Oldham and Avis
[2017] FCCA 1480
•22 May 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| OLDHAM & AVIS | [2017] FCCA 1480 |
| Catchwords: FAMILY LAW – Practice and Procedure – where the substantive proceedings relate to competing applications for de facto property adjustment – controversy as to date of separation – consideration of the differences between Part VIII and Part VIIIAB jurisdiction – where the Respondent seeks that the proceedings be transferred to the Family Court of Australia – consideration of rule 8.02 of the Federal Circuit Court Rules 2001. |
| Legislation: Family Law Act 1975, ss.4AA, 4(ca), 44(5), 60I, 75(2), 79, 90RD, 90SB, 90SM, 114 Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth) Family Law Rules 2004 |
| Cases cited: Aon Risk Services & Australian National University [2009] HCA 27 Haset Sali v SPC Ltd [1993] HCA 47 Other Articles Cited: Patrick Parkinson, Can There Ever Be Affordable Family Law? University of Sydney, March 2017. |
| Applicant: | MR OLDHAM |
| Respondent: | MR AVIS |
| File Number: | SYC 1615 of 2015 |
| Judgment of: | Judge Harman |
| Hearing date: | 22 May 2017 |
| Date of Last Submission: | 22 May 2017 |
| Delivered at: | Parramatta |
| Delivered on: | 22 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Livingston |
| Solicitors for the Applicant: | Clive Mills & Associates |
| Counsel for the Respondent: | Mr Shaw |
| Solicitors for the Respondent: | Pagano Burlovich Lawyers |
ORDERS
Dismiss the Application in a Case filed 12 May 2017.
Reserve costs of the Respondent in the Application in a Case with respect to the determination of that interlocutory Application to be heard and determined at trial.
The parties are to attend a Conciliation Conference with a Registrar at 9:15am on 23 May 2017.
IT IS NOTED that publication of this judgment under the pseudonym Oldham & Avis is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
SYC 1615 of 2015
| MR OLDHAM |
Applicant
And
| MR AVIS |
Respondent
REASONS FOR JUDGMENT
These proceedings arise from a plea for property adjustment relief between litigants, Mr Oldham, the Applicant, and Mr Avis, the Respondent.
I do not intend to be disrespectful to the parties by referring to them by generic titles. The terms “Applicant” and “Respondent” merely identify, without controversy, the relationship of these parties in these proceedings at this point.
The Application to be dealt with and disposed of is an Application in a Case filed by the Respondent in the substantive proceedings on 12 May 2017. A Response to that Application in a Case has been filed by the Applicant and was filed promptly (having been filed on 18 May 2017).
The Application in a Case seeks an Order that these proceedings be transferred from the Federal Circuit Court of Australia to the Family Court of Australia. In dealing with that Application, it is germane to canvas the history of the proceedings and the substantive issues in dispute between the parties.
The parties and their relationship
Mr Oldham and Mr Avis are parties to a de facto relationship as defined under the Family Law Act 1975.[1] In an earlier determination of issues not dissimilar to those raised in these proceedings[2] (i.e. the date of separation of two parties, one of whom alleges that a de facto relationship subsisted for a lengthy period, the other denying that it was so), I had commented that a marriage and a de facto relationship have discernible social and legal differences. Those comments generated some degree of controversy after the case was reported.
[1] Although there is an issue raised on the evidence as to when that de facto relationship ended such that it will be necessary to hear evidence with respect to that issue and it may be necessary to also deal with an issue of leave to apply out of time.
[2] Benedict & Peake [2014] FCCA 642.
This case exemplifies some of the differences that are readily identifiable between a marriage and a de facto relationship, especially for the purpose of proceedings under the Family Law Act 1975. Those issues are worthy of comment as they directly impact upon these parties, the issues they are litigating and the Application now made for transfer by reference to the “complexity” of the proceedings.
The substantive Application in these proceedings is a claim for relief under Part VIIIAB of the Family Law Act 1975 and by way of what is generally referred to as de facto property adjustment.[3] The provisions of Part VIIIAB of the Family Law Act 1975, dealing with the adjustment of interests in property between de facto partners, vary, albeit slightly, from those relating to parties to a marriage (as set out in Part VIII of the Family Law Act 1975).
[3] De facto relationship is defined by section 4AA of the Family Law Act 1975 and by reference to marriage (i.e. “…the persons are not legally married to each other…and…they have a relationship as a couple living together on a genuine domestic basis”).
This case is emblematic of the differences between the two jurisdictions (marriage and de facto relationship jurisdictions) in two particular and significant ways.
Firstly, jurisdiction to hear and determine a plea for property adjustment relief between the parties to a marriage is established by nothing more profound than the production of a Marriage Certificate and the production (or absence) of a Divorce Order (as regards time limits relevant to the commencement of proceedings).
