Hayes & Eddington (No 3)
[2014] FamCA 336
FAMILY COURT OF AUSTRALIA
| HAYES & EDDINGTON (NO. 3) | [2014] FamCA 336 | |
| FAMILY LAW – JURISDICTION – the applicant deposed that she and the deceased respondent were in a de facto relationship which concluded in June 2012 – the deceased respondent deposed that no such relationship ever existed – the Executors of the deceased respondent seek dismissal of the proceedings claiming the Court lacked jurisdiction as the alleged relationship has not broken down FAMILY LAW – JURISDICTION – proceedings were commenced without jurisdiction whether an amended application could cure that underlying defect – As the jurisdictional facts were not in place at the time the proceedings were commenced the amended application did not cure the underlying jurisdictional defect – the proceedings are dismissed | ||
| Commonwealth Powers (De Facto Relationships Act) 2004 (Vic) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Family Law Act 1975 (Cth) Relationships Act 2008 (Vic) |
| Norton v Locke [2013] FamCAFC 202 |
| APPLICANT: | Ms Hayes |
| RESPONDENT: | Mr E & Ms F (Legal Personal Representatives for the late Mr Eddington) |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 2949 | of | 2012 |
| DATE DELIVERED: | 22 May 2014 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 24 & 25 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr St John SC |
| SOLICITOR FOR THE APPLICANT: | CE Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Bartfeld QC |
| SOLICITOR FOR THE RESPONDENT: | Glezer Lanteri & Associates |
Orders
The proceedings commenced by or on behalf of Ms Hayes on 4 April 2012 (as amended by an amended application filed 1 November 2012) are dismissed.
All other extant applications (other than costs) are dismissed.
Any costs applications be made in accordance with the Family Law Rules 2004 (Cth).
After twenty eight (28) days from the date of these orders all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage Senior Counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hayes & Eddington (No.3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: MLC 2949 of 2012
| Ms Hayes |
Applicant
And
| Mr E & Ms F (as Legal Personal Representatives of the Estate of the late Mr Eddington) |
Respondents
REASONS FOR JUDGMENT
INTRODUCTION
These are the reasons upon which orders are to be made dismissing the property and maintenance proceedings brought by Ms Hayes against Mr Eddington.
In April 2012 Ms Hayes commenced proceedings under Part VIIIAB of the Family Law Act 1975 (“the Act”) seeking orders for alteration of property interests[1] and maintenance[2] pursuant to the court’s jurisdiction in respect of parties to a de facto relationship which had broken down. In her original application filed April 2012, Ms Hayes contended that as at the date of filing her long term de facto relationship with Mr Eddington was continuing.
[1] Section 90SM.
[2] Section 90SE.
Ms Hayes later deposed and contended that her de facto relationship with Mr Eddington broke down in June 2012 (some two months after the proceedings were commenced). That contention was confirmed when, on 1 November 2012, Ms Hayes filed an amended application in which she asserted that her de facto relationship with Mr Eddington had broken down in June 2012.
Sadly, Mr Eddington died in February 2013. The Executors of his estate (“the Executors”) were subsequently substituted as his Legal Personal Representatives and respondents in these proceedings. The Executors sought dismissal of Ms Hayes’ property and maintenance proceedings, contending that the Family Court lacked jurisdiction to exercise powers pursuant to Part VIIIAB of the Act.
This summary was placed at the commencement of the reasons but was written and added to this document at the conclusion of my deliberations.
THE ISSUES
In the Executors’ application there were two substantive jurisdictional issues to be determined.
The first issue
The first issue is whether, on the best analysis of the evidence of Ms Hayes, the asserted de facto relationship between the parties had broken down as at April 2012.
If there was cogent evidence of the de facto relationship and of it having broken down at April 2012, then the Executors application would be dismissed and the proceedings would be moved to a hearing on the facts as to the existence and extent of any alleged de facto relationship between the parties.[3]
[3] Section 90RD.
If the evidence was that the relationship had not broken down at that time, then the proceedings would have ordinarily been dismissed. Except in this case an amended application was filed in November 2012.
The second issue
The second issue only arises if the evidence was that the de facto relationship had not broken down in April 2012. If that was the case, did the filing of an amended application cure the jurisdictional defect and enable the proceedings to continue.
BACKGROUND
Mr Eddington was born in 1949 and was aged 63 when he died in February 2013. Ms Hayes was born in 1962 and was aged about 52 at the time of the hearing of this application.
The child D, (“the child”) is a child of the parties and is aged eight.
Mr Eddington knew that he was very sick and on 21 December 2012 he made a Will (“the Will”) and appointed the respondents as executors of his estate. A copy of the Probate and the Will were in evidence before me. In the Will, Mr Eddington made provision for the child, namely:-
·A gift of $1,000,000 provided the child attain the age of 18 years[4]. There is a discretionary provision for the Executors to make payments to or for the child out of the income and capital of that gift for the child’s maintenance, education and advancement prior to his 18th birthday. [5]
·A gift of a Porsche motor vehicle. This gift vests on the child’s 21st birthday.[6]
·A monthly payment of $1,500 to be paid to Ms Hayes for the maintenance, education and advancement of the child.
[4] Annexure B, Clause 4.1 to the affidavit of the Executors filed 16 May 2013.
[5] Ibid at Clause 10.
[6] Ibid at Clause 7.8.
As to Ms Hayes, Mr Eddington’s Will provided a gift to her of $150,000 dollars. That gift was conditional upon Ms Hayes:-
·Not challenging the validity of the Will or any part of it; or
·Not obtaining an order against him in the Family Law proceedings; or
·Not having the Family Law proceedings still pending at the date of his death.[7]
[7] Ibid at Clause 4.8.
It was submitted by senior counsel for the Executors that such a gift had lapsed following the continuation of these proceedings after the death of Mr Eddington.
It was not in issue that Mr Eddington and Ms Hayes did not reside in the same home during the term of the alleged relationship, they resided in different residences. Ms Hayes asserted that they spent significant time together and that they lived in a de facto relationship within the meaning defined under the Act. Mr Eddington deposed that he and Ms Hayes had never been in a de facto relationship within that meaning.
