Yeti and Heffernan & Anor

[2012] FamCA 110

FAMILY COURT OF AUSTRALIA

YETI & HEFFERNAN AND ANOR [2012] FamCA 110

FAMILY LAW - JURISDICTION – consideration of the Court’s jurisdiction to hear de facto property settlement proceedings – where the proclamation giving effect to the Court’s jurisdiction was only made in recent times

FAMILY LAW - PRACTICE AND PROCEDURE – where the parties seek an extension of time to bring fresh proceedings. – where the current proceedings were initiated prior to the making of the proclamation – where fresh proceedings would resolve any ambiguity as to the jurisdiction of the Court – where there would be significant hardship caused to both parties if an extension of time was not granted – where the Court held that it would be appropriate to grant an extension of time. 

FAMILY LAW - PROPERTY SETTLEMENT – consent orders – consideration of whether orders proposed are just and equitable – where orders were held to be just and equitable – orders made in terms of the draft minute of order.

Family Law Act 1975 (Cth) s 44

APPLICANT: Ms Yeti

RESPONDENT: Mr V Heffernan

SECOND RESPONDENT: Mr A Heffernan

FILE NUMBER: SYC 7635 of 2009

DATE DELIVERED: 5 March 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Dawe J

HEARING DATE: 5 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Gayle Meredith & Associates

COUNSEL FOR THE RESPONDENT: Mr Sansom

SOLICITOR FOR THE RESPONDENT: Turner Freeman, Lawyers

COUNSEL FOR THE SECOND 

RESPONDENT:

Mr Levet

SOLICITOR FOR THE SECOND

RESPONDENT:

Willis & Bowring

Orders

1. The Court makes Orders in terms of the minutes this day signed by the Honourable Justice Dawe (which includes the Draft Minute of Order and the Final Consent Order in relation to the finalisation of the property settlement proceedings).

1. Remove all matters from the active pending list.

UPON NOTING the Wife’s solicitors to engross the minutes for sealing within 7 days.

IT IS NOTED that publication of this judgment under the pseudonym Yeti & Heffernan and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7635 of 2009

Ms Yeti

Applicant

And

Mr V Heffernan

Respondent

And

Mr A Heffernan

Second Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. These are proceedings which were brought before the Family Court pursuant to legislation giving the Court jurisdiction to hear matters in relation to de facto property settlement proceedings.  Those proceedings were brought at a time at which the amendments to the Family Law Act1975 (Cth) (“the Act”) had been made and proclaimed to be in force, which gave the Court jurisdiction.

2. However, the necessary proclamation to allow the Court to exercise that jurisdiction (being the proclamation required under section 40 of the Act) had not been made. That has now been made. It now gives the Court the ability to exercise the jurisdiction it was given by the Act from 11 February 2012.

3. Under the assumption that the Court, not only had jurisdiction, but was able to exercise its jurisdiction, the parties have gone through the process of preparing this matter for final hearing before a Judge of the Family Court of Australia.  That trial was allocated to me to be heard today.

4. However, after the matter was allocated, the issues in relation to the absence of a proclamation by the Governor-General permitting the Court to exercise the jurisdiction pursuant to the amendments became known to the public.  The question arose as to whether this Court could now exercise that jurisdiction in relation to these particular proceedings, which had been instituted prior to the proclamation giving the Court the right to exercise its jurisdiction, being the jurisdiction which had previously been given to it.

5. The parties, including the intervener, in these proceedings have exercised appropriate commonsense and have negotiated an outcome to these proceedings.  They now ask me to make consent orders in terms of the minutes which have been tendered to me today.  All parties are represented by counsel.  The orders which I am being asked to make, pursuant to the provisions in relation to de facto property settlement, are for reasons which I shall shortly give, just and equitable.

6. The parties are also asking me to make, by consent, an order that the applications and response filed by the parties be withdrawn and they be given leave to file further documents today.  The fresh proceedings would come within the capacity of the Court to exercise the jurisdiction without the doubt that might arise in relation to the gap that might otherwise occur.

7. In order to do that, however, the Court needs to provide the parties with an extension of time to commence the proceedings, pursuant to provisions of section 44, subsection (5) of the Family Law Act. The Act requires a person who is bringing an application by way of property settlement in de facto proceedings to bring that application within two years from the date of separation.

8. Therefore, the Court would be required to extend the time, as the two years would have expired. 

9. Section 44(6), however, says that the Court may grant leave to apply after the end of that period, if the Court is satisfied that hardship will be caused to the party if leave were not granted.

10. In these particular circumstances, significant hardship will be caused to both of the parties in that there would be a significant need to commence fresh proceedings, perhaps in another jurisdiction.  Doubts in relation to the ongoing availability of another jurisdiction would be significant. 

11. The parties have already prepared this matter for trial and the factors in relation to the proclamation of the Court’s ability to exercise the jurisdiction are matters which are completely outside the control of the parties or, indeed, their legal advisers.

12. The property settlement which is proposed to be made makes an order which is significant in relation to the future financial prospects of the wife and concludes the financial relationship between the parties in relation to property settlement proceedings.  Therefore, it would be a hardship to both the husband and the wife in these proceedings if leave were not granted to extend the time.  I, therefore, consider it appropriate to extend the time. 

13. Having said that, I am of the view that there may be another interpretation open to the Court, namely, that the Court had the jurisdiction granted to it, pursuant to the legislation which had been proclaimed, but had not the capacity to exercise that jurisdiction until the further proclamation was made by the Governor-General.

14. In that event, the proceedings which were filed would be capable of being dealt with on the face of it with perhaps some minor orders being made in relation to the application of the rules. 

15. Nonetheless, I turn now to consider the final orders which were sought by way of property settlement between the de facto husband and de facto wife. I have heard the submissions from counsel, particularly in relation to the husband and the wife, that the orders are what could be described as a pragmatic compromise in relation to the proceedings, entered into with a view to resolving the litigation between the parties and being a practical outcome to resolve the issues. The result is not necessarily calculated on an exact basis, but take into account the necessary provisions of the Act in relation to de facto property settlement and the factors which need to be considered.

16. Having taken into account the material which was prepared in anticipation of the trial before me, I am satisfied that the orders which are proposed to be made fall within the necessary parameters of just and equitable orders, pursuant to the de facto property settlement proceedings.  I make orders in terms of the minutes this day signed by me, which includes the draft minute of order and the final consent order in relation to the finalisation of the property settlement proceedings. 

17. Those orders to be engrossed for sealing within seven days by the wife’s solicitors.  That removes all matters from the pending list.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  8 March 2012