The fact of marriage and the fact that Divorce has not occurred more than 12 months prior to the date of filing of an Application are the only facts relevant to establishing jurisdiction for the parties to a marriage and without need for further enquiry. The only evidence required to prove those facts and establish jurisdiction, are public records (a marriage to found the Court’s jurisdiction, a Divorce Order to address whether the Application is within or without time limits for the commencement of proceedings). Even if challenge arises as to the validity of a marriage, jurisdiction to hear and determine a property plea remains as the proceedings remain a “matrimonial cause”.[4]
[4] See section 4(ca) of the Family Law Act 1975.
When jurisdiction is established by the existence of a marriage the Court need not enquire into the circumstances of the relationship between the parties so as to establish jurisdiction. The relationship is not evaluated, scrutinised or “judged” to determine whether the behaviour of the parties meets some arbitrary set of criteria to establish that it is a marriage. There is no consideration of the minutia of dealings between the parties, such as their degree of love and affection towards each other, the sex life of the parties or their public reputation. The parties to a marriage can keep the fact of their marriage secret from family and friends or even, Judas like, deny its existence to others. The parties to a marriage can be celibate, monogamous or promiscuous and no enquiry is necessary as the fact of marriage establishes jurisdiction. The production of a Marriage Certificate founds jurisdiction without further scrutiny of the relationship.[5]
[5] Certainly, the circumstances of the relationship might be relevant in assessing contribution per section 79(4) of the Act or adjustments pursuant to section 75(2) of the Act. Such considerations are not relevant, however, to establishing jurisdiction and thus permitting access to the Court and to justice.
Absent agreement between parties as to the existence and duration of a de facto relationship, it is necessary for the parties to an alleged de facto relationship to adduce evidence as to the nature of their relationship. That evidence deals not only with when the relationship is suggested to have started and when it stopped, but must address the nature of the relationship by reference to the myriad factors that might be considered under section 4AA of the Family Law Act 1975. The parties must demonstrate that their relationship is a relationship of a type, nature and quality to be considered sufficient to be recognised by the Court as a de facto relationship and thus invoke the Court’s jurisdiction, including matters such as:
a)The duration of the relationship;
b)The nature and extent of their common residence;
c)Whether a sexual relationship exists;
d)The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
e)The ownership, use and acquisition of their property;
f)The degree of mutual commitment to a shared life;
g)Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
h)The care and support of children;
i)The reputation and public aspects of the relationship.
Section 4AA(3) of the Act makes clear that, “no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship”. Similarly, section 4AA(4) makes clear that, “a court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case”. Accordingly, the above considerations, whilst prescriptive, are not exhaustive. The relevant factors are not, individually or in any particular combination, determinative of the existence or non-existence of a de facto relationship. However, the circumstances of the relationship must, absent consent to jurisdiction, be examined by the Court. Until a finding is made as to the existence of a de facto relationship there is no jurisdiction.
This external judgment of the relationship, a determination by a neutral third party, the Court, as to the nature of a relationship and what constitutes a de facto relationship between two people is absent in cases in which marriage is the jurisdictional foundation. Married couples are not required to fit a template of third party expectation as to how their marriage might look or be practiced before their marriage is considered a marriage. The Court need not hear evidence, for example, of the sex life (or absence thereof) of the parties or elicit the views of others regarding the “public reputation” of the marriage. The marriage itself is enough.[6]
[6] The point is well made by Judge Driver in Angkawijaya & Anor v Minister for Immigration & Anor [2015] FCCA 450:
In seeking to establish jurisdiction in a de facto relationship case, the parties might be required to adduce evidence and be cross-examined with respect to such personal matters as their sex life and “public recognition” of their relationship. In short, the relationship or alleged relationship of the parties is assessed and evaluated or “judged”. Such considerations do not apply and do not arise as regards the establishment of jurisdiction between married parties. If there is controversy as to existence or duration of a de facto relationship the parties must address such factual issues and obtain a section 90RD declaration establishing jurisdiction before the case can proceed.[7]
[7] See Norton & Locke (2013) FLC 93-567 and Holden & Wolff [2014] FamCAFC 224. Until jurisdiction is so established the Court has no power to make any Order, save Orders to protect and preserve assets the putative subject of the proceedings.
The need to adduce evidence in this fashion, absent agreement between the parties as to existence of a de facto relationship and its length and date of termination and, thus, submission to jurisdiction,[8] is a fundamental difference between the two jurisdictions.
[8] Submission to jurisdiction can only arise on the basis of factual concession as to the existence of a relationship as required by the Family Law Act 1975. The parties cannot invest the Court with jurisdiction through consent and submission other than by agreement as to the matters addressed by sections 90SB and 44(5) of the Act.
