Sanderson and Oliver
[2016] FCCA 412
•5 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDERSON & OLIVER | [2016] FCCA 412 |
| Catchwords: FAMILY LAW – Respondent’s Application to have Applicant’s Initiating Application struck out – in circumstances where the Applicant contemporaneously makes an Application seeking leave to proceed out of time and an Application for final relief – where the Respondent submits for this reason the Initiating Application is invalid. HELD – Application to strike out is dismissed – Procedural orders made. |
| Legislation: Administration and Probate Act 1958 (Vic), Part IV Family Law Act 1975 (Cth), ss.44 (3), 44 (5), 44 (6), 79, 90K (1)(a), (b), (e) Family Law Amendment Act 2000 (Cth), Sch. 3, Item 37 |
| In the marriage of Slater (1985) FLC 91-641 Holden & Wolff [2014] FamCAFC 224 Hayes & Eddington (No.3) [2014] FamCA 336 Madin & Palis [2015] FamCAFC 65 |
| Applicant: | MR SANDERSON |
| Respondent: | MS OLIVER |
| File Number: | MLC 2447 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 2 February 2016 |
| Date of Last Submission: | 2 February 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 5 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carlile |
| Solicitors for the Applicant: | Sutherland Lawyers |
| Queens Counsel for the Respondent: | Mr Glick QC |
| Counsel for the Respondent | Mr Schlicht |
| Solicitors for the Respondent: | Simon Nixon & Associates |
ORDERS
The Respondent’s application that the Applicant’s Initiating Application filed 26 March 2015 be struck out is dismissed.
The matter be adjourned to 22 July 2016 at 10.00am for interim hearing in respect of the Applicant’s application pursuant to section 44(6) (with an estimated hearing time of half a day).
The Applicant file and serve any further affidavit to be relied upon in relation to the application to proceed out of time by 4.00pm on 24 June 2016.
The Respondent file and serve any further affidavit to be relied upon in relation to the application to proceed out of time by 4.00pm on 8 July 2016.
There be no Order as to costs.
AND THE COURT NOTES THAT:
A.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,
the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Sanderson & Oliver is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2447 of 2015
| MR SANDERSON |
Applicant
And
| MS OLIVER |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to an Application by the de facto Husband filed in the Family Court of Australia on 26 March 2015 seeking that leave be granted pursuant to section 44 of the Family Law Act1975 (Cth) (“the Act”) to commence property proceedings, that a declaration be made that the Domestic Relationship Agreement dated March 2010 be set aside and that there be a just and equitable alteration of property interests pursuant to section 79 of the Act.
Following two directions hearings in the Family Court, the matter was listed for conciliation conference with a Registrar of that Court on
17 November 2015 and corresponding directions for disclosure and the filing of material were made.
The Respondent filed a Response and Supporting Affidavit on
16 September 2015 seeking Orders that the Applicant’s Initiating Application be struck out and that the Applicant pay the Respondent’s costs of and incidental to the application on an indemnity basis.
In her Affidavit filed 16 September 2015 the Respondent submits that the Applicant’s Initiating Application is invalid and should be struck out for want of jurisdiction. The Respondent has not otherwise articulated her case within her material filed with the Court to date.
Following email correspondence between the parties and the Court shortly prior to the conciliation conference, the matter was listed for telephone mention on the morning of 17 November 2015.
During the telephone mention it became evident that as the jurisdictional issue had not been addressed and there remained insufficient disclosure between the parties, the matter was not ready to proceed to conciliation conference that afternoon. The conciliation conference was vacated and the matter transferred to the
Federal Circuit Court on 2 February 2016 in the Duty List.
On 2 February 2016 submissions were made on behalf of the Respondent that the Initiating Application filed by the Applicant on
26 March 2015 be struck out for want of jurisdiction.
The Applicant sought a brief adjournment of the matter and orders were made for the Applicant to prepare written submissions and provide same to Chambers by no later than 4.00pm on
11 February 2016.
On 11 February 2016 the Applicant filed his written submissions with the Court.
