Vang & Chung (No 3)
[2024] FedCFamC1A 199
•30 October 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Vang & Chung (No 3) [2024] FedCFamC1A 199
Appeal from: Vang & Chung (No 3) [2024] FedCFamC1F 101
Vang & Chung (No 4) [2024] FedCFamC1F 390
Appeal numbers: NAA 69 of 2024
NAA 70 of 2024File number: SYC 1433 of 2020 Judgment of: MCCLELLAND DCJ, CAREW & STRUM JJ Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – LEAVE TO APPEAL – INTERLOCUTORY ORDERS – Applicant seeks leave to appeal interlocutory orders of primary judge – Where conjunctive test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 not satisfied – Appeal dismissed.
FAMILY LAW – APPLICATION IN AN APPEAL –FURTHER EVIDENCE – Applicant seeks leave to adduce further evidence – Section 35(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) considered – Where proposed material does not demonstrate error or provide material for re-exercise of discretion – Application in an Appeal dismissed.
FAMILY LAW – APPEAL – DISCRETIONARY JUDGMENT – Where applicant asserts bias and denial of procedural fairness, failure to give reasons, failure to consider evidence, and failure to give proper weight to evidence – All grounds of appeal found to be without merit.
FAMILY LAW – JURISDICTION – Where the primary judge found there was no jurisdiction in the Federal Circuit and Family Court of Australia (Division 1) to entertain applicant’s application for spousal maintenance (including leave to apply out of time) – No grounds of appeal directed at this issue – Consideration by majority of whether ss 25 and 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) preclude jurisdiction where proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) is subsequently amended to include another cause of action – Consideration by majority of jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) to entertain a fresh cause of action in proceedings transferred from the Federal Circuit and Family Court of Australia (Division 2) – Consideration by majority of whether applications constituted a single justiciable controversy within the Court’s associated jurisdiction under s 29 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
FAMILY LAW – COSTS – Appeal wholly unsuccessful – Applicant ordered to pay costs of first and second respondents.
Legislation: Australian Constitution Ch III
Family Law Act 1975 (Cth) Pts VII, VIII, ss 4, 31(1)(a), 33 (repealed), 39, 44, 74, 79, 80, 90SE, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 5, 7, 25, 26(2), 28(3)(e), 29, 35(b), 43, 50, 51, 67, 132(1)(a), 149
Federal Court of Australia Act 1976 (Cth) s 32
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.01, 13.39, 15.05
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02(1)(a)
Real Property Act 1900 (NSW) s 57(2)(b)
Cases cited: Abdo and Abdo (1989) FLC 92-013; [1989] FamCA14
Akbar & Gandega (2023) 67 Fam LR 593; [2023] FedCFamC1A 174
Bienstein v Bienstein (2003) FLC 93-124; [2003] HCA 7
Bing and Bing (2007) FLC 93-318; [2007] FamCA 418
Bosanac v Commissioner of Taxation (2022) 275 CLR 37; [2022] HCA 34
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Camden Pty Ltd & Laue (2018) FLC 93-840; [2018] FamCAFC 91
Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Electoral Commissioner of the Australian Electoral Commission v Laming (2024) 304 FCR 561; [2024] FCAFC 109
Emamy and Marino (1994) FLC 92-487; [1994] FamCA 166
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Frost (Deceased) & Whooten (2018) FLC 93-860; [2018] FamCAFC 177
Gilford & Cavaco (2024) FLC 94-183; [2024] FedCFamC1A 55
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hamish & MacPherson [2023] FedCFamC1A 74
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Ivanovic v Ivanovic (1996) FLC 92-689; [1996] FamCA 41
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595; [1996] HCA 2
Pandya & Pandya [2023] FedCFamC1A 85
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7
R v Ross-Jones and Marinovich; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Re Judiciary and Navigation Acts (1921) 29 CLR 257; [1921] HCA 20
Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; [2002] HCA 16
Rigby & Olsen [2021] FedCFamC1A 46
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Simonds (Deceased) & Coyle (2019) FLC 93-895; [2019] FamCAFC 47
Skelton and Lindop (2022) 64 Fam LR 617; [2022] FedCFamC1A 47
Smith v Smith (1986) 161 CLR 217; [1986] HCA 36
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166
Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
Tudor and Tudor (1992) FLC 92-273; [1991] FamCA 89
Veale v Coleman (2024) 304 FCR 182; [2024] FCAFC 83
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Yule v Junek (1978) 139 CLR 1; [1978] HCA 4
Zschokke and Zschokke (1990) FLC 92-693; [1996] FamCA 79
Number of paragraphs: 206 Date of hearing: 25 June 2024 Place: Sydney The Applicant: Litigant in person Counsel for the First Respondent: Ms Tabbernor Solicitor for the First Respondent: Broun Abrahams Burreket Counsel for the Second Respondent: Mr Rogan Solicitor for the Second Respondent: Mangioni Biggs + Co ORDERS
NAA 69 of 2024
NAA 70 of 2024
SYC 1433 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS VANG
Applicant
AND: MR CHUNG
First Respondent
MR D
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ, CAREW & STRUM JJ
DATE OF ORDER:
30 OCTOBER 2024
THE COURT ORDERS THAT:
1.The Applications in an Appeal filed 12 June 2024 in Appeal NAA 69 of 2024 and in Appeal NAA 70 of 2024 be dismissed.
2.The Applications for leave to appeal in Appeal NAA 69 of 2024 and NAA 70 of 2024 be dismissed.
3.Appeal NAA 69 of 2024 and Appeal NAA 70 of 2024 be dismissed.
4.The applicant pay the costs of the first respondent of and incidental to the appeals fixed in the sum of $15,000.
5.The applicant pay the costs of the second respondent of and incidental to the appeals fixed in the sum of $7,500.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vang & Chung has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ & STRUM J:
INTRODUCTION
The applicant wife, who is presently self-represented, has filed two (Amended) Notices of Appeal (NAA 69 of 2024 and NAA 70 of 2024), drawn by her (as are her Summaries of Argument), both sealed on 28 May 2024, seeking leave to appeal from certain orders made by the primary judge on 28 February 2024 (“the February Orders”) and 4 March 2024 (“the March Orders”) respectively. The grounds of appeal in both (Amended) Notices of Appeal, and the respective Summaries of Argument in support thereof, are in identical terms. Further, she has filed two Applications in an Appeal on 12 June 2024, one in each of the appeals, again in identical terms to each other, seeking leave to adduce further, and extensive, evidence.
The primary appeal, NAA 69 of 2024, relates to Order 1 of the February Orders, which dismissed paragraphs 1–9 of the applicant’s (Amended) Application in a Proceeding filed on 22 January 2024. Paragraphs 10–11 thereof were listed for hearing before the primary judge on 4 March 2024.
The second appeal, NAA 70 of 2024, relates to Orders 2(2)–(4) and 9 of the March Orders. The first two of those orders required the applicant to provide further and better particulars and to file any Amended Initiating Application setting out the precise orders sought by her. The third of those orders required each of the first respondent husband and the second respondent (his father, who had been joined by Order 2(1) of the March Orders, pursuant to the applicant’s (Amended) Application in a Proceeding) to file and serve Points of Defence to her Points of Claim and a Response to any Amended Initiating Application filed by her. The fourth of those orders otherwise dismissed her (Amended) Application in a Proceeding. The utility of, and reason for, the application for leave to appeal (and any consequent appeal) from Orders 2(2)‑(4) of the March Orders is unclear. They are entirely procedural in nature and any asserted error in relation thereto – which, in any event, is similarly unclear – manifestly does not meet the conjunctive test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 (“Medlow”). None of the grounds of appeal nor the Summary of Argument in support thereof relate to or address the March Orders. For those reasons, the application for leave to appeal in the March Orders must be dismissed.
The gravamen of the primary appeal is the dismissal by the primary judge of paragraphs 1–9 of the applicant’s (Amended) Application in a Proceeding filed on 22 January 2024. Paragraph 10 thereof sought the joinder of the second respondent which was granted by Order 2(1) of the March Orders. Paragraph 11 thereof sought the stay of Order 2(e) previously made by the primary judge on 14 November 2023 pending the outcome of an appeal therefrom. However, that appeal was subsequently dismissed by consent on 29 February 2024, such that, by 4 March 2024, paragraph 11 was otiose.
By reason of the (Amended) Notice of Appeal and the Summary of Argument, which were both drawn by the applicant in person, and her oral submissions in person before us, all of which have been of little assistance in the determination of her application for leave to appeal (and any consequent appeal), as well as the primary judge’s jurisdictional ruling, which we consider to have been arguably wrong (albeit not the subject of a ground of appeal), our reasons for judgment are necessarily long.
BACKGROUND
The applicant and the first respondent commenced cohabitation in the first half of 2015, and they were married in mid-2017. The applicant claims that they separated in August 2018, whereas the first respondent claims that separation occurred on or about 29 September 2017, only a few months after their marriage. On any view, the period of their cohabitation was relatively short.
On 3 March 2020, proceedings for alteration of interests in property under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were instituted in the Federal Circuit Court of Australia (now known as the Federal Circuit and Family Court of Australia (Division 2)) by the applicant against the first respondent.
On 15 December 2022, the proceedings were transferred to the Federal Circuit and Family Court of Australia (Division 1).
Following the transfer, the applicant filed numerous Applications in a Proceeding on 15 May 2023, 12 June 2023 and 6 September 2023 seeking a range of orders, including litigation funding, spousal maintenance, partial property settlement and the joinder of the (now) second respondent.
On 23 October 2023, those applications were listed for interim hearing on 22 January 2024.
