Whitehouse and Whitehouse
[2009] FamCA 68
•6 February 2009
FAMILY COURT OF AUSTRALIA
| WHITEHOUSE & WHITEHOUSE | [2009] FamCA 68 |
| FAMILY LAW – JURISDICTION – Accrued – Whether the Court has the jurisdiction to hear an application in reliance on the Court’s accrued jurisdiction, when a remedy is available to that party pursuant to s 78 of the Family Law Act 1975, and that remedy is not pursued – Fisher v Fisher (1986) 161 CLR 438 and Estate of MacKenzie (deceased) & Estate of MacKenzie (deceased) (2008) 39 Fam LR 253 applied |
| Family Law Act 1975 (Cth) Judiciary Act 1903 (Cth) |
| Estate of MacKenzie (deceased) & Estate of MacKenzie (deceased) (2008) 39 Fam LR 253 Fencott v Muller (1983) 152 CLR 570 Fisher v Fisher (1986) 161 CLR 438 In the marriage of Collins (1977) 30 FLR 93 In the Marriage of Duff (1977) 29 FLR 46 In the marriage of Farr (1976) 29 FLR 70 Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 257 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Tansell v Tansell (1977) 19 SASR 165 Vergis and Vergis (1977) FLC 90-275 Warby v Warby (2001) FLC 93-091 |
| APPLICANT: | Ms Whitehouse |
| RESPONDENT: | Mr Whitehouse |
| FILE NUMBER: | MLF | 3248 | of | 2006 |
| DATE DELIVERED: | 6 February 2009 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Mushin J |
| HEARING DATE: | 20 June 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirkham QC Mr Thompson Mr Moloney |
| SOLICITOR FOR THE APPLICANT: | C E Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr North SC Mr Sweeney |
| SOLICITOR FOR THE RESPONDENT: | Grice & Grice |
Orders
That paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007 be dismissed.
That all other applications be dismissed.
That liberty be reserved to both parties to apply for any order consequent upon these orders including any order for costs.
That the proceedings be removed from the list of cases awaiting hearing.
IT IS NOTED that publication of this judgment under the pseudonym Whitehouse & Whitehouse is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 3248 of 2006
| MS WHITEHOUSE |
Applicant
And
| MR WHITEHOUSE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties married in their later years, each of them for the second time. They both had children from their prior marriages. The wife was admitted to hospital and when discharged, went to live at her daughter's home. The daughter filed an application for alteration of property interests on behalf of her mother and also applied to be her mother's Case Guardian. In an affidavit supporting that application, the daughter alleged that the husband and the wife were separated and that the marriage had broken down.
A response to that application was filed on behalf of the husband seeking orders for alteration of property interests and alleging that the parties were not separated. The supporting affidavit relied on the alleged lack of separation to challenge the jurisdiction of the Court to hear the substantive applications.
Subsequently, the husband died. An order was made substituting the husband’s former case guardians as his legal personal representatives pursuant to the provisions of s 79(8) of the Family Law Act 1975 (Cth) ("the Act").
Following the death of the husband, the wife's originating application was amended to seek a declaration “at equity” asserting that the husband held certain property by way of implied constructive or resulting trust on behalf of the wife. That amendment sought to invoke the accrued jurisdiction of the Court. No challenge was made to that amendment on behalf of the husband's legal personal representatives at the time that it was made.
After the amendment was made, the wife died. It is common ground that as a result of the wife's death, all proceedings within the original jurisdiction of the Court pursuant to the Act died with her. The only alleged surviving proceeding was that pursuant to the accrued jurisdiction of the Court. However, the husband's legal personal representatives have challenged the Court's jurisdiction to hear that application. As a result, I conducted a hearing on the question of both the Court's jurisdiction and, if there is to be jurisdiction, the discretionary question of whether that jurisdiction should be exercised. These reasons for judgment consider those issues.
Background Facts
The husband was born in July 1921 and the wife was born in June 1923.
The husband and the wife married in September 1979. It was the second marriage for both of them. It was alleged on behalf of the wife that there had been a prior period of cohabitation which is not presently relevant.
In October 2006 the wife was admitted to hospital, apparently suffering from a dementia related problem. On discharge, she went to live at her daughter's home. It was subsequently alleged on behalf of the wife by her daughter – who later became her Case Guardian as referred to below – that at that point the parties were separated and their marriage had broken down irretrievably. That was subsequently challenged on behalf of the husband by his Case Guardian, also referred to below.
On 24 November 2006, proceedings were instituted in this Court on behalf of the wife by her daughter. Two applications were filed. The first of those, an Application in a Case, sought the appointment of the wife's daughter as her Case Guardian together with interim spousal maintenance for the wife. The application also sought that the matter "be heard expeditiously".
