Fenton & Marvel
[2013] FamCAFC 132
•29 August 2013
FAMILY COURT OF AUSTRALIA
| FENTON & MARVEL | [2013] FamCAFC 132 |
| FAMILY LAW – APPEAL – DECLARATION REGARDING DE FACTO RELATIONSHIP – where the appellant appeals from an order of the Federal Magistrate declaring that a de facto relationship never existed between he and the respondent for the purposes of property settlement proceedings – where none of the grounds of appeal address the error upon which the appeal ultimately succeeded – where the Federal Magistrate erred in law in holding that in order for the court to have jurisdiction, the de facto relationship must be in existence on the date of commencement – where the jurisdictional requirement is that the relationship broke down finally after commencement – appeal allowed – matter remitted for rehearing. |
| Allesch v Maunz (2000) 203 CLR 172 Australian Style Pty Ltd v Domain Administration Ltd [2010] VSCA 184 Cornwell v R (2007) 231 CLR 260 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Dahl & Hamblin (2011) FLC 93-480 Fenton & Marvel [2012] FamCAFC 150 Gludau & Gludau [2013] FamCAFC 112 Harris v Caladine (1991) 172 CLR 84 Kudelka and Kudelka (1986) FLC 91-719 Kuru v The State of New South Wales (2008) 236 CLR 1 Tyson and Tyson (No 2) (1993) FLC 92-401 Warren v Coombes (1979) 142 CLR 531 |
| Commonwealth Powers (De Facto Relationships) Act2003 (Qld) Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) Explanatory Memorandum, Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) |
| APPELLANT: | Mr Fenton |
| RESPONDENT: | Ms Marvel |
| FILE NUMBER: | BRC | 3551 | of | 2010 |
| APPEAL NUMBER: | NA | 3 | of | 2012 |
| DATE DELIVERED: | 29 August 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland and Murphy JJ |
| HEARING DATE: | 8 August 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 16 December 2011 |
| LOWER COURT MNC: | [2011] FMCAfam 1375 |
REPRESENTATION
| THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | Craig Ray & Associates |
Orders
The appeal be allowed.
The orders made by Coates FM (as his Honour then was) on 16 December 2011 be set aside.
The matter be remitted to the Federal Circuit Court for rehearing before a Judge other than Judge Coates.
Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
Pursuant to s 8 of the Costs Act, the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the new trial ordered by the court.
Pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
Pursuant to s 8 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the new trial ordered by the court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fenton & Marvel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 3 of 2012
File Number: BRC 3551 of 2010
| Mr Fenton |
Appellant
And
| Ms Marvel |
Respondent
REASONS FOR JUDGMENT
May J
I have had the considerable benefit of reading the judgments of Strickland and Murphy JJ. I agree the appeal should be allowed.
As Strickland J has explained there was an absence of necessary factual findings.
However, as Murphy J explains, and it is also my opinion, the more fundamental error is the conclusion of his Honour that it was necessary for him to find that he must “detect the relationship as at 1 March 2009” (Reasons para 103).
I agree the appeal should be allowed and that there is no option but to remit the matter for rehearing. I also agree with the orders in relation to costs and the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”).
Strickland J
Introduction
I have had the advantage of reading in draft the reasons for judgment of May J and Murphy J, and although I agree that the appeal should be allowed,
his Honour’s orders set aside, the proceedings remitted to the Federal Circuit Court for rehearing by another judge, and that costs certificates be issued to the parties for both the appeal and the rehearing, I do not agree that his Honour has made a fundamental error of law in concluding as he does in paragraph 103 of his reasons for judgment. I did indicate at the commencement of the hearing of the appeal that I shared the view of my colleagues, but I did so on a preliminary basis, and I have since heard the submissions of the respondent’s counsel, and I have reflected on the issue, and now arrived at a different view.
I say that the appeal should be allowed because his Honour failed to make the findings that were necessary to ensure that he had jurisdiction to hear the application, and to make the declaration that he did.
Discussion
Murphy J suggests that the judgment of the Federal Circuit Court judge “is informed by an error of law pertaining to a jurisdictional fact and his Honour’s order should be set aside.” That error is said to arise principally in paragraph 103 of the reasons for judgment where his Honour said this:
In putting all of this evidence into context, these parties have had a relationship between 1999 and August 2009. I could not determine that it was a de facto relationship or that such was existing as at 1 March 2009. Even if there was such at times between mid-2005 and August 2009, it could not be brought within the Act’s jurisdiction because I cannot detect the relationship as at 1 March 2009. Considering all of the facts together, I will dismiss the application and make the declaration that for the purposes of the Act, a de facto relationship did not exist.
In paragraph 44 below Murphy J suggests that his Honour commits this fundamental error in earlier paragraphs of his reasons as well, but I do not agree, and I will address this issue later in these reasons.
