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 of 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 OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 4732  of 1994

MS WATSON

Applicant

And

MR HOLMES

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 5 August 1997 Dessau J made orders by consent between the applicant mother and respondent father concerning their property and the respondent father’s superannuation benefits, as well as parenting orders relating to their children.

2. The parties were not married, and had never been married and the court’s jurisdiction to make property orders between them arose under s 4(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) (“the cross-vesting Act”). Leave was specifically granted by Dessau J for the parties to rely upon s 4(2) of the cross-vesting Act.

3. Relevantly, paragraph 4 of the order of Dessau J provides:

4.1 That the respondent father is to forthwith nominate the Applicant Mother as a beneficiary to his Superannuation Benefits and/or entitlements with the […] Bank upon the death of the Father to the extent that it is necessary to secure the payment of all capital sums and benefits to the Applicant Mother and the Father is hereby restrained from nominating any other person, Trust or Corporate Entity (other than the Applicant)  as a beneficiary to his Superannuation Benefits and/or entitlements.

4.2 That the Respondent Father shall forthwith elect to receive all of his Superannuation Benefits and/or entitlements with the reserve bank as presently exist including any Preserved Benefit and cause the same to be paid to the Applicant Mother’s  Solicitors, Morrison Bianchi Solicitors, for payment out to the Applicant Mother.

1. Contrary to the provisions set out above, the respondent has neither nominated the applicant as a beneficiary to the fund as directed (which was with the … Bank at the time of the orders but was rolled into the Commonwealth Life Personal Superannuation Fund when the respondent resigned from the … Bank in 1994) nor has he elected to receive his benefits etc or caused them to be paid to the applicant’s solicitors, despite the fact that he would have been in a position to do so, having reached the age of 57 years as dictated by the terms of the fund.

The Current Application

1. In order to enforce the orders of Dessau J, the applicant mother filed an application seeking the following 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 Messrs Natoli Howell Lawyers 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 an indemnity basis or alternatively, such other basis as the court deems meet.

   4.Such further or other orders as this Court deems appropriate.

2. In support of those orders the legal practitioner for the mother swore an affidavit, the relevant parts of which in summary are:

   (a)At the time the orders were made the respondent father had not yet reached an age which would entitle him to obtain a release of his preserved benefits in his superannuation, namely, the […] Superannuation Fund which he later rolled over the Commonwealth Life Limited;

   (b)The payment to the respondent father upon his resignation from the […] Bank in 1994 was made and totalled $90,925.46;

   (c)The respondent father, despite the existence of a restraining order to the contrary, withdrew his non-preserved superannuation benefits estimated at $91,000 which were taken from the jurisdiction and could not be recovered;

   (d)Following orders made by this Court in 1997, a sum of approximately $6,500 remained at the time of hearing in the respondent’s rollover fund with Commonwealth Life Limited;

   (e)Those monies remained in the Commonwealth Life Limited Superannuation fund since that time and now amount to a sum in excess of $11,000;

   (f)Pursuant to paragraph 4.1 of the orders made by Dessau J on 5 August 1997, the respondent father was to forthwith nominate the applicant as a beneficiary to his superannuation benefits and/or entitlements, and to the extent that it would be necessary to secure payment of all capital funds and benefits to the applicant and he was restrained from nominating any other person as beneficiary to his superannuation benefits and/or entitlements;

   (g)Pursuant to paragraph 4.2 of the said order the respondent father was to elect to receive all of his superannuation benefits and entitlements and cause them to be paid to the applicant’s solicitors for payment to the applicant;

   (h)Pursuant to paragraph 5 of the said order, the respondent father was to do all acts, matters and things as would be necessary to give effect to those orders, but has not done so;

   (i)The respondent father has now reached the age of 57 years and could elect to receive his entitlements by signing relevant documentation to withdraw this money from his rollover fund;

   (j)On 5 October 2005 the applicant mother’s solicitor wrote to the respondent father, at his then address, with appropriate documentation and asked him to sign it in order to give effect to the orders;

