MANN & MORRIS
[2012] FMCAfam 183
•28 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MANN & MORRIS | [2012] FMCAfam 183 |
| FAMILY LAW – Property – application for property orders – consent orders – parties never married – de facto relationship. FAMILY LAW – Property – Court must be satisfied that proposed property orders are just and equitable – compliance with Family Law Act 1975 (Cth) s.90SM(3). FAMILY LAW – Jurisdiction – whether Court has jurisdiction to make property orders – proclamation of date on which jurisdiction of the Family Court can be exercised in States and Territories – jurisdiction of the Federal Magistrates Court must not be exercised if corresponding jurisdiction of the Family Court not capable of being exercised. |
| Family Law Act 1975 (Cth), ss.4AA, 31, 40, 40A, 90SF, 90SK, 90SM, 106A Family Law (De Facto Financial Matters and Other Measures) Act 2008 (Cth) |
| Tanaka & Ogilvie [2011] FMCAfam 397 |
| Applicant: | MR MANN |
| Respondent: | MS MORRIS |
| File Number: | SYC 210 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing dates: | 28 February 2012, in chambers |
| Date of Last Submission: | 28 February 2012 |
| Delivered at: | Sydney |
| Delivered on: | 28 February 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Central Coast Family Law |
| Solicitors for the Respondent: | Self Represented |
ORDERS
BY CONSENT
That within 42 days from the date of these orders the Respondent shall pay to the Applicant the sum of $30,000.00 (“the payment”);
That contemporaneously with the payment referred to in Order 1 hereof:
(a)the Applicant shall do all things and sign all documents necessary to transfer to the Respondent all his right, title and interest in the property situate at and known as Property R being the whole of the land contained in Certificate of Title Folio Identifier [omitted] (“the Property”);
(b)the Respondent shall do all acts and things and sign all documents necessary to pay out the loan to ING secured by way of first registered mortgage over the Property so as to remove the Applicant as borrower and guarantor; and
(c)the Respondent shall assume all liability for and indemnify the Applicant against all apportion able rates, taxes and outgoings of or with respect to the Property of whatsoever nature and kind.
That if the Respondent does not comply with order 1 hereof, the Applicant and Respondent shall do all acts and things and sign all documents necessary to list the Property for sale by private treaty with a licensed real estate agent as agreed between the parties and failing agreement the Applicant will provide a list of three (3) real estate agents to the Respondent and the Respondent will within 24 hours of being given the list nominate one of those agents to sell the Property.
That the sale price of the Property shall be as agreed and failing agreement at a price suggested by the agent nominated pursuant to Order 3 above.
That the Applicant and the Respondent shall instruct a solicitor or conveyancer as agreed between them to prepare contracts for the sale of the Property and thereafter act on the conveyance of the Property.
That should the Property fail to sell by way of unconditional exchange of contracts within 12 weeks from the date the Property was first offered for sale by private treaty the Applicant and the Respondent will do all acts and things and sign all documents necessary to auction the Property on the first Saturday 16 weeks after the Property was offered for sale by private treaty and instruct the real estate agent nominated pursuant to Order 3 above to conduct the auction.
That the reserve price for the auction referred to in Order 4 above shall be as agreed and failing agreement 5% less than the price the Property was last offered for sale by private treaty.
That should the Property fail to sell at auction the Applicant and Respondent will re-auction the property every 4th Saturday thereafter until the Property is sold and the reserve price for each subsequent auction shall be 2% less than the reserve price for the preceding auction.
That upon completion of the sale of the Property the proceeds be paid as follows:
(a)Pay out the mortgage to ING;
(b)Pay all rates and taxes owing on the property;
(c)Pay the conveyances’ costs and disbursements of acting on the sale;
(d)Pay the then remaining balance as follows:
(i)to pay a sum equivalent to the difference between the amount required to discharge the mortgage to ING and the amount that would otherwise have been required to discharge the mortgage caused by failure of the Respondent to meet mortgage instalments from 1 July 2011;
(ii)$30,000.00 to the Applicant;
(iii)The balance then remaining to the Respondent.