Jurisdiction
Section 90SM of the Act permits the Court to make such orders as it considers appropriate in relation to the property of parties after the breakdown of a de facto relationship.
Section 44 of the Act provides:
(5) Subject to subsection (6), a party to a de facto relationship may apply for:
(a) an order under section 90SE, 90SG or 90SM; or
(b) a declaration under section 90SL;
only if the application is made within the period of 2 years after the end of the de facto relationship (the standard application period).
(6) The court may grant the party leave to apply after the end of the standard application period if the court is satisfied that:
(a) hardship would be caused to the party or a child if leave were not granted; or
(b) in the case of an application for an order for the maintenance of the party--the party's circumstances were, at the end of the standard application period, such that he or she would have been unable to support himself or herself without an income tested pension, allowance or benefit (emphasis added).
The Applicant’s evidence is that the parties separated in 2011.
In her Affidavit sworn 15 September 2015 the Respondent asserts that her relationship with the Applicant ended 5 years ago, being 2010.
It is therefore common ground that the Applicant has filed his application out of time and in order to pursue property proceedings under section 90SM the Applicant must first be granted leave to do so pursuant to subsection 44(6).
The Respondent
The Respondent relies upon oral submissions put on her behalf by Queen’s Counsel at the mention of this matter on 2 February 2016.
The Respondent submits that this Court does not have jurisdiction to determine an application pursuant to subsection 44(6) of the Act, seeking leave to proceed out of time, whilst it forms part of an Initiating Application which contemporaneously seeks substantive relief.
The Respondent further submits that properly drafted, the Initiating Application should seek only leave to proceed out of time pursuant to subsection 44(6) and that this issue alone should be determined as separate and preliminary to any substantive proceedings for the determination and/or alteration of property interests.
The Respondent submits that in the event the Applicant is granted leave to proceed out of time, any application for property relief should then be made as a separate application subsequent to the granting of leave.
In oral submissions the Respondent relied in part upon the absence in the wording of subsections 44(5) and 44(6) of any power conferred upon the Court to grant leave within (at the same time as) an application seeking a property order. This absence the Respondent contrasted with subsection 44(3) of the Act which relates to the time limit for instituting an application following the breakdown of a marriage.
Subsection 44(3) relevantly provides that property proceedings:
…shall not be instituted, except by leave of the court in which the proceedings are to be instituted … after the expiration of 12 months
…
The court may grant such leave at any time, even if the proceedings have already been instituted.
The final sentence of the current subsection 44(3), referenced at paragraph (20) above, was added by schedule 3, item 37 of the Family Law Amendment Act 2000 (Cth) (“the Amendment Act”).
The Respondent submits that this amendment, adding the final sentence to subsection 44(3), was remedial legislation to cure a defect which was recognised by the Family Court in the matter of
In the marriage of Slater(1985) FLC 91-641.
Following the amendment to subsection 44(3), an Applicant seeking an extension of time to file proceedings dealing with property following the breakdown of a marriage can do so contemporaneously with the substantive property application.
In Slater (supra) an application was made under subsection 44(3) for an extension of time prior to the aforementioned amendment of subsection 44(3). Queen’s Counsel for the Respondent referred the Court to the judgment of Ellis J wherein his Honour states:
Provisions such as those contained in sec. 44(3) are procedural relating to the remedy and not the right. From a reading of that section it is clear that proceedings under sec. 79 cannot be instituted, that is commenced by the filing of an application, after the expiration of 12 months after the date on which the relevant decree nisi became absolute, except by leave of the Court in which the proceedings are to be instituted.
An applicant cannot institute proceedings pursuant to sec. 79 in the same application in which he or she seeks leave to institute those proceedings At the date of the death of the deceased, leave had not been granted by the Court pursuant to sec. 44(3) to institute proceedings of a kind referred to in para. (ca) of the definition of ``matrimonial cause'' in sec. 4(1). Accordingly, at the date of death, no proceedings have been instituted pursuant to sec. 79 of the Act. The only proceedings which had been instituted were proceedings pursuant to sec. 44(3) for leave to institute such proceedings.
