LOCKE & NORTON
[2013] FCCA 1154
•6 August 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LOCKE & NORTON | [2013] FCCA 1154 |
| Catchwords: FAMILY LAW – Injunction – where Applicant asserts that she and the Respondent were in a de facto relationship – where Respondent denies any de facto relationship – jurisdiction – whether Court has jurisdiction. |
| Legislation: Federal Circuit Court of Australia Act 1999 (Cth), s.39 Federal Circuit Rules 2001 rr.8.02, 24.02, 24.04 |
| Blue Seas Investments Pty Ltd v Mitchell & Ors [1999] FamCA 745; (1999) 25 Fam LR 65; FLC 92-856 Jonah & White [2011] FamCA 221 Kazama & Britton [2013] FamCA 4 Martin & Martin [2013] FamCA 222 R v Ross-Jones; Ex Parte Green (1984) 156 CLR 185; 9 Fam LR 888 Shercliff v Engadine Acceptance Corporation Pty Ltd [1978] 1 NSWLR 729 Ting & Fingal [2013] FamCA 29 Vaughan v Hoskovich [2010] NSWSC 706 Wall & Mitchell [2010] FamCA 1194 |
| Applicant: | MS LOCKE |
| Respondent: | MR NORTON |
| File Number: | SYC 2828 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 5 August 2013 |
| Date of Last Submission: | 5 August 2013 |
| Delivered at: | Sydney |
| Delivered on: | 6 August 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr White SC |
| Solicitors for the Applicant: | Michael Conley Lawyers |
| Counsel for the Respondent: | Ms Bridger |
| Solicitors for the Respondent: | Barraket Stanton Lawyers |
ORDERS
UNTIL FURTHER ORDER
The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from interfering with the Applicant’s continued exclusive occupancy of the property situated at Property D, in the State of New South Wales being the land in folio identifier (omitted) (the property).
The Respondent, his servants, agents or otherwise howsoever pending the final determination of these proceedings or further Order is restrained from doing any act or thing or causing any act or thing to be done which has the purpose or effect of transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in the property including whether at law or in equity.
The Respondent pending final determination of these proceedings or further order is to pay the following outgoings in relation to the property as and when they fall due:
3.1mortgage payments;
3.2council rates;
3.3insurances;
3.4body corporate levies;
3.5water rates; and
3.6electricity and gas charges.
The Respondent must file and serve a Financial Statement as required by Rule 24.02 within fourteen (14) days of the date of these Orders.
The Respondent must provide to the Applicant’s solicitors a copy of all documents referred to in Rule 24.04 within fourteen (14) days of the date of these Orders.
In accordance with Rule 8.02 and section 39 of the Federal Circuit Court of Australia Act 1999 these proceedings are transferred to the Family Court of Australia at Sydney.
Written submissions in support of any application for costs and any affidavit setting out the way in which the costs sought are quantified are to be filed and served within fourteen (14) days of the date of these orders and written submissions in opposition to any such application and any affidavit in support are to be filed and served within a further period of fourteen (14) days.
IT IS NOTED that publication of this judgment under the pseudonym Locke & Norton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2828 of 2013
| MS LOCKE |
Applicant
And
| MR NORTON |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application for injunctive orders against the Respondent whereby the Applicant seeks injunctive relief to restrain the Respondent from evicting her from her current residence, a home unit in Property D and other ancillary relief until the final resolution of the proceedings. It is the Applicant’s claim that she and the Respondent were in a de facto relationship as defined by s.4AA of the Family Law Act 1975 (Cth). In her substantive application the Applicant seeks orders for property adjustment under s.90SM of the Act.
The Respondent opposes the Application, claiming that he and the Applicant were never in a de facto relationship, as she claims. The Respondent submits that there is no jurisdiction for the Court to make the orders sought.
Orders Sought
The orders sought by the Applicant are set out in a Minute of Order prepared on her behalf by Mr White of Senior Counsel and handed up on the morning of the hearing.
The Applicant seeks orders that:
a)the Respondent is restrained pending the final hearing of the proceedings from interfering with the Applicant’s exclusive occupancy of the Property D unit;
b)the Respondent is restrained from transferring, assigning, mortgaging, encumbering, charging or otherwise dealing with his interest in the property;
c)the Respondent is to pay the outgoings on the property pending final determination of the proceedings;
d)the Respondent is to be directed to file a Financial Statement in accordance with Rule 24.02 within 7 days;
e)the Respondent is to be directed to provide to the Applicant’s solicitors copies of the documents referred to in Rule 24.04 within 7 days;
f)the proceedings are to be transferred to the Family Court in accordance with Rule 8.02;
g)costs; and
h)certification as to Senior Counsel.
The Respondent, by his Response to an Application in a Case filed on 8 July 2013, seeks a dismissal of the Application.
