Q is for question of jurisdiction – A-Z of Family Law

An important question that often needs to be asked in family law matters is, does the Court have jurisdiction? If the answer is no, then the proceedings are likely to come to a swift conclusion, to the disappointment of at least one of the parties.

It is also important to remember that a de facto relationship must have been in existence to allow the Court to exercise jurisdiction under Part VIIIAB of the Family Law Act 1975 (Cth). In some circumstances, the existence is obvious; other times, the existence may be disputed and the Court is required to make a declaration under section 90RD of the Act in the affirmative or negative.

Furthermore, as an aside, proceedings for a property settlement cannot be filed in the Court if the other party has passed away. If this has occurred, the other party may need to find their outcome in a state-based Court, subject to the family provision legislation.

However, if proceedings have commenced and a party passes away, section 79AA(8) of the Act (section 90SM(8) for de facto relationships) allows for proceedings to be continued against the legal personal representative (‘LPR’) of the deceased party.

These principles were highly relevant for the facts that lay before Judge Betts in the matter of Zurlo & Manoury (Deceased) [2024] FedCFamC2F 1807. In fact, the proceedings involved an “argument [that] has not been presented to a court before now” [35].

The case involved a question of jurisdiction. Mr Zurlo considered that there was a de facto relationship, which Ms Manoury disputed. The facts were as follows:

• An application was filed in the Court by Mr Zurlo, who sought an adjustment of their property interests.
• However, Ms Manoury disputed that the Court had jurisdiction. She sought a section 90RD declaration that she and Mr Zurlo had not been in a de facto relationship.
• A first return hearing was held, after which the parties were arranging to attend mediation. If mediation was unsuccessful, the parties foreshadowed the need for a threshold hearing in the Court to determine the section 90RD declaration.
• Ms Manoury passed away prior to mediation.

Consequently, the LPR for Ms Manoury submitted that, because the initial question of whether or not a de facto relationship existed had not yet been determined, substantive proceedings were not yet on foot: therefore, the Court did not have jurisdiction. The proceedings remained at a ‘precursor’ stage [33] and could not be continued against her LPR. Section 90SM(8) of the Act did not specifically allow that a section 90RD declaration could be continued against a LPR.

Although the specific issue had not been determined by the Court before, two decisions assisted, being Norton & Locke [2013] FamCAFC 202 and Simonds (Deceased) & Coyle [2019] FamCAFC 47.

Norton involved a section 90RD declaration and the ordering of restraints prior to the determination occurring. On appeal, the Court concluded that there was no jurisdiction to make such restraints until the section 90RD declaration had been made.

Simonds, by contrast, involved a claim under section 44 of the Act whereby an application was filed outside of the 2-year limitation period provided for under the Act, and the other party passed away before the Court had granted leave. Again on appeal, the Court concluded that only ‘property settlement proceedings’ (see section 4 of the Act) could be continued against a LPR. A request for leave under section 44 did not fall within this definition.

The “proceedings are proceedings with respect to leave to institute proceedings with respect to property of the parties to the marriage or either of them” ([50] of Simonds), not property settlement proceedings themselves.

Presently, Ms Manoury’s LPR submitted that a section 44 application was ‘legally indistinguishable’ [51] from a section 90RD declaration. That is, until either determination was made, if a party died the proceedings would abate.

However, Judge Betts disagreed with this position and supported the submissions of Mr Zurlo, which found additional support in the principles of Norton and Simonds. Presently, the initial proceeds were commenced within time and the Court did not have to grant leave to Mr Zurlo to progress his application. The section 90RD declaration was sufficiently incidental to ‘property settlement proceedings’, when considering the wording of sections 4, 90SM(8), and 90RD.

This unique set of circumstances, before the Court for the first time, helps practitioners and clients if facing similar facts in the future:

1. Consider whether proceedings must be urgently filed in circumstances where one party may pass away imminently.

2. A close eye should be kept on limitation periods for making applications to the Court, as a late application without leave may be dismissed if a party subsequently passes away.

3. If proceedings are on foot and a declaration is needed as to a de facto relationship, don’t consider the proceedings over if the other party passes away