The chronology of events in these proceedings is pivotal to the determination.
On 4 April 2012 Ms Hayes filed an application in the Family Court by which she commenced proceedings against Mr Eddington pursuant to Part VIIIAB of the Act. Ms Hayes sought unspecified property orders, periodic spousal maintenance and capitalised spousal maintenance.[8]
[8] The maintenance proceeding could not continue in any event given the provisions of Division 2 of Part VIIIAB of the Act and in submissions on behalf of Ms Hayes – Exhibit “H1” page .
The originating proceedings had been listed for a case conference on 2 July 2012. The application was not served until late July or early August 2012.
Within a short time after service of the application the legal representative for Mr Eddington raised the issue of jurisdiction with Ms Hayes’ legal representatives.
On 1 November 2012 Ms Hayes filed an amended initiating application seeking a declaration (on both a final and interlocutory basis) pursuant to s 90RD of the Act as to the existence of a de facto relationship between herself and Mr Eddington between 1998 and June 2012. She sought consequential orders for an adjustment of property and spousal maintenance.
Prior to the death of Mr Eddington, each of the parties and their witnesses filed affidavits as to their respective versions of the facts about the alleged de facto relationship.
Mr Eddington died in February 2013.
In April 2013 Probate of the Will was granted to the Executors by the Supreme Court of Victoria.[9]
[9] Exhibit B to affidavit of Executors sworn 16 May 2013.
After probate of the Will was granted, Ms A (who is the child’s litigation guardian) commenced Supreme Court proceedings on the child’s behalf challenging the terms of the Will.
On 1 November 2012 Ms Hayes filed an amended initiating application in this court seeking a declaration (on both a final and interlocutory basis) pursuant to s 90RD of the Act as to the existence of a de facto relationship between herself and Mr Eddington between 1998 and June 2012. She sought consequential orders for an adjustment of property and spousal maintenance.
In May 2013 the Executor applied to this Court for a number of orders, the first being an order that they be permitted to be substituted in Mr Eddington’s place under s 90SM(8) of the Act. They also sought an order that the proceedings be dismissed on the basis that this Court had no jurisdiction to determine Ms Hayes’ Part VIIIAB property and maintenance applications.
On 28 August 2013 senior counsel for the Executors prepared written submissions in support of the application in a case.[10]
[10]Exhibit E1.
The application in a case was considered by Bennett J on 29 August 2013. Her Honour made orders substituting the Executors as parties to these proceedings and listed the remainder of the application in a case before her for hearing on 24 February 2014. In addition she listed the proceedings for a compliance check on 2 February 2014.
In addition directions were made for filing written submissions. Ms Hayes’ legal representatives filed an outline of argument in opposition on 25 November 2013.[11] Submissions by the Executors in response were filed on 16 January 2014.[12]
[11] Exhibit H1.
[12] Exhibit E2.
Justice Bennet became indisposed in February 2014 and the proceeding came before Justice Cronin on 18 February 2014. At that time senior counsel for Ms Hayes sought to file a further amended application. In that further amended application it was asserted that the relationship between Ms Hayes and Mr Eddington broke down sometime between January 2012 and late March 2012. In the face of opposition by senior counsel for the Executors that application was not pressed. Ms Hayes sought to rely upon further affidavits, directions were made as to dealing with objections in respect of those affidavits.
The matter then came before me for determination on 24 March 2014. When the submissions were about to commence senior counsel for Ms Hayes endeavoured to file a further application in Court (this document was identical to the one sought to be filed before Cronin J but with the word ‘Further’ blacked out on the front page). Ms Hayes was not permitted to file that application.
Ms Hayes sought to rely upon evidence contained in her further affidavit filed 14 February 2013 and that of her solicitor filed the same day. I heard and determined that application and gave ex tempore reasons Hayes & Eddington [2014] FamCA 243. The material was generally ruled inadmissible.
On the 25 March 2014 senior counsel for Ms Hayes made an oral application that I disqualify myself from the further hearing of the proceedings on the basis of perceived bias. I heard and determined that application and gave ex tempore reasons Hayes & Eddington (No.2) [2014] FamCA 244. Ms Hayes’ application was dismissed.
In these Reasons any statement of fact is to be regarded as a finding of fact unless the contrary is indicated from the context of the statement.
THE LAW
This Court has both the power and obligation to determine jurisdiction. In Norton v Locke [2013] FamCAFC 202 the Full Court said in relation to the question of jurisdiction under Part VIIIAB of the Act:-
42.This court does not have power to make an interlocutory injunction of the type sought pursuant to s 114(2A) of the Act. That relief is dependent upon the establishment of a “de facto financial cause” which, in this case, is dependent upon the establishment of facts central to jurisdiction which are bona fide in dispute and which have not been established. The power to grant such an injunction pursuant to s 114(3) or s 90SS of the Act is subject to the same limitation because each is dependent upon proceedings under the Act (and the other preconditions contained within each section) and those proceedings cannot be brought or continued without satisfaction of the relevant jurisdictional facts.
43.This court, does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process; “[t]he power of each court over its own process is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612, at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court”.
44.Within that jurisdiction and within the ambit of powers just described, this court has the power to make what this court has described as “holding orders” pending the determination of the jurisdictional facts necessary to found jurisdiction. Orders of that type can include, specifically, orders for interlocutory injunctions (see, for example, Ex parte Green; Re LSH; and, Jackson v Sterling Industries Pty Ltd at 617, per Wilson and Dawson JJ). In both the High Court and this court orders of that type have been expressed as orders “preserving the status quo” pending resolution of the question of jurisdiction.
The Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 introduced the concept of “de facto financial cause” to the legislation. Sections 4(1) of the Family Law Act1975 (“the Act”), relevantly defines a de facto financial cause to mean:-
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or ….
