital relationship of his parents, the objection would be well founded. Jurisdiction to entertain a proceeding between parties to a marriage with respect to their property cannot be conferred on a court by a law enacted under the marriage power unless the proceeding, or the claim made in the proceeding, arises out of the marital relationship: Russell v. Russell [1976] HCA 23; (1976) 134 CLR 495, at pp 510-511,527-528,542, 552-553; Reg. v. Lambert; Ex parte Plummer [1980] HCA 52; (1980) 146 CLR 447, at pp 456-457; Fisher v. Fisher [1986] HCA 61; (1986) 60 ALJR 731, at pp 733,736,737-738,740; [1986] HCA 61; 67 ALR 513, at pp 518,523,526, 530. But s.79 limits the persons who might be interested in an application to the members of a family: the section confers power to make orders in matrimonial causes for the settlement or transfer of property belonging to the parties to a marriage or either of them in favour of those parties or their children, and it does not purport to confer jurisdiction to make an order in satisfaction of a claim or obligation arising outside the section.
Parliament has provided for applications to be made by persons intervening in proceedings under s.92.Section 92(3) deems a person who intervenes in proceedings to be a party to the proceedings, and such a person is therefore entitled to apply in those proceedings for any order which the Court is empowered to make in those proceedings. In Ascot Investments Pty. Ltd. v. Harper [1981] HCA 1[1981] HCA 1; ; (1981) 148 CLR 337, Gibbs J. said (at p 357):
" Section 92(3) enables the court to make an order either in favour of or against an intervener if such order is one that can properly be made as a matter of substantive law; the sub-section removes a possible procedural obstacle, but does not alter substantive rights and duties."
As Michael was given leave to intervene, he is entitled to apply in the proceeding between his parents for any order which the Court might make in that proceeding under s.79(1).
Those powerful views now have to take into account the subsequent amendments relating to the rights of creditors of the husband and wife. If there is any restriction on an intervener, it can only be limited by the words of s.79. If the intervener has rights as described by Brennan J, the capacity to seek an alteration of property interests between the husband and wife must also arise because of the right of a creditor under s 79(10). That section makes clear that a creditor who may not be able to recover a debt has a right to become a party if he or she may not be able to recover a debt if an order was made between the husband and wife.
In my view, the Commissioner has the right to seek an alteration of the property interests of the husband and the wife if it can be shown that he may not be able to recover the debt otherwise. That does not address the issue of whether as a result of the husband’s discontinuance and the wife’s position that the final orders sought by her should be dismissed, the Court loses its jurisdiction and/or power to make orders.
In addition to Dougherty, the Commissioner relies on Deputy Commissioner of Taxation v Kliman & Another (supra) to establish that the proceedings do not lose their character as a ‘matrimonial cause’ because of his intervention. He submits that the Court continues to exercise jurisdiction under a ‘matrimonial cause’ when it hears and determines the application of an intervener to proceedings of a ‘matrimonial cause’. He submits that the notice of discontinuance does not disentitle him from pursuing his application.
In Kliman, the intervener in that case, the Commissioner, successfully appealed the orders of the trial judge upholding a claim by the husband that the Court had no jurisdiction to grant injunctive orders sought to restrain the husband and the wife from disposing of property pending the determination of the property settlement. The Court, Ellis, Finn and Coleman JJ held that the Court did have jurisdiction to grant the order sought. The Commissioner points in particular to paragraph 118 of Coleman J’s judgment where his Honour said:
[118]. To the extent that it would seem to be asserted by the husband and the wife….that unless the Court is exercising jurisdiction in favour of the husband or the wife, there cannot be a matrimonial cause, or that no paragraph of the definition of “matrimonial cause” confers jurisdiction to grant the DCT’s application, I consider that such an assertion cannot be made in light of the High Court’s approach in Dougherty to the issue of the intervention of a child of the relevant marriage in the property settlement proceedings between the child’s parents. Moreover, I consider that the submissions made on behalf of the husband and the wife overlook the fact that it is not the definition of “matrimonial cause” which invests he Court with power to make particular orders (for example, the transfer of property under s 79 or ancillary orders under s 80 or injunctions under s 114). The definition or concept of “matrimonial cause” does no more than confer jurisdiction on the Court to entertain particular types of proceedings between particular persons (see ss 31 and 39) (in which other persons may intervene pursuant to s 92(3), as recognised by the High Court in Dougherty).
