Spears & Caro
[2020] FamCA 985
•25 November 2020
FAMILY COURT OF AUSTRALIA
Spears & Caro [2020] FamCA 985
File number(s): CAC 1318 of 2020 Judgment of: GILL J Date of judgment: 25 November 2020 Catchwords: FAMILY LAW – Interim proceedings – property – sole use and occupation – interaction between s 114AB and Division 11 – interaction between injunction under Family Law Act and family violence proceedings in the States and Territories – where husband consented to family violence order – whether the husband has taken any other action – whether the Family Law Act excludes the right to institute proceedings in respect of matters which could have been initiated by virtue of ss 68B or 114 whereby a party has consented to a family violence order pursuant to State or Territory legislation – statutory interpretation – where husband’s application is struck out by operation of s 114AB – orders permitting attendance on property made pursuant to s 79 as facilitative of the exercise of the discretion Legislation: Family Law Act 1975 (Cth) ss 79, 68B, 114, 114AB
Family Law Regulations 1984 (Cth) r 19
Family Violence Act 2016 (ACT) s 6
Cases cited: Genesalio & Genesalio [2020] FamCAFC 113
King and King (1977) FLC 90-299
L & L [2003] FMCAfam 549
Mullane v Mullane (1983) 158 CLR 436
Nicolaou & Nicolaou (unreported, delivered 1 March 1988)
Number of paragraphs: 33 Date of hearing: 17 November 2020 Place: Canberra Counsel for the Applicant: Mr Levet Counsel for the Respondent: Dr Behrens Solicitor for the Applicant: Des Leyden Law & Migration Solicitor for the Respondent: Snedden Hall and Gallop ORDERS
CAC 1318 of 2020 BETWEEN: MR SPEARS
Applicant
AND: MS CARO
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
25 NOVEMBER 2020
THE COURT ORDERS THAT:
1.The Court declares that, as a result of the operation of s 114AB of the Family Law Act 1975 (Cth) (“the Family Law Act”), the Applicant husband is not entitled to institute a proceeding for sole occupation of the property at C Street, Suburb D (“the Suburb D property”) or the property situated at F Street, G Town, NSW (“the G Town property”).
2.The husband’s sole occupancy applications are struck out and are dismissed.
3.Order 7 of the orders of 17 November 2020 is amended such that it is now in the following terms:
(a)The parties will take all steps necessary to sell the following vehicles by auction using a reserve price which will be agreed in writing between them or failing agreement as recommended by the selling agent: the motor vehicle 1; motor vehicle 2; helicopter 1 and helicopter 2; and all parts associated with these vehicles and helicopters through B Company or another agreed agent ("the selling agent"), and the husband will be responsible for initiating and progressing the sales provided that he will comply with the advice and recommendations of the agent, will authorise the agent to communicate with the wife, and will require the agent to provide the advice and recommendations the agent makes to the wife. For the purpose of this Order, the husband is permitted to be at the Suburb D property as agreed in writing with the wife through her solicitors, even if the wife remains in occupation of the Suburb D property.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Spears & Caro has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
In these interim proceedings, the parties are at issue in respect of two aspects of the property dispute between them. The first is as to the right to occupy two properties, one located at Suburb D in the ACT, the other at G Town in NSW. The second is as to an interim adjustment of property by means of the wife drawing upon the equity in the property at Suburb D. This second aspect was resolved by consent during the interim hearing.
The issue as to rights of occupation is pursued by the husband by means of an injunction pursuant to s 114 of the Family Law Act 1975 (Cth) (‘the Act’). He seeks that the wife nominate which of the two properties she will occupy, and that he will, supported by injunction, occupy the other.
The wife, however, raises a threshold issue in relation to the husband’s application. She asserts that by virtue of s 114AB of the Act the husband is barred from making such application. Section 114AB is in the following terms:
(1)Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.
(2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a)where the person instituted a proceeding:
(i)the proceeding has lapsed, been discontinued, or been dismissed; or
(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b)where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
The wife submits that a Family Violence Order (the FVO) dated 20 February 2020 made pursuant to the Family Violence Act 2016 (ACT), being a prescribed law pursuant to Regulation 19 of the Family Law Regulations 1984 (Cth), prevents the husband from making his application pursuant to s 114. The FVO is annexed to the wife’s Response to Application for Final Orders filed on 17 July 2020.
