Gilford & Cavaco
[2024] FedCFamC1A 55
•15 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gilford & Cavaco [2024] FedCFamC1A 55
Appeal from: Gilford & Cavaco [2023] FedCFamC1F 398 Appeal number: NAA 291 of 2023 File number: BRC 15584 of 2021 Judgment of: HARPER, RIETHMULLER & BRASCH JJ Date of judgment: 15 April 2024 Catchwords: FAMILY LAW – APPEAL – DE FACTO SPOUSE MAINTENANCE – Where primary judge dismissed appellant’s application to bring a de facto spouse maintenance proceeding out of time – Where application was to vary a non-existent de facto spouse maintenance order – Application at first instance incompetent – Where application filed in Division 1 – Where Court lacked jurisdiction pursuant to s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)(“the FCFCOA Act”) – Where a Division 1 judgment on the question of leave to apply out of time is a prohibited appeal pursuant to s 26(2)(a)(i) of the FCFCOA Act – Where the only order that could have been made by the primary judge was to dismiss the application – Appeal dismissed.
FAMILY LAW – COSTS – Where both parties self-represented – Where neither party filed cost schedules as required by orders and r 13.53 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – No order as to costs.
Legislation: Child Support (Assessment) Act1989 (Cth)
Child Support (Registration and Collection) Act1988 (Cth)
Family Law Act 1975 (Cth) ss 44, 83, 90SE, 90SH, 90SI, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 25, 26, 43, 50, 132, 149
Marriage Act 1961 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.01, 2.50, 12.01, 13.53
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019
Cases cited: Atkins & Hunt (2016) FLC 93-746; [2016] FamCAFC 230
Bienstein v Bienstein (2003) FLC 93-124; [2003] HCA 7
Branchflower and Branchflower (1980) FLC 90-857; [1979] FamCA 76
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Clayton v Bant (2020) 272 CLR 1; [2020] HCA 44
Darley (No 4) [2023] FedCFamC1A 158
Deveigne v Askar (2007) 69 NSWLR 327; [2007] NSWCA 45
Edmunds & Edmunds (2018) FLC 93-847; [2018] FamCAFC 121
Ferretto and Ferretto (1986) FLC 91-770; [1986] FamCA 58
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Hedley & Hedley (2009) FLC 93-413; [2009] FamCAFC 179
Kaly & Kaly [2007] FamCA 628
Lynch & Lynch (2024) FLC 94-173; [2024] FedCFamC1A 7
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57
New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26
Norton & Locke (2013) FLC 93-567; [2013] FamCAFC 202
Re Pritchard [1963] Ch 502
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Stopford Malloy & Malloy (2021) 62 Fam LR 474; [2021] FamCA 100
Thallon and Thallon (1992) FLC 92-322; [1992] FamCA 4
Vang & Chung (No 3) [2024] FedCFamC1F 101
Walker and Walker (1984) FLC 91-564; [1983] FamCA 55
Welland & Hawthorn (2021) 64 Fam LR 250; [2021] FedCFamC1A 43
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Number of paragraphs: 123 Date of last submissions: 28 February 2024 Date of hearing: 31 January 2024 Place: Brisbane, delivered in Sydney The Appellant: Litigant in person The Respondent: Litigant in person ORDERS
NAA 291 of 2023
BRC 15584 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS GILFORD
Appellant
AND: MR CAVACO
Respondent
ORDER MADE BY:
HARPER, RIETHMULLER & BRASCH JJ
DATE OF ORDER:
15 APRIL 2024
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.Appeal number NAA 291 of 2023 is dismissed.
3.There be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilford & Cavaco has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER & BRASCH JJ:
The appellant and respondent lived in a de facto relationship between June 2007 and February 2009 and again between May 2018 and November 2019. They have two children X born 2009 and Y born 2018.
The appellant filed an Initiating Application for final parenting and de facto property orders, along with interim orders for parenting, property and spouse maintenance on 22 November 2021. That was just within the standard application period for the financial orders (s 44(5) of the Family Law Act 1975 (Cth) (“the Act”)). No final orders for spouse maintenance were sought.
After a conciliation conference, final property orders were made by consent on 28 April 2022 (“the 2022 consent orders”). A notation to the 2022 consent orders provided:
A.The parties participated in a Conciliation Conference on 31 March 2022 and reached agreement in principle with respect to financial matters on a final basis.
…
(Emphasis added)
Since no maintenance order was sought, none was made. Thereafter, both parties approached the April 2022 consent orders on the basis that it resolved all financial disputes between them. For example, in so far as the appellant was concerned, she swore a statutory declaration on 16 August 2022 saying only parenting was still before the Court (Annexure AE-9 to the respondent’s affidavit filed 24 March 2023, p.48). For the respondent, he also approached the matter on the basis that all financial disputes had concluded (Respondent’s written submissions filed 5 May 2023, paragraph 19).
The respondent was represented at the time and the appellant had the benefit of legal advice when entering into the 2022 consent orders.
The parenting proceeding continued.
On 18 August 2022, the appellant then filed an Amended Initiating Application seeking final spouse maintenance orders for the first time. The orders sought were erroneously framed as
s 83(2)(ba) orders; the parties were never married. It was an incompetent application and a nullity.
On 5 October 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”).
On 28 October 2022, the appellant filed a Further Amended Initiating Application in Division 1 seeking modification of a spouse maintenance order, as if made under s 90SE, pursuant to s 90SI of the Act. No such order had ever been made.
After some case management hearings, the Further Amended Initiating Application filed 28 October 2022 went before the primary judge on 22 February 2023. At that hearing, the primary judge discussed with the appellant’s then solicitor whether leave was required to commence the de facto spouse maintenance proceeding out of time. The matter then progressed on the basis that the critical question was whether leave to proceed ought be granted, or not.
The primary judge ordered:
2. That if the [appellant] wishes to press her application for spousal maintenance, then she shall file and serve any affidavit she intends to rely upon to establish that leave ought to be given to proceed out of time with the application for spousal maintenance, as introduced in her amended Initiating Application filed 18 August 2022, by no later than 4.00pm on 10 March 2023.
(Order 2 of the orders made 22 February 2023)
That order was not the subject of an appeal.
When the matter came back before the primary judge on 29 March 2023, it is clear from the transcript that an affidavit of the appellant about the leave to proceed question had not made its way to the primary judge. The primary judge therefore ordered the parties make written submissions, which also allowed the primary judge time to read the appellant’s affidavit (Transcript 29 March 2023, p.8 lines 38–46). The primary judge determined to hear the matter on the papers in chambers.
