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

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

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

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.
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”).
Ultimately, the question is whether the Court has jurisdiction to make the declaration. In my view it does not.
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).
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.
Senior counsel for Ms Klintock argued that s 31(1)(aa) of the Family Law Act confers jurisdiction on this Court with respect to matters arising under the Act in respect of which de facto financial causes are instituted.
Section 4 of the Act provides definitions of a de facto financial cause and de facto property settlement proceedings. The section also provides that a de facto relationship has the meaning given by s 4AA.
A de facto financial cause means amongst other things, proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them. It also includes:
(g)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs (of the definition).
Senior counsel for Ms Klintock therefore argued that Parliament had conferred jurisdiction on the Court and that it was of a federal nature.
Senior counsel for Ms Klintock referred to a decision of the Full Court of this Court in Whitehouse and Whitehouse (2009) FamCAFC 207 (May, O’Ryan and Stevenson JJ) wherein reference was made to a decision of the Full Court of the Federal Court of Australia in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507. The Full Court of this Court noted various passages of the joint judgment of Black CJ and Hill J considering the nature of accrued jurisdiction and said as follows:
41.In support of this proposition, counsel referred to the decision of the Full Court of the Federal Court in Petrotimor Companhia de Petroleos SARL v Commonwealth of Australia (2003) 128 FCR 507. In their joint judgment, Black CJ and Hill J considered the nature of accrued jurisdiction:
…
18.What is, we think clear, however, is that where the federal part of the controversy is such that the Court lacks jurisdiction to hear it, then there can be no accrued jurisdiction. Accrued jurisdiction can only arise where the single controversy which is the ‘matter’ is one which is within the jurisdiction conferred upon the Court. If no federal jurisdiction is properly invoked then there can be no accrued jurisdiction: Carlton & United Breweries Ltd v Castlemaine Tooheys Ltd (1986) 161 CLR 543 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at 598 per French J.
19.Allsop J in his paper appears to us to propound the view that all that is required to invoke federal jurisdiction for this purpose is that federal jurisdiction be asserted (but subject perhaps to the qualification that the assertion is bona fide and is not frivolous or colourable). His Honour cites the decision of a Full Court of this Court in Westpac Banking Corporation v Paterson (1999) 95 FCR 59 at 62 in support of this view. That was a case where a cross-claim, not being colourable, attracted federal jurisdiction where it asserted a claim founded on Commonwealth legislation. But Westpac Banking Corporation seems rather to be a case where the cross-claim was such that the Court had authority to proceed to hear and determine the issue involved, and thus the non-federal part of the controversy, and not a case where the Court was first required to decide whether it had jurisdiction to hear and determine any federal claim at all.
The Full Court also referred to the various decisions of the High Court of Australia in which it was said that there could be no accrued jurisdiction unless there were federal issues which the Court had jurisdiction to entertain. Senior counsel for Ms Klintock argued that there was a common substratum of facts here or in other words, the same core factual issues that would have to be determined if proceedings were issued in the Supreme Court of Queensland.
Senior counsel then referred to the decision of the Full Court of the Federal Court in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212. That was a decision in which it was established that the fact that a federal claim was brought within the jurisdiction which was not tenable would not prevent the court from proceeding with a non-federal element which was within the accrued jurisdiction of the court. Burgundy Royale however involved a claim brought under the Trade Practices Act 1974 (Cth) and also involved “non-federal” claims. It was put by senior counsel for Ms Klintock that the Burgundy Royale decision is authority for the proposition that even if Ms Klintock was unsuccessful in her claim under the Family Law Act, there was still then power to deal with the “non-federal” claim which in this case he said, would be the declaration under the Property Law Act 1974 (Qld).
Senior counsel for Mr Ferder argued that the provisions of s 90RD of the Family Law Act only provide power for the Court to determine jurisdiction in relation to property division. His position was that if I found there was no de facto relationship or that the parties separated before 1 March 2009, I was finding that there was no jurisdiction to determine the matter.
This is not the appropriate time for an elaborate consideration of the extent to which this Court has an accrued jurisdiction. It is no longer a contentious matter. The jurisdiction has been recognised a number of times (see Australian Securities and Investment Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559, Bergman and Bergman (2009) FLC 93-395, and Whitehouse and Whitehouse (op cit).
None of the authorities to which I was referred is particularly helpful because each is distinguishable from this case. This Court clearly has no power to determine a substantial property controversy between these parties unless it is first established that there is jurisdiction to do so.
In Whitehouse, the Full Court accepted the submission that once it became clear that federal jurisdiction was not or was no longer properly invoked, there could be no accrued jurisdiction remaining in the Court to consider and determine the claim for a declaration. The Full Court accepted the submission that once attracted or attached, the accrued jurisdiction was not lost by the rejection of the “primary federal claim” which provided the source of the federal jurisdiction but that did not extend to cases where before the “hearing and determination of the case”, there was no longer any primary federal jurisdiction vested in the Court to determine the federal claim if as in that case, it had abated by operation of law prior to the hearing and determination.
In this case, all that s 90RD permits is for the Court to determine whether or not it has jurisdiction to determine the substantive proceeding. I am not in a position to determine the substantive controversy at this point in the proceedings. There is therefore a distinction between determining the controversy and determining whether there is jurisdiction.
To be able to attach a non-federal claim, there must be a jurisdiction conferred on the Court to determine a controversy. Without that capacity, no accrued jurisdiction can arise. The fundamental basis behind that premise is that accrued jurisdiction can only arise where the single controversy which is the “matter”, is one which is within the jurisdiction conferred upon the Court. (See Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 per French J (at 598)). Here, it is not the controversy but the jurisdiction that I am determining.
Accordingly, I do not have jurisdiction because there is no “matter” as that word is understood in Chapter 111 of the Constitution.
Accordingly, Ms Klintock’s application must be dismissed because of the absence of jurisdiction.

I certify that the preceding Twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 11 February 2010