De facto relationship causes can and routinely do require a threshold, jurisdictional Hearing, sometimes a Hearing of several days in duration,[9] to lead and test evidence and enable the Court to make findings of fact sufficient to found a declaration that a de facto relationship sufficient to establish jurisdiction existed. Such Hearings consume the resources of the parties and the Court.
[9] In Benedict & Peake, referred to above, a Hearing of 4 days involving multiple witnesses was required.
The second and profoundly important difference between a marriage and a de facto relationship is the reality that marriage is available only to heterosexual couples.[10] I put it in those terms not to seek, in any way, to cause embarrassment for these litigants, but to seek to avoid the use of binary language or to suggest a duality of gender or sexuality.
[10] The requirement of the Marriage Act 1961 is that marriage occur between a man and a woman (section 5 provides that, “"marriage" means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”). It could be argued that a homosexual man and a homosexual woman could marry each other and, thus, assert that heterosexuality was not a requirement of marriage. This would be a valid argument, save for that reality that each party to such a marriage would be required to deny and frustrate their authentic self for the purpose of the union.
There are many manifestations of gender and many expressions of sexuality beyond the duality of male and female and homosexual and heterosexual, all of which are entirely valid, lived experiences of individuals and which fall without the binary duality of male and female or “straight’ or “gay”.
Gender is not binary and need not be viewed as a duality of gender. Individuals may identify their gender as male or female or as agender, androgynous, bigender, gender fluid, gender queer, gender non-conforming, gender variant, intersex, transgender or third gender. But to marry a person must confirm to heteronormative descriptors of male or female (and the parties must identify differently).
There are many sexualities and individuals may identify as straight or gay or lesbian or as bi, gynesexual, pansexual, polyamorous, skoliosexual, asexual, androsexual, aromantic, asexual, queer, demiromantic, curious or however they wish.
These parties cannot marry and marriage is not available to them as they are of the same gender.
A case such as this assists in understanding the difference between a “right” and a “privilege”.
A right may be universal or it may not. For example, the rights set out in the Universal Declaration of Human Rights 1948 (to which Australia is a signatory)[11] are intended to apply to all without reservation.[12] This includes rights to life, liberty and security of person, freedom from slavery and torture and rights of due process and education.
[11] Indeed, Australia played a significant role in the development of the Declaration through the involvement of Dr Evatt.
[12] Article 1 of the Declaration states, “All human beings are born free and equal in dignity and rights.” Article 2 provides, “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.
Some rights are not universal. Such rights include the right to vote, to engage in sexual relationships (with laws prescribing an age of consent), the right to obtain medical treatment necessary to a person’s health and well-being[13] or the “right” to drive.[14] Such reservation of rights with pre-conditions most commonly arise due to concerns regarding the legal competence or “capacity” of the individual, usually children (such as discussed by reference to “Gillick Competence”)[15] and with a desire to protect the individual from harm. A removal of rights might arise in the context of punishment.[16]
[13] Such as those under 18 who identify as transgender who must, irrespective of their consent or that of their parents and guardians, obtain an Order from the Court – see Re Jamie[2013] FamCAFC 110.
[14] In reality, being permitted and licenced to drive is a privilege as there remain valid and necessary pre-conditions of competence which must be demonstrated before the right is enlivened.
[15] Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7.
[16] Such as felony disenfranchisement in some States of the United States of America, where conviction for certain serious offences results in the temporary or permanent removal (disenfranchisement) of voting rights. Similarly, some Federal laws in the United States result in disentitlement to access some welfare and housing benefits.
When a “right” ceases to be universal it becomes a privilege. It is a right to those who meet the preconditions enlivening application of the right but is, to those who do, a privilege. Such rights and privileges are readily discernible with respect to the social and legal differences between marriage and de facto relationships.[17]
[17] And it must be remembered that the term “de facto” relationship arose in the family law context to describe “marriage like” relationships, with similarities such as shared abode, mutual commitment to a common life and such factors as are now defined in the definition of de facto relationship within the Family Law Act 1975. The use of the Latin phrase to denote an “in reality” relationship is not without the above context.
Under Australian law, any adult is free and has, if you will, the “right” to enter a relationship with any other consenting adult of their choice.[18] There is, appropriately, no limit arising from race, religion or, importantly, gender or sexuality. The same cannot be said of marriage. Marriage reserves or privileges the right to marry to those of the opposite sex and, thereby, effectively privileges marriage to heterosexual couples and excluding same sex and non-heterosexual couples. Thus, marriage is not a right enjoyed by all adults but a privilege enjoyed by some.
[18] The right is universal as between adults but tempered by the exclusion of non-adults arising from the entirely appropriate and necessary prohibitions on sexual relationships between adults and children. Such prohibitions also apply to marriage with the existence of a marriageable age at section 11 of the Marriage Act 1961.
