JARBIN and YABES

[2017] FCWA 36

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: JARBIN and YABES [2017] FCWA 36

CORAM: O'BRIEN J

HEARD: 15 FEBRUARY 2017

DELIVERED : Ex tempore

FILE NO/S: PTW 2015 of 2016

BETWEEN: MS JARBIN

Applicant

AND

MR YABES
Respondent

Catchwords:

JURISDICTION - DE FACTO FINANCIAL CASE - transfer of proceedings - where applicant concedes court has no jurisdiction to determine her application as alleged de facto relationship was in NSW - where applicant seeks transfer of proceedings to Family Court of Australia and seeks the proceeds be heard by that court sitting in Perth - where application fundamentally misconceived - application dismissed.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr J Kitto

Respondent: Mr J Hedges

Solicitors:

Applicant: Kitto & Kitto

Respondent: Kavanagh Lawyers

Case(s) referred to in judgment(s):

Norton & Locke (2013) FLC 93-567

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The court is asked to determine the oral application of [Ms Jarbin] (“the applicant”) for orders transferring to the Family Court of Australia the proceedings commenced by her Form 1 application filed on 19 April 2016 and for consequential orders for the trial of those proceedings to be conducted by me in my capacity as a Judge of that court.

2The application is opposed by [Mr Yabes] (“the respondent”).

Background

3In her substantive application filed on 19 April 2016 the applicant sought orders in the following terms:

(a)that the assets and financial resources of the parties be divided in such terms as to effect a division of 70 per cent to 30 per cent in favour of the applicant;

(b)the respondent pay the applicant’s costs of the application; and

(c)any other order as the honourable court deems fit.

4The applicant also sought an interim order for what was described as spousal maintenance in the sum of $500.00 per week, and interlocutory orders in relation to disclosure.

5In her affidavit sworn on 1 April 2016 and filed with the application the applicant accepted that notwithstanding a ceremony they had undergone in Las Vegas the parties were never married. She described the respondent as her former de facto partner.

6In the same affidavit the applicant gave a brief history of the relationship making it clear that on her case the parties:

(a)commenced a sexual relationship in 2005, seeing each other “at least once a month”, presumably in Perth;

(b)continued the relationship after she moved to Melbourne in 2006 and the respondent moved to Sydney at about the same time;

(c)remained in a relationship when she returned to Perth “briefly in 2008” before deciding in late 2008 to live together in Sydney; and

(d)commenced cohabitation in Sydney in January 2009 and continued to live together in Sydney until June 2012 when she returned to Perth and the respondent remained in Sydney.

7For reasons which are not entirely clear, the respondent did not file his Form 1A response until 27 June 2016.

8He sought dismissal of the application and costs. At a procedural hearing before a Magistrate on 23 June 2016, he had raised the contention that the court did not have jurisdiction to entertain the application. In his affidavit sworn on 17 June 2016 he denied that the relationship between the parties could ever have been described as a de facto relationship.

9Consistent with the evidence of the applicant he said that he had lived in Sydney from 2006 until 2014 when he, and his now wife, moved to Perth.

Progress of the proceedings

10At a brief procedural hearing on 23 June 2016 orders were made granting the applicant leave to file and serve, by no later than 21 July 2016, any affidavit evidence upon which she wished to rely in relation to the issues of jurisdiction and/or the extension of time to bring her primary application.

11A further order was made granting the respondent leave to file and serve, by not later than 8 August 2016, any affidavit evidence upon which he wished to rely in relation to the same issues. An order was made requiring the applicant to file and serve any further affidavit evidence in relation to any matters raised by the respondent by 17 August 2016. The proceedings were otherwise adjourned to a readiness hearing on 22 August 2016.

12Neither party complied with those orders. On 25 July 2016 orders were made by consent by a Registrar in chambers extending the timeframes for compliance. At the parties’ request the readiness hearing, listed for 22 August 2016, was vacated and a further readiness hearing before a Registrar was listed for 26 October 2016.

