Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Eden & Eden [2022] FedCFamC1A 178
Appeal from: Eden & Eden [2022] FedCFamC2F 891 Appeal number(s): NAA 167 of 2022 File number(s): SYC 5080 of 2017 Judgment of: AUSTIN J Date of judgment: 27 October 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Jurisdiction – Existence of de facto relationship – Where the primary judge dismissed the appellant’s Initiating Application seeking property settlement for want of jurisdiction – Where the appellant had already been granted leave by another judge to bring her claim out of time under s 44(6) of the Family Law Act1975 (Cth), with the respondent’s consent – Error of law – Where the parties formal agreement resolved the jurisdictional dispute – Where the error of law means the appeal must succeed – Application in an Appeal – Further evidence – Where no amount of further evidence will cure the appealable error of law already identified – Application in an Appeal dismissed – Appeal allowed – Costs certificates granted to the appellant in respect of the appeal and the re-hearing. Legislation: Evidence Act 1995 (Cth) s 191
Family Law Act 1975 (Cth) Pt VIIIAB, ss 4AA, 44, 90SB, 90SD
Cases cited: Blair v Curran (1939) 62 CLR 464; [1939] HCA 23
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 76
Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Jackson v Goldsmith (1958) 81 CLR 446; [1950] HCA 22
Tomlinsonv Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Number of paragraphs: 46 Date of hearing: 27 October 2022 Place: Newcastle (via video link) The Appellant: Litigant in person Solicitor for the Respondent: Di Lizio & Associates ORDERS
NAA 167 of 2022
SYC 5080 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS EDEN
Appellant
AND: MR EDEN
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
27 October 2022
THE COURT ORDERS THAT:
1.The appeal is allowed.
2.Save for the consent orders made on 18 October 2022, the Application in an Appeal filed on 29 September 2022 is dismissed.
3.The proceedings are remitted for re-hearing by a judge other than the primary judge.
4.The appellant is granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation to the appeal.
5.The appellant is granted a costs certificate pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect of the costs incurred by her in relation…
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- AGLC
- Eden & Eden [2022] FedCFamC1A 178
- Case
- [2022] FedCFamC1A 178
- Decision Date
CaseChat Overview and Summary
The appeal in the case of Eden & Eden was brought by the appellant, who sought property settlement relief from the Family Court of Australia. The appellant argued that she and the respondent were in a de facto relationship from 1989 until they separated on 22 November 2007, and that the relationship resumed in about October 2008, continuing for several more years. The respondent denied the resumption of the relationship and maintained that it ended in November 2007. The primary judge found that the relationship did not resume after 22 November 2007 and concluded that the court lacked jurisdiction to grant the appellant's property settlement application as it was filed outside the limitation period.
The primary legal issue in the appeal was whether the Family Court of Australia had jurisdiction to hear the appellant's property settlement application under Part VIIIAB of the Family Law Act 1975 (Cth). The court had to determine whether the de facto relationship between the parties resumed after 1 March 2009, as the appellant claimed, or whether it ended before that date, as the respondent contended. The resolution of this jurisdictional issue was critical, as it determined whether the court could grant the appellant's application for property settlement relief.
The court found that the respondent's admission of jurisdiction, made in correspondence with the appellant's lawyers, established that the parties were in a de facto relationship after 1 March 2009. The primary judge's refusal to accept and act on the respondent's admission was found to be erroneous. The court held that the parties were bound by the way they conducted their cases, and the mutual understanding that their de facto relationship existed beyond 1 March 2009 established jurisdiction. The court also noted that parties cannot consensually invest courts with jurisdiction or power they do not possess, but in this case, jurisdiction was established by the respondent's formal admission.
The appeal was allowed, and the court found that the Family Court of Australia had jurisdiction to hear the appellant's property settlement application under Part VIIIAB of the Family Law Act 1975 (Cth). The court's decision was based on the respondent's admission of jurisdiction, which was deliberately conveyed in correspondence, recorded in the signed minute of orders, and finally assented to by the respondent in the orders made in April 2018. The primary judge's finding on contested evidence was not necessary, as the existence of jurisdiction was established by the respondent's admission. The respondent was not permitted to contradict the jurisdictional fact he formally admitted earlier in the same proceedings without leave, which was neither sought nor given.
The primary legal issue in the appeal was whether the Family Court of Australia had jurisdiction to hear the appellant's property settlement application under Part VIIIAB of the Family Law Act 1975 (Cth). The court had to determine whether the de facto relationship between the parties resumed after 1 March 2009, as the appellant claimed, or whether it ended before that date, as the respondent contended. The resolution of this jurisdictional issue was critical, as it determined whether the court could grant the appellant's application for property settlement relief.
The court found that the respondent's admission of jurisdiction, made in correspondence with the appellant's lawyers, established that the parties were in a de facto relationship after 1 March 2009. The primary judge's refusal to accept and act on the respondent's admission was found to be erroneous. The court held that the parties were bound by the way they conducted their cases, and the mutual understanding that their de facto relationship existed beyond 1 March 2009 established jurisdiction. The court also noted that parties cannot consensually invest courts with jurisdiction or power they do not possess, but in this case, jurisdiction was established by the respondent's formal admission.
