Aviani v Loh

rocedure Rules 2005 (NSW) Cases Cited: Abbott v Minister for Lands [1895] AC 425 Amalia Investments Ltd v Virgtel Global Networks NV (No 2) (2011) 198 FCR 248; [2011] FCA 1270 Aviani v Loh [2022] NSWSC 658 Benedict v Peake [2013] FCCA 332 BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 Cirillo v Cirillo (No. 4) [2022] FedCFamC1F 208 Cobbin v Cobbin (1976) 1 Fam LN 14; FLC 90-017 Colley v Futurebrand FHA Pty Ltd (2005) 63 NSWLR 291; [2005] NSWCA 223 Davies v Richardson [2011] NSWSC 810 Dawson v Baker (1994) 120 ACTR 11 DMW v CGW (1982) 151 CLR 491; [1982] HCA 73 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Elford v Minty (No 2) [2017] NSWSC 1643 Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613; 64 Fam LR 604 Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 Fisher v Madden (2002) 54 NSWLR 179; [2002] NSWCA 28 Gongsun v Paling [2020] FamCAFC 244; (2020) 61 Fam LR 488 Hazeldell Ltd v Commonwealth (1924) 34 CLR 442; [1924] HCA 36 Hinchen v Hinchen [1984] 1 NSWLR 195 James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357; [2000] NSWCA 353 Kavan v Mallery [2015] FamCAFC 82; (2015) 54 Fam LR 17 Martino v Martino (1981) 7 Fam LR 613 Massalski v Riley [2021] FamCAFC 116 Nevins v Urwin [2022] FedCFamC1A 57; (2022) 64 Fam LR 640 Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 Pelbart v Pelbart (1976) 8 ALR 550 Perry v Gao [2019] NSWSC 1022 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7 Prasad v Google LLC [2020] FCA 67 R v Moore; Ex parte Australian Workers' Union (1976) 11 ALR 449 Raffellini v Raffellini (1985) 10 Fam LR 33 Rana v Google Inc (2017) 254 FCR 1; [2017] FCAFC 156 Re Reinking (1976) 1 Fam LN 12 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 Resort Management Services Ltd v Noosa Shire Council [1997] 2 Qd R 291 Reynolds v Bonnici [2017] NSWSC 828 Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 Shields v Williams [2019] FCA 413 Skandar (Aka Makari) v Bsm Group Pty Ltd (As Trustee For The Bsm Discretionary Trust) [2017] NSWSC 610 Song v Shi [2011] NSWSC 1207 Southern Equity Pty Ltd v Timevale Pty Ltd [2008] FCA 1395 Stott v Stott [2021] FCCA 1690 Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150; [1981] HCA 48 Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55 Warby v Warby [2001] FamCA 1469; (2001) 166 FLR 319 Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 Yu v Wang [2021] NSWSC 1280 Zurich Australian Insurance Ltd v Atradius Credito Y Caucion SA De Seguros Y Reaseguros [2022] FCA 709 Texts Cited: Australian Family Law (LexisNexis) G Lindell, Cowen and Zine's Federal Jurisdiction in Australia (4th ed, 2016, Federation Press) J D Heydon, M J Leeming and P G Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed, 2014, LexisNexis) M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) Ritchie's Uniform Civil Procedure NSW Category: Procedural rulings Parties: Mary Antoinette Aviani (Plaintiff / Cross-Defendant) Jennifer Loh (Defendant / Cross-Claimant) Representation: Counsel: A Kaufmann (Plaintiff) A Murphy (Defendant) Solicitors: DPH Law Group (Plaintiff) Compass Lawyers & Associates (Defendant) File Number(s): 2021/344336

Judgment

1. HIS HONOUR: These proceedings involve disputed property claims as between the plaintiff/cross-defendant (Mary) and the defendant/cross claimant (Jennifer), who lived for some time in a de facto relationship.

Introduction

1. The particular application before the Court is a notice of motion filed by Jennifer on 22 August 2022, seeking a transfer of the proceedings or part of the relief in the proceedings (transfer application) to the Federal Circuit and Family Court of Australia (FCFCA) pursuant to s 45(2) or alternatively s 40(6) Family Law Act 1975 (Cth) (FLA).
2. The transfer application arises in highly unusual circumstances in which there have been two full days of hearing in this Court and judgment has been reserved.
3. On 25 August 2022 I dismissed the transfer application but made the orders staying the proceedings for a period of time as set out more particularly below.
4. These are the reasons for the orders that I made.
5. The first duty of every court is to determine whether or not it has jurisdiction to deal with the application before it: Hazeldell Ltd v Commonwealth (1924) 34 CLR 442 at 446; [1924] HCA 36 (Isaacs ACJ); Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1]; Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 at [10].
6. This case provides a good reminder that all practitioners coming before the Court should, as a matter of good practice and prudence, check to determine that the Court has jurisdiction to deal with all aspects of the matter, particularly so if there have been legislative changes which potentially impact upon the statutory jurisdiction of the Court.
7. In the case of a barrister I regard that as but one aspect of the counsel's overriding duty to the Court to act with independence in the interests of the administration of justice: rule 23 Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW).
8. I hasten to add, that whilst the lack of jurisdiction was not identified at an early stage in these proceedings, once the issue was raised by me, there is no suggestion that counsel in the matter have done anything other than attempt to properly and appropriately assist the Court in accordance with their duties.
9. It is necessary to set out some of the background leading to the transfer application to provide the context for the transfer application.
10. Below I identify some of the issues that have arisen and set out applicable statutory provisions and principles applicable to those issues. I then explain my consideration of those matters leading to the orders that I have made.

De facto relationship

1. For the purposes of the FLA, a person is in a "de facto relationship" with another person if (relevantly): (a) the persons are not legally married to each other; and (b) the persons are not related by family; and (c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis (couple relationship): s 4AA(1) FLA.
2. A de facto relationship can exist between two persons of different sexes and between two persons of the same sex, even if one of the persons is legally married to someone else or in another de facto relationship: s 4AA(5) FLA.
3. In working out if persons have a "couple relationship" the legislation invites the Court to consider any or all of nine specified criteria including, the duration of the relationship, the nature and extent of their common residence, and the reputation and public aspects of the relationship: s 4AA(2) FLA.
4. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship: s 4AA(3) FLA.
5. A court in determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any such matter, as may seem appropriate to the court in the circumstances of the case: s 4AA(4) FLA.
6. Unlike marriage and divorce, there is no formality required for parties to enter into and end a de facto relationship. Ultimately it is a question of fact in each case as to whether a de facto relationship had been commenced and terminated.