13The applicant filed her affidavit for trial on 22 September 2016 pursuant to the earlier orders made by consent.

14That document was to have been filed by 1 September 2016. The parties had intended that the respondent have 21 days within which to respond. Accordingly at a hearing on 7 October 2016, which was listed for return of subpoena only, the presiding Magistrate made an order by consent excusing the applicant’s non-compliance by extending the time for filing of her affidavit and extending the time for filing of the respondent’s trial affidavit to 24 October 2016.

15Her Honour dealt with various issues regarding subpoenas that had been issued at the request of the parties and otherwise included the matter in the Judges’ defended list as requested by the parties so that it could proceed to trial.

16At the readiness hearing on 26 October 2016 the Registrar included the matter in the call over and made other standard procedural orders.

17At the status hearing listed on the court’s own motion on 8 February 2017 counsel for the applicant asserted that the issue of whether the parties had the necessary connection with Western Australia to enliven the jurisdiction of this court had only been raised, in his words, “very late in the day”. The Papers for the Judge filed on behalf of the respondent the previous day had indeed squarely raised that issue.

18While the issue had been readily apparent from the documents filed by both parties at the commencement of the proceedings (and indeed on the applicant’s own case as outlined in her initiating documents) the trial affidavits filed by both parties focused instead on evidence directed at the question of whether the parties were in a de facto relationship at all.

19Section 205X of the Family Court Act 1997 (WA) (“the Act”) is in the following terms:

Despite section 36(5), before making an order under this Division a court must be satisfied -

(a)that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and

(b)that -

(i)both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or

(ii)substantial contributions of the kind referred to in section 205ZG(4)(a), (b) or (c) have been made in the State by the applicant.

20At the status hearing counsel for the applicant initially sought to make what he called an “informal concession” that this Court does not have jurisdiction to determine the application. When pressed by me as to just what a so-called ‘informal concession’ might be, counsel formally conceded that the court does not have jurisdiction.

The present application

21Notwithstanding that concession, counsel for the applicant proposed what he contended was a solution to the problem then faced by his client. He made an oral application for transfer of the proceedings to the Family Court of Australia for determination. That oral application also sought consequential orders or directions whereby I would then proceed to hear the trial as already scheduled today, but in my capacity of a Judge of the Family Court of Australia.

22In support of that application counsel referred to s 44 of the Act. He contended that what he termed the “effective difference” which would flow from that approach was that “what changes is the statutory criteria defining the scope of the de facto relationship”.

23By that he meant that the proceedings would be determined by reference to the definition of de facto relationship contained in s 4AA of the Family Law Act 1975 (Cth), rather the definition contained in s 13A of the Interpretation Act 1984 (WA).

24I indicated to counsel for the applicant at that hearing my clear, albeit preliminary, view that the application was misconceived but in fairness to his client offered him the opportunity to file written submissions if he wished to do so.

25He took up that invitation and written submissions were filed in accordance with my orders on 10 February 2017. In those written submissions counsel noted that both parties knew from the outset that they “lived mainly in New South Wales during their relationship”. He contended further that both parties had “submitted to the jurisdiction of the court”.

26With respect, that submission is obviously inaccurate given that the respondent raised at an early stage of the proceedings his contention that this Court did not have jurisdiction to determine the application and given also that the trial listed for four days, to commence today, was to determine just that issue.

27Counsel correctly noted that both parties were represented and in his words, “participated fully in the litigation”.

28At paragraph 5 of his written submissions counsel for the applicant observed that it appears that:

Neither the court nor the parties considered the s 205X requirements until the respondent raised that s 205X issue the week before trial scheduled to commence on 15 February 2016.

29It may well be that neither party considered the requirements of s 205X until that point in time. Certainly it appears self-evident and is in any event conceded that the applicant and those advising her did not. Quite how that advances the argument for a transfer of proceedings is unclear.

