SMITHIES v BARRY (Civil Dispute) - [2016] ACAT 31

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SMITHIES v BARRY (Civil Dispute) [2016] ACAT 31

XD 1252/2015
Catchwords: CIVIL DISPUTE – debt – question of jurisdiction – family law – domestic relationship – de facto financial cause – no jurisdiction

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 20, 39
Family Law Act 1975 (Cth), ss 4AA, 90SB, 39A, 90RC, 121
Acts Interpretations Act 1901 (Cth) ss 2B

Papers/Texts Cited: Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures Bill) 2008
Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008

Tribunal: Senior Member H Robinson

Date of Orders:  18 April 2016
Date of Reasons for Decision:         18 April 2016
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          XD 1252/2015

BETWEEN:
REBECCA SMITHIES
Applicant

AND:
DAVID BARRY
Respondent

TRIBUNAL: Senior Member H Robinson

DATE:18 April 2016
ORDER

The Tribunal orders that:

Pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 a person must not publish any evidence given at the hearings of this matter that may identify a party to the proceedings, including any evidence that identifies:
(a)the name or title of any party;
(b)the address of any premises at which a party resides or works or the locality which such premises are situated; or
(c)the interests of a party in any real or personal property.
The application is otherwise dismissed for want for jurisdiction.

The Tribunal notes that pseudonyms are used for the parties names.

………………………………..
Senior Member H Robinson

REASONS FOR DECISION

This is an application by the applicant, Ms Rebecca Smithies to recover an alleged outstanding debt from the respondent, Mr David Barry. The alleged debt is in the form of an outstanding balance on a VISA credit card, comprising expenditure for ‘living expenses’ and private school fees for the respondent’s son. These expenses were incurred during, and perhaps also shortly after, the parties were in a de facto relationship.
Although the alleged debt is in excess of $10,000, the applicant has waived the excess so as to come within the jurisdiction of the Tribunal, as provided for in subsection 20(2) of the ACT Civil and Administrative Appeals Tribunal Act 2008 (ACAT Act).
The preliminary question that has arisen is whether the proceeding falls outside the jurisdiction of the Tribunal by reason of being a ‘de facto financial cause’ under the Family Law Act 1975 (Cth) (Family Law Act).

Process to date

The applicant filed her application on 6 November 2015 and the respondent filed his response on 3 December 2015. The matter was set down for a conciliation conference on January 2016, and as that process was unsuccessful, was set down for hearing on 15 March 2016. Directions were made for the filing of submissions.
The respondent’s submissions squarely raised the issue of the Tribunal’s jurisdiction Accordingly, the hearing on 15 March 2016 was concerned with this issue. Following evidence and submissions from both parties, that hearing was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] ACAT 31
Decision Date: 18 April 2016

CaseChat Overview and Summary

In Smithies v Barry, the parties were involved in a dispute over a debt, which ultimately led to a jurisdictional question before the tribunal. The applicant argued that the monies in a joint account were solely from her redundancy payment, and thus not 'joint', while the respondent contended that the Family Law Act governed the matter. The tribunal had to determine whether it had jurisdiction to hear the dispute under its civil jurisdiction or if it fell within the Family Law Act. The Family Law Act’s amendments, which took effect on 1 March 2009, allow parties in an eligible de facto relationship to seek determinations regarding de facto financial causes. The act aims to provide de facto couples with equivalent financial resolution mechanisms to married couples and allows such proceedings to be brought in a single jurisdiction, including family courts experienced in relationship matters.

The tribunal found that the parties met the criteria for an eligible de facto relationship and that the duration of their relationship exceeded two years. Consequently, the tribunal concluded that the dispute fell within the definition of a 'de facto financial cause' under the Family Law Act. Furthermore, the act stipulates that de facto financial causes may only be instituted under the Family Law Act, consistent with the act's objective of resolving proceedings in a single jurisdiction. Therefore, the tribunal determined that it did not have jurisdiction to hear the matter under its civil jurisdiction, as it was governed by the Family Law Act.

The tribunal ordered that no party may publish any evidence given at the hearings that may identify a party to the proceedings, including any evidence that identifies the name or title of any party, the address of any premises at which a party resides or works, or the interests of a party in any real or personal property. Pseudonyms were used for the parties' names. The application was dismissed for want of jurisdiction.

Orders

Orders of the court

The Tribunal orders that:

1. Pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 a person must not publish any evidence given at the hearings of this matter that may identify a party to the proceedings, including any evidence that identifies:

(a) the name or title of any party;

(b) the address of any premises at which a party resides or works or the locality which such premises are situated; or

2. The application is otherwise dismissed for want for jurisdiction.

The Tribunal notes that pseudonyms are used for the parties names.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In response, the applicant raised numerous factual issues, including that the mortgage account was only ever in her name, and that the monies in the joint account were exclusively from her redundancy payment – in other words, notwithstanding the names of the accounts, the monies were not ‘joint’. Consideration The issue before the Tribunal is what, if any, jurisdiction it has in relation to a dispute of this nature. Can, as contended by the applicant, the Tribunal simply look to whether there is either a debt, or an enforceable agreement in relation to the payment of that debt, such that this action can be bought under the Tribunal’s civil jurisdiction? Or is this, as per the respondent’s submissions, a matter that falls within the ambit of the Family Law Act, such that the Tribunal has no jurisdiction? The Family Law Act On 1 March 2009, amendments to the Family Law 1975 (Cth)[1] governing ‘de facto financial causes’ took effect. These provisions allow parties to an ‘eligible de facto relationship’ to apply to specified Courts for a determination about a ‘de facto financial cause’. The purpose of the provisions was stated to include offering eligible de facto couples access to equivalent financial resolution mechanisms to married couples, and allowing such proceedings to be brought in a single jurisdiction, including in family courts with experience in relationship matters.[2] [1] By Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008[2] See Explanatory Memorandum to the Family Law Amendment (De Facto Financial Matters and Other Measures Bill) 2008 page 3 An ‘eligible de facto relationship’ is defined in section 4AA of the Family Law Act. The section sets out a series of criteria for considering whether a couple is in a genuine domestic relationship. I do not need to consider this definition in any depth, as there is no dispute that the parties meet the definition for at least a part of their relationship. Section 90SB of the Family Law Act sets out when a Court with jurisdiction under the Act can make an order for the maintenance or for a declaration or alteration of property interests. One criteria is that the relationship is at two years duration as per subsection 90SB(a) – that criteria is met in this case. A ‘de facto financial cause’ is defined in the interpretation section in section 4 of the Family Law Act to include “proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.” There is a significant amount of case law about the meaning of ‘property’ for the purposes of the Family Law Act. It includes assets that have been acquired by either or both parties during the relationship. It would certainly include the cash savings and financial assets of the parties. Subsection 39A(5) of the Family Law Act provides that a de facto financial cause that may be instituted under the Family Law Act must not, after the commencement of section 39A (that is, after 1 March 2009), be instituted otherwise than under the Family Law Act. In other words, if this proceeding concerns a ‘de facto financial clause’, then it may only be bought under the Family Law Act. This is consistent with the stated object of the Act of enabling proceedings to be resolved in a single jurisdiction.