Those orders have not been the subject of appeal.
Whilst the appellant now complains about not being able to make verbal submissions on the leave question, she embraced the opportunity to provide written submissions at the 29 March 2023 hearing:
[THE APPELLANT]: Your Honour, I did have verbal submissions, and I would seek an opportunity to provide those to you in a written format.
(Transcript 29 March 2023, p.24 lines 45–46)
A Further Amended Initiating Application was filed by the appellant on 29 May 2023, seeking:
i)That pursuant to section 44(5) and 44(6) of the Family Law Act 1975 the [appellant] be granted leave to progress with her application for spousal maintenance as set out in her Amended Initiating Application of 18 August 2022.
The parties filed their written submissions, and the matter was determined on the papers.
On 21 September 2023, the primary judge dismissed the application for leave to commence the de facto spouse maintenance proceeding out of time.
The appellant filed a Notice of Appeal on 19 October 2023. An Amended Notice of Appeal was also filed on 19 October 2023. Orders were made at a directions hearing on 27 November 2023 requiring the appellant to file a Further Amended Notice of Appeal. That was filed on 22 December 2023.
When the matter came before us on 31 January 2023, we gave the appellant and respondent 28 days to make written submissions on, inter alia, s 26 and s 50 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the FCFCOA Act”).
On 13 February 2024, we caused the National Appeals Registry to provide the parties with the decision of a differently constituted appeal bench of this Court in Lynch & Lynch (2024) FLC 94-173 (“Lynch”), which considered the meaning of s 26 of the FCFCOA Act. We invited written submissions on that case too.
Both parties filed submissions. The appellant’s submissions neither engaged with the meaning of s 26 of the FCFCOA Act nor the decision in Lynch. Instead, she primarily sought to re-agitate matters at first instance and the grounds of appeal, again took issue with the respondent’s Summary of Argument he relied upon at the hearing of the appeal in January 2024, raised parenting and child support matters, and maintained a de facto spouse maintenance order had been made within the 2022 consent orders.
With respect to s 50 of the FCFCOA Act, the appellant submitted “the primary judge had no jurisdiction under Federal Circuit and Family Court of Australia Act 2021 (Cth) s 50” (Appellant’s additional written submissions filed 28 February 2023, paragraph 8(b)).
The respondent submitted that no such de facto spouse maintenance order had been made in the 2022 consent orders, and from that we infer he contends the relief sought under s 90SI of the Act was incompetent. He adopted what was said in Lynch and contended the appellant’s appeal was prohibited by s 26 of the FCFCOA Act.
Discussion
Litigation funding
Putting aside for a moment the question of leave to proceed, the appellant complains that an application for litigation funding was not dealt with by the primary judge.
It is clear from the transcript of the 29 March 2023 hearing that the primary judge was alert to other matters the parties wished to agitate, but determined to prioritise the parties’ dispute about holiday arrangements for the child Y given school holidays commenced at the end of the week of the hearing (Transcript 29 March 2023, p.6 lines 19–20, p.7 lines 40–44, p.9 lines 34–35 and p.11 line 40 to p.12 line 10).
We cannot see where an order relating to litigation funding was made. That is important because appeals are conducted against a “judgment” (s 26(1) of the FCFCOA Act). “Judgment” is defined in s 7 of the FCFCOA Act as “a judgment, decree or order, whether final or interlocutory, a decision or a sentence, and includes a decree within the meaning of [the Act]”.
There is no judgment about litigation funding from which the appellant may appeal. We will not further consider this aspect of the appeal. It may be for another judicial officer on another day.
Filing material
Similarly, the appellant sought orders in this appeal for the respondent to file an updated Financial Statement; that is not a function of an appellate court and we will not consider that proposed order. In any event, given our disposition of the appeal, it is redundant.
The leave question
Several problems attend to both the appellant’s Further Amended Initiating Application seeking spouse maintenance orders pursuant to s 90SI of the Act, which was filed in Division 1 on 28 October 2022, and the appeal itself.
First, the parties compromised their financial disputes by the 2022 consent orders. The appellant now contends in a hearsay and unparticularised way that she “negotiated” Order 2 (a superannuation split from the respondent to her) on legal advice to constitute a spouse maintenance order. This, she says, allowed her to seek a variation of that order pursuant to
s 90SI of the Act.
Irrespective of what the appellant may now assert about its characterisation, Order 2 is not expressed “to be an order to which this section applies” being s 90SH of the Act. Therefore, s 90SI does not arise; there is no spouse maintenance order to vary.
Hence, the relief sought under s 90SI of the Act was incompetent, as were all the appellant’s earlier iterations of her claim for maintenance. They were in a class of nullities in the sense they were never started at all either because of a fundamental defect in issuing the proceedings or although appearing to be duly issued, the proceedings failed to comply with a fundamental statutory requirement, had no existence at all or were incapable of having legal consequences as formulated (Re Pritchard [1963] Ch 502 at 523–524; Deveigne v Askar (2007) 69 NSWLR 327 at [85]–[126]; New South Wales v Kable (2013) 252 CLR 118 at [52] per Gageler J (as he then was); Stopford Malloy & Malloy (2021) 62 Fam LR 474 at [24]). The appellant’s application for maintenance could have been dismissed by the primary judge for that reason alone.
Secondly, in the present case, the application for leave to proceed with a de facto spouse maintenance proceeding out of time was filed after the proceedings were transferred to Division 1 on 5 October 2022.
Relevantly, s 50 of the FCFCOA Act is in mandatory terms and provides:
(1)A person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1).
Note:For the institution of proceedings other than family law or child support proceedings, see section 62.