The FVO was applied for by the wife, and consented to by the husband on a without admissions basis, and contains provisions relevant to the occupation of the two properties as follows:
The respondent is prohibited from:
(a)being on the premises at C Street, Suburb D, ACT where the protected person(s) live(s);
(i)except on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting or returning persona; belongings;
(ii)except in accordance with an order or parenting plan made under the Family Law Act 1975;
(b)being on the premises F Street, G Town, NSW where the protected person is likely to be;
The issues that arise concern the construction and operation of s 114AB of the Act. Specifically, they concern questions of whether the husband’s consent to the wife’s application meets the description “or taken any other action under a prescribed law of a State or Territory” and whether such was “in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114.” (emphasis added)
The operation of s 114AB
In general terms, s 114AB limits the capacity of a party to proceedings in the family law jurisdiction to pursue injunctive relief where that person has had particular involvement in proceedings under prescribed laws of the States and Territories. Here, the limitation on the pursuit of the injunctive relief occurs in the context of proceedings in the ACT Magistrate’s Court by the wife for her protection under the Family Violence Act 2016 (ACT). Section 6 the Territory Act describes as it Objects:
The objects of this Act include—
(a)to prevent and reduce family violence; and
(b)to ensure the safety and protection of people, including children, who fear, experience or witness family violence; and
(c)to encourage perpetrators of family violence to be accountable for their conduct.
The live issue in this case is whether the restraint imposed by s 114AB applies to the sole occupancy orders pursued by the husband. That question falls to be determined on the resolution of three issues, being whether by consenting to the order the husband was taking any other action under a prescribed law, whether that action was in relation to the matter pursued by the husband in his application for a sole occupancy order, and whether the application by the husband is pursuant to s 114.
As to the last of these three matters, it was properly conceded for the husband that the sole occupancy orders that he pursues are grounded in s 114, although he later also asserted that they fall with the s 79 power by virtue of King and King (1977) FLC 90-299. However, that case was superseded by the High Court in Mullane v Mullane (1983) 158 CLR 436 where, as identified by counsel for the wife, the High Court characterised a sole occupancy order as an order pursuant to s 114 (or potentially as an order for maintenance), observing that:
In our opinion, therefore s 79 on its proper construction refers only to orders which work an alteration of the legal or equitable interests in the property of the parties or either of them. An interest in property is a right of a proprietary nature, not a mere personal right.
In this case, the initial position of the husband that the application was for sole occupancy pursuant to s 114 was correct.
As to the second matter, issue was taken as to the scope of ‘matter’ under the provision. It was submitted that the matter dealt with in the Territory court related to family violence, and was distinct from the matter being prosecuted by the husband pursuant to s 114. That issue falls to be determined on consideration of the meaning of “matter” at s 114AB and on characterisation of the Territory and the s 114 proceedings.
The meaning of “matter’ is a question of statutory construction.
In L v L, Chief Federal Magistrate Bryant (as she then was) surveyed the authorities in relation to “matter” in the context of s 114AB, and in the context of the issue of sole occupancy.[1]
[1] L & L [2003] FMCAfam 549.
In this survey, complexities were revealed in relation to the meaning of “matter”. Initially, a broad meaning was assigned to “matter” by Kay J in Nicolaou & Nicolaou (unreported, delivered 1 March 1988), described by the former Chief Federal Magistrate as “meaning a continuing controversy between the parties arising out of the breakdown of the relationship.” Such a broad construction was revealed as problematic by Brown J in Ebreo & Ebreo (unreported, delivered 1 July 1996) where her Honour observed that such would have the effect of defeating the operation of Division 11 of Part VII.
The former Chief Federal Magistrate analysed Ebreo as follows:
[21] Finally, in Ebreo & Ebreo, Her Honour considered the effect of the amendments brought into effect by the Family Law Reform Act 1995. She noted that s 114AB was amended by that Act, but only so the numbered sections in it reflected the new numbering in the Act. It now includes references to s 68B and s 114. Although it is not articulated in this case I should say that it seems to me that the injunction is sought under either of those sections. Section 68B relates to injunctions in relation to children and s 114 relates to injunctions in relation to the parties. Her Honour says, and I agree:
There is no question that the power the Court usually exercises when making an order for sole use and occupation would arise from one of those two sections.
