Yadu & Orjit
[2022] FedCFamC1A 79
•24 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Yadu & Orjit [2022] FedCFamC1A 79
Appeal from: Orjit & Yadu [2021] FCWA 204 Appeal number(s): NAA 79 of 2021 File number(s): PTW 6963 of 2015 Judgment of: MCCLELLAND DCJ, AUSTIN & SUTHERLAND JJ Date of judgment: 24 May 2022 Catchwords: FAMILY LAW – APPEAL – Property – Appeal from the Family Court of Western Australia – Where international property settlement orders were made between the parties 10 years ago – Where the husband appeals from an order made by the primary judge to enforce the orders previously made – Injunctions – Where the husband claims the order was “beyond power” as the proceeding could not be characterised as a matrimonial cause – Where there is no need for any close temporal connection to the marital relationship for the matrimonial cause to be engaged – No error demonstrated – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pts VIII, XIV, ss 4, 79, 80, 114 Cases cited: Caddy & Miller (1986) FLC 91-720; [1986] FamCA 36
Clayton v Bant (2020) 62 Fam LR 16; [2020] HCA 44
Leibinger & Leibinger (No 2) (1986) FLC 91-775; [1986] FamCA 26
Perlman v Perlman (1984) 155 CLR 474; [1984] HCA 4
R v Dovey; Ex parte Ross (1979) 141 CLR 526; [1979] HCA 14
Re Ross-Jones; Ex parte Green (1984) 156 CLR 185; [1984] HCA 82
Number of paragraphs: 35 Date of hearing: 24 May 2022 Place: Perth Counsel for the Appellant: Mr Robertson Solicitor for the Appellant: FMD Legal Counsel for the Respondent: Mr Klicker Solicitor for the Respondent: Beacon Family Law ORDERS
NAA 79 of 2021
PTW 6963 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR YADU
Appellant
AND: MS ORJIT
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, AUSTIN & SUTHERLAND JJ
DATE OF ORDER:
24 MAY 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of $15,827.45.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Yadu & Orjit has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
By way of an Amended Notice of Appeal filed on 31 December 2021, the husband appeals from orders made by a judge of the Family Court of Western Australia on 5 November 2021 to implement property settlement orders previously made between the parties in 2011 after their marital separation in Country B.
The appeal should be dismissed with costs for the following reasons.
Background
The parties were married in February 2000 and separated in March 2011.
They were then living in Country B. The wife commenced proceedings and, in June 2011, the parties were divorced and final orders were made between them in respect of their property, their children and child maintenance. The husband conceded the Country B orders were made with his consent (at [3]–[5] and [72]).
Relevantly for present purposes, the property settlement orders divided their Country B assets, but also made provision for the wife to acquire sole proprietorship of the single parcel of real property owned jointly by the parties in City A, Western Australia (“the City A property”) in these terms (at [5]):
That the parties proprietary claims be settled on the basis that:
…
The [Wife] be the sole owner of the immovable property in Australia to the exclusion of [Husband]
(As per the original)
The husband thereafter obstructed the wife’s attempts to have the registered title in the City A property transferred from joint names into her sole name. He contended there was neither an agreement nor a court-ordered obligation for him to relinquish proprietary interest in the City A property but, as the primary judge correctly observed, the husband’s position was impossible to reconcile with the plain meaning of the Country B orders (at [6] and [10]).
The wife commenced proceedings in Western Australia in November 2015 in an attempt to enforce the Country B orders in respect of the City A property (at [13]). The husband opposed the application, contending Western Australia was an inappropriate forum to entertain the application (at [15]). The primary judge dismissed the application in July 2016, saying this within the current reasons for judgment about those former proceedings:
18. … I dismissed the relevant parts of the wife’s application and the husband’s response; in short, I was not persuaded to exercise the power to grant a mandatory injunction to give effect to the Country B property orders in circumstances where the wife had not come to the court with ‘clean hands’, and there remained on foot proceedings commenced by her in the relevant Country B court to enforce those orders.
The wife commenced fresh proceedings in Western Australia in July 2019, there then being no pending proceedings between the parties in Country B (at [20]–[21]), but the hearing was not reached until September 2021 as the parties amended their claims for relief and the husband disobeyed procedural orders made to ensure the readiness of the dispute for hearing.
