RLD and CBD and Ors
[2006] FMCAfam 226
•15 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RLD & CBD & ORS | [2006] FMCAfam 226 |
| FAMILY LAW – Property proceedings – interlocutory proceedings – third parties – injunctive relief – statutory interpretation. |
| Family Law Act 1975 (Cth), ss.4(1); 79; 90AA; 90AB; 90AC; 90AD; 90AE; 90AF; 90AJ; 90AK; 114 Acts Interpretation Act 1901 (Cth), ss.15AA; 15AB |
| In the marriage of Murkin (1980) 5 FamLR 782 Hughes-Kempe and Kempe and Bocampe Pty Ltd & Ors (2005) FLC 93-237 Re Australian Federation of Construction Contractors; Ex Parte Billing (1986) 68 ALR 416 In the marriage of Warby (2001) 28 FamLR 443 Ascot Investments Pty Ltd and Harper & Or (1981) 148 CLR 337 |
| Applicant: | RLD |
| First Respondent: Second Respondent: Third Respondent: | CBD BXD CMD |
| File Number: | NCM596/2006 |
| Judgment of: | Lapthorn FM |
| Hearing date: | 24 April 2006 |
| Date of Last Submission: | 02 May 2006 |
| Delivered at: | Newcastle |
| Delivered on: | 15 May 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr. Bates |
| Solicitors for the Applicant: | BRETT WIGGINS & ASSOCIATES |
| Solicitor for the First Respondent: | Mr. Graham |
| Solicitors for the second and third Respondents: | Mr. Mason agent for principals ANTUNES Ms. Corbett |
ORDERS
That until further order the second respondent be and is hereby restrained from commencing proceedings in any court of competent jurisdiction against the applicant wife and the first respondent for recovery of the sum of $195,000 or any part thereof which the second and third respondent alleges is a loan to the applicant wife and the first respondent.
That until further order the third respondent be and is hereby restrained from taking any further steps in the proceedings commenced by the third respondent against the applicant wife and first respondent husband in the District Court Sydney in case number 1065 of 2006 and, if required by practice direction and/or rule of court make any necessary application by way of notice of motion supported by affidavit to stand over generally the proceedings commenced.
That the question of the second and third respondent’s expenses pursuant to section 90AJ of the Family Law Act 1975 (Cth) as amended (the Act) be adjourned to the hearing of the substantive proceedings pursuant to section 79 of the Act.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCM 596 of 2006
| RLD |
Applicant
And
| CBD |
First Respondent
BXD
Second Respondent
CMD
Third Respondent
REASONS FOR JUDGMENT
Introduction
I have before me an application for interlocutory relief. The applicant is RLD “the wife”. The first respondent is RLD’s husband CBD “the husband”. The second and third respondents are BXD and CMD respectively. They are the husband’s parents.
On 13 March 2006 RLD brought an application seeking parenting and property orders as well as the interlocutory relief. She seeks orders that the second and third respondents be restrained until further order from commencing proceedings in any court of competent jurisdiction against the husband and the wife for recovery of the sum of $195,000 or part thereof.
The matter came before me 22 March 2006 in a busy duty list and was adjourned for mention on 24 April 2006. On 10 April 2006 the wife filed an amended application wherein she sought the following orders:
(1)That the second respondent be restrained until further order from commencing proceedings in any court of competent jurisdiction against the applicant wife and the first respondent for recovery of the sum of $195,000 or any part thereof which the second and third respondent alleges is a loan to the applicant wife and the first respondent.
(2)That until further order the third respondent be restrained from taking any further steps in the proceedings commenced by the third respondent against the applicant wife and first respondent husband in the District Court Sydney in case number 1065 of 2006.
(3)That the second and third respondents pay the applicant wife’s costs of and incidental to these proceedings.
When the matter came on for mention on 24 April, Mr. Mason on behalf of the second and third respondents was not able to obtain instructions from his client undertaking not to continue with the District Court proceedings that had already commenced pending a determination of the applicant wife’s interlocutory relief. Given Mr. Mason’s difficulty in obtaining instructions I was concerned to proceed with the matter on that day notwithstanding that the matter had initially been set down for mention only.
I received great assistance from Mr. Bates of counsel on behalf of the wife, Mr. Mason for the second and third respondents and Mr. Graham for the first respondent when the matter came before me later in the day for hearing. I remained concerned that the parties may have been disadvantaged by the matter proceeding on that day and invited all parties to submit further written submissions in support of their case.