Marriage is a privilege reserved for those who meet the implied precondition of heterosexuality and which is not available to and excludes those who fail to meet the implied pre-condition of heterosexuality. Thus, whilst adults of any faith or race are now free to marry, adults of certain sexual orientations are not free to marry. That is a significant social and legal difference between the two.
The right to enter a relationship is a universal right. The right to marry is not. In a de facto relationship, an individual can choose a partner of any race, faith, gender or sexuality. However, an individual must choose a marriage partner of the opposite sex.[19] These parties were not and are not free to marry. They can only rely upon the existence of a de facto relationship.[20]
[19] And in light of inconsistency between State and Territory legislation and In Re Kevin (Validity of Marriage of Transsexual) [2001] FamCA 1074 and that which followed that decision, possibly of a different birth gender.
[20] De Facto relationships being commonly referred to as “marriage like” in light of the development of the term in legal parlance and thus a relationship like but not quite a marriage.
In Australian law, marriage is a secular institution created by the Marriage Act 1961. Marriage may occur in a religious context and in accordance with religious beliefs or practices but, even then, must still occur in accordance with secular law to be legally recognised.
Section 116 of the Commonwealth of Australia Constitution Act 1900[21] makes clear that there is no State religion, irrespective of such protocols or past practices as may have arisen within the majority community. That is, perhaps, for the best as from the time white man first set foot upon the soils of this nation, there has been disparity and diversity in practice of faith and spirituality and, with it, conception and practice of marriage. Aboriginal and Torres Strait Islander Australians have a very different system of beliefs and “faith” to their English colonisers. Aboriginal and Torres Strait Islander peoples have a very different experience and practice of marriage and formalisation of relationships between adults than those practiced by the colonisers who arrived upon the continent. That a dominant group imposed their beliefs upon others does not change that reality.
[21] Section 116 provides that “…The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth”.
There has been significant and important introduction of faith, philosophy and practice beyond the Western tradition. This occurred well prior to white settlement and since with the introduction, for example, by traders from Indonesia, China, India, and other parts of the world, of difference in faith and practice and with them difference in attitudes to marriage. Thus, there was and is no homogeneity of the understanding of marriage, save for the formulation of secular marriage within the Marriage Act 1961.
As was opined by Derek Jarman, “heterosexuality is not normal it is just common”. Similarly, a Judaeo-Christian understanding of marriage is common. It is not “normal”. In the context of the Constitution and the Marriage Act 1961, religion is not relevant. The Marriage Act 1961 is a secular law passed by the Parliament of Australia, bound by section 116 of the Constitution compelling an absence of State religion. Thus, one might legitimately assert that religion or any particular religion (as there are a myriad of diverse religious beliefs held and practiced within Australia) is irrelevant to marriage as created and formalised under the Marriage Act 1961.
Notwithstanding that reality, for these parties they must rely upon the de facto relationship provisions of the Family Law Act 1975 as they are not permitted to formalise their relationship by way of marriage. The relationship between these parties can only proceed and be formalised and “publicly recognised” by State laws regarding registration of civil commitments.[22]
[22] In New South Wales, the Relationships Register Act2010.
Thus, two fundamental circumstances exist in this case, which demonstrate the profound differences between marriage and de facto relationships.
The above matters are relevant as they do create some degree of complication with respect to the facts of the case, the evidence that must be led and the cross-examination that must occur, and ultimately, the findings that need be made. In a de facto relationship case, the Court cannot simply accept a Marriage Certificate as a business record and as founding jurisdiction. The Court must enquire into other matters, and it would appear that the existence of a de facto relationship at any given point is a live issue in this case.
Issues in dispute
There is no dispute that the parties lived together in a de facto relationship, that relationship commencing, without controversy, in or about October 2005. The issue is whether the relationship concluded on 21 March 2013 or some earlier date.
It must be observed that the controversy as to the date of separation is not the only issue in dispute. Subject to determination of the date of separation, the matter may or may not become more factually complex. If a finding is made that the relationship ceased on a date more than two years prior to the date of filing of the first Application, (that Application having been filed 16 March 2015), then there would be an issue of leave under section 44(5) of the Family Law Act 1975[23] before the Court could even proceed to deal with and consider the substantive merits of the plea for property relief.
[23] Time limits for the institution of de facto relationship cases vary from those applicable to marriage cases and leave is determined in de facto relationship cases under a different section of the Act than that applicable to marriage cases.
The above are factual disputes not legal issues. They generate legal issues on the basis that the findings of fact will determine the law to be applied, but beyond that the issues to be determined are far from complex. Further, there is a significant body of clear case law dealing with each of the legal issues which may ultimately require determination. This is an intermediate, first instance Trial Court which does not create precedent but is bound by the determinations of superior appellate Courts and applies that precedent in its determinations. The legal issues are far from complex, it would seem, at least on their face.
