Hoffman and Heffernan

[2012] FamCA 767

FAMILY COURT OF AUSTRALIA

HOFFMAN & HEFFERNAN [2012] FamCA 767

FAMILY LAW – JURISDICTION – De facto relationship – where parties’ relationship ended prior to the commencement of Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) (“Amendment Act”) – where parties elect to “opt in” per s 86A., Amendment Act – where application is made out of time – where leave granted pursuant to s 44(6), Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Klintok & Ferder (2010) 43 FLR 135

APPLICANT: Ms Hoffman

RESPONDENT: Mr Heffernan

FILE NUMBER: BRC 9848 of 2011

DATE DELIVERED: 20 August 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 20 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J. Bunning

SOLICITOR FOR THE APPLICANT: Feeney Family Law

THE RESPONDENT: In person

Orders

IT IS ORDERED THAT

1. The files BRC9848/2011 and BRC2780/2011 be consolidated.

2. Leave is given to the Applicant, pursuant to Section 44 (6) of the Family Law Act 1975 (Cth) to proceed with her Application for property adjustment Orders.

IT IS ORDERED BY CONSENT THAT

1. Pursuant to Rule 10.17 of the Family Law Rules 2004, Orders, declarations and notations be made in terms of the document titled “Minutes of Consent” sealed and attached hereto.

IT IS DIRECTED THAT

1. The Minutes of Consent remain upon the Court file.

THE COURT ORDERS BY CONSENT THAT:

1. The Respondent shall, within thirty (30) days of the date of these Orders transfer to the Applicant all of his right, title and interest in the property situated at Property M more properly described as Lot … on Registered Plan …22, … with Title Reference …07.

2. Contemporaneous with the transfer described in Order 1, the Applicant shall:

   a.   Refinance the mortgage attaching to Property M, into her name solely,

   b.   Indemnify and keep the Respondent indemnified in relation to that mortgage,

   c.   Pay to the Respondent the sum of $16,250.00 such monies to be made payable to the Trust Account of the Australian Government Solicitor and shall stand to the credit of the Respondent as his property settlement.

3. The Respondent shall, within thirty (30) days sign all such documents as may be necessary to transfer to the Applicant the registration on the Ford Motor Vehicle.  The Applicant shall receive the Ford Motor Vehicle as part of her property settlement.

4. Otherwise, each party shall obtain those assets and Superannuation in their power, possession or control as at the date of these Orders.

5. Each party shall indemnify the other in relation to any liability either in their name solely or in their joint names with any other person as at the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hoffman & Heffernan 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 BRISBANE

FILE NUMBER: BRC 9848 of 2011

Ms Hoffman

Applicant

And

Mr Heffernan

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. These proceedings concern an application by the applicant for leave to proceed pursuant to section 44(6) of the Family Law Act 1975 (Cth) (“the Act”) so as to permit proceedings for a property adjustment in the context of a de facto relationship between the parties to be determined.

2. Relevant to the issue of leave, indeed crucial to it, is the fact that the parties are in agreement as to what should occur if leave be granted so as to resolve, finally, any financial issues outstanding between them.  Because the question of jurisdiction is in issue, it is important that I record the court being satisfied that the orders agreed upon should be made.

3. The jurisdictorial basis for the orders helpfully contained in written submissions prepared by counsel for the applicant. 

4. Counsel refers to the decision of Cronin J in Klintok & Ferder (2010) 43 FLR 135 at [18]. His Honour’s decision refers there to whether the court has accrued jurisdiction to deal with matters relating to a de facto relationship prior to the commencement of the amendments to the Act which give this court jurisdiction. Section 86A of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) provides for parties to whom the relationship would not otherwise apply “opting in” to the new regime.

5. In circumstances where the parties “opt in” within the meaning of that section, the court has jurisdiction to hear and determine applications for property adjustment orders as if the parties were in a de facto relationship, provided they otherwise satisfy the conditions for the existence of such a relationship under the Amendment Act.

6. In relation to the prerequisites of that section, it is to be noted that there are no orders made under a preserved State or Territory law in relation to the division of property to the de facto relationship or the maintenance of either party (section 86A(3)). 

7. Secondly, the parties do not have the financial agreement under a designated State or Territory law (section 86A(4)). 

8. Finally, the parties have elected to opt into the jurisdiction of the court and have made that choice in writing, pursuant to a document signed by each of them.  That agreement provides that the choice has been made by the parties and, although Mr Heffernan today represents himself, he was at the time of the making of that agreement, represented, and the agreement contains the relevant certification of independent legal advice (section 86A(5)). 

9. The parties have fully satisfied the provisions of section 86A of the Act mentioned earlier and have, as a result, validly opted in to the legislation.

10. As a result, this court has jurisdiction to hear and determine the claims sought by them. 

11. There is, though, an impediment earlier referred to; the application is out of time. 

12. An application is accordingly made pursuant to section 44(6) of the Act. That section provides the requirements for the granting of leave by the court, namely, that hardship would be caused to the party if leave were not granted, and, if an application for maintenance is involved, that 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.”

13. The circumstances pertaining to those issues are addressed relevantly in the submissions to which I have earlier referred and in the affidavit material before the court.  I am satisfied the pre-conditions are met. Significantly, the respondent does not oppose the granting of leave.

14. In all the circumstances of this case I consider it appropriate that leave be granted. 

15. The court, having jurisdiction, and leave having been granted to permit the applicant to make the application for property adjustment order, the parties have together resolved that issue by agreement between them. 

16. The father, who appears for himself today, confirms that he is agreeable to the making of the order in terms of the minutes signed by him. 

17. The Child Support Registrar is a party to proceedings BRC2780 of 2011, which might be seen to be interconnected with the proceedings the subject of leave and the making of property adjustment orders, namely, BRC9848 of 2011. 

18. The Child Support Registrar was given leave to intervene in these proceedings, and I earlier made an order consolidating the issues pertaining to both files so that they each could be heard today.  In that respect, there are outstanding issues relating to amounts alleged to be owing by the respondent, as and by way of child support.

19. Additional minutes of consent, to which the Child Support Registrar is a party, provide for the payment of moneys by the respondent to be paid into the trust account of the Australian Government Solicitor.  They will then be held in respect of the proceedings to be finally determined in the Federal Magistrates Court, where this matter will return upon the making of the consent orders to which I have just referred. 

20. In all of the circumstances of this case, I consider that it is proper for me to make the orders in accordance with the minutes of consent signed by each of the parties and/or their respective legal representatives, and I so order, with one exception. 

21. It is indicated that at paragraph 1 of the minutes in proceedings BRC9848 of 2011 that the parties consent to leave being given pursuant to section 44(6) of the Act. The parties can indicate their consent to leave being granted, but that order cannot, in terms, be made by consent. Accordingly, I will amend the minutes in proceedings BRC9848 of 2011 so as to note that each of the parties consent to leave being granted to the applicant, pursuant to section 44(6) of the Family Law Act, and I will make order 1, then, as an order not made by consent.

22. Otherwise, paragraphs 2 through 6 of the minutes will be made by consent.  All of the orders in file number BRC2780 of 2011 will be made by consent.    

23. I order accordingly.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 20 August 2012.

Associate: 

Date:  6 September 2012