That within 7 days from the date of these orders the Applicant and Respondent do all acts and things and sign all documents necessary to close any bank accounts in the parties’ joint names and divide the proceeds therein if any equally between the parties.
That otherwise as provided for in these orders the Applicant and Respondent be declared the sole beneficial owner of all motor vehicles, monies in bank accounts, superannuation, real property, shares in public or private companies and any other property that stands in that party’s name or that is in that party’s possession as at the date of these orders.
That if either party refuses or neglects to sign (within 14 days of a written request to do so) any documents necessary to give effect to the terms of these a Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.
That each party pay their own costs of and incidental to these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Mann & Morris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 210 of 2011
| MR MANN |
Applicant
And
| MS MORRIS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the parties for orders by consent resolving the property issues between them. However, as the evidence shows that the parties were never married, the Court must be satisfied that it has jurisdiction to make the Orders sought.
The Respondent is not represented by a solicitor and the consent orders have been prepared by the Applicant’s solicitor and forwarded to the Court under a covering letter. The letter does not set out the basis upon which the settlement has been reached, and the Court is obliged to search through the material filed by the parties in order to be satisfied that:
a)the Court has jurisdiction to make the Orders (Family Law Act 1975, sections 90SB, 90SK); and
b)in all the circumstances, it is just and equitable to make the orders sought (subsection 90SM(3)).
Evidence
The Applicant relies on the following:
a)his affidavit of 10 December 2010 filed in the Local Court of NSW at [omitted]; and
b)a Financial statement dated 8 December 2010 filed in the Local Court on 13 December 2010.
The Respondent relies on:
a)her affidavit of 19 September 2011; and
b)an undated Financial Statement.
Neither of the Respondent’s documents bears the seal of the Court or a date of filing. The affidavit is witnessed by a duty solicitor from Legal Aid NSW.
The Applicant deposes that he commenced to live with the Respondent in the United Kingdom in 1999 and their relationship ended in about January 2000.
However, they were reconciled after the birth of their son and commenced to live together in [omitted], New South Wales, “on or about the end of October 2000”.[1]
[1] Affidavit of Mr Mann 10.12.2010 at paragraph [13]
He further deposes that he and the Respondent continued to live together and purchased a property together at Property R in or about early June or late July 2007 for the sum of approximately $335,000.
The Applicant claims he and the Respondent separated “in or about September 2007”.[2]
[2] Ibid at [31]
Curiously, the Applicant goes on to say:
In, on or about 10 October 2010 I remarried…[3]
[3] Ibid at [32]
There is no evidence that he and the Respondent were ever married so it is difficult for him to claim to have remarried.
The Respondent deposes in her affidavit that they commenced to live together in the United Kingdom in 1999 and that she returned to Australia in late January 2000.[4] From about late November 2000 they lived together at her parents’ home.
[4] Affidavit of Ms Morris 19.9.2011 at paragraphs [5] and [10]
She deposes that she and the Applicant purchased and later sold a business together.
The Respondent claims:
In 2005 the Applicant father proposed marriage and I accepted.[5]
[5] Ibid at [55]
However, it appears that no marriage ever took place and a telephone call by my Associate to the Applicant’s solicitor produced the reply that the parties had never married.
The Respondent describes in her affidavit how she and the Applicant purchased the property at Property R on 9 July 2007. The Applicant’s parents provided a gift of approximately $48,000.00 for the deposit and the parties obtained bank finance to complete the purchase.[6]
[6] Ibid at [69]-[71]
The Respondent deposed that the parties’ relationship ended on 20 October 2007 when the Applicant moved out of the home and into a motel.[7]
[7] Ibid at 82]-[83]
The Applicable Law
It is a serious error for parties to assume that the Court will “rubber stamp” consent orders for the distribution of property which are mailed to the Court to be dealt with in chambers. This is particularly so in the case of de facto property matters.
In all cases, the Court must be satisfied that:
a)the Court has jurisdiction to make the Orders sought; and
b)the proposed orders are just and equitable.
