COULTER & JAMIESON

[2015] FamCA 1110

FAMILY COURT OF AUSTRALIA

COULTER & JAMIESON [2015] FamCA 1110

FAMILY LAW – PRACTICE & PROCEDURE – JURISDICTION – TRANSFER – transfer of proceedings to the Supreme Court of Queensland – where there is a dispute as to the existence of a de facto relationship – where the Respondent seeks a declaration that no de facto relationship existed – Application refused

Family Law Act 1975 (Cth) s4AA, s90RG.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s4(1), s5(4)(b)(ii).

Partnership Act 1981 (Qld) s38.

Bankinvest AG v Seabrook (1988) 14 NSWLR 711;
Chapman and Jansen (1990) 13 Fam LR 853
Kenda & Johnson (1993) 15 Fam LR 369
Valceski & Valceski (2007) 36 Fam LR 620.
Warby & Warby (2001) 28 Fam LR 443.

APPLICANT: Ms Coulter

RESPONDENT: Mr Jamieson

FILE NUMBER: BRC 657 of 2012

DATE DELIVERED: 11 December 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 28 November 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cameron

SOLICITOR FOR THE APPLICANT: Bruce Legal Lawyers & Mediators

SOLICITOR FOR THE RESPONDENT: Mr Purdie from Harris Sushames

Orders

1. The Application in a Case filed 26 September 2013 is dismissed.

2. The matter is listed for mention at 9.15 am on 16 December 2015 with a view to allocating the 7^th and 8^th of April 2016 as dates for the trial and to make those Directions which are necessary to ensure that the matter is ready to proceed to trial.

3. The parties’ costs of and incidental to the Application in a Case filed 26 September 2013 are reserved to the trial Judge.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Coulter & Jamieson has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 657 of 2012

Ms Coulter

Applicant

And

Mr Jamieson

Respondent

REASONS FOR JUDGMENT

1. By Initiating Application filed 27 January 2012 (“the proceedings”), the Applicant commenced proceedings in relation to property matters following the breakdown of an asserted de facto relationship with the Respondent. Whether the parties were, in fact, in a de facto relationship at all is a matter in dispute between them.

2. On 24 September 2013, the Applicant commenced proceedings in the Supreme Court of Queensland. In such proceedings she sought, amongst other things, equitable relief in respect of real property situated at B Street, Suburb C in the State of Queensland (the Suburb C property) which had been acquired by the parties, as joint tenants, on about 17 October 2007. Her claim for such relief relies upon the assertion that she paid $949,000.00 of the $950,000.00 purchase price for that property, together with other amounts, said to total $40,457.68, required to enable the contract for its purchase to complete.

3. In the proceedings commenced in the Supreme Court, the Applicant also seeks an order pursuant to s 38 of the Partnership Act 1891 (Qld) that the partnership between she and the Respondent, in relation to a homewares business (the business), be dissolved, or alternatively, wound up under direction of the Court and a receiver appointed. The Applicant also seeks that an account of all partnership dealings and transactions occur.

4. On 26 September 2013, the Applicant filed an Application in a Case (“the Application”) seeking that, pursuant to s 5(4)(b)(ii) of the Jurisdiction of Courts (Cross – Vesting) Act 1987 (Cth) (“the Cross-Vesting Act”), the proceedings be transferred to the Supreme Court of Queensland.

5. An Amended Claim and Statement of Claim was filed by the Applicant in the Supreme Court on 9 October 2013. Further orders in the alternative are sought in relation to the business.[1] The Respondent accepts that the business is also “subject of the Family Court proceedings”.[2]

   [1]          Respondent’s Outline of Argument filed 7 November 2013, paragraph 8.

   [2]          Respondent’s Outline of Argument filed 7 November 2013, paragraph 6.

6. There is no dispute between the parties that the proceeding is related to proceedings pending in the Supreme Court of Queensland.[3]

   [3] s 5(4)(b)(ii) of the Cross-Vesting Act.

7. Section 4(1)(c) of the Cross-Vesting Act provides that, where this Court has jurisdiction with respect to a civil matter and the Supreme Court of Queensland would not, apart from this section, have jurisdiction with respect to the matter, that Court is invested with Federal jurisdiction with respect to that matter.

8. Section 5(4)(b)(ii) of the Cross-Vesting Act relevantly provides:

   (4) Where:

   (a) a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Federal Court or the Family Court (in this subsection referred to as the (first court); and

   (b)      it appears to the first court that:

   (i) the relevant proceeding arises out of, or is related to, another proceeding pending in the Supreme Court of a State or Territory and it is more appropriate that the relevant proceeding be determined by that Supreme Court;

   (ii) having regard to:

   (A)whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been incapable of being instituted in that court, apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

   (B)whether, in the opinion of the first court, the relevant proceeding or a substantial part of it would have been capable of being instituted in the Supreme Court of a State or Territory, apart from this Act and any law of a State or Territory relating to cross-vesting of jurisdiction; and

   (C)the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-subparagraph (B) and not within the jurisdiction of the first court apart from this Act and any law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction; and

   (D) the interests of justice;

   it is more appropriate that the relevant proceeding be determined by that Supreme Court the first court shall transfer the relevant proceeding to that Supreme Court.

