MADIN & PALIS
[2015] FamCAFC 65
•29 April 2015
FAMILY COURT OF AUSTRALIA
| MADIN & PALIS | [2015] FamCAFC 65 |
| FAMILY LAW – APPEAL – Where the trial Judge dismissed an initiating application in which the appellant sought a declaration of a de facto relationship under section 90RD of the Family Law Act 1975 (Cth) on the basis that it was filed outside the statutory time limit provided in section 44(5) of the Family Law Act 1975 (Cth) – Where the Full Court found that by virtue of the operation of section 36(1) (Item 6) of the Acts Interpretation Act 1901 (Cth) the two year period provided in section 44(5) of the Family Law Act 1975 (Cth) started on the day after the relationship ended – where the Full Court accepted the reasoning of Beaumont J in relation to the meaning of the word “within” in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 – appeal allowed – orders set aside. FAMILY LAW – APPEAL – COSTS – where the trial Judge made costs order against the appellant – where the Full Court found that because the appeal against the dismissal of the initiating application was successful and the costs order related to that application, the appeal against the costs order should also succeed– appeal allowed – order set aside. |
| Acts Interpretation Act 1901 (Cth) Family Law Act 1975 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Hedley & Hedley (2009) FLC 93-413 Morton v Hampson [1962] VR 364 Slater & Slater (1985) FLC 91-641 Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574 |
| APPELLANT: | Mr Madin |
| RESPONDENT: | Ms Palis |
| FILE NUMBER: | BRC | 130 | of | 2013 |
| APPEAL NUMBERS: | NA NA | 52 66 | of of | 2014 2014 |
| DATE DELIVERED: | 29 April 2015 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, May & Strickland JJ |
| HEARING DATE: | 14 April 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 January 2014 23 May 2014 |
| LOWER COURT MNC: | [2014] FCCA 118 [2014] FCCA 1029 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Bertone |
| SOLICITOR FOR THE APPELLANT: | Leishman Legal |
| COUNSEL FOR THE RESPONDENT: | Ms McLennan |
| SOLICITOR FOR THE RESPONDENT: | Allan R De Brenni & Company |
Orders
The appeal against the orders made by Judge Howard on 28 January 2014 be allowed.
Orders 1 and 2 of the orders made on 28 January 2014 be set aside.
The appeal against the costs order made by Judge Howard on 23 May 2014 be allowed.
Order 1 of the orders made on 23 May 2014 be set aside.
Each party be at liberty to file and serve any written submissions in relation to the costs of the appeals within 28 days of the date hereof.
Each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
Each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Madin & Palis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 52 of 2014; NA 66 of 2014
File Number: BRC 130 of 2013
| Mr Madin |
Appellant
And
| Ms Palis |
Respondent
REASONS FOR JUDGMENT
On 9 January 2013 Mr Madin filed an initiating application in the Federal Circuit Court of Australia against Ms Palis in which he sought declarations under s 90RD of the Family Law Act 1975 (Cth) (“the Family Law Act”) that a de facto relationship had existed between them and that it had commenced in March 2002 and ended on 9 January 2011. He also sought orders under s 90SM of that Act for alteration of property interests.
On 28 January 2014 Judge Howard dismissed that initiating application (together with an amended initiating application filed on 18 February 2013) on the basis that it had been filed outside the statutory time limit provided in
s 44(5) of the Family Law Act, and that accordingly, the Court had no jurisdiction to hear the application.Subsequently on 23 May 2014, his Honour ordered Mr Madin to pay Ms Palis’ “costs of, and incidental to, [the] proceedings”.
Mr Madin now appeals both the orders of 28 January 2014 whereby his initiating application was dismissed and the costs order of 23 May 2014. Both appeals are opposed by the respondent, Ms Palis.
The appeal against the dismissal of the initiating application
The first two grounds of appeal against the orders of 28 January 2014 which dismissed the appellant’s initiating application, are directed to asserted errors on the part of the primary judge in failing to consider s 36(1) of the
Acts Interpretation Act 1901(Cth) (“the Acts Interpretation Act”) when calculating the statutory time limit contained in s 44(5) of the Family Law Act, and in finding that that statutory time limit expired on 8 January 2013.
The statutory time limit in relation to the initiation of property and other financial proceedings between parties to a de facto relationship contained in
s 44(5) of the Family Law Act is as follows:
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
(b) a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).
