Starkey and Starkey (No. 2)

[2008] FamCA 1119

FAMILY COURT OF AUSTRALIA

STARKEY & STARKEY (NO. 2) [2008] FamCA 1119

FAMILY LAW – Case guardians – injunctive relief

Family Law Act 1975 (Cth)

APPLICANT: Mr Starkey
by his Case Guardians Mr T & Mr C

RESPONDENT: Ms Starkey

FILE NUMBER: LEC 245 of 2007

DATE DELIVERED: 16 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 16 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cameron

SOLICITOR FOR THE APPLICANT: Stone & Partners

COUNSEL FOR THE RESPONDENT: Mr Burridge

SOLICITOR FOR THE RESPONDENT: Somerville Laundry Lomax

Orders

1. The Application in a Case filed by the Husband on 12 November 2008 is dismissed.

2. Paragraph 2 of the orders sought against the Second Respondent in the Further Amended Application for Final Orders filed by the Husband on 12 November 2008 is dismissed.

3. In respect of the oral application for costs made today by the Respondents, written submissions are to be sent by email to the Associate to Justice Murphy and copied to the other side as follows:

   a.Submissions on behalf of the Respondents by 4.00pm on 19 December 2008;

   b.Submissions on behalf of the Applicants by 4.00pm on 9 January 2009;

   c.Submissions in reply on behalf of the Respondents by 4.00pm on 16 January 2009.

IT IS NOTED that publication of this judgment under the pseudonym Starkey & Starkey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC245 OF 2007

MR STARKEY

Applicant Husband
by his Case Guardians Mr T & Mr C

And

MS STARKEY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 12 November 2008 the case guardians acting for the husband filed an application in a case seeking an order that:

   "Until further order an injunction restraining the second respondent [D Starkey], whether by himself, his servants or agents, from attending at the [J] Hostel at [H], and/or taking or causing the applicant [husband] to be removed from the said hostel."

2. I had previously dealt with this matter on a number of occasions, both as part of the Court's case management system within my docket and, most recently, in respect of an application by the wife to remove the case guardians.  I delivered reasons for judgment in respect of that last matter recently.

3. In those reasons for judgment I traversed at some length the history of the matter and, in particular, the history of what seems on its face to be an internecine family dispute involving various "factions" within the family, if I may so describe them, which were apparent in the proceedings in the Guardianship Tribunal and have, to one extent or another, been apparent in these proceedings.

4. Mr D Starkey is the adult son of the parties.  He is joined to these proceedings in respect of what might broadly be described as a question about whether moneys are owing to him by the parties. As such, that question is an integral part of the s 79 proceedings otherwise joined between the husband and the wife.

5. The current application in a case has as its foundation the dispute within the family just referred to.  When the matter first came before me over 12 months ago an order was made ex parte restraining the wife from doing a number of things, including:

   “Attending at the [J] Hostel at [H].”

   That particular restraint was lifted by a later order made by me.

6. The order sought in the current application is said to be founded in terms of this Court's jurisdiction and power in s 114 of the Act and, specifically, s 114(1)(a). 

7. The terms of that section are important in the determination of this application.  It provides:

   "In proceedings of the kind referred to in par (e) of the Definition of Matrimonial Cause in sub-s 4(i) 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)an injunction for the personal protection of a party to the marriage..."

8. The relevant definition of "matrimonial cause" contained in s 4 of the Act is sub-par (e), which provides as follows:

   "Proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of s 114AB)."

9. It will immediately be seen that the relevant matrimonial cause has two inherent limitations.  It prescribes that in order to be a matrimonial cause founding jurisdiction for this Court the proceedings must be "between the parties to a marriage". Secondly, that the circumstances must arise "out of the marital relationship."

10. It seems to me strongly arguable that, in this case, the subject matter of the injunction does not "arise out of the marital relationship". But there is no doubt the proceedings are not "between the parties to a marriage."  The application for injunction is in respect of a party to the marriage on one hand and, on the other, a non-party, namely the parties' eldest son.