Factual issues are further complicated by health issues faced by one or both parties, and in this case and without intending to focus predominately upon the Respondent, issues arising from his mental health and which have created some degree of delay in the disposal of the proceedings to date. That is no criticism of the Respondent, purely a reality demonstrated by the evidence. Those difficulties have led to earlier Applications for the appointment of a Litigation Guardian (which has occurred) and vacation of earlier fixed Trial dates.
The Application for transfer has been made by the Application in a Case to which I have already referred, being an Application in a Case filed only some ten days ago. The proceedings have been on foot for 26 months prior to the date of filing of that Application, and thus some consideration of that history is relevant.
The issues that will fall for determination are largely those identified above. Firstly, the Court must determine when the parties separated and, thus, whether the matter can proceed on the basis of a finding of jurisdiction and a declaration under section 90RD of the Act, or whether a second determination must be made with respect to leave based substantially upon hardship. Subject to the determination of the leave issue, should that issue arise, there is then the substantive determination.
The three issues are made more factually complex by the absence of a Trial Affidavit filed by the Respondent. Accordingly, subject to the determination of the first two issues, which would only arise before this Court if the Application for transfer were not granted, the matter could potentially proceed on a Final and undefended basis or could require the determination of an Application for adjournment and an inevitable Application for Costs or could proceed on the basis of oral testimony.
Past history of proceedings
The proceedings were commenced by an Application Initiating Proceedings filed 16 March 2015. That Application sought certain Orders with respect to property relief. It is apparent from the consideration of the Orders sought and those sought by the Response, subsequently filed 22 October 2015, that the parties are, in essence, at odds with respect to three issues.
Firstly, the Court is asked to affect a division of the proceeds of sale of a property at Property W. The property has been sold by compulsory acquisition by the State government. The Applicant seeks an 80/20 per cent division in his favour. The Respondent seeks a division of those proceeds of sale so as to achieve a 60/40 per cent division in the respondent’s favour of what is described as “the total pool”, whatever it might be suggested that “pool” comprises.
The “pool” is suggested to comprise superannuation, hence the second issue. The Applicant seeks a declaration that each party retain such superannuation interests as they presently hold. The Respondent seeks a division and splitting Orders in his favour.
Thirdly, there is some minor dispute with respect to chattels and items of personalty.
The above pleas for relief are far from a substantial dispute. That is not to suggest that the issues are unimportant. It is not to suggest that the granting of one set of relief over another would not have significant impact upon one or both parties. They are, however, issues that are far from complex.
There have been eight Applications in a Case or Responses thereto filed to date.
An Application in a Case was filed by the Applicant on 6 May 2015 seeking certain Interim and Interlocutory relief with respect of property as well as Interim property adjustment Orders.
On 29 May 2015, some five months prior to the filing of a Response, (and thus potentially, by reference to the Federal Circuit Court Rules 2001,[24] incompetent as no final relief had, at that time, been sought), an Application in a Case was filed by the Respondent. That Application sought certain Interim and Interlocutory relief, including partial property adjustment Orders. One might infer therefrom, (and it is a matter touched upon by the Judge upon whose docket the matter then resided), that a submission to jurisdiction occurred.[25] That might be so, save and except that the Application in a Case had stated:
This claim is out of time with no special circumstances. The relationship ended in 2009 or by early 2010, never recommenced and both parties agreed on the split of major assets.
[24] See rule 4.01(3) of the Federal Circuit Court Rules 2001 providing:
(3) A person may not file an application for an interim or procedural order unless:
(a) an application for a final order has been made in the proceeding; or
(b) the application includes an application for a final order.
[25] Such submission could only arise on the basis of concession of circumstances that would permit findings pursuant to section 90RD or 44(5) of the Family Law Act 1975 as the parties cannot invest the Court with jurisdiction that is not otherwise available. Such concession is difficult to envisage in light of the statement (albeit, without evidence led in support) made by the Respondent above.
Irrespective of whether a submission to jurisdiction or a consent to leave to apply out of time occurred, a Trial Affidavit has not been filed by the Respondent to provide the evidence that might support the assertion as to the date of separation nor would it appear from the evidence of either party to date that any action has been taken to achieve let alone arrive at any such agreement as is alleged. They are, however, matters for Final determination.
On 29 May 2015 and a subsequent mention of the proceedings, 5 June 2015, both parties were legally represented by Counsel. Certain Interim and Interlocutory Orders, including Orders for partial property adjustment, were made by consent. Thus, again, one might infer a submission to jurisdiction or admission of circumstances sufficient to enliven section 44(5) of the Family Law Act 1975.
An Application in a Case was filed by the Applicant on 3 December 2015 seeking an Order for costs with respect to the earlier Interim and Interlocutory Applications. Those costs were reserved and to be determined at Hearing (i.e. today’s listing).
