Teh & Muir
[2015] FamCAFC 224
•2 December 2015
FAMILY COURT OF AUSTRALIA
| TEH & MUIR | [2015] FamCAFC 224 |
| FAMILY LAW – APPEAL – PROPERTY – Part VIIIAB financial agreement – Jurisdiction and power – Where the appellant seeks leave to appeal various interlocutory orders – Where the orders under appeal preserve certain assets pending the determination of issues concerning the validity of the agreement – Where the appellant’s central argument on appeal was that the primary judge did not have jurisdiction to make the orders under appeal as there was a binding financial agreement in existence – Where it has yet to be determined whether the parties were in a de facto relationship or whether the financial agreement is binding – Where the court has the power to make interlocutory asset preservation orders pending final determination – No error established – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal. |
| Family Law Act 1975 (Cth): Pt VIIIAB, ss 4(1), 31(1)(aa), 34, 90SA, 90SS, 90UC, 90UI, 114, 114(2A), 114(3)-(7) |
| Australian Securities and Investment Commission and Rich & Anor (2003) FLC 93-171 Bienstein v Bienstein (2003) 195 ALR 225 Black and Black (2008) FLC 93-357 In the Marriage of Talbot (1995) FLC 92-586 R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 Yunghanns & Yunghanns and Ors (1999) FLC 92-836 |
| APPELLANT: | Ms Teh |
| RESPONDENT: | Mr Muir (by Case Guardian) |
| FILE NUMBER: | ADC | 1922 | of | 2014 |
| APPEAL NUMBER: | SOA | 85 | of | 2014 |
| DATE DELIVERED: | 2 December 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Finn, Strickland & Ryan JJ |
| HEARING DATE: | 13 July 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 October 2014 |
| LOWER COURT MNC: | [2014] FamCA 960 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Teh in person with the assistance of a Cantonese interpreter |
| COUNSEL FOR THE RESPONDENT AND CASE GUARDIAN: | Ms Hurley |
| SOLICITOR FOR THE RESPONDENT AND CASE GUARDIAN: | Culshaw Miller Divorce & Family Lawyers |
Orders
The oral application by the appellant for an extension of time to seek leave to appeal against Orders 2, 4 and 5 made on 25 June 2014 be dismissed.
The application by the appellant for leave to appeal orders made on 30 October 2014 be dismissed.
The appellant pay the respondent's costs of and incidental to the applications referred to in these orders as agreed or assessed, such costs to be paid within twenty-eight (28) days of agreement or assessment.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Teh & Muir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 85 of 2014
File Number: ADC 1922 of 2014
| Ms Teh |
Appellant
And
| Mr Muir (by Case Guardian) |
Respondent
REASONS FOR JUDGMENT
Finn & Strickland JJ
In this matter Ms Teh (“the appellant”) seeks:
·an extension of time to seek leave to appeal certain interlocutory orders made by Dawe J on 25 June 2014; and
·leave to appeal certain further interlocutory orders made by Dawe J on 30 October 2014.
Although on one occasion the appellant was legally represented in the proceedings before Dawe J, she appeared on her own behalf before this Court, and because her first language is not English, she required the assistance of an interpreter before us.
The respondent to the appellant’s applications is Mr Muir, who
appears by a guardian appointed under State law (being his daughter,
Ms Becke). The respondent was legally represented before the primary judge and before us.Some complaint is made in the respondent’s written summary of argument
(at [1] to [7]) that there are deficiencies in the appeal book prepared by the appellant (apparently being either that certain material should not have been included or that other relevant material has not been included). It appears that there well may be some substance in this complaint.However, it is not necessary that we concern ourselves further with that complaint because we are able to determine the appellant’s applications simply by reference to the background and other apparently uncontroversial material contained in Dawe J’s reasons for judgment in relation to both sets of orders sought to be appealed.
Background
The following background facts emerge from her Honour’s reasons for judgment of 25 June 2014 and of 30 October 2014.