(2)If proceedings are instituted in the Federal Circuit and Family Court of Australia (Division 1) in contravention of subsection (1), then:
(a)unless the proceedings are transferred to the Federal Court, the proceedings are, by force of this subsection, transferred to the Federal Circuit and Family Court of Australia (Division 2); and
(b)the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
If the appellant’s application for maintenance as formulated was a nullity, it must follow that s 50 would not be engaged because there was no institution of proceedings at all. But if s 50 was engaged the primary judge was deprived of jurisdiction in any event. The Further Initiating Application filed 28 October 2022 sought to introduce a separate proceeding, being an application for spouse maintenance (see for example “proceeding” as defined in s 7 of the FCFCOA Act; and see also Ferretto and Ferretto (1986) FLC 91-770; Branchflower and Branchflower (1980) FLC 90-857). In Yule v Junek (1978) 139 CLR 1 Murphy J said at 19:
… However, the definition of matrimonial cause treats the various proceedings, whether for principal relief (dissolution or nullity or declaration of validity of dissolution or annulment) or not (for example, proceedings with respect to maintenance, property, custody, guardianship or maintenance of or access to a child of the marriage), as separate proceedings although they are related in some cases …
(Emphasis in original)
More recently, in Clayton v Bant (2020) 272 CLR 1 (“Clayton”) the majority of the Hight Court (Keiffel CJ, Bell and Gageler JJ) at [23]–[24] made clear that property adjustment proceedings and spouse maintenance proceedings are claims to separate rights and based on the exercise of different statutory discretions, irrespective of the fact they both relate to a “matter” or justiciable controversy. They concluded at [25]:
25.Thus, the right in issue in each of the property settlement proceedings and the spousal maintenance proceedings is a right that is created by a statutory provision which confers a discretionary power on the Family Court to make an order of the kind that is sought. The justiciable controversy as to whether such an order should be made constitutes the matter defining the jurisdiction of the Family Court.
(Footnote omitted)
Clayton was also decided before the amendments to the Act by the FCFCOA Act removed the conferral of jurisdiction on Division 1 by s 39 of the Act. Since 1 September 2021, jurisdiction is primarily conferred on Division 1 by transfers of “family law or child support proceedings” from the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”) (Nevins & Urwin (2022) FLC 94-084 (“Nevins”)).
The expression “family law or child support proceedings” in s 50 takes its content from s 132 of the FCFCOA Act. This section gives original jurisdiction to Division 2 in a range of federal “matters” arising under various statutes including the Act, the Marriage Act 1961 (Cth), the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”) and the Child Support (Registration and Collection) Act1988 (Cth). But s 50 does not refer to “matters”. It refers to the institution of “proceedings”. As the High Court has made clear many times, though a federal “matter” comprises a single justiciable controversy, proceedings brought in relation to such matter are not necessarily co-extensive with it. The point is that s 50 is clearly by its terms confined to, and prohibits, the institution of “proceedings”, not a “matter”, in Division 1.
The Full Court pointed out in Nevins one important objective of the legislative changes made on 1 September 2021 was to create a single point of entry for family law or child support proceedings and “[t]hat objective was achieved by the removal of original jurisdiction from Division 1 and, in lieu thereof, its investiture with original jurisdiction in only those causes of action transferred to it from Division 2” (at [5]). For that reason it is the transferred proceedings, to the extent they embody aspects of the justiciable controversy, which constitute the matter defining jurisdiction so far as this Court is concerned.
The effect of s 50 is that the appellant was required to file the spouse maintenance claim and application for leave to proceed out of time in Division 2 and seek a transfer to Division 1, if she deemed that course appropriate. That did not occur.
Instead, by operation of s 50(2), the proceeding was deemed to be transferred to Division 2.
The corollary of that is the primary Division 1 judge had no jurisdiction to entertain either the spouse maintenance application or the leave question, and the only order that could have been made was to dismiss the appellant’s application before him.
Third, we turn to how the matter was run by the parties before the primary judge.
The application for spouse maintenance orders filed 28 October 2022 fell outside of the standard application period, which concluded in late November 2021. The primary judge was correct that (as the matter was run before him) leave to proceed out of time was required. The appellant acknowledged as much by the orders she sought for leave and the submissions made on that question both before the primary judge and before us.
Section 26 of the FCFCOA Act relevantly provides:
(2) An appeal must not be brought from a judgment referred to in subsection (1) if the judgment is:
(a) a determination of an application:
(i) for leave or special leave to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or
…
Accordingly, the Division 1 judgment from which the appellant appeals constitutes a prohibited appeal. We respectfully agree with the decision in Lynch, which reached the same conclusion as to s 26 of the FCFCOA in the event the matter was an appeal from a Division 1 judgment made within power. The appeal is incompetent.
Dissenting judgment
We have had the benefit of reading a draft of the reasons from Riethmuller J. Respectfully, given our reasons above, we do not agree but acknowledge, as does his Honour, that none of what he raises was the subject of argument or exploration before us.
We observe however that it is hard to see how an application pursuant to s 44(3) or s 44(6) of the Act could be anything other than an application “for leave to institute proceedings” in Division 1 or “for an extension of time” to do so, and thus falls within s 26(2) of the FCFCOA Act. There do not appear to be many, if any, other applications in which “leave to institute” proceedings in Division 1 would even arise for determination. Section 50 of the FCFCOA Act specifically prohibits “instituting” proceedings in Division 1. The definitions of “matrimonial cause” and “de facto financial cause” both equate “cause” with “proceedings” so in our view bringing a fresh de facto financial cause, which requires leave out of time, can only mean “institute proceedings” and can only be done in Division 2. This is so irrespective of the difference in wording between s 44(3) and s 44(6). The phrase “leave to apply” should be construed to mean leave to bring a de facto financial cause, which is the same as leave to institute proceedings.
Nor can we agree that the meaning of the expression “family law or child support proceedings” as used in s 50 can be confined either by reference to any rule of the Court, such as r 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) allowing amendment by adding a cause of action or by reference to the avoidance of a multiplicity of proceedings as mentioned in s 43 of the FCFCOA Act.
The prohibition in s 50 is absolute in its terms. It is not made subject to the Act or other provisions in the FCFCOA Act, or any rules of the Court. It is trite to repeat that statutory provisions are to be construed by reference to their text, the statutory context and the purpose of the legislation. As the Full Court made clear in Nevins, the statutory purpose of s 50 is self evidently to support a single point of entry for family law or child support proceedings and bestow upon the Chief Justice or Division 2 judges control of the allocation of such proceedings between Divisions 1 and 2. This purpose is supported by s 50(2) which effects an automatic transfer to a different court, Division 2, thereby preserving the single point of entry through that court. It is also consistent with this purpose, as well as the text and context of s 50, that it therefore contemplates the likelihood of proceedings in different courts, at least until the discretion to transfer is exercised by the Chief Justice or Division 2.