Submissions
It is the Applicant’s contention that she and the Respondent were in a de facto relationship as defined by s.4AA, which the Respondent denies, leading to an issue as to whether the Court has the jurisdiction to decide the matter.
The factual basis for the Applicant’s claim is that she is impecunious and has no means to obtain alternate accommodation, whereas the Respondent is a man of considerable means and owns a number of properties, including the one in which he resides. The reason for the Applicant to seek the injunction is that the Respondent has refused to give an undertaking that he will not take steps to evict the Applicant or otherwise interfere with her occupancy of the unit until the issue of jurisdiction can be resolved by the Court.
Mr White of Senior Counsel submits that the Court has jurisdiction under s.39B(1) of the Family Law Act with respect to matters arising under the Act in respect of which de facto financial causes are instituted under the Act.
It is submitted that s.114(2A) of the Act gives the power to grant the injunctions sought, notwithstanding that a de facto relationship as defined by s.4AA of the Act has not been established. Whilst s.114(2A) uses the phrase “in a de facto relationship cause”, this does not deprive the Court of the power to grant the interlocutory relief sought pending the determination of the jurisdiction issue.
It is further submitted that the injunctions sought by the Applicant do not purport to affect interests in property such as requiring the payment of maintenance or distribution of property but are directed to protecting the Applicant’s future claim under s.90SM of the Act. The authorities make it clear that the Court has the power to grant an injunction to preserve the subject matter of the litigation pending determination of jurisdiction. The injunctions are designed to go no further than necessary to maintain the status quo pending determination of the jurisdiction issue and thereafter any property adjustment orders the Court may make. This interlocutory relief is within power (R v Ross-Jones; Ex Parte Green[1]; Wall & Mitchell[2]; Ting & Fingal[3]).
[1] (1984) 156 CLR 185; 9 Fam LR 888
[2] [2010] FamCA 1194
[3] [2013] FamCA 29
In the circumstances, it is submitted, no undertaking as to damages should be required (Blue Seas Investments Pty Ltd v Mitchell & Ors[4]; Martin & Martin[5]).
[4] [1999] FamCA 745; (1999) 25 Fam LR 65; FLC 92-856
[5] [2013] FamCA 222
In proceedings for interlocutory relief the Court must be satisfied that there is a serious issue to be tried and the balance of convenience supports the making of the order (see Blue Seas Investments v Mitchell at [56]). In considering whether there is a serious issue the Court takes into account all the evidence (Shercliff v Engadine Acceptance Corporation Pty Ltd[6] at 734).
[6] [1978] 1 NSWLR 729
Mr White submitted that an examination of the evidence shows a serious issue to be tried in relation to whether the parties were in a de facto relationship as defined by s.4AA for the period required by 90SB of the Act. The fact that the parties maintained separate residences does not preclude a finding that they were living together as a couple on a genuine domestic basis (Vaughan v Hoskovich[7] per White J at [51]-[53], where the Court was concerned with s.4 of the Property (Relationships) Act 1984 (NSW) which is in similar terms to s.4AA of the Family Law Act); Kazama & Britton[8] per Watts J at [69]; Jonah & White[9] per Murphy J at [65]).
[7] [2010] NSWSC 706
[8] [2013] FamCA 4
[9] [2011] FamCA 221
It is submitted on behalf of the Applicant that she has a real possibility of ultimate success on the jurisdiction point.
It is further submitted that the balance of convenience favours the granting the injunction, because:
(i) the Respondent points to no prejudice or harm in the event the injunctions are granted;
(ii) the Applicant has been living at the property since 2011 and the Respondent made no attempt to evict her until after commencement of the proceedings in May 2013 despite the relationship having ended in late 2012;
(iii) the Applicant has no other residence available to her and is of limited means following the Respondent terminating the monthly payments to the Applicant after proceedings were commenced;
(iv) the Respondent has attempted to alter the locks, has not paid the electricity account in relation to the property and has threatened on a number of occasions to sell the property and/or evict the Applicant;
(v) the Respondent is a wealthy individual who owns a number of properties and does not require the property for use as his residence;
(v) the injunctions do no more than maintain what has been the situation for a number of years, that is, allow the Applicant to reside at the property and the Respondent maintain at his cost the necessary outgoings.[10]
[10] Submissions for the Applicant at paragraph [23]
Senior Counsel for the Applicant submitted that his client accepted that as a condition of interlocutory relief she would be required to prosecute her claim diligently and would consent to an order expediting the hearing as to jurisdiction.
It was submitted that the Respondent should comply with the requirements of Rule 24 by filing a Financial Statement and serve certain documents. In Ting & Fingal[11] it was held that although jurisdiction had not been established that did not mean that the Applicant was not entitled to discovery and information of the type set out in the Family Law Rules (per Cronin J at [42]).