On 19 February 2014 the appellant and the respondent apparently entered into a binding financial agreement pursuant to s 90UC of the Family Law Act 1975 (Cth) (“the Act”). We explain at this point that that section provides for parties to a de facto relationship, while in the relationship, to enter into an agreement about their financial affairs in the event of the breakdown of the relationship; and if certain conditions are satisfied, that financial agreement will be a binding financial agreement under s 90UJ of the Act, and as such will under
s 90SA of the Act exclude the jurisdiction of the Court to entertain property or maintenance proceedings between the parties to the agreement.
The agreement entered into on 19 February 2014 provided that in the event of a breakdown of the parties’ relationship:
[T]he property and financial resources of the parties will be divided as follows:
(a)All properties shall be divided equally among the parties with each other taking 50 per cent of all properties. Regardless of whose party’s name [sic] on the title of the assets.
…
On 29 May 2014 the appellant filed an initiating application in which she sought final orders to enforce the agreement as a binding financial agreement, together with interim orders in relation to certain caveats and injunctions.
On 2 (or possibly 4) June 2014 the appellant filed an amended initiating application seeking in addition to the orders sought in her initiating application, a final order that she should receive “… a fifty-fifty per cent of property settlement in accordance with the Binding Financial Agreement, and further interim orders including injunctions in relation to [a property at
Suburb A]”.
On a date which is not clear to us, the respondent filed a response to the appellant’s initiating application seeking orders that the binding financial agreement be set aside and that the net proceeds of the sale of the property at Suburb A be paid to the respondent as well as certain interim orders.
The respondent had owned the property at Suburb A.
It is clear from Dawe J’s reasons of 25 June 2014 (at [12]) and from her reasons of 30 October 2014 (at [8]) that it is the respondent’s case that he and the appellant were not, and never had been, in a de facto relationship, and that at the time the financial agreement was signed, he did not have the mental capacity to allow him to enter into such a binding agreement. The respondent also claims that at the time the agreement was signed, the appellant had failed to disclose necessary assets, and that this would also require that the agreement be set aside.
Thus, as her Honour indicated in her reasons of 25 June 2014 (at [10]), questions of jurisdiction could arise depending on findings as to the existence of a de facto relationship and/or of a valid binding financial agreement.
The proceedings on, and orders of, 25 June 2014
At a hearing of the applications for interim orders then sought by the parties before Dawe J on 25 June 2014, the appellant appeared without legal representation and the respondent was legally represented.
In her ex tempore judgment delivered that day her Honour either refused to make, or considered it unnecessary to make, any of the interim orders sought by the appellant. No complaint is apparently sought to be raised by the appellant regarding her Honour’s dismissal of her application for interim orders on that occasion.
The interim orders sought by the respondent were described by her Honour in her ex tempore reasons (at [9]) as dealing “primarily with how the … net proceeds of sale of the [Suburb A] property are to be used, and by way of discovery and disclosure of accounts and injunctions in relation to the wife dealing with her funds…”.
It emerges from her Honour’s reasons of 25 June 2014 that the net proceeds of sale of the property totalled approximately $176,000, and as her Honour correctly calculated, fifty percent of that amount is $88,000.
Her Honour ordered (apparently over objection from the appellant) that the entire net proceeds of the sale of the property should be paid into the trust account of the respondent’s solicitors and that one half of those proceeds should be paid to the respondent “through his legal guardian to be used by the legal guardian in payment of” certain existing or future liabilities
(including the respondent’s legal fees), and that the other half of the proceeds should be held in a separate interest bearing account in the name of the respondent’s lawyer “and not dealt with subject to any further order of the Court”.
In addition to requiring the appellant to provide details of all bank accounts in her own name or in the name of her son, her Honour also granted (as Order 5) an injunction restraining the appellant from dealing with, or disposing of, any funds held in any bank account (held by her solely or jointly with another person) save for funds required for the appellant’s day to day needs or with the written consent of the respondent’s guardian.
Thus, it will be seen that by her orders of 25 June 2014 her Honour permitted the respondent to have access to half of the proceeds of sale of the
Suburb A property, and that she froze the remaining half of the proceeds of sale together with any funds in the control of the appellant save for what was needed for her day to day expenses.