Concentrating on paragraph 103 of the reasons for judgment, the particular error said to be committed is his Honour’s conclusion from the evidence that he could not determine or detect that there was a de facto relationship “existing as at 1 March 2009”, and thus, even if there was a de facto relationship at times “it could not be brought within the Act’s jurisdiction”.
That is an error of law because, it is said, the test under the Act is not whether a de facto relationship existed as at 1 March 2009. It is put that the correct test is whether the de facto relationship broke down finally before 1 March 2009, and that his Honour did not apply that test.
Counsel for the respondent suggests that although his Honour may have expressed the test infelicitously in paragraph 103 of his reasons, when
his Honour’s reasons are read as a whole it can be seen that he recognised and looked to apply the correct principles in determining the dispute.
Dealing first with what is the correct test. To find jurisdiction there must be a de facto relationship which continues for at least two years (if none of paragraphs (b), (c) or (d) of s 90SB of the Family Law Act 1975 (Cth) (“the Act”) apply) and it must not have broken down finally before 1 March 2009.
Although item 86(1) of Schedule 1 Part 2 Division 2 of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“the Amendment Act”) provides that the Act does not apply to de facto relationships that have broken down before 1 March 2009, because s 90SB(a) allows for the aggregation of a period or periods totalling two years, and that can include periods before and after 1 March 2009, it is necessary to talk of the de facto relationship breaking down finally before 1 March 2009 in any description of the test.
Thus it can be seen that there is no discrete requirement that the de facto relationship be in existence on or as at 1 March 2009. Indeed, there can be jurisdiction even if the de facto relationship is not in existence on or as at that date.
However, depending on the circumstances of the case, I do not consider that it is an error to ask whether the evidence demonstrates that the de facto relationship exists as at or on 1 March 2009. That is just another way of asking whether the de facto relationship had broken down before 1 March 2009.
Clearly though, and again emphasising that it depends on the circumstances of the case, that may not be the only question that needs to be addressed. For example, if it is alleged that there was a de facto relationship for a period or periods before 1 March 2009 and a period or periods after, which totals two years, the further question that would need to be asked is whether the de facto relationship broke down finally before 1 March 2009, or put another way, whether it continued beyond 1 March 2009 (Dahl & Hamblin (2011) FLC 93-480).
It would not be necessary to ask these questions at all, however framed, if the issue is whether there was a de facto relationship that commenced on or after
1 March 2009, and thus in my view what is expressed by Murphy J in paragraph 67 below is not to the point.
In this case, the appellant was alleging that a de facto relationship existed from March 1999 to August 2009, and the respondent was seeking a declaration that there was a de facto relationship only from March 1999 to December 2001. Thus, it is apparent that in isolation, his Honour’s conclusions in paragraph 103 of his reasons, namely that on the evidence a de facto relationship did not exist as at 1 March 2009 was insufficient to determine the dispute. His Honour also needed to find that there was no de facto relationship which existed for a total period of two years incorporating periods both before and after 1 March 2009.
However, it is still necessary to consider the submissions of counsel for the respondent that an holistic reading of his Honour’s reasons nevertheless demonstrates that his Honour applied the correct principles in reaching his decision. In other words, in light of his Honour’s reasons as a whole, when concluding as he did in paragraph 103, he really had in mind that any de facto relationship that had been in existence had finally broken down before 1 March 2009.
The earlier paragraphs of his Honour’s reasons that might support this interpretation are paragraphs 2, 15, 27, 38 and 70.
The first two sentences of paragraph 2 read as follows:
The applicant has the onus of proving that such a relationship existed at and beyond 1 March 2009, which is the day the de facto jurisdiction under the Act came into operation. As well, such a relationship must comply with other requirements which I will outline. …
Plainly there, his Honour did not confine the inquiry to the date of 1 March 2009, and his Honour recognised that there may be a period or periods after
1 March 2009 that could be relevant.
Paragraph 15 of his Honour’s reasons reads as follows:
While the respondent’s initial material sought a declaration as to the time of the relationship, that does not seem to be required under s.90RD(1) because the section allows for a declaration that a de facto relationship, for the purposes of this proceeding, never existed. If such a declaration is made, that ends the proceeding with no need to state dates in the declaration, although such would be apparent from the reasons. That s.90RD(2) allows for a declaration as to when a de facto relationship ended would appear to have no utility if such ended prior to 1 March 2009 when the Commonwealth jurisdiction took over from consenting state jurisdictions. Such a declaration would lack purpose if a relationship cannot be brought within the 1 March 2009 starting date of the Act.
Unlike Murphy J I have no difficulty with this paragraph or its meaning. Importantly, in it his Honour recognised that there would be no point in making a specific declaration under s 90RD(2) of the Act that a de facto relationship ended before 1 March 2009, when a general declaration under s 90RD(1) that a de facto relationship never existed for the purposes of the proceedings serves the same purpose. His Honour of course made such a declaration, and in paragraph 103 of his reasons he says that that is what he proposes to do. Thus, it seems to me that paragraph 15 does go some way to demonstrate that his Honour was applying the correct principles in recognising where a relationship breaks down before 1 March 2009 there is no jurisdiction to make an order pursuant to s 90SM of the Act.
