FAMILY LAW – APPEAL – JURISDICTION – where the respondent contends the parties were in a de facto relationship – where the appellant denies that claim – where the respondent sought an injunction, inter alia, restraining the appellant from evicting her from a real property and otherwise dealing with that property – where the injunction was granted – where the appellant contends the court lacked jurisdiction to make the order – where the trial judge found the court had the power to grant the injunction pursuant to s 114(2A) of the Family Law Act 1975 (Cth) – whether the trial judge erred in the manner alleged – where the power contained in s 114(2A) is expressly confined to circumstances in which the relevant jurisdictional facts have been determined – where those jurisdictional facts had not been determined at the time the injunction was ordered – where the trial judge erred in relying upon s 114(2A) to make the order granting the injunction – whether the court otherwise has an “inherent jurisdiction” to grant an injunction pending determination of the relevant jurisdictional facts – consideration of R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 – where the court has a limited jurisdiction to grant an injunction pending determination of jurisdictional facts, where the injunction is necessary to “protect its function” as a court – where the evidence in the instant case was insufficient to demonstrate “compelling circumstances” warranting the grant of the injunction – error demonstrated – leave to appeal granted.
FAMILY LAW – APPEAL – JURISDICTION – practice and procedure – where, prior to a determination of the relevant jurisdictional facts, the trial judge ordered the provision of information by the appellant pursuant to Part 24 of the Federal Circuit Court Rules 2001 (Cth) – where the appellant contends the court does not have the power to make orders pursuant to Part 24 when jurisdiction has not been determined – whether the trial judge erred in making orders pursuant to Part 24 – where the application of Part 24 is confined to “financial matters” which includes proceedings pursuant to s 90SM – where s 90SM depends, for its application, upon the breakdown of a de facto relationship – where the existence of a de facto relationship is a “jurisdictional fact” – where, then, Part 24 does not apply in circumstances where jurisdiction has not been determined – where, however, the court has the power to control its own process – where, in certain circumstances, the court may order provision of financial information for the purpose of determining the jurisdictional fact, being the existence of a de facto relationship.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Norton & Locke [2013] FamCAFC 202
Case
[2013] FamCAFC 202
Decision Date
CaseChat Overview and Summary
The appellant and respondent were in dispute over a property, with the respondent asserting that they were in a de facto relationship and the appellant denying this claim. The respondent sought an injunction to prevent the appellant from evicting her from the property and otherwise dealing with it. The trial judge granted the injunction, but the appellant argued that the court lacked jurisdiction to do so. The appellant also challenged an order made by the trial judge that required the appellant to provide information to the respondent, arguing that the court did not have the power to make such an order when jurisdiction had not been determined. The legal issues for the court to decide were whether the trial judge erred in granting the injunction and in ordering the provision of information by the appellant. The court found that the trial judge had erred in granting the injunction, as the relevant jurisdictional facts had not been determined at the time the injunction was ordered. The court also found that the trial judge had erred in ordering the provision of information by the appellant, as the application of Part 24 of the Federal Circuit Court Rules 2001 (Cth) was confined to “financial matters,” which includes proceedings pursuant to s 90SM of the Family Law Act 1975 (Cth). However, the existence of a de facto relationship is a “jurisdictional fact,” and Part 24 does not apply in circumstances where jurisdiction has not been determined. Nevertheless, the court has the power to control its own process and may order the provision of financial information for the purpose of determining the jurisdictional fact, being the existence of a de facto relationship. The appeal was allowed, and certain orders made by the trial judge were set aside. The appellant was granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorize a payment under the Federal Proceedings (Costs) Act 1981 (Cth) to the appellant in respect of the costs incurred by the appellant in relation to the appeal. The respondent was also granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorize a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
Orders
Orders of the court
1. The application in an appeal filed 30 September 2013 is dismissed.
2. The application for leave to appeal in EA 134 of 2013 is dismissed.
3. The application for leave to appeal in EA 112 of 2013 is granted and the appeal is allowed.
4. Paragraphs 1-5 of Judge Scarlett’s orders made on 6 August 2013 be set aside.
5. Paragraphs 1-5 of the Application filed in the Federal Circuit Court on 23 May 2013 seeking interim orders be dismissed and paragraphs 1-5 of the Amended Initiating Application filed in the Family Court of Australia on 2 December 2013 seeking interim orders also be dismissed.
6. Pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) (“the Costs Act”), the appellant be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorize a payment under the Costs Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
7. Pursuant to s 6 of the Costs Act, the respondent be granted a certificate that in the opinion of the Full Court it is appropriate for the Attorney-General to authorize a payment under the Costs Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.