The Respondent submits that subsection 44(3), prior to its amendment, can be construed in a way that corresponds with the current subsection 44(5).
The Respondent also sought to emphasise the importance in subsection 44(5) having not been drafted in a way similar to the amendment made to 44(3) to cure the defect recognised in Slater.
Queen’s Counsel for the Respondent during oral submissions stated as follows:
So you can have, in the one initiating application (seeking orders pursuant to the amended s 44(3)), exactly what is sought in this court, your Honour.
In contrast, 44(5) has never been amended and it’s telling that it has not been amended.
“Subject to subsection (6), a party to a de facto relationship may apply for” those orders – and its 90SM, your Honour – the property order – “only if the application is made within the period of two years” absent the words as appear in 44(3) which were inserted as remedial legislation
…
So, your Honour, it has to be done, as … (Slater) was, under a 44(6) application as a separate standalone application.
The Respondent further submits that given the inability for this Court to determine the preliminary issue of whether leave should be granted to proceed out of time whilst it forms part of an Initiating Application for substantive relief, the Initiating Application in its entirety ought to be dismissed.
The Respondent submits that the Initiating Application is also defective in its reliance upon section 79 of the Act, as opposed to section 90SM. Therefore, in order for the matter to properly proceed, an Amended Initiating Application would need to be filed. This, the Respondent submits, cannot be done as the Court does not have jurisdiction to deal with the application in such a way and to do so would be to incorrectly assume jurisdiction where it does not exist.
Relying upon the judgment of Benjamin J of the Family Court in Hayes & Eddington (No 3) [2014] FamCA 336 the Respondent submits that where the Court lacks jurisdiction to deal with an application, the Court accordingly lacks jurisdiction to proceed with an amendment of that application and to consider any of the facts raised in the matter other than the jurisdictional fact in issue.
At paragraph 101 of Hayes & Eddington (supra) his Honour Benjamin J provided as follows:
This Court has determined that Ms Hayes commenced those proceedings in the absence of jurisdiction, and as such the second question must be considered. That is whether the filing of an amended application containing a new cause of action is the creation of a new proceeding thus providing jurisdiction to hear that cause of action or whether the only way to cure the defect was by discontinuance and the commencement of a new proceedings by way of filing a fresh application.
His Honour concludes at paragraph 116:
I determine that the attempt by Ms Hayes to re-characterise the amended initiating application as an originating application was not available to her. Once a proceeding has been commenced, without jurisdiction, that defect cannot be cured by the filing of an amended application in the very same proceeding.
And at paragraph 127:
It was not possible for Ms Hayes to cure the problem by way of an amendment of these fatally flawed proceedings and endeavour to establish a new cause of action in the context of these proceedings. A subsequent change of facts to establish the jurisdictional basis to found her application (if her facts were accepted) for orders under Part VIIIAB would need to be followed by a new proceeding. An endeavour to amend the fatally flawed proceeding is inadequate, as it is impossible to amend a nullity.
The Applicant
With respect to the jurisdictional issue, the Applicant relies upon his written submissions filed with the Court on 11 February 2016.
The Applicant submits the Court has jurisdiction to deal with the Initiating Application filed 26 March 2015 by first determining the extension of time application as a preliminary issue and if leave is granted, to then determine the substantive property application.
The Applicant further submits that any defect in the drafting of the Application can be cured by filing an Amended Initiating Application, which would be necessary if, and only if, the Court permits the current application to remain on foot and for the extension of time application to proceed as a preliminary issue.
The Applicant submits the remedy sought by the Respondent resulting in the matter being struck out and new proceedings commenced, is inefficient, unnecessary and expensive.