De facto financial causes

1. A "de facto financial cause" is defined as including (s 4(1) FLA): "(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"
2. The word "proceedings" is defined as meaning "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding": s 4(1) FLA.
3. The word "court", in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of four specified Acts including the FLA and the FCFCA Act: s 4(1) FLA.
4. The meaning of a "breakdown" of a de facto relationship is partly but not exhaustively defined in the FLA, in so far as it does not include a breakdown of the relationship by reason of death: s 4(1) FLA.
5. A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer "have a relationship as a couple living together on a genuine domestic basis": Fairbairn v Radecki [2022] HCA 18; (2022) 400 ALR 613; 64 Fam LR 604 (Fairbairn v Radecki) at [29] per Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ.
6. In relation to a de facto relationship, "breakdown" refers to the "end" or "breakup" of what had been an enduring emotional bond, and such "breakdown" is the trigger point for the FCFCA to be seized of jurisdiction to make a property settlement order under s 90SM of the FLA: Fairbairn v Radecki at [30]-[31].
7. The noun "distribution" is partly defined under the FLA in so far as the verb "distribute" in relation to property, and financial resources, of the parties to a de facto relationship or either of them includes conferring rights or obligations in relation to the property or financial resources: s 4(1) FLA.
8. The word "property" in relation to the parties to a de facto relationship or either of them means property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion: s 4(1) FLA.

Jurisdiction in respect of de facto financial causes

1. Jurisdiction in respect of de facto financial causes is relevantly conferred on three types of court including the Division 2 Court (but not this Court) with respect to matters arising under the FLA in respect of which de facto financial causes are instituted under the FLA: s 39(1)(a) FLA.
2. The exercise of the de facto financial cause jurisdiction by the Division 2 Court is subject to s 40 FLA.
3. Section 39A deals with instituting proceedings under the FLA and provides: "Instituting proceedings under this Act (1) A de facto financial cause may be instituted under this Act in: (a) the Federal Circuit and Family Court of Australia (Division 2); or (b) the Supreme Court of the Northern Territory of Australia; or (c) a court of summary jurisdiction of a participating jurisdiction. (2) However: (a) in the case of proceedings between the parties to the de facto relationship--either of those parties; or (b) in any other case--at least one of the parties to the proceedings; must be an Australian citizen, ordinarily resident in Australia or present in Australia on the following day: (c) if the application instituting the proceedings is filed in a court--the day on which the application is so filed; (d) in any other case--the day on which the application instituting the proceedings is made. (3) Subsection (2) does not apply in relation to proceedings referred to in paragraph (g) of the definition of de facto financial cause in subsection 4(1). (4) Subsection (1) has effect subject to this Part. Proceedings only to be instituted under this Act (5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act. (6) Subsection (5) has effect subject to subsection 90RC(5)."
4. Section 90RC addresses the relationship of federal legislation with State and Territory laws by reference to "de facto financial provisions".
5. "De facto financial provisions" means the following provisions: (a) PART VIIIAB (being financial matters relating to de facto relationships) (b) Part VIIIAA (being financial agreements) - as applied by section 90TA); (c) Part VIIIB (being superannuation interests) - to the extent to which it relates to a superannuation interest to be allocated between the parties to a de facto relationship; (d) subsection 114(2A) (being injunctive relief in certain a de facto financial causes: s 90RC(1) FLA.

Claims of the parties

1. The claims of the parties in the proceedings relate principally to farming property in North Wootton, New South Wales comprised of two lots, lot 21 and lot 22 (Wootton property), purchased in April 2019 (CB 7[6]-[8], 102[3], and sold in about October 2021 for $2.6 million: CB 8[21], 21[9].
2. Mary seeks related relief regarding a property at Boambee (Boambee property) purchased by Jennifer and another lady Jasmine Kow (Jasmine) pursuant to a contract entered into in early November 2021 for $1,395,000.
3. Completion of the sale of purchase of the Boambee property occurred in mid-December 2021.

Relief sought by the parties

1. Mary principally seeks relief based on principles of an express trust, resulting trust or alternatively constructive trust and/or equitable compensation to claim a share in the proceeds of sale of the Wootton property which Mary says Jennifer used to complete the purchase of the Boambee property: CB 87.
2. There are other claims pursued by Mary including claims of breach of trust, debt, misapplication of profits of the Wootton property and claims of conversion and detinue of two motor vehicles.
3. The relief sought by Mary is mostly declaratory relief in relation to the various alleged trusts and events, and an asserted entitlement to tracing relief and to be provided with an account regarding the proceeds of sale of the Wootton property (orders 1-4, 6, 7 & 10). However, other relief being equitable compensation (order 5), and relief under the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and common law (orders 8, 9, 11) is also sought by Mary.
4. By a cross-claim filed on 3 March 2022 Jennifer claims declarations in relation to an agreement or arrangement with Mary regarding monies.
5. Jennifer also claims in the alternative, pursuant to s 90SL FLA, a declaration regarding the title or rights of Mary by way of "property settlement" to the effect that she is entitled to the sum of $1.21 million of which $910,000 has been paid and a further $300,000 is payable within six months of the date of the order (order 3) and an order that the declaration finally determine the financial relationship between the parties pursuant to s 90ST FLA (order 4). I will refer to the relief sought in orders 3 and 4 of the cross-claim as "the FLA relief".

A relationship

1. The statement of claim in the proceedings pleads that the parties were in a "relationship": CB 89[1]-[4].
2. The defence to the claim asserts a "de facto relationship" existed between the parties: CB 223[1].
3. The expression "de facto relationship" is sensitive to variation in meaning depending on context whether that be in ordinary use in society, under the general law or in relation to certain legislative provisions.
4. Whilst the defence to the main claim does not qualify the purpose for which a de facto relationship was asserted, the cross-claim which was filed on the same day as the defence makes it clear that Jennifer's claim of a de facto relationship is asserted for the purposes of s 90SM FLA: CB 216-219[18]-[19].
5. Those paragraphs of the cross-claim are disputed by the defence to the cross-claim: CB 417[18]-[19]. Nonetheless, there is material in the proceedings which (to put it neutrally) is capable of giving rise to an argument that a de facto relationship existed as between the parties for the purposes of the FLA.
6. There is some dispute about the commencement of the relationship. For present purposes very little turns upon the exact time of commencement. Essentially the contentions are that the relationship commenced in or about late December 2017 or February 2018 and ended in mid to late 2021.
7. It is undisputed that there were periods of time when the parties were not residing together.
8. It is not necessary or appropriate at this stage to make any determination regarding that, other than to observe that there is plausible contention that a relationship subsisted between the parties for a period or periods of time constituting two or more years.

Proceedings commenced

1. On 3 December 2021 Mary commenced these proceedings seeking inter alia injunctive relief against Jennifer. On that date Lindsay J as Duty Judge made orders restraining Jennifer from dealing with certain of the proceeds of sale of the Wootton property, and made associated orders providing for the summons to be returnable on 7 December 2021 before the Duty Judge: CB 22[16], 103[6], 111.