[11] supra
The Applicant also seeks a transfer to the Family Court under the provisions of Rule 8.02. It is submitted that the jurisdictional issue and the potential size of the asset pool warrant transferring this matter to the Family Court.
The Applicant also seeks an Order for costs.
Counsel for the Respondent submits that the Application should be dismissed. The Respondent has filed a Response and an affidavit in which he denies a de facto relationship between the Applicant and himself. The Respondent claims that the relationship was a bit more than that of boyfriend and girlfriend, that she was a “kept woman” (see Jonah & White[12] at [4]).
[12] supra
The submission is that whether the parties were in a de facto relationship is seriously in issue. There have to be compelling circumstances to justify an argument for an order to preserve the status quo (see Ting & Fingal[13] ).
[13] supra
Ms Bridger submitted s.4 of the Act defines a “de facto financial cause” and it is the nature of the relationship that grounds the jurisdiction of the Court (see s.114(2A)).
The submission is that there must be or must have been a de facto relationship; if there is or was no such relationship the Court does not have the power to make the order. In R. v Ross-Jones there was a matrimonial cause, because the parties were married, which is not the case here. Because of the widely divergent positions of the parties there is not even the slightest appearance of a prima facie case.
Counsel for the Respondent referred to the decision of Mahoney J in Shercliff v Engadine Acceptance[14] where his Honour held at 736:
The Court looks at the evidence of the plaintiff and, in the manner and subject to the qualifications to which I have referred, the evidence of the defendant. It is not required to determine whether, at the trial, that evidence will necessarily result in relief for the plaintiff…
As to the meaning of “probability” in this case, two things are to be said. First, as was pointed out in the Beecham case[15], the Court does not forecast what will happen in fact. It looks at the nature of the plaintiff’s case, viewed in the light of all the evidence. The Term “probability” is used in the sense of “likelihood”; it refers not to a prediction, but to the nature of the plaintiff’s case.
Second, the term “probability”, whilst it may be used in the sense of “more likely than not”, also, in its ordinary meaning, may denote something less than that. Thus, in Koufos v C. Czarnikow Ltd[16], Lord Reid referred to an event as having a probability which might be “considerably less than an even chance” of occurring. The fact that the term “probability” is used in the Beecham test[17], and in the earlier cases, does not, in my opinion, lead necessarily to the conclusion that, for an interlocutory injunction, the plaintiff must show a better than even chance of success. As the Court there said[18]: “How strong the probability needs to be depends, no doubt, upon the nature of the rights he (the plaintiff) asserts and the practical consequences likely to flow from the order he seeks”.[19]
[14] supra
[15] Citation omitted,
[16] Citation omitted
[17] Citation omitted
[18] Citation omitted
[19] [1978] 1 NSWLR 736-7
It is submitted that there is no evidence of contributions by the Applicant. The probability of success for the Applicant is so low as to be non-existent. The Court can only exercise its power if there existed a de facto relationship.
As to the balance of convenience, Counsel for the Respondent submitted that there is no real possibility of ultimate success. The Applicant has made no contributions, paid no mortgage payments or any rates.
It was further submitted that there would be a prejudice to the Respondent because he is ;laying out money without any return. The Respondent has attempted to change the locks but has not threatened to sell the property. It is not open to the Respondent to provide alternative accommodation for the Applicant.
As to the application to transfer the proceedings to the Family Court, it is submitted that there is no evidence as to why the proceedings should be transferred. The Respondent is content for the proceedings to stay in the Federal Circuit Court. Until there is a declaration that there was a declaration that there was a de facto relationship, the Court has no jurisdiction to make the injunctive orders sought by the Applicant.
Conclusions
In my view, it is open to the Applicant to rely upon the provisions of s.114(2A), which provides that:
In a de facto financial cause (other than proceedings referred to in, or relating to, paragraph (e) or (f) of the definition of de facto financial cause in subsection 4(1)) the court may:
(a) make such order or grant such injunction as it considers proper with respect to the use or occupancy of a specified residence of the parties to the de facto relationship or either of them; and
(b) if it makes an order or grants an injunction under paragraph (a) – make such order or grant such injunction as it considers proper with respect to restraining a party to the de facto relationship from entering or remaining in:
(i) that residence; or
(ii) a specified area in which that residence is situated; and
(c) make such order or grant such injunction as it considers proper with respect to the property of the parties to the de facto relationship or either of them…
I have found the submissions by Senior Counsel for the Applicant highly persuasive. True it is that the very existence of the claimed de facto relationship is in issue, but it would lead in my view to an unjust situation for an applicant in the nature of the Applicant in this case if there was no jurisdiction to seek an injunctive order to preserve the status quo until the de facto relationship can be established.
I am also of the view that the nature of the jurisdictional question and the amount of the assets make this case one which is more suited to being heard in the Family Court. I propose to grant the injunctive orders sought and transfer the proceedings to the Family Court for further hearing.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 21 August 2013
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