Cirillo & Cirillo (No 4)
[2022] FedCFamC1F 208
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208
File number(s): SYC 4192 of 2020 Judgment of: ALDRIDGE J Date of judgment: 4 April 2022 Catchwords: FAMILY LAW – PROPERTY – Application in a Proceeding – Where the respondents seek an order for real estate agents and prospective purchases of the former matrimonial home be admitted for inspection of the property for the purposes of sale – Where the applicant seeks an adjournment to put on evidence and issue a subpoena – Nature of the current proceedings – Adjournment refused – Orders made allowing the inspection of the property.
FAMILY LAW – JURISDICTION – Whether the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) has jurisdiction in the matter consequent upon the passing of the Federal Circuit and Family Court of Australia 2021 (Cth) (“the Act”) – Where the matter was filed in the Family Court of Australia (as it was then known) – Where the matter has never been in Federal Circuit and Family Court of Australia (Division 2) and consequently could never have been transferred to Division 1 as required by s 25 of the Act – Legislative intent that the jurisdiction of the Family Court of Australia continue in Division 1 in respect of proceedings filed in it – No provision that provides otherwise – Where the Chief Justice made orders for transfer under specific jurisdiction – Where those orders, even if jurisdiction was lost, were effective to confer jurisdiction on Division 1 – The Court is satisfied that Division 1 has the jurisdiction to hear and determine the application in this matter.
Legislation: Act Interpretations Act 1901 (Cth) s 15AA
Family Law Act 1975 (Cth) s 31
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 51, 52, 132, 149
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1
Marriage Act 1961 (Cth)
Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019 (Cth)
Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth)
Cases cited: Cirillo & Cirillo (No 3) [2022] FedCFamC1F 207
Duarte and Anor & Morse (2019) FLC 93-902
Hazeldell Ltd v Commonwealth (1924) 34 CLR 442
Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Wallace & Stelzer and Anor (2013) FLC 93-566
Division: Division 1 First Instance Number of paragraphs: 60 Date of hearing: 4 April 2022 Place: Sydney Solicitor for the Applicant: MDW Law Solicitor for the Respondents: Boyce Family Law & Mediation ORDERS
SYC 4192 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CIRILLO
Applicant
AND: MS CIRILLO
First Respondent
B PTY LTD
Second Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1.Within two (2) days of written request by the first respondent’s solicitors to the applicant’s solicitors, the applicant shall do all things and sign all documents necessary to provide access to the formal matrimonial home at RR Street, Suburb P and its grounds to the licensed real estate agent and prospective purchaser identified in the letter from AG Real Estate Suburb AF dated 7 March 2022, so that they may enter and inspect the property for purpose of sale for not longer than one (1) hour in duration.
2.The costs of this application are reserved to the final hearing.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cirillo & Cirillo (No 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in a Proceeding filed on 30 March 2022, the first respondent (“the husband”) and second respondent seek an order that licensed real estate agents and prospective purchasers of a property at RR Street, Suburb P (“the Suburb P property”) be admitted for inspection of the property for the purpose of sale, for no longer than one hour in duration on each occasion.
That application is opposed by the applicant (“the wife”). She seeks an adjournment of the application to put on evidence and to issue a subpoena.
Before I deal with the application itself, I must first satisfy myself that I have jurisdiction to deal with the matter given the recent publicity that this matter has received, particularly in newspapers in Sydney today.
None of the solicitors for the parties sought to submit that I did not have jurisdiction to deal with the application but nonetheless, jurisdiction cannot be given by consent.
As Isaacs ACJ observed in Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446, it is “[t]he very first duty of any Court, in approaching a cause before it, is to consider its jurisdiction”.
Questions have arisen as to the jurisdiction of this Court in matters filed in it, as opposed to being transferred to it, consequent upon the amendments made to the Family Law Act 1975 (Cth) (“the Family Law Act”) which took effect on 1 September 2021 and the passing of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Federal Circuit and Family Court of Australia Act”). The matter must be resolved before I proceed in hearing an urgent application in this matter.
Prior to that time, the then Family Court of Australia was conferred with jurisdiction with respect to matters under the Family Law Act in respect of matrimonial causes, de facto financial causes and matters arising under the Marriage Act1961 (Cth), amongst others provided by s 31 of the Family Law Act.
That section was repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) (“the Consequential Amendments and Transitional Provisions Act”), Sch 1, Item 36.
The jurisdiction in relation to those matters was conferred upon the Federal Circuit and Family Court Australia (Division 2) (“Division 2”) by s 132 of the Federal Circuit and Family Court of Australia Act.
The jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”) in these matters is conferred by s 25 of the Federal Circuit and Family Court of Australia Act, which provides:
Original jurisdiction
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51-- as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149--as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
(2) Subject to such restrictions and conditions (if any) in:
(a) section 111AA of the Family Law Act 1975; or
(b) regulations made under that Act; or
(c) the Rules of Court made under this Chapter;
the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) may be exercised in relation to persons or things outside Australia.
Section 51 of the Federal Circuit and Family Court of Australia Act provides for a transfer to Division 1 by the Chief Justice and s 149 of that Act provides for a transfer to Division 1 by Division 2.
Obviously, in its terms, s 25 of the Federal Circuit and Family Court of Australia Act does not apply to matters that have never been in Division 2 and consequently could never have been transferred.
On 28 March 2022, the Chief Justice, of his own motion and pursuant to s 52 of the Federal Circuit and Family Court of Australia Act, transferred the proceedings to Division 2, and then subsequently made an order transferring it back to Division 1.
Two questions then arise. The first is whether the combination of provisions which took effect on 1 September 2021 had the effect of depriving the newly named Federal Circuit and Family Court of Australia (Division 1) (formerly the Family Court of Australia) of jurisdiction in matters that were filed in the Family Court of Australia prior to that date?
The second question is whether the transfer to Division 2 and retransfer to Division 1 was effective to confer jurisdiction on this Court, assuming jurisdiction was lost?
As to the first question, there are no transitional provisions, such as those that apply to appeals which were filed before 1 September 2021 and provide for the jurisdiction of the Court in those non-appeal matters, filed before that date, to continue.
The relevant provision then is Sch 1, Item 229 of the Consequential Amendments and Transitional Provisions Act, which provides:
Division 2 – Application of amendments
229 Application
The amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply in relation to a proceeding commenced before, on or after the commencement day.
Thus, again reading the provision literally, the repeal of s 31 of the Family Law Act took place on 1 September 2021, thus depriving the Court of jurisdiction because its repeal applied to proceedings commenced before or on the commencement day.
Was this consequence intended?
It is plain that the legislature did not intend to deprive the Court of jurisdiction in matters already filed in it that had not been the subject of transfer from Division 2. This is because the Family Court of Australia continued in operation, albeit under a new name, with the clear intention that it would continue to operate as a superior court of record. There is no provision in any of the legislation which provides for matters filed in the Family Court of Australia to be transferred to any other court. They remain in the Family Court of Australia with the obvious legislative intent that they be heard and determined by it in the exercise of the jurisdiction provided by s 31 of the Family Law Act.
I do not consider that there can be any ambiguity about this, but if there were, regard could be had to the Explanatory Memorandum to the Federal Circuit and Family Court of Australia Bill 2019 (Cth). Clause 7 explains that the Federal Circuit and Family Court of Australia (Division 1) will be a continuation of the Family Court of Australia.
Clause 105 of the Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) also confirms the above position. Clause 5 states:
5.For the avoidance of doubt, any first-instance proceedings on foot in the Family Court or the Federal Circuit Court as at the date of commencement of the FCFC Act would be heard in the FCFC (Division 1) or the FCFC (Division 2), respectively. This arrangement appropriately reflects the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) under the FCFC Bill.
In short, the legislature intended that the jurisdiction of the Family Court of Australia, by whichever name it is called, continue in respect of proceedings filed in it.
Assuming there is a difficulty, what is to be done?
It is well established that courts, at times, are not necessarily to apply the terms of statutes literally, but should look to the logic behind them and their evident intent, so as to avoid irrational results.
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the High Court of Australia (McHugh, Gummow, Kirby and Hayne JJ) said:
Conflicting statutory provisions should be reconciled so far as is possible
69.The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70.A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
(Footnotes omitted)
To a similar effect, in Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, the High Court of Australia (French CJ and Bell J) said:
9.The legislative purpose of s 91R(3) as disclosed in the Second Reading Speech is to ensure that an applicant for a protection visa in seeking to demonstrate a well-founded fear of persecution within the meaning of Art 1A(2) cannot place any reliance upon, nor gain any advantage from, conduct engaged in within Australia for the purpose of strengthening his or her claim to meet the criteria of classification as a refugee under Art 1A(2). Neither that purpose nor Australia’s protection obligations under the Refugees Convention require that such conduct be disregarded where it is adverse to an applicant’s credibility. Such a result would be irrational. A construction of s 91R(3) to avoid that result may properly encompass a departure from the literal or natural and ordinary meaning of the text. If the language be so intractable that it requires a word or words to be given a meaning necessary to serve the evident purpose of the provision, then such a course may be permissible as a “realistic solution” to the difficulty. In the twelfth edition of Maxwell’s On the Interpretation of Statutes the approaches which can be taken in dealing with statutory language whose ordinary meaning is plainly at odds with the statutory purpose were explained:
“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the legislature could not possibly have intended what its words signify, and that the modifications made are mere corrections of careless language and really give the true meaning.”