On 23 August 2016, a further Application in a Case was filed seeking Orders and directions regarding the preparation of Part 15 evidence.[26]
[26] That Application was, to some extent, perhaps misapprehended, as under the Federal Circuit Court Rules 2001, Part 15 does not require the Court’s consent to a party obtaining expert evidence.
On 20 September 2016, a further Application in a Case was filed, this time by the Respondent. The Respondent sought therein that the previously docketed Judge considers, “reviewing her decision to hear the Applicant’s matter even if it is out of time”. That Application is, again, misapprehended and incompetent. A Judge of the Federal Circuit Court of Australia cannot “review” their own decisions. In some circumstances, a substantial and significant change in circumstances, (which would not arise in this case), might permit a fresh determination or an Order might be made with the consent of the parties.[27]
[27] An Application to re-open made pursuant to rule 16.05 of the Federal Circuit Court Rules 2001 is, similarly, not a “review” of a decision but a setting aside of an Order to permit rehearing when an Order is made in the absence of a party.
From a consideration of the Orders that have previously been pronounced by the Court, it is apparent that leave pursuant to section 44(5) of the Act has no yet been granted. At its highest, there is a notation of 15 July 2016 reading:
Noted: Interim orders were made by consent 5 June 2015, and the Respondent has therefore given implied consent to leave being granted to the Applicant to commence property proceedings out of time in the event the Court finds in favour of the Respondent in relation to the date of separation.
It might well be suggested, although the case has not yet reached the point where submissions on the issue are necessary, that the Notation by Her Honour clearly signalled that the listing of the proceedings for Hearing was to deal with and determine the very controversy now before the Court regarding the date of separation of the parties and, subject to such finding as might be made, the issue of leave, and, further, signalling that leave might well be inferred and thus granted.
A further Application in a Case was filed on 20 December 2016, again by the Respondent, seeking the appointment of a Litigation Guardian. An Order for such appointment was made on 23 January 2017, some four months ago.
The most recent Application in a Case is that filed 12 May 2017, the subject of this determination (together with the Response thereto filed 18 May 2017).
Determination
In dealing with the Application for transfer, there is clear guidance provided by the Federal Circuit Court of Australia Act 1999, as well as by the Federal Circuit Court Rules2001.
Section 41 of the Federal Circuit Court of Australia Act 1999 provides circumstances in which proceedings must be transferred to the Family Court of Australia. It would not appear that any such circumstances arise in this case.
Section 39 of the Federal Circuit Court of Australia Act 1999 provides for discretionary transfer of proceedings. Each of the factors set out within section 39(4) of the Act must be considered, comprising:
a)The rules of Court, being the Federal Circuit Court Rules 2001;
b)Whether there are proceedings of an associated matter pending in the Family Court of Australia – there are not;
c)Whether the resources of the Federal Circuit Court of Australia are sufficient to hear and determine the proceedings. This Court’s resources are strained. However, they are sufficient to hear and determine the plea. The factual issues involved in the case are not particularly complex, certainly not out of the ordinary, and are sadly very much issues determined on a day-to-day basis within this Court.
Significant time is taken up within this Court Hearing in determining what might be described as Interlocutory jurisdictional Applications – Applications to factually determine when the parties have lived in a de facto relationship and, if so, when they separated. Such disputes are far from uncommon. Indeed, they are almost routine. Such issues are entirely absent proceedings under Part VIII of the Act, applying to marriages.
I am not concerned that the resources of this Court are insufficient to hear and determine the case. Indeed, as regards today’s listing, this is the only matter listed for Hearing, a rare and unusual event in this Court, normally over listed by at least 300 per cent. This matter has been listed as a special fixture on Judgment writing days to ensure that it is brought to a conclusion in light of the time for which the matter has been pending.
d)The Court is required to consider the interests of the administration of justice. That might well be addressed appropriately through a consideration of the Federal Circuit Court Rules 2001 to which I will now turn.
An Application for transfer is intended to be made on the first return date of proceedings or as soon as circumstances which would warrant transfer become apparent. The Application is made near the second anniversary of the proceedings. I do not seek to suggest that the Litigation Guardian has had an earlier opportunity to make such an Application. It is no criticism that the Application is made. However, the bases upon which the transfer Application is made must be considered.
The Court is referred to an earlier decision made by me, in which proceedings of a similar nature – a plea for property relief – were transferred from this Court to the Family Court of Australia. However, the circumstances of that case can be readily distinguished.
The proceedings dealt with in Yan & Yan & Anor [2014] FCCA 2519 involved proceedings which had been conducted before the Family Court of Australia for quite some time before transferred to this Court with a Notation made by the Registrar that the transfer was for the purpose of “allocating hearing dates”. The proceedings involved parties who required interpreters. The proceedings involved overseas assets and potential issues of conflict of law. It was on that basis that the matter was returned to the Family Court of Australia’s jurisdiction. Nothing of general precedent arises from that decision, being a decision of a single Judge of the Federal Circuit Court of Australia, an intermediate Trial Court which does not set precedent other than with the intention of there being consistency in decisions made by individual Judicial Officers.