On 22 January 2024, the applicant filed her (Amended) Application in a Proceeding, consolidating the relief sought by her and, accordingly, the three earlier Applications in a Proceeding were dismissed.
In summary, paragraphs 1–9 (the dismissal of which is the subject of this appeal), sought a raft of interim orders. Primarily, she sought an order for the payment to her of the rental income from the property at E Street, Suburb F (“E Street”), registered in the name of the first respondent and subject to a mortgage registered in favour of the second respondent, until settlement of the sale thereof, less any management costs, together with a lump sum payment to her of $856,000 from the proceeds of sale. In the event that the Court made those proposed orders, she sought that the categorisation of part or all of the moneys paid to her, whether as partial property settlement, spousal maintenance, “litigation funding and or cost [sic]”, be reserved to trial. In the alternative, she sought a spousal maintenance payment of $1,000 per week until the settlement of the sale of E Street, and thereafter as litigation funding. Upon settlement of the sale, she sought a payment of $856,000, with $111,000 to be characterised as lump sum spousal maintenance and the balance as partial property settlement for litigation funding. Lastly, but necessarily, she sought leave to commence proceedings for spousal maintenance out of time.
One of the main issues in dispute between the applicant, the first respondent and the second respondent is the interest in E Street.
The first respondent was previously the registered proprietor of another property in Suburb F, situated at H Street (“H Street”). That property was purchased for $20 million in 2012, when he was 21 years of age and before he had met the applicant. Without finally determining the issue, the primary judge accepted that the first respondent could not have provided the funds for the purchase of H Street and that it was likely those funds were provided by Y Pty Ltd, which was likely owned and controlled at the time by the second respondent.
H Street was subsequently sold, with settlement occurring in about mid-2017. The first respondent annexed to his affidavit a deposit slip and a copy of a bank cheque showing that the sum of $21,229,090.92 was paid from the proceeds of sale to the second respondent personally, and not Y Pty Ltd. However, the applicant claims that the first respondent beneficially owned the sale proceeds.
Roughly contemporaneously with the settlement of the sale of H Street, E Street was purchased for $10.5 million and registered in the name of the first respondent. His evidence was that the purchase price and other acquisition costs, totalling $11.8 million, were met by a loan from the second respondent. A mortgage in favour of the second respondent is registered on the title to E Street, on its face securing a loan of the purchase price advanced by him. The applicant seeks to impugn the validity of the mortgage as a sham and to set it aside.
On 4 August 2023, the first respondent was served with a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) on behalf of the second respondent, by reason of default in making mortgage payments, requiring repayment of $14,864,805. The second respondent subsequently exercised a statutory power of sale and E Street was sold at auction with a sale price of $14,215,000.
An Order made on 14 November 2023, which was the subject of the applicant’s previously dismissed appeal, provided for the release of 50 per cent of the net proceeds of sale of E Street to the second respondent, with such amount “not to exceed the amount of the loan owing and outstanding” to him. The primary judge observed at [26] of the reasons for judgment delivered on 28 February 2024 that “[i]n light of the sale price achieved [in late] 2023, there appears to be no possibility that 50 per cent of the net proceeds of sale will exceed the mortgage debt, and the balance will be held in trust by the solicitors of the [second respondent]”.
The primary Judge recorded at [31] that counsel for the applicant articulated her likely claim to be that Y Pty Ltd was the alter ego of the first respondent; that the second respondent’s mortgage over E Street was not genuine and was liable to be set aside; and, consequently, that the Court should conclude that the proceeds of sale of E Street are beneficially owned by the first respondent.
THE PRIMARY JUDGE’S DECISION
The primary judge said at [35] that “[d]elaying until the final hearing the characterisation of an interlocutory payment to a party, although often done, is problematic because there are distinct bases under the Act to make such orders and each basis necessarily carries with it a characterisation”. We would observe that, notwithstanding that it may be “often done”, not only is such delay problematic, it should not – and, in our view, cannot – be done: see Zschokke and Zschokke (1990) FLC 92-693 at 83,216–83,217, where the Full Court referred to the different matters to which the Court should have regard, or take into account, in considering whether to make an order of the type in question either under s 80(1)(h) or under s 117(2) of the Act. If the order is to be made under s 80(1)(h), regard should be had to the requirements of s 79(2) and (4). If the order is to be made under s 117(2), the matters contained in s 117(2A) must be addressed.
This was made even clearer in Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”), where the Full Court said:
84.In Paris King Investments Brereton J, with whom on this point we agree, at [30] said that Zschokke “establishes that it is important, when contemplating an order for interim provision for litigation expenses, to identify the relevant source of power because it is the source of power that determines the necessary preconditions and relevant considerations for making the order”.
…
86.Once the relevant source of jurisdiction for making an order is resolved then it could be assumed that what Brereton J in Paris King Investments described as “the necessary preconditions and relevant considerations” or as the Full Court in Zschokke described as the “matters” to be taken into account should be easy to identify. If the source of jurisdiction is s 117(2) of the Act then the court may make such order as it considers just provided there are justifying circumstances. If the order is sought under s 79 of the Act then the court may make such an order as it considers appropriate provided it is satisfied that it is just and equitable to make the order. If the order is sought under s 74 of the Act then the court may make such order as is proper.
At [38] of his reasons for judgment, the primary judge then said:
Before turning to the facts and arguments of the parties concerning the substance of the [applicant’s] application for maintenance, it is necessary to discuss a range of difficult questions posed by s 39 and s 44 of the Act and s 50 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”). After the hearing concluded on 22 January 2024, the Court sought submissions from the parties on the operation and interaction of these sections. None were received.
INSTITUTING PROCEEDINGS FOR SPOUSAL MAINTENANCE
His Honour observed at [40], unremarkably, that proceedings between parties to a marriage with respect to maintenance are a separate matrimonial cause to property settlement proceedings, each having a distinct statutory basis. His Honour said that it was “important to emphasise that the [applicant] first introduced a matrimonial cause for maintenance after the proceedings were transferred to” Division 1 (at [41]) and that “a matrimonial cause instituted within time for property settlement orders may not be amended to include a matrimonial cause for maintenance out of time without leave pursuant to s 44(3)” (at [44]).
His Honour observed at [45] that, when the applicant commenced these proceedings in the Federal Circuit Court of Australia in 2020, she instituted a matrimonial cause within paragraph (ca) of the definition thereof, seeking relief pursuant to s 79 of the Act. At that time, s 39 of the Act conferred jurisdiction on the Family Court of Australia in matrimonial causes. When the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) came into force on 1 September 2021, mention of the Family Court of Australia, which then became known as the Federal Circuit and Family Court of Australia (Division 1), was removed from s 39. The conferral of jurisdiction in matrimonial causes was limited to the Federal Circuit and Family Court of Australia (Division 2) (and certain other courts, not presently relevant).
His Honour continued at [47] and [48]:
However, the Full Court has confirmed that this Court retains jurisdiction to hear and determine proceedings pending in it before 1 September 2021, that is, “legacy cases” (Nevins v Urwin (2022) FLC 94-084 (“Nevins”)). Clearly, this Court has jurisdiction to hear and determine the [applicant’s] matrimonial cause seeking property adjustment pursuant to s 79 because it was pending as at 1 September 2021. But no matrimonial cause for maintenance was pending as at that date.
As pointed out in Nevins, one objective of the legislative changes made on 1 September 2021 was to create a single point of entry for family law or child support proceedings and “[t]hat objective was achieved by the removal of original jurisdiction from Division 1 and, in lieu thereof, its investiture with original jurisdiction in only those causes of action transferred to it from Division 2” (at [5]).
Section 25(1) of the FCFCOA Act now provides:
(1)The Federal Circuit and Family Court of Australia (Division 1) has original jurisdiction:
(a)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Court under section 51—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(b)if a matter, being the subject of a family law or child support proceeding, is transferred to the Court by the Federal Circuit and Family Court of Australia (Division 2) under section 149—as set out in paragraphs 132(1)(a), (b), (c) and (d); or
(c)as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.
His Honour observed at [50]:
It can be seen that in addition to jurisdiction derived from transfers to this Court from Division 2, s 25(1)(c) refers to jurisdiction “conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act”. The reference to “any other Act” includes any other federal statute, such as the Act, other than the FCFCOA Act. Apart from the Act, an example is the Corporations Act 2001 (Cth) (“the Corporations Act”) which defines “Court” to include this Court (s 58AA).
His Honour at [51] identified s 44 of the Act as being “another provision that regulates how proceedings in relation to marriages are ‘instituted’ under the Act”. In particular, s 44(1) provides that “[e]xcept as otherwise provided by the regulations or by the applicable Rules of Court, proceedings under this Act shall be instituted by application”. In relation to s 44(3) of the Act, his Honour said at [52]:
… It constitutes a statutory prohibition on “instituting” the nominated matrimonial causes, including spouse maintenance, outside defined limitation periods except with the leave of the court. It also constitutes an exceptional statutory ability for parties to confer on a relevant court jurisdiction, in the sense of authority to adjudicate the nominated matrimonial causes, by consent.
There was no dispute that the applicant sought to institute her matrimonial cause seeking maintenance outside the prescribed limitation period. She sought to do so for the first time by an Application in a Proceeding filed on 12 June 2023, not by any Amended Initiating Application seeking to add a further matrimonial cause for maintenance. There was no dispute that she required leave pursuant to s 44(3) of the Act to institute proceedings for maintenance. There was no consent by the first respondent which could confer jurisdiction and obviate the need for an exercise of discretion to grant leave.
