Duggan & Sanchez
[2024] FedCFamC2F 213
•26 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Duggan & Sanchez [2024] FedCFamC2F 213
File number(s): ADC 2844 of 2023 Judgment of: JUDGE MCGINN Date of judgment: 26 February 2024 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – de facto financial proceedings – jurisdiction yet to be established - power to order financial conciliation conference and external dispute resolution – financial circumstances of parties – external dispute resolution to take place Legislation: Family Law Act 1975
Federal Circuit and Family Court of Australia Act 2021
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Central Practice Direction – Family Law Case Management
Cases cited: Holden & Wolff [2014] FamCAFC 224; (2014) FLC 93-621
Norton & Locke [2013] FamCAFC 202; (2013) FLC 93 - 567
Division: Division 2 Family Law Number of paragraphs: 27 Date of last submission/s: 28 November 2023 Date of hearing: On the papers (considered in Chambers) Solicitor for the Applicant: Self-represented Solicitor for the Respondent: Norman Waterhouse Lawyers ORDERS
ADC 2844 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DUGGAN
Applicant
AND: MR SANCHEZ
Respondent
ORDER MADE BY:
JUDGE MCGINN
DATE OF ORDER:
26 FEBRUARY 2024
THE COURT ORDERS THAT:
1.That this matter be listed before a Judicial Registrar on 21 March 2024 at 4:00pm (Adelaide time) for the making of orders and directions to cause the parties to attend private mediation or other form of dispute resolution pursuant to Rule 4.05.
2.That in the event of the Judicial Registrar not then being available, that the hearing referred to in order 1 be undertaken by such Judicial Registrar at such date and time and place as the Court may advise.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
This matter comes before the Court for mention and directions following orders made by a Judicial Registrar on 29 September 2023 wherein it was noted that there was a question as to whether the parties should proceed to a financial conciliation conference prior to further case management in circumstances where there were jurisdictional issues raised in relation to the proceedings.
The Initiating Application filed 27 June 2023 in this matter seeks orders for a declaration that the de facto relationship existed between the parties and an order for property settlement in general terms.
By the Response to Final Orders document orders are sought that the application be dismissed. Importantly, however, the Response denies the existence of any de facto relationship between the parties.
Each of the parties when appearing before me on 22 November 2023 repeated the position expressed to a Judicial Registrar as noted in orders made 27 September 2023 that a financial conciliation conference take place in this matter.
The question arises as to whether the Court can make orders and directions to cause a financial conciliation conference to take place when there is yet to be a determination of the existence of a de facto relationship of the requisite type[1] to permit the Court to exercise its powers under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) in respect of property settlement.
[1] Family Law Act 1975 (Cth), s 4AA, s 90RA, s 90RD, s 90RG, s 90SB, s 90SK.
The existence of a de facto relationship with particular features must comprise the jurisdictional facts that are needed to be established to found jurisdiction to enable a court to make property settlement orders.
In Holden & Wolff [2014] FamCAFC 224; (2014) FLC 93-621 the Full Court of the Family Court of Australia held that orders directing a party to file responsive documents for the purposes of preparation for the hearing of a financial matter was beyond its power until the question of jurisdiction had been determined. At the same time the Full Court accepted that a court, as part of the power to control its own processes, does have the power to make orders and give directions in respect of the provision of such information as is reasonably necessary for the determination of the questions of jurisdiction. This includes the types of information that might also have been used for the determination of a financial matter where jurisdiction was present.[2]
[2] Holden & Wolff [2014] FamCAFC 224; (2014) FLC 93-621 at [38 – 39].
That power was also held to include the power to make what are termed “holding orders” pending the determination of jurisdictional facts necessary found jurisdiction.[3]
[3] Norton & Locke [2013] FamCAFC 202; (2013) FLC 93–567 [49]; [57].
The mere presence of the consent of parties to make orders that are not otherwise within jurisdiction of the Court does not, of course, create jurisdiction.
This Court is obliged by its constituting Act to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.[4] This is the overarching purpose of case management that is to be applied to the present proceedings.[5]
[4] Federal Circuit and Family Court of Australila Act 2021 (Cth) s190; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.04.
[5] Federal Circuit and Family Court of Australila Act 2021 (Cth) s190.
