Zurlo & Manoury (Deceased)
[2024] FedCFamC2F 1807
•16 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zurlo & Manoury (Deceased) [2024] FedCFamC2F 1807
File number(s): NCC 2283 of 2024 Judgment of: JUDGE BETTS Date of judgment: 16 December 2024 Catchwords: FAMILY LAW – PROPERTY SETTLEMENT PROCEEDINGS – Applicant alleges breakdown of 23 year de facto relationship and files Initiating Application seeking property settlement orders – Respondent files Response seeking s 90RD declaration that there had been no de facto relationship – Respondent subsequently dies – Respondent’s legal personal representative files application for summary judgment on basis that the proceedings have abated as a result of the Respondent’s death – proper construction of s 90RD and s 90SM(8) of the Family Law Act - questions of jurisdiction considered – application for summary judgment dismissed Legislation: Family Law Act 1975 (Cth), Pt VIII and VIIIAB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Dimmick & Harrison (No 2) [2024] FedCFamC2F 29
Mandley & Debbins [2020] FCCA 523
Newett & Newett (No. 8) (2023) FLC 94-128
Norton & Locke (2013) FLC 93-567
Parker v Arcus & Castiglione (1981) FLC 91-581
Phillips and Phillips (1985) FLC 91-634
Radney & Radney [2022] FedCFamC2F 53
Rampling & Rampling (1988) FLC 91-902
Simonds (Deceased) & Coyle (2019) FLC 93-895
Sims & Sims (1981) FLC 91-072
Slater and Slater (1985) FLC 91-641
Division: Division 2 Family Law Number of paragraphs: 58 Date of last submission/s: 29 November 2024 Date of hearing: 29 November 2024 Place: Newcastle Counsel for the Applicant: Mr Kelly Solicitor for the Applicant: Nash Allen Williams & Wotton Counsel for the Respondent: Mr Kadar Solicitor for the Respondent: Pjg Solicitors ORDERS
NCC 2283 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ZURLO
Applicant
AND: MR MANOURY AS LEGAL PERSONAL REPRESENTATIVE OF THE ESTATE OF THE LATE MS MANOURY
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
16 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 11 October 2024 is dismissed.
2.The proceedings are adjourned to 3.30pm on 3 February 2025 for consideration of Mr Zurlo’s application for costs and any other necessary directions to progress the matter to a final hearing.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW:
On 19 July 2024 the Applicant, Mr Zurlo (then 95 years old), filed an Initiating Application in this Court. The Respondent to his Application was Ms Manoury (then 93 years old).
The Initiating Application sought a division of property as between Mr Zurlo and Ms Manoury following the breakdown of what Mr Zurlo asserted was their twenty-three (23) year de facto relationship. The Initiating Application sought relief on both an interim and a final basis, including most significantly that the home owned by Ms Manoury be sold and the net proceeds divided equally between the parties, that he have sole use and occupation of the home pending its sale, and that Ms Manoury be restrained from further encumbering the home.
On 31 July, Ms Manoury filed a Response which sought, on both an interim and a final basis, a declaration that the parties had not been in a de facto relationship and that the Initiating Application be dismissed with costs.
On 5 August, the first return date, the proceedings came before a Senior Judicial Registrar. Both parties were legally represented. The parties entered into some interim orders by consent; they were not merely procedural but included substantive orders modestly adjusting the parties’ property entitlements pending further order. These included that Ms Manoury pay him ten thousand dollars ($10,000) within seven (7) days; that he vacate the home within twenty-eight (28) days whereupon the home was to be sold and half the net sale proceeds (less the $10,000) be held in the trust account of Ms Manoury’s solicitor pending determination of the so-called ‘jurisdictional fact’ as to whether or not there had been a de facto relationship. The parties were to attend mediation by no later than 11 October 2024. All outstanding interim applications were otherwise dismissed and costs reserved.
The orders contained various Notations to the effect that the ‘jurisdictional fact’ remained a live issue; that the parties “have entered these orders in an attempt to progress the matter”; and that if the matter did not resolve at mediation the parties intended to seek “a preliminary hearing and determination of the jurisdictional fact.”
In 2024, Ms Manoury passed away.