His Honour said at [55] that, accordingly, it was necessary to consider the terms of s 50 of the FCFCOA Act which imposes a specific statutory prohibition on instituting “family law or child support proceedings” in Division 1. That section provides:
(1)A person must not institute family law or child support proceedings (other than appellate proceedings) in the Federal Circuit and Family Court of Australia (Division 1).
Note: For the institution of proceedings other than family law or child support proceedings, see section 62.
(2)If proceedings are instituted in the Federal Circuit and Family Court of Australia (Division 1) in contravention of subsection (1), then:
(a)unless the proceedings are transferred to the Federal Court, the proceedings are, by force of this subsection, transferred to the Federal Circuit and Family Court of Australia (Division 2); and
(b)the proceedings are taken to be as valid as they would have been if subsection (1) had not been enacted.
(Emphasis added)
“Proceeding” in s 7 of the FCFCOA Act is defined to mean, in relation to a court, “a proceeding in a court, whether between parties or not, and includes an incidental proceeding in the course of which, or in connection with, a proceeding, and also includes an appeal”.
His Honour said at [57]:
It is clear from the Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth) that the purpose of s 50 of the FCFCOA Act is to aid the objective of:
177.… achieving a single point of entry for first instance family law matters, as these matters will need to be initiated in the FCFC (Division 2) and can be transferred to the FCFC (Division 1) in accordance with clauses 51 and 149, and consistent with case management processes.
The expression “family law or child support proceedings” is defined in s 7 of the FCFCOA Act to mean “proceedings in respect of which the Federal Circuit and Family Court of Australia (Division 2) has original jurisdiction under section 132”. Relevantly, s 132(1)(a) provides that Division 2 has original jurisdiction “with respect to matters in respect of which proceedings may be instituted under the Family Law Act 1975”. The primary judge said at [60]:
This describes an aspect of federal jurisdiction to decide “matters” falling within the subject matters in s 75 and s 76 of the Commonwealth Constitution. It is not necessary to explore this to any extent here except to note it is also well settled that a “matter” does not mean a particular legal proceeding between the parties or a bare description of the subject matter falling within a head of federal judicial power in s 75 and s 76; rather it comprises all claims within the scope of a single justiciable controversy (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 674 at [31], [110]). Therefore, the relevant federal matter is not to be equated, or assumed to be co-extensive, with a particular matrimonial cause as defined in the Act, although a matrimonial cause may be a proceeding in relation to a matter. Ss 51 and 149 of the FCFCOA Act refer to a transfer of a proceeding” not a “matter”. In Camden v Laue (2018) FLC 93-840 at [167] the Full Court confirmed that a court is seized of a matter in the exercise of federal jurisdiction, it has authority to adjudicate and the parameters of the jurisdiction are the parameters of the matter which might involve differing causes of action. But authority to adjudicate is anterior to the existence of powers to grant particular relief (Fencott v Muller (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ). The power to grant particular relief in the form of spouse maintenance arises in a proceeding invoking the provisions of the Act which constitute the matrimonial cause. It seems to me that a transfer of a proceeding from Division 2 to this Court pursuant to s 51 or s 149 of the FCFCOA Act, is intended to place matrimonial causes relating to the “matter” before this Court, which intention can also be drawn from the wording of s 25 of the FCFCOA Act. Those sections grant a power to transfer a “proceeding” and the relevant “proceeding” is constituted by the matrimonial causes which have already been instituted in Division 2 at the time of transfer. It should be pointed out that Division 2 otherwise retains jurisdiction in relation to the matter by reason of s 39 of the Act.
His Honour concluded at [61] that, whilst it was “not necessary or desirable … to attempt some exhaustive taxonomy of proceedings which fall within the collocation ‘family law or child support proceedings’ as defined in the FCFCOA Act”, it was plain in his view that the matrimonial causes nominated in s 44(3) of the Act must be such proceedings. His Honour then identified at [62] the question which therefore arose to be: “how the terms of s 44(3) of the Act and s 50 of the FCFCOA Act are to be construed to operate together”. His Honour said at [62]:
… Section 44(3) prohibits the institution of the nominated matrimonial causes, except with the leave of “the court in which the proceedings are to be instituted”, while s 50 prohibits the institution of the same matrimonial causes in this Court at all.
The primary judge opined that the verb “institute” should be construed consistently in both sections of the respective Acts and that it should be construed in its “ordinary meaning”. His Honour referred at [63] to the definition in the online Oxford English Dictionary, namely, “[t]o set in operation, set on foot, initiate, ‘start’” and said that this definition was “sufficient to articulate the verb’s ordinary meaning, and its meaning in both s 44(3) and s 50”, referring to the Act and the FCFCOA Act respectively. Accordingly, his Honour concluded in this regard that filing an application to “institute” a matrimonial cause for maintenance must be done in Division 2 by force of s 50(1).
However, the primary judge continued that the application before him was anterior to the matrimonial cause, being for leave to institute the matrimonial cause. Accordingly, his Honour said:
64.… One question, therefore, is whether an application for leave pursuant to s 44(3) is itself a proceeding within the expression “family law or child support proceedings”. If so, bringing the application for leave in this Court breaches s 50(1) and has been automatically filed in Division 2 by reason of s 50(2). The consequence would be that this Court has no jurisdiction to determine the [applicant’s] application for leave.
65.Bearing in mind the definition of “proceeding” in the FCFCOA Act, at first blush it is hard to see why an application for leave pursuant to s 44(3) does not fall within this definition, being at the very least an incidental proceeding in connection with the existing matrimonial cause for property adjustment which is with respect to the relevant federal matter.
His Honour referred at [66] to a line of authority in the Family Court of Australia, now Federal Circuit and Family Court of Australia (Division 1) which has construed similar definitions of “proceedings” in the Act narrowly, with the result that an application for leave to institute proceedings pursuant to s 44(3) is not an incidental proceeding in the course of, or in connection with, an existing proceeding. Rather, it constitutes a proceeding merely with respect to leave to institute a matrimonial cause, such that the application for leave to institute the matrimonial cause is to be understood as separate from the matrimonial cause itself: see Simonds (Deceased) & Coyle (2019) FLC 93-895 at [50]–[56] (“Simonds”).
Accordingly, the primary judge said at [67]:
The definition of “proceedings” in the Act and “proceeding” in the FCFCOA Act are very similar and should be construed in the same way. Consistently with this line of authority therefore, the [applicant’s] application for leave pursuant to s 44(3) itself is not incidental to any existing proceeding in this Court, and does not fall within “family law or child support proceedings” as used in s 50.
After observing that the situation in the present case was materially the same to that which the Court considered in Simonds, his Honour said:
68.… Here the Court retains jurisdiction in the legacy proceedings, but by reason of the combined effect of the amendments to s 39 of the Act mentioned earlier (and I should add, the repeal of s 31 in 2021) and ss 25(1)(a) and (b), 50 and 132 of the FCFCOA Act, this Court has no jurisdiction conferred by the Act to adjudicate any matrimonial cause which was not pending as at 1 September 2021 unless it was transferred from Division 2. That has not happened in relation to the [applicant’s] claim to spouse maintenance. Accordingly, this Court also has no jurisdiction to adjudicate the matrimonial cause for maintenance in respect of which the [applicant] seeks leave.
69.There are two other ways the position can be analysed. It should be noted that s 62 of the FCFCOA Act provides that proceedings other than “family law and child support proceedings” may be instituted in this Court “without the need for pleadings”. The purpose of this provision is not entirely clear. It may simply make express the long standing position in this Court that pleadings are not necessary. But by reason of the effect of s 50, s 62 must be read as limited to proceedings which are not of “family law and child support proceedings”. It is not obvious what proceedings then may be instituted without pleadings. One answer may be proceedings instituted under another federal statute conferring jurisdiction on this Court, such as the Corporations Act. But the question then arises concerning the interaction of s 62 and the Federal Court (Corporations) Rules 2000 (Cth). It is not necessary to delve any further into these potential issues, except to say this example highlights the ambiguity. It is sufficient to observe if the application for leave to institute the [applicant’s] claim to maintenance, as discussed, does not fall within the definition of “family law and child support proceedings” s 62 could also be construed to permit its institution of proceedings in this Court “without pleadings”.
70.Alternatively, a possible construction of s 44(3) is that it confers on this Court a limited jurisdiction or authority to decide the question of leave. In other words, it constitutes a conferral by another federal Act of a limited original jurisdiction on this Court within s 25(1)(c) of the FCFCOA Act. This view can be supported by the words in s 44(3) “the court in which the proceedings are to be instituted”, construed as a reference to not only the court in which the proceedings are to be instituted, but also the court which is to determine the question of leave. Here that court is this Court. According to this the view, this Court has jurisdiction conferred upon it in accordance with s 25(1)(c) to the limited extent of deciding the question of leave.
71.But in my view neither possibility makes any material difference here. Even assuming this Court has the jurisdiction to determine the limited question of leave, there is no avoiding the conclusion that this Court would never exercise the discretion to grant leave in the present circumstances. Clearly, on any view the Court would not entertain an application for leave to institute a matrimonial cause in respect of which it cannot have jurisdiction without a transfer from Division 2. Further, irrespective of any other reason, the Court would not grant leave where to do so would result in “family law or child support proceedings” being instituted in this Court in breach of s 50(1), and any such proceedings would be automatically transferred to Division 2 by reason of s 50(2) in any event.
Accordingly, the primary judge held at [72] that the applicant should have instituted her matrimonial cause for maintenance, including an application for leave, in Division 2, not Division 1, and the sought a transfer from the former court to the latter court, adding:
… although this conclusion appears to impose additional cost and a cumbersome procedural burden on the [applicant], it is entirely consistent with the overall objective of a single point of entry.