The second application was an Application for Final Orders and sought the following final orders:
(1)There be such adjustment of property between the parties as this Honourable Court deems appropriate.
(2)Such further or other order as this Honourable Court deems appropriate.
It is common ground that this application is to be treated as an application for alteration of property interests pursuant to s 79 of the Act.
On 20 December 2006 orders were made by consent that the wife's daughter be appointed as Case Guardian of the wife and the husband's son be appointed as Case Guardian of the husband.
On 15 January 2007 a Response to an Application for Final Orders was filed on behalf of the husband by his Case Guardian. It sought the following orders:
(1)That the assets of the parties be divided 65% as to the Husband and 35% as to the Wife.
(2)That the Wife's Application be otherwise dismissed.
(3)That the Wife pay the Husband's costs of and incidental to these proceedings.
On 1 May 2007 an Application in a Case was filed on behalf of the husband by his Case Guardian seeking the following orders:
(1)That the wife's Application for expedition of the trial … be dismissed.
(2)That the wife pay the husband's costs of and incidental to this Application.
(3)The court declare that the marriage between husband and wife has not irretrievably broken down irretrievably and that separation has not occurred.
(4)The wife's Form 1 Application for Final Orders filed on 24 November 2006 be dismissed on the grounds that the marriage has not broken down.
(5)A declaration that the wife's Form 1 Application and Form 2 Application in a Case filed on 24 November 2006 is an abuse of process and that both Applications be dismissed and that the wife pay the husband's costs of and incidental to the proceedings.
The application also sought further alternative orders which are not presently relevant.
The matter came before me on 2 May 2007. I dismissed the wife's application for priority and ordered that the husband's Application in a Case filed 1 May 2007 be heard as a preliminary issue.
In May 2007, the husband died.
On 15 June 2007, the wife's Case Guardian filed an Amended Application for Final Orders, which I will refer to as "the Accrued Application". The amendment added the following order to the wife’s initial application:
In the alternative that pursuant to the accrued jurisdiction of the Court and at equity it be declared that the husband (and his successors in title) hold his and/or their interest in the property in his/their name, pursuant to an implied constructive or resulting trust.
It was evident during the course of submissions that this amendment sought to employ the use of State legislation.
On 21 August 2007 I made orders substituting the adult daughters of the deceased husband, being the executrices of his Will, for the husband in these proceedings pursuant to the provisions of s 79(8) of the Act. That application was not opposed. I otherwise dismissed interim applications and granted priority for the trial of the final applications.
In August 2007 the wife died.
Following the death of the wife, there were several mentions of the applications before me which dealt with procedural matters. Of present relevance is the fact that during at least one of those mentions, Counsel for the husband’s legal personal representative raised the possibility of a constitutional challenge to the Court's jurisdiction which had not been particularised at that time.
On 20 November 2007, an Application in a Case was filed on behalf of the deceased wife seeking that the executrices of the wife's Will be substituted as parties on behalf of the wife. To the extent that that application may be seen as being pursuant to s 79(8) of the Act, no order was made on it because all applications pursuant to s 79 of the Act had died with the wife. (See Fisher v Fisher (1986) 161 CLR 438; Estate of MacKenzie (deceased) & Estate of MacKenzie (dec’d) (2008) 39 Fam LR 253).
These Proceedings
As a result of the mentions referred to above, on 10 December 2007 I made orders which provided, inter alia, that the husband's legal personal representatives were to make any application for removal of the proceedings to the High Court of Australia pursuant to s 40 of the Judiciary Act 1903 (Cth) no later than 21 December 2007. In the event that no such application was made, the parties were required to file and serve submissions with regard to the Court's jurisdiction to hear the presently extant applications. No application was filed for the removal of the proceedings. Accordingly, both parties filed and served written submissions with regard to the jurisdictional and discretionary issues.
Following the filing of written submissions I conducted a hearing at which both parties were represented by Senior Counsel who were leading senior members of Junior Counsel. As well as their extensive written submissions, the parties referred to the various documents already filed in the proceedings in support of their respective positions.
The Jurisdictional and Discretionary Issues
Preliminary issues
Before detailing the issues which were argued in these applications, it is necessary to note two preliminary matters. The first is that at the commencement of this hearing, Senior Counsel for the husband's legal personal representatives informed me that he was not proceeding with the argument that the Court lacked jurisdiction because the parties were not separated.
The second preliminary matter concerned the question of the standing of the wife's Case Guardian to conduct the proceedings on behalf of the wife's estate. I note the argument on behalf of the husband's legal personal representatives that upon the death of the wife there was no proceeding within the original jurisdiction of the Court and accordingly, the appointment of the wife's Case Guardian lapsed. On one view, if that argument is correct, it may be arguable that the legal personal representatives of the husband substituted pursuant to s 79(8) of the Act also lack standing. That latter matter was not argued. In the circumstances, on the basis of the manner in which I propose deciding these proceedings it is not necessary to consider the issue of standing.
