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In the recent Full Court of the Family Court decision of Teh & Muir  FamCAFC 224, Justices Finn, Strickland and Ryan confirmed that when the Family Court is exercising its power to determine whether or not it has jurisdiction in a particular case, it can be appropriate for it to make orders which preserve the status quo prior to determining the question of jurisdiction.
The facts of the case are as follows: Ms Teh was 36 years of age and Mr Muir was 85 years of age at the time of the proceedings, and Mr Muir had a case guardian appointed on his behalf. The parties lived in the same house between January 2010 and early 2014 and signed a Financial Agreement on 19 February 2014 which stated that all assets were to be divided equally upon separation.
Mr Muir’s case was that there was no de facto relationship and that he had no capacity to enter into Financial Agreement. Ms Teh sought Orders from the Family Court enforcing the Financial Agreement. The primary judge, whilst not having an opportunity to determine the jurisdictional question, did nevertheless make a series of interim orders, including an order that released 50 percent of sale proceeds of Mr Muir’s property to him and an order that limited how Ms Teh could deal with her own finances.
Ms Teh appealed the decision, essentially on the basis that the existence of the Financial Agreement ousted the jurisdiction of the Court to make any orders which altered her and Mr Muir’s property interests. This was unsuccessful.
The key paragraph from the judgement of Justices Finn and Strickland at paragraph 29 is as follows:
It has long been recognised that while the Family Court is exercising its power (which if not expressly provided for in the Act, must necessarily be implied) to determine whether or not it has jurisdiction in a particular case, it can be appropriate for it to preserve the status quo (in this case the disputed half share of the sale proceeds) by the grant of an interlocutory injunction (see R v Ross-Jones; Ex parte Green  HCA 82; (1984) 156 CLR 185 at 202, and Yunghanns & Yunghanns and Ors  FamCA 64; (1999) FLC 92-836).
Similarly, Justice Ryan held that the Court had, as an aspect of its implied powers, power to preserve the subject matter of the dispute and to make ancillary orders. Her Honour also stated that the Court’s power to make this Order arises under section 34 of the Family Law Act, which states that “The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, and to issue, or direct the issue of, writs of such kinds, as the Court considers appropriate.”
Armstrong Legal’s family law team invite you to contact us if you require legal advice in relation to family law de facto property matters, issues arising in relation to the operation or validity of a Financial Agreement or any other family law issue. Our approachable and experienced team look forward to meeting with you at an initial appointment at one of our offices around Australia to discuss your case.
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