(b)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them; or …
Section 4AA (1) of the Act provides:-
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c)having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
(2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
(3)No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4)A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(5) For the purposes of this Act:
(a)a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
(b)a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
Section 90SB of the Act enables a court to make an order or a declaration in relation to a de facto relationship only if the Court is satisfied that one of the four criteria set out in that section has been met. Section 90SB provides:-
A court may make an order under s 90SE, s 90SG, or s 90SM, or a declaration under s 90SL, in relation to a de facto relationship only if the court is satisfied:
(a)that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i)the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c); and
(ii)a failure to make the order or declaration would result in serious injustice to the applicant; or
(d)that the relationship is or was registered under a prescribed law of a State or Territory.
Note: For child of a de facto relationship, see section 90RB.[13]
[13] Section 90RB of the Act provides that a child is a child of a de facto relationship if the child is the child of both parties to the de facto relationship.
The jurisdiction to hear de facto property proceedings in the Family Court is provided by s 31(1)(a)(aa) of the Act which relevantly provides:-
Original jurisdiction of Family Court
s 31(1) Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
(aa)matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and …
Section 39A of the Act provides jurisdiction for de facto financial proceedings to be instituted in the Family Court.
Section 4 of the Act implements the requirement that a de facto relationship must have existed between the parties and there has been a breakdown of that de facto relationship to enable the jurisdiction of the Court to be enlivened. These requirements are repeated in s 90SM(1) of the Act.
Section 4AA(a) of the Act also sets out the circumstances which give rise to a de facto relationship. If there is no de facto relationship then the Act will not apply and the Court has no jurisdiction.
The reason for these provisions is that the power to deal with maintenance and property in respect of parties to a de facto relationship was created as a Commonwealth power by way of limited referral of these State powers to the Commonwealth by some, but not all, State Governments.
In this case the parties resided in Victoria. The State Government of Victoria, by reason of the Commonwealth Powers (De Facto Relationships Act) 2004 (Vic) referred powers to the Parliament of Commonwealth of Australia in respect of financial matters relating to de facto parties arising out of the breakdown (other than by the reason of death) of de facto relationships. That Act was assented to and came into effect on 22 November 2004. That Act sets out the purpose and the reference in which the two fundamental requirements of the fact of a de facto relationship and the breakdown, namely s 1 (Purpose) and s 4 (References):-
Purpose
1.The purpose of this Act is to refer certain financial matters arising out of the breakdown of de facto relationships to the Parliament of the Commonwealth for the purposes of section 51(xxxvii) of the Constitution of the Commonwealth
References
4(1)The following matters, to the extent to which they are not otherwise included in the legislative powers of the Parliament of the Commonwealth, are referred to the Parliament of the Commonwealth for a period commencing on the day on which this Act commences and ending on the day fixed, pursuant to section 5, as the day on which the references under this Act are to terminate, but no longer …
The Commonwealth accepted the referral of power by the passing of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act2008 (Cth).
Senior Counsel for the Executors set out the relevant law in paragraphs 16 to 21 of his written submissions dated 28 August 2013.[14] Senior Counsel for Ms Hayes took no issue with those submissions.[15]
[14] Exhibit “H1”.
[15] Exhibit “H1” – paragraph 16.
THE EVIDENCE
In support of the jurisdictional argument, the Executors relied upon two affidavits one by the Executors[16] and another by their solicitor, Mr C[17] (who also acted for the late Mr Eddington prior to his death).
[16] Affidavit of Mr E and Ms F filed 28 May 2013.
[17] Affidavit of Mr C filed 28 May 2013.
Ms Hayes sought to rely upon two affidavits filed 17 February 2014 to which I have earlier referred. The first of those affidavits was an affidavit of Mr B who is a partner in a firm of solicitors who act for Ms Hayes.
Pursuant to s 131(1)(a) of the Evidence Act 1995 (Cth) the evidence contained in paragraphs 6, 7 & 8 of Mr B’s affidavit were not permitted to be adduced. Paragraphs 1 to 5 of Mr B’s affidavit were allowed to be relied upon by Ms Hayes.
The second affidavit was by Ms Hayes sworn 17 February 2014. Pursuant to s 135(a) of the Evidence Act1995 (Cth) the evidence contained in that affidavit was excluded. Short ex tempore reasons were provided in relation to those exclusions.[18]
[18] Hayes & Eddington [2014] FamCA 243.
Previously, Ms Hayes swore and filed a number of detailed affidavits setting out the nature and extent of the relationship she asserted between herself and Mr Eddington. Her affidavit filed 1 November 2012 contained some eighty five pages of statements of evidence and had attached to it well in excess of one hundred pages of annexures. Ms Hayes provided further evidence in her affidavit filed 12 February 2013.
Ms Hayes relied upon a number of other affidavits including:-
· Affidavit of Ms G sworn 30 October 2012, filed 12 February 2013.
· Affidavit of Ms H sworn 26 October 2012, filed 1 November 2012.
· Affidavit of Ms I sworn 21 October 2012, filed 1 November 2012.
· Affidavit of Ms J sworn 26 October 2012, filed 1 November 2012.
As I have indicated earlier the health of Mr Eddington was deteriorating over 2012 and up to his death in February 2013.
The uncontested evidence of Ms Hayes was that in March 2012 Ms Hayes instructed solicitor’s and on 4 April 2012 an initiating application for property orders pursuant to the federal de facto laws under the Act was filed on her behalf in the Family Court. That application commenced these proceedings and was listed for a case conference on the 2 July 2012. It was not in issue that the application was not served at or before that time.
This initiating application was signed by Ms Hayes and she certified that the facts contained in the application were true to the best of her knowledge, information and belief. The application had the normal declaration by Ms Hayes’ lawyer, Ms Marco, dated 3 April 2012.
On page 3 of the application Ms Hayes had a choice of describing herself as ‘party to a relationship that has broken down,’ but instead positively marked a box for ‘Other (specify):’ and then typed the words ‘Party to a de facto relationship’.
On page 4 of the application was the following:-
(a)Ms Hayes made a positive assertion that in terms of when the parties commenced living together that it was not applicable.[19]
(b)She asserted that the date of separation was ‘not applicable’.[20]
[19] Part C paragraph 25.