In order for the Court to have jurisdiction, the parties must establish:
a)that they were in a de facto relationship for at least two years or that some other qualifying requirement under section 90SB of the Act is met;
b)that either or both are ordinarily resident within a participating jurisdiction at the time of application; and
c)that they were either ordinarily resident within a participating jurisdiction during at least a third of the de facto relationship or that they were ordinarily resident within a participating jurisdiction when the relationship broke down (s.90SK)..
The definition of a de facto relationship can be found in s.4AA(1) of the Family Law Act 1975, which provides that:
A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The parties must meet one of the requirements under s.90SB of the Act to establish jurisdiction:
A court may make an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL, in relation to a de facto relationship only if the court is satisfied:
(a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
(b) that there is a child of the de facto relationship; or
(c) that:
(i) the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a), (b) or (c): and
(ii) a failure to make the order or declaration would result in serious injustice to the applicant; or
(d) that the relationship is or was registered under a prescribed law of a State or Territory.
The jurisdiction to deal with financial matters relating to de facto relationships was given to courts exercising jurisdiction under the Family Law Act by the Family Law (De Facto Financial Matters and Other Measures) Act 2008, that part of the legislation dealing with adjustment of property interests and the making of maintenance orders being said to come into force on 1 March 2009.
However, the legislation was inadvertently not proclaimed until 11 February 2012. The proclamation, under subsection 40(2) of the Family Law Act 1975, fixed 11 February 2012 as the date on and after which the jurisdiction of the Family Court of Australia under paragraph 31(1)(aa) of the Act could be exercised in the following States and Territories:
a)New South Wales;
b)Victoria;
c)Queensland;
d)South Australia;
e)Tasmania;
f)Australian Capital Territory;
g)Northern Territory;
h)Norfolk Island.
Accordingly, the description of this aspect of the law set out in Tanaka & Ogilvie[8] at paragraphs [54], [56] and [57] no longer represents the law.
[8] [2011] FMCAfam 397
Section 40A of the Act provides that:
The jurisdiction of the Federal Magistrates Court under this Act must not be exercised in respect of a particular proceeding in a particular State or Territory if the corresponding jurisdiction of the Family Court is not capable of being exercised in the State or Territory.
However, as of 11 February 2012, the jurisdiction of the Family Court can be exercised in the State of New South Wales, by virtue of the proclamation. This removes the obstacle otherwise created by section 40A.
There is a geographical requirement for the exercise of the Court’s jurisdiction to make declarations and alterations of property interests, set out in subsections 90SK(1) and (1A) of the Act:
(1) A court may make a declaration under section 90SL, or an order under section 90SM, in relation to a de facto relationship only if the court is satisfied:
(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time); and
(b) that either:
(i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or
(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in paragraph 90SM(4)(a)(b) or (c);
in one or more States or Territories that are participating jurisdictions at the application time;
or that the alternative condition in subsection (1A) is met.
(1A) The alternative is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down.
The power to make orders to determine matters involving alteration of the interests in property of parties to a de facto relationship is found in s.90SM of the Act. The powers given to the Court under s.90SM are similar to those given to the Court under s.79, which applies to the property of parties to a marriage.
When making a property order under s.90SM, whether it is a consent order or not, the Court must be mindful of the provisions of subsection 90SM(3), which provides:
The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
This process will usually involve a consideration of all the matters set out in subsection 90SM (4).
Conclusions
The parties here have, regrettably, given scant consideration to either the question of the Court’s jurisdiction to make the orders sought or the Court’s satisfaction that it is just and equitable to make the orders. The consent orders were accompanied only by a letter from the Applicant’s solicitor advising of the parties’ agreement, enclosing the documents, seeking review of the orders in chambers and advising that “the parties require a sealed copy of the orders as a matter of urgency”.
It would have been of greater assistance if the parties had turned their minds to the statutory requirements and not assumed that the Court would act as a “rubber stamp” and automatically approve whatever consent orders that were placed before it.
