Sabata and Sabata

[2012] FamCA 105

FAMILY COURT OF AUSTRALIA

SABATA & SABATA [2012] FamCA 105

FAMILY LAW – PROPERTY – DE FACTO – where the parties separated on 31 August 2007 and opted into the new de facto relationship property laws – where proceedings were initiated by applications filed within time by both parties in August 2009 – where the matter has resolved and the court is asked to make orders by consent – whether because of the lack of a timely proclamation a new application needs to be filed and, if so, whether leave should be granted to file such an application out of time – where orders can be made based upon the applications filed in 2009 – where no question of granting leave arises

Family Law Act 1975 (Cth) Sections 39A, 39B, 40(1), 40(2), 40A, 44(5), 44(6)

APPLICANT:  Ms Sabata  

RESPONDENT: Mr Sabata  

FILE NUMBER: CSC 530 of 2009

DATE DELIVERED: 7 March 2012

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 7 March 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Miller Harris Lawyers

SOLICITOR FOR THE RESPONDENT: Williams Graham Carman Solicitors

Orders

1. I mark the document that contains the orders and notations the parties wish the court to make, by consent, as Exhibit 1

2. Pursuant to s 90SM Family Law Act orders be made in accordance with paragraphs 1 to 60 and 63 to 65 of Exhibit 1.

3. Orders be made in accordance with paragraphs 61 and 62 of Exhibit 1.

4. I note the matters contained in paragraphs 66 and 67 of Exhibit 1. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sabata & Sabata has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 530 of 2009

Ms Sabata

Applicant

And

Mr Sabata

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The parties in this matter have been involved in a de facto relationship which commenced in 1985 and ended on 31 August 2007. On 18 August 2009 the applicant wife, and on 28 August 2009 the respondent husband, filed proceedings for property orders in accordance with the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (“the De Facto Act”). The parties also filed statements from their lawyers and themselves in support of their choice to opt into the De Facto Act.

2. Both applications by the applicant and respondent were filed just within the time limit provided in s 44(5) Family Law Act 1975 (“FLA”) which provides that an application may only be filed if it is made within a period of two years after the end of the de facto relationship. Section 44(6) FLA allows the court to grant leave to file an application out of time if it is satisfied that there would be hardship caused to the party.

3. On 20 February 2012 an amended initiating application was filed by the wife for property settlement and further joined companies that formed part of the Sabata Group of companies to the proceedings.  The husband has filed a new response in court this morning. The matter has settled and I am asked today to make final orders by consent.

4. The lawyers for the parties have asked that I only rely on the application filed on 20 February 2012 and the response filed today and that I make an order granting leave to initiate an application out of time pursuant to s 44(6) FLA to enable the matter to be finalised. This application was made because it is the view of the lawyers for the parties that the original initiating applications were not valid at the time that they were filed. This view was apparently taken because no proclamation was made pursuant to s 40(2) FLA to fix a date on which the Family Court, under the Family Law Act could commence exercising jurisdiction in respect of de facto property matters.

5. Section 39B FLA confers jurisdiction on the Family Court and other courts with respect to matters arising under the FLA in respect of which de facto financial causes are instituted under the Act. The exercise of that jurisdiction by the Family Court and by the Federal Magistrates Court cannot happen until a proclamation has been made (see s 40 and s 40A FLA).

6. Section 40(1) FLA says:

   The jurisdiction of the Family Court under this Act shall not be exercised except in accordance with proclamations under this section.

7. The relevant proclamation was not made as at the date the de facto relationship property laws were proposed to start, namely 1 March 2009. The proclamation was made on 11 February 2012.

8. It follows that until 11 February 2012, a court exercising jurisdiction under the Family Law Act did not have any jurisdiction to make orders in reliance upon the de facto relationship property laws. It has been announced retrospective legislation will be passed to cure the jurisdictional problem in relation to orders made prior to 11 February 2012.

9. However, s 39A FLA provides that proceedings may be instituted under the Family Law Act in respect of a de facto financial cause in the Family Court and other courts. This section is independent of s 39B FLA which gives the court power to act upon those applications.

10. Consequently, the lack of a timely proclamation does not affect the validity of applications filed prior to 11 February 2012 (but only the exercise of jurisdiction based on those applications prior to that date). Since 11 February 2012, the court has had the jurisdiction to make de facto property orders based upon an application filed prior to that date.

11. It follows therefore that the joint application of the parties to rely only on the most recent application and response is not necessary nor is the application that has been made to seek leave to extend the time limit to file the new application.

12. I find that the arrangements the parties have made to alter their property interests are just and equitable and I will make orders accordingly.

I certify that the preceding twelve (12) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 7 March 2012.

Associate: 

Date:  7.3.2012