   (k)No response was received from the respondent father and the applicant indicated to her solicitor that she believed the respondent father had moved address. Accordingly correspondence was sent to him at the address at which the applicant believed him to be living in rural Victoria. No response was received;

   (l)The respondent was throughout the proceedings, uncooperative, recalcitrant and dishonest in withdrawing funds from his superannuation fund contrary to injunctions which were then in place and managed to dispose of the monies he received without accounting to the applicant for same and the only sum the applicant was able to obtain was the sum of $5,000;

   (m)The applicant mother established that the respondent father had been served by filing an affidavit of personal service.  The affidavit of service included an acknowledgment of service signed by the respondent father.   Nevertheless, when the matter came on for hearing, there was no appearance by the respondent father, nor anyone on his behalf.  Accordingly, the matter proceeded in his absence.

The Relevant Law

1. The first question that arises for determination is whether this Court has jurisdiction to make the orders sought.  The applicant mother contends that the court has jurisdiction and as the respondent father did not appear, there was no contradictor.  However, the court can only exercise a jurisdiction that is property vested in it and therefore the question of jurisdiction must be determined.

2. Order number 2 of the order of Dessau J was made in furtherance of the court’s jurisdiction pursuant to s 4(2) of the cross-vesting Act.

3. The relevant cross-vesting legislation was deemed to be invalid by the High Court in Re Wakim; ex parte McNally (1999) 198 CLR 511; (1999) 163 ALR 270. To overcome the problems of proceedings arising from orders made in the exercise of a jurisdiction which the High Court had deemed to be invalid, various Acts were passed by state legislatures. The relevant Act in this instance being the Federal Courts (State Jurisdiction) Act 1999 (Vic), the relevant parts of which follow:

   1Purpose

   The purpose of this Act is to provide that certain decisions of the Federal Court of Australia or the Family Court of Australia have effect for certain purposes as decisions of the Supreme Court and to make other provision relating to the jurisdiction of those courts.

   …

   3Definitions

   In this Act—

   …

   federal court means the Federal Court of Australia or the Family Court of Australia;

   ineffective judgment has the meaning given by section 4;

   judgment means a judgment, decree or order, whether final or interlocutory, or a sentence;

   …

   right includes an interest or status;

State matter means a matter—

(a)in which the Supreme Court has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State or a Territory; or

(b)which has been removed to the Supreme Court under section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987; or

(c)in respect of which a relevant State Act purports or purported to confer jurisdiction on a federal court; or

(d)arising under or in respect of an applied administrative law.

4         Meaning of ineffective judgment

(1)A reference in this Act to an "ineffective judgment" is a reference to a judgment of a federal court in a State matter given or recorded, before the commencement of this section, in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act.

(2)If—

(a)a Full Court of the Federal Court of Australia in its appellate jurisdiction has purported to affirm, reverse or vary an ineffective judgment; or

(b)a Full Court of the Family Court of Australia has purported to affirm, reverse or vary an ineffective judgment—

a reference in this Act to the ineffective judgment is a reference to the ineffective judgment in the form in which, and to the extent to which, it purports or purported to have effect from time to time.

…

6Rights and liabilities declared in certain cases

The rights and liabilities of all persons are, by force of this Act, declared to be, and always to have been, the same as if—

(a)each ineffective judgment of—

(i)…

(ii)the Family Court of Australia, otherwise than as a Full Court of the Family Court of Australia—

had been a valid judgment of the Supreme Court or, in the case of an ineffective judgment given or recorded on or after 7 June 1995, of the Trial Division of the Supreme Court; and

(b)each ineffective judgment of—

(i)…

(ii)a Full Court of the Family Court of Australia—

had been a valid judgment of the Full Court of the Supreme Court or, in the case of an ineffective judgment given or recorded on or after 7 June 1995, of the Court of Appeal.