[20] Part C paragraph 27.
On page 8 of the original application, Ms Hayes provided the answer ‘no’ as to whether the relationship broke down on or after 1 March 2009 or if a resident of South Australia on or after 1 July 2010. She further asserted that the de facto relationship was for at least two years, that there was a child of the relationship and that she had made substantial contributions.
From the evidence of Mr C the originating application was not served on Mr Eddington until about 3 August 2012.
In a letter to Ms Hayes’ solicitors dated 15 August 2012[21] Mr C said:-[22]
[21] Annexure RG1 to affidavit of Mr C.
[22] Ibid at paragraph 3, page 1 of the letter.
We are somewhat puzzled by what has happened in this matter and seek your response to the following:-
1.It would seem that you issued your client’s initiating application on 4 April 2012. Both you and Mr [B] are (or should be) aware that the Family Law Rules (Rule R7.04) provided that service of an application for Final Orders must be served on each person named in the application ‘as soon as is practicable’ after the date of filing. Not only did you chose not to serve our client with your client’s Application, but in your letter to him of 22 June 2012 you stated that in the absence of his co-operation your client:-
Has provided instructions to pursue both her entitlement and [the child’s] entitlements through a Court process.
The above statement was totally misleading given that proceedings had already been issued on behalf of your client.
Kindly advise us as to:-
(a) Why you did not serve the relevant documentation upon our client as soon as practicable; and
(b)When you wrote to him on 22 June 2012 you did not alert him to the fact that the proceedings had been issued rather than ‘threaten’ the issue of the proceedings.
(c)Why our client (or Mr Levy of Sackville Wilks) was not advised that a case assessment conference had been fixed for 2 July 2012.
In reply to that enquiry the solicitors for Ms Hayes responded on 20 August 2012,[23] saying:-
2.The primary reason for issuing the application was to preserve our client’s entitlements pursuant to the Family Law Act given your client’s serious health issues.
3.At that time the relationship between our client’s was still reasonably positive and there were attempts to resolve the financial and related issues through direct negotiations.
4.Service of the court documents was deferred because of those discussions and also because our client was concerned about the potential impact of the Court process upon your client’s health.
5.Mr [B] from our firm spoke directly with your client (because he did not have legal representative at the time) on 4 May 2012 and 19 June 2012 about available process options to reach a negotiated settlement so as to avoid the litigation process.
6.No response was received from your client and the relationship between our client’s subsequently deteriorated which led to our letter to your client dated 22 June 2012, broadly setting out a settlement proposal (which your client had requested).
7.When we attended the initial Case Assessment Conference on 2 July 2012 and informed the Court that the service had not been affected and the matter was adjourned for further Directions Hearing on 30 August 2012.
[23] Annexure RG2 to affidavit of Mr C.
The letter went on to note in the last paragraph at page 2:-
The first return date is irrelevant because an adjournment was obtained for the reasons specified. Your client was advised regarding court proceedings and the adjourned court date by letter dated 20 July 2012. On that basis and for the reasons specified we reject that there were any issues regarding the process.
In his 15 August 2012 letter to CE Family Law, Mr C also raised the question of jurisdiction when he said:-[24]
2) Upon taking instructions from [Mr Eddington] and upon reading your client’s [Ms Hayes’] Application we do not believe the Family Court (or the Federal Magistrates’ Court) has any jurisdiction to hear whatever it is what your client’s [Ms Hayes’] claim is Further in this regard, we believe that the issuing of proceedings on behalf of your client [Ms Hayes] is, in effect, an abuse of the Court’s process.
Kindly note, that unless your client [Ms Hayes] consents to dismissal of her Application by Friday of this week (17 August 2012) we have instructions to file a Response both objecting to the jurisdiction of the Court and seeking an urgent dismissal of your client’s [Ms Hayes’] application.
[24] Annexure RG1 - Letter 15 August 2012 – page 2 to affidavit of Mr C.
In the letter in reply the solicitor for Ms Hayes rejected the contention made by Mr C as to the jurisdictional issue.[25] Accordingly, there is thus no dispute that the question of jurisdiction was raised by Mr Eddington at the commencement of these proceedings.
[25] Annexure RG2 - Letter from CE Family Lawyers dated 20 August 2012 – page 3 to affidavit of Mr C.
On 1 November 2012 Ms Hayes filed an amended initiating application (“the amended application”). In her amended application filed 1 November 2013 Ms Hayes sought orders including a declaration under s 90RD of the Act that ‘a de facto relationship existed between the parties for the period 1998 to June 2012’.
Ms Hayes specifically asserted in the amended application that the relationship ended in June 2012. Ms Hayes sought interlocutory orders in terms of the relationship declaration in the same terms as the final orders she sought. Ms Hayes asserted that the parties commenced to live together in early 1998 and separated on 29 June 2012.[26] That was a change from the earlier application.
[26] Amended application Part C paragraphs 25 and 27
On page 8 of her amended application Ms Hayes asserted that the parties’ de facto relationship had broken down after 1 March 2009 (as she resided in Victoria), and that the relationship was for a period greater than two years.
Given those applications and the affidavit material of Ms Hayes, to which I will later allude, there is an inescapable inference from the evidence that on 4 April 2012 Ms Hayes asserted that the de facto relationship was continuing (apart from two earlier short breaks) and that the relationship broke down in June 2012.
On either factual scenario, if they are indeed the factual scenarios, no jurisdictional facts were asserted as would enable a finding that the relationship had broken down before the proceedings were commenced.
In Ms Hayes’ first affidavit filed 1 November 2012 (“the first affidavit”) she sets out the following at paragraph 5:-
5.We [Ms Hayes and Mr Eddington] commenced a committed de facto relationship in early 1998 and separated on 29 June 2012. Prior to our final separation there were two periods of separation, one for a period of approximately two months between 9 August 2003 and October 2003 and the second for approximately five months from April 2004 until September 2004.
A number of witnesses filed affidavits supporting Ms Hayes’ evidence in that regard.