The Applicant also states that to proceed in the manner articulated by the Respondent would contradict the intention of Parliament. The Applicant has not pointed to any parliamentary papers or other secondary sources of authority to assist the Court in this regard.
The Applicant refers to Part IV of the Administration and Probate Act 1958 (Vic) and “many other Acts” as adopting an approach to an extension of time application in a similar vein to that sought by him.
The Applicant submits that the authorities relied upon by the Respondent are either incorrectly put, or can be distinguished by their facts.
With regard to Slater, the Applicant rejects the Respondent’s submission that the matter is authority for the proposition that the Court cannot institute and seek leave to institute proceedings at the one time. The Applicant submits that Slater instead stands only for the proposition the Court cannot make an order for final relief “in the same proceeding as an extension of time”.
The Applicant seeks to distinguish Slater on the basis of it being related to subsection 44(3) as opposed to subsections 44(5) and 44(6).
The Applicant also seeks to distinguish Slater as it relates to a deceased person, remarking that there are no deceased persons in these proceedings and that this is significant due “to the inability to remedy the defect”. The Applicant does not refer to any excerpts from the judgment of Slater in support of this distinction and provides no evidence as to whether the distinction is pertinent to the issue being determined by this Court.
With regard to Hayes & Eddington, the Applicant states that it is “completely distinguishable” from the present case as the Court does here have jurisdiction to consider the extension of time application. It therefore follows in the Applicant’s submission that there does not need to be any amendment to the Applicant’s Initiating Application in order for the matter to fall within the jurisdiction of this Court.
Conclusion
The issues presently before the Court for determination are as follows:
(a)
Is the Initiating Application filed by the Applicant on
26 March 2015 defective by reason of it seeking an extension of time pursuant to section 44(6) of the Act together with a substantive application for property orders and a declaration pursuant to section 90(K) of the Act; and
(b)If the Initiating Application is defective what remedies can be employed to cure this defect.
Both the Applicant and the Respondent rely in part upon a distinction that can be drawn between sections 44(3) and 44(5) of the Act.
The Respondent submits that while section 44(3) was amended by remedial legislation contained within the Amendment Act to cure “a defect” recognised in the matter of Slater, no such amendment has been made to section 44(5).
At the time Slater was heard, Justice Ellis held that subsection 44(3) as it was then worded, prevented an application for leave to proceed out of time being made within the same application for substantive property orders following the breakdown of a marriage.
Following the insertion of the following clause at the end of subsection 44(3), those applications may now be made contemporaneously:
The court may grant such leave at any time, even if the proceedings have already been instituted.
No such clause has been included in subsection 44(5). The Respondent submits that this absence is pertinent to the question of whether Parliament intended a party to be able to seek leave to institute proceedings out of time pursuant to section 44(6) and make an Application for Orders in the same Application.
The Applicant submits that the interpretation of subsection 44(3) in Slater cannot be applied in these proceedings as the decision related to section 44(3) as it then was and is not relevant to an interpretation of section 44(6).
In Madin & Palis [2015] FamCAFC 65 the Full Court determined the manner in which the two year period within which an Application for an Order pursuant to sections 90SE, 90SG, 90SM or a declaration under section 90SL is to be brought under section 44(5) of the Act.
Whilst not determinative of the outcome of the appeal, grounds (3) and (4) of the Appeal were considered by the Court in obiter dicta as follows:
23. Before concluding our consideration of this appeal, we mention that there were two further grounds of appeal (Grounds 3 and 4). These grounds were directed to Judge Howard’s refusal to allow the appellant to rely on an application, which was contained only in written submissions, for leave under s 44(6) of the Family Law Act to file out of time an initiating application, and to his Honour’s requirement that a separate application seeking such leave and a supporting affidavit to be filed.
24. Given that we have decided that the appellant’s initiating application had been filed within time, and accordingly, no question of leave to file such an application out of time could arise, it is strictly unnecessary that we consider Grounds 3 and 4.
