FABRIZI and GRASSO (Deceased) by his legal personal representative GRASSO (JNR)
[2019] FCWA 176
•16 AUGUST 2019
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: FABRIZI and GRASSO (Deceased) by his legal personal representative GRASSO (JNR) [2019] FCWA 176
CORAM: DUNCANSON J
HEARD: 21 MAY 2019
DELIVERED : 16 AUGUST 2019
FILE NO/S: PTW 1820 of 2018
BETWEEN: MS FABRIZI
Applicant
AND
MR GRASSO (Deceased) by his legal personal representative MR GRASSO (JNR)
Respondent
Catchwords:
FAMILY LAW - JURISDICTION - Whether a de facto relationship has to have ended before a party can commence proceedings under s 205ZG of the Family Court Act 1997 - Where the parties' de facto relationship had not ended - Where the applicant applied for property settlement orders - Where the respondent subsequently died - Where the respondent's legal personal representative seeks a dismissal of the application on the basis that the court lacks jurisdiction as the relationship had not ended - Interpretation of s 205ZB of the Act - Where it is found that there is no requirement in the Act for a de facto relationship to have ended before a party can commence proceedings for property settlement
Legislation:
Commonwealth Powers (De Facto Relationship) Act 2006 (WA)
Duties Act 2008 (WA)
Family Court (Amendment) Act 2002 (WA)
Family Court Act 1997 (WA), Pt 5A, s 205U, s 205W, s 205X, s 205Y, s 205Z, s 205ZB, s 205ZG, s 205ZJ, s 205ZN, s 205ZO
Family Court Amendment Bill 2001 (WA)
Family Law Act 1975 (Cth), Pt V, Div 2, s 4(1), s 4AA, s 31, s 44, s 79, s 81, s 90B, s 90C, s 90SB, 90SD, s 90SM, s 90ST, s 90UB, s 90UC
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (WA)
Family Legislation Amendment Bill 2006 (WA)
Income Tax Assessment Act 1997 (Cth)
Interpretation Act 1984 (WA), s 13A, s 18, s 19, s 32
Category: Reportable
Representation:
Counsel:
| Applicant | : | Mr S Penglis SC |
| Respondent | : | Mr J Hedges SC |
Solicitors:
| Applicant | : | Butlers |
| Respondent | : | Murcia Pestell Hillard |
Case(s) referred to in decision(s):
Avwest Aircraft Pty Ltd (as Trustee for the Avwest Aircraft Trust) v Clayton Utz (a firm) [2018] WASC 167
Banaszak & Executors of the Estate of Ms S Mandia and Anor (No 2) [2015] FamCA 235
Clough Projects Australia Pty Ltd v Floreani [2018] WASC 101
Commonwealth v Baune (1905) 2 CLR 405
Hayes & Eddington (No 3) [2014] FamCA 336
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Stanford v Stanford (2012) 247 CLR 108
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED
1On 19 February 2018 the applicant, [Ms Fabrizi] filed an initiating application in which she seeks orders for property settlement and/or spousal maintenance to be specified in a minute of orders sought to be filed within 28 days of service of the application.
2The respondent in the application is [Mr Grasso] with whom the applicant had been in a de facto relationship since 1997.
3At the time of filing her application the applicant remained in a de facto relationship with the respondent and their relationship continued until the respondent's death [in early] 2018.
4Prior to the respondent's death the applicant became concerned that she may not receive appropriate financial provision upon his death and as a consequence she filed this application.
5The application was served upon [Mr Grasso Jnr] who is the respondent's son and his legal personal representative.
6On 1 November 2018 an order was made that the respondent be substituted in the proceedings by his legal personal representative.
7On 8 November 2018 the respondent filed a response to the applicant's application in which he seeks an order that the application be dismissed for want of jurisdiction on the basis that the de facto relationship between the parties had not ended.
THE ISSUE
8The issue for determination in these proceedings is whether a de facto relationship has to have ended before a party can commence proceedings under s 205ZG of the Family Court Act 1997 (WA) ("the State Act") for alteration of property interests.
