In Clowes & Konig [2021], Mr Strik acted for the applicant, Mr Konig (husband), in the Family Court of Australia. The judgment was delivered by Harper J on 11 August 2021.
Background:
The parties were in a de facto relationship that broke down after twenty years in 2020. In 2005, the parties entered into a Domestic Relationship Agreement (“the Agreement”); the Court deemed it to be a financial agreement to which the Family Law Act 1975 (Cth) (“the Act”) applied.
The wife commenced family law proceedings in 2021 by filing an Initiating Application. She sought that the Agreement be set aside, and alternatively, a property order be made under the Act.
Husband’s Contention
The husband contended that the Court lacked the jurisdiction to make a property adjustment order under the Act. He relied on a provision in the Act that precluded the Court from making property adjustment orders where there is a valid financial agreement between the parties (unless the agreement is set aside).
He also referred to Norton v Locke (2013) (“Norton”) to argue that he did not have to give financial disclosure and provide a financial statement unless the Court had found it in its jurisdiction to determine the financial case.
Legal Reasoning:
The Court differentiated between Norton and the present case. In Norton, the dispute was whether a de facto relationship existed between the parties. Harper J highlighted that in this case, the issue was a “threshold issue” regarding where the Agreement should be set aside. This was different to a jurisdictional issue, and the husband could not use Norton to support his argument.
The Court referred to the wife’s submissions and facts of the case to demonstrate that the Court had clear jurisdiction over the relevant issues.
Orders:
Harper J ordered that the husband’s application be dismissed, and that he be required to pay the wife’s costs.
Analysis:
This case illustrates the importance of distinguishing between jurisdictional issues and “threshold issues.” Even if, at face value, you think that you may be able to appeal a decision based on jurisdictional error, close attention must be paid to the specific Act provisions.
Interestingly, the Husband in this case went on to win his case in with the Court making these orders :
The applicant’s Amended Initiating Application filed on 27 June 2022 is dismissed.
2. It is declared that the domestic relationship financial agreement executed by the parties dated 15 June 2005 (“the Financial Agreement”) is a binding financial agreement within the meaning of Pt VIIIAB of the Family Law Act 1975 (Cth).
Anthony Strik accepts briefs in family law matters. If you require experienced legal representation in the Federal Circuit and Family Court of Australia, please contact his chambers.