[22] She notes in particular that Div 11 states that the division deals with the relationship between Div 11 contact orders and family violence orders. She notes that for the purposes of Div 11 an injunction under s 68B or s 114 is a Div 11 contact order. Each is also a s 68R order as defined in s 68P. She notes that in the family violence area the Acts radically alter the situation both in the Family court, and I add, in the Federal Magistrates Court and the Magistrates court. I quote from p 6 of the Reasons for Judgment:
First, section 68K requires a Court exercising a jurisdiction under the Family Law Act, to the extent it is possible consistent with the best interests of the child, to make orders consistent with domestic violence orders. An intervention order under the Crimes (Family Violence) Act 1987 (Vic) is a family violence order. Secondly, it provides that if a Court makes a section 68R contact order which is inconsistent with a family violence order, the judge or magistrate must explain to a number of people, including the person protected, the reasons for the inconsistency and the effect of the order. Thirdly, section 68S spells out what has always been the case as a matter of constitutional law; that a section 68R contact order being an order made under Commonwealth legislation prevails over an inconsistent family violence order. Fourthly, it provides in section 68T that a Court making a family violence order can on its own initiative or on application by any person make, vary, revive, suspend or discharge a Division 11 contact order.
[23] Her Honour concludes that:
What that means is that the Court is specifically authorised to make an order under section 68B or section 114 if, having heard evidence about the matter in the state application, a Family Law Act order needs to be made to ensure consistency or protection. By definition, the order made under the Family Law Act in those circumstances would be in respect of the same matter which arose in the intervention order application. In those circumstances the Court is authorised to specifically make the very orders which the findings in Nicolaou and the submissions of Counsel for the husband in this case assert, a Court exercising power under the Family Law Act has no power to make.
[24] Her Honour goes on to say at p 7:
In my view, it would not be consistent with either general rules of statutory interpretation or the clear intention of this very recently enacted legislation to read two inconsistent provisions so that the older or more general section strikes out the most recent and very specific section which clearly authorises the Court to make certain orders.
In Project Blue Sky Inc and Ors v Australian Broadcasting Authority (1998) 153 ALR 490, McHugh, Gummow, Kirby and Hayne JJ said of statutory interpretation:
[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". (Footnotes omitted)
Applying such an approach to the interaction of s 114AB and Division 11 will mean that an interpretation is to be adopted that does not, as was Brown J’s concern, result in the focussed Division 11 being cut down by the general s 114AB, but also ensuring that s 114AB is not defeated. As was observed by Brown J, much turns on the construction to be applied to “matter” and that Kay J’s move away from his original determination that “matter” related to the controversy between the parties following the marriage breakdown, was well considered.
“Matter” is protean in its meaning, and so it is unsurprising that as it arises in different contexts, it adopts different nuances, and further unsurprising that determining its content in a particular statutory context may be less than straightforward.
In this instance, it is the meaning of “matter” that enables full force to be given to Division 11 whilst maintaining the effect of s 114AB. A construction of “matter” that incorporates the cause of action pursued, understood within the cause of action’s statutory context achieves such a result.
It may be observed that when the order being dealt with under Division 11 is grounded in s 68B or s 114, Division 11 is only concerned with the order insofar as it “expressly or impliedly requires or authorises a person to spend time with a child.” The “matter” with which the order is concerned has its roots in Chapter VII, and is founded on the obligation of the court to make orders with the paramount consideration as the best interests of the child, determined in accordance with s 60CC and the Objects and Principles of Part VII. Such a matter relates to the unique statutory context and purposes of Part VII, as distinct from the Territory Family Violence legislation. While it is true that there is some overlapping of the objectives, understood in a broad sense, of Part VII and the Family Violence Act, each, for example referring to a child’s best interests as a consideration, the concern of the Family Violence Act is not the same as Part VII, and the child’s best interest is not its paramount consideration.
The result of this difference is that the “matter” of spending time with a child being addressed in Division 11 is distinct from the matter being addressed in the Territory or State legislation.
Section 114AB requires that there be a coincidence of the “matter” pursued in the State or Territory with that for which relief could be obtained under s 114 or s 68B. Such a coincidence does not occur where the relief pursued under ss 114 or 68B is that to which Division 11, insofar as it deals with time with a child, applies.