I have been further greatly assisted by written submissions by Mr. Bates and Ms Simone Corbett solicitor for the second and third respondents.
During the course of the hearing on 24 April I gave leave for the applicant to amend the orders sought in the amended application. The second order sought now reads:
That until further order the third respondent be restrained from taking any further steps in the proceedings commenced by the third respondent against the applicant wife and first respondent husband in the District Court Sydney in case number 1065 of 2006 and, if required by practice direction and/or rule of court make any necessary application by way of notice of motion supported by affidavit to stand over generally the proceedings commenced.
The evidence
The matter proceeded on the papers and the wife read:
a)her amended application filed 10 April 2006;
b)an affidavit by her filed 13 March 2006;
c)a financial statement by her filed 13 March 2006;
d)an affidavit by CDC filed 13 March 2006; and
e)a further affidavit by CDC filed 10 April 2006.
The first respondent has not filed a response. He did not rely on any documents but supported the second and third respondents’ case.
The second and third respondents have not filed a response, however relied on the affidavit of Simone Corbett filed 24 April 2006.
Background
The husband was born in 1968 and the wife was born in 1970. They commenced to live together in 1993 and married in 1994. They have 3 children Hannah (not her real name) born in 1995, Caleb (not his real name) born in 1997 and Lucas (not his real name) born in 1999. The parties separated in August 2005.
In September 2004 the husband and wife settled on a block of land in Cooberrie in Queensland. The bulk of the moneys for the purchase of this property, in the sum of $195,000, was provided by either the third respondent alone or by the second and third respondents together. The parties are in dispute as to whether the $195,000 was a gift to the husband and wife, as alleged by the wife, or a loan as alleged by the third respondent.
The husband and wife also have a home at Maitland in New South Wales.
On 14 March 2006, the day after the wife filed her application in this court but prior to being served with that application, the third respondent filed a Statement of Claim in the District Court of New South Wales at Sydney alleging that the applicant and first respondent in these proceedings owed her the sum of $204,646.47 being a claim for the $195,000 plus interest of $8,462.47 and various court, service and solicitors costs. In that statement of claim the third respondent pleaded that the applicant and first respondent entered into an agreement with her that she would loan them the sum of $195,000 for the purpose of making the final payment on a block of land purchased by them at Cooberrie in Queensland.
The applicant seeks to restrain the third respondent from proceeding with the District Court proceedings prior to any determination of the issue of whether or not there is a debt being determined at the same time as the substantive property proceedings between the applicant and the first respondent.
The Law
Section 114 of the Family Law Act makes provision for the court to provide injunctive relief. It is this section along with the provisions of Part VIIIAA of the Act on which the wife relies.
Section 114(1) provides:
(1) In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
(a) …
(b) …
(c) …
(d) …
(e) an injunction in relation to the property of a party to the marriage; or
(f) …
(2) …(3) A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
The injunctive relief sought in this particular case is sought against a third party rather than a party to the marriage.
Part VIIIAA of the Family Law Act came into effect on 17 December 2004.
The object of this part, as set out in section 90AA is to allow the court in relation to the property of a party of a marriage to:
a)make an order under s.79 or 114; or
b)grant an injunction under 114; that is directed to, or alters the rights, liabilities or property interests of a third party.
The definition of a third party for the purposes of Part VIIIAA is provided for in s90AB as a person who is not a party to the marriage.
Section 90AC provides:
(1) This Part has effect despite anything to the contrary in any of the following (whether made before or after the commencement of this Part):
(a) any other law (whether written or unwritten) of the Commonwealth, a State or Territory;
(b) anything in a trust deed or other instrument.
(2) Without limiting subsection (1), nothing done in compliance with this Part by a third party in relation to a marriage is to be treated as resulting in a contravention of a law or instrument referred to in subsection (1).Section 90AD extends the meaning of matrimonial cause and property. For the purposes of Part VIIIAA a debt owed by a party to a marriage is treated as property for the purposes of paragraph (ca) of the definition of matrimonial cause in Section 4(1). Section 90AD(2) provides that for the purposes of Section 114(1)(e) “property” includes a debt owed by a party to a marriage.
