Huett & Calvano
[2025] FedCFamC1F 12
•20 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Huett & Calvano [2025] FedCFamC1F 12
File number(s): ADC 1738 of 2023 Judgment of: STRUM J Date of judgment: 20 January 2025 Catchwords: FAMILY LAW – Jurisdiction – Provision of financial information – Where the Respondent is seeking a declaration that the parties were not in a de facto relationship – Where Applicant seeks a declaration that the parties were in a de facto relationship and division of property – Where Applicant seeks an order for the filing of Financial Statements – Where the Applicant’s submissions are silent as to why a Financial Statement is reasonably necessary for the determination of the jurisdictional facts – Held that there is no jurisdiction to make an order for provision of a Financial Statement. Legislation: Family Law Act 1975 (Cth) ss 4AA, 44, 90RD and 90SM
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.05, 6.01, 6.05 and 6.06
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 May 2024
Cases cited: Norton & Locke [2013] FamCAFC 202 Division: Division 1 First Instance Number of paragraphs: 20 Date of hearing: 26 August 2024 (Heard on the papers) Place: Melbourne Solicitor for the Applicant: Howe Jenkin Solicitor for the Respondent: Lander & Rogers ORDERS
ADC 1738 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CALVANO
Applicant
AND: MR HUETT
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
20 JANUARY 2025
THE COURT ORDERS THAT:
1.The Applicant’s application, contained in her written submissions filed on 19 August 2024 (pursuant to Order 5 made on 12 August 2024), for the filing of Financial Statements, be dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Strum J:
By further amended Response to Initiating Application filed 17 July 2024, the Applicant for present purposes (the Respondent in the substantive proceedings) seeks, inter alia:
19.That pursuant to Section 90RD of the Family Law Act 1975, a declaration be made that the parties lived in a de facto relationship from May 2018 until on or about 31 March 2022 (or, alternatively, for such other period(s) of time between those dates as determined by the Court).
20.That by way of property settlement the [Respondent] pay to the [Applicant] such sum as is necessary so as to effect a division of the assets of the parties as to 80% to the [Respondent] and 20% to the [Applicant], or such other sum as shall be deemed just and equitable by this Honourable Court (“the settlement sum”).
By orders made on 14 June 2024, a first day of hearing was ordered, upon the Court noting, inter alia, that:
A.The parties agree that at this stage only the threshold jurisdiction question of whether the parties were in a de facto relationship is to be listed for final hearing.
B.Whilst parenting proceedings remain before the court, the parties at this stage are not agitating that the same be listed for trial.
On 12 August 2024, orders were made that provided, inter alia:
5.In the event the Applicant seeks that Financial Statements be filed by each of the parties, she file and serve written submissions in support thereof (limited to five pages) on or before 4 pm on 19 August 2024.
6.In the event the Respondent opposes the filing of Financial Statements, he file and serve written submissions on or before 4.00 pm on 26 August 2024.
7.Any issue in relation to the filing of Financial Statements thereafter be determined on the papers in Chambers.
(Emphasis altered)
The Applicant and the Respondent have, in turn, filed short written submissions pursuant to those orders.
Rule 6.01(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) provides:
Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
Rule 6.06(1) of the Rules provides:
The duty of disclosure applies to a financial proceeding.
Rule 6.06(5)(a) provides:
(5)A party starting, or filing a response or reply to, a financial proceeding (other than by an Application for Consent Orders) must file, at the same time:
(a) a Financial Statement …
A “financial proceeding” is relevantly defined, in paragraph (b)(i) of the definition thereof in r 1.05(1) of the Rules, as meaning a proceeding (other than an appeal) involving an application (inter alia):
(b)relating to the property of the parties to a marriage, or of a de facto relationship after the breakdown of the relationship, or of either of them, including the following:
(i) an application for permission to start a property proceeding;
The determination of an application for “permission” to start a financial proceeding is a matter of discretion, rather than jurisdiction. So much is apparent from the following provisions of s 44 of the Family Law Act 1975 (Cth) (“Act”).