(Footnote omitted)
This approach is reflected in decisions of the Courts of the United Kingdom. In Inco Europe Ltd v First Choice Distribution, Lord Nicholls of Birkenhead restated the need for the Court to correct obvious drafting errors. He referred to the third edition of Cross’ Statutory Interpretation:
“In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.”
The limits of the judicial role, as pointed out by Lord Nicholls, require that the courts “abstain from any course which might have the appearance of judicial legislation”. Three matters of which the court must be sure before interpreting a statute in this way were the intended purpose of the statute, the failure of the draftsman and parliament by inadvertence to give effect to that purpose, and the substance of the provision parliament would have made. The third of these conditions was described as being of “crucial importance”. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation.
(Footnotes omitted)
Such an approach is consistent with s 15AA of the Act Interpretations Act 1901 (Cth) which provides that “the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred”.
I consider that any interpretation of the amending provisions that would deprive Division 1 of jurisdiction to determine matters which had been filed in it and remained to be considered, would be irrational. It would not be consistent with the clear intention of the legislature read as a whole unless there were provisions from which an intention could be clearly deduced. There are no such provisions.
It seems therefore, that to the extent necessary, words should be implied into s 25 of the Federal Circuit and Family Court of Australia Act so as to make it clear that Division 1 acquired the jurisdiction in respect of matters filed in it prior to 1 September 2021, as was previously conferred by s 31 of the Family Law Act. The same result could be achieved by reading Sch 1, Item 36 of the Consequential Amendments and Transitional Provisions Act, which repealed s 31 of the Family Law Act, as being read subject to the words, that the repeal did not apply to matters currently before the Court.
Such an approach clearly gives effect to the intention of the legislature that the jurisdiction of the Family Court of Australia was to be maintained. See the similar approach adopted by the Full Court in Wallace & Stelzer and Anor (2013) FLC 93-566 and Duarte and Anor & Morse (2019) FLC 93-902. It is worth noting that in both these matters, the High Court of Australia refused to grant special leave to appeal against the Full Court decisions.
This conclusion renders it unnecessary to consider the effect of the transfer and retransfer. However, should I be wrong in the above, it is prudent to do so.
It is clearly established that a court without jurisdiction is not powerless. Whilst it cannot exercise jurisdiction that it does not have, it can hold a hearing to determine the question of jurisdiction, make findings of fact and law and make orders determining the proceedings, such as dismissing them and making costs orders. However, the order of transfer cannot be made by a judge of Division 1. Thus, the order cannot be seen as an order properly available to dispose of proceedings where the Court has been found to have no jurisdiction.
This is because the power to transfer matters from Division 1 to Division 2 is granted only to the Chief Justice under s 52 of the Federal Circuit and Family Court of Australia Act and may be exercised on his or her own initiative.
The jurisdiction and power of the Chief Justice to do so stands apart from the exercise of power under the original jurisdiction of the Court under the repealed s 31 of the Family Law Act, and a combination of s 25 and s 132 of the Federal Circuit and Family Court of Australia Act. It is an independent power.
The present proceedings are a pending proceeding in Division 1 and falls within the definition of “family law or child support proceedings”, as defined by s 7 of the Federal Circuit and Family Court of Australia Act. This is because that section defines the phrase as “proceedings in respect of which [Division 2] has original jurisdiction”, as opposed to matters in Division 2 (which obviously would not require transfer to it). Thus, s 52 applies to matters of the kind listed in s 132 of the Federal Circuit and Family Court of Australia Act.
Thus, because the transfer of the proceedings was the exercise of a specific jurisdiction and power in the hands of the Chief Justice, the transfer to Division 2 was valid.
No question can arise as to the power to retransfer and the subsequent conferring of jurisdiction under s 25 of the Federal Circuit and Family Court of Australia Act.
For these cursory reasons I am sufficiently satisfied that I have jurisdiction to hear and determine the present application, to which I now turn.
The first matter I must deal with is the application for an adjournment. Ordinarily speaking, where a person has had limited notice of the application, as has the wife in these proceedings, an adjournment to enable her to prepare and defend the application would be looked upon favourably. However, regard must be had to the nature of the application before the Court.