The mediation did not proceed. Instead, Ms Manoury’s solicitor wrote to Mr Zurlo’s solicitor seeking the consensual dismissal of the proceedings. When Mr Zurlo refused to agree, on 11 October Ms Manoury’s adult son and Executor of her estate, Mr Manoury (“the legal personal representative”) filed an Application in a Proceeding. It sought that the Initiating Application be summarily dismissed with costs, that all prior orders be discharged and the file closed.
The legal personal representative contends that the proceedings cannot be maintained following the death of Ms Manoury as the proceedings have abated. Mr Zurlo disagrees.
Whether or not the proceedings abated upon Ms Manoury’s death, and whether or not the court still has jurisdiction, turns upon the proper construction of the Family Law Act 1975 (Cth) (“the Act”). As I will explain, I have come to the view that the proceedings did not abate and that the court still has jurisdiction.
Both parties referenced the interim orders in the course of argument, although the orders were not a major focus. On the legal personal representative’s case, the interim orders did not impact the outcome as Ms Manoury was acting ‘bona fide’ in contesting the court’s jurisdiction and the interim orders reserved her rights in that respect. On Mr Zurlo’s case the orders do not impact the outcome either, because the court has always had the necessary jurisdiction to hear the proceedings.
THE HEARING & MATERIAL RELIED UPON:
Mr Kadar of counsel appeared for the legal personal representative and Mr Kelly of counsel appeared for Mr Zurlo.
Mr Kadar relied upon:
·Application in a Proceeding filed 11/10/24 (seeking summary dismissal);
·Affidavit of the legal personal representative’s solicitor Mr B, filed 11/10/24;
·Mr Kadar’s Outline of Submissions filed 28/11/24.
Mr Kelly relied upon:
·Initiating Application filed 19/07/24;
·Affidavit of Mr Zurlo filed 19/07/24;
·Affidavit of Mr Zurlo’s daughter Ms C, filed 31/07/24;
·Affidavit of the next-door neighbour Mr D, filed 30/07/24;
·Mr Kelly’s Outline of Submissions filed 28/11/24.
Rule 10.09(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) provides that a party may apply for summary orders if the party claims that the court has no jurisdiction. It is nonetheless a serious matter to deprive a person of access to the courts. Therefore, when hearing a summary dismissal application the court must proceed cautiously and by taking the evidence presented by the respondent ‘at its highest’: see Newett & Newett (No. 8) (2023) FLC 94-128. [1]
That said, this case raises not so much factual as legal issues given that the outcome turns upon the proper construction of the relevant provisions of the Act to which I will shortly turn. In the circumstances, each counsel briefly took me to only those factual matters that they wished to highlight.
Mr Kelly pointed to Mr Zurlo and Ms Manoury cohabiting in her house for some twenty-three (23) years or so; and that both the next-door neighbour and Mr Zurlo’s daughter considered that Mr Zurlo and Ms Manoury were a couple. Mr Kadar pointed to Ms Manoury having consistently denied the existence of a de facto relationship in correspondence exchanged between the respective solicitors in the leadup to Mr Zurlo filing his Initiating Application.
THE FAMILY LAW ACT:
Except in Western Australia and the Northern Territory, property settlement disputes between alleged former de facto spouses are governed by the provisions of Part VIIIAB of the Act.
A ‘de facto relationship’ is defined in s 4 of the Act which provides that a person is in a ‘de facto relationship’ with another person if, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. Amongst other things, s 4 goes on to set out various relevant circumstances to which a court can have regard in deciding whether or not their relationship meets the statutory definition. (For present purposes I proceed on the basis that Mr Zurlo’s evidence, taken at its highest, would permit the court to find the existence of a de facto relationship.)
Entitled ‘Financial matters relating to de facto relationships’, Part VIIIAB largely mirrors the longstanding provisions of Part VIII which apply to married couples. For instance, both Part VIII and Part VIIIAB permit a spouse or former de facto spouse respectively to seek property settlement orders and in each case the court may only make an order if it is ‘just and equitable’ to do so [s 79; s 90SM].
To understand the competing arguments, it is necessary to consider the legislative pathway.