The point can be illustrated by positing a situation where there are proceedings for de facto property adjustment on foot in Division 1 and one party subsequently applies for a child support departure order pursuant to the Assessment Act. There is no construction of the expression “family law or child support proceedings” which could sensibly exclude such an application from its ambit, nor is there any convincing reason to confine “institute” in s 50 to apply only to the commencement of family law or child support proceedings where none are already on foot. An application for a child support departure order where none is on foot is plainly “instituted” when the appropriate application is filed. Section 50 would require such application to be instituted in Division 2. There is no reason why the application must be dealt with in Division 1, simply because there may be existing property proceedings in that Court. Indeed, a rational allocation of registrar or judicial resources may require questions of child support departure orders between the same parties to be dealt with most efficiently in Division 2. We note in passing that exactly the same reasoning would apply to an application for parenting orders instituted after proceedings for property adjustment had been transferred to Division 1 from Division 2. Again, there may be practical reasons for the parenting issues to be dealt with promptly, at least on an interim basis, in Division 2, prior to transfer to Division 1. These examples simply expose why the possibility of proceedings in the two courts between the same parties may actually help achieve the objectives of a single point of entry. To the extent this may impose additional or cumbersome procedural requirements upon litigants, we conclude that the parliament intended this simply to be the price to be paid for the efficiencies promoted by a single point of entry. Reasonable minds may differ as to whether this is a sensible or appropriate way to confer jurisdiction or allocate business between an inferior and a superior court of record. But there is no occasion in this judgment to enter into such a debate.
It seems to us that since the amendments commencing on 1 September 2021 came into force, the avoidance of a multiplicity of proceedings, as referred to in s 43 of the FCFCOA must be understood in light of the fundamental requirement of a single point of entry and the longstanding basic differentiation of statutory rights to claim property adjustment, maintenance or indeed parenting orders as separate proceedings.
We also point out that even if s 50 means the appellant’s application for leave was deemed to be transferred to Division 2, this does not make the primary judge’s order itself dismissing the application a nullity. He at all times had the authority and duty to decide whether a controversy brought before him lay within the limits of this Court’s jurisdiction (R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193–194, 213, 215–216, and 223; Norton & Locke (2013) FLC 93-567). Rather an automatic transfer to Division 2 was, as pointed out, just another reason why the only order he could have made was to dismiss the appellant’s application, as he did.
We also do not agree with the foundation to the reasons being that an applicant can seek relief under an erroneous head of power and that be allowed to proceed under a “practical approach”, notwithstanding the incompetence of the application. All litigants are required to comply with rules of the Court and file properly constituted applications. But even if it be assumed that the appellant’s application for leave to institute a maintenance claim was made orally and permitted by the primary judge, it must also follow that it was an application for leave to institute a family law or child support proceeding within s 50, and was automatically transferred to Division 2 (Vang & Chung (No 3) [2024] FedCFamC1F 101 at [65]–[71]).
Disposition
By whatever path the application for leave to proceed out of time was approached – be it an incompetent s 90SI application or a lack of jurisdiction pursuant to s 50 of the FCFCOA Act – dismissal of the application was inevitable, and there is no basis to disturb this on appeal.
Equally, what is before us is an appeal against the judgment of a Division 1 judge on the question of leave, which is a prohibited appeal by reason of s 26 of the FCFCOA Act. Consequently, the appeal must be dismissed.
All of that being so, there is no utility in considering the grounds of appeal, nor whether leave to appeal is required.
The appeal and application for leave to appeal will be dismissed.
Costs
Both parties are self-representing. It is well established that costs are confined to money paid or liabilities incurred for professional legal services, but do not include time spent by a self-represented litigant preparing and conducting their case (Cachia v Hanes (1994) 179 CLR 403).
The Rules further provide that:
12.01 Application of Chapter 12
…
(2) A party may only recover costs from another party in accordance with these Rules or an order.
Note: A self‑represented party is not entitled to recover costs for work done for a proceeding (other than work done by a lawyer) but, if so ordered, may be entitled to recover some payments.
Neither party filed a schedule of costs as required by the orders made 27 November 2023 and r 13.53 of the Rules.
In those circumstances, s 117(1) of the Act will prevail. Each party will bear their own costs of the appeal.
RIETHMULLER J:
The applicant seeks leave to appeal from a judgment of a judge of the Federal Circuit and Family Court of Australia (Division 1) refusing her leave to apply for a de facto relationship maintenance order after the end of the standard application period pursuant to s 44 of the Family Law Act 1975 (Cth).
BACKGROUND
The applicant and respondent were in a de facto relationship for two brief periods (each less than two years, around nine years apart), finally separating on 24 November 2019. As a result of their relationship, the parties have two children aged five and 14 years, that live with the applicant.
On 24 November 2021, the standard application period for applying for a maintenance order ended: s 44(5) of the Family Law Act.
On 28 April 2022, the applicant and the respondent resolved their de facto property dispute with consent orders, including a declaration as to the periods of their de facto relationship, a payment from the respondent to the applicant of $120,000, and a split of superannuation. No maintenance orders were made at that time, nor were final orders for maintenance sought (although interim maintenance orders had been sought, those orders were not pursued). The Initiating Application remained pending as the parties had not resolved their parenting dispute.
On 18 August 2022, nearly six months after entering into final property orders and nearly two years and nine months after separation, the applicant amended her Initiating Application to seek a variation of a spousal maintenance order under s 83 of the Family Law Act. This application was doomed to fail as the parties were never married and s 83 only applies to parties who have been married. The variation application was clearly framed as an application under s 83 of the Family Law Act and therefore could not be taken to be a de facto relationship maintenance application under s 90SE: see Atkins & Hunt (2016) FLC 93-746 at [22]–[23].
On 5 October 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) (“Division 2”) made an order transferring the matter to the Federal Circuit and Family Court of Australia (Division 1) (“Division 1”). Section 25(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) provides Division 1 with original jurisdiction if a “matter, being the subject of a family law or child support proceeding, is transferred to the Court” from Division 2. The primary judge therefore had jurisdiction to deal with this matter.
On 28 October 2022, the applicant amended her Initiating Application again, this time to seek a variation of a de facto relationship maintenance order pursuant to s 90SI of the Family Law Act. The effect of this amendment was to introduce a new cause of action, abandoning the “matrimonial cause” and pursuing a “de facto financial cause” (see the definitions in s 4 of the Family Law Act), although the underlying facts did not change. However, this claim could not succeed as there had never been any de facto relationship maintenance orders under s 90SE, and thus there were no existing orders to vary pursuant to s 90SI of the Family Law Act (for the reasons set out above by Harper and Brasch JJ with which I agree).
