Watson & Holmes - [2007] FamCA 1285

FAMILY COURT OF AUSTRALIA

WATSON & HOLMES

[2007] FamCA 1285

FAMILY LAW - PROPERTY – De facto partners - Superannuation benefits - final orders made pursuant to 'cross vesting' legislation - Respondent to nominate the Applicant as a beneficiary to the superannuation fund , failed to do so and further failed to elect to receive the benefits and pay them out to the applicant as ordered - Effect of Re Wakim - Whether the court retains a jurisdiction to deal with the matter and make the orders sought by the Applicant - Whether the judgment was an 'ineffective judgment' for the purposes of s4(1) of the Federal Courts (State Jurisdiction) Act 1999 (Vic) - Whether the order was a relevant order under s 11 of that Act and thus valid as an order of the Supreme Court for enforcement in the Supreme Court - Whether, in any event, the Court had power to make the orders it did under the accrued jurisdiction of the Family Court, and consequently enforce the relevant Order

Family Law Act 1975 (Cth), ss 79, 106A
Federal Courts (State Jurisdiction) Act 1999 (Vic)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic)

Re Wakim; ex parte McNally (1999) 198 CLR 511; (1999) 163 ALR 270
McGrathv McGrath [2001] NSWSC 453
Damberg v Damberg (1999) 25 FamLR 476; [1999] NSWSC 1208
M and M [1998] FamCA 1900
Warby and Warby [2002] FLC 93-091

McLaughlin and Fosbury & Ors (1904) 1 CLR 546

Finlayson and Finlayson and Gillam (2001) FLC 93-068

APPLICANT:

MS WATSON

RESPONDENT:

MR HOLMES

FILE NUMBER:

MLF

4732

1994

DATE DELIVERED:	2 NOVEMBER 2007
PLACE DELIVERED:	Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

BRYANT CJ

HEARING DATE:

16 APRIL 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR A.G HAMMETT

SOLICITOR FOR THE APPLICANT:

NATOLI HOWELL

COUNSEL FOR THE RESPONDENT:

NO APPEARANCE

SOLICITOR FOR THE RESPONDENT:

NO APPEARANCE

Orders

1.That pursuant to Order No.2 made by the Court on 5 August 1997, the Respondent forthwith sign all documents deeds or papers that may be required of him to enable him to elect to receive all of his superannuation benefits and or entitlements including any preserved benefits with Commonwealth Rollover Plan and cause the same to be paid to the Applicant’s Solicitors Zolis Lawyers & Consultants for payment out to the Applicant.
2.That pursuant to section 106A of the Family Law Act 1975 the Registrar or a Deputy Registrar of the Court be appointed to execute all documents in the name of the Respondent and do all such acts and things to give validity to the orders sought in paragraph 1 of this application in particular annexure “CJM 6” and any other document requested by the Respondent’s Superannuation Fund.
3.That the Respondent pay the Applicant’s costs on a solicitor and client basis.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Chief Justice delivered this day will for all publication and reporting purposes be referred to as Watson & Holmes.

FAMILY COURT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Watson & Holmes

Details

AGLC: Watson & Holmes [2007] FamCA 1285
Case: [2007] FamCA 1285
Decision Date: 2 November 2007

CaseChat Overview and Summary

The parties in this matter were de facto partners, with the Applicant seeking to enforce superannuation orders previously made by the Family Court. The dispute concerned the Respondent's failure to comply with an order requiring him to nominate the Applicant as a beneficiary to his superannuation fund and to elect to receive and pay out those benefits to the Applicant. The court was required to determine whether it retained jurisdiction to deal with the matter and make the orders sought, particularly in light of the High Court's decision in *Re Wakim*.

The legal issues before the court were whether the prior Family Court judgment was an "ineffective judgment" for the purposes of the *Federal Courts (State Jurisdiction) Act 1999* (Vic), and whether it constituted a "relevant order" under section 11 of that Act, thereby rendering it valid for enforcement in the Supreme Court. The court also considered whether it possessed the power to make the orders under the accrued jurisdiction of the Family Court and consequently enforce the relevant order.

The court reasoned that the Family Court's judgment of 5 August 1997, made under the cross-vesting legislation prior to the commencement of the *Federal Courts (State Jurisdiction) Act 1999* (Vic), was an ineffective judgment. However, the court noted that the Act provides for remedial consequences in such situations, treating the ineffective judgment as a judgment of the Supreme Court. The court also considered section 11 of the Act, which allows for applications to the Supreme Court to treat a federal court proceeding as a Supreme Court proceeding where the federal court acknowledges a lack of jurisdiction. The court ultimately found it had the power to make the orders sought.