The starting point is that Mr Zurlo’s Initiating Application asserted the existence of a de facto relationship and on that basis sought orders which would alter the respective property interests of he and Ms Manoury pursuant to s 90SM(1) of the Act:
SECTION 90SM ALTERATION OF PROPERTY INTERESTS
90SM(1)In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate:
(a)In the case of proceedings with respect to the property of the parties to the de facto relationship or either of them - altering the interests of the parties to the de facto relationship in the property…
Section 90SM(4) goes on to provide that, in deciding what order (if any) to make, the court is obliged to consider the parties’ direct and indirect financial contributions, homemaking and parenting contributions and various other matters including future needs: see also s 90SF(3).
Section 90SB of the Act requires that an applicant for orders pursuant to s 90SM additionally establish that:
·the aggregate period of the relationship was at least two (2) years – s 90SB(a); or
·there is a child of the de facto relationship – s 90SB(b); or
·that the party seeking the order has made substantial financial, homemaking and/or parenting contributions of a kind mentioned in s 90SM(4) and a failure to make the order would result in serious injustice to the applicant – s 90SB(c); or
·that the relationship is or was registered under a prescribed law of a State or Territory – s 90SB(d).
There are also geographical requirements in s 90SK, essentially tied to the geography of the participating States and Territories for the purposes of Part VIIIAB.
Mr Zurlo’s case is that the relationship satisfied s 90SB(a) and on his evidence s 90SK is also satisfied as New South Wales is a participating jurisdiction and the parties cohabited there at all material times.
When Ms Manoury filed her Response, she sought declaratory relief as to the non-existence of a de facto relationship pursuant to s 90RD of the Act:
SECTION 90RD DECLARATIONS ABOUT EXISTENCE OF DE FACTO RELATIONSHIPS
90RD(1) If:
(a)an application is made for an order under section 90SE [maintenance orders], 90SG [urgent maintenance orders] or 90SM [alteration of property interests], or a declaration under section 90SL [declarations of interests in property] and;
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
At the date she died, Ms Manoury’s s 90RD claim remained pending.
THE COMPETING ARGUMENTS:
Mr Kadar contends that, Ms Manoury having put the existence of the de facto relationship in issue, her claim for declaratory relief pursuant to s 90RD needed to be determined first. Until that claim was determined, the proceedings remained in a ‘holding pattern’ as the court had not yet determined that there was a de facto relationship – which was necessary to establish the court’s jurisdiction.
Mr Kelly contends that:
25.[T]he Court has jurisdiction to hear these proceedings the moment the applicant filed his Initiating Application on 19.07.2024 and therefore decide if there was a de facto relationship, and if so, how long was the relationship and what adjustments to be made, if any.
Mr Kelly points to s 90SM(8) of the Act:
90SM(8)If a party to the de facto relationship dies after the breakdown of the de facto relationship, but before property settlement proceedings are completed:
(a)the proceedings may be continued by or against, as the case may be, the legal personal representative of the deceased party…; and
(b) if the court is of the opinion:
(i)that it would have made an order with respect to property if the deceased had not died; and
(ii)that it is still appropriate to make an order with respect to property;
the court may make such order as it considers appropriate…;
(c)an order made by the court pursuant to paragraph (b) may be enforced on behalf of, or against, as the case may be, the estate of the deceased party.
I interpose here that s 90SM(8) is a legislative response to the Full Court’s decision in Sims & Sims (1981) FLC 91-072. [2] In that case Evatt CJ, Emery & Strauss JJ held that:
The jurisdiction of the Court is based entirely on statute. Save as expressly provided this statute does not confer any general power on this Court to entertain proceedings against or by the legal personal representative of a deceased party nor is there power to continue proceedings after the death of a party by substituting that party’s personal representative in lieu of a deceased party. [3]
Sims concerned Part VIII proceedings where one of the parties died while judgment was outstanding. It was held that the proceedings abated upon the death. Following Sims, Parliament inserted a new s 79(8) to enable such proceedings to be continued by or against a legal personal representative and, when Part VIIIAB was enacted, s 90SM(8) essentially replicated the language of s79(8).
Mr Kadar submits that s 90SM(8) is not engaged. He contends that Ms Manoury’s claim for declaratory relief pursuant to s 90RD was a more limited “precursor proceeding” and, citing Sims, he contends that the claim abated upon death as s 90RD does not expressly state that such a claim can be continued by or against a legal personal representative. On the basis that the existence or non-existence of a de facto relationship can therefore no longer be the subject of declaratory relief, Mr Zurlo cannot bring the case within s 90SM(8) because he cannot establish that these are ‘property settlement proceedings’ as defined in s 4 of the Act because the existence of a de facto relationship is a necessary element of the definition.