I propose to consider each of the factors in rule 8.02 of the Federal Circuit Court Rules 2001.
Whether the proceedings are likely to involve questions of general importance
These proceedings do not. That is not to suggest that the questions raised in this case are unimportant, particularly to the individuals concerned. They are fundamentally important to these individuals but they are not questions of general importance which would lead to the need for or the desirability of the Superior Court hearing the case or which would potentially lead to precedent to be applied in future proceedings. This case involves a factual determination of when the parties separated and subject to that determination, the possibility of a factual determination of hardship sufficient to warrant leave to apply out of time and, subject to that determination, (if it arose), a determination of substantive property interests between parties. There is nothing of general importance raised, from a legal perspective, in any of those issues or determinations.
Whether, if the proceedings are transferred, they will be heard or determined at less cost or more convenience to the parties than if not
The file relating to these proceedings occupies two boxes and five folios of file. One shudders to think of the costs that have been incurred by the parties, particularly the Applicant, who has been legally represented throughout, has done all that is required of him and has filed material, including a number of Interlocutory Applications, to seek to advance the case to conclusion. The costs incurred to date are not presently known, but one would imagine they are far from insubstantial. The costs that would be incurred through further transfer of the proceedings at this late point in time would also be substantial. The matter is listed for Trial for today and tomorrow, thus the matter could be concluded and costs ended for both parties.[28]
[28] That is without consideration of the costs incurred by the Court.
The delay, if the proceedings are now transferred to the Family Court of Australia, would be substantial. That is no criticism of the superior Court, purely a reflection that the Family Court of Australia already have substantial work and limited resources.
Whether the proceedings will be heard earlier in the superior court
They will not. This matter is listed for Trial as a special fixture to commence today. The matter could not be heard today in the Family Court of Australia. There is some issue as to whether the matter is ready to proceed, at least from the Respondent’s perspective, as the Respondent has not filed a Trial Affidavit. As has been made clear in discourse with Counsel during submissions in support of this Application, the issue of transfer cannot be determined on the basis of a de facto Application for adjournment. They are separate Applications.
The matter will be significantly delayed if transferred.
The availability of particular procedures appropriate for the class of proceedings
The only procedure that is different between the Family Court of Australia and this Court is the application of section 90SM(9) of the Family Law Act 1975 to proceedings heard by the Family Court of Australia and which does not apply in proceedings heard by this Court; (i.e. the requirement that the parties attend a Conciliation Conference prior to Hearing).[29]
[29] That issue has the potential to create complexity if proceedings are transferred between the two Courts. It would be arguable that if proceedings were transferred by this Court to the Family Court of Australia, and even if the parties had attended Mediation within the community and using their own resources, that the parties would still need to attend a Conciliation Conference with a Registrar prior to Hearing so as to meet the requirements of section 90SM of the Act. In this Court, proceedings can be heard and determined without the parties having attended a Conciliation Conference or, for that matter, any form of appropriate Dispute Resolution or Mediation. That is not to suggest that it is desirable that parties should not attend Mediation prior to Hearing merely that it is permissible.
It would not appear that these parties have availed themselves of the opportunity to attend Mediation. That is, to some extent, understandable in light of the various twists and turns that the matter has followed, particularly arising from potential or suggested difficulties in the Respondent’s capacity to provide instructions. These parties have not, either prior to or during the currency of their litigation, availed themselves of that which might have been available to them by way of Conciliation, Mediation or other neutral third-party intervention.
One can only imagine what application of the Civil Dispute Resolution Act 2011 might have brought to these parties and their proceedings had it applied to proceedings under the Family Law Act 1975. Sadly, proceedings under the Family Law Act 1975 are excluded from the operation of the Civil Dispute Resolution Act 2011. By reference to the Explanatory Memorandum to the Civil Dispute Resolution Bill,[30] the non-application of the Civil Dispute Resolution Act 2011 to proceedings under the Family Law Act 1975 would appear to be based upon a misapprehension that pre-action procedures and the requirement to attempt pre-action facilitated negotiation are already addressed by the Family Law Act 1975 and/or the Family Law Rules 2004. However:
a)The Family Law Rules 2004 regarding pre-action procedures[31] do not apply in this Court;[32]
b)Section 60I of the Family Law Act 1975 (regarding pre-filing attendance at Family Dispute Resolution (FDR)) only applies to parenting proceedings and has no application to and thus does not compel attendance or exploration of attendance at Mediation (or FDR) prior to filing a plea for financial relief.
[30] Explanatory Memorandum, Civil Dispute Resolution Bill 2010 (Cth), see paragraphs 55 and 56(e).
