HORRIGAN & JENNINGS

[2015] FamCA 923

FAMILY COURT OF AUSTRALIA

HORRIGAN & JENNINGS [2015] FamCA 923

FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Application – Where the applicant brought an application to discharge consent orders made in March 2011 – Where parties cannot confer jurisdiction by consent where no jurisdiction exists for the court to make orders in respect of a de facto property settlement, where it is contended by one party that the relationship broke down before 1 March 2009 – Where that jurisdictional point is at the heart of the current application – Where the registrar could not be satisfied that the relationship had finally broken down after the relevant date – Where there is at least an arguable case for concluding that the de facto relationship finally ended prior to 1 March 2009 – Where the Court is unable to be satisfied of the relevant matter giving rise to jurisdiction – Accordingly, the orders made in 2011 be set aside

Family Law Act 1975 (Cth), ss 4AA, 90RD, 90SM
Family Law Amendment (De Facto Financial Matters and Other Matters) Act
(2008), ss 86A
Family Law Rules 2004 (Cth), rr 10.04, 10.17

Fenton & Marvel (2013) FLC 93-550
Harris v Caladine (1991) 172 CLR 84

APPLICANT: Ms Horrigan

RESPONDENT: Ms Jennings

FILE NUMBER: NCC 3264 of 2012

DATE DELIVERED: 8 October 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 17 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Tregilgas
SOLICITOR FOR THE APPLICANT:	Byrnes Lawyers

COUNSEL FOR THE RESPONDENT: Ms Spain

SOLICITOR FOR THE RESPONDENT: Smallwoods Lawyers

Orders

1. That Orders made 29 March 2011 be set aside.

2. This matter is listed for directions at 9.30 am on Thursday 5 November 2015.

IT IS NOTED that publication of this judgment under the pseudonym Horrigan & Jennings is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 3264 of 2012

Ms Horrigan

Applicant

And

Ms Jennings

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for discharge of Orders made by consent on

   
   

   29 March 2011, hereafter referred to as the “2011 consent orders”.

The Parties

1. The parties to those Orders and this application are the applicant, Ms Horrigan, and the respondent, Mr Jennings. The parties had a long relationship, and have three children together, two of them adults. 

2. The 2011 consent orders relate to the de facto relationship of the parties.  The parties have been both applicant and respondent in previous applications. 

3. For clarity, and in the particular circumstances of this dispute, I will refer to the parties as “Ms Horrigan” and “Mr Jennings”.

Brief History of Relevant Events 

1. On 16 September 2010, an Initiating Application was filed in the Sydney Registry of the Family Court by Mr Jennings.  The application was for adjustment of property interests pursuant to Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).

2. In part C of that application, Mr Jennings identified the parties as having commenced living together in 1987, and finally separating in April 2009. 

3. The date of separation is significant.

4. Jurisdiction in de facto relationship matters commenced in this court on

   
   

   1 March 2009. The court has jurisdiction to entertain such a claim if there was a de facto relationship, as defined by section 4AA of the Act, which broke down finally after 1 March 2009, or if there had been an opting in to the legislation. I will refer to that aspect again later in these reasons.

5. On 22 December 2010, Ms Horrigan filed  a Response setting out alternate property orders sought by her. 

6. In part D of that Response, headed “The facts in dispute”, Ms Horrigan identified the facts with which she did not agree as follows:

   Date of final separation was 22 July 2002, not April 2009 as suggested by [Mr Jennings].

7. The matter progressed in the court.

8. On 29 March 2011, the parties and their solicitors attended a conciliation conference with a registrar of this court.  They reached agreement about the distribution of their property.  Handwritten orders were prepared and signed.

9. Mr Jennings gives evidence in his affidavit filed 25 January 2013, at paragraph 5, that the presiding registrar raised the subject of the date of separation with the parties. It is suggested, and not disputed, that the registrar said to

   
   

   Ms Horrigan words to the effect:

   Notwithstanding that there is a dispute as to the date of separation do you consent to the Family court exercising its jurisdiction in this matter?

10. After a brief conferral with her solicitor, Ms Horrigan’s solicitor responded:

    Yes my client consents but presses that the date of separation is 2002.

11. Of course, parties cannot confer jurisdiction by consent where no jurisdiction exists.  The jurisdictional point, did the court have jurisdiction to make the orders, is at the heart of the current application. 

12. After this exchange between the registrar and the solicitor for Ms Horrigan, the registrar, by usual practice, then made the orders, initialled the signed document, and directed the drafting solicitor to prepare a clean typed script with copies for sealing and sending to the parties pursuant to Rule 10.04(3) of the Family Law Rules 2004 (Cth) (“the Rules”).

13. A clean, certified copy, dated and signed (by Mr Jennings’s solicitor on

    
    

    28 April 2011 and Ms Horrigan’s solicitor on 19 April 2011) was forwarded to the court and signed. It is apparent, by a different registrar, under Rule 10.17 of the Rules.