Section 90AE enables the court to make orders under section 79 binding a third party. This section provides:
(1) In proceedings under section 79, the court may make any of the following orders:
(a) an order directed to a creditor of the parties to the marriage to substitute one party for both parties in relation to the debt owed to the creditor;
(b) an order directed to a creditor of one party to a marriage to substitute the other party, or both parties, to the marriage for that party in relation to the debt owed to the creditor;
(c) an order directed to a creditor of the parties to the marriage that the parties be liable for a different proportion of the debt owed to the creditor than the proportion the parties are liable to before the order is made;
(d) an order directed to a director of a company or to a company to register a transfer of shares from one party to the marriage to the other party.
(2) In proceedings under section 79, the court may make any other order that:
(a) directs a third party to do a thing in relation to the property of a party to the marriage; or
(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.
(3) The court may only make an order under subsection (1) or (2) if:
(a) the making of the order is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and
(b) if the order concerns a debt of a party to the marriage–it is not foreseeable at the time that the order is made that to make the order would result in the debt not being paid in full; and
(c) the third party has been accorded procedural fairness in relation to the making of the order; and
(d) the court is satisfied that, in all the circumstances, it is just and equitable to make the order; and
(e) the court is satisfied that the order takes into account the matters mentioned in subsection (4).
(4) The matters are as follows:
(a) the taxation effect (if any) of the order on the parties to the marriage;
(b) the taxation effect (if any) of the order on the third party;
(c) the social security effect (if any) of the order on the parties to the marriage;
(d) the third party’s administrative costs in relation to the order;
(e) if the order concerns a debt of a party to the marriage–the capacity of a party to the marriage to repay the debt after the order is made;
Note: See paragraph (3)(b) for requirements for making the order in these circumstances.
Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.
(f) the economic, legal or other capacity of the third party to comply with the order;
Example: The legal capacity of the third party to comply with the order could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order despite the terms of the trust deed. If the court does so, the order will have effect despite those terms (see section 90AC).
(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order, the third party raises any other matters–those matters;
Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.
(h) any other matter that the court considers relevant.Section 90AF enables the court to make an order or injunction under section 114 that binds a third party. Although the wife’s substantive application is pursuant to section 79 the injunctive relief she seeks is pursuant to section 114.
Section 90AF provides:
(1) In proceedings under section 114, the court may:
(a) make an order restraining a person from repossessing property of a party to a marriage; or
(b) grant an injunction restraining a person from commencing legal proceedings against a party to a marriage.
(2) In proceedings under section 114, the court may make any other order, or grant any other injunction that:
(a) directs a third party to do a thing in relation to the property of a party to the marriage; or
(b) alters the rights, liabilities or property interests of a third party in relation to the marriage.
(3) The court may only make an order or grant an injunction under subsection (1) or (2) if:
(a) the making of the order, or the granting of the injunction, is reasonably necessary, or reasonably appropriate and adapted, to effect a division of property between the parties to the marriage; and
(b) if the order or injunction concerns a debt of a party to the marriage–it is not foreseeable at the time that the order is made, or the injunction granted, that to make the order or grant the injunction would result in the debt not being paid in full; and
(c) the third party has been accorded procedural fairness in relation to the making of the order or injunction; and
(d) for an injunction or order under subsection 114(1)–the court is satisfied that, in all the circumstances, it is proper to make the order or grant the injunction; and
(e) for an injunction under subsection 114(3)–the court is satisfied that, in all the circumstances, it is just or convenient to grant the injunction; and
(f) the court is satisfied that the order or injunction takes into account the matters mentioned in subsection (4).
(4) The matters are as follows:
(a) the taxation effect (if any) of the order or injunction on the parties to the marriage;
(b) the taxation effect (if any) of the order or injunction on the third party;
(c) the social security effect (if any) of the order or injunction on the parties to the marriage;
(d) the third party’s administrative costs in relation to the order or injunction;
(e) if the order or injunction concerns a debt of a party to the marriage–the capacity of a party to the marriage to repay the debt after the order is made or the injunction is granted;
Note: See paragraph (3)(b) for requirements for making the order or granting the injunction in these circumstances.
Example: The capacity of a party to the marriage to repay the debt would be affected by that party’s ability to repay the debt without undue hardship.