30The submissions go on to say, at paragraph 7:

The applicant accepts that this dispute should properly be litigated in the Family Court of Australia. If there is a de facto relationship it is justiciable in that court.

31That submission reflects the appropriate concession made by counsel on behalf of the applicant at the status hearing.

32The applicant then submits that until the oral application to transfer the proceedings is dealt with, the initiating proceedings remain on foot notwithstanding the concession that the court does not have the jurisdiction to determine them.

33The submissions go on to accurately observe that for proceedings to be transferred from the Family Court of Western Australia to the Family Court of Australia, the Family Court of Australia must have jurisdiction to deal with them.

34The balance of the submissions go primarily to the reasons why the applicant would say that it is in the interests of justice for the proceedings to be transferred to the Family Court of Australia with a request that they be heard in Perth. Reference is made to the significant delay and cost to the parties that will be involved if proceedings between them are heard in Sydney.

35For the reasons which follow the oral application and the submissions made in support of it are fundamentally misconceived and overlook a number of critical issues.

Power to transfer the proceedings

36The applicant’s proposition is that while the court does not have jurisdiction to determine the proceedings it has the power to transfer them to another court.

37That proposition rather begs the questions of whether there are actually proceedings on foot available to be transferred and what powers the court has to make orders in circumstances where its jurisdiction to hear and determine the primary proceedings is in doubt or, as in this case, conceded not to exist.

38This Court clearly has jurisdiction to determine if it has jurisdiction. In other words it has the jurisdiction to hear proceedings which seek to establish or deny the relevant jurisdictional facts.

39It follows that the court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction: Norton & Locke (2013) FLC 93-567. That does not mean that the court, having determined that it does not have jurisdiction to hear and determine the primary application, has any power to make any order in respect of that primary application.

40The power of the court in certain circumstances to make, for example, interim orders for the preservation of the subject matter of proceedings pending determination of the question of jurisdiction arises from the court’s power to protect against abuse of its own processes and not from any broader or general power.

41That position is reinforced by the express words of s 44 sub-s (1) of the Act which is as follows:

Without limiting section 43, if in the exercise of its jurisdiction it appears to the Court or to the Magistrates Court that it is in the interests of justice, or of convenience to the parties, that the proceedings before it be dealt with in another court, the Court or the Magistrates Court, as the case may be, may, on its own motion or otherwise, transfer the proceedings to the other court.

42Pursuant to that section the court has power to transfer the proceedings before it if, in the exercise of its jurisdiction, it appears to the court that is in the interests of justice or of convenience to the parties that those proceedings be dealt with in another court. Where it is conceded that the court does not have jurisdiction to hear and determine the primary proceedings it cannot be said that a purported transfer of those proceedings would be undertaken by the court in the exercise of its jurisdiction.

43Further, in my view, the proposed substantive proceedings for alteration of property interests are not, in the relevant sense, before this Court in circumstances where it has been conceded that the court does not have jurisdiction to hear and determine them.

44In my view it is clear that the court does not have the power to transfer the proceedings even were there not further obstacles to the application.

The further obstacle – the legislation

45Even if I am wrong in that conclusion, there is a further fundamental obstacle to the application to transfer the proceedings.

46In his written submissions, counsel for the applicant correctly observed that transfers from the Family Court of Western of Australia to the Family Court of Australia require, in addition to meeting the criteria set out in s 44 of the Act, that the Family Court of Australia has jurisdiction.

47The proceedings commenced by the applicant were brought under Pt 5A of the Act. The applicant correctly notes that Western Australia has not referred its relevant powers to the Commonwealth and that the determination of property disputes arising from a de facto relationship remains, in this State, a matter of non-Federal jurisdiction.

48The Family Court of Western Australia has, pursuant to s 36 of the Act, non-Federal jurisdictions conferred on it by that or any other Act.

