Langlois v Elder
[2007] WASC 217
•14 SEPTEMBER 2007
LANGLOIS -v- ELDER & ANOR [2007] WASC 217
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 217 | |
| Case No: | CIV:2079/2005 | 16 AUGUST 2007 | |
| Coram: | ACTING MASTER CHAPMAN | 14/09/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | PIERRE LANGLOIS TONI ELDER FIRST CHOICE CONVEYANCING (ABN 39 270 181 988) |
Catchwords: | Jurisdiction Jurisdiction of this court to grant relief in respect of property of a de facto partner |
Legislation: | Family Court Act 1997 (WA), s 205V, s 205W, s 205X, s 205Z, s 205ZB |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
TONI ELDER
First Defendant
FIRST CHOICE CONVEYANCING (ABN 39 270 181 988)
Second Defendant
Catchwords:
Jurisdiction - Jurisdiction of this court to grant relief in respect of property of a de facto partner
Legislation:
Family Court Act 1997 (WA), s 205V, s 205W, s 205X, s 205Z, s 205ZB
Result:
Application granted
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Dr A F Dickey QC
First Defendant : Mr W G Sloan
Second Defendant : No appearance
Solicitors:
Plaintiff : Slater & Gordon
First Defendant : O'Sullivan Davies
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 ACTING MASTER CHAPMAN: On 6 December 2005, the first defendant filed a chamber summons seeking an order that the originating summons filed 8 September 2005 issued in this matter be dismissed on the basis that s 205V of the Family Court Act 1997 (WA) would preclude the plaintiff from applying to this court for the relief sought.
Facts
2 For the purposes of the hearing, the parties agreed that:
(1) there was a de facto relationship;
(2) the relationship ended in March 2003;
(3) this action was instituted more than two years after the relationship ended;
(4) neither party had applied to the Family Court for any property relief.
The law
3 The following sections of the Family Court Act 1997 (WA) are relevant.
205V Right to certain civil proceedings limited
A de facto partner who is, or was, eligible to apply for an order with respect to property under Division 2 may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.
205ZB Applications, and notifications to spouses
(1) A de facto partner whose de facto relationship has ended may apply for an order under this Division in relation to the relationship only if the application is made within 2 years ('the application period') after the relationship ended.
(2) However, the court may grant a de facto partner leave to apply after the application period if satisfied that hardship would be caused to a de facto partner if leave were not granted.
(3) If a de facto partner who is a party to an application under this Division has a spouse, that person is to give that spouse notification of the application in accordance with the rules.
(Page 4)
4 Counsel advised me that they have not been able to locate any decision which relates to the provisions of s 205V.
The issue to be determined
5 As will be noted, a considerable period of time has elapsed between the date the chamber summons was filed and the date of the hearing. In that time, both parties filed two sets of outline of submissions. In each case, the first set of submissions covered a number of issues which were not contained in the second. In essence, the parties do not rely on the submissions in the first set and rely on the second set of submissions, both agreeing that the crucial question to be determined is the meaning of the expression 'is, or was, eligible to apply' as contained in s 205V.
Parties' position
6 Counsel for the plaintiff contended that the word 'was' could apply to the time the application was either made or contemplated to be made to this court, or that it is meant to apply at any time at all. If it were the former, it is said that the parties would have two years as of right to apply for relief in the Family Court after which they would have to fall back on the more limited forms of relief available in this court.
7 It was argued that if the latter meaning was to apply here, the parties may be in limbo. This is on the basis that pursuant to s 205ZB leave of the Family Court will now be required as more than two years have elapsed since the relationship came to an end and that leave may not be granted.
8 Counsel submitted that this court is a court of general jurisdiction which, by tradition, can be limited only in the clearest legislative terms. It is said there are no clear legislative terms here ousting the jurisdiction after the two-year period, with the result that the jurisdiction remains in tact after that two-year period.
9 Counsel for the first defendant submits that this application is primarily concerned with the interpretation of the Family Court Act and, in particular, s 205ZB and s 205V. The first it is said creates effectively a two-year time limitation period for the commencement of proceedings in the Family Court with the ability to apply for leave beyond that two-year period. The second section provides that a de facto partner who is or was eligible to apply to the Family Court may not apply to this court.
10 It is argued that the words 'or was' in s 205V should be given their ordinary plain meaning, namely, that at some previous stage the plaintiff
(Page 5)
- was eligible to apply to the Family Court. Counsel for the first defendant submitted that Parliament intended that de facto property disputes be resolved in the Family Court. In that regard, he referred me to three references. The first was the Family Court Amendment Bill 2001, Clause Notes, where at page 12 the following is recorded:
205X - Right to certain civil proceedings limited
This clause limits the jurisdiction of the Supreme Court in its equitable jurisdiction in respect to property, thereby giving exclusive jurisdiction to the Family Court at first instance.
It should be noted that cl 205X became s 205V in the Act.
11 Secondly, the Family Court Amendment Bill 2001, Second Reading Speech, 29 August 2001, where at page 3292 the following is recorded:
This Bill makes extensive and comprehensive provision for the resolution of de facto property and maintenance disputes.
- And further at page 3293:
Partners in a de facto relationship will have a one-year time limit from the end of the de facto relationship in which to file an application for relief, although the court may extend the time.
The Bill provides a mechanism for the resolution of property disputes between de facto couples.
Applications for property settlement: In addition, the bill amends section 205ZB(1) of the Western Australian Family Court Act 1997, which provides that on the breakdown of a de facto relationship, an application for property settlement and maintenance must be made within one year after that relationship ends. The equivalent provision is section 44(3) of the commonwealth Family Law Act 1975 provides that a former partner to a marriage is to take action for property settlement and spousal maintenance within one year after divorce. As divorce proceedings cannot be instituted until there has been a one-year separation, there is effectively a two-year period for married persons to make application. De facto partners ought to be treated equally before the law. Accordingly, the bill will amend section 205ZB(1) of the Western Australian Family Court Act 1997 to provide that an application for property settlement and maintenance ought to be made following the breakdown of a de facto relationship within two years of the breakdown. The amendment will also limit the number of applications made for leave to proceed out of time.
(Page 6)
13 Both parties submitted the Act provides for two discrete issues: (1) whether an application can be made (see s 205V); and (2) whether the court can make an order and, if so, on what terms (see s 205Z). It was submitted that the issue to be determined in this matter was confined to the first.
14 In my view, when considering whether or not s 205V would preclude an application being brought in this court, the question of eligibility to apply needs to be considered. I take it from the submission of both counsel that it is accepted that there is no financial agreement which, by virtue of s 205W, would preclude an application being made and that the provisions of s 205X are met, thus making the parties eligible at one time to apply.
Conclusion
15 In my view, the wording of s 205V is such that the plain and ordinary meaning should be given to the words 'or was' contained therein. I consider the section should be read to mean a de facto party who is at the time the application is made, or who was at a time prior to the application being made, eligible to apply etc. This, in my view, is consistent with the Clause Notes and the Second Reading Speeches referred to above.
16 It is common ground that at the time the action in this court was commenced, leave would have been required to commence proceedings in the Family Court by virtue of the provisions of s 205ZB. Nonetheless, prior to the expiry of the time limit, the parties were eligible to apply without leave. The fact that the parties cannot now proceed in the Family Court without leave is not, in my view, determinative of this matter. In considering an application for leave the Family Court will no doubt take all of the relevant issues into account including the consequences of leave not being granted.
17 I am of the view that this court does not have jurisdiction to hear and determine this matter.
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