Parties are obligated to conduct a proceeding (including settlement negotiations for settlement of the dispute) in a way that is consistent with that overarching purpose.[6]
[6] Federal Circuit and Family Court of Australila Act 2021 (Cth) s191; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.04.
To fulfill those obligations the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provide broad powers of case management of a proceeding including the power to order parties to attend dispute resolution processes permitted by the Act.[7]
[7] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.06, Table 1.1, item 1 and r 4.05.
“[D]ispute resolution” is defined in the Rules as “includes a mediation and a conference (including a conciliation conference)”.[8]
[8] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.05.
The practice of this Court is to generally require dispute resolution to be undertaken by parties within 5 months of the commencement of a proceeding[9] and to address issues in dispute between the parties at such dispute resolution.
[9] Central Practice Direction – Family Law Case Management [5.26].
Each of the Act, Rules and Central Practice Direction – Family Law Case Management make reference to dispute resolution occurring where there are “proceedings”. In my view, that would include proceedings in which the jurisdiction of this Court is in dispute.
The making of directions and orders as to the attendance at a financial conciliation conference would be the Court undertaking the case management of the dispute that is before the Court and a matter of procedure.
The conduct of such a conference does not of itself amount to or require a finding that the Court does in fact have jurisdiction to make orders for property settlement.
Having determined that the Court has power to order a financial conciliation conference, the question then arises as to whether that power should be exercised in the circumstances of this matter or other forms of dispute resolution, such as external family dispute resolution,[10] should be directed to be pursued.
[10] Central Practice Direction – Family Law Case Management [5.28], [5.29], [5.37].
In determining whether the parties should be directed to attend court-based or external dispute resolution I note by reference to the parties respective Financial Statements:
(a)The applicant’s income is about $89,000 per annum and holds savings of about $24,000 and a motor vehicle and is 42 years old;
(b)The respondent’s income is about $215,000 per annum and holds savings of about $27,000 and is about 37 years old;
(c)The applicant otherwise holds by way of property a car reckoned to be worth about $17,500 and has debts of about $7,000;
(d)The respondent has property beyond savings of about $1.12 million and debts of about $530,000;
(e)The parties are based in South Australia.
Despite the applicant having completed and affirmed all of her court documents without an interpreter, I am told that the applicant may need an interpreter for the purposes of the conduct of dispute resolution which I anticipate would entail some unspecified expense. That would be the case whether the dispute resolution was court based or not.
I note that the cost schedule to the Rules indicates what, at that schedule, would be allowable, should that schedule be applicable, in relation to the conduct of alternative dispute resolution. That schedule of costs, whilst not necessarily anticipating what actual costs the parties may incur in relation to alternative dispute resolution, nevertheless can be referenced in the absence of other evidence as to the likely proportionality of costs between alternative dispute resolution and the means and resources of the parties.
The parties are based in South Australia and mediation and other dispute resolution services are known to the Court to be available.
In my view, the resources of the parties are sufficient to enable them to undertake and pay for external dispute resolution in the form of mediation or other external family dispute resolution as the Court may determine. The Court has power to make such orders and directions pursuant to Rule 4.05 which power is delegated to both a Senior Judicial Registrar and Judicial Registrar pursuant to the Rules.[11]
[11] Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Schedule 4, Clause 2, item 21.9.
The applicant’s submissions of 28 November 2024 did not appear to address the issue of whether the parties should or should not be referred to mediation/dispute resolution outside of the Court. At best the submission appeared to imply that dispute resolution needs to take place using court resources in the form of a Financial Conciliation conference on the basis of “direct Court oversight”.
If that implication be present, then any notion of Court oversight only being present in a Financial Conciliation Conference conducted by or at a court is misconceived. The Court does retain powers to make directions and orders as to participation in and the conduct of dispute resolution processes outside of the Court and to supervise such dispute resolution processes.
The matter should be referred to a Senior Judicial Registrar for the making of orders and directions for external family dispute resolution in compliance with the provisions of the Central Practice Direction – Family Law Case Management. It would be preferable for the Judicial Registrar to conduct that hearing be the Judicial Registrar from whence this matter came.
For these reasons there are to be orders as appearing at the outset of these reasons.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 26 February 2024
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