The proceedings on, and orders of, 30 October 2014
On 12 August 2014 a further application in a case was filed by the appellant, on this occasion by solicitors acting on her behalf. The orders sought in this application were that the sum of $40,000 should be transferred from the funds held by the respondent’s solicitors to the trust account of the appellant’s solicitors to be held on account of the appellant’s legal fees, and that the respondent pay the appellant $713.20 per fortnight by way of urgent interim maintenance.
On 16 October 2014 a response was filed by the solicitors acting for the respondent, in which it was sought that the appellant’s application in a case filed on 12 August 2014 (together with her amended initiating application filed on 2 or 4 June 2014) be dismissed. It was also sought that the appellant be ordered to provide statements in relation to various bank accounts.
At a hearing before Dawe J on 30 October 2014 both parties were legally represented.
On that day her Honour refused to make the orders sought by the appellant in her application in a case, although she was prepared to amend the restraining order (Order 5) made on 25 June 2014 to permit the appellant to use funds in her own accounts to pay legal expenses. Her Honour did, however, make the order sought by the respondent requiring the appellant to provide statements in relation to certain bank accounts.
Thus, as a result of the orders made on 30 October 2014, half of the proceeds of the sale of the Suburb A property remained frozen, as did any funds in the control of the appellant save for what was needed for her day to day expenses and also now for her legal expenses. The appellant remained under an obligation to disclose the contents of her bank accounts, and her application for urgent interim spousal maintenance had been refused.
The essential issue sought to be raised on the proposed appeals
It emerged from the oral submissions made to us on her behalf by the appellant (and indeed also from her written summary of argument), that the essential complaint which she wished to raise on her proposed appeals against the orders made on 25 June 2014 and 30 October 2014 is that because there was in existence a binding financial agreement between herself and the respondent, the primary judge had no jurisdiction to make the orders which she did, in particular the order which froze that half share of the sale proceeds of the Suburb A property which according to the appellant’s case, she should have received pursuant to the terms of the binding financial agreement.
The difficulty which the appellant faces, however, is that the respondent disputes that a de facto relationship ever existed between himself and the appellant. If there was no such relationship, there would be no jurisdiction in a court exercising jurisdiction under the Act to determine the present dispute between the parties.
If there was a de facto relationship in existence between these parties, the respondent would nevertheless challenge the validity of the allegedly binding financial agreement, and thus the question of whether the jurisdiction of the Court to make orders concerning the financial affairs of these parties had been excluded would remain unresolved until the status of the agreement had been determined.
It has long been recognised that while the Family Court is exercising its power (which if not expressly provided for in the Act, must necessarily be implied) to determine whether or not it has jurisdiction in a particular case, it can be appropriate for it to preserve the status quo (in this case the disputed
half share of the sale proceeds) by the grant of an interlocutory injunction
(see R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 202, and Yunghanns & Yunghanns and Ors (1999) FLC 92-836).
Therefore, the primary judge did not err in making orders which would preserve the disputed funds pending determination of issues concerning the jurisdiction of the Court to make orders concerning those funds. Similarly, it could not be said that her Honour erred in making orders for disclosure by the appellant of other funds held by her; this is because such orders can be regarded as ancillary orders to asset preservation orders. However it is not clear if the appellant seeks to challenge the orders for disclosure.
The dismissal of the appellant’s maintenance claim
It is also not clear whether the appellant seeks to appeal the primary judge’s dismissal of her application for urgent interim maintenance. In these circumstances, and indeed to put the matter beyond doubt, we can only say that nothing has been raised by the appellant to suggest error on her Honour’s part when she reached the following conclusions regarding this matter:
16.In relation to the application for maintenance of the [appellant], there are again issues to be determined. The first is whether there was a de facto relationship which would make her entitled to have any order for maintenance, whether interim or final. The second, would be the needs of the [appellant] and her capacity to support herself, and most significantly in this matter, the capacity of the [respondent] to provide for her by way of maintenance.
17.The information concerning the [appellant] now indicates that she has found some employment, although on the face of it currently not sufficient to support herself. This indicates that she has the capacity to obtain employment, notwithstanding the ongoing proceedings in relation to the migration issues. The significant factor, however, is that the [appellant] has failed to establish that the [respondent], who is in care and being provided for by way of limited funds, has the capacity to make any payment by way of urgent or interim spousal maintenance.