Interlocutory orders

1. On 7 December 2021 the matter was listed before Kunc J as Duty Judge and stood over to 8 December 2021 with the parties having liberty to provide consent short minutes of order: CB 112.
2. On 8 December 2022 the restraining order was varied in a number of respects and the matter adjourned to 16 December 2022.
3. Kunc J ordered that Jennifer forthwith notify Jasmine (as the other co-purchaser of the Boambee property) of these proceedings, the orders and of her entitlement to be heard if she wished when the matter came next before the Court.
4. On 16 December 2021 the parties, but seemingly not Jasmine, appeared before this Court and (CB 103[8]): 1. Jennifer acknowledged a debt of $500,000 to Mary with a notation made that Jennifer undertook to the Court that she would pay the sum of $200,000 to Mary by the close of business on 17 December 2021 in reduction of the debt: CB 112; and 2. by consent Jennifer was restrained from dealing with her interest in the Boambee property except for the purposes of refinancing to pay Mary until further of the Court or agreement between the parties: CB 112.
5. Further and relevantly Kunc J directed that the proceedings continue on pleadings, made orders for filing and serving of any further affidavit evidence in chief by Mary, orders for timing for pleadings to be filed and provided that there be liberty to any party (and Jasmine) to apply on three days' written notice to the Associate to the Duty Judge.
6. The proceedings were adjourned to 31 March 2022.

Progression towards a hearing

1. Earlier this year, following the interlocutory applications and listings in December 2021, the matter was progressed towards a hearing.
2. The statement of claim was filed on 3 February 2022, a defence to that statement of claim and cross-claim were filed on 3 March 2022 and a defence to the cross-claim filed on 25 March 2022.
3. On 25 March 2022 Mary completed her affidavit evidence, comprising three affidavits sworn by herself.
4. In particular on 25 March 2022 Mary filed a notice of motion seeking judgment against Jennifer in an acknowledged amount of the debt being $300,000 (admissions notice of motion) pursuant to r 17.7 and or r 13.1 UCPR.
5. On 31 March 2022 there was listing before Registrar Walton who directed that the parties were to exchange proposed categories for discovery by 8 April 2022 and the matter was adjourned for mention on 8 April 2022 in the Applications List before the Chief Judge in Equity, no doubt to progress hearing of the admissions notice of motion.
6. On 8 April 2022 Hammerschlag CJ in Eq, made directions in respect of the admissions notice of motion, which his Honour stood over for hearing on 13 May 2022.
7. On 13 May 2022 Hammerschlag CJ in Eq, heard the admissions notice of motion and gave judgment for Mary against Jennifer in the sum of $306,047 inclusive of interest and directed Jennifer to pay Mary's costs of the admissions notice of motion: Aviani v Loh [2022] NSWSC 658. The judgment was stayed for a period up to and including 23 May 2022.
8. On 17 May 2022 Jennifer completed her affidavit evidence which included five affidavits sworn by herself.
9. Jennifer had earlier filed and served a number of other affidavits the last of which was filed on 3 March 2022 from four other witnesses including Jasmine.
10. On 18 May 2022 Jennifer filed a notice of motion seeking a stay of the judgment until 31 October 2022 and orders permitting her to pay the judgment debt by certain specified instalments. Jennifer also foreshadowed an application to refinance the borrowings in respect of Boambee property.
11. On 23 May 2022 orders were made staying the judgment, subject to further order, on condition that Jennifer pay Mary by 30 June 2020 the sum of not less than $100,000 (which payment was made). The proceedings were fixed for hearing to commence on 8 August 2022 with an estimate of two days. Consequential orders were also made.

Jurisdictional concerns

1. On 8 July 2022 the matter was listed before Peden J for pre-trial directions. On 28 July 2022 the matter was further listed before Peden J for further directions.
2. On 28 July 2022, when Ms Murphy drew her Honour's attention to the fact that there was FLA relief claimed by Jennifer, her Honour raised with the parties why the matter had not been brought in the FCFCA.
3. Ms Murphy referred to the fact that the proceedings had been commenced in this Court by the other party (Mary) for injunctive relief and indicated that because of the nature of the issues involved and the way the matter had proceeded it had not been subject of an application for transfer to the FCFCA: T 4 (28 July 2022).
4. Consequent upon a variation in listing arrangements the matter was subsequently allocated to me for hearing.
5. On 4 August 2022 I listed the matter for pre-trial directions and made a number of orders to facilitate the hearing of the proceedings to commence on 8 August 2022.
6. On the 4 August 2022 listing I raised with the parties' legal representatives the fact that the FLA relief was sought and asked whether this Court had jurisdiction to deal with the matter. At that stage, the representatives suggested that there was no issue with this Court to being able to deal with the matter in light of a decision of Rein J in Perry v Gao [2019] NSWSC 1022 to the effect that the Supreme Court [then] had jurisdiction under the Commonwealth Cross-vesting Act to hear a de facto financial cause.
7. As will be seen below, in fact there was very distinctly a jurisdictional issue. However, I hasten to add that there is absolutely no suggestion that either of the legal representatives who appeared on the pre-trial directions listing in any way intentionally mislead the Court regarding this issue.
8. I directed the parties to prepare a refined list of issues in the proceedings.
9. On 5 August 2022 the counsel for the parties provided to my Associate the following list of issues: "Issues arising on Statement of Claim 1. Were the Wootton property, the proceeds of its sale and the profits derived from it were held on trust for Ms Aviani and, if so, in what amount? 2. Is Ms Loh's 70% interest in the Boambee property charged in favour of Ms Aviani? 3. Is Ms Aviani entitled to judgment pursuant to UCPR 17.7 in respect of an acknowledged loan to her by Ms Aviani in the sum of $274,000 plus interest? 4. Has Ms Loh misapplied profits from the Wootton property and / or detained or converted Ms Aviani's motor vehicles for her own use, and, if so, what follows from that? 5. What relief is appropriate in the circumstances? Issues arising on Cross-Claim 1. Whether the Plaintiff intended that the Defendant should have a 50% beneficial interest in the Wootton property at the time of purchase of the Wootton property and thus constitutes a rebuttal of a presumption of resulting trust. 2. Whether part of the moneys advanced by the Plaintiff to the purchase price was by way of loan to the Defendant thus constituting an equal contribution to the purchase price. 3. Whether there was a common intention that the respective interests of the parties should be in proportion to their contributions and that those contributions should include financial contributions and non financial contributions made to the upkeep, maintenance, improvements and outgoings relating to the Wootton property and that it would be unconscionable to assert otherwise. 4. Whether it was the common intention of the parties that the sale proceeds of the Wootton property should be divided equally between the parties. 6. What is [t]he consequence of the application of the Family Law Act to the property dispute between the parties?"