THE LAW
9In these reasons I shall refer to the Family Law Act 1975 (Cth) as the federal Act and the Family Court Act 1997 (WA) as the State Act.
10The relevant State legislation is contained within Part 5A of the State Act which is headed:
Part 5A – De facto relationships
11Section 205U of the State Act provides as follows:
205U. Application of Part generally
(1)This Part applies to de facto relationships.
(2)However, this Part does not apply to a de facto relationship that ended before the commencement of this Part.
(3)This Part does not authorise anything that would otherwise be unlawful.
12The term de facto relationship is not defined in the State Act.
13Section 13A of the Interpretation Act 1984 (WA) (“the Interpretation Act”) provides a definition of de facto relationships:
13A. De facto relationship and de facto partner, references to
(1)A reference in a written law to a de facto relationship shall be construed as a reference to a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship.
14Section 13A (2) of the Interpretation Act sets out factors which are indicators of whether or not a de facto relationship exists, between two persons, but are not essential.
15Section 205X of the State Act provides as follows:
205X. People to whom this Part applies – connection with WA
Despite section 36(5), before making an order under this Division a court must be satisfied –
(a)That one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and
(b)That –
(i)Both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or
(ii)Substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant.
16Section 205Y provides:
205Y. Court not otherwise limited by connection with WA referred to in section 205X
Where a court is satisfied as to the matters specified in section 205X(a) and (b), it may make an order under this Division by reason of facts and circumstances even if those facts and circumstances, or some of them, took place before the day on which the application was made or outside the State.
17Sections 205Z and 205ZB provide as follows:
205Z. Where court may make order under this Division
(1)A court may make an order in relation to a de facto relationship only if satisfied –
(a)There has been a de facto relationship between the partners for at least 2 years; or
(b)There is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c)The de facto partner who applies for the order made substantial contributions of a kind mentioned in section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
(2)In deciding whether there has been a de facto relationship between the partners for at least 2 years, the court must consider whether there was any break in the continuity of the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.
(3)Subsection (2) does not limit the matters the court may consider.
205ZB. Applications, and notifications to spouses
(1)A de facto partner whose de facto relationship has ended may apply for an order under this Division in relation to the relationship only if the application is made within 2 years (the application period) after the relationship ended.
(2)However, the court may grant a de facto partner leave to apply after the application period if satisfied that hardship would be caused to a de facto partner if leave were not granted.
(3)If a de facto partner who is a party to an application under this Division has a spouse, that person is to give that spouse notification of the application in accordance with the rules.
18Section 205ZG relevantly provides:
205ZG. Alteration of property interests — FLA s. 79
(1)In proceedings with respect to the property of de facto partners, or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property and including an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines.
…
19Section 205ZJ provides:
205ZJ. Duty of court to end financial relations of de facto partners — FLA s. 81
In considering what order to make in a proceeding under this Division, other than under section 205ZA, a court must, as far as practicable, make such orders as will finally determine the financial relationships between de facto partners who are no longer in a de facto relationship and avoid further proceedings between them.
THE SUBMISSIONS
20The respondent relied on an outline of submissions filed 9 April 2019. The applicant relied on an outline of submissions filed 30 April 2019. The respondent also relied on a response to the applicant's submissions filed 17 May 2019. The matter came before the Court on 21 May 2019 when the decision was reserved.
The respondent's submissions
21Counsel for the respondent referred to s 205ZB of the State Act. He submitted it could have provided:
A de facto partner may apply for an order under this Division only if the application is made within two years after the relationship has ended.
22Counsel also referred to s 44(5) of the federal Act which relevantly provides as follows:
44. Institution of proceedings
…
(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i)2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b)both parties to the de facto relationship consent to the application.
23Section 90SM of the federal Act relevantly provides:
90SM. Alteration of property interests
(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them – altering the interests of the parties to the de facto relationship in the property; or
…
24Counsel submitted that the words "whose relationship has ended" in s 205ZB of the State Act must have the effect of limiting the circumstances in which an application may be commenced or the words would serve no purpose. He submitted that meaning must be given to those words or they would be completely redundant.