Whilst that may be so, we would observe that it is also entirely inconsistent with s 5 of the FCFCOA Act which provides that:
The objects of this Act are:
(a)to ensure that justice is delivered by federal courts effectively and efficiently; and
(b)to provide for just outcomes, in particular, in family law or child support proceedings; and
(c)to provide a framework to facilitate cooperation between the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) with the aim of ensuring:
(i) common rules of court and forms; and
(ii) common practices and procedures; and
(iii) common approaches to case management.
(Emphasis added)
We consider this issue further below, as well as the correctness or otherwise of the subsequent, recent decision of the Full Court in Gilford & Cavaco (2024) FLC 94-183 (“Gilford & Cavaco”).
His Honour concluded, in this respect, at [73] that:
Inevitably, therefore, in my view the [applicant’s] application for leave to institute her claim for maintenance fails because there is presently no conceivable circumstance in which this Court would exercise a discretion to grant leave, even if had jurisdiction to do so, which I doubt. The [applicant’s] claim for spouse maintenance should be dismissed.
The primary judge considered that was sufficient to dispose of the applicant’s application for leave. Nevertheless, his Honour continued at [74]:
… However, since I received no assistance by way of submissions from the parties on the issues discussed above, and against the possibility my views about the operation of s 50 are wrong, I consider it appropriate to express my conclusions about the [applicant’s] application for leave as it was argued. It is also desirable to do so because the [applicant’s] claim for partial property settlement, which remains to be determined, arises from a matrimonial cause pending in this Court as at 1 September 2021 and, as noted, does not require leave. A number of the same considerations relevant to the [applicant’s] maintenance claim are also relevant to the question of partial property settlement.
None of the seven grounds of appeal assert any error by the primary judge in his dismissal of the applicant’s application for spousal maintenance (including leave to apply therefor out of time).
However, for reasons which we subsequently explain, we do not necessarily agree that the primary judge was not in error in respect to his finding as to lack of jurisdiction.
SECTION 44(3) OF THE ACT
The applicant relied solely upon s 44(4)(a) of the Act, namely, hardship if leave were not granted. The primary judge correctly, with respect, stated at [77] that hardship does not arise from the loss of the right to bring the relevant proceedings but from the consequences of the loss of that right, which requires consideration of the quality of the proposed claim. His Honour continued, again correctly, at [79] that “[i]n considering the quality of the [applicant’s] claim the Court must weigh her case against that of the [first respondent’s] and form a view as to whether there is in fact a sufficient probability of success, that would, if leave were granted, alleviate hardship”. In so holding, his Honour referred to Skelton and Lindop (2022) 64 Fam LR 617 at [17]–[21], where Austin J, sitting as the Full Court, pointed out that the test is demonstrating a “sufficient likelihood of success” to prove hardship, rather than likely success at trial on the balance of probabilities, which requires a higher standard of satisfaction.
The primary judge recorded at [80] that the applicant has an undergraduate and postgraduate qualifications, and was undertaking further studies. She had incurred substantial costs in completing her tertiary qualifications and said she had borrowed $250,000 from her mother. According to her evidence, she worked before, during and (save for a short period) after the marriage. At the time of the hearing before his Honour in January 2024, she was, and since September 2020, had been employed as a professional in an Australian company and received a salary of $2,436 per fortnight after tax.
The primary judge recognised at [81] that the applicant had suffered bouts of depression since 2017 and that she was diagnosed with a “critical condition”, which she did not specify, in late 2022 which had required surgery and ongoing treatment.
The primary judge also recorded at [82] that the applicant purchased a one-bedroom apartment in early 2021 for $650,000, in respect of which she borrowed $130,000 from her mother and $520,000 from a bank at a fixed rate of 1.99 per cent until the end of 2024. The monthly repayments were $1,920; the outstanding mortgage balance was $484,334; and the applicant asserted the value of that real property to remain equivalent to the purchase price.
Whilst, in her Financial Statement, she claimed weekly expenses of $1,475, excluding mortgage payments, the primary judge observed at [83] that these included a number of discretionary items, such as holidays and hobbies.
His Honour recorded at [84] that there was no care of a child involved, the applicant had gainful employment and her evidence showed she had “no incapacity for gainful employment”. Further, at [85], whilst she had relied upon her mother for financial support, that support included funds to acquire real property.
The applicant contended that the first respondent had access to vast financial resources and that he had “disposed of significant property”, namely, H Street and E Street. However, his Honour said, in this regard, at [86]:
… This argument relies upon the inference that both [H Street and E Street] were paid for by the [first respondent]. The [applicant’s] case in this regard in truth relies upon the assumption of a collusive arrangement between the [first respondent] and [the second respondent] since 2012. The available evidence at this interlocutory stage does not support that inference. For present purposes, she bears the onus of persuading the Court she has a sufficient probability of success in establishing the truth of this contention on a final basis. I do not accept that she has done so.
The primary judge’s reasons for so finding, at an interlocutory stage, were set out in detail at [87]–[94] and there is nothing to suggest that such finding was not then open to him. Accordingly, his Honour said at [95]:
For the purposes of s 44(3), on the basis of the evidence before me, I am not persuaded the [applicant] has a sufficient probability of success in proving [E Street] is not subject to a valid mortgage in favour of the [second respondent], the discharge of which will require the entire proceeds of sale to the mortgagee. Despite her Points of Claim, she has put forward no sufficiently persuasive evidence supporting an arguable basis why the mortgage should be impugned or set aside. She claims in part this is a result of the [first respondent’s] non-disclosure. But as discussed above, even at an interlocutory stage the probabilities are not in favour of her claims of a collusive arrangement between [the second respondent] and [the first respondent]. I accept the [first respondent’s] version of the circumstances surrounding the purchase of [E Street] is more inherently plausible for the purpose of assessing the [applicant’s] application for leave. At present, I take the view that the mortgage should be treated as valid and enforceable. Consequently, the proceeds of sale will not form part of the property pool of the parties to the marriage.
However, as the first respondent was the registered proprietor of E Street, the primary judge accepted that the rent received from the property should be treated as his “property” until settlement of the sale thereof in mid-2024, giving him access to further rent payments totalling about $80,000, from which he was paying, inter alia, agent’s commission, rates, cleaning and general maintenance in respect of that property, as well as his legal fees (at [96] and [97]). For present purposes, it matters not whether the rent was income or property.
After comparing and contrasting the parties’ respective financial circumstances, as best the primary judge could at an interlocutory stage, at [98]–[101], his Honour concluded at [102] that he was not persuaded that, if leave to apply for spousal maintenance was not granted, the applicant would suffer hardship. His Honour said at [102]:
… If leave is not granted, since I have found she has not established a sufficient probability of success in relation to [E Street], the consequence would be that she will not be permitted to pursue a claim for $1,000 per week and a lump sum from an unspecified source. Her claim to a weekly amount of spousal maintenance could be satisfied out the rent received by the [first respondent] but since this will cease in [mid] 2024, I do not accept it could fund the claimed spouse maintenance for two years. On the present state of the evidence, I accept that the [applicant] has shown a sufficient probability of success in demonstrating the [first respondent] has some unspecified shareholdings in [Country YY]. But this is not the same as demonstrating he controls vast financial resources. I am unable to conclude that any lump sum payment of spouse maintenance could be satisfied out of any assets of the [first respondent] in Australia. The [applicant] has her salary and owns her [Suburb K] unit. Therefore s 44(4)(a) is not satisfied and no leave can be granted.
(As per the original)
The primary judge observed at [103] that his conclusion made further consideration of the applicant’s claim for spousal maintenance unnecessary. Nevertheless, his Honour recorded what his conclusions would be on the exercise of discretion, even if his conclusion about the absence of hardship was wrong. His Honour correctly observed that the Court retains a residual discretion concerning the grant of leave, even if s 44(4)(a) is satisfied, identifying prejudice to the respondent and delay as being important in this regard.
His Honour said:
106.The [applicant] had 12 months from 22 November 2019 to bring a spouse maintenance application without leave, that is, 23 November 2020 at the latest. There was no dispute that the [applicant] delayed such application until 16 June 2023, a period of two and a half years. She explained the delay by claiming that she was not advised of any time limit by the two previous solicitors’ firms who represented her. She claimed her first lawyers advised her not to make a claim for spouse maintenance at the time she commenced proceedings on 3 March 2020 “even though I did not have a job and was struggling to pay my costs of living” ([Applicant’s] affidavit filed 8 January 2024, paragraph 49). She then claimed her next lawyers advised her in about April 2021 to focus on a security for costs application by the [first respondent] rather than spouse maintenance.
107.It seems plain from her own evidence that the [applicant] received legal advice twice not to bring a spouse maintenance application. There is no evidence of this apart from the [applicant’s] assertion. No evidence was called from any solicitor. But taking her evidence at its highest, the [applicant] followed her legal advice but does not state that if she had been told about the time limit, she would have pressed such an application despite the legal advice.
In the circumstances, the primary judge concluded at [108] that he did not find the applicant’s explanation of delay to be persuasive, nor that she had shown it would be in the interests of justice for the first respondent to be faced with such a claim after a delay of 2.5 years. Further, his Honour said at [109] that, since he concluded that the applicant could adequately support herself, her claim to spousal maintenance would likely fail, “after consuming Court resources, judicial time, and causing the [first] respondent additional expense”, which was itself a reason not to exercise the discretion her favour. Accordingly, even if he had jurisdiction and a discretion were enlivened, his Honour concluded at [110] that he would have refused her leave to bring her spousal maintenance claim.