(f) the economic, legal or other capacity of the third party to comply with the order or injunction;
Example: The legal capacity of the third party to comply with the order or injunction could be affected by the terms of a trust deed. However, after taking the third party’s legal capacity into account, the court may make the order or grant the injunction despite the terms of the trust deed. If the court does so, the order or injunction will have effect despite those terms (see section 90AC).
(g) if, as a result of the third party being accorded procedural fairness in relation to the making of the order or the granting of the injunction, the third party raises any other matters–those matters;
Note: See paragraph (3)(c) for the requirement to accord procedural fairness to the third party.
(h) any other matter that the court considers relevant.
Discussion
The submissions of the parties are summarised below.
Submissions on behalf of the Applicant Wife
The wife submitted that the court had power to make the orders sought by her pursuant to section 90AF(1)(b) and/or (2)(b).
Although proceedings have already been commenced by the third respondent in the District Court Mr Bates submitted that there was an implied power to extend the operation of section 90AF(1)(b) to proceedings that have already been commenced. Although no authorities were cited Mr Bates relied on the opinion of Dr Altobelli in a paper entitled Family Law Amendment Act 2003 delivered at the Hunter Valley Family Law Practitioners Conference in October 2005. In that paper the learned author opined:
Section 90AF(1)(b) empowers a court to restrain the commencement of legal proceedings against a party to a marriage. It is an order in personam and thus, even if proceedings have already been commenced and are sought to be stayed, arguably section 90AF(1)(b), (2)(a) and 4(h) together with the assertion of an implied incidental power, would suffice to grant the court power in this regard.
The wife argues that a failure to invoke the powers afforded the court by Part VIIIAA in this case would unduly complicate and have the potential to delay the ultimate determination of the entitlements of each of the parties. This course would fail to achieve the expedience intended by the Parliament.
It was submitted that if the District Court proceedings continue, this court in determining the substantive proceedings would be prevented from hearing the evidence and observing the demeanour of the second and third respondents in relation to the contention of a loan to the husband and the wife and in relation to the various transactions presumably said to have occurred between the various parties. The doctrine of res judicata would prevent a re-hearing of this issue if it is otherwise determined in the District Court. This may further restrict this court’s ability to determine the issue of apportionment of liability for the alleged loan if it is found to exist.
Mr Bates argued that restraining the second and third respondents from proceeding with any action in the District Court would not preclude them from arguing their case as this court has accrued jurisdiction to hear their claim.
Submissions on behalf of the first respondent
The first respondent supported the position of the second and third respondents which is not surprising given he is their son.
Submissions on behalf of the second and third respondents
The submissions of the second and third respondents are summarised at the end of the written submissions as:
1.The power of the court to make orders of the type sought by the applicant wife (order#2) could only be under Section 90AE(2)(b), being the power to make an order that alters the rights of a creditor. In this case, the ‘right’ is the right to litigate. The right to litigate is not the same as property, even if the litigation is about property.
2.The alternate section – section 90AF is inapplicable.
3.The court should only utilise Section 90AE when it is making final orders, not interim injunctive relief.
4.The right to litigate is a substantial right and so not intended to be affected under the legislation. The restraint of the plaintiff to sue parties to a marriage is clearly a substantive right, and so outside the intention of parliament.
5.The power of the court to make orders under Part VIIIAA are only to be used in limited circumstances, when the relevant criteria have been considered (see ss4). This is the case under both Section 90AE and 90AF. Unless the court has relevant material before it and can so consider same, the court is unable to make any orders as sought.
6.The court should only make an order where it adjusts the division of property. A restraining order does not adjust property.
I turn firstly to the second and third respondent’s submission that section 90AF is inapplicable. Ms Corbett in her written submissions says:
While we note Section 90AD(1) states that a debt owed by a party to a marriage is to be treated as property for the purposes of paragraph (ca) of the definition of matrimonial causes in section 4 [to the FLA], it is submitted the right to litigate is not a debt, even if the litigation concerns or is about a debt. Accordingly, it is submitted that the right to litigate does not amount to “alteration of …property interests’ as referred to in Section 90AE(2)(b).
However, it is submitted this provision is not intended to, on an interim basis, restrain a third party from pursuing action against parties to a marriage for an alleged debt due. Section 79 is the section under which the court makes final orders for property adjustment, and accordingly it is submitted that the intention of the Parliament was to allow orders affecting third parties in limited circumstances when making section 79 orders. Interim injunctive applications are dealt with under section 114/section 90AF.