Ms J in her affidavit filed 1 November 2012 said at paragraph 18:-
18.Commencing 1999 until [Ms Hayes] and [Mr Eddington] separated in June 2012 I have observed them together in a number of professional and social settings. They always presented as a happy, loving and affectionate couple.
Ms I, in her affidavit filed 1 November 2012 said at paragraph 27:-
27.In June 2012, I recall [Ms Hayes] called me to say that she had discovered ([Mr Eddington]) had been having an affair and she was extremely upset. My reaction was total shock as I had observed that [Ms Hayes] and [Mr Eddington] shared a loving and committed relationship for many years.
In her affidavit filed 1 November 2012 Ms H said at paragraph 15:-
15.In June 2012, [Ms Hayes] told me that she had discovered that [Mr Eddington] had been having an affair. She previously told me about her suspicion saying she had confronted [Mr Eddington] after a friend’s birthday celebration accusing him of having an affair which he denied. [Ms Hayes] was very upset by the revelation of [Mr Eddington’s] betrayal as she had trusted him and their relationship would have to end.
In her affidavit filed and sworn 12 February 2012 (the second affidavit) Ms Hayes said at paragraph 43:-
43.Save to admit we never married, I deny paragraph 46. It is a false and incomplete account of our relationship. Save for the two periods referred to in paragraph 5 of my first affidavit, we [Ms Hayes and Mr Eddington] were in a committed de facto relationship from 1998 until I discovered [Mr Eddington’s] infidelity in June 2012. Our relationship did not end when [the child] was born. I deny [Mr Eddington’s] account of our relationship following the birth of [the child], contained in paragraph 47. It is false and incomplete.
Another of the witnesses, whose evidence Ms Hayes sought to rely upon, was Ms G. In her affidavit sworn 30 October 2012 and filed 12 February 2013 she said at paragraph 19:-
19.In June 2012 [Ms Hayes] told me that she had discovered that [Mr Eddington] had been having an affair and that their relationship was over.
In terms of the period around April 2004 Ms Hayes said in her first affidavit, at paragraph 202:-
202.[Mr Eddington] wanted to buy me a strand of pearls on my fiftieth birthday,[27] but I suggested an iPad would be more useful for me as I could use it. [Mr Eddington] was in hospital at the time but paid for a new iPad and shortly afterwards I had Wi-Fi broadband installed at [Suburb K]. He stayed at [Suburb K] after his discharge from hospital and was very weak and tired. I cooked a nice dinner and he took his usual place in his Jason recliner that he enjoyed so much. I gave him my iPad and explained how the new Wi-Fi provided internet coverage throughout the house and he could sit in the lounge room and ‘surf’ the internet without having to go into the study. He stayed the night and left after a cooked breakfast the following morning as he was well enough to return to [L Street]. He was amazed by the iPad and enjoyed using it, especially at [Suburb K] but also while he was in hospital thereafter.
[27] … April 2012.
This gift and present were for the birthday of Ms Hayes which occurred on … April 2012, about one week after the application was filed.
Ms Hayes asserts that in June 2012 using the iPad she discovered emails between Mr Eddington and one of the Executors which she said provided her with evidence of his alleged infidelity.
At paragraph 193 of her first affidavit, it is clear that, from Ms Hayes’ evidence, there were discussions about Wills and bequests from 2007 onward including in March 2012.
It is in the context of that background that Ms Hayes said, at paragraph 196 of her first affidavit:-
196.In approximately late March 2012 I sought legal advice as to [Mr Eddington’s] stated plan to leave me nothing in his Will and only a relatively small portion of his estate to [the child]. Arising from my consultation, and given his grave medical condition, I was advised to issue an Initiating Application which was filed on 4 April 2012 and to approach [Mr Eddington] about the collaborative legal processes in an effort to openly discuss this matter. I spoke with [Mr Eddington] about this at the [M] Hotel one night, he was shocked I had seen a lawyer, but seemed interested in the process and how it could work for both of us. He subsequently refused to participate in any communication with my lawyers and I was reluctantly forced to continue these proceedings for the sake of myself and [the child].
At paragraph 222 of her first affidavit Ms Hayes said:-
222.Prior to discovery of [Mr Eddington’s] infidelity on 27 June 2012 we had an established relationship which [Mr Eddington] led me to believe was monogamous, exclusive and committed. At no time did [Mr Eddington] ever tell me that he was not committed, was in another relationship and that he and I were no longer bound to our verbal agreement. I supported him throughout his endeavours over the past fourteen years (and he mine) both whilst he was well and when he was often sick. Many times he described [the child], [N][28] and I as his ‘A’ team, his family, number one supporters and carers. I have questioned him as to his commitment to us on a number of occasions, particularly in the last 3 years, when he occasionally seemed more distant. He was given many opportunities to withdraw from family life but said he did not wish for this to happen and did not do so.
[28] The family dog.
Ms Hayes and her witnesses claim that the relationship continued from June 1998 until June 2012 at which time it broke down. This was some months after the proceedings were commenced.
DISCUSSION
Jurisdiction as at 4 April 2012
A court must ‘identify the subject matter of those actions entertained by a particular court’ in understanding the nature of its jurisdiction [High Court in Berowra Holdings v Gordon (2006) 225 CLR 364 at paragraph 30 referred to its decision in Lipohar v The Queen[29]].
[29] (1999) 200 CLR 485 at 517.
Senior counsel for the Executors submitted there was no jurisdiction for the Court to entertain the property and maintenance proceedings as the jurisdictional facts to base such a claim, that is that the relationship (as asserted by Ms Hayes) had not broken down when proceedings were commenced.
That submission was based upon the evidence of Ms Hayes and a number of her witnesses that the de facto relationship was a continuing relationship as at April 2012, to which I have alluded to earlier in these reasons. The only other evidence was that of Mr Eddington, to the effect that there was no relationship and had been no relationship within the meaning provided in the Act.