The application simply seeks that access be granted to enable a prospective purchaser to inspect the property and do no more. I accept that the application is framed more widely than that but that is the effect of it.
The wife and the husband have engaged in proceedings both in this Court and the Supreme Court of New South Wales. The current property proceedings are listed for final hearing on 9 May 2022, have been the subject of many interim applications, the last of which was disposed of only last Friday, 1 April 2022.
Orders have been made for the valuation of the parties’ property and the results of those valuations are not yet to hand, but the estimates given by the parties as to the likely value of the property to be divided between them, have ranged between $90 million–$120 million, but there is apparently a suggestion by the wife that the total property available for division might be as high as $144 million. All that remains to be seen.
The wife currently resides at the Suburb P property, the former matrimonial home. Estimates of its value have variously been given as between $20–$40 million. As detailed in the reasons delivered on 1 April 2022 (Cirillo & Cirillo (No 3) [2022] FedCFamC1F 207), it suffered significant damage in the recent Sydney storms and the evidence is that it will require significant renovation.
The single expert valuer has indicated that he would expect to have his report as to the value of the Suburb P property available on 5 May 2022.
On 7 March 2022, a real estate agent wrote to the husband suggesting that she may have a purchaser for the Suburb P property at a price of $60 million. However, the purchaser cannot make a formal and binding offer until he sees the house. Thus access is sought so that the prospective purchaser can inspect the property.
Letters seeking consent to that course were sent on 9 March 2022. There has been subsequent correspondence between the parties and the inspection is opposed.
The wife seeks an adjournment firstly so that she could issue a subpoena upon the real estate agent so as to assess the veracity of the proposed purchaser. Even if the matter were to be adjourned, I would not make such an order for a number of reasons.
First of all, if there is a genuine purchaser, such a course may scare them off. Secondly, I do not see how such a subpoena would necessarily result in information that would indicate the bona fides or otherwise of the prospective purchaser. Thirdly, the issue of such subpoena and related issues that are likely to arise would be another dissent into satellite litigation which has marked these proceedings and is to be deprecated and avoided at all costs.
I accept that ordinarily the wife should be entitled to place some evidence before the Court. However, I have heard from her lawyers today who have told me everything they are instructed to say and I am prepared to accept it as evidence of the proceedings of what was stated.
Proceedings of this nature are not an invitation to engage in extensive litigation. The parties cannot afford it and the Court simply cannot provide time to allow every minute issue between the parties to proceedings, who happen to be wealthy and inclined to spend it, to pursue their point of view to indulge their whims.
It is surprising that this application has to be the subject of proceedings whatsoever.
There is no doubt, for example, that the valuer will have to have access to the property.
If the prospective purchaser has access to the property and is so unimpressed by the condition that the property is in and decides not to make an offer, or make a lesser offer, so be it.
However, the fact that the suggested offer is so high compared to the estimated value of the Suburb P property, it would be imprudent not to explore it.
All that is sought today is the opportunity to permit such an inspection.
Whilst it is possible, this inspection is part of an intricate ploy by the husband to intimidate the wife, that explanation does not immediately strike me as the most plausible.
The only people that will be permitted in the inspection are the real estate agent and the prospective purchaser. I struggle to see how that is intimidatory to the wife. She need not be present at the time. I accept she will have to leave the premises for a short time, but no cogent reason has been given as to why she cannot do so. I accept that it will be inconvenient to her.
I emphasise that no decision is being made today as to whether the property should be sold and whether it should be sold at a particular value. I take into account the fact that the very strong position of the wife is that she wishes to retain the property and that on the evidence, which are limited estimates rather of the financial position of the parties, that seems to be a reasonable possibility of occurring.
Nonetheless, none of these is a reason, it seems to me, for not seeing whether, what appears to be a highly generous offer for the purchase of the property, should be facilitated. If nothing else, it would be the best evidence of the value of the property.
Thus having regard to the minor nature of the present proceedings, the fact that such an application should be dealt with, in my view, peremptorily and not the subject of satellite litigation, I am not inclined to grant an adjournment of the proceedings. I am satisfied I should make the order, but I am not satisfied that I should make it in the terms sought which are too wide.
Consequently, I make the following order:
(1)Within two days of written request by the husband’s solicitors to the wife’s solicitors, the wife shall do all things and sign all documents necessary to provide access to the formal matrimonial home at RR Street, Suburb P and its grounds to the licensed real estate agent and prospective purchaser identified in the letter from AG Real Estate Suburb AF dated 7 March 2022, so that they may enter and inspect the property for purpose of sale for not longer than one hour in duration.
(2)The costs of this application are reserved to the final hearing.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
4 April 2022
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