Lilley and Hayfield

[2017] FamCA 536

FAMILY COURT OF AUSTRALIA

LILLEY & HAYFIELD [2017] FamCA 536

FAMILY LAW – PRACTICE & PROCEDURE – Jurisdiction – whether an issue falls within the accrued jurisdiction at the Court – where the application does not fall within the jurisdiction at the Court

APPLICANT: Mr Lilley

RESPONDENT: Ms Hayfield

FILE NUMBER: SYC 4536 of 2017

DATE DELIVERED: 26 July 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 26 July 2017

REPRESENTATION

THE APPLICANT:	In Person
THE RESPONDENT:	Without Notice

Orders

IT IS ORDERED

1. That the Court accepts as filed the Initiating Application dated 27 June 2017 in respect of final orders sought 1a and 1b but not in respect of final orders sought 2.

IT IS DIRECTED

1. That the Listing Clerk allocate a date for the return of the Initiating Application dated 27 June 2017.

2. That the applicant comply with the requirements of Section 78B of the Judiciary Act 1903 insofar as this matter involves a matter arising under the constitution or involving its interpretation.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lilley & Hayfield has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4536 of 2017

Mr Lilley

Applicant

And

Ms Hayfield

Respondent

REASONS FOR JUDGMENT

1. It is a fundamental premise that people are able to have access to courts acting within jurisdiction in order to determine matters within the jurisdiction of the Court. The applicant has been denied filing in respect of order 2 sought as order 2 sought does not relate to a matter it relates to no particular controversy but seeks a general declaration by the Court as to the effect of section 68Q of the Family Law Act 1975 Cth (“the Act”). As the matter does not relate to a matter it does not fall within the jurisdiction of this Court to deal with.

2. Although at face value the final order sought at 1a, being a declaration of invalidity pursuant to section 68Q of the Act appears to have some difficulties attached to it given that the orders made pursuant to the Act predate the orders made in the intervention order, the matter in general falls within the jurisdiction of the Court and the application should be permitted to be filed.

3. In relation to 1b, on initial appearance the issues raised in 1b do not appear to fall directly under the jurisdiction of this Court as set out in the Act. The applicant has argued that the issues in 1b may fall in the accrued jurisdiction of the Court. He has explained his case to be that 1b will require resolution to determine the validity of the intervention order to enable a declaration to be made pursuant to section 68Q of the Act, and hence there is an argument to be put that the matter falls within the accrued jurisdiction of the Court.

4. This judgment does not determine whether or not the issues raised in 1b fall within the accrued jurisdiction of the Court, merely that the matter is sufficiently raised as to permit the filing of the application in respect of 1b as potentially falling within the jurisdiction of the Court.

5. I note that order 1b relates to a matter arising under Chapter 3 of the Constitution and it appears to attract the operation of section 78B of the Judiciary Act 1903. Directions will be made in relation to the return date for this Initiating Application along with the issue of 78B notice.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 26 July 2017.

Associate: 

Date:  26/7/2017