It is also noteworthy to refer to paragraph 16 of his Honour’s reasons where
his Honour clearly recognises that under s 90SB there can be an aggregation of periods including periods before and after 1 March 2009.
Paragraph 38 of his Honour’s reasons relevantly reads as follows:
However, the issue as to whether such a relationship existed, even between 2001 and 2005 and after, is clearly a live issue after mid-2005, and possibly enough to enliven the consideration of different periods making up a two year period extending over and beyond 1 March 2009, the starting date of the federal legislation. …
It seems to me that what his Honour says there is correct as a matter of principle.
Finally, paragraph 70 of his Honour’s reasons reads as follows:
To trigger the Act’s jurisdiction, it would be crucial for the applicant to establish that a de facto relationship was in existence at least immediately before and at midnight on the last day of February 2009, going into 1 March 2009, which is the operative date for the legislation.
This paragraph is also helpful in understanding what principles his Honour was applying, and importantly his Honour does not confine the inquiry to whether the de facto relationship was in existence as at 1 March 2009. It can be readily seen that his Honour was alive to the fact that the crucial issue was whether the de facto relationship had broken down before 1 March 2009.
In summary then, it can be seen from a fair reading of his Honour’s reasons as a whole that despite what he concluded in paragraph 103, in determining the dispute he was not solely looking at whether the de facto relationship existed as at 1 March 2009.
These are also the paragraphs that Murphy J suggests each reveal, in addition to paragraph 103, that “his Honour erred fundamentally as a matter of law”. I have said above that I do not agree with that proposition, and I have now set out my reasons for that view.
I also mention that I have difficulty with the attempt Murphy J makes (for example in paragraph 63 below) to frame the questions that need to be answered to found jurisdiction. Murphy J indicates that the questions are “interrelated”, but in my view it is more than that, and certainly I do not consider it possible to separate out what are the first and second questions. That is because it is not necessary to ask whether the “relationship” between the parties broke down finally before 1 March 2009, it is only a de facto relationship that is relevant. Thus the first question has to be whether the de facto relationship between the parties broke down finally before 1 March 2009, and that entails determining whether the relationship is a de facto one within the definition set out in s 4AA of the Act. In other words, questions 1 and 2 just have to be combined and they cannot be discrete enquiries.
Indeed, it could be argued that the third question as to the duration of the de facto relationship also cannot be a discrete and separate question. That question is very much part of whether the de facto relationship broke down finally before 1 March 2009.
My preference then is not to attempt to set out a sequence of questions that need to be asked and answered to found jurisdiction.
In any event, to return to the issue at hand, I do not consider that his Honour has made a fundamental error of law as suggested by my colleagues.
However, what is readily apparent from his Honour’s reasons is that nowhere does his Honour make specific findings as to when any de facto relationship between the parties broke down given that the Act does not apply to de facto relationships that break down finally before 1 March 2009.
His Honour of course made a declaration that a de facto relationship never existed for the purpose of the proceedings, but again there were no findings that his Honour made to support that outcome.
As Murphy J has identified, counsel for the respondent took us to various passages in the reasons, such as in paragraphs 27, 43, 45, 62, 66, 68, 101 and 102 in an attempt to demonstrate that his Honour made the necessary findings, but in my view those passages fell well short of being able to be described in that way.
It is for these reasons that the appeal must be allowed.
Murphy J
In proceedings before Coates FM (as his Honour then was) the applicant, who is the appellant before us, sought a declaration as to the existence of a de facto relationship between him and the respondent. By orders made on 16 December 2011, his Honour ordered “[t]hat pursuant to section 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between the applicant and respondent for the purposes of this proceeding.”
The husband appeals that order by a Further Amended Notice of Appeal that contains some 21 grounds. Sixteen of the 21 grounds can be seen to challenge the weight given to specified aspects of the evidence. Four of the grounds challenge specific factual findings. Many of those grounds are convoluted and difficult to comprehend. That Notice was, apparently, prepared by legal practitioners as was the Summary of Argument filed on his behalf. However, the appellant represented himself at the hearing of this appeal.
None of the grounds of appeal (nor the written Summary of Argument) contain reference to the error of law on which, in my view, the appeal must clearly succeed.
Section 4AA of the Act (which contains the “meaning of de facto relationship”) is referred to in Ground 1, but in a context other than that to which the central error of law pertains; as summarised in the Appellant’s Summary of Argument the ground is said to establish error described as too “narrowly interpreting s.4AA.”
In a number of paragraphs within the Reasons which will be referred to in more detail below, his Honour refers to the need for the relationship to have existed on 1 March 2009 as being of crucial importance to the court’s jurisdiction. On each such occasion I consider that his Honour erred fundamentally as a matter of law. That conclusion will be discussed in more detail below.
