VEGA & RIGGS
[2015] FamCA 797
•23 September 2015
FAMILY COURT OF AUSTRALIA
| VEGA & RIGGS | [2015] FamCA 797 |
| FAMILY LAW – PROPERTY – Where the wife filed an application in the Supreme Court of NSW for an order pursuant to s 66G Conveyancing Act 1919 (NSW) – Whether there are extant proceedings under the Family Law Act 1975 (Cth) – Where the issue arises as to whether the Supreme Court has jurisdiction to hear the s 66G application – Where an application to transfer the family law proceedings to the Supreme Court is dismissed and the husband’s s 44(3) application is expedited. |
| s 109 of The Constitution Family Law Act 1975 (Cth) Conveyancing Act (NSW) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) |
| Ex parte McLean (1930) 43 CLR 472 |
| APPLICANT: | Mr Vega |
| RESPONDENT: | Ms Riggs |
| FILE NUMBER: | SYC | 3110 | of | 2015 |
| DATE DELIVERED: | 23 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 23 September 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Livingstone |
| SOLICITOR FOR THE APPLICANT: | MCW Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Maurice |
| SOLICITOR FOR THE RESPONDENT: | Pigott Stinson Lawyers |
Orders
The husband’s application for interim order 4 filed by the husband on 15 May 2015 be dismissed.
The wife’s application filed 14 September 2015 be dismissed.
The husband’s application pursuant to s 44(3) Family Law Act 1975 (Cth) for leave to be granted to institute proceedings for final orders in accordance with his application filed 15 May 2015 be listed for hearing at 10.00 am on 2 October 2015.
On or before 4.00pm on 29 September 2015 the wife file and serve a financial statement and if she chooses any further affidavit she seeks to rely upon at the hearing of the s 44(3) application.
Both parties’ costs are reserved.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vega & Riggs has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3110 of 2015
| Mr Vega |
Applicant
And
| Ms Riggs |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The husband has filed an application seeking leave under s 44(3) Family Law Act 1975 (Cth) (“the Act”) to proceed with a property settlement application. That application awaits a hearing date. The wife opposes the husband’s application for leave under s 44(3) of the Act.
The matter was originally listed before me today to deal with the husband’s application for an order restraining the wife from continuing proceedings under s 66G of the Conveyancing Act 1919 (NSW) in the Supreme Court of NSW for the sale of their property at Suburb B. The husband has abandoned that application during final submissions.
The matter was also listed before me today to hear the wife’s application for the transfer of the family law proceedings to be consolidated with existing proceedings in the Supreme Court pursuant to s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987(Cth). It is that application which I now address.
By way of background, I refer to some of what the husband says in his evidence. It is as yet untested and some of it might be in issue.
The husband is 70 years of age. The wife is 60 years of age. The parties do not have any children of their marriage.
The husband says that the parties commenced living together in 1979 at which time they moved into the Suburb B property. They were married in 1979. The parties lived together for a period of around 9 years. There were various periods of separation.
The husband has lived in the subject property and the wife has not since 1991.
The parties divorced at the end of 1992.
The parties have never completed a property settlement. The application that has been brought under s 44(3) of the Act is over 21 years out of time.
The wife remarried in 1993 and has two adult children as a result of that second marriage.
Suburb B was jointly purchased in October 1979.
In 1989 the parties jointly purchased another property at Suburb C.
The wife ceased to make any payments in respect of Suburb B in 1992.
In 1992 the husband asserts that he paid $70,000 to the wife as a result of an agreement they had reached.
The parties disposed of the Suburb C property in December 1994.
There have been a series of unconsummated attempts to finalise the property settlement under s 79 of the Act.
During final submissions, counsel for the husband drew attention to a letter written by the wife’s lawyers on 19 September 2013 indicating that the wife had instructed her lawyers in respect of attempting to obtain a property settlement pursuant to the Act and invited the husband to consider as a preliminary issue giving his consent to the extension of time in which to file proceedings which would finalise the matter. That is clearly a reference to an extension of time under s 44(3) of the Act. The husband replied to that invitation on 25 September 2013 agreeing to an order being made under s 44(3). No application was made by consent pursuant to s 44(3) at that time. That agreement was not subsequently implemented and the wife now apparently resiles from it.