…

8Effect of things done or omitted to be done under or in relation to rights and liabilities

(1)Any act or thing done or omitted to be done before or after the commencement of this section under or in relation to a right or liability conferred, imposed or affected by section 6—

(a)has the same effect, and gives rise to the same consequences, for the purposes of any written or other law; and

(b)is to be regarded as always having had the same effect, and given rise to the same consequences, for the purposes of any written or other law—

as if it were done, or omitted to be done, to give effect to, or under the authority of, or in reliance on, a valid judgment of the Supreme Court.

(2)For the purposes of an enforcement law, any act or thing done or omitted to be done before or after the commencement of this section gives rise to the same consequences, and is to be regarded as always having given rise to the same consequences, as if each ineffective judgment were a valid judgment of the Supreme Court given in or in relation to the proceeding in or in relation to which the ineffective judgment was given or recorded.

(3)In this section—

enforcement law means a provision of a law (other than a law relating to contempt of court) that sets out a consequence for a person if the person—

(a)contravenes; or

(b)acts in a specified way while there is in force—

a judgment, or a particular kind of judgment, given by a court.

…

10Powers of Supreme Court in relation to declared rights and liabilities

(1)The Supreme Court may vary, revoke, set aside, revive or suspend a right or liability conferred, imposed or affected by section 6 as if it were a right or liability validly conferred, imposed or affected by the Supreme Court in or in relation to proceedings of the kind in or in relation to which the ineffective judgment was given or recorded.

(2)In addition to its powers under subsection (1), the Supreme Court also has power to give a judgment achieving any other result that could have been achieved if—

(a)the ineffective judgment had been a valid judgment of the Supreme Court given in or in relation to proceedings of the kind in or in relation to which the ineffective judgment was given or recorded; and

(b)the Supreme Court had been considering whether—

(i)to vary, revoke, set aside, revive or suspend that judgment; or

(ii)to extend the time for the doing of any thing; or

(iii)to grant a stay of proceedings.

…

1. Thus, a reference in the legislation to an ineffective judgment is a reference to a judgment of a federal court in a state matter given or recorded, before the commencement of this section, in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act.

2. 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.

3. 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.

4. 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.

1. An application having been brought to enforce the orders of Dessau J, the court is, in my view, required to determine two matters:

   (a)The first is whether the judgment is an `ineffective judgment’ in terms of s 4(1) of the Act, being a judgment of a “judgment of a federal court in a state matter given or recorded, before the commencement of this section, in the purported exercise of jurisdiction purporting to have been conferred on the federal court by a relevant State Act”. There is no doubt that Dessau J’s judgment falls within this definition and is thus an ineffective judgment for the purposes of the Act; and

   (b)Whether the order of Dessau J of 5 August 1997 is a “relevant order” pursuant to section 11 of the Act.  A “relevant order” means:

   (a)  an order of a federal court, whether made before or after the commencement of this section, dismissing, striking out or staying a proceeding relating to a State matter for want of jurisdiction; or

   (b)  a declaration by a federal court, whether made before or after the commencement of this section, that it has no jurisdiction to hear and determine a proceeding relating to a State matter; or

   (c)  any other decision or determination by a federal court,  whether made before or after the commencement of this section, that it has no jurisdiction to hear and determine a proceeding relating to a State matter.

Counsel’s submissions

1. Counsel’s argument was essentially put on three bases.  The first was that the orders made by Dessau J were valid orders, validly made at the time and thus able to be enforced.  This argument can be fairly shortly dealt with.  The effect of the decision in Re Wakim (supra) was that the Family Court did not have jurisdiction to make orders with respect to property rights of these parties who were not, and had never been married.  The court by a majority held that the Commonwealth legislation that purported to confer state jurisdiction on Federal Courts was invalid.  The effect of the Federal Courts (State Jurisdiction) Act 1999 (Vic) is to enable parties, where orders were made under the invalid jurisdiction, to exercise or enforce rights in the Supreme Court on the basis that the ineffective judgment of the court is deemed to be a valid judgment of the Supreme Court.

2. The second argument put by Counsel was to the effect that Damberg’s case in particular was distinguishable because it was dealing with a potential variation to the order rather than just enforcement, and Counsel argued that the provisions of the Federal Courts (State Jurisdiction) Act 1999 (Vic) simply provided an alternate remedy to that which could be exercised by the Family Court.