On 22 February 2023, the Further Amended Initiating Application first came before the primary judge. The primary judge adopted a practical approach, recognising that the applicant (who was represented by a solicitor on that day) sought, in substance, a de facto relationship maintenance order in the terms of the maintenance variation order sought in her Amended Application of 18 August 2022. His Honour also identified that the applicant needed to make an application for “leave to apply” as the “standard application period” had ended: see s 44(5) and s 44(6) of the Family Law Act. The primary judge made orders for the filing of affidavits in support of the applicant’s application for leave to apply. The application for “leave to apply” was oral and never the subject of an application in the case filed during the proceedings, nor a separate initiating application.
The parties filed affidavits and written submissions which were considered by the primary judge who dismissed the applicant’s application for leave to apply for maintenance for the reasons set out in his Honour’s judgment.
Unfortunately, both parties were unrepresented at the appeal, leaving the Court without careful argument on the complex questions that arise with respect to the FCFCOA Act. Whilst some may suggest that such a situation makes this an “inappropriate vehicle” for a consideration of these questions, such a self-imposed fetter is not appropriate for an intermediate appeal court where the question directly concerns the applicant’s rights.
IS THIS A PROHIBITED APPEAL?
Section 26(2) of the FCFCOA Act states that “an appeal must not be brought from a judgment [of Division 1] if the judgment is”:
(a) a determination of an application:
(i) for leave or special leave to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); or
(ii) for an extension of time within which to institute proceedings in the Federal Circuit and Family Court of Australia (Division 1); …
Section 26(2)(a) is only engaged if the applicant’s application was for leave to “institute proceedings in the Federal Circuit and Family Court of Australia (Division 1)”.
In order to interpret this phrase, regard must first be had to the important practical objectives of the FCFCOA Act, set out in s 43 as follows:
43 Determination of matter completely and finally
In every matter before the Federal Circuit and Family Court of Australia (Division 1), the Court must grant, either:
(a) absolutely; or
(b) on such terms and conditions as the Court thinks just;
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible:
(c) all matters in controversy between the parties may be completely and finally determined; and
(d) all multiplicity of proceedings concerning any of those matters may be avoided.
To achieve these objectives, the FCFCOA Act limits the original jurisdiction conferred upon Division 1 to a “matter” that is the subject of proceedings which has been transferred from Division 2 or where jurisdiction is conferred by another Act:
25 Original jurisdiction
(1) The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b) if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or (c) as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
The FCFCOA Act provides for the practical problem of proceedings potentially being instituted in Division 1, which would undermine the goal of a “single point of entry” (see the Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019) for family law or child support proceedings in s 50 of the FCFCOA Act:
50 Prohibition on instituting first instance family law or child support proceedings
(1) A person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1).
Note: For the institution of proceedings other than family law or child support proceedings, see section 62.
(2) If proceedings are instituted in the Federal Circuit and Family Court of Australia (Division 1) in contravention of subsection (1), then:
(a) unless the proceedings are transferred to the Federal Court, the proceedings are, by force of this subsection, transferred to the Federal Circuit and Family Court of Australia (Division 2); and
(b) the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
The terms “institute” and “proceeding” are defined in s 7 of the FCFCOA Act as follows:
institute, in relation to proceedings and the power of the Federal Circuit and Family Court of Australia (Division 2) to deal with vexatious proceedings, includes:
(a) for civil proceedings—the taking of a step or the making of an application that may be necessary before proceedings can be started against a party; …
proceeding:
(a) in relation to a court—means a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal; and
(b) in relation to a tribunal—means a proceeding in the tribunal, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding.
proceedings of a particular type includes:
(a) proceedings in relation to a particular matter; and
(b) proceedings against a particular person.
Whilst the FCFCOA Act definitions prevail, it is appropriate to consider whether terms used in the Family Law Act have the same meaning. The word “proceedings” is defined in s 4 of the Family Law Act as:
proceedings means a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding.
proceedings for principal relief means proceedings under this Act of a kind referred to in paragraph (a) or (b) of the definition of matrimonial cause in this subsection.
(Emphasis in original)
These provisions present considerable interpretative challenges that may have significant impacts upon the functioning of the Court. Justices Harper and Brasch have concluded that the phrase “institute proceedings” (in s 26(2) of the FCFCOA Act) refers to the commencement of any cause of action different to the cause of action already the subject of proceedings pending in Division 1, following Lynch & Lynch (2024) FLC 94-173. The parties in Lynch did not explore the operation of the section in the context of the FCFCOA Act, leading to a very brief judgment. For the reasons that follow, in my view, the phrase “institute proceedings” (as it appears in the FCFCOA Act) refers to an initiating application (as defined in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)) and not to the amendment of a pending application (or any cross-application) even if the amendment adds a cause of action.
The applicant’s leave application could not have been “started by filing an Application for final orders” because r 2.01(3) of the Rules prohibits “an application for an interlocutory order unless an application for final orders is current in the proceedings”. As the application for “leave to apply” for maintenance was an interlocutory application (for the reasons set out below) it was necessarily “an incidental proceeding in the course of, or in connection with a proceeding”. In this case, the pending family law proceeding was the Initiating Application (see the definition of “proceeding” in s 7 of the FCFCOA Act).
If leave were granted, the applicant would then have to amend the pending Initiating Application to add the new cause of action (the de facto relationship maintenance claim), rather than instituting another proceeding by filing a second Initiating Application for Final Orders. This is because r 2.50(2) of the Rules requires a person seeking to add a cause of action to amend the pending Initiating Application rather than filing a second Initiating Application. That is, no further proceedings would be initiated and the pending proceedings would simply be amended to include the further cause of action. Similarly, if a respondent filed a Response that included a cross-claim that was based upon a different cause of action to the applicant’s claim (for example, when an applicant applies for property settlement orders and the respondent cross-claims for maintenance) further proceedings would not be “instituted” as the claims would all be determined in the pending proceedings. This is important as it avoids a multiplicity of proceedings.
The interpretation of the term “institute proceedings”, as meaning proceedings commenced by an initiating application (as provided for by r 2.01 of the Rules), resolves many other apparent difficulties with the interpretation of the FCFCOA Act as it:
(a)Allows Division 1 to fulfil the requirements of s 43 of the FCFCOA Act (see above).
(b)Ensures that s 26(2) of the FCFCOA Act does not prohibit appeals from significant interlocutory applications if decided by judges of Division 1, rather than judges of Division 2, from whom there is no such prohibition on appeals.