Discussion
I now turn to the question of the jurisdictional competence of the Accrued Application. The fundamental submission on behalf of the husband's legal personal representatives is that at the time that the amendment was made on behalf of the wife, it was jurisdictionally incompetent and therefore, could never be considered to come within the accrued jurisdiction of this Court. If that proposition is correct, it would follow that this Court never has had, and does not presently have jurisdiction, to consider it.
Counsel for the husband’s legal personal representatives submitted that Part VIII of the Act is a complete code for determining property rights between parties to a marriage which “covers the field.” Section 8 of the Act provides:
(1)After the commencement of this Act:
(a) proceedings by way of a matrimonial cause shall not be instituted except under this Act; …
On this issue, the written submissions for the husband’s legal personal representatives were as follows:
… the Act in particular Part VIII is a complete code relating to the general law remedies that are available to parties to a marriage (or their personal representatives) in relation to their respective claims over their matrimonial property (and maintenance claims between them): see In the marriage of Farr (1976) 29 FLR 70 at 75, In the Marriage of Duff (1977) 29 FLR 46 at 52; Tansell v Tansell (1977) 19 SASR 165 at 190; In the marriage of Collins (1977) 30 FLR 93 at 105.
Notwithstanding any difference in the position that exists in relation to claims by or against third parties in relation to the property of parties to a marriage (which is of no present relevance to the jurisdictional questions before the Court), the effect of Part VIII of the Act is to “cover the field” in relation to the adjustment of property rights and interests between spouses, leaving no scope for claims to be made between spouses for recognition of rights or their enforcement under equitable or other general law principles.
In Duff, the Full Court comprising of Watson, Murray and Wood JJ noted that:
Part VIII of the Act carries the heading ``Maintenance and Property'' and in that Part there is no further definition of property nor any expressions which can themselves amplify, extend or, for that matter, limit the definition appearing in sec. 4. The Act itself is a comprehensive attempt to set down in 1975 the law relating to the consequences of the breakdown of marital relationships and Parliament has approached this task with a full awareness of the problems, both personal and legal, with which family law is fraught. The intention of the Act is to provide a code of sufficient scope and flexibility to bring, so far as possible, all the problems attendant upon family breakdown and dissolution of marriage under the jurisdiction of the Family Court of Australia. In our view the Act is to be read and construed widely and liberally with words and expressions being given their ordinary meanings as far as possible and without undue restraint imposed by legal principles more apposite to social conditions markedly different from those which characterise society today.
The case put by the husband's legal personal representatives was that the trust issue contained within the Accrued Application, not properly lying within this field, was never open to the parties to raise in these proceedings unless pursuant to s 78 of the Act. Accordingly the submission was that the Accrued Application was void ab initio for want of jurisdiction.
The essential submission on behalf of the executrices of the wife's Will is that once seized of a State matter as a result of the accrued jurisdiction of this Court, this Court remains seized of it and is effectively required to hear and determine it. However, that submission does not engage with the question of whether this Court was ever properly seized of the Accrued Application to begin with.
The original jurisdiction of the Family Court of Australia is relevantly conferred by s 31 of the Act in the following terms:
Original jurisdiction of Family Court
(1)Jurisdiction is conferred on the Family Court with respect to:
(a) matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act;
To the extent that it is presently relevant, the definition of "matrimonial cause" as provided in s 4(1) of the Act includes the following:
"matrimonial cause" means:
…
(ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
It has not been submitted that the original proceedings between the husband and the wife for alteration of property interests do not arise "out of the marital relationship". Both of the present parties rely on the proposition that the original substantive applications constituted a "matrimonial cause" in accordance with the above definition.
In addition to the original jurisdiction conferred by s 31 and the definition of "matrimonial cause", the Court also has accrued jurisdiction. That jurisdiction arises out of the word "matters" in s 31(1) and was defined by Barwick CJ in Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 257 at 457 and 512, in the following terms:
It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has in the first place attracted federal jurisdiction. It extends, in my opinion, to the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose the court exercising federal jurisdiction may enforce rights which derive from a non-federal source.
…
In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine an attached claim as an element in the exercise of its federal jurisdiction. [Emphasis added.]
The majority of the High Court comprising of Mason, Murphy, Brennan and Deane JJ held in Fencott v Muller (1983) 152 CLR 570 at 608:
What is and what is not part of the one controversy depends on what the parties have done, the relationship between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out. But in the end, it is a matter of impression and of practical judgement 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.
This proposition was accepted by the majority of the High Court in Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 at 294 and in turn adopted by Gummow and Hayne JJ in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 135 and 140.