INTERIM PROPERTY ADJUSTMENT
In considering the applicant's application for a lump sum of $856,000, by way of partial property settlement to fund her legal costs, the primary judge referred to and repeated his conclusions in relation to the contention that the first respondent had access to “vast financial resources”. In particular, we have regard to the following of his Honour’s conclusions, albeit at an interlocutory stage in the proceedings:
·Insofar as the applicant asserted that the first respondent had “disposed of significant property”, namely, H Street and E Street, which she contended were both paid for by the first respondent and which the primary judge described as relying “upon the assumption of a collusive arrangement between the [first respondent] and [second respondent] since 2012”, his Honour said that “[t]he available evidence at this interlocutory stage does not support that inference” (at [86]).
·The applicant had not established that she had a sufficient probability of succeeding in proving that the proceeds of sale of H Street were ever the property of the first respondent. Even if they were, they were used to retire a loan made to him by the second respondent for the purpose of the purchase thereof (at [89]).
·The applicant pointed to no plausible evidence that the purchase monies for E Street came from any source other than the second respondent or from any funds owned by the first respondent (at [90]).
·Insofar as the applicant claimed that the mortgage over E Street in favour of the second respondent was a sham, on the assumption of a collusive arrangement between the first respondent and the second respondent, the primary judge said that there was insufficient persuasive evidence at that stage, “which would support the inference that the loan and mortgage were sham transactions when they were entered into in 2017, or undertaken to defeat orders of this Court” (at [91]).
·On the state of the evidence before the primary judge, the only property available for division in Australia appeared to be the applicant’s unit and superannuation, and the balance of the rent from E Street, some cash in bank accounts of both parties and the first respondent’s superannuation. Both parties claimed liabilities owed to their mothers. The primary judge recorded at [98] that, aside from E Street, the applicant “seemed to accept that the [first respondent] presently has no other assets in Australia”.
·His Honour further recorded at [99]–[100] that each of the spouse parties asserted that the other had assets in Country YY which had not been disclosed, or sufficiently so, concluding at [101]:
It is hard to know at this stage of the proceedings how much weight to place on the existence of assets in [Country YY]. At a final hearing it may be possible to infer the [first respondent] has failed to disclose assets in [Country YY] (Wei & Xia (No 5) [2023] FedCFamC1F 679 at [175]). But other than as specifically mentioned in these reasons, I am generally unable to draw the necessary inferences and make a finding for the purposes of this interlocutory determination. It is also relevant to note that this Court would not be able to enforce any of interim spouse maintenance orders against any property interests of the [first respondent] in [Country YY] nor would they be available for division under property adjustment orders of this Court.
At [113], the primary judge correctly referred to the two-stage process in the consideration of applications for partial property settlements, namely, the procedural step (i.e. whether the Court should exercise discretion to entertain and determine the application) and the substantive step (i.e. the nature of the order which should be made), explicated by the Full Court in Strahan. His Honour recognised (by way of informal short hand expression) that “[t]he Court takes a ‘broad brush’ approach to the parties’ financial circumstances, by identifying their property interests then considering s 79(4) matters, s 79(4)(e) and contributions”.
His Honour then said:
114.I have set out in broad terms above the property interests of the parties, as they appear at present from the evidence, and noting that no balance sheet was provided by either party. It is otherwise difficult to identify in any comprehensive way the parties’ property interests. I have also expressed the view that I am unable to make an interim finding that the [first respondent] has vast undisclosed assets in [Country YY], although he may have some unspecified shareholdings. The relationship was short. I accept the submission of the [applicant] that she has a case based on contributions but it is difficult to discern their extent and detail.
115.But this simply exposes central problems in her property settlement claim. On any view the relationship lasted no longer than somewhere between two and three years. On the [applicant’s] case, the [first respondent] made enormous initial contributions, in excess of $20 million. On her case his financial contributions during the relationship were also far greater than hers, taking account of [E Street]. Even if it be assumed in the [applicant’s] favour that during the relationship the parties’ contributions were equal, where the marriage is relatively short, initial contributions can take on a critical importance (Anson & Meek (2017) FLC 93-816 at [181] (adopted by the Full Court in Grunseth & Wighton (2022) FLC 94-099 at [73]). A short marriage is also a factor which weighs in favour of an asset by asset approach to the property pool (Zagari & Habib [2010] FamCAFC 159 at [83]; Greer & Mackintosh [2013] FamCAFC 16 at [101]). This has some importance because although there is evidence of the [first respondent’s] shareholdings in [Country YY], it is dated after separation and there is no evidence the [applicant] made any contribution to companies or shares in [Country YY] in which the [first respondent] has an interest. It is not self evident at this stage of the proceedings that it would be just and equitable to make any property adjustment order in favour of the [applicant].
116.Although, as already explained, the [applicant’s] case to impugn the registered mortgage in favour of the [second respondent] is not presently supported by the probabilities of the evidence, I do not conclude at this stage her allegations about the mortgage have no reasonable prospect of success. In any event, the present injunctive relief protects half the proceeds of sale of [E Street] pending final determination or further order. On the basis of the current evidence, it is difficult to see how this would not be sufficient to satisfy any property adjustment in favour of the [applicant] at final hearing in light of the short relationship. If the [applicant’s] claims about the proceeds of sale of [E Street] and the mortgage are not successful and the proceeds do not form part of the property pool, the pool in Australia is modest, including her own property. As a result, if an order for property adjustment was made now as claimed by the [applicant] there is a risk it could not be recouped, in whole or in part if necessary, at final hearing. I am not persuaded the [applicant] has established that it would be proper, just and equitable to make any interim property adjustment in her favour, at least at present. The [applicant’s] application will be refused.
LITIGATION FUNDING
Lastly, the primary judge turned to the third alternative limb of the applicant’s application, namely the payment of a lump sum or $1,000 per week for litigation funding. At [117], his Honour identified the power to order litigation funding pursuant to s 117 of the Act and correctly said that the Court must be satisfied that there are circumstances justifying a costs order and that there should also be evidence of the applicant’s likely legal costs in the litigation. His Honour continued:
… Turning to the matters referred to in Zschokke, although the [first respondent] claims not to have a position of relative strength, I accept there is some limited evidence supporting the conclusion that he does and he appears to have some capacity to meet his own legal costs. The [applicant] claims an inability to meet her legal costs. However, she gave no clear evidence about her likely future litigation costs. She annexed a cost disclosure agreement from her former solicitors dated 20 December 2022 which estimated her fees to be $500,000 ([Applicant’s] affidavit filed 8 January 2024, Annexure “L”). Given its date and the fact that she is now represented by a different firm, this cost disclosure has limited weight.
The primary judge referred at [118] to the applicant’s asserted need for extensive legal costs to fund investigations in Country YY, Country AB and Country RR and correctly said that it is open to the Court to make an order for litigation funding where investigation is necessary and one party has control of a vast pool of assets, citing Bing and Bing (2007) FLC 93-318 at 81,478. However, his Honour then said:
119.But according to the [applicant’s] own evidence she has already undertaken significant investigations in [Country YY] at considerable expense. I am not persuaded the [applicant] has demonstrated a need for further litigation funding for the same purpose. For example, it is open to the Court to find that indeterminate undisclosed property is held by one of the parties and to make such property orders without reference to the overall pool (see Weir and Weir (1993) FLC 92-338 at 79,593-4; Chang v Su (2002) FLC 93-117 at [70]). The [applicant] can agitate arguments of that sort without further expensive investigation of assets in [Country YY or Country RR] over which this Court can make no enforceable property orders.
120.Sections 67 and 68 of the FCFCOA Act and r 1.04 of the Rules mandate an overarching purpose to facilitate the just resolution of disputes according to law as quickly, inexpensively, and efficiently as possible. Parties are obliged to conduct the proceedings consistently with the overarching purpose. In my view, in light of the evidence about the property pool in Australia, the short relationship and the limitations on the jurisdiction of the Court over assets in [Country YY], an order for lump sum costs for litigation as sought by the [applicant], to be used to undertake further extensive investigation of assets in [Country YY], is disproportionate to the possible outcomes in these proceedings.
LEAVE TO APPEAL
The applicant correctly concedes that she requires, and accordingly she seeks, leave to appeal from Order 1 of the February Orders made by the primary judge, dismissing paragraphs 1–9 of her (Amended) Application in a Proceeding filed on 22 January 2024.
Section 28(3)(e)(i) of the FCFCOA Act provides that leave of the Full Court of the Federal Circuit and Family Court of Australia (Division 1) is required to appeal to the Court from a prescribed judgment of the Federal Circuit and Family Court of Australia (Division 1) constituted by a single judge.
Regulation 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) provides, inter alia, that for the purposes of s 28(3)(e) of the FCFCOA Act, an interlocutory decree (other than a decree in relation to a child welfare matter) is a prescribed judgment.
There can be no doubt that Order 1 of the February Orders made by the primary judge, insofar as it dismissed the applicant’s application for litigation funding, whether by way of partial property settlement or costs order or, indeed, spousal maintenance on the merits (subject to jurisdiction and any grant of leave pursuant to s 44(3) of the Act), is an interlocutory decree, as it does not finally determine the rights of the spouse parties in a principal cause pending between them: see Bienstein v Bienstein (2003) FLC 93-124 at [25], which confirmed the test pronounced in Carr v Finance Corporation of Australia Ltd(No 1) (1981) 147 CLR 246 at 248.