To understand the basis of the jurisdictional facts argument of the Executors, it is necessary to assume that Ms Hayes’ evidence will be accepted. It was not a concession on behalf of the Executors that the evidence was true but was put that it was the proper basis on which an application such as this could be considered. Senior counsel for the Executors submitted, and I accept, that:-[30]
…In other words, the submissions hearing are that even if Ms [Hayes] is totally believed, the absence of jurisdiction is fatal to her claim.
[30] Exhibit E1 – page 4.
In respect of that aspect of the application, senior counsel for Ms Hayes submitted both orally and in writing:-[31]
13.As to paragraph 15, it is agreed that, for the purposes of the jurisdictional submission presently advanced on behalf of the deceased, it is appropriate for the court to assume that the factual evidence of Ms [Hayes] will be accepted.
[31] Exhibit H1 – pages 2 and 3.
In his oral submissions, senior counsel for Ms Hayes asserted that even though her evidence was that the separation occurred in June 2012 it was open for the Court to come to a different conclusion as to a date when the breakdown of the de facto relationship occurred.
The submissions in this regard were expanded in terms of paragraph 14 of the submissions that is:-[32]
14.However, there is a fundamental flaw in the argument then advanced that the court must accordingly accept what Ms [Hayes] has previously deposed as to her belief when the de facto relationship broke down. The court is asked to make a declaration pursuant to s 90RB of the Act. It cannot simply accept Ms [Hayes’] subjective conclusions of fact/law as to the existence of, or duration of, the de facto relationship. If the de facto relationship existed at all, and if so, when it commenced and ceased, must be objectively determined by the court pursuant to criteria contained within s 4AA of the Act. The court could accept every factor which Ms [Hayes] deposed and yet ultimately determine that a breakdown of those de facto relationships commenced or ceased at a date other than those Ms [Hayes] specified in her affidavits to date.
[32] Ibid – page 3.
In response to that submission senior counsel for the Executors said:-[33]
The Response at paragraph 14 seems to suggest that Ms [Hayes’] own sworn evidence cannot be accepted. Her evidence on the breakdown of the relationship was clearly identified in the primary submissions.
[33] Exhibit E2 – pages 1 and 2.
I do not accept the submission made by senior counsel for Ms Hayes that it was open for the Court to come to a different conclusion as to a date when the breakdown of the de facto relationship occurred. On the evidence that is not available to me.
Ms Hayes’ clear and unambiguous evidence filed in these proceedings was that she was in a de facto relationship that existed between herself and Mr Eddington from 1998 to when the relationship broke down when she discovered his alleged infidelity sometime in June 2012. Further, her evidence was that up to June 2012 it was a functional de facto relationship. If her evidence was accepted, that would inevitably be the finding which this Court made.
The only evidence contrary to that was that of the late Mr Eddington in which he asserted there was no such relationship at all.
The Full Court comprised of Lindenmayer, Holden and MullaneJJ in Yunghanns & Ors v Yunghanns & Ors; Yunghanns (1999) FLC 92-836 said:-
109.Before proceeding further, we think it may be useful to summarise what we see as being the essential principles, relative to the determination of this appeal, arising from the decisions of the High Court in R v Ross-Jones, ex parte Green and D.M.W. v C.G.W. (both supra). Those essential principles, we perceive, to be:-
(1)Before making orders in proceedings (including interlocutory orders) the Family Court of Australia, as a court of limited jurisdiction, must be satisfied:
(a)that it has jurisdiction to make those orders in the proceedings; and
(b)that it is appropriate to exercise that jurisdiction by making those orders on the facts of the case as then known to it.
(2)The Court always has jurisdiction to entertain proceedings for the purpose of and up to the point of deciding whether it has jurisdiction to make the orders sought in the proceedings.
(3)In carrying out that limited exercise of jurisdiction, the Court is required to determine any essential facts upon which the existence of its jurisdiction to make the orders sought ultimately depends (“the jurisdictional facts”). That determination is a function which is incidental to the exercise of the jurisdiction referred to in (2) above.
(4)Where, from the very nature of the proceedings and the relief claimed, the substantive proceedings prima facie fall within the definition of “matrimonial cause” in s.4(1) of the Act, the jurisdiction to determine the jurisdictional facts, as an incident of determining whether it has jurisdiction to make the orders, is itself a matrimonial cause, and therefore within the exclusive jurisdiction of the Court.
(5)There is a distinction between the jurisdictional facts, as defined under (3), above, and the facts the existence of which it is necessary to establish in order to entitle the applicant (subject to discretionary considerations) to an exercise in his or her favour of the jurisdiction which the Court has (“the adjudicational facts”).
(6)Once a respondent challenges the Court’s jurisdiction to make the orders sought, the Court, before considering the adjudicational facts, must find the existence of the jurisdictional facts, on the balance of probabilities.
(7)However, once that threshold of jurisdiction is crossed, in the case of interlocutory proceedings (at least where what is sought is an injunction in the same or similar terms to the permanent injunction sought in the substantive proceedings) the Court, before making an order, does not need to find the existence of the adjudicational facts, but only that there is a serious issue to be tried as to their existence, and that the balance of convenience supports the making of the order: American Cyanamid v Ethicon Ltd (1975) AC 369; Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 52 ALR 651; and Epitoma Pty Ltd v Australian Meat Industry Employees’ Union and Ors (No.2) (1984) 54 ALR 730.
(8)The only circumstance in which the Court may proceed to make orders, despite a challenge to its jurisdiction so to do, and before it has found the existence of the jurisdictional facts, is that referred to by Gibbs CJ in R v Ross-Jones, ex parte Green (supra) at 202, namely when it is considered necessary to make holding orders to maintain the status quo pending its determination (with “the utmost urgency”) of whether it does have jurisdiction.
110.In attempting to apply the above principles to the facts of this case, it is first appropriate to acknowledge that whilst it is relatively simple, in theory, to describe the difference between jurisdictional facts and adjudicational facts, it is often difficult in practice (and we think that this is one of the cases which highlights that difficulty) to identify into which category a particular fact or group of facts falls. With respect to the trial Judge, we do not think that she attempted to make that distinction in this case.