The wife submits that Kliman is distinguishable because it dealt with interlocutory injunctions whilst there were still final applications by those parties on foot for the alterations of property interests. It is submitted that in Kliman, there remained a risk that the Commissioner would be prejudiced by orders being made under s 79. It is submitted the risk does not exist here because neither husband nor wife seeks any alteration of property interests. Having regard to the views I expressed earlier about the Commissioner’s right being a stand-alone right as a party only possibly restricted by the power in s 79, I do not accept that a withdrawal by either or indeed both parties makes any difference. Subject obviously to the Commissioner indicating that he seeking to alter the parties’ property and that those who had withdrawn or discontinued might want to be then heard, the court can proceed.
If I am wrong about those views, it is necessary in any event to turn to the Commissioner’s next argument.
The Commissioner submitted that if he was wrong about there being a matrimonial cause under sub-paragraph (ca)(i), that a ‘matrimonial cause’ is to be found in paragraph (f), that is “other proceedings…in relation to concurrent, pending or completed proceedings of a kind referred to in sub-paragraph…(ca)(i)”. He submitted that if the Court granted the wife’s application for dismissal and rejected his submissions about (ca)(i); the result would be that the proceedings were ‘completed’. In those circumstances, he would seek to rely on paragraph (f).
In Martin & Martin [2015] FamCA 260 I granted the application of a third party creditor to enforce an order against the husband and the wife. In that case, the husband and the wife had previously had proceedings that were identified as proceedings under (ca)(i) of the ‘matrimonial cause’ definition. The husband and wife sought to end those proceedings through consent orders but Coleman J refused to make the orders. The wife then became bankrupt and her trustee in bankruptcy did not seek to continue with the proceedings and the husband withdrew his application for consent orders. There I found that notwithstanding the absence of an extant s 79 application inter partes for the alteration of their interests in property, the Court retained jurisdiction, under paragraph (f), to hear and determine the application of the creditor to enforce the order for payment earlier made by this Court in their favour.
The wife submits Martin is distinguishable on a number of grounds including the following:
·The creditor was a secured creditor of the wife who had charged the family home;
·At the time of the hearing, the wife was bankrupt and her trustee took a neutral position;
·Orders had been made in proceedings for the sale of the family home and the discharge of the debt to the creditor from the proceeds of sale;
·The husband had given an undertaking to the Court to pay any shortfall in the debt to ensure the creditor was paid;
·There was evidence that the husband and wife were deliberately seeking to avoid the consequences of the previous orders and undertaking by entering into consent orders which would result in the creditor not being paid.
It was submitted also that in Martin, the creditor sought enforcement of orders that had already been made and the proceedings were not some fresh consideration of whether the parties’ property interests should be adjusted in their favour. I remain unconvinced that makes any difference.
The Commissioner referred to Deputy Federal Commissioner of Taxation v Spanjich (1988) 93 FLR 98; FLC 91-974 where the trial judge found, and the Full Court did not disturb the finding, that the Court had jurisdiction under paragraph (f) of the ‘matrimonial cause’ definition to hear the s 79A brought by the Commissioner to set aside orders entered into by consent by the husband and the wife. The wife however submits that Spanjich is distinguishable because that dealt with a s79A application where the Commissioner’s interests had been prejudiced by the s 79 orders consented to by the husband and the wife.
All of these decisions focus on the distinction between jurisdiction and power. The first step is to see whether the court has jurisdiction and the reference to the matrimonial cause provisions of the Act convince me that it has. The power to make the orders sought or to grant the relief proposed lies in how far the court’s power is extended or limited by s 79. Provided the court is altering the interests of the husband and wife in circumstances arising out of their marriage relationship, the court can make an order in favour of a creditor (once a party) because that creditor has all of the rights of a party, regardless of whether the parties to the marriage have chosen not to proceed, or, as in Spanjich, to ignore the rights of the creditor.
The wife then submits that even if the Court has jurisdiction and power to grant the relief sought by the Commissioner, the Court, in its inherent jurisdiction, ought to stay the Commissioner’s application as an abuse of process.
In Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77, the High Court of Australia considered whether disciplinary proceedings in a tribunal should be stayed by a Supreme Court on the grounds of abuse of process. Mason CJ, Deane and Dawson JJ in discussing a superior court’s power said that grounds extend to all categories of cases in which a court is obliged to administer justice with fairness and impartiality to ensure that the procedures did not do the opposite. Courts have inherent power to prevent misuse of procedures which would be manifestly unfair to a party to the litigation before it or would “otherwise bring the administration of justice into disrepute among right-thinking people”.
The wife submitted that even allowing for the Commissioner’s intervention in 2016, there was a “dramatic” change in the “landscape of the litigation” in November 2017 and the Commissioner’s actions when told of the parties’ desire not to proceed with their respective applications was an abuse of process. That is, in 2016, there was a justifiable reason for the Commissioner to be involved because of the risk associated with not being paid as a creditor. The entitlement to protect himself against not getting paid as was contemplated as the very basis for intervening had “fallen away”. I reject that.