By the time of the hearing, the wife sought relief in the form of mandatory injunctions compelling the husband to transfer his proprietary interest in the City A property to her (at [28]). She initially posited that such orders could be made pursuant to the power reposing in Pt VIII (ss 79 and 80) of the Family Law Act 1975 (Cth) (“the Act”) (at [22]), but ultimately abandoned that contention and instead asserted such relief should be granted under Pt XIV (s 114) of the Act (at [32]–[33]).
The husband sought the dismissal of the wife’s application, contending that the City A property should remain registered in joint names (at [23], [28] and [30]). He did, however, seek additional orders to adjust the parties’ interests in respect of some personal property and superannuation (at [28] and [30]), which the wife opposed (at [34]).
In determining the dispute, the primary judge found:
(a)the principle of res judicata did not impede the husband’s application for more property settlement orders (at [84]);
(b)the husband’s application for more property settlement orders was, however, precluded by cause of action estoppel (at [91] and [95]–[96]) and would also be precluded by principles of Anshun estoppel and issue estoppel (at [107]–[108]);
(c)in any event, it would not be just and equitable to make more property settlement orders and the husband’s application for such relief amounted to an abuse of process (at [109] and [127]); and so
(d)his application under Pt VIII of the Act would be summarily dismissed (at [128]).
His Honour did not expressly say so, given the altered manner in which the wife eventually conducted her case, but it would necessarily follow that any further orders she sought in reliance upon an exercise of power under Pt VIII of the Act would also be precluded.
The primary judge then turned to consider the wife’s application for mandatory injunctions pursuant to the power reposing in s 114 of the Act. His Honour concluded it would be proper to make such injunctions (at [134]), as the proceedings concerned a “matrimonial cause” within the meaning of paragraph (e) of that definition found within s 4(1) of the Act (at [129]).
Accordingly, the primary judge relevantly made orders in these terms (at [136]):
1.The wife must provide to the husband all documents required to be executed by him to give effect to the transfer to the wife of all of his right, title, estate and interest in the [City A property].
2.Within 56 days of receipt by him of the documents to be provided pursuant to the immediately preceding order, the husband must execute the said documents and return them to the solicitor for the wife.
3.Should the husband fail to comply with the immediately preceding order, the Principal Registrar is appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute on behalf of the husband all documents required to be executed by him pursuant to these orders.
Although the appeal is notionally from all eight orders made by the primary judge, only Orders 1–3 are pertinent. Orders 4–8 simply dismiss all other applications and make directions for the consideration of costs, which orders are not broached by the grounds of appeal.
The appeal
The husband pleaded three grounds of appeal.
The first two grounds attack Orders 1 and 2 on the basis that they were “beyond power”, because the proceeding before his Honour could not be characterised as a matrimonial cause to found the operation of s 114(1) of the Act, and further, the orders improperly altered the husband’s proprietary interest in the City A property. The third ground complains of discretionary error in finding it was “proper” to make the mandatory injunctions.
At the hearing, the husband announced his abandonment of Grounds 2 and 3, meaning only Ground 1 requires attention.
Ground 1
Section 114 of the Act confers power to grant injunctions, which may be exercised only if the Court is otherwise already seized of jurisdiction, as the section does not itself confer jurisdiction (Re Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 199, 209 and 211).
Relevantly, the primary judge only had original jurisdiction if the proceeding before the Court was a “matrimonial cause”, the meaning of which is defined in s 4(1) of the Act.
The parties’ dispute did not concern their divorce, the validity of their former marriage, spousal maintenance, vested bankruptcy property, a maintenance agreement, or a financial agreement. As a consequence, paragraphs (a), (b), (c), (caa), (cb), (d), (ea), (eaa), (eab) and (eb) of the definition of “matrimonial cause” had no application.
Of the remaining alternatives, being paragraphs (ca), (e) and (f), the primary judge found (at [129]) that the proceeding engaged paragraph (e) of the definition of “matrimonial cause”, which provides as follows:
“matrimonial cause” means:
(e)proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB);
The terms of s 114(1) of the Act mean it only has room for operation within the confines of the type of matrimonial cause defined in paragraph (e). In any other form of matrimonial cause, one must instead resort to s 114(3) of the Act for the power to grant injunctions.