(Original emphasis)
The provisions of s 36(1) of the Acts Interpretation Act are as follows:
36 Calculating time
(1)A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time
ItemColumn 1
If the period of time:Column 2
then the period of time:1 is expressed to occur between 2 days includes both days. 2 is expressed to begin at, on or with a specified day includes that day. 3 is expressed to continue until a specified day includes that day. 4 is expressed to end at, on or with a specified day includes that day. 5 is expressed to begin from a specified day does not include that day. 6 is expressed to begin after a specified day does not include that day. 7 is expressed to end before a specified day does not include that day. Example 1: If a claim may be made between 1 September and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March, the licence is valid up to and including 31 March.
Example 4: If a person’s right to make submissions ends on the last day of a financial year, the person may make submissions on that day.
Example 5: If a variation of an agreement is expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August and a person has
28 days after the day the decision is made to seek a review of the decision, the 28‑day period begins on 3 August.Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7‑day period starting on 1 May and ending on 7 May.
In his reasons for judgment in relation to his orders dismissing the appellant’s initiating application, his Honour reached the conclusion in [15] “that the statutory time limit in this case expired on 8 January 2013.” It has to be said that his Honour’s reasons for reaching this conclusion are not entirely clear; indeed, what regard, if any, he had to the operation of s 36(1) of the
Acts Interpretation Act is far from clear, with his Honour saying only in [13] of his reasons “[t]here is nothing in s 36 of the Acts Interpretation Act 1901 (Cth) that changes my view in relation to this issue”.Regardless, however, of the clarity of his Honour’s reasoning, and in any event no ground of appeal complains of a lack of reasons, our task is to decide whether or not he was correct in determining that the appellant’s initiating application, filed on 9 January 2013, was filed outside the statutory time limit contained in s 44(5) of the Family Law Act.
Section 44(5) requires, as his Honour stated in [7] of his reasons, that an application “for a de facto property settlement must be filed within a period of two years after the end of the de facto relationship.” As the appellant asserted that his de facto relationship with the respondent had ended on 9 January 2011, that date has, for present purposes, to be taken as the date on which the relationship ended.
Whatever may have been the parties’ positions before his Honour, they were in agreement before us that in this case the two year period provided in s 44(5) commenced on 10 January 2011 by virtue of the operation of s 36(1) (Item 6) of the Acts Interpretation Act. That agreed position was undoubtedly correct.
The question on this appeal therefore became whether 9 January 2013, being the date of filing of the initiating application, was “within” the two year period which, it is agreed, commenced on 10 January 2011. The appellant contended that it was, while the respondent sought to uphold the primary judge’s conclusion that that period had expired on 8 January 2013.
It is interesting to observe that although the expression “year” or “years” appears in a number of sections of the Family Law Act (other than s 44(5)) for the purpose of prescribing a period of time during which an action must be taken or during which a particular situation must prevail (see: s 39(3)(c),
s 44(1B), s 90SB(a), and s 104(3)(b) and (e)), the expression is not defined in that Act. Nor indeed is “year” defined in the Acts Interpretation Act, although in that Act the expression “month” is defined, and for present purposes that definition is of some interest because of its provision for the end date of a period of a month to be the day immediately before the day which corresponds with the day at the start of the period:2GMonths
(1)In any Act, month means a period:
(a)starting at the start of any day of one of the calendar months; and
(b)ending:
(i)immediately before the start of the corresponding day of the next calendar month; or
(ii)if there is no such day—at the end of the next calendar month.
Example 1: A month starting on 15 December in a year ends immediately before 15 January in the next year.
Example 2: A month starting on 31 August in a year ends at the end of September in that year (because September is the calendar month coming after August and does not have 31 days).
(Emphasis in original)
The only authority to which we were taken and which we consider to be of assistance to us in determining the end date for the two year period provided for in s 44(5) of the Family Law Act, which in this case commenced on
10 January 2011, is the decision of Beaumont J of the Federal Court of Australia in Susiatin v Minister for Immigration and Multicultural Affairs (1998) 83 FCR 574.One of the questions which his Honour had to consider in that case was the meaning of the term “within”. In endeavouring to answer that question, his Honour cited (inter alia) the following passage from the decision of the
Full Court of the Supreme Court of Victoria in Morton v Hampson [1962]
VR 364 (at 365):The modern rule in relation to a period of time fixed by statute ‘within’ which an act is to be done after a specified event is that the day of the event is to be excluded; the next day is that first day of the stipulated period and the time expires on the last day of the period, counting from and of course including the first day.