9. I must transfer the proceedings to the Supreme Court if I am satisfied of the matters prescribed.[4]

   [4]          Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Chapman and Jansen (1990) 13 Fam LR 853

The Proceedings

1. The Applicant contends that the parties were in a de facto relationship from early January 2005 until early October 2010. She asserts that they satisfy requirements prescribed by the Family Law Act1975 (Cth) (the Act) to empower the Court to hear and determine the proceedings and make the orders sought.

2. The proceedings pursuant to the Act require the determination of two distinct issues:

   a)whether the parties were in a de facto relationship which commenced in or about late 2004/early 2005 and ended in October 2010; and

   b)if they were in such de facto relationship - whether it is just and equitable in all the circumstances to make an order altering the interests of the parties, to the de facto relationship, in the property of the parties.

3. By Response filed 20 March 2012, the Respondent sought:

   a)a declaration (presumably pursuant to s 90RD(2) of the Act) that there was no de facto relationship between the Applicant and the Respondent;

   b)that “simultaneous with” this declaration – and, presumably, pursuant to ss 90SM and 90SS(1)(c) of the Act – the Applicant transfer to him all of her estate and interest in the Suburb C property;

   c)that –  and, presumably, pursuant to ss 90SM and 90SS(1)(k) of the Act – the Applicant forthwith release particularised caveats; and

   d)that - and, presumably, pursuant to ss 90SM of the Act - he retain “the rest of his items as his property absolutely free of all claims from the Applicant”.

4. This Court’s power to make the declaration sought by the Respondent as outlined in paragraph 12(a) requires this Court to find that either the Applicant or the Respondent, or both of them, were ordinarily resident in a participating jurisdiction[5] – which includes Queensland – when the proceedings commenced.[6] I am unaware of any challenge to this necessary factual conclusion.

   [5]          Family Law Act 1975 (Cth) s 90RA.

   [6] s 90RG of the Act.

5. This Court’s power to make orders to give effect to the matters outlined in paragraphs 12(b) to (d), above, requires that the Court find that:

   a)the parties were in a de facto relationship;

   b)the ‘geographical requirement’ contained within s 90SK of the Act is satisfied;

   c)the de facto relationship between the parties has broken down;  and

   d)it is satisfied that, in all the circumstances, it is just and equitable to make the order sought.

6. The existence of a de facto relationship between the parties is a necessary prerequisite to this Court’s jurisdiction to make the orders under the Act sought by both the Applicant and the Respondent in relation to the property identified by each of them.

7. The difficulty here is that, whilst seeking a declaration that a de facto relationship did not exist, the Respondent himself seeks orders, pursuant to the Act, from the Court.

8. In Phillip Morris Inc v Adam P Brown Male Fashions Pty Limited (1981) 148 CLR 457 at 475 Barwick CJ said:

   It is settled doctrine in Australia that when a court 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.  The 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.

9. In Fencott v Muller-Brown (1983) 152 CLR 570 members of the High Court said[7]:

   What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships.  The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.  But, in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.

   [7]          at p.680

10. In Valceski, Brereton J said in paragraph 39:

    Thus, when a federal court is invested with federal jurisdiction, it is also invested with the power to determine non-federal aspects of a justiciable controversy which involves the exercise of its federal jurisdiction, provided that the non-federal aspects of the controversy form an integral part of the same controversy.  The scope of the “matter” in respect of which a federal court has jurisdiction is described by the ambit of the justiciable controversy.  There is but a single matter, and the non-federal claims are within the accrued jurisdiction, where the different claims arise out of “common transactions and facts” or “a common substratum of facts”, notwithstanding that the facts upon which the claims depend “do not wholly coincide” or where different claims are so related that the determination of one is essential to the determination of the other or where, if the proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings.  However, it must always be borne in mind that the ultimate question is not the existence of each of the several suggested indicia, but whether there is in substance a single justiciable controversy. [original references to authority omitted].

11. I consider that, given that the Respondent seeks a declaration that a de facto relationship did not exist between the parties, the Court has jurisdiction[8] to hear those claims outlined in the Amended Statement of Claim filed by the Applicant in the Supreme Court. I arrive at this conclusion because I consider there is a single justiciable controversy, as that phrase is understood to refer to the controversy which arises out of common transactions or substratum of fact. I consider that the claim between the Applicant and Respondent in the proceedings commenced in this Court and as particularised in the pleadings filed in the proceedings commenced in the Supreme Court are part of a single matter. I am satisfied that such claim is not completely separate and distinct from the matter which attracts federal jurisdiction and that it is not some distinct and unrelated non-federal claim.  I am persuaded that the non-federal claim and the federal claim are within the scope of one controversy and, thus, within the ambit of a matter and, thus, within the jurisdiction of the Court.[9]

    [8]          as a consequence of the accrued jurisdiction.

    [9]See generally In the marriage of Warby (2001) 28 Fam LR 443; (2001) FLC 93-091; Valceski and Valceski (2007) 210 FLR 387; (2007) 36 Fam LR 620; (2007) FLC 93-312; [2007].

12. I am not persuaded that the Supreme Court provides the most appropriate forum for the proceedings to be determined and I am not persuaded that it is in the interests of justice[10] - a term not to be narrowly confined[11] - that the proceedings be transferred to the Supreme Court.

    [10]         Bankinvest AG v Seabrook (1988) 14 NSWLR 711; Chapman and Jansen (1990) 13 Fam LR 853

    [11]          Kenda & Johnson 15 Fam LR 369

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 11 December 2015.

Associate:     

Date:              11 December 2015