(c)Resolves the apparent tension between s 26(2)(a)(i) of the FCFCOA Act and reg 4.02(1)(b) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) identified in Darley (No 4) [2023] FedCFamC1A 158 at [16] and Lynch, as appeals from interlocutory applications (such as the present appeal) would be subject to the leave requirements in reg 4.02, as is contemplated by the words of that provision.
(d)Ensures that the operation of s 50 of the FCFCOA Act (which prohibits a person from instituting family law or child support proceedings in Division 1 and, if proceedings are instituted, automatically transferring them to Division 2) does not capture interlocutory applications or amendments that add causes of action to pending proceedings in Division 1. Otherwise, s 50 of the FCFCOA Act would cause a multiplicity of proceedings by automatically transferring that part of the proceedings contained in the amended claim to the Division 2 (see s 50(2) of the FCFCOA Act), which would be contrary to the intention of the legislature in s 43 of the FCFCOA Act and effectively circumvent r 2.50(2) of the FCFCOA Rules.
(e)Provides an explanation for why the term “institute” requires a special definition in s 7 of the FCFCOA Act, specifically for the vexatious proceedings provisions in the Act. The special definition is necessary for the vexatious proceedings provisions to effectively include any step in a proceeding, otherwise those provisions would be ineffective in restricting vexatious litigants once proceedings were pending. If this special definition were applied generally to the term “proceedings” as used in s 50 of the FCFCOA Act, even interlocutory applications in proceedings pending in Division 1 would be automatically transferred to Division 2 despite the substantive proceedings remaining in Division 1, which cannot possibly have been the intention of the legislature.
(f)Respects the distinction between “family law and child support proceedings” in the general sense and the phrase “proceedings of a particular type” pursuant to the definition in s 7 of the FCFCOA Act. In both the FCFCOA Act and the Family Law Act there are many examples of descriptions of particular types of “family law proceedings”. For example, in the Family Law Act, “child related proceedings” (s 67ZN), “proceedings in Chambers” (s 67ZO), and “maintenance proceedings” (s 90SE), and in the FCFCOA Act, s 241 and s 242 allow the Court to make orders prohibiting a person from instituting “proceedings” or “proceedings of a particular type”.
(g)Ensures that s 149(3)(a) of the FCFCOA Act (which requires consideration of whether proceedings in an associated matter are pending in Division 1 when considering a transfer between the Courts) has a purpose, as there can still be proceedings pending in both Courts at the same time. This will occur when an additional claim cannot be added to pending proceedings pursuant to r 2.50(2) of the Rules because r 2.01 requires a separate initiating application (such as an “Application for Divorce” or “Application – Enforcement”).
This interpretation still leaves work for s 26(2)(a) of the FCFCOA Act. Aside from blocking frivolous appeals with respect to applications that are designed to thwart s 50 of the FCFCOA Act: it also prohibits appeals from single judges exercising appellate jurisdiction or interlocutory appellate jurisdiction.
It is appropriate that I also briefly address the reasoning that has led Harper and Brasch JJ to a different conclusion concerning this difficult provision. Their Honours rely upon the reasons of Murphy J in Yule v Junek (1978) 139 CLR 1. Yulev Junek considered whether a pending claim for damages for adultery survived the repeal of the Matrimonial Causes Act 1959 (Cth) by the Family Law Act, as a result of transitional provisions preserving proceedings commenced under the Matrimonial Causes Act. However, the approach by Murphy J was not the approach of the majority. Justice Stephen approached the case on the basis there was only one proceeding (at 6). Justice Mason found that the reference to “proceedings” was limited by the qualifying phrase in the provision “between the parties to a marriage”, thereby excluding a claim for damages for adultery (at 11) as the claim for damages was also against the alleged adulterer who was joined as the second respondent. Justice Jacobs rejected an interpretation that “would erect two separate proceedings out of one set of proceedings” (at 16). Justice Aickin concluded that the proceedings for dissolution of marriage and damages for adultery was only one proceeding (at 26) and not two separate proceedings. A more useful analogy can be drawn with the provisions that previously governed transfers between the two Courts where the term proceedings was interpreted as including all causes of action: see Kaly & Kaly [2007] FamCA 628.
The reasoning that more fully explains the findings of the majority appears in Vang & Chung (No 3) [2024] FedCFamC1F 101 at [38]–[75] where, at [42], Harper J concluded that the “definitions of the various ‘matrimonial causes’ equates them with ‘proceedings’”.
A complicating issue that arose in Vang & Chung was that the Initiating Application was filed before the commencement of the FCFCOA Act. The FCFCOA Act removed the jurisdiction of Division 1, unless a proceeding was transferred from Division 2, upon which jurisdiction over the “matter” is conferred by s 25 of the FCFCOA Act. The Full Court confirmed that Division 1 retained jurisdiction to complete pending applications (at least by implication): see Nevins & Urwin (2022) FLC 94‑084. However, it is unclear whether the residual jurisdiction would be sufficient to include additional causes of action added after jurisdiction had been removed. In Vang & Chung, the lack of jurisdiction in the “matter” (which would have been conferred by s 25 of the FCFCOA Act if there had been a transfer of the proceedings from Division 2 to Division 1) led to the conclusion that the Court did not have jurisdiction to deal with a cause of action that was not pending at the time that the FCFCOA Act commenced: see Vang & Chung at [71]. This complicating circumstance, which arose in Vang & Chung, does not arise in the present appeal.
As identified in Vang & Chung (at [51]), s 44(1) of the Family Law Act provides that “[e]xcept as otherwise prescribed by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application”. Importantly, r 2.50 of the Rules does prescribe otherwise, requiring that a further cause of action be added to a pending Initiating Application, rather than instituting separate proceedings. Whilst s 44(3) of the Family Law Act uses the phrase “must not be instituted, except by leave of the court”, it is in the context of a provision that expressly deals with specific types of proceedings by cause of action, rather than using the term in its general sense of “family law or child support proceedings”. A claim based upon a cause of action for spousal maintenance (as referred to in s 44(3)) of the Family Law Act remains within the broader definition of “family law and child support proceedings” as used in the FCFCOA Act (see the definitions in s 7 of the FCFCOA Act). For this reason, Ferretto and Ferretto (1986) FLC 91-770 and Branchflower and Branchflower (1980) FLC 90-857 do not assist with the interpretation of the FCFCOA Act (and those cases would also have to be read in light of the reasons in Hedley & Hedley (2009) FLC 93-413). In any event, the present appeal concerns s 44(5) of the Family Law Act which refers to “leave to apply” and does not use the word “instituted”.