49The original jurisdiction of the Family Court of Australia is conferred by s 31 of the Family Law Act 1975 (Cth). Sub-section 31(1)(aa) provides that the Family Court of Australia has jurisdiction with respect to:

Matters arising under this Act in respect of which de facto financial causes are instituted under this Act.

50The Family Court of Australia has jurisdiction to hear and determine proceedings for the alteration of property interests as between parties to a de facto relationship only where those proceedings are instituted under the Family Law Act 1975 (Cth). It does not have jurisdiction to determine proceedings for alteration of property interests instituted under the Act, as these proceedings were. In fairness, counsel for the applicant conceded that point in submissions this morning.

51Accordingly, even if I am wrong in my view that this Court, not having jurisdiction to determine the primary proceedings, cannot transfer them to another court, they cannot, in any event, be transferred to the Family Court of Australia as it does not have jurisdiction to determine them. It is not possible to transmogrify the proceedings so as to somehow treat them as if they were instituted under the Family Law Act 1975 (Cth).

52The simple fact is that on the applicant’s own case, the proceedings were instituted in the wrong State, in the wrong court, under the wrong legislation.

The proposition that the proceedings be heard in Perth

53Even if I am wrong in relation to any of the conclusions already drawn, the proposition that the proceedings, having been transferred to the Family Court of Australia, could then be heard by me as a Judge of that Court sitting at first instance, in Perth is itself misconceived.

54Section 40(1) of the Family Law Act 1975 (Cth) is in the following terms:

(1)The regulations may provide that, from a date specified in the regulations (not being a date before the regulations are registered under the Legislation Act 2003), the jurisdiction of the Family Court under this Act in relation to all proceedings, or a specified class of proceedings, must not be exercised in a specified State or Territory, or in 2 or more specified States and Territories.

55Regulation 39BB(2) provides that for sub-s 40(1), from 21 April 2012, the jurisdiction of the Family Court of Australia must not be exercised in Western Australia in relation to various provisions of the Family Law Act 1975 (Cth). Relevantly, for present purposes, those provisions include:

(a)section 31(1)(aa) - matters arising under this Act in respect of which de facto financial causes are instituted under this Act; and

(b)subsection 31(1)(d) - matters other than matters referred to in any of the preceding paragraphs referred to in the regulation with respect to which proceedings may be instituted in the Family Court of Australia under the Family Law Act or any other Act.

56By virtue of the reference in the regulation to s 31(1)(aa), even had the present proceedings been properly commenced in the Family Court of Australia under the Family Law Act 1975 (Cth), they could not be heard by a Judge of that Court sitting in Western Australia. The reference in the regulation to s 31(1)(d) is self-evidently broader still.

57In short, even if the Family Court of Australia had jurisdiction in this matter, it is not possible for it to exercise that jurisdiction at first instance in Western Australia. Accordingly, and notwithstanding the dual commission which each Judge of the Family Court of Western Australia holds, even were it possible for the present proceedings to be transferred to the Family Court of Australia, they could not be heard here as proposed by the applicant.

Conclusion

58For all those reasons, it is, in my view, clear that the application for transfer of the proceedings and the associated application for the proceedings then to be heard by me in my capacity as a Judge of the Family Court of Australia must fail.

59Before making orders to reflect that conclusion, I consider it appropriate to comment on other aspects of the written submissions made on behalf of the applicant.

60At paragraph 4 of those written submissions, counsel for the applicant says the following (all emphases added):

The file was reviewed by [the presiding Magistrate] on or about 7 October 2016, who read the applicant’s affidavit sworn 1 April 2016 and the respondent’s affidavit, sworn 17 June 2016. Both affidavits refer to the parties’ predominant residency in New South Wales and the move from New South Wales to Western Australia. The learned Magistrate made no comment on jurisdiction.

61At various other parts of the written submissions, counsel for the applicant says:

It appears that neither the court nor the parties considered the s 205X requirements.