Conclusion
For the reasons which we have given, neither proposed appeal would have any chance of success. Accordingly, no purpose would be served by granting the appellant an extension of time to seek leave to appeal the orders of
25 June 2014, nor leave to appeal the orders of 30 October 2014
(see cf. Bienstein v Bienstein (2003) 195 ALR 225 at [29]). The applications under consideration should therefore be dismissed.
Costs of the applications
Notwithstanding the appellant’s submissions concerning her difficult financial circumstances, in our opinion, an order that she pay the respondent’s costs in relation to her unsuccessful applications would be justified given that her applications have been wholly unsuccessful.
Ryan J
By amended Notice of Appeal filed on 29 April 2015 Ms Teh (“the appellant”) seeks leave to appeal various interlocutory orders made by Dawe J on 30 October 2014. By those orders, the primary judge dismissed the appellant’s application for the release of $40,000 secured by order in an interest bearing account and her application that the respondent pays her interim spousal maintenance in the amount of $713.20 per fortnight. Another order varied an interim asset preservation order made on 25 June 2014 by which the appellant was restrained from dealing with funds held in her name save in certain circumstances.
The order made on 25 June 2014 permitted the appellant to withdraw such funds as she required to meet her day to day needs and otherwise with the written consent of the respondent’s legal guardian. The effect of the variation made on 30 October 2014 was to additionally permit the appellant to withdraw funds to meet legal expenses. Otherwise, by Order 2 of 30 October 2014, the primary judge ordered the appellant to provide copies of bank statements in relation to various accounts held in her and her son’s names for the period 1 January 2014 to 15 October 2014.
The appellant also seeks an extension of time for leave to appeal against various interlocutory orders (Orders 2, 4 and 5) made by the primary judge on 25 June 2014. By those orders, one half of the sale proceeds of a property previously owned by the respondent at Suburb A were released to his case guardian on the terms contained in the order and the remaining half secured in an interest bearing account pending further order of the Court. It is from the secured amount that the appellant subsequently applied to have the $40,000 mentioned earlier released to her. The other orders made on 25 June 2014 relevant to these applications required the appellant to provide disclosure of various bank accounts and the injunction concerning the use of funds held by her to which reference has already been made.
It is the asset preservation orders that are the focus of these applications.
So as to provide context to these applications, it needs to be understood that the appellant and Mr Muir (who, by his case guardian, is the respondent to these applications) (“the respondent”), on 19 February 2014, entered into a Part VIIIAB financial agreement pursuant to s 90UC of the Act. Whether that agreement is valid, should be set aside or is binding is contentious and will be determined in the substantive proceedings.
If the agreement is binding and enforceable, the effect of clause 5.1(a) is that the appellant is prima facie entitled to receive half the net proceeds of sale of the Suburb A property. On the same basis, the effect of clause 10 (subject to s 90UI of the Act) is to oust the Court’s jurisdiction to make an order for spousal maintenance between the parties. Section 90UI preserves a spouse party to a Part VIIIAB financial agreement’s entitlement to claim spousal maintenance from the other spouse party in certain circumstances. As presently advised, I do not understand the circumstances set out in s 90UI would apply in this case.
Central to both applications and the appeals if leave is given, is the appellant’s contention that because the parties had entered into a Part VIIIAB financial agreement that is binding and the statutory preconditions for the agreement to take effect are met, the effect of s 90SA of the Act is to oust the power of a court otherwise invested with jurisdiction under Part VIIIAB to deal with those matters covered by the agreement. Thus the primary judge lacked jurisdiction to make orders altering the appellant’s entitlement to receive half the net proceeds of sale of the Suburb A property or to make orders in relation to her bank accounts and disclosure orders.
Background Facts
So as to give these applications further context, it is necessary to record a few seemingly uncontroversial facts.
The respondent is 85 years of age and resides in a nursing home. As noted earlier, the proceedings on behalf of the respondent are undertaken through his case guardian. The case guardian is the respondent’s daughter.