At [62] of Vang & Chung the phrase “institute family law or child support proceedings” (as it appears in s 50 of the FCFCOA Act) is interpreted as referring to the institution of a specific “matrimonial cause”. I see no reason to interpret s 50 of the FCFCOA Act as applying to a specific cause of action, rather than simply to initiating family law proceedings in the Court, particularly given that the scheme of the FCFCOA Act is to create a single point of entry (Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019, paragraphs 22 and 28), and the avoidance of a multiplicity of proceedings (s 43 of the FCFCOA Act). Interpreting s 50 of the FCFCOA Act as referring to individual causes of action leads to a multiplicity of proceedings once a pending proceeding has been transferred to Division 1. This would undermine a core objective of the FCFCOA Act, leaving different parts of an Amended Initiating Application pending in two different courts, Division 1 and Division 2, and thereby creating a multiplicity of proceedings. As acknowledged in Vang & Chung at [72], such an interpretation “appears to impose additional cost and a cumbersome procedural burden” on a litigant. It also creates a very technical approach which effectively denies jurisdiction in situations that may go unnoticed by many. Such an interpretation should be avoided.
In the present case, the applicant had not sought leave to commence a separate proceeding, nor was that open to her pursuant to the Rules which require the leave application to be brought in pending proceedings, and if leave were granted, the de facto maintenance application to be added to the pending proceedings by an amendment to the Initiating Application. As a result, neither s 26(2)(a) nor s 50 of the FCFCOA Act were engaged in this case as the application for leave was “an incidental proceeding in the course of, or in connection with” the pending proceeding (s 7 of the FCFCOA Act) and, if leave were granted, the claim for maintenance could only be brought as part of the pending proceeding by amending the Initiating Application, as required by r 2.50 of the Rules.
WHETHER LEAVE IS REQUIRED TO APPEAL
The effect of s 28(3)(e)(i) of the FCFCOA Act and reg 4.02 of the Regulations is to require applicants to obtain leave to appeal against interlocutory orders.
The law on whether a decision refusing leave pursuant to s 44 of the Family Law Act is an interlocutory order was unclear from 1992 (when the Full Court in Thallon and Thallon (1992) FLC 92-322 concluded that an order refusing leave under s 44 was a final order), despite a large number of decisions thereafter. Those decisions created an unsatisfactory situation whereby an application for leave to start proceedings would be classified as a final application if it were refused, yet if allowed, it was an interlocutory application. This would leave the classification of a leave application indeterminate until it was decided. Fortunately, in 2021, the jurisprudential difficulties were authoritatively resolved in Welland & Hawthorn (2021) 64 Fam LR 250.
In Welland & Hawthorn, Austin, Rees, and Wilson JJ concluded that leave to appeal was required to appeal from an order refusing leave under s 44 of the Family Law Act, applying the clear statement of principle by the High Court in Bienstein v Bienstein (2003) FLC 93-124 at [25] that:
… orders … refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success.
There is some recent obiter (in Lynch at [7]) referring to the unsatisfactory cases decided before Welland & Hawthorn. The Court in Lynch was not referred to either Welland & Hawthorn or Bienstein. As a result, the obiter in Lynch should not be followed.
As the decision of the primary judge was an interlocutory order, the applicant requires leave to appeal. To obtain leave, the applicant must ordinarily show (see Medlow & Medlow (2016) FLC 93-692 at [57]) that the decision of the primary judge was:
... attended by sufficient doubt to warrant it being reconsidered by the Full Court and ... [that] substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Emphasis in original).
GROUNDS OF APPEAL
The applicant set out 15 grounds of appeal (two of which are numbered “4”) over four pages, largely arguing about issues concerning child support, parenting orders, and the merits of her application, rather than identifying specific errors by the primary judge. In these circumstances, it is convenient to address relevant substantive arguments that emerge from the Notice of Appeal rather than dealing with the grounds individually.
Whether the primary judge failed to afford the applicant procedural fairness (Ground 1 and Ground 2)
The applicant alleges that the primary judge failed to have regard to “written submissions” filed by her on 10 March 2023 and 12 April 2023. The ground is confusing as it refers to affidavits as if they were written submissions. The written submissions filed by the applicant were specifically considered by the primary judge in his Honour’s reasons: see [4(a)]. The additional documents the applicant refers to in this ground were affidavits filed on 10 March 2023 and 24 March 2023. Ground 1, referring to written submissions, has no prospects of success in this regard.
On 29 March 2023, the primary judge dealt with a parenting aspect of the dispute between the parties before asking the applicant (who was unrepresented): “Did you have something else prepared you wanted to say about [the application for leave], madam, today, or are you happy for me to read your affidavit that deals with that issue and make a ruling?” The applicant responded, saying: “Your Honour, I did have verbal submissions, and I would seek an opportunity to provide those to you in a written format”. The primary judge then asked the applicant how long she would need. His Honour then gave her a longer period than the time sought (ending the Friday after the children returned to school), saying “you’ve got school holidays. I would prefer you to spend time with the kids in school holidays than doing written submissions” (Transcript 29 March 2023, p.24 line 41 to p.25 line 11).
Whilst the applicant makes complaints as to what occurred on 29 May 2023, no transcript was provided to show that there was any failure of the primary judge to accord her procedural fairness in circumstances where an opportunity had already been given to make written submissions.
The applicant complains that the primary judge failed to provide her with an opportunity to respond to the submissions of the respondent. Replies are limited to questions of law. The respondent’s submissions did not challenge the principles of law relied upon by the applicant. The applicant did not address this claim in her Summary of Argument. This argument has no merit.
The applicant has not shown an arguable case that she was denied procedural fairness.
Consideration of the applicant being unrepresented and the applicant’s request for a litigation funding order pursuant to s 117(2) – Grounds 7, 13 and 14
On 29 May 2023, around one month after filing and serving her written submissions on the spousal maintenance question, the applicant amended her application to seek an order:
ii) That, Pursuant to s.117(2) of the Family Law Act 1975, the Respondent father pay to the [applicant] mother a cash payment of interim costs to secure appropriate legal representation and that this grant be no less than equal to the amount the Respondent father has paid, as set out in the Respondent’s most recent Cost Notice filed 28 March 2023, being no less than $61,627.07;
No affidavit in support of the application was filed, nor does it appear that any request was made of the primary judge to deal with this part of her application prior to determining the application for leave to bring spousal maintenance proceedings. Ground 7 and Ground 13 have no merit with respect to this argument.