Hearing

1. On 8 August 2022 at the commencement of the hearing I raised with the parties a concern I had regarding the jurisdiction of the Court to hear the relief sought in the cross-claim: T3.
2. Ms Murphy made reference to Perry v Gao. In that case, the parties had been in a de facto relationship. The defendant was the registered proprietor of property and the plaintiff claimed that he was entitled in equity to an interest of 50% in that property, primarily based on application of principles regarding undue influence and unconscionable conduct, but in the alternative pursuant to s 90SM FLA. The plaintiff succeeded in his claims in equity and obtained declarations and orders for the sale of the property pursuant to s 66G Conveyancing Act 1919 (NSW). Rein J made contingent findings under the FLA.
3. The defendant appealed to the Court of Appeal. In the particular circumstances of that case having regard to the provisions of the Commonwealth Cross-vesting Act and distinctions between institution of appeals and determining appeals, it was held that the effect of s 7(5) Commonwealth Cross-vesting Act on the claim meant the appeal should be determined only by the Full Court of the Family Court: see Gao v Perry [2020] NSWCA 15.
4. As the issue of jurisdiction to deal with the matter was still troubling me, at the end of the first day of the hearing, I requested parties to give consideration to the jurisdictional issue overnight: T75-77.
5. On 9 August 2022 on the resumption of the hearing I raised again the issue of the jurisdiction of this Court to deal with the FLA relief: T79-82. Ms Murphy provided to me a number of decisions said to bear upon the jurisdiction issue, namely Benedict v Peake [2013] FCCA 332; Kavan v Mallery [2015] FamCAFC 82; (2015) 54 Fam LR 17 and Gongsun v Paling [2020] FamCAFC 244; (2020) 61 Fam LR 488.
6. However, each of those decisions predated the legislative amendments commencing on 1 September 2021 and in particular the FCFCA Act and amendments to the Commonwealth Cross-vesting Act.
7. With the parties not readily in a position to be able to further address the jurisdictional issue and mindful of the fact that the proceedings were only listed for final hearing for two days I proceeded to attempt to complete the hearing within the two days.

Judgment reserved

1. At the conclusion of the hearing I reserved judgment and made the following direction to address the issue of jurisdiction: ".. the parties to provide written submissions directed to the question of whether this court has jurisdiction with regard to paragraphs 3 and 4 of the cross claim to the Associate of Meek J by 4:00pm on Wednesday, 17 August 2022." (jurisdiction submissions)
2. On 17 August 2022 I received the jurisdiction submissions pursuant to the direction given on 9 August 2022.

Submissions provided

1. On 17 August 2022 Ms Murphy provided a short submission on the jurisdictional question submitting that this Court had jurisdiction to hear paragraphs 3 and 4 of the cross-claim.
2. The submission referred to s 4(1) Jurisdiction of Courts (Cross Vesting) Act (in context the Commonwealth Cross-vesting Act) but did not explain how that provision gave this Court jurisdiction to deal with a de facto financial cause.
3. The submission proceeded: "further or in the alternative, to the extent that the Court considers that it does not have jurisdiction, or, to the extent that the Court considers that in the interests of justice it ought not entertain that jurisdiction and that a more appropriate Court should determine the matter, then the Court can: a. Make an order under s.5(1) of the Jurisdiction of Courts (Cross Vesting) Act transferring paragraphs 3 and 4 of the Cross Claim to the Federal Circuit and Family Court of Australia; or in the alternative, b. Leave open the question of making an application upon final short minutes after judgment to transfer that aspect of the proceeding to the more appropriate Court".
4. Ms Murphy's submission added: "Further, the plaintiff's claim and the balance of the Cross Claim deal with questions of trust, and other equitable matters, however, paragraphs 3 and 4 of the Cross Claim deal with questions of discretion irrespective of the determination of those matters. That aspect of the Cross Claim ought to be transferred to a more appropriate Court and upon the exercise of the discretions involved in the Family Law Act, the judgment in this Court can be taken into account".
5. On 17 August 2022 Mr Kaufmann provided submissions.
6. Part of the submissions addressed the framing of the FLA relief in the cross-claim and (in summary) were to the following effect: 1. the s 90ST FLA relief is not engaged, as s 90ST FLA relates to proceedings other than under s 90SL FLA and the relief sought in paragraph 3 of the cross-claim is under s 90SL FLA; 2. in any event it is not practicable for the Court to make an order pursuant to s 90ST FLA finally determining the relationship between the parties; and 3. the balance of the FLA relief, being s 90SL FLA, was not available, because the precise way the order for declaratory relief is framed by reference to monetary amounts is not declaratory relief with respect to "existing title or rights in respect of property".

Transfer application formally sought

1. On the morning of 22 August 2022, prior to the listing of the matter I received submissions by Ms Murphy on behalf of Jennifer, which submissions raised the prospect of a potential application for transfer of the proceedings to the FCFCA.
2. On 22 August 2022, at the listing of the proceedings I raised with the parties questions concerning what may be conveniently described as (a) the jurisdictional issue; (b) a joinder issue; and (c) the foreshadowed transfer application.
3. In relation to the jurisdictional issue, I indicated that although I had not formed any concluded view regarding the matter it occurred to me that there may be an issue not merely as to whether the Court had jurisdiction to entertain the cross-claim but also the relief sought in respect of the statement of claim.
4. In relation to the joinder issue I raised for the parties a question regarding the position of Jasmine, having regard to the fact that certain of the relief sought by Mary might impact Jasmine's position as co-owner of the Boambee property, and she had not been joined as a party to the proceedings.
5. In relation to the foreshadowed transfer application, Ms Murphy confirmed that a transfer application was indeed sought.
6. I indicated that having regard to the nature of the matter any transfer application should be formalised by the filing and serving of a notice of motion.
7. I further indicated that it would not be fair for Mr Kaufmann or indeed the parties and the Court to deal with the application instanter, until there was some time to consider the matter and hear the application.
8. There was a period of time available in which I am assigned as Duty Judge which might have allowed the hearing at the end of the week commencing 5 September. However, Ms Murphy indicated that she would be leaving overseas after the end of the immediate week.
9. Having regard to the Court's listing schedules and the fact that I would be commencing a lengthy hearing on 12 September, the prospect was that unless there was a fairly immediate hearing of the transfer application, the matter would not be able to be dealt with until potentially some time in October 2022.
10. It seemed to me that a prolonged delay in dealing with the matter was not in the interests of the parties or the Court.

The provisions

1. Section 45(2) FLA provides as follows: "Where there are pending in a court proceedings that have been instituted under this Act and it appears to that court that it is in the interests of justice, or of convenience to the parties, that the proceedings be dealt with in another court having jurisdiction under this Act, the court may transfer the proceedings to the other court. …"
2. Section 40(6) FLA provides as follows: "A party to proceedings instituted or continued under this Act that are at any time pending in the Supreme Court of a State or Territory, being proceedings that could, at the date of the application under this subsection, have been instituted in the Federal Circuit and Family Court of Australia (Division 2), may apply to that Court for an order transferring the proceedings to the Court, and the Court may order accordingly."