25. Nevertheless we are compelled to say that we do not agree with his Honour’s view, that having decided that the initiating application had been filed out of time, he could then not deal with an application made in written submissions, or indeed made orally, for leave to file such an application out of time. Such a course would have saved the resources of both the parties and the court, and we do not regard the decisions of Hedley & Hedley (2009) FLC 93-413 or Slater & Slater (1985) FLC 91-641 as posing any bar to such a course.
…
26. Finally, we emphasise that this decision is concerned only with the operation of s 44(5) of the Family Law Act, and that care should be taken in relying on this decision when applying or interpreting any other legislative provision concerning time periods. The application of each provision will depend on its own particular wording.
In the matter of Holden & Wolff [2014] FamCAFC 224 the Full Court held that a court could not make orders requiring the provision of financial information before it had determined the threshold issue of whether the court had jurisdiction to hear an Application for financial relief.
Briefly, by way of background, the parties were in a de facto relationship from 2001. There was a dispute between the parties as to whether the relationship ended in 2006 or 2010.
In 2012 the de facto Wife filed an Application seeking property orders. Given the dispute as to the date of separation, the presiding Federal Magistrate conducted a hearing to determine whether the Court had jurisdiction to hear the Respondent’s Application. His Honour found the de facto relationship to have ended in January 2006 and that the Court therefore had no jurisdiction to determine the property application.
The de facto Wife successfully appealed his Honour’s decision and on
6 May 2015 the Full Court remitted the matter to the Federal Magistrate’s Court for rehearing (Wolff & Holder [2014] FamCAFC 74).
On 24 July 2014 the de facto Wife filed an Application in the Federal Circuit Court seeking urgent financial orders. The matter came before Judge Henderson on 30 July 2014. Her Honour having identified that she would first need to identify whether the Court had jurisdiction to hear the Application, listed that matter and the de facto Wife’s Application for urgent spousal maintenance for hearing in October. The clear intent of her Honour was that if she found the Court had jurisdiction she would determine the de facto Wife’s urgent Application without delay.
Her Honour made Orders listing the matter. She also made Orders for the de facto Husband to file Affidavits, an updated family report to be prepared and for the filing of valuations of any assets in dispute.
The de facto Husband appealed her Honour’s Orders that required him to provide financial information on the basis the Court had no power to make such Orders until the jurisdiction of the Court had been determined.
Citing with approval the Full Court decision of Norton & Locke (2013) FLC 93-567 the appeal was upheld.
The relevance of these two decisions to this matter is that in both appeals the Full Court did not find that the de facto Wife could not make Application for property orders whilst the issue of whether the Court had jurisdiction was live before the Court. Rather the Full Court confirmed the Court must determine the issue of jurisdiction and only when the Court is seized of jurisdiction can it hear wider financial issues.
Whilst that Court held in Slater that in respect of subsection 44(3) (prior to its amendment) the dual applications could not proceed either together or successively in the one proceeding, it does not follow that an application pursuant to subsection 44(6) is “fatally flawed” and must be struck out where it attaches to an application for substantive property orders.
The recent Full Court authorities are such that I am satisfied that the Applicant can file an Initiating Application that seeks leave to issue proceedings pursuant to section 44(6) of the Act and also that Orders be made for substantive relief.
By proceeding to determine the Application for leave to proceed out of time following the breakdown of a de facto relationship, the Court is not assuming jurisdiction to proceed to hear the substantive application.
To require an Applicant to file a further Initiating Application in the event the leave to proceed out of time application is successful would result in the Applicant incurring unnecessary costs and would further delay the hearing of the application for substantive relief.
In these circumstances the Application by the Respondent that the Initiating Application filed 26 March 2015 be struck out is dismissed.
Finally, I note the very sensible conclusion that the agreement entered into between the parties pursuant to the Relationships Act 2008 (Vic) in March 2010 is not enforceable in this Court and that if the Applicant’s Application for leave to proceed out of time is successful, it does not oust the jurisdiction of this Court.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 5 April 2016
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