Further, insofar as, by Order 1, the primary judge dismissed the applicant’s application for leave pursuant to s 44(3) of the Act and/or spousal maintenance for want of jurisdiction, in Emamy and Marino (1994) FLC 92-487 at 81,075, Ellis and Baker JJ said:
Whilst it may appear strange that the classification of an order under s44(3) should depend upon whether the court grants or refuses leave, it seems consistent with the High Court authorities cited above. If an order is made granting leave, then the substantive property rights of the parties under s79 remained to be determined. If, on the other hand, leave is refused, that is the end of the matter, except in so far as a further application for leave may be instituted at a later time. It is unnecessary for us finally to decide this question in the present case, since it appears that, on any view of the authorities, an order granting leave under s44(3) is interlocutory, as it does not terminate the parties’ rights to property under s79.
(Emphasis added)
Whilst their Honours seem to suggest that a refusal of leave would not be an interlocutory decree, nevertheless, that was qualified by the exception where a further application for leave may be instituted at a later time. In Tudor and Tudor (1992) FLC 92-273 at 79,026, the Full Court held that a decree is interlocutory if it leaves open the legal possibility of the application with which it deals being renewed, even though, for all practical purposes, the application is unlikely to succeed.
The test adopted in this Court for a grant of leave to appeal was confirmed in Medlow. It provides that leave to appeal will only be granted where:
(a)the decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and
(b)if leave were refused, a “substantial injustice” would ensue.
As will become apparent, we consider that the primary judge’s conclusion that there was no jurisdiction in Division 1 to entertain the applicant’s application for leave pursuant to s 44(3) and/or her spousal maintenance application is, at least, attended by sufficient doubt to warrant its reconsideration. However, no ground of appeal is directed to this issue, and it was not argued before us. In any event, in circumstances where, as we have observed above, those applications may be renewed in Division 2, it is difficult to conceive of a substantial injustice ensuing to the applicant.
We shall otherwise consider the applicant’s application for leave to appeal in our consideration of her grounds of appeal.
APPLICATION TO ADDUCE FURTHER EVIDENCE
Rule 13.39(1)–(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
(1)A party to an appeal (other than an appeal that is a hearing de novo) who seeks to apply for an order that the court receive further evidence on the hearing of the appeal must file the application at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing.
(2) The affidavit filed with the application must state:
(a) briefly but specifically, the facts on which the application relies; and
(b) the grounds of appeal to which the application relates; and
(c)the evidence that the applicant wants the appeal court to receive, or at least the nature of the further evidence; and
(d) the reason why the evidence was not adduced at the hearing.
The applicant’s Applications in an Appeal (for both appeals) were filed on 12 June 2024. The sittings in which the appeals were listed for hearing commenced on 25 June 2024. Accordingly, by reason of the operation of r 15.05 of the Rules, those Applications should have been filed by 11 June 2024. No explanation was proffered by the applicant for her delay; however, no prejudice by reason thereof was asserted by the respondents. Their opposition to the Applications goes to matters of substance, rather than form.
Insofar as the applicant seeks leave to adduce further evidence, s 35(b) of the FCFCOA Act provides inter alia that, in an appeal, the Full Court has the power, in its discretion, to admit further evidence in an appeal. The discretion conferred by that provision is unfettered; no factors are specified which constrain the Court’s discretion to admit further evidence. Nevertheless, in applying the principles adumbrated by the High Court in CDJ v VAJ (1998) 197 CLR 172 at [114], [116] and [148] (“CDJ v VAJ”) it can be said that the following two considerations will normally be relevant to the exercise of the discretion:
(i)the further evidence is such that, had it been adduced at trial, the result would very probably have been different; and
(ii)the party seeking to adduce the evidence demonstrates that it was unaware of the evidence and could not have been, with reasonable diligence, made aware of the evidence (Veale v Coleman (2024) 304 FCR 182 at [7]).
The further evidence that the applicant seeks leave to adduce is extensive, comprising 29 documents, totalling 539 pages in length. Those documents are annexed to an affidavit filed in support of her Applications in an Appeal, itself comprising over 13 pages of text, much of which is in the nature of submissions, rather than evidence in and of itself, and is difficult to follow. Much of that proposed evidence was not referred to by the applicant in either her Summary of Argument or her oral submissions before us. Indeed, contrary to r 13.39(2)(a)–(b) and (d) of the Rules, the applicant’s affidavits filed with her applications fail to state:
·briefly but specifically or, indeed, at all, the facts on which the applications rely;
·the grounds of appeal to which the applications relate; and
·the reason why the evidence was not adduced at the hearings before the primary judge.
As with the applicant’s application for leave to appeal, we shall consider her applications for leave to adduce further evidence in our consideration of her grounds of appeal, save in respect of pages 192–193 and 515–518, which were admitted by consent.
THE APPEAL
With the exception of the determination by the primary judge that he did not have jurisdiction to entertain the applicant’s applications for leave pursuant to s 44(3) of the Act and spousal maintenance, which is not the subject of a ground of appeal, this is an appeal from a discretionary judgment.
It is well-settled that appeals from discretionary judgments must establish grounds that fall within the principles identified by the High Court in House v The King (1936) 55 CLR 499 at 504–505, where the majority said:
…The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. …
It is not enough that the appellate court may have come to a different decision on the same facts; it must be “well satisfied that the primary judge was plainly wrong” and did not properly exercise judicial discretion: Gronow v Gronow (1979) 144 CLR 513 at 519 (“Gronow”).
There are seven grounds of appeal set out in the applicant’s (Amended) Notices of Appeal, as follows:
Ground 1. His Honour explains conclusions going against evidence.
Ground 2His Honour failed to provide the path of reasoning to draw his conclusions.
Ground 3.His Honour failed to give sufficient and adequate reasons.
Ground 4.His Honour did not deal with the significant issues but made orders based on his assumptions. Substantial arguments or issues raised by the party have not been taken into consideration and explain why the arguments were accepted or rejected.
Ground 5. His Honour failed to afford procedural fairness to the [applicant].
Ground 6. His Honour failed to properly explain evidence.
Ground 7. His Honour is biased in this case.
In Hedlund & Hedlund (2021) FLC 94-065, the Full Court referring to the decision of Gageler J (as he then was) in Bugmy v The Queen (2013) 249 CLR 571 at [53], relevantly stated at [36]‑[37]:
These grounds, and their particulars, present an amalgam of complaints that are not confined to either taking into account of the irrelevant, or the failure to take into account the relevant. They also incorporate complaints about the “manner” of taking into account, or the placing of weight upon evidence…
To the extent that the grounds constitute criticisms as to whether the consideration was “proper” or as to weight, none of these qualifiers is a valid justification for appellate intervention unless the result achieved is unreasonable or plainly unjust. …
These observations are apt to the applicant’s grounds of appeal. The gravamen of the grounds of appeal can generally be distilled into the following categories, albeit with a degree of overlap:
·bias and denial of procedural fairness;
·failure to give reasons;
·failure to consider evidence; and
·weight.
ASSERTED BIAS AND DENIAL OF PROCEDURAL FAIRNESS
Grounds of appeal in relation to bias and procedural fairness are challenges to the integrity of the administration of justice; thus, they must be dealt with first, before other discrete grounds of appeal: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611–612 and 634; Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9]–[10]. Accordingly, we turn first to Grounds 7 and 5 respectively.
Ground 7: Bias
The applicant merely contends in Ground 7 that the primary judge “is biased in this case”. Her Summary of Argument in support of this Ground of Appeal is both confused and confusing and was not illuminated by her oral submissions. In neither document does the applicant specify whether the asserted bias is apprehended or actual.
Her Summary of Argument in support of this Ground of Appeal refers to both the hearing before the primary judge on 23 October 2023 (in respect of which there was no appeal), as well as the hearing before the primary judge some three months later, on 22 January 2024, which is the primary subject of this appeal (given our observations above in relation to the March Orders). In the intervening period, there was at least one other hearing before his Honour, on 14 November 2023. Whilst there was an appeal from orders made on that date, as we have noted above, that appeal was subsequently dismissed by consent on 29 February 2024.
We note that, at the hearing before the primary judge on 22 January 2024, the applicant was legally represented by counsel and instructing solicitors. There was no complaint on her behalf on that occasion (or, it would appear, in respect of the hearing on 23 October 2023) of bias – apprehended or actual – on the part of the primary judge.
The gravamen of her complaint, as best we can discern it from her Summary of Argument, is that the primary judge, both on 23 October 2023 (in respect of which there was no appeal) and, relevantly, on 22 January 2024, did not accept the submissions made on her behalf or grant the relief sought by her. It is difficult to understand which of her submissions relate to the former hearing and which to the latter. For example, she contends that, at the hearing on 23 October 2023, she addressed what she asserts to be “the key issues of the sham loan and the urgency to secure the only asset in Australia which could secure [her] interest”. She continues:
During that hearing, the judge referred to the ASIC document of [Y Pty Ltd], saying you can prove the [first respondent] is a director of [Y Pty Ltd], but you cannot prove he is the ultimate beneficiary of [Y Pty Ltd]. The ultimate beneficiary of [Y Pty Ltd] is a [Country RR] company, while I told the [primary judge] the [first respondent] used BVI hold his interests and I made order request to both responding to disclosure the BVI shareholders. The [primary judge] disregarded the disclosure request and He [sic] did not consider my challenge to the sham loan.
(As per the original) (Emphasis added)
Not only does this complaint relate to a hearing prior to that the subject of this appeal, with another hearing in the intervening period, in respect of which an appeal was dismissed by consent, but what the primary judge is alleged to have said and done is unremarkable, especially in the context of an interlocutory hearing.
