Vickery and Drew
[2012] FamCAFC 221
•8 November 2011
FAMILY COURT OF AUSTRALIA
| VICKERY & DREW | [2012] FamCAFC 221 |
| FAMILY LAW – APPEAL – PROPERTY – termination agreement between the parties pursuant to Pt 4 of the Property (Relationships) Act 1984 (NSW) – termination agreement set aside at first instance – overturned on appeal – parties not informed at first instance that Federal Magistrate intended to make a decision concerning the setting aside of the termination agreement – breach of natural justice – appeal conceded on this point by respondent. |
| Family Law Act 1975 (Cth) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) Property (Relationships) Act 1984 (NSW) |
| Dahl & Hamblin (2011) FLC 93-480 |
| APPELLANT: | Mr Vickery |
| RESPONDENT: | Ms Drew |
| FILE NUMBER: | CAC | 132 | of | 2010 |
| APPEAL NUMBER: | EA | 169 | of | 2010 |
| ORDERS MADE: | 8 November 2011 |
| REASONS DELIVERED: | 24 December 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | 8 November 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 26 November 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 1307 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wilson |
| SOLICITOR FOR THE APPELLANT: | Creaghe Lisle Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Jackson |
| SOLICITOR FOR THE RESPONDENT: | Farrell Lusher |
Orders made 8 November 2011
That to the extent that is necessary, leave to appeal be granted.
That the appeal be allowed.
That Order 3 of the orders of the Honourable Federal Magistrate Neville made on 26 November 2010 be set aside.
That the matter be remitted for rehearing before a Federal Magistrate other than Federal Magistrate Neville on the issue of the validity of the termination agreement between Mr Vickery and Ms Drew dated 1 February 2008 and made pursuant to Part 4 of the Property (Relationships) Act 1984 (NSW).
That the appeal otherwise be dismissed.
That there be no order as to costs.
That the Court grants to the appellant a costs certificate pursuant to section 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.
That the Court grants to the respondent a costs certificate pursuant section 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.
That the Court grants to the appellant a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a cost certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the appellant in respect of such part as the Attorney-General considers appropriate of any costs incurred by the appellant in relation to the new trial.
That the Court grants to the respondent a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a cost certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent in respect of such part as the Attorney-General considers appropriate of any costs incurred by the respondent in relation to the new trial.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vickery & Drew has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Number: EA 169 of 2010
File Number: CAC 132 of 2010
| Mr Vickery |
Appellant
And
| Ms Drew |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 26 November 2010 in proceedings between Mr Vickery
(“the father”) and Ms Drew (“the mother”) Federal Magistrate Neville made orders which included the following:
(1)Pursuant to s.90RD(2)(b) of the Family Law Act 1975, [X] (born … January 2002) and [Y] (born … April 2005) be declared children of the de facto relationship between [Ms Drew] and [Mr Vickery].
(2) Pursuant to s.90SB(b), and pursuant to the declaration under s.90RD(2)(b) regarding ‘children of the de facto relationship’, the Court declares that it has jurisdiction to make an order under s.90SM of the Act.
(3)Pursuant to either s.90UM(1)(e) and/or s.90UM(1)(f), the termination agreement between the parties [Ms Drew] and [Mr Vickery] date 1st February 2008, be set aside.
(4)Until further order, or by written agreement with the Applicant,
[Ms Drew], the Respondent, [Mr Vickery], be restrained from taking any further steps in proceedings numbered … of 2009 in the Supreme Court of New South Wales, other than adjourning or discontinuing those proceedings, or defending any application or motion, in that Court, by [Ms Drew].The father filed a notice of appeal against those orders on 22 December 2010. In that notice he sought leave to appeal. We were not persuaded that leave was necessary, but we granted it nevertheless to enable the appeal to proceed.
On 8 November 2011 the appeal was heard by this Full Court. At the conclusion of the hearing of the appeal we made orders in which we:
·granted the father leave (to the extent necessary) to appeal
·allowed the appeal against, and set aside, Order 3 of the Federal Magistrate’s orders
·remitted the issue of the validity of the Termination Agreement (which had been the subject of Order 3) to the Federal Magistrates Court for re-hearing
·made no order as to costs but granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) to the parties in respect of the appeal and the re-hearing.