25Counsel referred to s 205ZG of the State Act. He submitted that s 205ZJ could have provided (as the federal Act provides at s 90ST):
In considering what order to make in a proceeding under this Division, other than under section 205ZA, a court must, as far as practicable, make such orders as will finally determine the financial relationships between de facto partners and avoid further proceedings between them.
26The Respondent questioned why the draftsman added in to s 205ZJ "partners who are no longer in a de facto relationship" when it could have been left blank as in s 90ST of the federal Act.
27Counsel referred to ss 205ZN and 205ZO of the State Act which deal with financial agreements and provide relevantly as follows:
205ZN. Financial agreements before beginning de facto relationship — FLA s. 90B
(1)If —
(a)people who are contemplating entering into a de facto relationship with each other make a written agreement with respect to any of the matters mentioned in subsection (2); and
(b)at the time of the making of the agreement, no other agreement (whether made under this section or section 205ZO or 205ZP) is in force between the parties with respect to any of those matters; and
(c)the agreement is expressed to be made under this section,
the agreement is a financial agreement.
(2)The matters referred to in subsection (1)(a) are the following -
(a)how, in the event of the breakdown of the de facto relationship, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and before the breakdown of the relationship, is to be dealt with;
(b)the maintenance of either of them —
(i)during the de facto relationship; or
(ii)after the de facto relationship has ended; or
(iii)both during the de facto relationship and after the de facto relationship has ended.
…
205ZO. Financial agreements during de facto relationship — FLA s. 90C
(1)If —
(a)de facto partners in a de facto relationship make a written agreement with respect to any of the matters mentioned in subsection (2); and
(b)at the time of the making of the agreement, no other agreement (whether made under this section or section 205ZN or 205ZP) is in force between the partners with respect to any of those matters; and
(c)the agreement is expressed to be made under this section,
the agreement is a financial agreement.
(2)The matters referred to in subsection (1)(a) are the following —
(a)how, in the event of the breakdown of the de facto relationship, all or any of the property or financial resources of either or both of them at the time when the agreement is made, or at a later time and during the de facto relationship, is to be dealt with;
(b)the maintenance of either of them —
(i)during the de facto relationship; or
(ii)after the de facto relationship has ended; or
(iii)both during the de facto relationship and after the de facto relationship has ended.
…
28Section 205W of the State Act provides that Division 2 (Property adjustment orders and maintenance orders) does not apply to certain matters covered by binding financial agreements or former financial agreements.
29Counsel submitted that the effect of these sections taken together is that parties who contract out of their entitlements under the State Act have no right to commence proceedings to set aside their financial agreement until after the relationship has broken down and in turn they have no right to commence proceedings for alteration of property interests unless the binding financial agreement ("BFA") has been set aside.
30Counsel submitted that the provisions dealing with BFAs in the State Act which were introduced at the same time as the de facto property provisions in 2002 are consistent with an interpretation of s 205ZB which requires the breakdown of a relationship before proceedings can be commenced. Counsel submitted these sections are also consistent with provisions in the federal Act dealing with financial agreements between de facto partners being ss 90UB and 90UC, both of which require BFAs to deal with distribution of property "in the event of the breakdown of the de facto relationship".
31As to the purposes of the State Act and to the extent that there is ambiguity in the wording of s 205ZB, counsel referred to s 18 of the Interpretation Act which provides:
18. Purpose or object of written law, use of in interpretation
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
32Counsel referred to statements made by the Attorney General in the second reading speech on the Family Court Amendment Bill 2001 (WA) which introduced the provisions and also in the second reading speech on the Family Legislation Amendment Bill 2006 (WA). These speeches made reference to relationships between de facto partners which have broken down or ended.
33Counsel distinguished Stanford v Stanford (2012) 247 CLR 108 wherein the Court rejected the argument that there was no power to make orders under s 79 of the federal Act because the parties' marriage was intact. The plurality held that proceedings were a matrimonial cause as defined in s 4(1) of the federal Act being proceedings between parties to a marriage with respect to the property of the parties to the marriage arising out of the marital relationship.
