Eden & Eden
[2022] FedCFamC1A 178
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 to the new trial granted by these orders.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eden & Eden has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 8 July 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissed the appellant’s Initiating Application filed on 7 August 2017, by which she sought property settlement relief under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
His Honour found the parties’ de facto relationship ended nearly 10 years ago and so the application was dismissed for want of jurisdiction, notwithstanding the appellant had already been granted leave by another judge under s 44(6) of the Act to bring her claim out of time.
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)
But significantly, the conclusion about the absence of jurisdiction was reached in the face of a contrary formal admission made by the respondent and was repugnant to an order made by another judge earlier in the proceedings. In April 2018, upon the premise of the respondent’s admission that jurisdiction exists, a different judge granted the appellant leave pursuant to s 44(6) of the Act to bring her claim for property settlement out of time.
Leave to appeal
The appellant does not require leave to appeal. The dismissal order made by the primary judge represents final judgment because it dismisses the appellant’s claim for substantive property settlement relief. The subject order does not purport to merely dismiss her anterior interlocutory application for leave to bring the claim out of time, as that order was made in her favour in April 2018.
Legal error
In February 2018, on the respondent’s instructions, his lawyers wrote to the appellant’s lawyers saying he had made an “economic decision” to abandon the jurisdictional argument and he therefore conceded for the purpose of the litigation that the relationship finally broke down “shortly after March 2009” (at [27]).
The appellant still maintained the relationship continued far beyond that date (at [29]), but the respondent’s concession meant that the threshold hearing as to the existence of jurisdiction, set down for April 2018, was averted (at [26]).
Given the respondent’s formal concession, another judge then made consent orders between the parties in April 2018 in these terms:
1.By consent, the Respondent pay the sum of $3000 on account of the [Appellant’s] costs, to be paid from the Respondent’s share of entitlements to be received upon conclusion of these proceedings.
2.By consent, leave be granted to the [Appellant] pursuant to s. 44(6) of the Family Law Act 1975 (Cth) (“the Act”) to institute proceedings against the Respondent for orders under s 90SM of the Act.
(As per the original)
Those orders were premised upon a minute of orders tendered to the Court, signed by the parties and their lawyers (at [30]), saying in part:
…the Respondent’s Application on the discrete issue of jurisdiction listed for hearing on 20 April 2018 be dismissed.
The respondent’s “Application”, as it was described in the minute of orders, was his putative application for an order dismissing the appellant’s claim for property settlement relief for want of jurisdiction. The consensual dismissal of his “Application” therefore resolved the former controversy over the existence of jurisdiction in the appellant’s favour: jurisdiction certainly existed.
Referring back to the consent orders made in April 2018, the primary judge said this in the reasons for judgment:
33.There is nothing contained in either the “Minute of Orders and Directions” document or the orders made by Judge Harper on 20 April 2018 that refers to the date of separation of the parties, other than the inference that leave was necessary, and granted, pursuant to section 44(6) of the Family Law Act in consequence of the proceedings being commenced by the [Appellant] on 7 August 2017, more than two years after the date of breakdown of the de facto relationship.
34.If it is determined by the Court that the parties’ de facto relationship broke down on 22 November 2007 and was never resumed or recommenced in any way so as to endure past 1 March 2009, then there was no jurisdiction in the Court to make any order other than an order dismissing the proceedings for lack of jurisdiction. Certainly the making of an order under section 44(6) of the Family Law Act does not cure that fundamental jurisdictional issue.
(Emphasis added)
Respectfully, such observations cannot be accepted. The minute of orders, representing the parties’ formal agreement, resolved the jurisdictional dispute. Acting on such evidence, the other judge granted leave to bring the claim for property settlement out of time, which order was entirely futile unless jurisdiction actually existed to entertain the appellant’s claim. The existence of jurisdiction could perhaps have been proven by the appellant if the issue had remained contested, but that became unnecessary when the respondent conceded.
From the ancillary costs order made in the appellant’s favour, deferring the payment of such costs until after the respondent received his “share of entitlements” upon resolution of the substantive property settlement claim, it is abundantly clear that the existence of jurisdiction was integral to the orders made in April 2018.
The respondent’s deliberate decision to concede the existence of jurisdiction was confirmed by him before the primary judge in September 2020 and reiterated by him in the appeal, though without any apparent understanding of its significance.