The wife has not given an explanation as to why she subsequently sought to resolve the proceedings by relying upon State legislation.
The wife filed her application in the Supreme Court for the appointment of a statutory trustee for sale of the Suburb B property pursuant to s 66G of the Conveyancing Act (NSW) on 22 April 2015.
The husband did not file a defence nor did he file a cross-claim in the Supreme Court proceedings.
On 15 May 2015 the husband filed an application in this court, seeking inter-alia, leave under s 44(3) of the Act to institute an application under s 79 of the Act. The husband also at that time sought an anti-suit injunction against the wife proceeding in the Supreme Court, which I have said is now no longer pressed by him today.
On 19 June 2015 the husband filed a Notice of Motion in the Supreme Court seeking transfer of those proceedings to the Family Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), or alternatively, that they be stayed pending determination of proceedings in the Family Court.
On 17 August 2015 the wife filed a response in this Court to the husband’s initiating application seeking inter alia that his application pursuant to s 44(3) and his application for anti-suit injunction be dismissed.
The husband’s Notice of Motion in the Supreme Court was heard by his Honour Justice Darke in the Supreme Court on 28 August 2015. It seems that both parties and His Honour were of the view that the Family Court had jurisdiction, presumably accrued jurisdiction, to hear a matter under State law. Neither s 5(9) of the State cross vesting legislation nor Re Wakim: Ex Parte McNally (1999) 198 CLR 511 are mentioned in His Honour’s reasons. Justice Darke however found that it was not in the interests of justice that the Supreme Court proceedings be transferred to this court. His Honour declined the husband’s application for an adjournment or stay of the Supreme Court proceedings pending the determination of the s 44(3) application in this court and dismissed the husband’s motion with costs.
Justice Darke, inter alia, provided the following reasons for his decision:
It seems to me that, in considering the interests of justice in relation to the appropriate forum for the dispute between the plaintiff and the defendant, there are two competing considerations which are paramount. The first is the general desirability for matters which bear a matrimonial character to be dealt with in the specialist court. The second is the desirability of the parties being able to have all of their issues determined in the one court.
In circumstances where the nature of the case involves not only matters which have a matrimonial character but also matters which are more akin to issues that arise in proceedings in equity in relation to interests in property, the strength of the first consideration is somewhat diminished.
As for the second consideration, it seems to me that the risk that the Family Court will not ultimately be able to deal with all the matters in controversy between the parties is of such potential significance that it has to be accorded significant weight.
I have given consideration to a matter which was raised in the course of argument, namely, that these proceedings should be stayed or adjourned for a period to enable the question of leave in the Family Court to be determined. In that regard, I have been informed that the matter is listed in the Family Court on 21 September 2015 before a Registrar in the judicial duty list.
However, it seems that whilst the question of leave appears to be one that is to be dealt with as a preliminary issue in the Family Court, as one might expect in these circumstances, it is unlikely that the issue will be heard on 21 September 2015 or indeed for at least some period thereafter. In these circumstances, I am not minded to adjourn or stay the current proceedings pending the outcome of such an application.
During this hearing I raised with the parties the issue of jurisdiction.
Both parties conceded that neither s 109 of The Constitution nor the issue of whether the Supreme Court had jurisdiction to entertain a s 66G application between spouses when there was an extant application under the Act, was raised with Justice Darke and accordingly whether the Supreme Court had jurisdiction to dealt with the s 66G application was not considered by him,
Section 109 of The Constitution is in the following terms:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
Section 4 of the Act provides that a “matrimonial cause” means:
(ca) Proceedings between the parties to a marriage with respect to the property of the parties to the marriage or of either of them, being proceedings:
(i) arising out of the marital relationship;
(ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties;
....
Section 8(1)(a) of the Act provides:
After the commencement of this Act –
(a) Proceedings by way of matrimonial cause shall not be instituted except under this Act.
Section 78 of the Act provides:
78(1) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.
(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.
Section 78 of the Act is similar to s 66G of the State Act and a party may seek a declaration as to title or rights and an order for sale even though there is no dispute as to title or rights (see Vance and Vance (1978) FLC 90-522). No leave is required pursuant to s 44(3) of the Act to bring an application under s 78.