34Counsel for the respondent contrasted that to the definition of a de facto financial cause contained in the federal Act which provides at s 4(1)(c) that de facto financial cause means:
(c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or
…
35Counsel referred to the decision of Cronin J in Banaszak & Executors of the Estate of Ms S Mandia and Anor (No 2) [2015] FamCA 235 as authority for the proposition that the Court has no jurisdiction in de facto applications for alteration of property interests until there is established a breakdown of the relationship which confirmed the position in Hayes & Eddington (No 3) [2014] FamCA 336.
36Counsel submitted the purpose of the Commonwealth de facto legislation was to provide for a consistent and uniform approach for de facto relationships across Australia and submitted it was recognised that it is unsatisfactory for de facto couples to have different rights in different states and territories. He referred in this respect to the second reading speech on the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) which introduced the provisions.
37Counsel also referred to a submission on the Bill made by the Honourable Stephen Thackray, Chief Judge of the Family Court of Western Australia ("FCWA") dated 23 July 2008, to the effect that the State Act replicates almost all of the property provisions of the federal Act. Counsel submitted that this submission by his Honour should be read in the context of a breakdown of the relationship being a requirement under the federal Act and also under the State Act.
38Counsel submitted that the question of whether the requirement in the federal Act to make a finding that there has been a breakdown of the de facto relationship amounts to the same jurisdictional fact finding issue as the determination of whether a de facto relationship has ended.
39He further submitted that if the answer to that question is "yes", then it follows that in accordance with s 205ZB of the State Act, proceedings under that Act for the alteration of the parties' interest in property cannot be commenced until the relationship has ended.
40Counsel referred to consistency with other legislation, including the Commonwealth Powers (De Facto Relationship) Act 2006 (WA), the Duties Act 2008 (WA) and the Income Tax Assessment Act 1997 (Cth). He submitted the provisions of that legislation are consistent with an interpretation of s 205ZB of the State Act requiring the breakdown of the relationship before the Court's jurisdiction to alter property interests is enlivened.
41Counsel submitted the clear purpose of Commonwealth and State legislation is to enable de facto partners to deal with their property interests after the breakdown of their relationship.
42Counsel submitted it is undesirable and serves little purpose for parties to be able to litigate over these issues before the breakdown of their relationship. He submitted it would also create inconsistencies with the s 205ZJ requirement for the Court to "finally determine the financial relationship between de facto partners who are no longer in the de facto relationship;" with the BFA regime in the State Act and with other relevant legislation.
43In response to the applicant's submissions, the respondent noted comparisons between the State Act and the federal Act including:
•The meaning of "de facto relationship" in s 4AA of the federal Act is indistinguishable from the definition in s 13A of the Interpretation Act.
•The limitation in s 205X is indistinguishable from the limitation in s 90SD(1) of the federal Act and he described those sections as "geographical preconditions" to the exercise of jurisdiction.
•Sections 90SB(a), (b) and (c) are in identical terms to s205Z(1).
44In further response to the applicant's submissions, counsel submitted that the applicant's construction of s 205ZB as purely a temporal limitation renders the words "whose de facto relationship has ended" superfluous and contrary to the interpretative principle that "no clause, sentence, or word shall prove superfluous, void or insignificant, if by any other construction they may all be made useful and pertinent"; [71] of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 (per McHugh, Gummow, Kirby and Hayne JJ, citing Commonwealth v Baune (1905) 2 CLR 405 at 414.
45Counsel referred to the relevant principles of statutory construction as summarised by Tottle J in Clough Projects Australia Pty Ltd v Floreani [2018] WASC 101 at [36].
46Further, with respect to the applicant's submissions relating to statutory construction, counsel referred to s 19 of the Interpretation Act which relevantly provides as follows:
19. Extrinsic material, use of in interpretation
(1)Subject to subsection (3), in the interpretation of a provision of a written law, if any material not forming part of the written law is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material -
(a)to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b)to determine the meaning of the provision when -
(i)the provision is ambiguous or obscure; or
(ii)the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
(2)Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of a written law includes —
(a)all matters not forming part of the written law that are set out in the document containing the text of the written law as printed by the Government Printer; and
(b)any relevant report of a Royal Commission, Law Reform Commission, committee of inquiry or other similar body that was laid before either House of Parliament before the time when the provision was enacted; and
(c)any relevant report of a committee of Parliament or of either House of Parliament that was made to Parliament or that House of Parliament before the time when the provision was enacted; and
(d)any treaty or other international agreement that is referred to in the written law; and
(e)any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of Parliament by a Minister before the time when the provision was enacted; and
(f)the speech made to a House of Parliament by a Minister on the occasion of the moving of a motion that the Bill containing the provision be read a second time in that House; and
(g)any document (whether or not a document to which a preceding paragraph applies) that is declared by the written law to be a relevant document for the purposes of this section; and
(h)any relevant material in any official record of proceedings in either House of Parliament.
…
47Counsel submitted the ordinary meaning conveyed by the text of s 205ZB is that it is limited to a partner whose relationship has ended and thus s 19(1)(a) is applicable. Counsel further submitted at the very least it must be said the wording is ambiguous and therefore s 19(1)(b) is applicable.
48In further response, counsel submitted the submission of the Honourable Stephen Thackray is material which may be considered in the interpretation of a provision of a written law pursuant to s 19(2)(b) of the Interpretation Act, but in any event s 19(1) of the said Act allows consideration to be given to it.
The applicant's submissions
49As to the legislation, counsel for the applicant submitted that there are significant and in the context of this application, important differences between the federal Act and the State Act and having regard to the different wording, the federal Act has no relevance to the interpretation of the relevant provisions of the State Act.
50Part V Division 2 of the federal Act confers jurisdiction on the FCWA in de facto financial causes. They are defined as set out at [34] above as proceedings between the parties after the breakdown of the de facto relationship.
51Counsel referred to the heading of Part 5A of the State Act which is "De facto relationships" and submitted by reason of s 32 of the Interpretation Act regard should be had to that heading. Section 32 of the Interpretation Act relevantly provides:
32. Headings, marginal notes and footnotes
(1)The headings of the Parts, divisions and subdivisions into which a written law is divided form part of the written law.
...
52Part 5A Division 2 of the State Act confers jurisdiction on the FCWA, not by reference to a de facto financial cause, but as set out at s 205U(1) which provides that the part applies to de facto relationships. Unlike the federal Act, a de facto relationship is not defined in the State Act, so s 13A of the Interpretation Act applies.
53Counsel submitted there is no reference in the heading of Part 5A or s 205U to relationships that have ended. The only limitation on the people to whom the part applies is a nexus with Western Australia. This is set out in s 205X.
54Counsel for the applicant submitted, in the context of s 205Y, s 205Z sets out where the court may make an order under the Division. This section contains the jurisdictional provisions to make an order under the Division, none of which refer to the relationship having ended.
55Counsel submitted there is no reference to and thus no requirement for the de facto relationship having ended.
56The only reference to a de facto relationship ending is that contained in s 205ZB(1) with respect to which counsel submitted at [18] of the applicant's outline of submissions:
18.That section does no more than provide a temporal limitation on when an application may be made by a de facto partner if the relationship has ended. It simply is irrelevant to an application by a "de facto partner whose de facto relationship has (not) ended". In particular, it does not precondition the Court's power to make orders as between de facto partners: a power provided in the sections referred to above.
57Counsel submitted s 205ZB is not the source of the Court's power to make an order or the source of a party's ability to make an application. He submitted s 205ZB provides that if one can bring an application under the Division, if the relationship has ended, one must do so within two years. In that way he said, the applicant's interpretation gives meaning to those words.
58Section 205ZG of the State Act empowers the Court to make such orders as it considers appropriate altering the interests of the parties in their property but there is no limitation by reference to the relationship having ended.
59Counsel for the applicant referred to the proper rules of statutory construction as summarised by Vaughan J in Avwest Aircraft Pty Ltd (as Trustee for the Avwest Aircraft Trust) v Clayton Utz (a firm) [2018] WASC 167, at [50] – [53].
60Counsel submitted, relying on s 19 of the Interpretation Act, that the submission of the Honourable Stephen Thackray cannot be used in the process of statutory construction, but that aside his Honour was entirely correct. The rights and obligations when comparing the two Acts are similar, but are not identical. Rather than adopting the same wording as the federal Act, the State Act removes the necessity for a breakdown of the relationship.
61Counsel submitted that if the respondent was correct it would mean a de facto partner could not make an application for maintenance unless the relationship had ended, nor could a partner apply for a declaration as to his or her interest in property unless the relationship had ended.
62Counsel submitted that throughout the respondent’s submissions it is contended that the State Act "could have provided" alternative words to those adopted in the said Act, but the point is that it did not.
63Counsel referred to the respondent's comparison between s 205ZJ of the State Act which requires the Court to make orders "as will finally determine the financial relationship between de facto partners who are no longer in a de facto relationship and avoid further proceedings between them" and s 90ST of the federal Act which requires the Court to make orders "as will finally determine the financial relationship between the parties to the de facto relationship and avoid further proceedings between them". Counsel submitted the comparison did not reinforce the respondent's argument because if the respondent was correct and an application could only be made if the relationship has ended, the words "who are no longer in a de facto relationship" in s 205ZJ were not needed. Counsel submitted the fact those words appear there reinforces the applicant's submission that an application can be made under the Division even though the relationship had not ended.
64Counsel for the applicant referred to cases under the federal Act in which an application had been allowed despite the relationship not having broken down. However, there are no relevant cases pursuant to the State Act and Counsel submitted that the cases applying the federal Act do not assist in determining the proper construction of the relevant provisions of the State Act, but are instead a distraction which would lead the Court into error.
65Counsel concluded that the requirement for a breakdown of a de facto relationship in Western Australia is intentionally absent and that the State Act should not be read as to so limit the Court's jurisdiction.
CONCLUSION
66The FCWA has federal jurisdiction in respect to matters under the federal Act and non-federal jurisdictions conferred by the State Act. The provisions of the two Acts are identical in many respects, but not all and as is apparent from the parties' submissions there are significant differences. It is misleading to compare the two with a view to interpreting the State Act in accordance with the federal Act, instead the comparison highlights the differences between the two Acts.
67The Family Court (Amendment) Act 2002 (WA) introduced the amendments to the State Act with respect to de facto relationships.
68Part 5A of the State Act is headed "De facto relationships". Unlike the federal Act which confers jurisdiction upon the Family Court by virtue of s 31(1)(a)(aa), the State Act confers jurisdiction on the FCWA by reference to de facto relationships and not a de facto financial cause.
69The heading of both Part 5A and s 205U refer to de facto relationships and not de facto relationships that have ended.
70Section 205Z contains the jurisdictional provisions and sets out the circumstances of which the Court must be satisfied to enable it to make an order in relation to a de facto relationship. The section does not refer to a de facto relationship that has ended or broken down. This absence cannot be ignored.
71The FCWA does not exercise its jurisdiction pursuant to s 205ZB. Section 205ZB provides that where a de facto relationship has ended an application must be made within two years of the relationship having ended. This is consistent with the provisions for married people in the federal Act at s 44(3).
72Thus both married persons in Western Australia and those in a de facto relationship have the same rights and obligations in circumstances where their relationship has ended.
73In the context of the Commonwealth Powers (De Facto Relationships) Act 2006 which has not yet come into effect, Anthony Dickey QC stated with reference to the Family Court Act 1997 (WA):
The rights of de facto partners under the Family Court Act 1975 (sic) are more extensive than those within the scope of the reference of powers to the Parliament by the other States and the Northern Territory as Part 5A of the State Act does not limit financial relief only to matters arising out of the breakdown of a de facto relationship. (Family Law 6th edition 2014 page 39)
74As to the interpretation of the State Act, Counsel for both parties referred to the principles of statutory construction. Section 18 of the Interpretation Act provides that a construction that would promote the purpose or object underlying the written law is to be preferred to one that would not. The use of extrinsic material is permissible in the interpretation of legislation.