62And, further:

All parties and, seemingly the court itself, overlooked the s 205X issue. This is not a case where fault lies with either party, nor has either party taken less than an appropriate and professional approach to the litigation.

63And later in the submissions:

The oversight by the parties and the court of the s 205X issue could be fairly described as formal rather than substantial.

64Leaving aside the propriety of those submissions, they are both inaccurate and misconceived.

65These proceedings are inter partes.

66It was not in any sense incumbent on either a Magistrate in a busy general list or in a hearing listed solely for the return of subpoena or, for that matter, on a Registrar at a procedural readiness hearing, to review the merits of the proposed application and proactively draw to the attention of the parties, or those representing them, the fundamental problems to which they themselves should have been alert from the outset.

67Indeed, had the Magistrate done so of her own volition, or perhaps invited consideration by the respondent of an application for summary dismissal, it is at least possible that those representing the applicant might have complained that she was inappropriately descending into the trenches.

68The court, of course, is entitled to make appropriate observations as to the merits of any case and to ensure that its limited resources are not wasted by the pursuit of irrelevant points or ill-advised applications.

69The entitlement of the court to proactively intervene in that manner, cautious always of the need not to prejudge the merits of proceedings when relevant evidence might not yet be available, or may remain untested, does not however equate to a positive obligation to the parties to do so.

70There is no obligation owed by a Judicial Officer to a party to litigation to consider prior to trial the merits of that party’s case and draw attention to weaknesses or, as in this case, fundamental flaws in that case, whether or not requested to do so.

71That obligation rests squarely with the solicitors advising the parties and nowhere else.

72To the extent the written submissions of the applicant might be read to suggest that the apportionment of blame for the unfortunate position in which the parties now find themselves should somehow include the Judicial Officers who have dealt with this matter prior to it being listed for trial before me, I reject that suggestion as both improper and inaccurate.

73I acknowledge that a suggestion in those terms may not have been intended. To the extent that is so, the submission in question can only have been made to suggest that the failure of solicitors advising the parties to identify the relevant issue is excusable and that, in the words of the submissions:

This is not a case where fault lies with either party, nor has either party [or, I suggest it may be intended to be inferred, their lawyers], taken less than an appropriate and professional approach to litigation.

74Again, I reject that suggestion. The satisfaction of the geographical requirements set out in s 205X of the Act is a fundamental aspect of any application to this Court for alteration of property interests between parties to a de facto relationship. It is a matter to which attention might reasonably be expected to be turned in the very first meeting between client and solicitor, whether the client is the proposed applicant or the proposed respondent.

75To the extent that inadequate attention was paid to the fundamental requirements for the preparation of the applicant’s case, or, for that matter, the respondent’s response to that case, that is a matter to be dealt with between the parties and their respective solicitors, whether in the context of a consideration of the charges raised in relation to the work done or the professional obligations of those solicitors to the clients more generally.

Orders

1.The trial listed to commence on 15 February 2017 be and is hereby vacated.

2.The oral application of [Ms Jarbin] (“the applicant”) for orders transferring to the Family Court of Australia the proceedings commenced by the filing of her Form 1 application filed in the Family Court of Western Australia on 19 April 2016 be and is hereby dismissed.

3.It having being conceded by the applicant that this Court has no jurisdiction to determine the proceedings commenced by that application, the Form 1 application filed on 19 April 2016 otherwise be and is hereby dismissed.

4.All interlocutory applications otherwise be and are hereby dismissed other than in relation to the question of costs.

5.Within 21 days from the date hereof, [Mr Yabes] (“the respondent”) file and serve any written submissions in relation to the issue of costs.

6.Within 21 days after service of the respondent’s submissions upon the applicant, the applicant file and serve any written submissions in response.

7.The parties have liberty to seek a relisting for further argument in relation to the question of costs but in the event of no such request being received within 21 days after the filing of the applicant’s written submissions, the costs application will be determined in Chambers.

I certify that the preceding [75] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate