FAMILY COURT OF AUSTRALIA
| HARRIOTT & ARENA | [2016] FamCAFC 69 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – De facto – Appeal against an order dismissing the appellant’s application for property settlement on the basis that the geographical requirement in s 90SK of the Family Law Act 1975 (Cth) was not met – Where the appellant applied proceeds from the sale of a house in New South Wales to the purchase of a property and a business in Vanuatu – The trial judge misdirected himself in finding that contributions made prior to the commencement of the relationship were not “in relation to” the relationship – “Substantial contributions” were made in New South Wales – Appeal allowed – Costs certificates granted. |
| Australian Constitution – s 51(xxxvii) Family Law Act 1975 (Cth) – s 4(1), s 4AA, s 85A, s 90SK, s 90SM Federal Proceedings (Costs) Act 1981 (Cth) |
| Beneke v Beneke (1996) FLC 92-698 Delamarre & Asprey (2014) FLC 93-616 Edwards v Noble (1971) 125 CLR 296 Kennon v Spry (2008) 238 CLR 366 Lee v Hutton (2013) 50 Fam LR 322 Lozanov & Lozanov (unreported, Full Court of the Family Court of Australia, Fogarty, Baker & McCall JJ, 8 June 1994) Lynam v Director-General of Social Security (1983) 52 ALR 128 Oakley and Roche [2009] FCWA 132 Redmond & Mullins [2015] FamCAFC 69 Thorburn and Oswald [2007] FCWA 43 Tillmans Butcheries Pty Ltd v The Australasian Meat Industry Employees’ Union (1979) 27 ALR 367 V and K [2005] FCWA 80 Webb & Douglas [2012] FMCAfam 1049 |
| APPELLANT: | Ms Harriott |
| RESPONDENT: | Mr Arena |
| FILE NUMBER: | SYC | 1615 | of | 2013 |
| APPEAL NUMBER: | EA | 162 | of | 2013 |
| DATE DELIVERED: | 6 May 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray, Ryan & Murphy JJ |
| HEARING DATE: | 28 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 1604 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Givney |
| SOLICITOR FOR THE APPELLANT: | Williams The Law Firm |
| COUNSEL FOR THE RESPONDENT: | Mr Blackah |
| SOLICITOR FOR THE RESPONDENT: | Gibsons Lawyers |
Orders
The appeal be allowed.
The order made by Judge Scarlett on 16 October 2013 be set aside.
The proceedings be remitted to the Federal Circuit Court of Australia for directions in relation to the future conduct of the proceedings.
There be no order as to costs.
The court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney General…
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- AGLC
- Harriott & Arena [2016] FamCAFC 69
- Case
- [2016] FamCAFC 69
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the trial judge had correctly interpreted the geographical requirement under s 90SK(1)(b)(ii) of the Family Law Act, and if the trial judge erred in excluding contributions made before the de facto relationship began from consideration. The appellant argued that her financial contributions, such as selling her home and making payments in Australia, should be considered as substantial contributions made in New South Wales. The respondent maintained that these contributions were made outside New South Wales and thus did not meet the jurisdictional requirement.
The court found that the trial judge erred in excluding the contributions made by the appellant before the relationship began from consideration. The Full Court held that the contributions made by the appellant at the commencement of the relationship, even if they occurred before the relationship officially began, should have been considered. The court determined that the trial judge's exclusion of these contributions from the analysis was a misapplication of the law. Consequently, the appeal was allowed, the order of the trial judge was set aside, and the matter was remitted to the Federal Circuit Court for further directions.
The court also granted costs certificates to both parties, indicating that the Attorney General may authorise payments to both the appellant and the respondent for the costs incurred in relation to the appeal. This decision underscores the importance of accurately interpreting the jurisdictional requirements for making property orders in de facto relationships under the Family Law Act.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The order made by Judge Scarlett on 16 October 2013 be set aside.
3.
The proceedings be remitted to the Federal Circuit Court of Australia for directions in relation to the future conduct of the proceedings.
4.
There be no order as to costs.
5.
The court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
6.
The court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney General to authorise a payment under that Act to the respondent in respect of the costs incurred by him in relation to the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The power to make orders altering the property interests of parties to a de facto relationship is dependent upon the court being satisfied of the existence of matters in s 90SK(1) of the Act. This provision is of critical importance in this appeal, and we have highlighted the phrase that is of particular relevance:(1)A court may make … an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:(a)that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the … order was made … ; and(b)that either:(i)both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or(ii)the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a),(b) or (c);in one or more States or Territories that are participating jurisdictions … or that the alternative condition in subsection (1A) is met. The alternative condition set out in s 90SK(1A) is that “the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down”. It is common ground that s 90SK(1)(a) was satisfied and that s 90SK(1)(b)(i) and s 90SK(1A) were not. Accordingly, for the court to have jurisdiction, the appellant needed to have made “substantial contributions in relation to the de facto relationship of a kind mentioned in paragraph 90SM(4)(a), (b) or (c)” in New South Wales or another “participating jurisdiction”. The trial judge gave these short reasons for concluding that the appellant had not met what the Act calls the “geographical requirement” (footnote omitted):47.The evidence shows financial contributions made by the Applicant towards the purchase of the [business], the purchase of the parties’ home in Vanuatu, and contributions to meet the parties’ various expenses from time to time. However, these contributions were all made in Vanuatu. 48.I am not satisfied that those contributions can be characterised as having taken place in New South Wales because the funds used to make those contributions were held in various accounts with [a] branch of the Commonwealth Bank of Australia. The money was paid on each occasion in Vanuatu and it is in Vanuatu that the contributions were made.49.The steps taken by the Applicant in Australia, such as selling her home, taking leave of absence from her job, and rearranging the parenting arrangements relating to her child of her earlier marriage, were all taken before the de facto relationship commenced. The nub of the appeal appears in Ground 2, which asserts that:The trial Judge failed to appreciate that the contributions at the commencement of the relationship (whenever it commenced) were made in New South Wales… The associated complaint is that his Honour erred at [49] in concluding that anything occurring prior to the start of the relationship could not be considered in determining whether the appellant made “substantial contributions in relation to the … relationship”.