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“Which State, which Court, which legislation?”

“Which State, which Court, which Legislation?”

This is a case summary from a recent decision handed down in the Family Court of Western Australia.  The names of the parties were anonymised in the judgment.  Kim Wilson & Co was not involved in this case.

Jarbin and Yabes [2017] FCWA 36

Ms Jarbin commenced proceedings against Mr Yabes in the Family Court of WA (“FCWA”) seeking orders altering interests in property in accordance with the FCWA’s jurisdiction with respect to de facto couples in accordance with the Family Court Act 1997 (WA) (“FCAct”).

Western Australia (“WA”) is the only State in Australia which has not referred to the Commonwealth its powers as to the determination of property disputes arising from de facto couples. The remainder of the country’s de facto matters are determined in accordance with the provisions of the Family Law Act 1975 (Cth) (“FLA”).

The FCWA has jurisdiction to determine a de facto property matter where the requisite nexus pursuant to s 205X of the FCAct is satisfied, namely:

           …before making an order …a court must be satisfied’ –

  • that one or both of the parties to the application were resident in Western Australia on the day on which the application was made; and
  • that –
  • both parties have resided in Western Australia for at least one third of the duration of their de facto relationship; or
  • substantial contributions… have been made in the State by the applicant.

 

On Ms Jarbin’s evidence the parties commenced a casual sexual relationship in 2005 which continued long distance until 2009 when they commenced cohabitation in Sydney. The parties continued to live together in Sydney until June 2012 when she returned to Perth and Mr Yabes remained in Sydney.

Ms Jarbin sought orders to the effect that she receive 30% of the assets available for division. Mr Yabes sought to dismiss Ms Jarbin’s application on the basis the Court did not have jurisdiction to hear the matter as there had not been a de facto relationship between him and Ms Jarbin.

The matter was listed for a trial in February 2017. Counsel on behalf of Mr Yabes submitted in his Papers for the Judge prior to trial that the parties did not have the necessary connection to WA to enliven the FCWA’s jurisdiction.

At a status hearing listed by the Court prior to trial Counsel for Ms Jarbin conceded the FCWA did not have jurisdiction to determine her application. Counsel then made an oral application to transfer the proceedings to the Family Court of Australia (“FCA”) for determination under the FLA jurisdiction as to de facto couples and for His Honour Justice O’Brien to determine the matter in his role as a Justice of the FCA. It was Ms Jarbin’s position that whilst the FCWA did not have jurisdiction to determine the substantive matter, it had the power to transfer the matter to the FCA.

His Honour Justice O’Brien gave ex tempore reasons for his decision that the FCWA did not have the power to transfer the proceedings to the FCA as that Court did not have jurisdiction to determine the matter in its current form. The original jurisdiction of the FCA pursuant to s31(1)(aa) of the FLA sets out the FCA has jurisdiction to determine proceedings as between de facto couples where those proceedings are instituted under the FLA, which is distinguishable from this matter where the proceedings had been commenced under the FCAct. Further His Honour found that even if the matter could be transferred to the FCA it could not be determined by a Judge of the FCWA exercising the FCA’s jurisdiction.

At [52] His Honour commented “the simple fact is that …the proceedings were instituted in the wrong State, in the wrong court, under the wrong legislation.”

The full judgement is available from the Family Court of WA website.

Nicola Ashford Associate E: nicola.ashford@kimwilson.com.au

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