The conclusions just expressed were outlined by me during the hearing of the appeal as a tentative view at which I had arrived by reference to the Reasons and the record more broadly. Each of the other members of the Bench indicated that they shared that tentative view. In light of the fact that the specific issue which concerns each of us was not properly, or at least clearly, the subject of a ground of appeal, that position was outlined to counsel for the respondent and the hearing was stood down so as to provide an opportunity to address the issue just raised.
Upon resumption, counsel for the respondent indicated that [103] of the Reasons “creates difficulty”. Ultimately, I took counsel to concede that his Honour’s ultimate determination that, relevantly, he “could not determine that it was a de facto relationship…existing as at 1 March 2009” (emphasis added) was, when read in isolation, an error. Counsel submitted, however, that when the Reasons were read as a whole, and the other findings made by his Honour were considered, it could be seen that his Honour had applied the correct principle to his determination.
It should be accepted that, if erroneous references can be explained as minor infelicities of expression within the context of Reasons which, as a whole, evidence the correct application of principle, those erroneous references may not necessarily be productive of appealable error. For reasons shortly to be discussed in more detail, I am unable to reach that conclusion here. In my view, it must be concluded that his Honour’s judgment is informed by an error of law pertaining to a jurisdictional fact and his Honour’s order should be set aside.
In order to understand that conclusion, it is first necessary to examine how the Federal Magistrates Court (now the Federal Circuit Court) has jurisdiction to hear and determine a claim for property settlement orders pursuant to s 90SM of the Act.
Jurisdiction in De Facto Relationships
The jurisdiction to hear applications for property settlement orders emanating from de facto relationships arises by a referral of powers by the States to the Commonwealth (insofar as it pertains to Queensland, where this case arose and was heard, it arises via the Commonwealth Powers (De Facto Relationships) Act2003 (Qld)). The Amendment Act effected the referral by inserting Part VIIIAB and making other consequential amendments (for example, Part VIIIB and s 4AA). The latter section defines the meaning of “de facto relationship.”
Section 86 of the Amendment Act provides, relevantly[1], that “Parts VIIIAB and VIIIB, and subsection 114(2A) of the [Family Law] Act do not apply in relation to a de facto relationship that broke down before commencement” (emphasis added). There is nothing in the Amendment Act that requires the relationship to be in existence as at the date of commencement so as to attract jurisdiction; the Amendment Act merely requires that the relationship broke down after commencement. No requirement of the (Family Law) Act specifies any such requirement.
[1] The parties here did not opt in pursuant to s 86A of the Amendment Act.
Commencement was set at 1 March 2009. However, the Proclamation as made was, for reasons not relevant to this appeal, ineffective to establish that commencement date. Section 2(1) of the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 (Cth) cured that difficulty. The commencement date for the Amendment Act is now, validly, 1 March 2009.
If the jurisdiction of the court is to be attracted so as to permit the exercise of power to make a property order, a number of facts – indeed, “jurisdictional facts” (see, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 148) – must be established and the findings of a trial court must reflect satisfaction of those facts on the evidence before the court. Those jurisdictional facts are found, relevantly, in s 86 of the Amendment Act, and ss 4AA and 90SB of the Act.[2]
[2]A further jurisdictional requirement which was not in issue before his Honour is the residency requirement contained in s 90SK.
Taken together, the provisions of the Amendment Act and the Act specify that a court is required to find that a relationship did not break down before 1 March 2009; that the relationship which broke down after commencement was a “de facto relationship”; and, that the period, or total of the periods, of the de facto relationship is “at least 2 years”.[3] Because s 86 refers to a “de facto relationship that broke down before commencement”, the first and second of the relevant findings are intertwined.
[3]None of the alternative requirements in s 90SB(b) – (c), nor the geographical requirement in s 90SK, were in issue before his Honour.
The requirement for the de facto relationship to have subsisted for “at least 2 years” can be met by aggregating periods of de facto relationship (see, Dahl & Hamblin (2011) FLC 93-480). That fact gives rise to two considerations relevant to the other two jurisdictional facts just referred to. The first is that the de facto relationship must have broken down finally after 1 March 2009. Secondly, the finding that there was a de facto relationship subsisting for “at least two years”, can be comprised of findings that there were one or more periods of a de facto relationship in existence prior to commencement provided that at least some of the de facto relationship existed post-commencement. (That is because if at least some of the de facto relationship existed post-commencement, axiomatically, it cannot have broken down finally before commencement).
The legislative requirements have produced differing formulations of the test that must be applied if jurisdiction is to be attracted. Care must be taken if error is to be avoided. For example, other relevant factual findings may make it possible to say, on the particular facts of a case, that jurisdiction is attracted by reason of the de facto relationship being in existence “as at” or “on” 1 March 2009. But none of those formulations is the same thing as saying that a court must be satisfied that a de facto relationship existed “as at” or “on” 1 March 2009 so as to attract jurisdiction. While a finding that a de facto relationship exists “on” or “as at” 1 March 2009 may, in combination with other factual findings, encompass satisfaction of the relevant jurisdictional fact (that the de facto relationship did not break down finally before 1 March 2009), a finding alone that a de facto relationship existed “on” or “as at” that date does not do so.