The appeal was allowed, and the court found that the Family Court of Australia had jurisdiction to hear the appellant's property settlement application under Part VIIIAB of the Family Law Act 1975 (Cth). The court's decision was based on the respondent's admission of jurisdiction, which was deliberately conveyed in correspondence, recorded in the signed minute of orders, and finally assented to by the respondent in the orders made in April 2018. The primary judge's finding on contested evidence was not necessary, as the existence of jurisdiction was established by the respondent's admission. The respondent was not permitted to contradict the jurisdictional fact he formally admitted earlier in the same proceedings without leave, which was neither sought nor given.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons which follow, the appeal should be allowed.Background It was not in contest that the parties were in a de facto relationship from some point during 1989 until they separated on 22 November 2007. However, the appellant contended they reconciled in about October 2008 and the relationship endured for several more years, which assertion the respondent refuted. There was some uncertainty about when the appellant alleged the relationship finally broke down, though it is unclear whether the appellant gave inconsistent evidence or the primary judge was confused. The appellant pleaded in her Initiating Application the relationship broke down in November 2013, but in the reasons for judgment the primary judge referred interchangeably to December 2012, December 2013 and December 2014 (at [6], [8], [47], [59], [69], [71], [76], [101]–[103] and [152]). Even on the appellant’s best case, her application for property settlement relief filed in August 2017 was brought outside the limitation period and so the first form of relief she sought was the grant of permission under s 44(6) of the Act to bring her claim out of time. The respondent filed his Response on 29 September 2017, seeking dismissal of the application with costs. He maintained the relationship broke down in November 2007 and did not resume. Though he admitted a subsequent period of their common residence for some years, he disavowed any resumption of the relationship (at [70]–[71] and [126]–[127]). The respondent’s contention raised a jurisdictional issue because, if the de facto relationship finally broke down before 1 March 2009 as he alleged, the Court was bereft of jurisdiction under Pt VIIIAB of the Act and could neither grant the appellant leave to bring her property settlement application out of time nor any substantive relief. The conclusion ultimately reached by the presiding judge was expressed thus:193.Taking all of the evidence that I have reviewed in these Reasons into account, I find on the balance of probabilities that the parties were in a de facto relationship between some time in 1989, commencing with co-habitation in [City AM], and concluding on 22 November 2007;194.I find that the parties at no time thereafter resumed a de facto relationship within the meaning of that term in section 4AA of the Family Law Act, in that at no time after 22 November 2007 did the [Appellant] and the Respondent have a relationship as a couple living together on a genuine domestic basis.195.In making these finding, I remain acutely aware of the evidence going to the nature and extent of their common residence from October 2008 until either December 2012 or later into 2013, the degree of financial dependence or interdependence between them during that period, their ownership, use and acquisition of property during that period, and their care and support of children.…198.Accordingly, there is no de facto relationship between the parties that occurs after 1 March 2009. The Court therefore does not have jurisdiction to entertain the [Appellant’s] application for property adjustment orders under section 90SM of the Family Law Act and her application must be dismissed.(Emphasis added)
Evidence
Evidence Before The Court
His Honour, despite being “acutely aware” of the respondent’s admission (at [199]), wrongly rejected the appellant’s submission that his admission resolved the issue of jurisdiction in her favour (at [46], [153], [162], [166], [167] and [175]). The primary judge explained the refusal to accept and act on the respondent’s admission of jurisdiction in this way:166.It may be that the “admission” referred to in Rule 15.30 is an admission consequent upon service of a notice to admit facts or documents. I regard the “admission” made in the correspondence referred to as a qualified admission by the Respondent, made not as his assertion of a fact, but as a device to overcome the expense of having to engage in, first, a hearing on jurisdiction and, if the court finds jurisdiction, thereafter a hearing on the merits of the section 90SM property adjustment proceedings.167.The Applicant is not entitled to “an order … on the admission” other than an order confirming the Court’s jurisdiction, and if that Rule in the Court’s former Rules does vest a discretion in the Court to act upon such an admission as is represented in the correspondence, I would decline to do so on the basis of what I find to be the purpose of that “admission” – and I find that that purpose is to, in effect, by consent, vest the Court with jurisdiction that on all of the rest of the Respondent’s evidence it would not have.…175.I find that the statements contained in the letter of 26 February 2018 from [the respondent’s solicitors] to [the appellant’s solicitors] that the Respondent: … are statements made by the Respondent to his solicitors solely upon the basis of seeking to “jump over” the jurisdictional issue and proceed with the settlement hearing and avoid the costs of ‘double hearing’.(Emphasis added) Parties are bound by the way in which they conduct their cases and these parties mutually conducted the original litigation on the premise that their de facto relationship existed at, and subsisted until sometime beyond, 1 March 2009. Jurisdiction to entertain the appellant’s substantive property settlement claim was therefore established, there being no dispute over any other jurisdictional fact which ss 90SB and 90SD of the Act required be satisfied. The primary judge observed how the order made under s 44(6) of the Act granting leave for the appellant to proceed with her substantive claim could not cure an absence of jurisdiction (at [21], [34] and [50]), but that observation requires some qualification. It is true parties cannot consensually invest courts with jurisdiction or power they do not possess (Harris v Caladine (1991) 172 CLR 84 at 133), but there was no need to cure any jurisdictional lacuna here because the parties formally conceded the necessary jurisdictional facts. Jurisdiction under Pt VIIIAB of the Act was established by the respondent’s admission, deliberately conveyed by his lawyers in correspondence, then recorded in the signed minute of orders tendered to the Court, and finally, by his assent to the orders made in April 2018. The dissipation of any controversy over the existence of jurisdiction obviated any need for a finding on contested evidence. More than two years later, in the hearing conducted before the primary judge, it was not open to the respondent to adduce evidence contradicting the jurisdictional fact he formally admitted earlier in the same proceedings, at least without leave, which was neither sought nor given (s 191 of the Evidence Act 1995 (Cth)).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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