Submissions

1. Ms Murphy in the context of the transfer application provided two sets of submissions on 22 August 2022. The first set of submissions raised the prospect of a transfer pursuant to s 45(2) FLA. The second set of submissions addressed the requirements for a de facto relationship.
2. Ms Murphy referred to jurisdictional issues with the FCFCA Act noting that they have been canvassed in Cirillo v Cirillo (No. 4) [2022] FedCFamC1F 208.
3. No particular submissions were provided by Ms Murphy in relation to the operation of s 45(2) FLA or the permissible criteria by which the transfer application ought to be exercised.
4. Mr Kaufmann provided submissions on 24 August 2022 (as directed). Those submissions referred to his earlier submissions on jurisdiction and added (my summary) as follows: 1. s 45(2) FLA is engaged where there are in a "court …" proceedings pending [which have been] "… instituted under the Act" and allows transfer, in appropriate circumstances to "another court having jurisdiction under [the] Act" (emphasis added); 2. a "court" is defined in section 4 FLA to mean, relevantly, in relation to any proceedings "the court exercising jurisdiction in those proceedings by virtue of this Act"; 3. this Court is not exercising "its jurisdiction in these proceedings" in respect of the cross-claim by virtue of the FLA and has no jurisdiction to do so; 4. this Court is not exercising its jurisdiction under the FLA in respect of the statement of claim; 5. the proceedings were not "instituted" in the sense of having been commenced under the FLA; and 6. s 45(2) FLA is not engaged nor a source of power for this Court to transfer the proceedings and (in the limited time available to him) Mr Kaufmann found no caselaw example of proceedings being transferred by this Court in the way sought by Jennifer.
5. Mr Kaufmann noted there is a strong indication that this Court does not have the power to transfer the proceedings and submitted that even if the Court does have power to transfer the proceedings, it should not be satisfied that it is an appropriate exercise of its discretion to do so.
6. Mr Kaufmann submitted that a transfer is not in the "interests of justice" for the following reasons (both individually and combined): 1. the lateness of the application - being two weeks after the conclusion of the hearing; 2. the fact that this Court will have formed an opinion as to the credibility of the witnesses; 3. forensic decisions were made as to how the witnesses would be cross-examined - and that Jennifer allowed that to occur without raising the possibility of a transfer application; 4. a transfer of the proceedings to the FCFCA will deprive (the Division 2 Court) of an opportunity to observe the witnesses during cross-examination and make appropriate credit findings based on their evidence on their demeanour; 5. if another Court were to hear the evidence and allow cross-examination again the forensic advantage available to both parties to raise matters for the first time in cross-examination will have been lost - and that that "would be an unjust result, contrary to the interests of justice" and making reference to Pelbart v Pelbart (1976) 8 ALR 550 at 553; 6. a transfer would be contrary to the overriding purpose provisions of ss 56-60 CPA, productive only of delay and further expense for the parties citing Stott v Stott [2021] FCCA 1690 at [26]; and 7. no offer to compensate Mary for her costs incurred to date in the proceedings has been made by Jennifer.

Hearing

1. On 25 August 2022 the notice of motion was listed for hearing before me.
2. In support of the notice of motion Ms Murphy read the affidavits of Mary sworn on 3 December 2021, and also four affidavits of Jennifer sworn respectively on 15 December 2021, 3 March 2022, 19 April 2022 and 9 May 2022. The affidavits were read without objection. There was no reply evidence.
3. On the application Ms Murphy relied upon her earlier submissions and in addition submitted as follows (T3-5): 1. Jennifer's cross-claim seeking the FLA relief relies upon s 4(1) Commonwealth Cross-vesting Act; 2. jurisdictional issues have arisen regarding the Division 1 Court and Division 2 Court as referred to in Cirillo v Cirillo (No. 4) [2022] FedCFamC1F 208; 3. proceedings may be transferred from the Division 1 Court to the Division 2 Court, but "whether that power of the Division 1 [Court] means that the Supreme Court then has the appropriate jurisdiction with respect to 'this Act' is just conjecture"; and 4. the Supreme Court has jurisdiction to deal with matters referred to the Division 1 Court.
4. Ms Murphy did not concede that this Court had no jurisdiction to deal with "de facto financial causes" but accepted that there is a very serious issue (i.e. doubt) as to whether this Court has such jurisdiction: T6.
5. Ultimately Ms Murphy's submitted that: 1. whether this Court had jurisdiction to deal with "de facto financial causes" is dependent upon such (if any) jurisdiction that might be derived from the reference in s 4(1) Commonwealth Cross-vesting Act to the Division 1 Court: T7; and 2. sections 45(2) & 40(6) FLA have been worded to address the issue that s 39B provides for "de facto financial causes" to be assigned to the Division 2 Court and gives power to apply to transfer a case to the Division 2 Court, noting "otherwise the sections don't have any purpose and don't make sense": T8.
6. Ms Murphy confirmed that she had not referred me to any particular cases dealing with s 45(2) FLA: T5. However, she submitted that was in the interests of justice to transfer the cross-claim to the Division 2 Court and it had the same "goal of just quick and cheap resolution with respect to cases": T5.
7. Mr Kaufmann relied upon his earlier submissions and confirmed his written submissions in relation to ss 45(2) & 40(6) FLA: T5&6.

Sub-section 45(2) FLA

1. An application under s 45(2) FLA by its terms is properly made in the court in which the proceedings are pending and not in the court to which it is desired the proceedings should be transferred.
2. It has been observed that s 45(2) FLA on its face contains no power to transfer a separate question (otherwise described as a 'bifurcated issue') from the Family Court to the Supreme Court of NSW and leaving the remainder of the proceedings in the Family Court for later completion: Joubert v Verhoeven [2018] FamCA 879 (Joubert) at [31]. In Joubert Stevenson J dismissed such an application for transfer in circumstances in which there was a risk of conflicting findings of fact and credit by two different judges: at [31]-[33].
3. There are certainly cases in which s 45(2) FLA has been considered. However, few of the recent cases go into detail regarding caselaw explaining the criteria for transfer: see e.g. Stott v Stott [2021] FCCA 1690; Leroux v Leroux [2019] FamCA 856; Dudek v Hresko [2015] FamCA 505.
4. There is some commentary in Australian Family Law (LexisNexis) at '[s 45.8] Transfer of proceedings to another court having jurisdiction under the Act - s 45(2)' referring to Kavan v Mallery.
5. In Kavan v Mallery the primary judge did not identify the source of the power upon which she relied to make the order transferring the proceedings to the Supreme Court. However, the Full Court of the Family Court did not doubt that the power purportedly exercised was the power contained in s 45(2) FLA. Their Honours noted that although the primary judge did not use in her reasons either the expression "interests of justice" or the expression "of convenience to the parties", both those concepts could readily be seen to underlie her Honour's reasons.
6. That said, there was no other comment (nor occasion) for the Full Court to specify what is permissible criteria for assessing "interests of justice" or the expression "of convenience to the parties" under s45(2) FLA.
7. Neither counsel referred me to any specific caselaw on s 45(2) FLA which discusses the factors or scope of criteria that might legitimately be considered by a judge regarding the concepts of the "interests of justice" and "convenience to the parties".
8. I note that there is reference to the concept of the "interests of justice" in each of s 5 Commonwealth Cross-vesting Act and the NSW Cross-vesting Act.