The primary judge summarised the respondent’s concession of jurisdiction (at [37]–[38]), but later recited his actual evidence on the issue in this way (at [160]):
[APPELLANT’S COUNSEL]: Well, the solicitors there have said that you instructed them that that’s when the relationship?
RESPONDENT: They told me that’s what I had to say in order to get this court to be able to hear the matter, and I said, “Fine. So let’s go ahead”, because I wanted to get it finalised.
[APPELLANT’S COUNSEL]: So you did instruct him to say that, to admit to that?
RESPONDENT: I said you – yes, you can – I agreed to this letter.
[APPELLANT’S COUNSEL]: I suggest that you then – you made an admission there that the relationship did end after March 2009?
RESPONDENT: Yes. Well – well, my solicitor did that on my behalf. Yes.
[APPELLANT’S COUNSEL]: And you haven’t put any evidence about this agreeing with the solicitor’s advice, have you?
RESPONDENT: But that’s what I said when we first started off today or yesterday.
[APPELLANT’S COUNSEL]: You’ve never sought to withdraw that admission? You haven’t sought the leave of the court to withdraw that admission?
RESPONDENT: No. I haven’t.
(Emphasis added)
In the appeal, the respondent submitted:
8.… The respondent was persuaded to agree [to the existence of jurisdiction] by [his solicitors and barrister]. …
9. … [I]t was recommended [by the lawyers] on a financial savings basis to the respondent to take the easier and less expensive option of focusing on property distribution. …
(Respondent’s Summary of Argument filed 17 October 2022)
Evidently, the respondent acted upon his lawyers’ advice, no matter how reluctantly, by making a conscious decision to concede jurisdiction so that the litigious dispute would then be confined to the nature of the substantive property settlement.
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)).
Neither the primary judge nor the respondent was precluded by the principle of “issue estoppel” from re-revisiting the issue of jurisdiction at the hearing, as the orders made in April 2018 were interlocutory in nature and did not finally resolve the issue of jurisdiction between the parties in the form of an anterior final judgment (Clayton v Bant (2020) 272 CLR 1 at [69]; Tomlinsonv Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [21]–[22] and [90]; Jackson v Goldsmith (1958) 81 CLR 446 at 466; Blair v Curran (1939) 62 CLR 464 at 531). Nevertheless, unless and until the parties were released from their binding concessions in the proceedings, the primary judge could not go behind the orders made by the other judge in April 2018.
There would have been no impediment to his Honour dismissing the appellant’s substantive application for property settlement relief on merit, but her application could not be dismissed for want of jurisdiction due to a finding of the relationship’s breakdown before 1 March 2009, which was the express premise for the dismissal order. The ultimate finding was expressed thus by the primary judge:
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.
This error of law means the appeal must succeed.
The appellant sought that the proceedings be remitted for re-hearing if the appeal was allowed, which is an appropriate remedial order to make because there has not yet been any exercise of discretion to settle the parties’ rights within original jurisdiction. The application was dismissed for failure to establish a jurisdictional fact.
The respondent conceded jurisdiction exists to entertain the appellant’s application for relief under Pt VIIIAB of the Act and the appellant has been granted leave to prosecute it, so another judge will need to determine two aspects of the dispute: first, the factual question of precisely when the de facto relationship finally broke down, given the respondent formally admitted it was “shortly after March 2009” and the appellant alleges it was some years later; and secondly, the discretionary question of what, if any, property settlement relief should be granted.
The re-hearing should be conducted by another judge as the primary judge made adverse findings about the appellant’s reliability (at [189]–[192]).
The appeal
Given the necessity of allowing the appeal for the error of law already explained, cursory consideration of the grounds of appeal will suffice. That is particularly so when the appellant’s Summary of Argument did not correspond with the pleaded grounds of appeal and the respondent’s Summary of Argument failed to respond to either the pleaded grounds or the appellant’s written submissions. The two Summaries of Argument were like ships passing in the night, neither being equipped with lights or radar.
Ground 2 complains the appellant was denied procedural fairness. As best can be discerned, it asserts the primary judge’s refusal to accept and act upon the respondent’s admission of jurisdiction at the trial took the appellant by surprise. That may be so, but the appellant had three days of trial and then written submissions thereafter within which to convince the primary judge of the existence of jurisdiction. The appellant was not denied the chance to make good her case. The error lay in the decision reached by his Honour; not in the manner the hearing was conducted.