Section 90AF(2) also allows the court in proceedings under section 114 to ‘make any other order or grant any other injunction that: b. alters the rights …or property interests of a third party in relation to the marriage.’
It is submitted the relief sought is not a proceeding under section 114 because an application to restrain a third party from pursuing litigation against parties to a marriage could not fall with any of the categories listed in section 114(a)-(f), notwithstanding that section 90AD states that ‘For the purposes of paragraph 114(1)(e), property includes a debt owed by a party to a marriage.’
Accordingly, the relevant power under which the relief is sought can, it is submitted, only be section 90AE(2)(b).
Section 90AE is concerned with orders under section 79. The submission however that that section is limited to the making of final orders is incorrect as section 79(6) makes provision for the making of interim orders.
However it is clear that the wife’s application is for relief under section 114 and therefore the relevant section to be considered is section 90AF. I can not accept the submission that section 114 does not apply. Section 114(1) applies to proceedings between the parties to a marriage for an order or injunction in circumstances that arise out of the marital relationship – section 4(1)(e).
I accept the submission that a ‘right to litigate’ is not ‘a debt’ in itself even if the litigation is in relation ‘to a debt’. A debt is to be treated as property pursuant to section 90AD. However the phrase ‘in relation to’ is broad enough to cover actions in relation to the debt including the right to litigate.
Even if the right to litigate is not covered by section 114(1)(e) the list of possible injunctions set out in section 114(1) is not exhaustive. The word ‘including’ precedes the sub-paragraphs (see In the marriage of Murkin (1980) 5 FamLR 782). The powers of the court to grant an injunction are very broad so long as the proceedings come within the meaning of ‘matrimonial cause’ and the court considers the injunction proper to the matter to which the proceedings relate. I am satisfied that the alleged debt has arisen out of the marriage and clearly falls within the definition of ‘matrimonial cause’.
The Parliament clearly intended to empower the court to restrain third parties from pursuing legal proceedings against parties to a marriage. Section 90AF(1)(b) is clear and unambiguous in that regard. I accept Mr Bates’ submission that notwithstanding the fact that proceedings have already commenced there is an implied power to restrain a third party from continuing with those proceedings as it would be a nonsense to have the power pursuant to section 90AF(1)(b) to restrain the commencement of the proceedings but not to restrain the continuation of such proceedings.
Should I be wrong in that, I am also of the view that the power exits under sections 90AF(4)(h) and 90AF(2)(b). In the latter it would be the ‘right’ of the third party to continue with the proceedings that is altered not the ‘property interests’ of the third party. With respect I can not see where there would be power pursuant to section 90AF(2)(a) as asserted by Dr Altobelli in the paper already referred to.
The second and third respondents submitted that the ‘right to litigate’ was a substantive right and therefore outside the intention of the Parliament. This submission can not succeed. As I have already indicated the amendments clearly provided the court with the power to restrain a person from commencing legal proceedings – section 90AF(1)(b). There is no ambiguity here. Such a power was clearly intended by Parliament.
Section 15AA of the Acts Interpretation Act 1901 (Cth) enables a court to have regard to the object of the legislation. As I have already indicated the object of Part VIIIAA is set out in section 90AA. Ms Corbett’s submission that the Act does not expressly state the object is incorrect.
Both the wife and the second and third respondents invited the court to go beyond the words used in the legislation and determine the intention of the Parliament by intrinsic means. The court was referred to the Explanatory Memoranda and the Second-Reading Speech before the Senate on 20 August 2003.
The explanatory memoranda and the second-reading speech indicate that the purpose of PartVIIIAA was to give the court power to make orders binding third parties in order to give effect to property settlement proceedings. The amendments were not designed to affect the substantive rights of third parties such as creditors and were intended to apply to procedural rights. Her Honour Morgan J in Hughes-Kempe and Kempe and Bocampe (2005)FLC 93-237 found conflict between the explanatory memoranda and the words of the legislation.
Although there is clear conflict between some of the provisions in the legislation and the explanatory memoranda I find no ambiguity between the provisions of section 90AF and the objects set out in section 90AA. Regard to extrinsic materials should only be had when the ordinary meaning of the words used in the legislation is ambiguous. Having regard to section 15AB(3)(a) of the Acts Interpretation Act I do not intend to have regard to the Explanatory Memoranda to the amendments. The High Court in Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at p.420 in considering whether reliance could be placed on part of a second-reading speech in Parliament held:
Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable.