Sub-section 40(6) FLA

1. It has been said that the principles to be applied on a s 45(2) application are similar to those applicable in relation to s 40(6): see Cobbin v Cobbin (1976) 1 Fam LN 14; FLC 90-017. That comment appears to have been made in a context in which regard was had to reg 102 of the Family Law Regulations 1975 (Cth) which in its terms apply to an application for an order under s 40(6).

Engagement of the transfer power

1. Apart from Mr Kaufmann's submissions regarding the wording of s 45(2) & s 40(6) FLA neither counsel, in the time available, were able to refer me to any caselaw addressing the issue of whether those provisions were premised upon the jurisdiction of the court in which proceedings have been "instituted" has been regularly engaged.
2. In Martino v Martino (1981) 7 Fam LR 613, a husband commenced proceedings in the Queensland Supreme Court seeking declarations regarding interests in a property owned by the wife. The wife then made an application to the Family Court seeking the transfer of those proceedings to the Family Court under s 40(6) FLA. Lambert J held that that subsection was inapplicable. His Honour relevantly explained at 615: "The difficulty that I have about the application of that provision to the proceedings between the parties in the Supreme Court of Queensland is that they were not 'instituted' under the Family Law Act. The form of the originating proceedings and the form in which the relief is claimed are inappropriate to the institution of proceedings for relief under s 78 of the Family Law Act, notwithstanding that the relief sought is available under that section."
3. His Honour further observed at 616: "The present proceedings before the Supreme Court in my view clearly constitute a matrimonial cause under para (ca) at the date of their institution. Section 8(1) of the Family Law Act provides that after its commencement proceedings by way of a matrimonial cause shall not be instituted except under this Act."
4. His Honour ultimately concluded at 617: "I hold that this court has no power to order that the proceedings between the parties wrongly instituted in the Supreme Court of Queensland be stayed or transferred to this court …"
5. There are also cases dealing with transfer provisions in other legislation which bear upon that issue.
6. Such other caselaw does not bind me in relation to the wording of s 45(2) & s 40(6) FLA. Nonetheless, it is of some assistance to see how the question has been approached in other transfer provision contexts.
7. For example, there is authority to the effect that s 5(4) Commonwealth Cross-vesting Act operates on the premise or assumption that the jurisdiction of the "first court" has been regularly engaged or invoked: BHP Billiton Ltd v Schultz (2004) 221 CLR 400; [2004] HCA 61 per Gleeson CJ, McHugh and Heydon JJ at [14].

Prior terms of the cross-vesting legislation & the FLA

1. Since the inception of the FLA there have been various provisions which has affected the jurisdiction of the NSW Supreme Court in matters involving matrimonial causes.
2. The history is explained by Brereton J (as his Honour then was) in Young v Lalic [2006] NSWSC 18; (2006) 197 FLR 27 at [32] to [50].
3. Originally, under s 39(1) FLA, matrimonial causes could be instituted in this Court as well as in the Family Court and this Court was invested with federal jurisdiction with respect to matrimonial causes: s 39(5) FLA.
4. However, provision was made for the Governor-General to fix by proclamation a date from which matrimonial causes and other proceedings referred to in s 39(5) may not be instituted in or transferred to the Supreme Court: s 40(3) FLA.
5. A proclamation dated 27 May 1976 fixed 1 June 1976 as the date on and after which proceedings of certain classes may not be instituted in, inter alia, this Court: Young v Lalic at [38]; DMW v CGW (1982) 151 CLR 491; [1982] HCA 73 at 499 per Gibbs CJ, at 507 per Mason, Murphy, Wilson, Brennan and Deane JJ and at 511-512 per Dawson J.
6. A further proclamation was made on 23 November 1983. Its effect as explained by Brereton J in Young v Lalic (at [38]) was to: "(fix) 25 November 1983 as the date on and after which proceedings that are the matrimonial causes referred to in s 39(5)(a) or (b), or proceedings referred to in s 39(5)(c), (d) or (e), may not be instituted in, inter alia, this Court. Its effect was to ensure that the Supreme Courts were divested of any jurisdiction they may have (probably unintentionally) acquired in relation to matrimonial causes within those paragraphs of the definition of matrimonial cause which had been added since the first proclamation, and thus might not have been covered by the first proclamation: see Perlman v Perlman (1984) 155 CLR 474 (per Gibbs CJ)"
7. That brought to an end the jurisdiction of this Court in matrimonial causes, until the commencement in 1998 of the cross-vesting scheme created by the various Jurisdiction of Courts (Cross-vesting) Acts of 1997 of the various States and the Commonwealth (the cross-vesting legislation): Young v Lalic at [38]; see also Kavan v Mallery at [25]-[27].
8. The effect of the cross-vesting legislation was to again invest the State Supreme Courts with FLA jurisdiction.

FCFCA Act

1. On 1 September 2021 various legislative changes were effected and the FCFCA Act relevantly commenced.
2. The federal court known immediately before 1 September 2021 as the Family Court of Australia is continued in existence and now known as the Division 1 Court. Likewise, the federal court known immediately before the commencement day as the Federal Circuit Court is continued in existence and now known as the Division 2 Court: s 8 FCFCA.
3. The Division 1 Court is a superior court of record and a court of law and equity: s 9(1) FCFCA.
4. The Division 2 Court is a court of record and a court of law and equity: s 10(1) FCFCA.
5. Section 31 FLA (which had conferred on the Family Court jurisdiction in respect of "de facto financial causes") was repealed on 1 September 2021 by virtue of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), Sch 1, item 36.

Transitional provisions

1. Item 229 in Sch 1 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) provides: "229 Application The amendments of the Family Law Act 1975 and the Federal Court of Australia Act 1976 made by this Schedule apply in relation to a proceeding commenced before, on or after the commencement day."
2. The "commencement day" is defined (in item 228) as meaning "the day this Schedule [being Sch 1] commences." Schedule 1 relevantly commenced "At the same time as the Federal Circuit and Family Court of Australia Act 2021 commences", being 1 September 2021: s 2(1).
3. Rules 7 and 8 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (Cth) provide: "7 Proceedings before the Family Court of Australia before 1 September 2021 (1) This section applies in relation to a proceeding if: (a) immediately before 1 September 2021, the proceeding, or part of the proceeding, was in the Family Court of Australia; and (b) the proceeding had not been determined before that day. (2) For the purposes of the FCFCA Act, on and after 1 September 2021, that proceeding is taken to be a proceeding in the Federal Circuit and Family Court of Australia (Division 1). 8 Proceedings before the Federal Circuit Court of Australia before 1 September 2021 (1) This section applies in relation to a proceeding if: (a) immediately before 1 September 2021, the proceeding, or part of the proceeding, was in the Federal Circuit Court of Australia; and (b) the proceeding had not been determined before that day. (2) For the purposes of the FCFCA Act, on and after 1 September 2021, that proceeding is taken to be a proceeding in the Federal Circuit and Family Court of Australia (Division 2)."
4. Section 7(2) of the Acts Interpretation Act 1901 (Cth) provides: "If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not: (a) revive anything not in force or existing at the time at which the repeal or amendment takes effect; or (b) affect the previous operation of the affected Act or part (including any amendment made by the affected Act or part), or anything duly done or suffered under the affected Act or part; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended. Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended."