The appellant is 36 years of age. It would appear that in January 2010 the appellant and her son (who has no relationship to the respondent) arrived in Australia on a temporary visa.
Again, it would appear uncontentious that in January 2010 the appellant and her son commenced to live with the respondent in his home at Suburb A. It is the appellant’s contention that this is when a de facto relationship between she and the respondent commenced. Whether or not the parties lived in a de facto relationship is contentious and remains to be determined at first instance.
The parties entered into the Part VIIIAB financial agreement on 19 February 2014.
At some time between 19 February 2014 and 15 April 2014 the respondent moved into a nursing home.
In April 2014 the Guardianship Board of South Australia appointed Ms Becke legal guardian for the respondent.
The appellant filed an application in the Federal Circuit Court for judicial review of a decision of the Migration Review Tribunal which affirmed the decision of the Department of Immigration and Multicultural Affairs to deny the appellant a partner visa. The decision of the primary judge to vary the restraints on the appellant’s access to her own accounts so that she could pay legal expenses was in part made to enable the appellant to obtain legal representation to prosecute her application for judicial review.
The appellant commenced proceedings in the Federal Circuit Court on 29 May 2014 to enforce the Part VIIIAB agreement. An amended application was filed by her on 2 June 2014. Through his case guardian, the respondent filed his response and not long afterwards the proceedings were transferred to the Family Court of Australia.
Various applications for interlocutory orders were heard by the primary judge on 25 June 2014 in relation to which, on the same day, her Honour pronounced orders and delivered ex tempore reasons for judgment. The orders made that day and which are under challenge are set out below.
Orders made on 25 June 2014
2.The net proceeds of sale of the [Suburb A] property to be distributed by the conveyancers and paid to the trust account of the legal guardian’s solicitors namely the trust account of Culshaw Miller Divorce and Family Lawyers such sum to be dealt with as follows:
a)in payment of one half of the sum to the respondent husband through his legal guardian to be used by the legal guardian in payment of the items referred to in paragraphs 3.1 and 3.3 of the interim response and the sum of FORTY THOUSAND DOLLARS [$40,000.00] to be paid to a separate interest bearing account on account of the respondent husband and legal guardian’s legal fees;
b)the remaining balance (one half) to be paid to a further separate account being an interest bearing account in the name of the respondent husband’s legal guardian’s lawyer to be retained and not dealt with subject to any further order of the Court.
…
4.Within twenty-one [21] days from today the applicant wife do provide all bank account details identifying all and any accounts held in her name and in her son’s name together with the relevant account numbers to include but not limited to those identified in paragraphs 6.1 through to 6.4 of the interim response.
5.The applicant wife is restrained and an injunction is hereby granted restraining her from dealing with, disposing of, withdrawing or in any way transacting any funds held in any bank account (including any draw down facility) in the name of the applicant wife, such account held either jointly with another or in the applicant wife’s sole name SAVE AND EXCEPT funds required for the applicant wife’s day to day needs or with the prior written consent of the respondent husband’s legal guardian.
…
(Original emphasis)
The appellant appeared on her own behalf on 25 June 2014. However, by 8 August 2014, she had retained a solicitor to represent her in her dispute with the respondent.
The period within which the appellant could apply for leave to appeal as of right against the orders made on 25 June 2014 expired on 23 July 2014.
The appellant filed an application on 12 August 2014 in which she sought that of the funds secured by the orders of 25 June 2014, $40,000 be released to her solicitor on account of legal fees and that the respondent pay her $713.20 per fortnight interim spousal maintenance.
In his response to this application filed on 16 October 2014, the respondent sought that the application be dismissed and Order 4 of 25 June 2014 be amended to include reference to specific bank accounts in the name of the appellant and her son. The significance of the variation is that as a result of the proceedings in the Migration Review Tribunal the case guardian learned of various accounts owned by the appellant which the appellant had not disclosed.
The interim applications were heard by the primary judge on 30 October 2014 in relation to which she pronounced orders and gave ex tempore reasons for judgment that same day. On this occasion, each of the parties had legal representation. The orders made on 30 October 2014 are set out below.
Orders made on 30 October 2014
1.The Application in a Case filed by the Applicant Wife on 12 August 2014 is dismissed.