Section 79 of the Act gives the court power to make an order altering the interests of the parties to the marriage in property, which is just and equitable. In this case, leave under s 44(3) of the Act is needed to institute s 79 proceedings.
Whilst it was a case decided prior to the 1983 amendments to the definition of matrimonial cause in s 4(ca) of the Act, Justice Nygh’s decision in Rennie & Higgon (1981) FLC 91-087 is both instructive and persuasive, bearing as it does a similarity to the facts in this case. In that case, His Honour granted an injunction restraining the wife from continuing her s 66G proceedings in the Supreme Court until this court had dealt with the husband’s application for leave pursuant to s 44(3). He commented:
...in this case the right to institute proceedings has expired unless leave is obtained. Section 44(3) is akin to a statute of limitation; it provides that “proceedings shall not be instituted”. It is well established that provisions which are in the form that an action shall not be brought except within the time stated relate “to the remedy and not to the right” per Menzies J in Pedersen v Young (1964) 110 CLR 162, at 166, 167. Section 44(3) therefore does not terminate the right to a property settlement which has accrued during the course of the marriage. It therefore remains a right in relation to the property of the parties in respect of which, under the principles laid down in Sieling and Sieling, [(1979) FLC 90-627] an injunction can lie.
If the husband’s s 44(3) application is successful, then he will have leave to make his foreshadowed application for an order for property settlement pursuant to s 79 of the Act.
The order he has indicated he will seek is that the Suburb B property be transferred to him.
If leave is granted, the husband’s application pursuant to s 79 will be based on the husband’s assertions as to the contributions (see s 79(4)(a) – (c) of the Act) made by the parties during and subsequent to the marriage to the “property of the parties”, including a least one other property which the parties have already sold and to the possible adjustment to be made upon a consideration of those matters referred to in s 79(4)(d) – (g) of the Act.
I make no comment at this stage as to the strength of the husband’s application either for leave to bring the s 79 proceedings or if leave is granted, the strength of his current application pursuant to s 79.
The proceedings which the wife has commenced in the Supreme Court are of more limited scope than any s 79 proceedings, if leave is granted.
Section 66G of the Conveyancing Act 1919 (NSW) provides the power for the Supreme Court upon the application of a co-owner of property for the appointment of a statutory trustee for sale of a property held in co-ownership.
If leave is granted pursuant to s 44(3) of the Act the court has power to make the order as sought by the husband (whether it exercises a discretion to do so is another matter) and has power to alter the interests in the Suburb B property as between the parties and in aid of the power exercised under s 79 has more general powers under s 80 of the Act to make orders that are otherwise just and equitable including a power to sell the Suburb B property.
The court would have to consider whether any order adjusting the current equal interest in the Suburb B property is made, but a dismissal of the husband’s application under s 79 of the Act is itself an exercise of power and such an order does not preclude other powers being exercised that are more general powers under s 80 of the Act, including the court’s power to order a sale.
In the event the order that the husband seeks pursuant to s 44(3) of the Act is made, s 79 FLA “covers the field”. There is an intention in s 79 to completely, exhaustively and exclusively express the law governing, in this case, what is to happen to the Suburb B property (see Dixon J in both Ex parte McLean (1930) 43 CLR 472 at 483 and Victoria v The Commonwealth (1937) 58 CLR 618 at 630).
In the event that the husband obtains leave pursuant to s 44(3) of the Act, there is then a clear inconsistency between s 79 of the Act and s 66G Conveyancing Act 1919 (NSW) and in those circumstances, s 79 prevails.
Even in the event that the husband’s application under s 44(3) of the Act fails, either party could maintain an application instituted under s 78 of the Act. The Supreme Court also has original jurisdiction under the State cross vesting laws to hear an application under s 78 of the Act, subject to any application to transfer those proceedings back to this Court. Section 8 and s 78 of the Act provides an additional basis for asserting that s 66G is an inconsistent State law in this case.