Then a little later in his reasons, Beaumont J expressed his own opinion, saying at 580:
In my opinion, the word “within” in the present context, has a meaning similar to that attributed to it in the authorities I have mentioned, that is to say, it should be read as indicating the limits of a period before the end of which the relevant act must be done and that for this purpose, the day of the act in question is to be excluded. That is to say, for present purposes,
I accept the approach with respect to calculation of the time or its reckoning suggested on behalf of the Minister…Earlier his Honour had explained the approach of the Minister to the calculation of time in the following way:
It is then submitted on behalf of the Minister that there should be allowed for present purposes a total period of 35 days, commencing on
23 October 1997. The 35 day period consists of the 28 days allowed by the Act and the seven days allowed by the regulations. It is said that the
35 day period expired on 26 November 1997, that is to say, the day before the application was filed.It will thus be seen that the Minister’s submission, which Beaumont J accepted, was that the 35 day period which commenced on 23 October of the year in question ended on the thirty-fifth day, being 26 November of that year.
We are therefore prepared to conclude at least by analogy with Beaumont J’s decision in Susiatin that in the present case the two year limitation period provided in s 44(5) of the Family Law Act commenced on 10 January 2011 and ended at midnight on 9 January 2013. The appellant’s initiating application, having been filed on 9 January 2013, was therefore filed within time, and the primary judge was in error in holding that it was not.
That result accords with the plain meaning of the sub-section, and there is no warrant in that sub-section, in s 36(1) of the Acts Interpretation Act, or in any relevant authority for, in this instance, excluding from the calculation
of when the two year period ends, the last day of that two year period,
i.e., 9 January 2013.We therefore propose to allow the appeal and set aside Orders 1 and 2 of the orders made on 28 January 2014, by which the appellant’s initiating application and amended initiating application were respectively dismissed. The effect of the setting aside of those two orders will be that the amended initiating application will remain on foot to be heard by the Federal Circuit Court. The initiating application was in fact superseded by the amending initiating application; there was no need for his Honour to have dismissed the initiating application, although it is necessary for us to discharge his Honour’s order doing so.
There were a further two orders (Orders 3 and 4) made by Judge Howard on
28 January 2014, but as they are only of a procedural nature, and in any event relate to dates now passed, it is unnecessary to set them aside.Before concluding our consideration of this appeal, we mention that there were two further grounds of appeal (Grounds 3 and 4). These grounds were directed to Judge Howard’s refusal to allow the appellant to rely on an application, which was contained only in written submissions, for leave under s 44(6) of the Family Law Act to file out of time an initiating application, and to his Honour’s requirement that a separate application seeking such leave and a supporting affidavit to be filed.
Given that we have decided that the appellant’s initiating application had been filed within time, and accordingly, no question of leave to file such an application out of time could arise, it is strictly unnecessary that we consider Grounds 3 and 4.
Nevertheless we are compelled to say that we do not agree with his Honour’s view, that having decided that the initiating application had been filed out of time, he could then not deal with an application made in written submissions, or indeed made orally, for leave to file such an application out of time. Such a course would have saved the resources of both the parties and the court, and we do not regard the decisions of Hedley & Hedley (2009) FLC 93-413 or
Slater & Slater (1985) FLC 91-641 as posing any bar to such a course. It also seems from the contents of the Appeal Books, that sufficient material would have been filed by the parties by the time when the matter came before his Honour to have enabled a decision to be made as to whether or not leave should be granted to file an initiating application out of time.Finally, we emphasise that this decision is concerned only with the operation of s 44(5) of the Family Law Act, and that care should be taken in relying on this decision when applying or interpreting any other legislative provision concerning time periods. The application of each provision will depend on its own particular wording.
The appeal against the order for costs
It was conceded correctly by counsel for the respondent that in the event that the appeal against the dismissal of the initiating application was to succeed, then the appeal against the costs order would also have to succeed given that the dismissal of the initiating application provided a reason for costs order.
We will therefore also allow the appeal against the costs order and set that order aside.
Costs of the appeals
When at the conclusion of the hearing of the appeals, we invited counsel to address us on the issue of the costs of the appeals, it emerged that there may be matters relevant to the issue of costs which should appropriately be the subject of written submissions. We will therefore make directions for such written submissions.
It may, however, assist the parties if we indicate that, unless there is some significant matter of which we are not aware and which would justify a departure from the general rule under s 117(1) of the Family Law Act that each party to proceedings under the Act should pay his or her own costs, then in our view it would be appropriate given the outcome of the appeals, for the general rule to prevail and for each party to receive the appropriate certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Strickland JJ) delivered on 29 April 2015.
Associate:
Date: 29 April 2015
1
3