2.Further pursuant to paragraph 4 of the Orders made by this Honourable Court on 25 June 2014 within fourteen [14] days the Applicant Wife do provide all statements dated 1 January 2014 to 15 October 2014 in respect of any bank accounts in her name or in the name of her son [MR TEH] (also known as …) such statements to include (but not limited to) the following accounts:
2.1NAB accounts numbered:
2.1.1[#324];
2.1.2[#285];
2.1.3[#724];
2.1.4[#543];
2.1.5and any other NAB account(s) not yet disclosed;
2.2ANZ account(s) disclosed to the Migration Review Tribunal in the name of Ms [Teh] and [Mr Teh];
2.3HSBC account(s) disclosed to the Migration Review Tribunal in the name of Ms [Teh];
2.4Bendigo Bank account(s).
3.Paragraph 5 of the Orders made by this Honourable Court on 25 June 2014 is amended to read:
5.The applicant wife is restrained and an injunction is hereby granted restraining her from dealing with, disposing of, withdrawing or in any way transacting any funds held in any bank account (including any draw down facility) in the name of the applicant wife, such account held either jointly with another or in the applicant wife’s sole name SAVE AND EXCEPT funds required for the applicant wife’s day to day needs or legal expenses or with the prior written consent of the respondent husband’s legal guardian.
4. The question of costs is reserved to the final hearing.
(Original emphasis)
As has already been mentioned, the primary judge varied the orders made on 25 June 2014 concerning disclosure and the limitations on the appellant’s use of her accounts and otherwise dismissed her application.
On 27 November 2014 the appellant filed a Notice of Appeal against the orders of 30 October 2014.
An amended Notice of Appeal was filed by the appellant on 29 April 2015 which sought to challenge not only the orders of 30 October 2014, but also those of 25 June 2014. The amended Notice of Appeal was accepted but only in relation to the 30 October 2014 orders. Notwithstanding this procedural defect because the appellant sought to establish that the 25 June 2014 orders were made in excess of jurisdiction, she was permitted to present her applications on the basis that if she established that the orders were beyond jurisdiction or made without power she would be granted leave to appeal.
The Grounds of Appeal
The appellant is self-represented and prepared her grounds of appeal. The grounds upon which she relies are set out below:
1. That the Judicial Officer erred in law in ignoring my circumstance.
2. That the Judicial Officer erred in law that she misconstrued the facts and or based it decisions on erroneous findings of fact what it made a perverse or capricious manner or without regard to the material before it pursuant to section 90SA .
3. That the Judicial Officer erred in law in its interpretation and application of proper standard of assessment under section 90SA, s 90UJ, s 90UM, s 90SS and s 90SM.
4. That the Judicial Officer was unlawfully made by finding a fact made in absence of evidence to support it’s decision.
5. That the Judicial Officer was unlawfully made by taking into account irrelevant considerations in the exercise of a discretion and failing to take account of relevant consideration or the decision made on the basis of bias, procedural fairness or related grounds.
6. As the Judicial Officer was unlawfully made, in that the Judicial Officer ignored the Appellant’s evidence the Binding Financial Agreement dated on February 19, 2014.
Pursuant to Section 90 SA of the Act, a Binding Financial Agreement entered into by parties to a de facto relationship is found in Div.4 Pt VIIIAB of the Family Law Act 1975 (CT) (the Act). Where a Financial Agreement Binding entered into under this Part effectively oust the jurisdiction of the Court to make an alteration of property interests under s 90SM of the Act.
(Errors as per original)
At the hearing of the appeal, we explained to the appellant that her grounds of appeal were not drawn in a way so as to raise asserted errors of law by the primary judge. However, during oral addresses we were able to clarify that the gravamen of her challenges is encapsulated at [12] of her summary of argument where it is asserted that:
Her Honour should have found that she has no jurisdiction to proceed to alter property interests if there are [sic] a binding financial agreement.
In relation to both applications and associated appeals each was pressed on the sole basis that the primary judge erred in making the orders under appeal because the Court’s jurisdiction to alter property interests in the proceeds of sale of Suburb A and her bank account was ousted by the existence of a binding Part VIIIAB financial agreement.