3. Again this argument can be shortly dealt with.  It clearly matters not what orders are being sought provided that they rely on rights and liabilities which arise from the ineffective order. There is no distinction between appeals, variations, orders for costs or enforcement.

4. Counsel’s submission that the legislation only contemplates “incomplete” proceedings cannot be sustained by the clear meaning of the Act.

5. The third submission by Counsel was that the orders of Dessau J did not depend for their jurisdiction upon the cross-vesting Act but could be sustained under the accrued jurisdiction of the Court.

6. The first impediment to this argument might seem to be that the orders themselves are expressed to be made expressly pursuant to s 4(2) of the cross-vesting Act. However Dessau J was unaware at the time that the orders were made, as were the parties, that the legislation under which she purported to make them would be invalidated and thus did not consider an alternative basis on which the orders could be made. The question which arises now is whether I can find another basis upon which her Honour might have validly made the orders, notwithstanding the express reliance upon the cross-vesting legislation, and if so, in reliance upon the orders being validly made by the Family Court make orders as sought by the applicant.

7. It is now established that the jurisdiction of the Federal Court having jurisdiction in a matter arising under a law made under the Parliament is (commencing at paragraph 135 of Re Wakim (supra)):

   135.…not "restricted to the determination of the federal claim or cause of action in the proceeding, but extend[s] beyond that to the litigious or justiciable controversy between parties of which the federal claim or cause of action forms part" [Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261 at 290 per Mason, Brennan and Deane JJ. See also Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457; Fencott v Muller [1983] HCA 12; (1983) 152 CLR 570].

   …

   138.It must be taken to follow from the Court's decisions in Philip Morris [(1981) 148 CLR 457], Fencott [(1983) 152 CLR 570] and Stack [(1983) 154 CLR 261], however, that the identification of the justiciable controversy between parties is not determined only by the considerations of there being separate proceedings and different parties in the one court. And in some circumstances a single matter can proceed through more than one court…

   139.The central task is to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.

   140.In Fencott it was said that [(1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ]:

   "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"[Fencott [1983] HCA 12; (1983) 152 CLR 570 at 608 per Mason, Murphy, Brennan and Deane JJ]. There is but a single matter if different claims arise out of "common transactions and facts" or "a common substratum of facts"[Philip Morris [1981] HCA 7; (1981) 148 CLR 457 at 512 per Mason J], notwithstanding that the facts upon which the claims depend "do not wholly coincide" [Fencott [1983] HCA 12; (1983) 152 CLR 570 at 607 per Mason J, Murphy, Brennan and Deane JJ]. …

   141.Often, the conclusion that, if proceedings were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings will indicate that there is a single matter. By contrast, if the several proceedings could not have been joined in one proceeding, it is difficult to see that they could be said to constitute a single matter.

1. As to whether the exercise of the accrued jurisdiction was discretionary, Gummow and Hayne JJ in Re Wakim (supra) said (at paragraph 149):

   There may be some difficulty in analysing the question as one of "discretion". It is not clear what principles or criteria would inform the exercise of a discretion of this kind. It may be that the better view is that the references to "discretion" are not intended to convey more than that difficult questions of fact and degree will arise in such issues - questions about which reasonable minds may well differ. It is, however, not necessary to decide what is meant by the references to discretion in this context.

1. In Warby and Warby [2002] FLC 93-091 the Family Court held that (at paragraph 79):

   [A]s a matter of law, the Family Court of Australia is not restricted to the determination of a family law claim or proceeding; it may exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part. The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.

1. Relevant to whether the Family Court of Australia will invoke the Court’s accrued jurisdiction is:

   (1)what the parties have done;

   (2)the relationships between or among them;

   (3)the laws which attach rights or liabilities to their conduct and relationships;

   (4)whether the claims are part of a single justiciable controversy and in determining that question whether the claims are ``attached'' and not ``severable'' or ``disparate'';

   (5)whether the claims are non-severable from a matrimonial cause and arise out of a common sub-stratum of facts; and

   (6)whether the Court has the power to grant appropriate remedies in respect of the ``attached'' claims.