The applicant’s complaint in Ground 14 is that:
The Primary Judge does not appear to have exercised any discretion in his reasons for judgement that would lend themselves to contemp[lating] the [applicant]’s lack of familiarity with the complexities of Family Law, nor my ability to adequately (or inadequately) project the extent to which my circumstances would fail to improve:
This ground was not specifically addressed in the applicant’s Summary of Argument. The applicant does not identify any fact or argument she failed to put to the primary judge because of a lack of knowledge of the relevant processes. It would not have been appropriate for the primary judge to accord the applicant some form of advantage on the substantive issues simply because she was unrepresented. Ground 14 is without merit.
The applicant’s various complaints concerning procedural fairness are, in this regard, without merit.
That the primary judge failed to have regard to the applicant’s childcare subsidy entitlements and other social security entitlements (Ground 3 and Ground 7)
The applicant alleges that the primary judge erred in the application of s 44(6) of the Family Law Act which provides:
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party - the party’s circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit.
The primary judge identified the applicant’s income and expenses (from her Financial Statement filed 22 November 2021) as including a gross salary of a little over $1,089 per week, together with social security by way of a small single parent payment (around $40), family tax benefit (around $140), and child support (around $420). The family tax benefit and child support are payments for the support of the children. The single parent payment is only paid where a person has children to support.
Even including the “income tested pensions” and child support, the applicant’s Financial Statement from 2021 showed that her expenses exceeded her income. Section 44(6) of the Family Law Act requires consideration of the applicant’s capacity to support herself, not her capacity to support the children. Costs of supporting children are generally addressed by child support, not by de facto relationship maintenance orders. However, the distinction is less clear when one considers a carer of children who is without income because of their caring responsibilities (for example, where the children are very young). Whether it can be said that the carer is unable to support themselves without an income tested pension, if they could work and support themself, but for the fact that they have caring responsibilities is a difficult issue, reflected in s 90SF(1)(b) of the Family Law Act. The primary judge distinguished between the costs of the applicant and the costs of the “family unit”: at [18(c)].
The Financial Statement from 2021 showed that the applicant’s income from employment was $1,089 per week, clearly above the cutoff rate for a single person’s social security. There was no evidence that she had reduced her employment to care for the children.
I am not persuaded that this argument, in the context of the present case, is sufficient to show that the primary judge’s decision was “attended by sufficient doubt to warrant it being reconsidered by the Full Court”.
The primary judge applied the wrong legal tests for determining “hardship” (Ground 11)
Ground 11 first complains that the primary judge erred in not applying Edmunds & Edmunds (2018) FLC 93-847, where the Full Court said:
47. As the Full Court pointed out in Sharp at [18], “the well-established test is that the applicant must have a prima facie claim worth pursuing or a ‘real’ probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship”.
48. That involves a consideration, but not a final determination, of the nature of the applicant’s claim. In doing so, the Court must weigh the applicant’s case against that of the respondent’s and form a view as to whether there is in fact a prima facie case, or a real probability of success, that would, if leave were granted, alleviate hardship.
The primary judge identified these considerations at [9]. This ground is without merit.
The primary judge erred in the exercise of his discretion in failing to have regard to the applicant’s circumstances at the relevant time (Ground 5)
The relevant time for considering hardship itself is the time of the application for leave: Walker and Walker (1984) FLC 91-564 at 79,553. The applicant argues that the primary judge considered her circumstances at the time of the expiration of the limitation period.
The applicant refers to [15(g)] of the primary judges’ reasons where he refers to the applicant’s financial position at the time when the limitation period expired. The references to the circumstances at this time were relevant to addressing the applicant’s delay in making the application. The primary judge referred to the applicant’s increase in rent at [15(g)(ii)], however there is little said as to her current financial circumstances.
The applicant’s weekly income and expenses (ignoring superannuation) as listed in her current Financial Statement show her income as around $300 less than her expenses (in Part B of the Financial Statement). Her salary had increased by nearly $100 per week (to around $60,000 per annum) and the primary judge noted that her rent had increased by a similar amount. However, the applicant’s day to day expenses (as shown at Part N of her most recent Financial Statement, which do not appear to have been added to the expenses amount in Part B in her most recent Financial Statement) had more than doubled, creating a significantly greater shortfall. Whilst she cannot be meeting all of the expenses she lists in Part N of her most recent Financial Statement (as the total is so much greater than her income), her credit card debt has more than tripled during this period indicating an ongoing shortfall.
Whilst the parties’ periods of cohabitation as de facto partners were brief, she has the burden of full-time care of their two children, the eldest child for over 14 years, which is likely to have had an impact on her earning capacity. The difference in financial position of the applicant and respondent is significant: she earns around $60,000 per annum, whereas he earned over $275,000 for each of the 2019/20 and 2020/21 financial years. Although the respondent says that his current income is a base rate of $130,000 per annum plus bonuses, he does not provide details of his total income for 2021/22, nor any part of the 2022/23 year.
I am persuaded that the applicant has shown that the decision was “attended by sufficient doubt to warrant it being reconsidered by the Full Court” on the ground that the primary judge had considered her circumstances at the wrong point in time when determining hardship, and potentially failed to have regard to her claimed needs (in Part N) in circumstances where there were material differences in the Financial Statements at the time of the application compared to when the standard application period expired.
I am persuaded that the applicant should be granted leave to appeal based upon these issues.
The primary judge erred in the exercise of his discretion in failing to have regard to relevant considerations and reached a conclusion that was plainly unjust (Grounds 3 to 6, Ground 8to 10, and Ground 12)
The extensive submissions concerning the needs of the children, child support, social security entitlements based upon caring for the children, issues concerning parenting arrangements, and allegations of family violence did not go to the issues the primary judge had to determine. Having regard to my conclusion that leave to appeal ought to be granted to the applicant with respect to Ground 5, there is no need to traverse these claims on the leave application.
CONCLUSION
The primary judge had jurisdiction to determine the applicant’s application for leave to bring de facto maintenance proceedings out of time. The appeal is not one that is prohibited by s 26(2) of the FCFCOA Act, however, it is an appeal from an interlocutory order and as such, requires leave. The applicant has shown circumstances that justify granting leave to appeal.
I would therefore make orders granting the applicant leave to appeal.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Harper, Riethmuller & Brasch. Associate:
Dated: 12 April 2024
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