Although the primary judge did not expressly say so in the reasons for judgment, the power exercised to make the appealed orders could only be sourced to s 114(1)(e) of the Act, which provides as follows:
Injunctions
(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including:
…
(e)an injunction in relation to the property of a party to the marriage;
The argument advanced by the husband is that the primary judge erred because there is and was no matrimonial cause within the meaning of paragraph (e) of the definition, as the wife’s application was not one made “in circumstances arising out of the marital relationship”.
It was a surprising submission for the husband to make because he necessarily relied upon the existence of a matrimonial cause (which depended upon the circumstances being ones that arose out of the marital relationship) to prosecute his opposing application for property settlement relief under s 79 of the Act. While the primary judge found the husband’s application had to be dismissed, it was for reasons other than the want of jurisdiction. Nonetheless, the husband’s concession of jurisdiction at first instance does not preclude him from now inconsistently contending in the appeal for the absence of jurisdiction as a matter of law.
The husband cited Perlman v Perlman (1984) 155 CLR 474 as authority for the proposition that the wife’s application for mandatory injunctions was not made “in circumstances arising out of the marital relationship”, but his faith in that authority was misplaced because it may be readily distinguished from current circumstances.
In Perlman, the High Court of Australia held that a proceeding to enforce a maintenance agreement which had been approved under the Act, thereby ousting jurisdiction to adjust property interests and to make provision for spousal maintenance, was not a matrimonial cause and so the State court had jurisdiction to entertain the dispute. The High Court was nevertheless clear to illustrate the distinction between, on the one hand, proceedings to enforce an agreement between parties (even if court approved) by remedy granted in equity or at common law, and on the other, proceedings to enforce court orders of a matrimonial type (at 484, 490 and 503). As an aside, the definition of “matrimonial cause” under the Act has since been amended to include proceedings relating to maintenance agreements.
In the situation at hand, the wife was applying for injunctions which would compel the husband to act so as to implement court orders dividing the parties’ property, which orders were made in proceedings to dissolve their marriage. The making of orders under the Act to implement existing court orders, as distinct from making orders at law or in equity to enforce a private agreement between the parties, is the significant distinction. There could be little doubt the proceedings here between the former spouses arose out of their marital relationship so as to constitute a matrimonial cause. Nor can it be doubted the relief sought related to the property of the parties.
The fact the unfulfilled property settlement orders were made 10 years beforehand makes no difference. The words “circumstances arising out of the marital relationship” within paragraph (e) of the definition of matrimonial cause have wide scope (R v Dovey; Ex parte Ross (1979) 141 CLR 526), with there being no need for any close temporal connection between the marital relationship and the proceedings in order that the matrimonial cause be engaged (Leibinger & Leibinger (No 2) (1986) FLC 91-775).
In similar circumstances to these, the Full Court found proceedings between spouses were a matrimonial cause (Caddy & Miller (1986) FLC 91-720). There, property settlement orders made between the parties in matrimonial proceedings in California applied to their property in California and Australia. In subsequent proceedings brought under the Act in Australia, a cause of action estoppel arose, but the Full Court found the proceedings were still a matrimonial cause (at 75,232). The High Court of Australia recently referred to Caddy & Miller approvingly (Clayton v Bant (2020) 62 Fam LR 16 at [39] and [78]).
No error is demonstrated in the primary judge’s finding that the proceeding was a matrimonial cause within the meaning of paragraph (e), which then afforded power under s 114(1)(e) of the Act to make the mandatory injunctions sought by the wife to implement the existing property settlement orders. Ground 1 should fail.
Costs
The wife sought an order for the husband’s payment of her party/party costs of and incidental to the appeal, which she should have. The appeal was wholly unsuccessful and the arguments raised on appeal were, in part, quite inconsistent with the approach adopted by the husband before the primary judge. The husband did not contend his financial circumstances were a bulwark against the costs order. Nor did he dispute the quantum of costs sought by the wife in the sum of $15,827.45.
SUTHERLAND J
I agree with the reasons for judgment of Austin J and have nothing further to add.
MCCLELLAND DCJ
I too agree with the reasons for judgment given by Austin J and the orders of the Court will be:
(1)The appeal is dismissed.
(2)The appellant shall pay the respondent’s costs of and incidental to the appeal in the fixed sum of $15,827.45.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland, and Justices Austin & Sutherland. Associate:
Dated: 1 June 2022
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