Gilford & Cavaco

Case [2024] FedCFamC1A 55

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;

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AGLC
Gilford & Cavaco [2024] FedCFamC1A 55
Case
[2024] FedCFamC1A 55
Decision Date

CaseChat Overview and Summary

The matter in Gilford & Cavaco involves an appeal by the applicant, Ms Gilford, against a decision of the Federal Circuit and Family Court of Australia (Division 1) dismissing her application to bring de facto spouse maintenance proceedings out of time. The appeal was filed after the standard application period for maintenance orders had expired under the Family Law Act 1975. The primary judge dismissed the application, finding it incompetent as it sought to vary a non-existent maintenance order and that the court lacked jurisdiction to hear the matter. Ms Gilford appealed the decision, arguing the primary judge should have granted leave to apply out of time and that the application was not incompetent. The court had to determine whether the primary judge correctly dismissed the application and whether the applicant had demonstrated circumstances justifying leave to appeal.

The court concluded that the primary judge had jurisdiction to determine the application for leave to bring de facto maintenance proceedings out of time and that the appeal was not prohibited by the Federal Circuit and Family Court of Australia Act 2021. However, the appeal from an interlocutory order required leave, which the applicant had not demonstrated sufficient grounds to grant. The applicant's argument that she was denied procedural fairness was also dismissed, as the court found no arguable case that the primary judge failed to consider her circumstances or social security entitlements. The court found that the primary judge appropriately exercised their discretion in the circumstances.

The court dismissed the appeal and the application for leave to appeal, with no order as to costs. The appeal number NAA 291 of 2023 and the case number BRC 15584 of 2021 were both dismissed. The order was made by Harper, Riethmuller, and Brasch JJ on 15 April 2024.

Orders

Orders of the court

NAA 291 of 2023

BRC 15584 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

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).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.