Jurisdiction and power to make the orders
By s 31(1)(aa) of the Act the Court is invested with original jurisdiction to determine matters arising under that Act in respect of a de facto financial cause. The term “de facto financial cause” is defined in s 4(1) and includes:
(e) without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii) the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives);
It follows that the primary judge was invested with jurisdiction to determine the various challenges made by the respondent to the validity of the Part VIIIAB financial agreement. The appellant relied on authorities such as Black and Black (2008) FLC 93-357 and Australian Securities and Investment Commission and Rich & Anor (2003) FLC 93-171 to establish the proposition that if the agreement is binding the relevant provisions of Part VIIIAB have the effect of ousting the Court’s jurisdiction in respect of the matters covered by the agreement. I agree. However, as was explained to the appellant, whether or not the parties’ agreement is a binding Part VIIIAB financial agreement has not yet been determined and thus her central proposition is not determinative of the appeal.
Jurisdiction to determine the various issues with respect to the parties’ agreement having been established, consideration must be given to whether or not the primary judge had power to make the orders under challenge.
As I have already mentioned the appellant contends that the orders which restrict her access to her accounts and the proceeds of sale from the Suburb A property alter her interests in property. However, as was explained to the appellant during the hearing, the orders made by the primary judge are interlocutory asset preservation orders, which as her Honour said were designed to do no more and indeed do no more than ensure that the property in dispute is preserved pending final orders. Thus an essential aspect of the appellant’s challenge to the orders made by the primary judge must fail.
There are two provisions in the Act which specifically contain a power to grant injunctions in a de facto financial cause; namely ss 90SS and 114(2A).
Section 114(2A) gives the Court power to grant injunctions in a de facto financial cause other than proceedings referred to in, or relating to paragraphs (e) or (f) of the definition of de facto financial cause in s 4(1) of the Act. In other words, an order or injunction under s 114(2A) will only be able to be made in relation to a de facto relationship in respect of which a spouse maintenance order or an order or declaration about property can be made under Part VIIIAB. It follows that the powers contained in s 114(2A) are not available in this type of case. None of the other subsections of s 114 applies to proceedings with respect to a Part VIIIAB financial agreement.
Subsections 90SS(5) – (11) of the Act replicate the injunction powers contained in ss 114(3) – (7) but only in relation to de facto financial proceedings undertaken pursuant to Part VIIIAB Division 2 of the Act. These proceedings are proceedings undertaken pursuant to Part VIIIAB Division 4 and thus the powers contained in s 90SS are not available.
However, s 34 of the Act confers general power on the Court to make orders (including interlocutory injunctions) and issue writs as appropriate provided the Court has jurisdiction (which it has). By way of example, it has been held that s 34 is a statutory source of jurisdiction to make an ex parte “Anton Piller” order in appropriate cases in aid of the Court’s jurisdiction in substantive proceedings properly invoked (In the Marriage of Talbot (1995) FLC 92-586). It follows that the primary judge had power to make the various injunctions under challenge.
If there was any doubt about legislative power, I agree with Finn and Strickland JJ that the court has as an aspect of its implied powers, power to preserve the subject matter of the dispute and to make orders ancillary thereto.
The arguments advanced by the appellant must fail.
Conclusion and Costs
The appellant has failed to establish any basis upon which this Court would grant her leave to appeal in relation to the orders of 25 June 2014 or 30 October 2014. Therefore, her application for an extension of time for leave to appeal against the orders made on 25 June 2014 or leave to appeal the orders made on 30 October 2014 should be refused.
In the event the appellant failed in her endeavour to set aside the orders made by the primary judge, the respondent sought that the appellant pays his costs. The appellant opposed an order for costs and pointed to her poor financial situation as a reason why we would dismiss the respondent’s application for costs.
Although I accept that the respondent’s financial situation is difficult, I place greater weight on her having been entirely unsuccessful and am satisfied that an order for costs in favour of the respondent is appropriate.
I certify that the preceding seventy four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland & Ryan JJ) delivered on 2 December 2015.
Associate:
Date: 2 December 2015
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