Powers of the Division 2 Court

1. Section 139 FCFCA Act provides that: "Determination of matter completely and finally In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either: (a) absolutely; or (b) on such terms and conditions as the Court thinks just; all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible: (c) all matters in controversy between the parties may be completely and finally determined; and (d) all multiplicity of proceedings concerning any of those matters may be avoided."

Revised cross-vesting legislation & the FLA

1. Sections 39A and 39B of the Family Law Act now relevantly provide: "39A Instituting proceedings Instituting proceedings under this Act (1) A de facto financial cause may be instituted under this Act in: (a) the Federal Circuit and Family Court of Australia (Division 2) … Proceedings only to be instituted under this Act (5) A de facto financial cause that may be instituted under this Act must not, after the commencement of this section, be instituted otherwise than under this Act. … 39B Jurisdiction in de facto financial causes (1) Jurisdiction is conferred on: (a) the Federal Circuit and Family Court of Australia (Division 2) … with respect to matters arising under this Act in respect of which de facto financial causes are instituted under this Act."
2. Significantly, s 4(1) Commonwealth Cross-vesting Act now relevantly provides: "Where: (a) the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and (b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter; then: (c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Northern Territory) - that court is invested with federal jurisdiction with respect to that matter; or (d) …"
3. I note that the NSW Cross-vesting Act has not been amended in light of the enactment of the FCFCA. There are still references within the NSW Cross-vesting Act to the Family Court: ss 3, 5.
4. However, by reference to a number of statutory provisions including s 8(1) FCFCA (above), s 53(1) Interpretation Act 1987 (NSW), s 25B(1) of the Acts Interpretation Act 1901 (Cth), clauses 1 & 6 of Sch 5 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), the reference to "Family Court" in s 5(1) of the NSW Jurisdiction of Courts Act must be read as "Federal Circuit and Family Court of Australia (Division 1)".
5. For completeness, the FCFCA provides for a discretionary transfer of proceedings from the Division 1 Court to the Division 2 Court in certain circumstances: s 52 FCFCA.

Associated jurisdiction

1. Section 134 FCFCA (which substantially replicates s 33 FLA in force before 1 September 2021) provides: "Jurisdiction in associated matters To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked."
2. It has been said that such a provision "is almost wholly otiose": M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) (Authority to Decide) at 118. The section has no role to play "in the basic question whether rights at common law in equity or under State statute may be determined by that court": at 121, citing Warby v Warby [2001] FamCA 1469; (2001) 166 FLR 319.
3. Section 139 FCFCA provides: "Determination of matter completely and finally In every matter before the Federal Circuit and Family Court of Australia (Division 2), the Court must grant, either: (a) absolutely; or (b) on such terms and conditions as the Court thinks just; all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by a party in the matter, so that, as far as possible: (c) all matters in controversy between the parties may be completely and finally determined; and (d) all multiplicity of proceedings concerning any of those matters may be avoided."
4. Such provisions do not confer jurisdiction, but empowers the Court to grant appropriate relief in a case which is properly within jurisdiction: G Lindell, Cowen and Zine's Federal Jurisdiction in Australia (4th ed, 2016, Federation Press) at 189, citing Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; [1981] HCA 7.

Comment

1. Having regard to reasoning in decisions prior to the 1 September 2021 amendments, there is a distinct argument (which I expressly do not decide) that the revised legislative provisions confer the jurisdiction to entertain de facto financial causes exclusively on the Division 2 Court: Massalski v Riley [2021] FamCAFC 116 (Massalski v Riley) at [18] per Ryan, Aldridge and Watts JJ.
2. There are questions as to: 1. whether s 39A(5) FLA deprives this Court of jurisdiction to hear and determine de facto financial causes; and 2. whether this Court only has jurisdiction with respect to matters falling within the jurisdiction of the Division 1 Court having regard to s 25 FCFCA which addresses the Division 1 Court.
3. Questions then arise as to whether either or both of the proceedings on the statement of claim and the cross-claim constitute a "de facto financial cause", particularly by reason of para (c) of the definition.
4. Subject to threshold issues, arguably the Division 2 Court has jurisdiction to make the declarations sought in the statement of claim and cross-claim pursuant to s 90SL FLA, when one has regard to Massalski v Riley at [18]-[21] per Ryan, Aldridge and Watts JJ.

Jurisdiction to deal with the FLA relief

1. This Court has jurisdiction to consider whether an application before it is of a nature that constitutes a cause the jurisdiction of which is allocated to another court: Hinchen v Hinchen [1984] 1 NSWLR 195 at 208D per Mahoney JA (in that case the issue was whether the application before the court constituted a "matrimonial cause"); see also Raffellini v Raffellini (1985) 10 Fam LR 33.
2. Generally speaking, parties cannot by consent confer jurisdiction on a court to make orders which the court lacks power to make: R v Moore; Ex parte Australian Workers' Union (1976) 11 ALR 449 at 453 (Barwick CJ); Thomson Australian Holdings Pty Ltd v Trade Practices Commission (1981) 148 CLR 150 at 163; [1981] HCA 48 (Gibbs CJ, Stephen, Mason & Wilson JJ).
3. The general position may of course be altered by statutory provisions. For example, statutory provisions may enable a court to hear and dispose of a matter to a specified level beyond its usual monetary jurisdictional limit if a party files a consent to do so, or if no objection to the court's jurisdiction to deal with the matter has been raised by any of the parties: s 51 District Court Act 1973 (NSW).
4. However, there are (in this case) no such relevant statutory provisions permitting conferral of jurisdiction on this Court. Accordingly, in this case, if there is a risk that the court lacks jurisdiction, that risk cannot be allayed or solved by consent of the parties.
5. The amendments to the Commonwealth Cross-vesting Act when applied to the circumstances of this case strongly suggest that there is no jurisdiction to determine the FLA relief.
6. In my opinion, but without determining the issue, there is a very serious doubt as to whether this Court has jurisdiction to deal with the FLA relief sought by Jennifer.
7. Ms Murphy conceded such serious doubt: T6.
8. Further, Mr Kaufmann's submission that this Court has jurisdiction in relation to the issues raised in the statement of claim (because he says what is sought is declaratory relief regarding rights and a charge over property and not a "de facto financial cause" involving conferring of rights), whilst at first blush understandable, might not necessarily be correct.
9. Prior to 1 September 2021, proceedings claiming (relevantly) declarations in relation to ownership of property "to establish the existence of an equitable interest in fee simple" by way of constructive trust "in a share proportionate to the [party's] contribution to the acquisition of the land" have specifically been held to be a "de facto financial cause": Massalski v Riley at [8] & [18].