Her Honour Morgan J in Hughes-Kempe already referred to also questioned whether regard could be had to the extrinsic material notwithstanding the conflict she found to exist (see page 79,932)
Having found that the court has power to make the injunction sought by the wife I must now turn to a consideration of the provisions set out in sections 90AF(3) and (4).
I am satisfied that the granting of the injunction is reasonably appropriate and adapted to effect a division of property between the husband and wife. Although this court could wait until a determination of the third respondent’s claim in the District Court is determined I am satisfied that this court would be in a better position to determine the section 79 property adjustment if the claim for the debt is heard in this court using its accrued jurisdiction. The court would be in a better position to determine, having observed all of the parties in the witness box not only the issue of the debt itself but whether the call for its payment would ultimately be pursued particularly against the husband.
The court may be asked to make orders pursuant to section 90AE altering the proportion of the debt if it is found to exist. It would be more prudent to have the whole of this issue determined by one court.
I must also be satisfied that if the injunction concerns a debt it is not foreseeable that to grant the injunction would result in the debt not being paid in full. Technically the injunction sought concerns the right to bring proceedings rather than a debt but I am satisfied that the granting of the injunction sought would not result in the debt, if found to exist, not being paid. There is sufficient equity in the Cooberrie and Maitland properties for the debt to be ultimately paid.
I must also be satisfied that the third party has been accorded procedural fairness prior to the making of the injunction. I am so satisfied notwithstanding my initial concerns about the matter proceeding on to hearing when it was initially set down for mention. Giving the parties an opportunity to make written submissions allayed my concerns in that regard. The issue was not raised by any party in the course of the submissions.
I must also be satisfied that to grant the injunctive relief sought that it is proper to do so and that it is just and convenient to do so. Although the second respondent has not brought action against the husband and wife I am satisfied that an injunction should be granted directed to him not to commence proceedings. The wife alleges that the monies advanced came from both the second and third respondents. I am satisfied that he is so closely associated with the third respondent that it would be just to grant the injunction.
I am satisfied as to the convenience in granting the injunction as to do so would relieve the wife of the burden of having to undertake two independent but connected legal proceedings in different jurisdictions whereas both claims could be heard within the one in this court. Although the third respondent has commenced her proceedings in the District Court her claim can be heard in this court pursuant to the accrued jurisdiction. The Full Court of the Family Court in Warby and Warby (2001) FamLR 443 held that the court had accrued jurisdiction to determine non-federal aspects of justiciable controversies of which a family law claim or cause of action forms a part.
I have considered all the matters set out in section 90AA(4) and am satisfied that no party would be prejudiced in any of them in the event that I grant the injunctions sought.
Section 90AJ requires the court to consider any expenses incurred by a third party as a result of the granting of an injunction. No submissions were made on this issue but I am of the view that it would be appropriate to reserve this issue to the trial.
I am also satisfied on the evidence that the provisions of section 90AK do not apply.
I have not received any submissions on the validity of the amendments and therefore do not intend to make any findings in that regard. The amendments appear to tackle the issues raised by the High Court in Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337. His Honour Gibbs J (as he then was) said in that case:
The authorities to which I have referred establish that in some circumstances the Family Court has power to make an order or injunction which is directed to a third party or which will indirectly affect the position of a third party. They do not establish that any such order may be made if its effect will be to deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise be liable to perform. The general words of ss. 80 and 114 must be understood in the context of the Act, which confers jurisdiction on the Family Court in matrimonial causes and associated matters, and in that context it would be unreasonable to impute to the Parliament an intention to give power to the Family Court to extinguish the rights, and enlarge the obligations, of third parties, in the absence of clear and unambiguous words.
The orders sought in this case clearly effect a third party’s right to litigate in the jurisdiction of its choice however I am of the view that the Parliament has in clear and unambiguous words enabled this court to make the orders sought.
Conclusion
Having considered all the evidence before the court and the submissions made I am of the view that for the reasons set out above that it is just, convenient and otherwise proper to make the orders sought by the wife. Any expenses incurred by the second and third respondents as a result of the injunctions being granted will be reserved for determination at the trial of this matter.
Any application for costs may be made in accordance with Part 21.02 of the Federal Magistrates Court Rules.
I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Lapthorn FM
Associate:
Date:
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