14. Rule 10.17 of the Rules provides that if a party applies for a consent order, the court may:

    a)make an order in accordance with the orders sought;

    b)require a party to file additional information;

    c)dismiss the application.

15. The court has a discretion to make or refuse to make orders in terms consented to by parties.  It cannot make orders that are beyond jurisdiction, and a judge or registrar is required to be satisfied as to certain matters before making orders.

16. Did the registrar have jurisdiction to make the orders without being satisfied that the relationship had not finally broken down before 1 March 2009, or rejecting the orders until that exercise of fact finding could be undertaken pursuant to s 90RD of the Act?

17. After the making of the 2011 consent orders, one year and eight months passed.

18. On 4 December 2012, Ms Horrigan made an application to the Federal Circuit Court, then known as the Federal Magistrates Court, at Newcastle.   The orders sought were to set aside the 2011 consent orders and for fresh property adjustment orders to be made.  In part C of that document, headed “Relationship of Parties”, Ms Horrigan identified the date the parties commenced living together as 31 December 1987 and the date of separation as 22 July 2002. 

19. On 25 January 2013, Mr Jennings filed a Response seeking dismissal of that application.  His affidavit in support raised the evidence just referred to above in these reasons, being the consent of Ms Horrigan to the orders being made despite the factual difference over date of separation. 

20. The difference over the date of separation is crucial. The new amendment to the Act giving jurisdiction over de facto property applications to the Family Court did not apply in relation to a de facto relationship that broke down before its commencement on 1 March 2009.

21. On 13 March 2015, Ms Horrigan filed an Amended Initiating Application, including, as an interim order, a declaration that the parties separated prior to 1 March 2009. She again sought associated property orders. 

22. On 30 March 2015, Mr Jennings filed an Amended Response again seeking summary dismissal.

23. The matter came before me on 1 May 2015 and was listed for hearing on

    
    

    17 September 2015.

Analysis

1. It is not in dispute that Ms Horrigan did not opt into the new regime pursuant to s 86A of the Family Law Amendment (De Facto Financial Matters and Other Matters) Act (2008). 

2. Opting in by Ms Horrigan could not be inferred from her consenting to the orders.  The provisions are clear.  Parties can choose the regime, and the choice must be in writing.  Further, s 86A(5)(b) requires that:

   … each of the parties was provided, before the choice was signed by him or her, with (i) independent legal advice from a legal practitioner about the advantages and disadvantages, at the time that the advice was provided, to the party of making the choice, and (ii) a signed statement by the legal practitioner stating that this advice was given to the party.

3. The advice element is significant, and must be in writing. There is no evidence of opting in.

4. In this matter, a registrar was exercising judicial powers in making orders pursuant to s 90SM of the Act (see Harris v Caladine (1991) 172 CLR 84 ). The registrar could not be satisfied, in my view, that this relationship had finally broken down after the relevant date.

5. The decision of the Full Court in Fenton & Marvel (2013) FLC 93-550, with particular reference to paragraphs 49 to 63 inclusive of that decision, sets out the matters a court must be satisfied about in relation to jurisdiction.

6. In this matter, there was a dispute as to when the relationship ended, and neither party conceded a different date.  Jurisdiction accordingly could not be established because a registrar could not be satisfied of jurisdiction. 

7. Despite consent, the proposed orders should have been rejected outright or referred for a declaration under s 90RD of the Act as to whether the relationship did finally end before 1 March 2009.

8. Ms Horrigan filed an affidavit sworn on 13 August 2015.  It contains extensive detail about the history of the parties’ relationship.

9. Mr Jennings filed an affidavit on 25 January 2013, in particular paragraph 6, also setting out details of the parties’ relationship.

10. Another child, not of the relationship, was born in 2004. 

11. There are many other matters to consider in relation to when this relationship finally broke down. 

12. There is at least an arguable case for concluding that the de facto relationship finally ended prior to 1 March 2009 and did not resume.  Whether that was in 2002 or 2007 is irrelevant to the critical timing issue, although it is raised in the affidavit material.

13. Mr Jennings submitted that Ms Horrigan should be estopped from pursuing her jurisdictional argument, having failed to pursue it in March 2011 before a registrar.

14. There may be real consequences in terms of costs for Ms Horrigan for a range of reasons.  Frustration by Mr Jennings is understandable, given the time that has passed.  Ms Horrigan could have opted in to the legislation.  However, if the court did not have jurisdiction, that lack cannot be cured by apparent consent, by the remedy of estoppel, or at all.

Conclusion

1. I find that the Court was unable to be satisfied of the relevant matter giving rise to jurisdiction.

2. Accordingly, I make orders that the 2011 consent orders be set aside. 

3. The matter will be listed for directions on a date which gives sufficient time for the parties to consider their respective positions.

I certify that the preceding forty four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 8 October 2015.

Associate: 

Date:  29 October 2015