[31] Certainly, the FLR contain Pre-Action Procedures. However, these are expectant or aspirational rather than a legislative mandate.
[32] Thompson & Berg [2014] FamCAFC 73.
Attendance at any form of alternate or appropriate Dispute Resolution would be a step that might assist the parties. However, such attendance would incur further cost and further delay at this point. It has not occurred to date as jurisdiction has not yet been accepted or established and, thus, the Court has no power to compel attendance.[33]
[33] Absent jurisdiction being established by section 90RD declaration or Order pursuant to section 44(5) of the Family Law Act 1975, the Court can do no more than make Orders for the protection and preservation of assets under section 114 of the Family Law Act 1975. Orders for disclosure, discovery or Dispute Resolution are not available – see Holden & Wolff [2014] FamCAFC 224 and Teh & Muir [2015] FamCAFC 224.
The matter need not be further delayed after some 26 months of awaiting determination. Once jurisdiction is established, then attendance at some form of neutral third-party intervention would be desirable but jurisdiction must first be established. The matter has consumed substantial resources, not only those of the parties but those of the taxpayer. One could not imagine that it would be conducive to the health, mental or physical, of either party for this litigation to continue. A transfer to the Family Court of Australia would inevitably lead to that concern and that is also a relevant consideration.
I am not satisfied that there are procedures within the Family Court of Australia that could assist the case anymore than those available in this Court.
Wishes of the parties
It is the Respondent’s desire to transfer the proceedings, hence the Application in a Case. However, that is a desire which has been evinced for the first time after the proceedings have been extant for 26 months. I am not satisfied that those wishes could outweigh the balance of factors referred to above. Indeed, in relation to the administration of justice as the Act and Rules require a consideration of, I am conscious of authorities such as Aon Risk Services & Australian National University [2009] HCA 27 and Haset Sali v SPC Ltd [1993] HCA 47 and the like. The Court has a responsibility not only to these litigants but to all other litigants.
This case was listed for two days of Hearing in the Sydney Registry in February only to be adjourned to a further two days of Hearing in this Registry. That is time which other litigants might have welcomed. Those days of Hearing are a substantial taxpayer funded cost estimated, for example by Parkinson,[34] to be in the vicinity of $9000 per day. More importantly, for those other litigants, they have been denied the opportunity to have their business concluded. That is not to say that these litigants are not entitled to a determination of the dispute between them. However, delay and the costs to the Court and the parties will be increased by transfer at this time.
[34] Patrick Parkinson, Can There Ever Be Affordable Family Law? University of Sydney, March 2017.
For all of those reasons, I am not satisfied that the matter can or should be transferred at this time. Accordingly, Orders are made as follows (see Orders).
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 28 June 2017
1. A marriage, whether solemnised under the Marriage Act 1961 (Cth) or not, may take diverse forms and be contracted for diverse reasons. According to popular culture, a marriage should be based on love, or at least a mutual attraction, but the reasons for a marriage may be complex. They may include financial considerations, a need for security, a spontaneous reaction to a previous disappointment or even a desire to project a particular public image. The issue was well framed by the Full Federal Court in Minister for Immigration v Dhillon[1] where Northrop, Wilcox and French JJ, referring to the remarks of Street CJ in R v Cahill[2] at 458 said, at [11]:
...people enter marriages with a variety of purposes and motives, hopes and anticipations, so that it is not possible to classify some purposes etc. as according to what may be described as 'community expectations'. It is not necessarily inconsistent with a genuine marriage relationship that it was entered into by one or both parties with a view to material benefit or advancement, as for example with the hope of becoming eligible to reside in a particular country. The true test, we would suggest the only test, is whether at the time at which the matter has to be decided it can be said that the parties have a mutual commitment to a shared life as husband and wife to the exclusion of others.
2. The remarks of Street CJ in R v Cahill were as follows:
Quite apart from matters of religious teaching, it is known that marriages are at times contracted for reasons falling short of the more generally recognized purposes of entering into that relationship. In England in bygone days there were instances of celibate marriages being contracted for the purpose of affecting rights of inheritance of titles. The same situation exists both here and elsewhere in relation to marriages affecting rights of property succession. At times, marriages were or are entered into in connection with legitimation of existing or imminent issue of a since-terminated intimate relationship. The purposes and motives, equally as the hopes and anticipations, affecting two people when they enter into a marriage, are susceptible of too wide a variation to render it possible for the criminal law to classify some as offending, and the others as according with what is meaninglessly described as “community expectation”, in so far as this may travel beyond the specifically prescribed concomitants of a marriage.
3. The point is that, just as the Tribunal cannot set itself up as the arbiter of religious faith[3] neither can the Tribunal set itself up as the arbiter of community expectations in relation to what is a genuine marriage.
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