It was further submitted on behalf of the Executors that the words ‘after the breakdown of the de facto relationship’ are words limiting the extent to the Court’s jurisdiction as to boundaries set by reference, power to the Commonwealth of Victoria. To that end it is submitted that s 90SM(1) has requirements limiting de facto proceedings to those proceedings ‘after the breakdown of the de facto relationship’. I accept that submission.
Section 39A of the Act permits the institution of a de facto cause in the Family Court of Australia and the underlying requirement for proceedings to have been commenced is that there must have been a de facto relationship and a breakdown of that de facto relationship.
In determining this issue I am satisfied that the Executors have established at that time, viz 4 April 2012 that there was a lack of jurisdictional facts in terms of the breakdown of that alleged de facto relationship and consequently it is ‘clear on the face of the opponents documents, and that the opponent lacks a reasonable cause of action’. See Kirby J in Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251; (1996) 70 ALJR 541 (6 May 1996) and per Dawson J in Munnings v Australian Government Solicitor [1994] HCA 12; (1994) 120 ALR 586; (1994) 68 ALJR 429 (20 April 1994) at 171).
At the time the proceedings were commenced, Ms Hayes’ evidence was such that there was no jurisdiction under the Act to commence or prosecute her application for property and/or maintenance in the Family Court. I determine that at that time Ms Hayes had no rights under the Act upon which to base the proceeding constituted by her application.
Did the amended application filed 1 November 2012 cure the jurisdictional defect or for that matter could a further amended application cure the jurisdictional defect?
This Court has determined that Ms Hayes commenced these proceedings in the absence of jurisdiction, and as such the second question must be considered. That is whether the filing of an amended application containing a new cause of action is the creation of a new proceeding thus providing jurisdiction to hear that new cause of action or whether the only way to cure the defect was by discontinuance and the commencement of a new proceeding by way of filing a fresh application.
In the context of an order, in the majority judgment of Gaudron, Gummow Callinan JJ in Pelechowski v Registrar (1999) 198 CLR 435 the High Court observed that because an order was made by an inferior court without power to do so, it was a ‘nullity’ and it could not found the proceedings for contempt. This situation was contrasted to that arising where an order was made with power but improperly in a case which, until set aside by a superior court, had to be obeyed.
There was no issue that the term “proceeding” was defined as “a proceeding in a court, whether between parties or not, and includes cross proceedings and/or incidental proceedings in the course of or connection with the proceeding”.[34]
[34]Section 41 of the Act.
In terms of the submission by senior counsel for the Executors, he relied upon the comments of Nygh J In the Marriage of Strelys and Strelys (Executor) (1988) FLC 91-961 where he said:-[35]
It follows in my view that "proceedings" cannot be interpreted as being synonymous with "application". When s 44(1) provides that "proceedings under this Act shall be instituted by application", the reference in the word "application" is to the document prescribed under the rules in which the various kinds of relief sought are to be set out. I would therefore agree with the view expressed by Mullane J In the Marriage of Jacobson (1987) 11 Fam LR 990 at 991, that the words "application" and "cross-application" are procedural terms established and defined in the Family Law Rules.
The types of proceeding which can be included in an application are set out in the definition of "matrimonial cause" in s 4(1) of the Act. The paragraph relevant to the present case is para (ca) which refers to "proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them". This covers both a proceeding under s 78 and one under s 79.
[35] At 76,963.
Senior counsel for the Executors submitted that the initial application commenced the proceeding and consequently that the proceeding continued but in the absence of jurisdiction and that the amendment of the initiating application (whether it was done with the consent of the Court or otherwise) does not cure the underlying defect and the proceedings are fatally impeached.
Senior counsel for the Executors referred me to the comments of Nygh J in Woolley v Woolley (1980) FLC 90-900. In that case his Honour considered the effect of an amended application which was sought to circumvent a jurisdictional pre-requisite, in that case to obtain leave. His Honour said (page 75,671):-
That brings me to the question of sec. 44. I certainly agree with the submission of counsel for the husband that if a party filed proceedings for access and then proceeded to amend that application to include relief in the property field, this certainly would not avoid the necessity to obtain leave under s.44(3). The simple answer is that proceedings for access and for property relief are proceedings of different kinds and although undoubtedly proceedings for access could be amended to seek a different type of access, those proceedings cannot be amended to become proceedings of a different kind.
This approach was approved by the Full Court (Evatt CJ, Asche SJ and Murray J) in Good v Good (1982) FLC 91-249 where they said:-
…In his Honour’s view, with which we agree, leave would still be necessary to institute property proceedings if they were of a different kind from proceedings already instituted. The test, in his Honour’s view, was whether the proceedings fell within the same paragraph of the definition of matrimonial cause as the current proceedings …
This in turn was considered Boland J in the Full Court in Hedley v Hedley [2009] FamCAFC 179. Her Honour endorsed the approach adopted by Nygh J in Woolley (supra) and the Full Court in Good v Good (supra) and set out a guidelines at the end of paragraph 95 which included:-
…a party who institutes proceedings for final orders in time may not amend his or her application out of time to add a different cause of action without leave under s 44(3) (for example amend a cause of action commenced under s 79 to include an application for spousal maintenance). The latter cause of action is the institution of new proceedings out of time;
Cronin J in Headley (supra) took the view that the approach by Nygh was ‘of little assistance’ saying:-
194.In Woolley & Woolley (1980) FLC 90-900, Nygh J said that if one party brought a parenting application and the other responded seeking property relief out of time, the respondent would need leave under s 44(3). However, that decision precedes the 1983 amendments and is of little assistance.
Senior counsel for the Executors submitted that the only way the defect could have been cured was by way of discontinuing of these proceedings and issuing new proceedings after the breakdown of the alleged de facto relationship and at a time Mr Eddington was alive.
Senior counsel for Ms Hayes submitted that as the Family Court is not a court of pleadings then a fundamentally different approach would apply in relation to courts in a civil context. He submitted that the second initiating application created a proceeding for the first time whether that document was called an amendment or otherwise.
I disagree with that submission, as all the amended application could do was amend the orders sought in the proceedings commenced in April 2012.