We undertook to provide reasons for those orders at a later date, and these are now our reasons.
Background
The mother and the father commenced a relationship in November 1996 and lived together from that date in a country town in New South Wales until March 2007. There was a second period to their relationship which took place from April (or perhaps February, according to the Federal Magistrate) 2009 until August 2009.
There are two children of the relationship, X, born January 2002, and Y, born April 2005. Both children were obviously born during the period of the first cohabitation.
Between the two periods of cohabitation the parties signed a Termination Agreement under the Property (Relationships) Act 1984 (NSW) (“the NSW Act”). The agreement dealt only with matters relating to property.
The Federal Magistrate described the proceedings before him at paragraph 16 of the Reasons for Judgment:
[Ms Drew] seeks, in this Court, but with reference to s.49 of the
Domestic (Relationships) Act1984, to set aside the agreement. If necessary, she seeks that this relief be granted under the Court’s accrued jurisdiction. She alleges that she entered it under duress. She contends that she was subjected to domestic violence throughout her relationship with the Respondent. This is denied by [Mr Vickery]. He says that the discussions with [Ms Drew] in relation to property and the children, pursuant to which the termination agreement was executed, were amicable. (footnotes omitted)
The Federal Magistrate then recorded at paragraph 18 of the reasons that the father had filed a response seeking a dismissal of the application for “want of jurisdiction”, and that by an amended response he had sought the following orders in the alternative:
·That the Application be dismissed as the Federal Magistrates Court of Australia does not have the jurisdiction to set aside a duly executed Termination Agreement made pursuant to the
Property (Relationships) Act 1984 (NSW) [or]·That the plaintiff fails to meet the threshold as set out in s.79A of the Family Law Act (1975) and or s.46 Property (Relationships) Act 1984 (NSW) and consequently ss.7 and 9 of the Contracts Review Act 1980 (NSW) that would warrant the setting aside of the duly executed Termination Agreement made pursuant to the
Property (Relationships) Act 1984 (NSW). (footnotes omitted)The Federal Magistrate then noted the issues for determination, as submitted by each of the parties. The father contended the only issue for the Court to determine was whether the parties were in either:
(a) one de facto relationship from November 1996 to August 2009 with a period of separation of about 25 months; or
(b) two de facto relationships, with the first one having ended in March 2007 and another separate period of cohabitation that commenced in April 2009.
Counsel for the mother was recorded by the Federal Magistrate as having agreed with the father’s submissions as to the issue to be determined, but also submitted that the Court had jurisdiction because there were two children from the relationship. This, it was submitted, would entitle the Court to make a declaration under s 90RD and orders under s 90UM(1)(f) of the
Family Law Act 1975(Cth) (“the Act”).
The Federal Magistrate, in paragraph 25, summarised the issues to be determined as being:
(a) on the facts of this matter, does this Court have jurisdiction;
(b) if so, how, and on what base or bases, should that jurisdiction be exercised, and with what effect?
The Federal Magistrate also identified (at paragraph 46) as relevant to the determination of the threshold jurisdiction issue, the question of whether the parties’ resumption of co-habitation in April 2009 thereby set aside the earlier Termination Agreement.
The reasons for judgment of the Federal Magistrate
The Federal Magistrate concluded for reasons which he set out that the Court had jurisdiction in relation to the matters in issue between the parties (at paragraphs 65 to 69). He also concluded at paragraph 74 that it was clear from the evidence that the de facto relationship had been revived or resumed at the initiative of the father and that in doing so, and inviting the relationship and cohabitation to resume, the father must be taken as having waived his ability to rely on the earlier Termination Agreement. In the Federal Magistrate’s view, by resuming their cohabitation both parties must be “taken as having waived whatever rights they had under that agreement” (at paragraph 74). The Federal Magistrate concluded at paragraph 75 that:
Without formally deciding which is the better characterisation in the light of High Court authority (i.e. estoppel by representation or estoppel by convention), it may be argued that both parties are estopped from relying on the termination agreement because of their subsequent decision and conduct to resume cohabitation.