On this construction there is no impediment to the operation of Division 11 posed by s114AB, and nor does Division 11 impinge upon the operation of s 114AB. Where the injunctive relief concerns time with a child, Division 11 controls the interaction with State and Territory orders. Where the injunctive relief available from s 68B or s 114 coincides with the relief available under the State and Territory legislation, and there is a coincidence of the “matters,” the interaction is controlled by s 114AB.
Returning to this case, the “matter” being the exclusion of/sole authority to occupy premises pursuant to s 114 is the same “matter” as under the Territory law. That these are construed as the same matter is consistent with a finding to the same effect by Strickland J in Genesalio & Genesalio [2020] FamCAFC 113 where his Honour observed:
the purpose of the subsection is to prevent there then being two sets of proceedings in different courts, wherein the same matter is being litigated.[2]
[2] [2020] FamCAFC 113, [117].
Finally, in relation to the first of the three matters, s 114AB is not limited to restraining persons who have instituted proceedings, but extends the restraint to a person who has taken any other action under the relevant law. It may be observed that the phrase “or any other action” is of the widest possible import, being limited only by the requirement that the action be under the relevant law. It is a phrase that incorporates participating in litigation and, in this case, covers undertaking acts to compromise proceedings taken under the legislation.
Accordingly, the husband’s application in respect of the Suburb D and G Town properties fails and will be struck out as the application is unable to be made by him due to the operation of s 114AB.
Access to the Suburb D property
The parties resolved the balance of the application by consent, resulting in interim payments being made to each of them. However, a portion of Order 7 agreed to by them was reserved until the above s 114AB issue was resolved. That proposed order was in the following terms, with the underlined portion being reserved:
The parties will take all steps necessary to sell the following vehicles by auction using a reserve price which will be agreed in writing between them or failing agreement as recommended by the selling agent: the motor vehicle 1; motor vehicle 2; helicopter 1 and helicopter 2; and all parts associated with these vehicles and helicopters through B Company or another agreed agent ("the selling agent"), and the Husband will be responsible for initiating and progressing the sales provided that he will comply with the advice and recommendations of the agent, will authorise the agent to communicate with the Wife, and will require the agent to provide the advice and recommendations the agent makes to the Wife. For the purpose of this Order, the Husband is permitted to be at the Suburb D property as agreed in writing with the Wife through her solicitors, even if the Wife remains in occupation of the Suburb D property.
This aspect was reserved on the basis that it may be impacted by the operation of s 114AB.
As noted above, the occupation of the Suburb D property is the subject of a Family Violence Order. Order 1(a) of the orders of the Magistrates Court of the Australian Capital Territory provides as follows:
The respondent is prohibited from:
(d)being on the premises at C Street, Suburb D, ACT where the protected person(s) live(s);
(i)except on one occasion in the company of a member of the Australian Federal Police for the purpose of collecting or returning persona; belongings;
(ii)except in accordance with an order or parenting plan made under the Family Law Act 1975;
While provision is made for the operation of the Family Violence Order around the operation of the orders made under the Family Law Act, in the event that s 114AB prevents a party from making application about such a matter, the parties here are precluded from seeking the order permitting the husband to attend the property.
That question falls to be determined on the characterisation of the power being relied upon for the order. If it is reliant upon the injunctive power at s 114 or s 68B then s 114AB precludes the application. If the power relied upon arises outside s 114 or s 68B then s 114AB will not operate to preclude the application.
Here, the order in relation to allowing the husband to attend the property does not have as its source the injunctive powers at s 114 or s 68B. The order does not appear to be injunctive in its character, neither compelling nor imposing an added restraint on the husband. Rather, it is permissive in enabling the attendance. Where the orders do not appear to have the character of injunctive relief, what is determinative is that the attendance is permitted for the purpose of facilitating the exercise of the s 79 power, in facilitating the disposal of the property of the relationship in aid of an ultimate property adjustment.
As the order is facilitative of the exercise of the powers contained at s 79, the orders are an incident of the exercise of that power and the power to make them arises pursuant to s 79. This means that s 114AB does not preclude the parties’ joint application that the order be made pursuant to their consent terms, and the order may now be made.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 25 November 2020
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