The applicant continues, submitting that “[l]ater in this order with reasons” (emphasis added), the primary judge referred to the same ASIC document of Y Pty Ltd and that “[t]his is significant bias referred to the same documents at different court hearings for different purpose disadvantage me while favouring the [the second respondent]” (as per the original). It is difficult to understand the basis of the applicant’s complaint. At [16]–[17] of his reasons for judgment, the primary judge explained why, on the basis of the evidence, he concluded “it is more likely that the funds to purchase [H Street] were provided by [PP Group], which was likely owned and controlled by the [second respondent] in 2012”. In so finding, the primary judge referred to an ASIC search annexed to the applicant’s affidavit which showed that “[the first respondent] was a director of [PP Group] between [mid] 2014 and [early] 2019. The [second respondent] is now the sole director. There is no evidence that the [first respondent] was a director of [PP Group] at the time [H Street] was acquired”.
In that context, the applicant’s complaint that the primary judge referred to a document adduced into evidence by her is incomprehensible. His Honour’s analysis at [16] of his reasons for judgment of the ASIC search is unremarkable. The phrases used by his Honour at [17], such as “[f]or the purposes of this judgment”, “[w]ithout finally determining the issues, for present purposes” and “even at an interlocutory stage” are similarly unremarkable at an interlocutory stage of proceedings.
In support of this Ground of Appeal, the applicant points to, and makes complaint about, [26] of the primary judge’s reasons for judgment. His Honour said:
The order made on 14 November 2023 and the subject of the [applicant’s] appeal, mentioned above, provided for the release of 50 per cent of the net proceeds of sale of [E Street] to the mortgagee, the [second respondent], with such amount “not to exceed the amount of the loan owing and outstanding” to the [second respondent] as mortgagee. In light of the sale price achieved [in late] 2023, there appears to be no possibility that 50 per cent of the net proceeds of sale will exceed the mortgage debt, and the balance will be held in trust by the solicitors of the [second respondent].
Again, ignoring the fact that her appeal against those orders was dismissed by consent, the applicant contends the primary judge “favoured” the first respondent and “ignored” her evidence and was therefore “significantly biased”. It is trite to observe that this is not the test for judicial bias, either apprehended or actual.
The legal principles regarding apprehended bias are well established. In Johnson v Johnson (2000) 201 CLR 488 at [11], the plurality said that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [8], the plurality said that the application of the test requires two steps: the identification of what it is said that might lead a judge to decide a case other than on its legal and factual merits; and an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. A bare assertion will be of no assistance without such identification and articulation as, only then, can the reasonableness of the asserted apprehension of bias be assessed.
Similarly, insofar as the applicant, in her Summary of Argument in support of this Ground, contends that the primary judge:
·Failed to “verify evidence” she provided to the Court;
·Dismissed her request for disclosure of a document;
·Failed to “call for evidence” and “ignored” her financial difficulties, thereby “favouring” the respondents “without sufficient evidence” –
even if these complaints were made out (which we do not accept), they do not remotely amount, without more, to bias on the part of his Honour.
In the circumstances, Ground 7 is devoid of merit and will be dismissed.
Ground 5: Failure to Afford Procedural Fairness
The applicant contends that the primary judge failed to afford procedural fairness to her. Her Summary of Argument in support of this Ground of Appeal is, again, both confused and confusing and was similarly not illuminated by her oral submissions.
The applicant contends that at [15] of his reasons for judgment, the primary judge (we infer, implicitly) relied upon an affidavit by Ms T, being the mother of the first respondent (and the wife of the second respondent), filed on 18 January 2024, “less than 48 hours before” the hearing, without giving a “fair chance” to respond to, and to challenge, that affidavit.
Only the coversheet, paragraphs 15 and 16 and the jurat of, and annexure E to, that affidavit were included in the Appeal Book. The coversheet confirms that the affidavit was indeed filed on 18 January 2024, as the applicant contends. Accordingly, in the absence of any assertion by the applicant that the affidavit was not served upon her that day (and there was none), her assertion that that the affidavit was filed less than 48 hours before the hearing is manifestly wrong.
In this case, family law or child support proceedings, namely an application under s 79 of the Act, being a matrimonial cause within paragraph (ca) of the definition thereof, were instituted by the applicant in Division 2. Those proceedings, as then constituted by that application, were transferred to Division 1. Consistent with the High Court authorities to which the Full Court referred in Frost & Whooten at [13] and [17], we consider that Division 1 then had originating jurisdiction to “grant … all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible … all matters in controversy between the parties may be completely and finally determined … and … all multiplicity of proceedings concerning any of those matters may be avoided” (s 43 of the FCFCOA Act) (emphasis added). Further, we respectfully agree, as did the Full Court in Frost & Whooten at [18], with the observations made by Allsop CJ (as his Honour then was) writing extra-currially in his speech referred to in that paragraph. Indeed, as the Full Court said in Camden Pty Ltd & Laue (2018) FLC 93-840 at [171], albeit in relation to the Court’s “accrued jurisdiction”, as so described, (and to which decision the primary judge referred at [60], nevertheless reaching a contrary outcome in this case):
Thus, once the FCWA is seized of a matter in the exercise of federal jurisdiction, it has jurisdiction that is, the authority to adjudicate (see Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087; Rizeq per Kiefel CJ at [8] – [9]), all issues comprising the matter. The parameters of the federal jurisdiction which it possesses are the parameters of the matter, the criterion for which is there being a “single justiciable controversy”. A single justiciable controversy might involve differing causes of action; the search being for issues or claims which “arise out of common transactions and facts or a common substratum of facts” (even if the facts do not wholly coincide) (Rana at [36] citing Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 (“Philip Morris”) at 512 and Fencott v Muller (1983) 152 CLR 570 (“Fencott”) at 607).
(Emphasis in original)
This leads us, secondly, to another possible avenue by which to resolve the issue which arose at first instance. Section 33 of the Act provided:
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court.
Section 29 of the FCFCOA Act now similarly provides:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 1) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) is invoked.
The former section was, and the latter section is, similar to s 32(1) of the Federal Court of Australia Act 1976 (Cth), which provides:
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters (the core matters) in which the jurisdiction of the Court is invoked.
(Emphasis in original)
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, the High Court considered the effect of s 32(1) of the Federal Court of Australia Act 1976 (Cth). Justice Gibbs (as his Honour then was) said at 494–495 that:
… this sub-section cannot validly confer on the Federal Court jurisdiction in respect of matters other than those enumerated in ss. 75 and 76. However, the sub-section is capable of some valid operation. It is expressed to operate to the extent that the Constitution permits, and the Constitution does permit a valid law to be made investing the Federal Court with jurisdiction in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked, provided that the former matters are matters of a kind mentioned in s. 75 or s. 76. As has been seen, the jurisdiction of the Federal Court may be invoked in a matter arising under the Trade Practices Act. Once the jurisdiction of the Court is so invoked, its jurisdiction is extended by s. 32 (1) to associated matters which arise under other laws made by the Parliament, even though the Parliament has not (except by s. 32 (1)) conferred jurisdiction on the Court in respect of those matters. For example, an action for infringement of copyright is a matter arising under a law of the Commonwealth, namely the Copyright Act 1968 (Cth), as amended, but no original jurisdiction has been conferred upon the Federal Court in respect of such an action except by s. 32 (1). The effect of that sub-section is that jurisdiction is conferred on the Federal Court in respect of an action for infringement of copyright that is associated with matters otherwise within the jurisdiction of the Court.
Similarly, Mason J said at 506, in respect of s 32(1):
… Plainly it was intended to vest a jurisdiction in the Federal Court to hear and determine matters not otherwise within its jurisdiction, matters that are “associated with matters in which the jurisdiction of the Court is invoked”. The expression “To the extent that the Constitution permist” [sic] suggests that s. 32 is directed, not merely to jurisdiction to hear and determine matters arising under federal laws not otherwise vested in the Federal Court, but also to jurisdiction arising under State or other non-federal laws. Problems of constitutional validity arise in relation to the latter, but not in relation to the former. The opening words of s. 32 (1) would serve no purpose at all if the sub-section was exclusively directed to matters arising under federal laws.
In R v Ross-Jones and Marinovich; Ex parte Green (1984) 156 CLR 185 at 209, Wilson and Dawson JJ similarly said:
Section 33 of the Act confers jurisdiction on the court, subject to any limits imposed by the Constitution, in matters which are associated with matters in which the jurisdiction otherwise conferred upon the court is invoked. As Gibbs C.J. remarked in Reg. v. Ross-Jones; Ex parte Beaumont, the effect of the section is not clear, but it cannot operate to confer jurisdiction unless the Court already has jurisdiction.
(Footnote omitted)
In Smith v Smith (1986) 161 CLR 217, Gibbs CJ, Wilson and Dawson JJ said at 240:
It is hardly necessary to add that the jurisdiction of the Family Court is not relevantly enlarged by the provisions of s. 33 of the Family Law Act. At best that section could validly do no more than give the Family Court jurisdiction in associated matters arising under some other federal law (see Philip Morris Inc. v. Adam P. Brown Male Fashions Pty. Ltd.); since, at first sight, it is difficult to envisage matters under other federal laws that might be associated with matters arising under the Family Law Act, the effect of the section is far from clear: see Reg. v. Ross-Jones; Ex parte Beaumont.
(Footnotes omitted)
In Akbar & Gandega (2023) 67 Fam LR 593, the Full Court said at [29] that:
… when federal law, like the Act, confers original jurisdiction on a federal court in respect of a “matter” — such as the matrimonial cause concerning the adjustment of spouses’ property interests — the jurisdiction extends to authorise the determination of the whole “matter”, the entire resolution of which controversy may entail the consideration and application of both federal and State law (Valceski v Valceski at [38]).