1. No more is required to sustain a judgment than a valid and sufficient jurisdiction to hear and determine a matter irrespective of a particular source of that jurisdiction.

2. In McLaughlin and Fosbury & Ors (1904) 1 CLR 546 at 549, Griffiths CJ said that the powers of a judge “are not in fact or in law impaired if he erroneously attributes the source of the particular power to the wrong statute”.

3. In Finlayson and Finlayson and Gillam (2001) FLC 93-068, the Full Court of the Family Court had to consider the jurisdictional basis of orders made by Murray J in reliance upon the cross-vesting legislation. Knowing that the parties ultimately agreed that there was a sound jurisdictional basis for the orders made by the trial Judge, the Full Court emphasised that jurisdiction cannot be conferred on the Court by consent of the parties when not conferred by law and it was therefore necessary for the Full Court to determine, as a matter of law, whether the trial Judge had jurisdiction to determine the proceedings.

4. They concluded that despite the fact the order was made pursuant to a purported exercise of jurisdiction which the Court did not then have, the order was jurisdictionally sustainable pursuant to the court’s accrued jurisdiction. The Full Court considered for itself the matters which provided the accrued jurisdiction for the making of the orders.

5. I am thus satisfied that it is open to me to find a valid jurisdictional basis for the making of Dessau J’s orders other than the cross-vesting legislation if I am satisfied that the court did have accrued jurisdiction in this matter.

Did the Court have accrued jurisdiction ?

1. By 1987, New South Wales, Victoria, Queensland, South Australia and Tasmania had referred to the Commonwealth State legislative powers in respect of the custody and guardianship of, and access to, ex nuptial children.

2. These proceedings which commenced in April 1994 included proceedings about property (relying on the cross-vesting legislation) and about parenting orders in respect of the two children of the parties.

3. The proceedings were characterised by numerous applications, both in relation to children’s issues and financial issues.  They included many interim parenting orders and interlocutory injunctions in relation to property.  

4. The trial was listed for hearing before Dessau J as one hearing and affidavits were filed.  On the day of the hearing the matter was settled, with orders made by consent by Dessau J in relation to both the parenting and property proceedings.  It is apparent from the evidence of the applicant’s solicitor in these proceedings, to which I have referred, that the question of credit, amongst other things, was a significant issue at trial.

5. Despite the fact that the order was made by Dessau J pursuant to a purported exercise of jurisdiction which the Court did not then have, in my view the order is jurisdictionally sustainable pursuant to the Court’s accrued jurisdiction because:

   (a)the parties to both sets of proceedings, that is the parenting aspect        and property aspect were the father and mother;

   (b)the property claims were non-severable from the parenting claims and arose out of a common substratum of facts which included the breakdown of the party’s relationship, their relationships with their children and the efforts of the parties over the period of their relationship both in relation to parenting of the children and to the acquisition and contributions they made to the acquisition, conservation and improvement of property acquired during their relationship;

   (c)the claims therefore form part of a single justiciable controversy and were not “severable”, or “disparate”; and

   (d) the Court has power to grant appropriate remedies in relation to the ‘attached’ claim.

6. I am thus satisfied that it was always within the jurisdiction of Dessau J to make orders in relation to the property of the parties on the basis of the accrued jurisdiction of the Court and it follows that there is jurisdiction to enforce the orders if they have not been complied with.

7. As there was no appearance by the respondent, and I was satisfied of service upon him, I propose to make the orders as sought by the applicant mother with one minor change. Since the matter was before me, the solicitor acting for the wife has moved to another firm and that firm is now acting for the applicant.  A Notice of Address for Service was filed. Accordingly, I propose to make orders in the terms of the application, save that the solicitors to whom the payment is to be made will be the applicant’s current solicitors, Zolis Lawyers and Consultants.

8. I will make an order for costs in reliance upon  s117(2A)(d) on a solicitor/client basis

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Chief Justice.  

Associate: 

Date:  2 November 2007