Mr Coleman SC referred Justice Darke to a decision of Ellis J in The marriage of Slater (1995) 10 FamLR 381. With respect, that case deals with the issue as to whether or not proceedings seeking leave pursuant to s 44(3) will abate upon the death of a party. Justice Ellis made the point that until the s 44(3) leave is granted, s 79 proceedings have not been instituted and consequently the provision of s 79(8) of the Act is not attracted to allow property settlement proceedings to be instituted after the death of a party. That however in my view is a quite different point to the one that is relevant in this case.
Here the husband seeks a remedy to allow him to exercise rights which he has under the Act.
Whilst the issue of jurisdiction was not argued before Justice Darke, the effect of his Honour’s judgment has been to adopt jurisdiction to hear the wife’s s 66G Conveyancing Act claim. Justice Darke has claimed concurrent jurisdiction and there is consequently a conflict of jurisdictional claims.
The gravamen of the argument made by counsel for the wife for a transfer to the Supreme Court is that I am bound by the fact that Justice Darke has in effect found that the Supreme Court has jurisdiction to deal with the s 66G application, notwithstanding the existence of the family law proceedings. Given that his Honour has refused to transfer the s 66G proceedings to this court, it is argued the only other option available, in the interests of justice, is to transfer the proceedings in this court to the Supreme Court.
One difficulty with that argument is that Justice Darke seemed to envisage in his reasons that the s 44(3) application under the Act would be dealt with by this court.
The wife makes the point that the husband has not appealed Justice Darke’s decision. As counsel for the wife now concedes, an appeal does not lie from a decision under the cross-vesting legislation and it seemed agreed that the time to seek leave to appeal in relation to His Honour’s order refusing an adjournment or a stay of the Supreme Court proceedings pending the outcome of the application in this court, has not yet expired.
There is a need to deal with the husband’s s 44(3) application prior to the Supreme Court dealing with any s 66G application, otherwise, the husband’s application to retain the Suburb B property will either be nugatory or argued by the husband in the Supreme Court on a far more confined basis than otherwise might be available to him in an application under the Act.
The difficulty that presents can be resolved in three possible ways:
53.1.Granting the injunction that the husband originally sought to prevent the wife from continuing the Supreme Court. Sensibly counsel for the husband, in discussions recognised the gist of what the Full Court said in Tansell and Tansell (1977) FLC 90-307 at page 76,633, and withdrew the anti-suit injunction; or
53.2.Transferring the family law proceedings to the Supreme Court; or
53.3.Bringing the hearing of the s 44(3) application on expeditiously so that it is dealt with prior to the Supreme Court further hearing the matter. I am told the matter is next listed in the Supreme Court on 30 October 2015.
In support of the application under the cross vesting legislation the wife has referred to the recent decision of LL Pty Limited & Dawson & Ors [2015] FamCA 709. In that case, Loughnan J considered whether or not he should transfer property proceedings to the Supreme Court of NSW. The parties were engaged in several pieces of litigation in different courts. The Supreme Court had refused an application to have the related proceedings transferred to this court. His Honour in that case, on the facts of that case, decided that it was in the interests of justice to transfer the proceedings to the Supreme Court. The difference between that matter and this is that in those Supreme Court proceedings there were third parties involved who were in dispute with at least one of the parties to the marriage and in the Supreme Court the party to the marriage conceded, rightly or wrongly, that this court did not have jurisdiction to deal with a claim between the party to the marriage and the third party in that case. There is no third party involved in this case.
Given the urgency created by the conflict in the two courts and given that the parties are ready and the court has time available to hear the s 44(3) application next week, I find that the interests of justice would best be served if I adopted that course. Accordingly I will dismiss the wife’s application for transfer of the proceedings under the Act to the Supreme Court and I will list the matter for hearing.
I have indicated that, given both parties concede that they have failed to bring the jurisdictional question to the attention of the Supreme Court, it would be desirable if some steps be taken to remedy that oversight.
The husband asserts that the wife has not made a full and frank disclosure at this point and although there is some reference to her financial circumstances in paragraphs 58 – 62 of the wife’s affidavit filed 17 August 2015, the wife accepts that she has not complied with rule 13.05 Family Law Rules 2004 (Cth) and I consequently do not have any comprehensive statement of her current financial circumstances. The wife has agreed to a direction that she comply with the rule by next Tuesday.
I certify that the preceding fifty-seven (57) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 23 September 2015
Associate:
Date: 24.9.15
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