Senior counsel for Ms Hayes contended that the analogy between the decisions in Woolleyv Woolley and Goodv Good (supra) was incomplete and that they pertained to the necessity for leave to amend current applications to commence proceedings of a new and fundamentally different type. He submitted that the reasoning in either of the decided cases is not analogous to the arguments pertained in the jurisdiction of this matter.
Senior counsel for Ms Hayes said:-[36]
…we say rhetorically, where is the basis for saying that this amended application is, in some way, poisoned by the first? Where is it? He makes that submission. He makes that submission on a number of occasions. He has made submissions to that effect today. Where is the legal basis for that assertion? Where is the case that says one can’t amend, and that there is a fatal flaw by attempting to amend a flawed application? Where, do we say rhetorically – I say rhetorically, I’m using the royal prerogative, your Honour – where is the legal basis for that assertion? It’s not advanced at all.
[36] Transcript of Proceedings dated 25 March 2014, line 8 on page 39.
I do not accept those submissions made by senior counsel for Ms Hayes and I accept the submission made by senior counsel for the Executors that the commencement of proceedings without jurisdiction does not mean that there are no proceedings on foot, but it does mean that the Court has power to determine the jurisdictional question as was discussed on Norton v Locke (supra).
I determine that the attempt by Ms Hayes to re-characterise the amended initiating application as an originating application was not available to her. Once a proceeding has been commenced, without jurisdiction, that defect cannot be cured by the filing of an amended application in the very same proceeding.
It was submitted by senior counsel for Ms Hayes that the leave given by Bennett J to file the amended application in November 2012 enabled the proceedings to be amended and solved the jurisdictional issue. Senior counsel for the Executors asserted that such order granting leave for the amended application was, in the circumstances of the jurisdictional facts having not been established, ultra vires the powers of the Court. Given the approach that I have adopted, I accept that submission.
It is open under the Rules to add and substitute parties, however, the Rules need to be based upon the existence of proceedings commenced with the jurisdiction in place. In this case it was appropriate to give leave to the Executors to become parties to enable the argument as to jurisdiction to be heard and determined.
A submission made by senior counsel for Mr Hayes was that the effect of accepting the approach of the Executors and consequential determination would shut Ms Hayes out of these proceedings under the Act. That is not a factor to which I ought to consider in terms of whether there is jurisdiction pursuant to which the Court can exercise its powers. If there is lacuna in the law it is a matter for the legislative and executive arms of Government, not the judiciary.
It was submitted that there may also be an analogy in terms of the statutory jurisdiction to base an application for divorce. Section 48(2) of the Act provides the need for at least twelve month separation to be in place for that period immediately preceding the date of the filing of the application for dissolution of marriage. Decisions such as that long standing Full Court principle contained in Whiteoak v Whiteoak (1980) FLC 837 and its approval by the Full Court in Price v Underwood (2008) 39 Fam LR 614 note that in that context ‘an amendment of an application does not alter the date it was filed’.[37]
[37] Whiteoak v Whiteoak (supra) paragraph 61.
In this context the power of the Court to grant a dissolution of marriage only arises when there is a period of twelve months separation at the time of filing the application. If that twelve months has not expired an amended application filed after the twelve months does not cure the underlying defect. Such could be likewise said in terms of jurisdiction.
Senior counsel for Ms Hayes complained that he was at some levels unprepared for his submissions, given the refusal to allow him to rely on the evidence of Mr B and Ms Hayes both filed 17 February 2014. I reject that submission, as earlier directions had been made for the filing of objections to the affidavit material and it was clear from soon after that date that the Executors were objecting to Ms Hayes being permitted to adduce that evidence.[38] It was something that senior counsel for Ms Hayes could and should have reasonably anticipated.
[38]Exhibits E4 and H2.
Senior counsel for Ms Hayes submitted that the refusal of the Court to permit the filing of the amended application showing an asserted date of the breakdown of the relationship between the late Mr Eddington and Ms Hayes as a time after 1 January 2012 and shortly before 4 April 2012 was something which he had not been able to reasonably address. Senior counsel for Ms Hayes had endeavoured to file that amended application before Cronin J on 18 February 2014 and in the face of objection by senior counsel for the Executors did not press the tender. Senior counsel for Ms Hayes should have reasonably anticipated that the objection would continue.
In any event given the approach I have adopted and which was clearly set out by senior counsel for the Executors in August 2013[39] the filing of amended applications would not solve the underlying defect.
[39] Exhibit E1.
The assertion as to the date of separation made on behalf of Ms Hayes in that putative amended application, and in the oral submissions made by her senior counsel, was in stark contradiction to Ms Hayes’ sworn evidence.
CONCLUSION
In April 2012 Ms Hayes commenced proceeding by the filing of an application in the Family Court seeking property and maintenance orders pursuant to the powers referred to the Commonwealth by the State of Victoria and accepted by the Commonwealth through the amendment to the Act creating, inter alia, Part VIIIAB. Ms Hayes deposed that the de facto relationship remained intact until June 2012. Accordingly, on her evidence, it had not broken down when the proceedings commenced and consequently there was no jurisdiction in the Family Court to exercise the powers she sought to invoke. The only power that the Family Court could exercise in respect of those proceedings (in that jurisdictional factual scenario) was the power to dismiss the proceedings, plus other limited powers as discussed in Norton v Locke (supra).
It was not possible for Ms Hayes to cure the problem by way of an amendment of these fatally flawed proceedings and endeavour to establish a new cause of action in the context of these proceedings. A subsequent change of facts to establish the jurisdictional basis to found her application (if her facts were accepted) for orders under Part VIIIAB would need to be followed by a new proceeding. An endeavour to amend the fatally flawed proceeding is inadequate, as it is impossible to amend a nullity.
Mr Eddington was not guilty of laches and he did not procrastinate or prevaricate in raising the issue about the Courts jurisdictional lacuna.
Consequently, these proceeding are to be dismissed for want of jurisdiction.
I certify that the preceding one hundred and twenty nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 22 May 2014.
Associate:
Date: 22 May 2014
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