11. A long line of authority in this Court makes it clear that in proceedings the court has a jurisdiction to make what are frequently called "non-molestation injunctions" between parties who are not parties to a marriage. The terms of the section and the relevant definition of ‘matrimonial cause’ are, in my view, clear.

12. It seems to me clear that this Court does not have jurisdiction pursuant to s 114(1)(a) to entertain the application sought.

13. During the course of argument, when a preliminary view to that effect was expressed, Mr Cameron, who appears as counsel for the case guardians, submitted that the Court had accrued jurisdiction so as to determine the application. 

14. The potential cause of action in a jurisdiction other than this one that is said to be accrued to this Court is somewhat unclear.  It was submitted that the cause of action would lie, for example, in the tort of nuisance or in the protection of a right of privacy.

15. It is not necessary for the determination of this application to explore those potential causes of action any further because I have concluded that, even if those causes of action were particularised sufficiently but be of the nature and type outlined in those broad descriptions, this Court would not have accrued jurisdiction or, perhaps more accurately, would not exercise accrued jurisdiction if it had it, in respect of any such potential cause of action.

16. The issue of accrued jurisdiction in this Court has been controversial, but it seems to me that the decision of the Full Court in Warby v Warby (2002) FLC 93-091 authoritatively determined that this Court has accrued jurisdiction.

17. In that decision, the Full Court identified a number of matters which should be taken into account in determining whether the Court should exercise any such jurisdiction.

18. Those factors include:

    ·What the parties have done.

    ·The relationship between or among them.

    ·The laws which attach right or liabilities to their conduct and relationships.

    ·Whether the claims are part of a single justiciable controversy and, in determining that question, whether the claims are "attached" and not "severable" or "disparate".

    ·Whether the claims are non-severable from a matrimonial cause and arise out of a common substratum of facts; and

    ·Whether the Court has the power to grant appropriate remedies in respect of the "attached" claims.

19. The justiciable controversy at the heart of the substantive proceedings between the parties here is a claim pursuant to s 79 of the Act for a settlement of property between parties to a very lengthy marriage.  Included within that claim is the potential for a declaration being made about a debt which may or may not be owing to the adult son Mr D Starkey.

20. In terms of the material currently before the Court, the only part of the central controversy of the parties involving Mr D Starkey is the question of whether that debt is potentially owing or not. 

21. There is no doubt on the material before me, as I indicated earlier, that there is what seams like a long-running internecine family dispute that was evident to the Guardianship Tribunal and has been evident in aspects of the evidence before me.

22. That, however, is in my view insufficient to amount to a common substratum of facts which might be said to found the accrued jurisdiction of this Court to deal with what is essentially a matter entirely divorced from jurisdiction between members of the family. 

23. The Act makes it clear by the terms of s 114(1) and s 4 that this Court does not have jurisdiction to entertain injunctions of the type otherwise contemplated by that section otherwise than between parties to a marriage. By reason of that fact alone, this Court would, in my view, be reluctant to otherwise invoke jurisdiction to make such an order in those self same circumstances. Further, Mr Burridge submits that it is plain that the Supreme Court of NSW does that that jurisdiction.

24. Whether that is right or not, it seems to me that any such claim in respect of any such cause of action which the husband through his case guardians might have as against Mr D Starkey are not "attached" and are clearly "severable" or "disparate" from the justiciable controversy confronting this Court in the substantive proceedings between the husband and the wife.

25. Even on the assumption that this Court would have accrued jurisdiction to hear what is, as yet, an unformulated cause of action in another jurisdiction I ought not exercise such jurisdiction for the reasons I have given.

26. In those circumstances, I conclude the Court does not have jurisdiction to entertain the application in a case to which reference has earlier been made. I dismiss that application.

27. I also, for the same reasons, dismiss that part of the further amended application for final orders contained at par 2 of the orders sought against the second respondent in that document.

28. Any written submissions with respect to costs be provided by the respondent wife by e-mail to my associate by 4 pm Friday, 19 December. Any submissions in response by 4 pm Friday 9 January 2009. Any submissions in reply on the law or misstatements of fact, by 4 pm Friday, 16 January.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 December 2008