Mr Kelly contends that s 90RD is not a “precursor proceeding” and:
31.It is submitted that the FCFCOA dealing with a question of fact as to whether a de facto relationship exists is nothing new and is decided almost daily in this court.
32. It is submitted that this is often to be determined as a preliminary issue.
33.It is submitted that the Parliament of the Commonwealth of Australia [envisages] situations where 1 party would dispute the existence of a [de facto] relationship and accordingly inserted a definition into the Family Law Act of how to determine if people have a relationship as a couple.
…
37.…[J]ust because a respondent challenges the existence of a de facto relationship [does not mean that] the application can be struck out. It gives rise to a factual question to be determined by the court.
Given the high incidence of de facto relationships, against the backdrop of an increasingly ageing population and expectant adult children whose inheritance or potential inheritance may be put at risk in Part VIIIAB proceedings, it is noteworthy that Mr Kadar’s argument has not been presented to a court before now. Yet that seems to be so; both counsel agreed that there are no authorities directly on point.
ANALYSIS OF THE COMPETING ARGUMENTS:
Section 39A(1) of the Act provides that a party may institute a ‘de facto financial cause’ in the Federal Circuit and Family Court of Australia (Division 2) (“this court”).
Section 39B(1) of the Act confers jurisdiction on this court:
with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act.
A ‘de facto financial cause’ is defined in s 4 of the Act to mean:
(a)proceedings between the parties to a de facto relationship with respect to the maintenance of one of them after the breakdown of their de facto relationship; or
(b) proceedings between:
(i) parties to a de facto relationship; and
(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the maintenance of the first-mentioned party after the breakdown of the de facto relationship; or
(c)proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them;
(d) proceedings between:
(i) a party to a de facto relationship; and
(ii) the bankruptcy trustee of a bankrupt party to the de facto relationship;
with respect to the distribution, after the breakdown of the de facto relationship, of any vested bankruptcy property in relation to the bankrupt party; or
(e)without limiting any of the preceding paragraphs, proceedings with respect to a Part VIIIAB financial agreement that are between any combination of:
(i) the parties to that agreement; and
(ii)the legal personal representatives of any of those parties who have died;
(including a combination consisting solely of parties or consisting solely of representatives); or
(f)third party proceedings (as defined in section 4B) to set aside a Part VIIIAB financial agreement; or
(g)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.
It is clear that as at the date the Initiating Application was filed, Mr Zurlo was purporting to institute a ‘de facto financial cause’ as defined in (c) above.
Upon filing her Response, Ms Manoury was contending that there was no ‘de facto relationship’ and thus no ‘de facto financial cause’ before this court.
Were the proceedings, as constituted at that time Ms Manoury died, a ‘de facto financial cause’?
The Full Court dealt with a similar issue in Norton & Locke (2013) FLC 93-567. These were Part VIIIAB proceedings brought in the (then) Federal Circuit Court. The applicant sought a property settlement; the respondent denied the existence of a de facto relationship. The trial Judge imposed some interlocutory injunctions pursuant to s 114(2A) of the Act, including granting sole use of a property to the applicant, restraining the respondent from dealing with the property and requiring that the respondent meet various property outgoings. The identified source of power for the orders was s 114(2A) which required that the proceedings be a ‘de facto financial cause’.
The Full Court (Bryant CJ, Murphy & Benjamin JJ) upheld the respondent’s appeal, their Honours’ joint reasons observing that:
18.The terms of s 114(2A) are clear; the court’s power to grant injunctions pursuant to the section can only be granted “in a de facto financial cause.” There is no “de facto financial cause” until a de facto relationship is established and the additional ss 90SK and 90SB conditions met. Until they are met – that is, relevantly, a decision has been made by the court consistent with the case advocated by the respondent – there is no “de facto financial cause” and no jurisdiction to make an order of the type contemplated by s 114(2A). (Nor, it might said, more broadly pursuant to s 90SM…as sought by the respondent in the substantive proceedings.)
19.In our view, his Honour’s reasons plainly demonstrate that his Honour purported to make orders in reliance upon s 114(2A). In doing so, his Honour was acting without jurisdiction.
Mr Kadar referred the court to a line of authorities concerning s 44 of the Act, which he said were analogous to the present situation.
Section 44 imposes a time limitation for the institution of property settlement proceedings in the case of both marriages and de facto relationships. Broadly, the section also allows an applicant to apply for the court’s leave to institute proceedings out of time where the applicant would otherwise suffer hardship if leave were not granted. But s 44 does not expressly provide that such an application may be continued by or against a legal representative of a deceased party, and the authorities conclusively establish that such proceedings abate upon the death of a party.
The leading authority is the decision of the Full Court in Simonds (Deceased) & Coyle (2019) FLC 93-895.
In that case the applicant filed an Initiating Application in May 2017 seeking alteration of the respective property interests of herself and the respondent following breakdown of their de facto relationship. The respondent later died. When his solicitors later filed a Response, it sought dismissal of the application on the basis that the relationship had ended four (4) years earlier and had been brought outside the time limit provided for in s 44.
The parties went to trial as to question of when the relationship broke down and the trial Judge concluded that the respondent was right. In the circumstances the applicant filed an Amended Initiating Application seeking leave to bring the property settlement application out of time. The trial Judge gave her such leave. The respondent appealed, contending that the court had no jurisdiction to entertain the Amended Initiating Application.
The Full Court agreed and the appeal was allowed. The judgment of Murphy J, with whom Kent J concurred, referred to the definition of a ‘de facto financial cause’ and specifically:
(g)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.
Murphy J went on to observe:
49.The deceased died after the date of the breakdown of the relationship, as found by his Honour, and before the property settlement proceedings commenced by the de facto wife were completed. Those facts, stated in that manner, prima facie avail the de facto wife of s 90SM(8) of the Act such that the property settlement proceedings may be continued against the deceased’s legal personal representative. However, crucial to the issue on this appeal, the “property settlement proceedings” must meet the relevant statutory definitions. The terms of s 90SM make it clear that the Court’s power under that section can only arise in the defined “property settlement proceedings”.
50. That expression is defined in s 4 of the Act as (again relevantly):
Property settlement proceedings means:
…
(b)in relation to the parties to a de facto relationship – proceedings with respect to:
(i) the property of the parties or either of them…
51.“Proceedings is defined separately to “property settlement proceedings” in s 4 and, relevantly, “means a proceeding in a court…and includes…an incidental proceeding in the course of or in connexion with a proceeding”.
52.Taken together, those provisions might be seen to permit of an argument that an application for leave pursuant to s 44(6) constitutes “an incidental proceeding” which is “in connection with” s 90SM proceedings and is “with respect to” the property of the parties or either of them…
53.In Slater and Slater, just such an argument was raised in respect of the analogous s 79(8) applicable to marriages. In rejecting that argument, Ellis J said:
Adopting a broad and liberal interpretation, it cannot, however, be said that proceedings brought pursuant to s 44(3) for leave to institute proceedings of a kind referred to in para. (ca) of the definition of “matrimonial cause” in s 4(1) are proceedings with respect to the property of the parties to a marriage. Such proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them.
54. Slater was followed in Phillips and Phillips and Rampling and Rampling.
55.There is no material difference between the principle there set out and that which is applicable to s 90SM(8). Indeed, the separate definition of “property settlement proceedings” to which reference has earlier been made, which is directly referable to the s 90SM power, might be seen to reinforce that principle.
56.The Amended Initiating Application, filed by the de facto wife after the death of the deceased, instituted proceedings different to the s 90SM proceedings commenced by her Initiating Application; that Amended Initiating Application instituted “proceedings with respect to leave to institute proceedings with respect to property of the parties to the [de facto relationship] or either of them.” The court’s jurisdiction depends upon the terms of any legislative grant of jurisdiction. There is no statutory grant of jurisdiction which provides for an application for leave to institute proceedings to be excluded from the principle that that the deceased’s death prevented those proceedings being instituted.
57.Without that specific grant of jurisdiction and power, an application invoking s 44(6) after the death of the deceased could not be made. Without that application and an order accordingly pursuant to s 44(6), the application for a s 90SM order could not be made; the Court had no such power unless and until a s 44(6) order was made.