In that case, albeit referring to the authority to decide non-federal aspects of a justiciable dispute, the Full Court said at [30] that it “only arises when such non-federal aspects are an integral part of the same controversy”. The Full Court continued:
30.… Perhaps the best known statement collating the principles about the need for coincidence between the federal and non-federal aspects of the matter was expressed this way in Re Wakim; Ex parte McNally; Re Wakim; Ex parte Darvall; Re Brown; Ex parte Amann (1999) 198 CLR 511; 163 ALR 270; 24 Fam LR 669; [1999] HCA 27:
140.In Fencott it was said that ‘‘in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.’’ The references to ‘‘impression’’ and ‘‘practical judgment’’ cannot be understood, however, as stating a test that is to be applied. Considerations of impression and practical judgment are relevant because the question of jurisdiction usually arises before evidence is adduced and often before the pleadings are complete. Necessarily, then, the question will have to be decided on limited information. But the question is not at large. What is a single controversy ‘‘depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships’’. There is but a single matter if different claims arise out of ‘‘common transactions and facts’’ or ‘‘a common substratum of facts’’, notwithstanding that the facts upon which the claims depend ‘‘do not wholly coincide’’. So, too, there is but one matter where different claims are so related that the determination of one is essential to the determination of the other, as, for example, in the case of third party proceedings or where there are alternative claims for the same damage and the determination of one will either render the other otiose or necessitate its determination. Conversely, claims which are ‘‘completely disparate’’, ‘‘completely separate and distinct’’ or ‘‘distinct and unrelated’’ are not part of the same matter.
(Emphasis added) (Footnotes omitted)
31.The High Court there referred approvingly to Fencott v Muller (1983) 152 CLR 570; 46 ALR 41, in which it was earlier recognised that federal judicial power is attracted to the whole of the controversy only if the federal claim constitutes the substantial aspect of the controversy (at CLR 609–10; ALR 69). As already mentioned, in this instance, the reverse was true. The federal dispute between the spouses was merely an adjunct to the non-federal claims against the applicant.
32.More recently, the High Court has emphasised the need to determine the ambit of the federal “matter” by advertence to the conduct of the parties, the relationships between them, and the laws which attach rights or liabilities to such conduct and relationships (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [52]).
In the present case, by reason of the operation of s 29 of the FCFCOA Act, jurisdiction was conferred on Division 1 in respect of matters not otherwise within its jurisdiction (by reason of ss 25 and 50 thereof), such as the applicant’s applications pursuant to ss 44(3) and 74 of the Act, if they were associated with matters in which the jurisdiction of Division 1 was invoked, namely, her application pursuant to s 79 of the Act.
In Re McBain; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372 at [62], in relation to s 32 of the Federal Court of Australia Act 1976 (Cth), the plurality in the High Court relevantly said that the task of identification of the “matter” said to be the subject of the litigation is to be approached as a tripartite inquiry: first, the identification of the subject matter for determination in each proceeding; secondly, the identification of the right, duty or liability to be established in each proceeding; and, thirdly, the identification of the controversy between the parties to each proceeding for the quelling of which the judicial power of the Commonwealth is invoked. The High Court further said at [62] that, whilst each of these inquiries may be pursued separately, all are related aspects of the basal question: is there a “matter” in the sense required by Ch III of the Australian Constitution?
We consider it is (and was, before the primary judge) arguable that the applicant’s applications pursuant to s 79 of the Act, on the one hand, and ss 44(3) and 74 of that Act, on the other, constituted a single justiciable controversy, and therefore matter, such that the Court’s associated jurisdiction to determine all of those applications was engaged. We do not suggest that this would necessarily be so in the case of, for example, parenting proceedings under Pt VII of the Act. However, it is presently unnecessary for us to consider the metes and bounds of this question.
Nevertheless, even if the applicant, in her grounds of appeal, had contended (and successfully so) that the primary judge erred in concluding that, by reason of ss 25 and 50 of the FCFCOA Act, there was no jurisdiction for his Honour to entertain her applications pursuant to ss 44(3) and 74 of the Act, it does not necessarily follow that leave to appeal would have been granted. The applicant would still need to satisfy the second limb of the conjunctive test in Medlow and establish that, if leave to appeal were refused, a substantial injustice would ensue, in circumstances where we agree with the primary judge that the evidence adduced by her failed to establish that she has sufficient prospects of succeeding in her application for spousal maintenance, such as to justify a grant of leave pursuant to s 44(3) of the Act. Further, she is not precluded by the February Orders from making a fresh application, in Division 2, for relief pursuant to ss 44(3) and 74 of the Act.
COSTS
At the conclusion of the hearing before us, we sought submissions in relation to costs. Both respondents sought orders for costs in their favour in the event the appeals (including the applications for leave to appeal) were unsuccessful, as has transpired to be the case.
In considering what order as to costs, if any, should be made pursuant to s 117(2) of the Act, we have had regard, insofar as is possible, to the matters prescribed in sub-section (2A). Of particular relevance is that:
·the applicant has been wholly unsuccessful (s 117(2A)(e)); and
·the first respondent made an offer in writing to the applicant to settle the appeal (s 117(2A)(f)).
A letter dated 19 June 2024, six days before the appeal was listed for hearing, from the solicitors for the first respondent to the applicant was tendered and marked Exhibit “A” in the appeals. It relevantly stated:
We refer to your Amended Notices of Appeal filed 28 May 2024 in relation to NAA69/2024 and NAA70/2024 (your appeals) and the Summaries of Argument filed on behalf of our client and the Second Respondent 17 June 2024.
For the reasons set out in the Summary of Argument filed on behalf of our client 17 June 2024, it is our client’s position that:
1.Leave will not be granted for your Appeals to be heard; and otherwise
2.Your Appeals ought to be dismissed, with orders made as to costs.
Notwithstanding that, and in the interests of progressing the matter without the parties expending legal fees on unnecessary court listing, our client proposes that the appeal matters be finalised with a Notice of Discontinuance with no order as to costs.
We note that we have retained counsel for the appeal. If the appeal proceeds our client will rely upon this correspondence on the question of costs, including counsel’s costs, on an indemnity basis.
In the circumstances, we consider that an order for costs should be made in favour of the first respondent. The first respondent sought costs totalling $19,034, which we were informed were calculated in accordance with the scale prescribed in the Rules. However, upon perusal of the Schedule of Costs and inquiry of counsel for the first respondent, it was conceded that those costs were not calculated on a party/party basis. Counsel informed us that the first respondent was content for us to fix costs and we shall do so in the sum of $15,000.
In respect of the second respondent’s application for costs, it was conceded in the Summary of Argument filed on his behalf that the appeal(s) only concerned him insofar as orders were sought by the applicant in respect of the proceeds of sale of E Street, notwithstanding that such orders were not sought at first instance, such that the Full Court would not make those orders. Accordingly, his Summary of Argument and oral submissions were confined to that issue. Somewhat surprisingly, in the circumstances, the costs particularised in his Schedule of Costs total $27,957, nearly a third more than those of the first respondent. Again, we were told that those costs, whilst calculated at scale, were not on a party/party basis and that the second respondent was similarly content for us to fix costs. Given the limited role of the second respondent in the appeal, we consider an appropriate figure to be $7,500.
CAREW J:
I have had the benefit of reading the draft reasons of McClelland DCJ and Strum J and agree that leave to appeal and leave to adduce fresh evidence should be refused largely for the reasons therein set out. I agree that costs should be paid by the applicant in the sums fixed.
I would add that any appeal against a decision dismissing an application for leave to institute proceedings for spouse maintenance out of time (assuming there was jurisdiction to determine such an application) may well have been incompetent pursuant to s 26(2) of the FCFCOA Act.
I also agree that “this appeal is an inappropriate vehicle by which to determine this issue [of jurisdiction]” (see [169] above) and that “[i]t may be that another appeal, in which this issue is squarely raised and argued, will provide an appropriate vehicle for another Full Court, and possibly even a Full Bench of the Full Court, to reconsider the issue and the correctness of the decision of the majority in Gilford & Cavaco” (see [170] above).
In these circumstances, I cannot join with my brother judges in providing, what I respectfully regard as otiose opinions on the “correctness or otherwise” (see [42] above) of the Full Court decision in Gilford & Cavaco.
It will be recalled that the primary judge, although finding that he did not have jurisdiction to determine the application for leave to commence spouse maintenance proceedings out of time, nevertheless went on to determine the leave application on its merits in the event that he was wrong on the jurisdictional point. The primary judge also determined the spouse maintenance application on its merits in the event that he was wrong on the jurisdictional and leave points. The primary judge dismissed the applications on their merits.
There is no proposed ground of appeal challenging the correctness of the primary judge’s decision as to jurisdiction. There were no submissions made on the issue. There was no argument before us as to the correctness or otherwise of the primary judge’s decision on the question of jurisdiction, nor any submissions about the correctness or otherwise of the differing views of the members of the Full Court in Gilford & Cavaco.
It is unnecessary to consider the jurisdictional point because even if the primary judge’s decision as to jurisdiction were attended by sufficient doubt as to its correctness, leave to appeal will not be granted because the applicant has failed on the second limb of Medlow to establish a substantial injustice.
In my respectful view, it is undesirable for this Court to offer opinions, purportedly by way of obiter dicta, about the resolution of a hypothetical future appeal on an issue that it is not necessary for us to decide. While in a different context, the High Court of Australia in North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 612, cautioned against “delivering an advisory opinion” noting that “[t]he law is not judicially administered by judicial declarations of its content ‘divorced from any attempt to administer that law’” (see also Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265–267; Tak Fat Wong v The Queen (2001) 207 CLR 584 at 637–638).
I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Carew & Strum. Associate:
Dated: 30 October 2024
4
29
7