Doubtful jurisdiction to transfer

1. In my opinion there is a serious doubt as to whether this Court has jurisdiction to transfer the proceedings under ss 45(2) and or 40(6) FLA to either the Division 1 Court or the Division 2 Court, essentially for the reasons advanced by Mr Kaufmann. The debate on the hearing of the transfer application reinforced that there is such doubt.
2. As to Ms Murphy's argument that ss 45(2) & 40(6) FLA have been worded to address the issue that s 39B provides for "de facto financial causes" to be assigned to the Division 2 Court, I seriously doubt that ss 45(2) & 40(6) FLA gives this Court power, in the circumstances of this case, to transfer a case to the Division 2 Court: T8.
3. Thus, if I were to transfer the proceedings purportedly using those powers, it may be that held that I had no power to do that.
4. On the other hand, it does seem to me that if the jurisdiction of the Division 2 Court were to be separately invoked that that Court very arguably has jurisdiction to deal with all the claims in the proceedings.
5. Mr Kaufmann accepted the proposition in argument that although the FLA relief under s 90SL FLA is framed by reference to a monetary amount, the claim might be understood as seeking relief referable to the rights of the parties to property: T4.
6. Mr Kaufmann also accepted that the Division 2 Court could hear a claim in respect of a de facto financial cause and because of accrued jurisdiction also hear and deal with the proceedings on the statement of claim: T12.
7. I pause to note that the term "accrued" jurisdiction has been progressively abandoned to the point where the High Court has indicated that its use is best avoided: see Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23 at [55]; Authority to Decide at 117.

Stay

1. As noted above I foreshadowed the prospect of a stay of the proceedings the day prior to the hearing of the transfer application and requested parties (albeit on short notice) to consider the prospect of a stay of the proceedings to enable Jennifer to have an opportunity to invoke jurisdiction of the court to deal with her claim for FLA relief.
2. This Court has jurisdiction to order a stay of the proceedings in its inherent jurisdiction and by s 67 CPA.
3. Section 67 CPA provides that subject to rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
4. It confers a general power to stay proceedings, without identifying any particular criteria for its exercise.
5. Nonetheless, there is ample judicial authority to stay proceedings where there are jurisdictional concerns and more particularly where there is an alternative appropriate forum to deal with the disputes between parties. Without in any way attempting to be specific, I have in mind cases such as Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 and Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538; [1990] HCA 55.
6. It is ordinarily undesirable for Court to only determine a portion of a dispute (assuming there is power to do so): e.g. Fencott v Muller (1983) 152 CLR 570 at 608; [1983] HCA 12 per Mason, Murphy, Brennan and Deane JJ: "A judicial power which is not exercised to determine the whole of a controversy is, generally speaking, not appropriately and conveniently exercised. Not appropriately, because the controversy is not quelled; not conveniently, because the parties - the principal beneficiaries of the exercise of judicial power - must litigate anew to have the outstanding questions and issues determined."
7. Likewise, Murphy J explained in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd at 519: "[I]t is highly inconvenient and an ineffective use of judicial power to fragment the case by determining different issues in different courts."
8. The essential idea of avoiding a multiplicity of suits has entrenched statutory endorsement: s 63 Supreme Court Act 1970 (NSW); ss 43 & 139 FCFCA.
9. On the hearing of the transfer application, I raised in argument the question of problems that might arise from factual findings made in one proceeding that might impact upon another.

Terms of stay and costs

1. Having reserved further consideration of my decision at the hearing on 25 August 2022 to chambers, I proposed by means of email communication from my Associate to both Ms Murphy and Mr Kaufmann a draft of orders to giving them an opportunity to respond to the draft.
2. Having considered their responses, and in particular the response of Mr Kaufmann that the parties be permitted to address the questions of whether the stay would continue and also costs after having the opportunity to consider these reasons for judgment, I revised the draft of the orders, to accommodate that concern.
3. The final form of the orders I made on 25 August 2022 is as follows: 1. Order that these proceedings be stayed until 5pm on 7 October 2022, on terms that: 1. the defendant/cross-claimant have until 29 September 2022 to commence proceedings against the plaintiff/cross defendant in respect of the relief substantially as sought in the cross-claim filed in these proceedings on 3 March 2022 in the Federal Circuit and Family Court of Australia (Division 2) ('Division 2 Court proceedings'); and 2. the defendant/cross-claimant undertakes to this Court to prosecute expeditiously any such Division 2 Court proceedings commenced. 1. Order that in the event that the defendant/cross-claimant does not commence any such Division 2 Court proceedings by or on 29 September 2022 the stay under order 1 shall lapse. 2. Order that the notice of motion filed by the defendant/ cross claimant on 22 August 2022 be dismissed. 3. Note that: 1. on 13 May 2022 Hammerschlag CJ in Eq ordered the defendant to pay the plaintiff's costs of the plaintiff's notice of motion filed on 25 March 2022 (admissions costs order); and 2. on 23 May 2022 Hammerschlag CJ in Eq ordered that the costs of the notice of motion filed by the defendant on 18 May 2022 be costs in the cause. 1. Order that the parties provide an outline of submissions by email to the Associate to Justice Meek by 4pm on 4 October 2022 addressing (in light of the circumstances then prevailing including the delivery of reasons for judgment as referred to in order 6): 1. whether the stay in order 1, if still subsisting, ought to continue and proposed variations (if any) to the terms of the stay; and 2. other than the admissions costs order, what if any costs orders are contended for in respect of the parties' costs to date of these proceedings including: 1. any reserved costs (including costs reserved on 3 December 2021 and 16 December 2021); and 2. the costs of the notice of motion filed on 22 August 2022. 1. Note that the stay in order 1 is without prejudice to either party making application (in the usual manner by notice of motion on three days' notice) to this Court, to vary or lift the stay on the judgment entered on 13 May 2022 in favour of the plaintiff against the defendant pursuant to order 4 of orders made on 23 May 2022 by Hammerschlag CJ in Eq. 2. Note that reasons for judgment will be delivered in respect of these orders. 3. Order that the proceedings stand over to 7 October 2022 at 9AM before Meek J for mention. 4. Order that there be liberty to restore the proceedings on two days' notice by application to the Associate to Justice Meek in relation to the working out of any aspect of these orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 August 2022