GESTON & PLATT
[2010] FMCAfam 796
•30 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GESTON & PLATT | [2010] FMCAfam 796 |
| FAMILY LAW – Property – de facto parties – dispute over loan being debt or gift – restraining order. |
| Family Law Act 1975, Part ZVIIIAB, ss.90RC, 90RD, 90SS |
| Applicant: | MS GESTON |
| Respondent: | MR PLATT |
| File Number: | BRC 4666 of 2010 |
| Judgment of: | Coates FM |
| Hearing date: | 26 July 2010 |
| Date of Last Submission: | 26 July 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 30 July 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Carroll, Carroll Fairon Solicitors |
| Counsel for the Respondent: | Ms McDiarmid |
| Solicitors for the Respondent: | Turnbull & Company |
ORDERS
Until further order, pursuant to s.90SS(k)(1) of the Family Law Act 1975, the respondent is not to take any further steps to obtain enforcement pursuant to the Default Judgment of the District Court of Queensland made at Southport on 18 February 2010 in matter number D638/2009.
That the declaration sought be heard 9.30 am on 24 November 2010 in the Federal Magistrates Court of Australia at Brisbane.
That each party file and serve on each other party one affidavit setting out any further affidavit evidence to be relied upon by no later than 4.00pm on 3 November 2010.
That each party file and serve on each other party any written submissions intended to be relied upon by no later than 4.00pm on 17 November 2010.
IT IS NOTED that publication of this judgment under the pseudonym Geston & Platt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 4666 of 2010
| MS GESTON |
Applicant
And
| MR PLATT |
Respondent
REASONS FOR JUDGMENT
The applicant seeks a declaration under s.90RD of the Family law Act 1975 - that a de facto relationship existed between the parties for a stated period.
The applicant claims that the relationship began on 14 July 2006 and ended on 14 September 2009.
The respondent disputes the relationship but confirms knowing the applicant over that period.
That matter will be determined on 24 November 2010, but I am asked to make an interim order restraining the respondent from enforcing a default judgment against the applicant, obtained in the District Court at Southport on 18 February 2010.
The respondent obtained the default judgment for the sum of $41,891.
An enforcement hearing occurred on 18 May 2010, which allowed the respondent to pursue enforcement.
The respondent claimed that the money was from a loan to the applicant for a motor vehicle.
He said the terms of the contract for the loan were oral, made on or about 8 December 2008.
He said it was an express term of the contract that the applicant would repay the respondent by regular instalments, variable in quantum according to her capacity to repay the loan.
He said the applicant’s parent’s witnessed the contract agreement.
In support of his case, the respondent said the applicant entered a Notice of Intention to Defend without a Defence for the District Court proceeding. Under the Uniform Civil Procedure Rules of Queensland, that is not allowed in the normal course of events and judgment may be obtained, as it was in this case, by default.
The applicant states that the respondent gifted the motor vehicle.
She states there was never any discussion that the amount for the vehicle would be supplied by way of loan.
Among other things which may or may not be relevant, she said she did not have the money required by solicitors to defend her matter properly.
It is her case that the judgment was wrongfully obtained, the transaction occurring within the period the de facto relationship existed and it being part and parcel of that relationship.
I can only make a restraining order if such relates to a financial matter of a de facto relationship.
Counsel for the respondent submitted that the Family Law Act 1975 (“the Act”) provides no power in this particular case to restrain the respondent from lawfully pursuing the judgement he has obtained against the applicant. She said there was no inherent power and she referred me to cases.
Part ZVIIIAB of the Act is entitled Financial Matters Relating to de Facto Relationships.
Section 90RC(2) and (3) remove doubt - that the legislature’s intention is that the Act applies to de facto financial matters to the exclusion of state laws if a de facto relationship exists, but not otherwise.
Section 90SS of the Act lists the general powers of the court in relation to de facto financial matters.
Section 90SS(1)(k) states that the court “may make any other order, or grant any other injunction, (whether or not of the same nature as those mentioned in the preceding paragraphs of this section) which it thinks it is necessary to make to do justice.”
In this case, the order I am being asked to make restrains the respondent from pursuing enforcement, even though there has been no finding of a de facto relationship.
By inference in the submission of counsel for the husband, s.90SS cannot apply because no such finding has been made.
The words of s.90SS(k)(1) themselves suggests that such submission is misconceived.
The court may make an order “it thinks [it] is necessary to make to do justice.”
It is to be read with the power excluding state laws from operating in appropriate circumstances.
If that power in s.90SS(k)(1) cannot be applied to prevent another action in another jurisdiction before a declaration is made as to a de facto relationship, then the court would be powerless to prevent concurrent actions in different jurisdictions. That would lead to confusion, extraordinary costs and mockery.
On that basis, I intend, pursuant to s.90SS(k)(1), ordering until further order, the respondent not to pursue enforcement under the District Court default judgment.
Until this court can determine the substantive application and response on 24 November 2010, it would be unjust to allow a dispute over property, resources and debt of the alleged relationship, that is a dispute over financial matters, to be finally concluded under state law.
That is not to say that there cannot be a loan between de facto partners which may come within the jurisdiction of a state court. But it is a case of determining whether a de facto relationship existed and then determining the nature of the transaction for which default judgment was obtained and if it is related to a de facto relationship.
I will make it clear to both parties, there is much disputed material and this decision should not be interpreted as a finding a de facto relationship existed. Further, if there is no de facto relationship or gift, then it appears to me the respondent will be able to pursue the debt.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Coates FM
Date: 30 July 2010
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