Part of the wife’s case, not just in relation to her argument about abuse of process, but throughout her submissions is the assertion that the Commissioner is not prejudiced by the ending of these proceedings because the entitlements as a creditor would remain. That is, the Commissioner has the same rights as prior to his intervention. The logic of that submission is thought-provoking. It means that parties to a marriage who did not pay a creditor could (as in Martin) orchestrate a situation in which significant delays occurred and then not only withdraw the proceedings to indicate that no orders for debt recovery could follow but also claim an abuse of process. Support for that also lies in the fact that the parties consented to the Commissioner’s participation and indeed acknowledged that there was an unresolved taxation claim.
The Commissioner submits that if he is unable to pursue his application, he will suffer prejudice because the wife will retain ownership of the real property and the shares and those assets will be unavailable for his pursuit. He also submits that his alternative recovery rights in the civil courts are not relevant as he has an entitlement to substantive relief in the proceedings. I accept that argument and accept that the Commissioner’s actions do not amount to an abuse of process.
There is an argument here that the Commissioner seeks relief in this jurisdiction because of the principle of joint spousal liability. That would depend entirely on the evidence but it also gives the Commissioner an opportunity to argue that justice and equity should operate to compel payment of the husband’s tax debt because, he asserts, the wife has enjoyed a luxurious lifestyle largely through the husband’s income. In other words, the wife should not continue to have the benefit of the husband’s failure to pay tax. In my view, this argument raises issues that I do not need to determine today.
The Commissioner alternatively argues that he has a claim that should be determined by the Court’s accrued jurisdiction. Section 33 of the Act sets out the Court’s jurisdiction in associated matters and says:
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal in which the jurisdiction of the Court is involved or that arise in proceedings (including proceedings upon an appeal) before the Court.
There must therefore first be original jurisdiction. The withdrawal of the husband and the wife does not mean that the nature and character of the dispute has changed completely. In this case, there was always an inter partes dispute about the taxation creditor where the debt arose out of the wealth creation of the marriage of the husband and the wife.
Barwick CJ in Phillip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457, at 475, said:
It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call 'accrued' jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter.

Mr Sest referred to Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 where the Full Court of the Federal Court (Bowen CJ, Morling and Beaumont JJ) said, at 219, that:
The Court’s jurisdiction is to determine each of the claims which together constitute a federal “matter”. That jurisdiction cannot be limited, as the argument of the second and third respondents would suggest, to the determination of only those claims, federal or attached, which are successfully maintained. On the contrary, the jurisdiction is to entertain, and determine, all claims constituting a “matter”, whatever their ultimate fate. Any other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim.” (references omitted.)
Mr Juebner for the wife submitted that that Burgundy Royale is distinguishable on two grounds. The first is that the applicant in that case was able to pursue both the claims under the Trade Practices Act 1974 (Cth) and the common law against the respondent as of right. Whereas the wife asserts that here, the Commissioner merely sought (at least prior to June 2018) to participate in the proceedings as between the husband and the wife. I have already rejected that submission as the Commissioner’s intervention was more than just participation to protect his rights as a creditor. It was always understood that there was a debt and the wife’s application to the Court was that the husband should pay it and protect her from it by an indemnity.
Mr Juebner submitted that in Burgundy Royale, there was a complete overlay of facts in respect of claims by the applicant under the Trade Practices Act 1974 (Cth) and the common law claims. He submitted here, the intervener’s claims under s 172 of the Property Law Act to void transactions entered into by the husband required completely different considerations to those required for an exercise of judicial power under s 79(2). He agrees there is some factual overlap between the two, and conceded there was more factual overlap in relation to the Commissioner’s claims under trust law; but he submitted that the factual overlap was “not such that the Court ought to exercise the jurisdiction.”
In In the Marriage of Prince (1984) 54 ALR 467, the Court examined whether the Family Court should assume accrued jurisdiction and said it was a matter of discretion depending on the balancing of relevant interests. In my view, subsequent authority would now have it that once there is jurisdiction by virtue of there being a matter, the court must exercise it.
The wife seeks to have the proceedings dismissed. The Commissioner submits that course is not “just and equitable” as it would defeat his interests (Martin & Martin [2015] FamCA 260) The submission relies on the premise that the Court may refuse to make orders if it considers it is not just and equitable from the creditor’s view point (Deputy Federal Commissioner of Taxation v Spanjich (1988) 93 FLR 98).
In my view, the Commissioner has made out a case to satisfy me that there is jurisdiction to determine his claim as a creditor with all of the powers that derive from s 79.
The wife’s application must fail.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 June 2018.

Associate:

Date: 20 June 2018