Section 44(5) of the Act provides:
(5)Subject to subsection (6), a party to a de facto relationship may apply for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, only if:
(a)the application is made within the period (the standard application period) of:
(i)2 years after the end of the de facto relationship; or
(ii)12 months after a financial agreement between the parties to the de facto relationship was set aside, or found to be invalid, as the case may be; or
(b) both parties to the de facto relationship consent to the application.
Section 44(6) of the Act 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.
Those provisions pre-suppose that the party making an application is a party to a de facto relationship.
At this stage of the proceedings, the Applicant asserts (and the Respondent denies) that she was a party to a de facto relationship in order to enliven the Court’s jurisdiction to make an order under s 90SM of the Act. By reason of the Respondent’s joinder of issue, the Applicant seeks a declaration pursuant to s 90RD(1) of the Act, which provides:
(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL; and
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
(2)A declaration under subsection (1) of the existence of a de facto relationship may also declare any or all of the following:
(a)the period, or periods, of the de facto relationship for the purposes of paragraph 90SB(a);
(b)whether there is a child of the de facto relationship;
(c)whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c);
(d)when the de facto relationship ended;
(e)where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.
(Emphasis altered)
In Norton & Locke [2013] FamCAFC 202, the Appellant was successful in arguing that a direction by the trial judge requiring him to file a Financial Statement and produce financial disclosure was made without jurisdiction. At [79], the Court confirmed that “until such time as the relevant jurisdictional facts are established, there is no power to order the provision of financial information”.
Accordingly, I consider that until such time as the relevant jurisdictional facts are established in these proceedings, there is no power, prima facie, to order the Respondent to file a Financial Statement.
However, the Full Court in Norton & Locke did acknowledge at [80] that:
… the court has the power to make orders controlling its own process. In our view, the court does have the power to make orders or give directions in respect of the provision of such information as is reasonably necessary for the determination of the jurisdictional facts. It may well be that a court could be persuaded that financial information, broadly so-described, is directly relevant to the establishment of a jurisdictional fact. …
The Applicant’s submissions are silent as to why a Financial Statement is reasonably necessary for the determination of the jurisdictional facts. For example, it is not contended that a Financial Statement is directly relevant to “the circumstances of their relationship” for the purposes of s 4AA(1)(c) of the Act or to any of the circumstances specified in s 4AA(2), in particular, those referred to in paragraphs (d), (e) or (h) thereof.
Rather, the Applicant refers to matters that may well be relevant if the declaration she seeks is made. She refers to the Federal Circuit and Family Court of Australia Central Practice Direction – Family Law Case Management, 1 May 2024 and to Court pathways requiring parties to seek to resolve matters by way of dispute resolution. She acknowledges, and correctly so, that there is no compromise solution between a s 90RD declaration being made in the affirmative or in the negative; it is binary. However, she submits that there is a “possibility of resolution being contemplated as to the quantum of any outcome should the declaration be made” (emphasis added). She submits that she cannot contemplate dispute resolution outcomes without knowledge of the financial circumstances of the Respondent and that the requirement to file a Financial Statement “can only assist the prospect of the parties being able to assess their respective risks and pursue overall settlement discussions (if any)”. Those submissions do not advance the discreet issue for determination.
Further, it will be recalled that r 6.01(1) of the Rules, to which reference is made at [5] above, provides that each party to a proceeding has a duty to give full and frank disclosure of all information relevant to the proceeding. Rules 6.06(1) and 6.06(5)(a) are but sub-sets of r 6.01(1). It has not been suggested, let alone established, by the Applicant how the information contained in a Financial Statement is relevant to her application pursuant to s 90RD(1) of the Act. If she is successful, such that she can pursue her s 90SM application, then r 6.05(5)(a) will being engaged and both the Respondent and she will be required to file Financial Statements. If she is unsuccessful, then she will be unable to pursue her application and the need for Financial Statements will be otiose.
In the circumstances, the Applicant’s application, contained in her written submissions filed on 19 August 2024 (pursuant to Order 5 made on 12 August 2024), for the filing of Financial Statements shall be dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 20 January 2025
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