The court ordered that the Respondent forthwith sign all necessary documents to enable him to elect to receive all his superannuation benefits and cause them to be paid to the Applicant's solicitors for payment to the Applicant. Furthermore, pursuant to section 106A of the *Family Law Act 1975*, the Registrar or a Deputy Registrar was appointed to execute all documents in the Respondent's name to give validity to the orders. The Respondent was also ordered to pay the Applicant's costs on a solicitor and client basis.

Orders

Orders of the court

1. That pursuant to Order No.2 made by the Court on 5 August 1997, the Respondent forthwith sign all documents deeds or papers that may be required of him to enable him to elect to receive all of his superannuation benefits and or entitlements including any preserved benefits with Commonwealth Rollover Plan and cause the same to be paid to the Applicant’s Solicitors Zolis Lawyers & Consultants for payment out to the Applicant.

2. That pursuant to section 106A of the Family Law Act 1975 the Registrar or a Deputy Registrar of the Court be appointed to execute all documents in the name of the Respondent and do all such acts and things to give validity to the orders sought in paragraph 1 of this application in particular annexure “CJM 6” and any other document requested by the Respondent’s Superannuation Fund.

3. That the Respondent pay the Applicant’s costs on a solicitor and client basis.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Dessau J’s judgment of 5 August 1997 is a judgment of a federal court in a state matter given before the commencement of the Act on 15 December 1999 in a purported exercise of the jurisdiction under the cross-vesting Act. It follows that Dessau J’s judgment is an ineffective judgment within s 4(1) of the Federal Courts (State Jurisdiction) Act 1999 (Vic). There are several reported decisions on the effect of the legislation. In McGrathv McGrath [2001] NSWSC 453 at 435, Bryson J exercising the equity jurisdiction of the Supreme Court of New South Wales made orders for the specific performance of obligations created by orders of the Family Court under the cross-vesting legislation and constituting ineffective orders. In Damberg v Damberg (1999) 25 Fam LR 476; [1999] NSWSC 1208, Austin J was dealing with an application to enforce a judgment of the Family Court of Australia and an application for costs arising from the Family Court proceedings. In the course of the judgment, Austin J said as follows, having found that the relevant judgment was an `ineffective judgment’ within the meaning of s 4(1) of the Act (my emphasis) : 8 That being so, s 6 declares that the rights and liabilities of all persons are the same as if Purdy J's ineffective judgment had been a valid judgment of the Supreme Court in a Division constituted by a judge of this Court. By s 7 a right or liability conferred by s 6 is exercisable or enforceable as if it were a right or liability conferred by a judge of the Supreme Court. By s 10 the Supreme Court is empowered to vary, revoke, set aside, revive or suspend a right or liability conferred by s 6. The group of provisions which I have just described applies whenever there is an `ineffective judgment' as defined. The Act contemplates, therefore, that remedial consequences flow under it in respect of certain prior judgments of federal courts which are invalid in consequence of Re Wakim. Those consequences do not flow on the basis that the Act validates the ineffective judgment; they flow on the basis that the ineffective judgment is treated as a judgment of the Supreme Court. 9 Section 11 of the Act is directed to a different though overlapping situation. It applies in a case where there is a `relevant order'. That expression is defined in s 11(1). Approximately speaking, a relevant order is an order of a federal court, whether made before or after the commencement of the Act on 9 July 1999, acknowledging in some way that it does not have jurisdiction to hear and determine a proceeding which is before it relating to a State matter. Where a relevant order has been made, s 11(2) empowers a party to the federal court proceeding to apply to the Supreme Court for an order that the proceeding be treated as a proceeding of the Supreme Court. Section 11 obviously has potential application in a case where there is a proceeding in a federal court such as the Family Court of Australia which has not yet proceeded to judgment of any kind. It also has potential application in a case where a judgment, interlocutory or final, has been delivered and orders have been made in the federal court, but some additional relief is sought and the federal court determines that it lacks jurisdiction to grant the additional relief. Thus, if a final judgment in a federal court proceeding has been delivered but the federal court has not made an order with respect to costs, s 11 is potentially available to permit the party seeking costs to obtain an order of the Supreme Court that the proceeding be treated as a proceeding of the Supreme Court, and then to seek an order for costs in the Supreme Court. Proceedings for that purpose are brought by summons under Pt 77 r 141 of the Supreme Court Rules.

Ratio Decidendi

Legal Principle Established

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