Applications for approval of property orders in chambers must be accompanied by sufficient material to enable the Court to be satisfied that the proposed orders are just and equitable and, in the case of de facto property matters, that the Court actually has jurisdiction to make the orders. This would usually be done by an affidavit of one party’s solicitor, or a memorandum or a covering letter setting out the basis upon which the settlement has been reached. Where the Court does not have sufficient information, it will not make the orders in chambers but will list the matter before the court, whether or not the parties claim that the matter is urgent.
There is evidence that the parties lived in a de facto relationship as defined by s.4AA (1). They were not married to each other, despite the confusing references to “remarriage” and “proposed marriage and accepted” in the parties’ affidavits. There is no evidence that the parties are related by family (s.4AA (6)). There is evidence that, having regard to all the circumstances of their relationship, the parties had a relationship as a couple (s.4AA (2)).
I find that at all relevant times the parties lived in a de facto relationship.
The Court must consider the geographical requirement in section 90SK of the Act.
The original application for property orders was made to the Local Court of New South Wales at [omitted] on 13 December 2010. The Court had no jurisdiction to make those orders at the time of application, as the legislation had not been proclaimed at that stage. The legislation was not proclaimed until 11 February 2012.
However, I find that an application was made for property orders by consent by the letter of the Applicant’s solicitor of 24 February 2012, enclosing Minutes of the Proposed Orders. I am therefore satisfied that the time of application should be regarded as 24 February 2012, at which time the legislation was in force.
There is evidence that both parties to the de facto relationship are ordinarily resident in a participating jurisdiction, New South Wales, at the application time (s 90SK(1)(a)).
The duration of the de facto relationship, based on the parties’ affidavits, was from approximately November 2000 until 20 October 2007. The parties were ordinarily resident in New South Wales for at least one third of the de facto relationship, and in fact for all of it (see paragraph 90SK(1)(b)(i)).
It is immaterial that the State of New South Wales was not a participating jurisdiction during the relationship. Subsection 90SK(2) provides that:
For the purposes of paragraph (1) (b), a State need not have been a participating jurisdiction during the de facto relationship.
The geographical requirement under s.90SK has therefore been satisfied.
The Court must be satisfied of at least one of the matters in s.90SB.
The total period of the de facto relationship was at least two years, from 2000 to 2007(s.90SB (a)).
There are two children of the de facto relationship (s.90SB (b)).
The requirements of s.90SB of the Act have been satisfied.
I find that the Court has jurisdiction to make the orders sought by way of alteration of property interests (s.90SM).
There is scant evidence to assist the Court in being satisfied that the proposed orders are just and equitable under s.90SM (3). The orders propose that the Respondent will pay the sum of $30,000.00 to the Applicant and, in return, he will transfer to her all his right, title and interest in the property at Property R, subject to her paying out the first mortgage over the property and indemnifying him in respect all rates, taxes and outgoings.
The parties would also retain all motor vehicles, bank accounts, superannuation and other assets already in their possession or in their name.
There is evidence of contribution by both parties in their respective affidavits and there is some financial information in their respective financial statements.
Whilst it would seem that the Applicant may have made a greater contribution to the purchase of the home, he has a greater income than the Respondent and the children are currently in her care. The parenting proceedings remain on foot.
However, it would appear that the parties have come to an agreement whereby they have taken account of matters in favour of the Respondent under subsection 90SF (3) and a weighting has been applied accordingly.
After some deliberation, I have decided that I am satisfied that the orders sought to be made by consent are just and equitable, as provided by s.90SM (3).
The proposed orders, curiously, contain a proposed order under s.106A of the Act that if either party refuses or neglects to sign any documents necessary to give effect to the consent orders, “a Registrar of the Newcastle Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of section 106A of the Family Law Act to execute such documents on behalf of such party.”
Why, one must ask, was it considered necessary to ask this Court to appoint a Registrar of another court, the Family Court of Australia, to enforce this Court’s own orders? The Federal Magistrates Court has been in existence for over eleven years and has had its own Registrars for most of that time.
I will reluctantly approve this order, but practitioners are warned that the Court may not take such a lenient attitude in the future.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 1 March 2012
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