Ground 1 complains the primary judge “applied an incorrect principle of law” by holding the issue of jurisdiction was still alive at the hearing, when the issue was settled by the respondent’s concession and the earlier orders made in April 2018. In effect, this is the point already made about the error of law, so no more need be said.
Grounds 3, 4 and 5 collectively complain of the factual finding that the parties’ de facto relationship ended in November 2007 and did not resume thereafter, which is asserted to be mistaken (Grounds 3 and 4(b)) and otherwise liable to be vitiated, either because irrelevant matters were taken into account (Ground 4(a)), relevant matters were not taken into account (Grounds 4(c) and 4(d)), or insufficient weight was given to factors prescribed by s 4AA(2) of the Act (Ground 5). It is best not to broach these grounds when the dispute must be re-heard, so the new judge is able to reach an independent factual determination without extraneous commentary.
Application to adduce further evidence
The respondent, by way of an Application in an Appeal filed on 29 September 2022, sought leave to adduce as further evidence in the appeal his affidavit filed on the same date. Without either amending the Application or filing another, the respondent filed two more affidavits on 6 October 2022 and 24 October 2022, the former of which he deposed was an “updated version” of the first affidavit and the latter of which was supplementary. The respondent wanted to adduce all three affidavits as further evidence in the appeal, but either did not understand or disregarded the impropriety of progressively leaking affidavits as the hearing approached.
The application to adduce further evidence should be refused for two reasons. First, no amount of further evidence will cure the appealable error of law already identified. Secondly, the further evidence would not survive the application of established principles concerning its reception (CDJ v VAJ (1998) 197 CLR 172). Respondents may be permitted to adduce further evidence to buttress favourable findings of the trial judge in an endeavour to resist appeals (CDJ v VAJ at [103], [107] and [109]), but not if the evidence fails to serve that purpose or falls foul of other principles. All of the documents upon which the respondent wanted to rely are historical and either were or could have been available to tender at the trial (CDJ v VAJ at [55], [114], [116] and [186.9]).
Two such documents were affidavits actually filed by the respondent in the proceedings in January 2018 – one by him and one by another witness – but they were deliberately not read in evidence at the trial. The respondent should be bound by that tactical decision.
Two other documents were, first, the letter of advice written by the respondent’s former barrister to his former solicitors on 15 February 2018 advising that he should concede the issue of jurisdiction, and secondly, the letter written by his solicitors to the appellant’s lawyers on 16 February 2018 conceding the issue of jurisdiction, consistently with the barrister’s advice. Both those letters were available and were referred to in the trial, but neither was tendered in evidence. Nevertheless, their provenance and import were not in doubt before the primary judge (at [27], [155] and [159]).
The respondent also sought to adduce:
(a)correspondence written in September 2012 by the appellant’s former solicitors, but some such correspondence from September and November 2012 was tendered at trial and was expressly referred to in the reasons for judgment (at [149], [150] and [161]);
(b)documents supposedly proving the parties’ separate purchase of airline tickets for their international travel after November 2007, but the respondent conceded “[t]his evidence was submitted at the hearing but only a summary list was reviewed in evidence”;
(c)documents purporting to show the appellant’s receipt of income for providing accommodation to students from 2007 onwards and also by way of child support, but her receipt of income in those forms was not contentious and was referred to in the reasons for judgment (at [120]–[123], [126]–[132] and [188]);
(d)a Centrelink report from April 2011 supposedly showing the payment of a Newstart allowance between 2010 and 2011; and
(e)an excerpt of the respondent’s tax return for the 2009–2010 financial year.
As can be seen, none of the proposed further evidence helps the respondent to resist the appeal.
Disposition
The appeal is allowed.
The proceedings are remitted for re-hearing by another judge.
The appeal succeeds by reason of an error of law, not induced by the respondent. There is no proper basis upon which to make any costs order against the respondent, particularly given the appellant’s unexplained failure to file and serve a schedule of costs as ordered by the appeal registrar. The appellant should have costs certificates for both the appeal and the re-hearing. The respondent was self-represented in the appeal and has no need for any costs certificate. He expects to be self-represented in the re-hearing and did not make any application for a costs certificate in that respect.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 27 October 2022
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