58. His Honour did not have the jurisdiction to make the order which he did…[4]
Mr Kadar contends that a s 90RD claim is legally indistinguishable from a leave application pursuant to s 44 as in both instances the court needs to make the relevant preliminary determination before there can be said to be ‘property settlement proceedings’ on foot for the purposes of s 90SM(8). Mr Kelly contends that Simonds (supra) and related authorities are distinguishable because Mr Zurlo commenced proceedings within time and prior to Ms Manoury’s death; no grant of leave was required.
I respectfully agree with Mr Kelly that the s 44 authorities are distinguishable.
Unlike a leave application pursuant to s 44, a claim pursuant to s 90RD is ‘an incidental proceeding’ which is ‘in connection with’ s 90SM proceedings and is ‘with respect to’ the property of the parties or either of them. That this must be so is apparent from the wording of s 90RD itself (my underlining):
SECTION 90RD DECLARATIONS ABOUT EXISTENCE OF DE FACTO RELATIONSHIPS
90RD(1) If:
(a)an application is made for an order under section 90SE, 90SG or 90SM, or a declaration under section 90SL and;
(b)a claim is made, in support of the application, that a de facto relationship existed between the applicant and another person;
the court may, for the purposes of those proceedings (the primary proceedings), declare that a de facto relationship existed, or never existed, between those 2 persons.
In my view, where an applicant brings an application pursuant to s 90SM, and a respondent makes a claim pursuant to s 90RD that there was no de facto relationship, the proper construction of s 90SM(8) permits the s 90RD claim to be continued by or against the legal personal representative. The two sections have to be read together.
As at the date of Ms Manoury’s death, the court had not yet determined the s 90RD claim and, applying Norton & Locke, the court had not yet determined that there was a ‘de facto financial cause’ before the court of which ‘property settlement proceedings’ are the relevant facet for the purposes of s 90SM(8). But this does not mean the court is without jurisdiction; the court can still proceed to hear and determine the s 90RD claim.
My conclusion is fortified by what the Full Court went on to say in Norton & Locke:
43.This court does, however, plainly have jurisdiction to determine if it has jurisdiction – in this case the jurisdiction to embark upon proceedings which seek to establish or deny the relevant jurisdictional facts. This court has the power to make orders that are necessary for the determination of issues relevant to that jurisdiction. Those powers include the power to control its own process: “[t]he power of each court over its own processes is unlimited; it is a power incident to all courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own processes abused for the purpose of the injustice…” (Cocker v Tempest (1841) 151 ER 864 at 865 by Alderson B, cited by Gaudron J in Jackson v Sterling Industries Pty Ltd (1987) 162 CLR 612 at 638). More specifically, this court has the power to, as Menzies J put it in Ex parte Bevan, “protect […] its function as a court.”
My conclusion is also consistent with the approach the trial Judge in fact took in Simonds wherein, after the death of the respondent, his Honour went on to hear and determine the date that the relationship had broken down – a matter plainly falling within s 90RD. If Mr Kadar’s argument is correct, then upon the death of the respondent the trial Judge would have been without jurisdiction to make that determination. Yet none of the members of the Full Court suggested that this was so and I do not accept that their Honours would simply have overlooked such a significant jurisdictional point, particularly where questions of jurisdiction were at the heart of the appeal.
CONCLUSION & ORDERS:
For these reasons the court makes the orders set out at the commencement herein.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 16 December 2024
[1] I have summarised the relevant paragraphs from the judgment which were helpfully set out in Mr Kelly’s Outline of Submissions.
[2] See also Parker v Arcus & Castiglione (1981) FLC 91-581.
[3] Per the joint reasons at 76,534.
[4] Footnotes have been omitted. The full case citations referred to by Murphy J are: Slater and Slater (1985) FLC 91-641; Phillips and Phillips (1985) FLC 91-634 (Elliott J); Rampling & Rampling (1988) FLC 91-902 (Mullane J). These authorities have been applied more recently by Judge Kirton in Mandley & Debbins [2020] FCCA 523, Judge Monahan in Radney & Radney [2022] FedCFamC2F 53 and Judge Lioumis in Dimmick & Harrison (No 2) [2024] FedCFamC2F 29.
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