Klintock and Ferder

[2010] FamCA 162

FAMILY COURT OF AUSTRALIA

KLINTOCK & FERDER [2010] FamCA 162

FAMILY LAW – JURISDICTION – Accrued jurisdiction – jurisdiction only conferred upon the Court where there is a capacity to determine a controversy within the jurisdiction of the Court conferred by the Parliament – Accrued jurisdiction cannot arise where there is a preliminary issue of jurisdiction

Family Law Act 1975 (Cth)
Property Law Act 1974 (Qld)

Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Bergman and Bergman (2009) FLC 93-395
Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Whitehouse and Whitehouse (2009) FamCAFC 207

APPLICANT: Ms Klintock

RESPONDENT: Mr Ferder

FILE NUMBER: BRC 3861 of 2009

DATE DELIVERED: 11 February 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 8 FEBRUARY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richardson SC with Ms Carew

SOLICITOR FOR THE APPLICANT: John Nagel & Co

COUNSEL FOR THE RESPONDENT: Mr Kirk SC with Mr Hackett

SOLICITOR FOR THE RESPONDENT: Hirst & Co

Orders

1. That paragraph 3 of the amended application filed on 11 December 2009 is dismissed for want of jurisdiction.

IT IS NOTED that publication of this ruling under the pseudonym Klintock & Ferder is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3861  of 2009

MS KLINTOCK

Applicant

And

MR FERDER

Respondent

RULING

1. Mr Ferder and Ms Klintock had a relationship.  The nature and extent of that relationship is yet to be determined.  The immediate dispute is whether, if this Court determines that the parties separated before 1 March 2009, relying upon the accrued jurisdiction, a declaration could be made under the Property Law Act 1974 (Qld) that they were in a de facto relationship.

2. The purpose of that declaration, if found to be warranted, would enable proceedings under the Queensland Act to be commenced without having to prove the existence of a de facto relationship.  That proceeding would be instituted because this Court did not have jurisdiction under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).

3. Ultimately, the question is whether the Court has jurisdiction to make the declaration.  In my view it does not. 

4. On 11 December 2009, Ms Klintock filed an amended application relevantly seeking:

   In the alternative a declaration under the accrued jurisdiction of the Court as to the existence of a de facto relationship between the Applicant and the Respondent for the purposes of s 319 of the Property Law Act 1974 (Qld). 

5. Section 319 of the Queensland Act relevantly provides:

   If, on an application under this sub-division, the court is satisfied there is, or was, a de facto relationship between the named persons at a particular time or for a particular period, the court may make a declaration to that effect.

6. Senior counsel for Ms Klintock argued that s…