In my view, the difference is not mere sophistry; at issue is a jurisdictional fact. There is no jurisdictional requirement to the effect that a de facto relationship must exist “as at” or “on” 1 March 2009.
That can be illustrated by example. If a de facto relationship commences on 1 February 2008 and ends on 28 February 2009 and resumes on 2 March 2009 and ends finally on, say, 5 March 2010 there is no de facto relationship in existence “as at” or “on” 1 March 2009. Yet, each of the jurisdictional requirements is met; the court has jurisdiction. If a de facto relationship commences on 1 April 2008 and ends on 5 March 2009 and resumes in April 2009 and ends in December 2009, there is a de facto relationship in existence “as at” or “on” 1 March 2009, yet the court does not have jurisdiction because the relationship did not subsist for “at least 2 years”. In neither case is the existence or non-existence of the relationship “as at” or “on” 1 March 2009 determinative of the relevant jurisdictional fact.
Counsel for the respondent made reference in her submissions to the judgment of this court in this matter relating to security for costs.[4] Counsel places particular reliance upon what was said at [7] of that judgment. Giving that paragraph context, the court said this:
5.The jurisdiction of the Federal Magistrates Court conferred by section 90SM of the Act to make orders altering the interests of parties in property proceedings who are not married is only enlivened when the court makes a declaration that a de facto relationship exists (s 90RD of the Act).
6.Section 4AA(2) of the Act sets out a number of factors which the court is entitled to take into account in determining the existence of a de facto relationship and to which such weight as is appropriate can be attached. …
7.Other jurisdictional requirements have to be met. Pertinent to this case is the commencement date of the relevant sections of the Act, namely 1 March 2009. Thus to enliven the jurisdiction of the Federal Magistrates Court to make orders altering interests in property, there must be a de facto relationship which was in existence on or after 1 March 2009.
(Emphasis added).
[4] Fenton & Marvel [2012] FamCAFC 150.
With the greatest of respect to their Honours, I respectfully disagree with what is said at [5] of those Reasons.
I am respectfully unable to agree that s 90SM of the Act confers jurisdiction. In my view it confers power to make specific types of orders within jurisdiction. (As to the distinction between jurisdiction and power see, for example, Harris v Caladine (1991) 172 CLR 84).
Further, I am respectfully unable to agree that s 90RD plays any role at all in “enlivening” jurisdiction. First, nothing within s 90RD indicates that to be the case. Indeed, the plain words of the section and, in particular, the use of the permissive “may” appear to me to indicate to the contrary. Secondly, s 90SM, which deals specifically with the making of property settlement orders, makes no mention of s 90RD. Thirdly, the provisions of s 90RD can be contrasted with a section within Part VIIIAB which does provide a necessary pre-condition to the exercise of the s 90SM power: s 90SB provides that a s 90SM order can be made only if the specified conditions are met. Finally, nothing in the Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (Cth) makes any reference to s 90RD fulfilling any such role (see, [118]-[121] of the Explanatory Memorandum).
In respect of the issue under discussion, contrary to the respondent’s counsel’s submissions, what makes what was said at [7] by their Honours a correct statement of the applicable principle is the use of the expression “on or after”. The terms of s 86 make it clear that, if a relationship exists on 1 March 2009, that component of the jurisdictional requirements is met. However, the existence of a relationship on that date is not a requirement for jurisdiction to be attracted.
In order to establish that the court has jurisdiction to entertain the applicant’s claim under s 90SM, the legislation required his Honour to ask and answer a number of interrelated questions[5]:
· Was there a relationship between the applicant and the respondent that broke down finally before 1 March 2009? If the question is answered yes, the court has no jurisdiction to entertain the s 90SM claim, irrespective of whether the relationship might satisfy the definition of a de facto relationship and irrespective of its length. If the question is answered no, further questions must be asked.
· Was the relationship that broke down finally after 1 March 2009 a relationship that meets the definition of “de facto relationship” as prescribed by s 4AA of the Act? If that question is answered no, the court has no jurisdiction to entertain the s 90SM claim irrespective of the length of the relationship. If the answer to that question is yes, a further question needs to be asked.
· Did the de facto relationship exist for “at least 2 years” (noting that the requisite period can be established by aggregating the periods of relationship)?
[5]I reiterate that the further jurisdictional requirement in s 90SK was not in issue before his Honour, nor were the alternative requirements contained in ss 90SB(b)-(d).
What Principles Were Applied by the Federal Magistrate?
His Honour found (at [15]):
While the respondent’s initial material sought a declaration as to the time of the relationship, that does not seem to be required under s.90RD(1) because the section allows for a declaration that a de facto relationship, for the purposes of this proceeding, never existed. If such a declaration is made, that ends the proceeding with no need to state dates in the declaration, although such would be apparent from the reasons. That s.90RD(2) allows for a declaration as to when a de facto relationship ended would appear to have no utility if such ended prior to 1 March 2009 when the Commonwealth jurisdiction took over from consenting state jurisdictions. Such a declaration would lack purpose if a relationship cannot be brought within the 1 March 2009 starting date of the Act.
With the greatest respect to his Honour, I have considerable difficulty in understanding what is intended by, in particular, the last sentence of this passage. The concluding part of the paragraph would appear to indicate that there is no utility to a s 90RD declaration if a relationship “ended prior to 1 March 2009”. As reference to the terms of s 86 of the Amendment Act makes clear, it is precisely that question which must be asked as determinative of a component of establishing the court’s jurisdiction. Despite his Honour’s comments at [15], his Honour nonetheless ordered “[t]hat pursuant to section 90RD(1) of the Family Law Act 1975 it is declared that a de facto relationship never existed between the applicant and respondent for the purposes of this proceeding.”
The passage just referred to comes near the beginning of his Honour’s Reasons. Those Reasons conclude with the following paragraph:
103.In putting all of this evidence into context, these parties have had a relationship between 1999 and August 2009. I could not determine that it was a de facto relationship or that such was existing as at 1 March 2009. Even if there was such at times between mid-2005 and August 2009, it could not be brought within the Act’s jurisdiction because I cannot detect the relationship as at 1 March 2009. Considering all of the facts together, I will dismiss the application and make the declaration that for the purposes of the Act, a de facto relationship did not exist.
(Emphasis added).
If his Honour’s formulation was correct, the court would have no jurisdiction to entertain an application for a property settlement order in respect of a relationship which commenced, say, in April 2009 and which ended, say, in May 2012 (i.e. for “at least 2 years” as s 90SB(a) requires) and which otherwise met the s 4AA definition of a de facto relationship. Plainly, that is not correct.
As I have attempted to explain above, expressing the test as whether a relationship existed as at the commencement date does not answer the essential question (although, the court might have jurisdiction in respect of a relationship that existed as at or on that date). That is so because it is permissible for the court to aggregate periods so as to establish the other necessary jurisdictional facts (see, Dahl & Hamblin) and there is no requirement that any of the periods embrace 1 March 2009.
The point is that the requisite initial jurisdictional fact (whether a relationship broke down before 1 March 2009) is not answered by posing the questions which his Honour asked. In short, in my respectful view, his Honour there misdirects himself as to the relevant question which must be asked to found jurisdiction. In light of counsel’s submissions, it remains to consider whether, as argued, the error can be seen as infelicitous when regard is had to other findings which his Honour made.
The manner in which [103] of the Reasons is expressed, and its place as the concluding, summary paragraph of the judgment, gives reason for concern that his Honour’s erroneous reference cannot be explained in that manner. In my view, further reference to his Honour’s Reasons points to the same conclusion. That is all the more so because, as counsel frankly conceded, nowhere in the Reasons does the Federal Magistrate make a specific finding as to when the relationship between the parties broke down much less whether it did so finally before 1 March 2009. The importance of the absence of that finding is that it was common ground, as his Honour found (Reasons [37]), that the parties had a de facto relationship for at least a portion of the period from 2001 to 2005 and had a relationship, of some description, at times thereafter.
Counsel for the respondent points to various passages of the Reasons in support of the proposition that his Honour made findings from which it could be inferred that the breakdown of the relationship (however it might be properly described) occurred finally before 1 March 2009. The central difficulty with that submission is, in my view, the very specific finding at [103] that “these parties have had a relationship between 1999 and August 2009.” Again, that finding might not be fatal if other findings made by his Honour distinguished between the nature of such relationship as was had before 1 March 2009 and the relationship from that date until August 2009, but no findings make that distinction.
The erroneous reference in [103] to “existing as at” is repeated (albeit in not precisely the same language) in other parts of his Honour’s Reasons.
A [2] of the Reasons, his Honour said:
The applicant has the onus of proving that such a relationship existed at and beyond 1 March 2009, which is the day the de facto jurisdiction under the Act came into operation. As well, such a relationship must comply with other requirements which I will outline. The applicant claims the relationship existed between March 1999 and August 2009.
(Emphasis added).
At [38] of the Reasons, the reference to “over and beyond 1 March 2009” necessarily implies that the relationship must exist, before, at and after 1 March 2009:
However, the issue as to whether such a relationship existed, even between 2001 and 2005 and after, is clearly a live issue after mid-2005, and possibly enough to enliven the consideration of different periods making up a two year period extending over and beyond 1 March 2009, the starting date of the federal legislation. Before going to examine that evidence, I need to refer to the respondent’s case in more detail.
(Emphasis added).
Specific reference is made to the question of jurisdiction at [70] of the Reasons where his Honour said:
To trigger the Act’s jurisdiction, it would be crucial for the applicant to establish that a de facto relationship was in existence at least immediately before and at midnight on the last day of February 2009, going into 1 March 2009, which is the operative date for the legislation.
Again the point is made that, on a particular set of facts, the reference to midnight on the last day of February and “going into” 1 March, may be a relevant finding. However, it is not correct to say, that “[t]o trigger” the court’s jurisdiction it is crucial to determine what his Honour set out. To “trigger” the court’s jurisdiction it is crucial to establish that a relationship broke down on or after 1 March 2009.
Error of Law and The Grounds of Appeal
Ground 1 of the Further Amended Notice of Appeal provides:
His Honour erred by taking into account and giving excessive weight to evidence as to the indicia of and concerning whether a de facto relationship (“DFR”) existed immediately before midnight and at midnight on the 28 February 2009 and failed to implement a broader view of the interpretation of the jurisdictional requirements of section 4AA of the Family Law Act 1975, requiring a more expansive consideration of the evidence of the indicia of a DFR leading up to 1 March 2009 and beyond that date.
Although on one view of Ground 1 it might be seen to encompass the error of law just identified, its reference to “excessive weight…as to the indicia” of a de facto relationship and an alleged failure to “implement a broader view” of “the jurisdictional requirements of section 4AA” point against that conclusion. That position is reinforced by an absence from the Ground, and the Summary of Argument, to any reference to the Amendment Act, and s 86 of that Act in particular.
Despite its absence from the grounds, where there is a clear error of law (and all the more so if the error pertains to jurisdictional fact) the principle is, in my view, clear: “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes (1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
I am satisfied that his Honour misdirected himself as to the correct legal principle to be applied in the manner earlier discussed. His Honour’s order should be set aside.
The Remaining Grounds
I do not consider it appropriate to consider at length the grounds of appeal as they appear in the Further Amended Notice of Appeal. I am, of course, aware of what the High Court has said in cases such as Kuru v The State of New South Wales (2008) 236 CLR 1 and Cornwell v R (2007) 231 CLR 260. Significantly, however, a number of matters ought properly inform the decision to engage upon a consideration of grounds additional to those considered determinative.
For example, it can be seen that the case for doing so becomes significantly weaker when, as here, grounds are centred upon an asserted error as to the weight that was given to evidence or where (as in other of the remaining grounds) assertions as to error of fact can be seen as minor when reference is had to the myriad of s 4AA matters and the facts that inform them from which an ultimate conclusion is drawn (see, for example, Australian Style Pty Ltd v Domain Administration Ltd [2010] VSCA 184).
I consider that the remaining grounds have little merit. I consider that there is very little likelihood that special leave to the High Court of Australia would be granted in respect of grounds dealing with questions of weight and minor errors of fact (see, Australian Style Pty Ltd v Domain Administration Ltd). I am also conscious of the fact that, for reasons about to be discussed, I unfortunately consider it appropriate that this matter be remitted to the Federal Circuit Court for rehearing and that a myriad of factual disputes are likely to attend that rehearing.
I consider it unnecessary to consider the grounds as drafted.
Rehearing or Remitter?
This court’s capacity to rehear a matter so as to determine for itself the order that should be made is limited by reason of a combination of the principles applicable to doing so and the practical realities of implementing those principles in this court.
As to the relevant principles, reference should be made to Allesch v Maunz (2000) 203 CLR 172, especially at [30]-[32], per Gaudron, McHugh, Gummow and Hayne JJ. Their Honours point out that this court is not bound to hear the matter for itself but, should it do so, any such hearing must be conducted by reference to the circumstances as they exist as at the date of the appeal.
The first of the questions earlier set out might be determined by this court if reference to his Honour’s Reasons revealed factual findings which are not the subject of significant challenge and which (as may be likely) are accepted by both parties as not having changed.
Even if it was possible to determine the jurisdictional fact earlier discussed, and I consider it is not in light of the factual dispute which informs it, the answers to the questions which next need to be answered in order to establish additional jurisdictional facts are the subject of very significant controversy.
With the greatest respect to the Federal Magistrate, I have considerable difficulties in ascertaining precisely what findings of fact were made in respect of the relevant issues. As but some examples:
a)What is the significance of the appellant’s statements to Centrelink in terms of whether a de facto relationship was or was not in existence? (Reasons at [36] and [102]). The issue is discussed, but it is not at all clear to me what findings were made.
b)What was the nature of the parties’ relationship at various times between 1999 and 2009? For instance, how should the parties’ relationship be characterised when they were each living in different countries and in relationships with different people? (Reasons at [7(j)], [29], [30], [31]). How should their relationship be characterised since they recommenced living in the same residence in 2008? (For example, Reasons at [97] and [100]). Again, each issue is discussed, but the findings emanating from that discussion are elusive.
No findings are made from which it might be gleaned when it was that his Honour determined the periods, if any, that the parties were in a de facto relationship. At [35] his Honour finds that “…certainly no de facto relationship existed during parts of 2004 although identifying exact dates is not possible on the evidence” and then, at [37], his Honour says, “[o]n the evidence available before mid-2005 I could not make a finding with confidence that a de facto relationship existed for the majority of the period between December 2001 to mid-2005…”
That would appear to imply that there were times (albeit not a majority) during which a de facto relationship existed. Intriguingly, at [38] earlier quoted, his Honour goes on to say, “[h]owever, the issue as to whether such a relationship existed, even between 2001 and 2005 and after, is clearly a live issue after mid-2005, and possibly enough to enliven the consideration of different periods…” At [41], his Honour says that, as the respondent has it, “…by the end of 2001 the relationship had ended because she wanted a commitment…” It is implicit, at least on one reading, that a de facto relationship had ended at that time, but his Honour makes no such finding.
As against those findings, it should be recalled that the Order made by his Honour was a declaration that a de facto relationship never existed.
In light of those important matters, I feel entirely uncomfortable about conducting a rehearing even if that was confined to the issue of the jurisdictional facts to which the Federal Magistrate’s declaration was directed.
The practical matters to which I have earlier referred emanating from the principles in Allesch v Maunz were referred to by this court in Gludau & Gludau [2013] FamCAFC 112, especially at [84]-[87], and need not be repeated here.
Costs of the Appeal
The appellant represented himself at the hearing but, as earlier noted, the Further Amended Notice of Appeal and Summary of Argument were each prepared by legal practitioners. He applies for his costs.
Although the respondent might be seen to have been wholly unsuccessful, that lack of success pertains directly to an error of law made by the Federal Magistrate. The nature of the extensive grounds relied upon by the appellant have earlier been referred to and it is by no means certain that lack of success by the respondent would have attended the appeal but for the error of law we have discussed. No other matters specified in s 117(2A) of the Act suggest to me that the rule provided for in s 117(1) of the Act should be displaced.
The respondent submitted that, if the appeal succeeded on the ground earlier discussed, she should nevertheless have her costs of the appeal. That submission is based on the lack of merit (and assumed lack of success) of the grounds in the Further Amended Notice of Appeal. As will be clear, I have determined not to deal with those grounds, but I have indicated they have, in my view, little merit.
I am not persuaded that the “usual rule” provided for in s 117(1) is displaced by any justifying circumstance as referred to in s 117(2). I consider that each party should bear their own costs.
In those circumstances, each of the parties applies for a certificate to issue pursuant to the Costs Act.
Costs Certificate – Appellant Husband
As is plain from these Reasons, the appeal has succeeded on a question of law and, as just discussed, I consider, in accordance with s 117 of the Act, that each party should bear their own costs.
In the exercise of discretion as to whether to grant to the appellant a costs certificate pursuant to s 9 of the Costs Act, I take account of the fact that nothing to which the court has been taken suggests any unreasonableness in respect of the position adopted by the appellant or in his conduct of the appeal. Although, as a result of his self-representation, the costs impost of the appeal on him might not be regarded as significant, I consider, given in particular the nature of the error, that it is appropriate that a certificate should issue in respect of the costs incurred by the appellant in and about the preparation of the appeal.
I consider it appropriate to grant to the appellant a costs certificate pursuant to s 9 of the Costs Act in respect of the appeal and, pursuant to s 8 of that Act, a certificate in respect of the remitted new trial.
Costs Certificate – Respondent Wife
In respect of the respondent, I repeat that the appeal has succeeded on a question of law and, in my view, each of the matters just referred to apply equally to her in respect of her conduct in and about the appeal (noting that she has been represented by legal practitioners at all times including by counsel at the hearing before us).
I also have regard to the respondent’s financial circumstances as revealed at the trial (noting his Honour’s comments about the picture being incomplete due to her challenge to the court’s jurisdiction) and I have regard to the “maximum prescribed amount” under the Costs Act (see, for example, Kudelka and Kudelka (1986) FLC 91-719 and Tyson and Tyson (No 2) (1993) FLC 92-401).
I consider it appropriate to grant to the respondent a costs certificate pursuant to s 6 of the Costs Act in respect of the appeal and, pursuant to s 8 of that Act, a certificate in respect of the remitted new trial.
I would make the following orders:
1.The appeal be allowed.
2.The Orders made by Coates FM (as his Honour then was) on 16 December 2011 be set aside.
3.The matter be remitted to the Federal Circuit Court for rehearing before a Judge other than Judge Coates.
4.Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
5.Pursuant to s 8 of the Costs Act, the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the new trial ordered by the court.
6.Pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
7.Pursuant to s 8 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorise a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the new trial ordered by the court.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland and Murphy JJ) delivered on 29 August 2013.
Associate:
Date: 29 August 2013
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