This Court's accrued jurisdiction was specifically described by the Full Court (Nicholson CJ, Finn and Strickland JJ) in the decision of Warby v Warby (2001) FLC 93-091 at 88,790 – 88,791:
…[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. [Emphasis added]
…
Thirdly, both the Federal Court of Australia and the Family Court of Australia are creatures of statute and courts of limited jurisdiction. The fact that the Family Court of Australia has a more specialised jurisdiction than the Federal Court of Australia does not provide a basis for doubting the availability of accrued jurisdiction to the Family Court of Australia.
As will be clear from the wording of the Accrued Application, the wife sought to rely on the Court’s accrued jurisdiction as the basis on which the Court could be seized of that application. As is evidence from Warby's case (supra), there are the questions of jurisdiction and discretion.
It is common ground that at the time of filing of the wife's initiating application for alteration of property interests and the husband's response thereto, both applications constituted a "matrimonial cause" in accordance with paragraph (ca) of the definition of that term in s 4(1). Upon the death of the husband and the substitution of his legal personal representative pursuant to s 79(8) of the Act, the proceedings remained a "matrimonial cause" within the original jurisdiction of this Court as held by the High Court of Australia in Fisher (supra). Further, it is agreed that the competing applications for alteration of property interests pursuant to s 79 of the Act came to an end upon the death of the wife and the Court no longer had jurisdiction to determine them from that time (MacKenzie (supra)).
It is agreed that the Accrued Application could not have been brought in its precise form within the original jurisdiction of the Court. This is based on the Court’s jurisdiction, or lack thereof, to deal with the matter “at equity”. I note the decision of Vergis and Vergis (1977) FLC 90-275, in which Emery J held at 76,470:
[T]he Family Court is not a court of Common Law or a Court of Equity as are the Supreme Courts of the States with inherent jurisdiction. The Family Court is a creature of statute and has no powers other than those given to it by statute.
The Court’s original jurisdiction is conferred by s 31 of the Act which makes no reference to equity. Whilst the Court has the power to grant equitable relief in certain circumstances (for example see s 34) and to apply equitable principles (for example see s 90KA), as is clear from Vergis (supra), the Court possesses no independent jurisdiction “at equity” and has no jurisdiction to grant equitable relief in a stand alone matter which does not otherwise attract the Court’s jurisdiction. It was submitted on behalf of the husband's legal personal representatives that I should proceed with my consideration of this matter on the basis of the words "at equity" contained within the Accrued Application be disregarded. By virtue of the way in which I will decide this matter, it is unnecessary for me to consider that question.
Pursuant to s 78 of the Act, the Court has the power to make declarations with respect to the property of the parties to the marriage. To the extent that it is relevant, that section reads:
Declaration of interests in property
(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. [Emphasis added]
Section 78 refers to "the parties to a marriage". At the time that the Accrued Application was made, one of the parties to the marriage, the husband, had died. There is nothing to suggest that the ratio of Fisher's case does not extend to an application under section 78 in the circumstances. No submission has been made to the contrary. Accordingly, I find that at the time of making the Accrued Application, the legal personal representatives of the wife could have amended the substantive application to seek an appropriate declaration which this Court had the jurisdiction to determine pursuant to that section. The evidence and submissions in support of the application would have been identical to those which could be advanced in a State Court in support of the relief sought in the Accrued Application. Likewise, the relief which the Court had jurisdiction to grant in an application pursuant to section 78 of the Act would have been identical to that which was available in the State Court as between the parties to the proceedings as they then were. It follows that had the legal personal representatives of the wife relied on section 78 rather than the Accrued Application, no prejudice would have been suffered by them with regard to the available relief.
In summary:
· Part VIII of the Act covers the field with regard to relevant matrimonial causes;
· At the time that the Accrued Application was made, the proceedings before the Court constituted a matrimonial cause, notwithstanding that one of the parties to the marriage had died;
· Accordingly, at that time, any relief which was a matrimonial cause could only be sought under the Act;
· The relief sought in the Accrued Application was a matrimonial cause which could have been brought under section 78 and therefore could only be sought pursuant to that section; and
· Because the relief sought in the Accrued Application was not sought under the Act, it was void ab initio for want of jurisdiction.
Conclusion
Having found that the Accrued Application was void ab initio, paragraph 2 of the wife’s Amended Application for Final Orders filed 15 June 2007 must be dismissed. I will order accordingly.
It is common ground that in the event that I dismiss the Accrued Application as I have determined, it is open to either party to commence proceedings in the Supreme Court of Victoria seeking relief under State legislation. Both parties will also be at liberty to apply for any order consequent upon my orders including any order for costs of this application.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.
Associate:
Date: 6 February 2009
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