The Federal Magistrate described this “more colloquially” at paragraph 81 as follows:
… [Mr Vickery] cannot have it both ways: he cannot invite the resumption of a de facto relationship with the woman with whom he was in a de facto relationship for a significant number of years and with whom he had two children, and with whom he seems to continue to co-parent the children of the relationship, and then later seek to rely on an intervening agreement that was entered into prior to the resumption of the relationship (and which is contended to have been entered under duress) to defeat his former partner, and to prevent the Court, from looking into the justice and equity of the financial affairs of a relationship that spanned from 1996 until 2009, albeit with a period of separation.
The Federal Magistrate went on to conclude at paragraph 83:
In short, the jurisdictional bases for this Court to consider [Ms Drew’s] application under s.90SM have been established. They are (i) the duration of the de facto relationship (s.90SB(a)) and (ii) the children of the de facto relationship (s.90SB(b)).
Relying on either s 90UM(1)(e) and/or section 90UM(1)(f) of the Act, the Federal Magistrate ordered that the Termination Agreement between the parties be set aside.
The conceded grounds of appeal
In the opening paragraph of the mother’s written summary of argument filed in preparation for the hearing of the appeal, it was stated that Grounds 3 and 4 were conceded, and this concession was re-iterated by Counsel for the mother at the hearing of the appeal.
Ground 3 asserted that the Federal Magistrate had erred in setting aside the Termination Agreement on the basis of, what can be termed, various legal issues. It is unnecessary that we concern ourselves with these issues, not only because the ground of appeal in question was conceded, but also because Ground 4 raised what can be regarded as a more fundamental complaint, that being that the father (and apparently the mother also) had not been informed that his Honour intended to make a decision concerning the setting aside of the Termination Agreement. Thus, neither party had had the opportunity to make submissions on that issue, and accordingly there had been a breach of natural justice.
As we have indicated, Ground 4 with its assertion of a breach of natural justice was conceded on behalf of the mother. Therefore the appeal against his Honour’s order, which set aside the Termination Agreement (Order 3) had to be allowed, with that order being discharged and the application to set aside the Termination Agreement remitted to the Federal Magistrates Court for rehearing.
The remaining grounds of appeal
The remaining grounds of appeal, being Grounds 1 and 2 asserted that the Federal Magistrate had neither jurisdiction nor power respectively to hear the mother’s application in relation to the Termination Agreement. The particulars contained in these Grounds relied essentially on the fact that the first period of the relationship had ended prior to the commencement of the relevant provisions in the Act concerning de facto property matters (Part VIIIAB of the Act) on 1 March 2009 and that no child had been born to the parties during their resumed relationship following that date.
At the commencement of the hearing of the appeal we drew to the attention of both counsel the then recent decision of the Full Court in Dahl v Hamblin (2011) FLC 93-480 where it was held at [48]:
Thus our overall conclusion is that if parties to a de facto relationship separate after 1 March 2009, one or both may commence proceedings under Part VIIIAB if they can establish that their relationship has existed for periods aggregating at least two years and that at least one of those periods occurred after the commencement of Part VIIIAB on 1 March 2009. It matters not at least for the purposes of establishing jurisdiction under s 90SB, how long ago the other period, or periods occurred, or what were the circumstances of any breakdown in the relationship (although as we have said, the circumstances of their periods together and of their periods apart will, of course, be important in the determination of a “proper” maintenance order or a “just and equitable” order for alteration of property interests).
To be fair to the parties, neither Counsel were aware of the Full Court decision until we provided them with a copy at the outset of proceedings.
Having regard to the gravamen of that decision and the conceded date of cessation of cohabitation, being August 2009, once the two periods are aggregated it is clear that the provisions of Part VIIIAB of the Act apply to this case and on that basis alone the Federal Magistrate had jurisdiction to entertain the application. Accordingly, the appeal could not succeed on these grounds.
Having been made aware of the Full Court decision in Dahl v Hamblin, counsel for the appellant did not press Grounds 1 and 2, and conceded that we should not interfere with Orders 1 and 2 of the Federal Magistrate’s orders.
Costs of the appeal
In light of the submissions received in relation to costs at the conclusion of the hearing of the appeal, we determined that there should be no order for costs and that costs certificates should be granted to the parties in respect of the costs of the appeal and of the rehearing.
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Finn & Strickland JJ) delivered on 24 December 2012
Associate:
Date: 24 December 2012
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