75Those parts of the second reading speeches of the Attorney General on the Family Court Amendment Bill 2001 (WA) and the Family Legalisation Amendment Bill 2006 (WA) quoted by the respondent in submissions made reference to a "breakdown" of a relationship.
76In the second reading speech on the Family Court Amendment Bill 2001 (WA), the Attorney General also referred to de facto couples being given the same property and maintenance rights as married couples. The Attorney General said, interalia:
…
This Bill makes extensive and comprehensive provision for the resolution of de facto property and maintenance disputes. For the benefit of members, I will outline the major principles. The Family Court Amendment Bill 2001 recognises de facto spouses in opposite and same-sex relationships and provides them with the same property and maintenance rights as married couples. In order for the rights under this Bill to apply, the Family Court of Western Australia must determine that a de facto relationship exists or has existed.
…
The Bill provides a mechanism for the resolution of property disputes between de facto couples. It gives the Family Court of Western Australia the power to make orders to adjust the property interests of the de facto couple. However, the court may make a property order in only three situations. First, when the parties have been in a de facto relationship for at least two years. Secondly, when a child of the partners of the de facto relationship is less than 18 years of age and a serious injustice would result to a partner. Thirdly, when the applicant made substantial contributions to property and a serious injustice would otherwise result.
The rights given to de facto partners under this Bill are the same rights given to married couples. This may seem inappropriate as some people choose to have a de facto relationship because they wish to avoid the obligations that the law imposes on married couples. However, this Bill also provides de facto couples with the ability to contract out of these laws by entering into a financial agreement.
…
This Bill will provide to de facto couples essentially the same rights and entitlements as are enjoyed by the parties to a marriage in relation to property, maintenance, parenting orders, etc. This legislation will bring Western Australia substantially into line with the other States…
77In the second reading speech on the Family Legislation Amendment Bill 2006 (WA), the Attorney General also said:
Applications for property settlement: In addition, the bill amends section 205ZB(1) of the Western Australian Family Court Act 1997, which provides that on the breakdown of a de facto relationship, an application for property settlement and maintenance must be made within one year after that relationship ends. The equivalent provision in section 44(3) of the commonwealth Family Law Act 1975 provides that a former partner to a marriage is to take action for property settlement and spousal maintenance within one year after divorce. As divorce proceedings cannot be instituted until there has been a one-year separation, there is effectively a two year period for married persons to make application. De facto partners ought to be treated equally before the law. Accordingly, the bill will amend section 205ZB(1) of the Western Australian Family Court Act 1997 to provide that an application for property settlement and maintenance ought to be made following the breakdown of a de facto relationship within two years of the breakdown. The amendment will also limit the number of applications made for leave to proceed out of time.
78Counsel for the respondent submitted that other legislation is consistent with an interpretation of s 205ZB of the State Act requiring the breakdown of the relationship before the Court's jurisdiction to alter property interests is enlivened. A construction of the State Act that would promote the purpose or object underlying the written law is to be preferred over one that would not and the construction is not required to bring about consistency with other legislation.
79In my view, in the interpretation of s 205ZB of the State Act, a construction which places de facto couples in Western Australia in the same position as married couples in Western Australia is to be preferred over a construction that does not.
80I agree with the applicant's submission that s 205ZB merely provides a temporal limitation on when an application may be made by a de facto partner if the relationship has ended, and it is not relevant to an application by a de facto partner whose relationship has not ended.
81There is no reference to a de facto relationship having ended or broken down in s 205Z of the State Act which sets out the circumstances where the Court may make an order.
82I conclude there is no requirement in the State Act for a de facto relationship to have ended before a party can commence proceedings.
83I propose to dismiss the response filed 8 November 2018 insofar as it seeks the dismissal of the application for want of jurisdiction on the basis that the de facto relationship had not ended.
84The proceedings will be listed for procedural orders.
THE ORDERS
1The order sought by the respondent that the application of the applicant filed 19 February 2018 be dismissed for want of jurisdiction on the basis that the de facto relationship had not ended, be dismissed.
2The proceedings be listed for directions on 2 September 2019 at 10.00 am, in the Duty Judge List.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.
RM
Associate16 AUGUST 2019
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