FAMILY COURT OF AUSTRALIA

YEN & YEN	[2010] FamCA 1	

FAMILY LAW – JURISDICTION – Accrued jurisdiction – Claim in tort for assault seeking damages issued in the Magistrates Court – Not single justiciable controversy – No jurisdiction	

Family Law Act 1975 (Cth)	

Bergman and Bergman (2009) FLC 93-395
Bishop and Bishop (2003) FLC 93-144
Fencott and Ors and Muller and Anor (1983) 152 CLR 570
Jess and Jess [2008] FamCA 30
Lederer and Hunt (2007) 36 Fam LR 587
Marsh and Marsh (1994) FLC 92-433
Re Q (Damages for sexual assault) (1995) FLC 92-565
Tansell and Tansell (1977) FLC 90-280
Warby and Warby (2001) FLC 93-091	

APPLICANT:	Ms Yen 	

RESPONDENT:	Mr Yen	

FILE NUMBER:	AYC	279		of	2007	

DATE DELIVERED:	13 JANUARY 2010	

PLACE DELIVERED:	Melbourne	

PLACE HEARD:	Melbourne	

JUDGMENT OF:	THE HONOURABLE JUSTICE CRONIN	

HEARING DATE:	8 JANUARY 2010	

REPRESENTATION

COUNSEL FOR THE APPLICANT:	MR O'SHANNESSY	

SOLICITOR FOR THE APPLICANT:	KENNA TEASDALE LAWYERS	

COUNSEL FOR THE RESPONDENT:	MS WHEELER	

SOLICiTOR FOR THE RESPONDENT:	LORETTA TERRILL FAMILY LAWYERS	

Orders
(1)	That the application of the husband filed 18 December 2009 and the response of the wife thereto are dismissed.
(2)	That the question of costs is reserved to the trial.

IT IS NOTED that publication of this judgment under the pseudonym Yen & Yen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

Family Court of Australia at Melbourne	

FILE NUMBER: AYC 279  of 2007

MS YEN 	
Applicant

And

MR YEN 	
Respondent

REASONS FOR JUDGMENT
1.	In 2007, Ms Yen, to whom I shall refer as “the wife”, issued proceedings for property settlement against Mr Yen, to whom I shall refer as “the husband”.  For reasons that do not matter, there have been delays in getting the case to a final hearing.  
2.	On 8 December 2009, I confirmed an earlier order that the matter be fixed for hearing as part of a defended list of cases in January.
3.	On 30 April 2009, the wife issued a claim for damages in tort against the husband in the Magistrates Court at Wodonga.  The claim arises out of an assertion of assaults on the wife.  The husband has filed a defence to the claim.  The claim is set for final hearing in that court on 7 April 2010.  By an application filed on 18 December 2009, the husband now seeks to have that tort claim heard in this Court as part of the property proceedings.  The husband says that the case should be so heard pursuant to what is called this Court’s “Accrued Jurisdiction”.  The wife opposes the husband’s application.

Background
4.	The wife is 63 years of age and the husband 62.  
5.	The parties commenced living together in 1980 and married in 1983.  They separated in 1990 but resumed living together about 12 months later.
6.	On the husband’s version, the parties separated on 30 November 2006 when the wife vacated the home.  According to the wife, separation occurred in August 2006 when the parties separated under the one roof.

The property proceedings
7.	In August 2007 and November 2007, I dealt with interim issues associated with discovery and valuation.
8.	In January 2008, Guest J made orders by consent of the parties under which the husband was to pay to the wife $308,000 to be characterised by the trial Judge as appropriate.
9.	In June 2008 before Registrar Lethbridge, further orders were made about discovery.
10.	In July 2009, the parties appeared represented before Registrar Field to discuss readiness for trial.  The court file records inter alia:  
The wife has issued proceedings in the Wodonga Magistrates Court for personal injuries between the husband and the wife.  The husband is seeking to transfer (those proceedings) to the Family Court.
11.	On 11 September 2009, Registrar Field held a hearing by telephone and the solicitors attended.  The Registrar’s record shows:
No application has been made to transfer to Family Court of Australia.
12.	On 22 October 2009, the respective solicitors appeared by telephone before Registrar Field who set the case down for hearing before me in a list commencing on 27 January 2010.  Notation “D” to those orders reads:
There has been no application to transfer the civil proceedings issued by the wife in the Wodonga Magistrates Court against the husband.
13.	On 8 December 2009, by consent of the parties, I made the following order:
Any application by the husband for the wife’s common law proceedings against him for damages (presently proceeding in the State Magistrates Court) to be heard by this Court under its accrued jurisdiction shall be made by the husband no later than Friday 18 December 2009.
14.	It will be seen therefore that the husband has finally pursued what has otherwise remained dormant for a number of months.

The damages claim
15.	The material facts set out in the statement of claim may be summarised as follows.  
16.	The wife asserted that on or about 10 August 2006 she was indecently assaulted by the husband after he administered to her a sedative or drug designed to impair her consciousness, render her drowsy or asleep.
17.	The allegation in the statement of claim is further that on or about 15 August 2006, the husband similarly assaulted the wife.
18.	Further, it is alleged that between May 2006 and August 2006 on a number of occasions, the husband similarly assaulted the wife.  
19.	The defence of the husband may be summarised as follows.  He says that save that he pleaded guilty to a charge of indecent assault, he does not admit the allegations set out in respect of the two incidents in August 2006.  He otherwise denied the allegation that was generally particularised as taking place between May 2006 and August 2006.
20.	In her claim, the wife seeks damages, aggravated damages and exemplary damages totally $100,000.  A Magistrates Court mediation occurred on 20 November 2009 which failed to resolve the matter, hence it was set down for final hearing.

The Magistrates Court criminal hearing
21.	On 17 July 2008, the husband appeared before the Magistrates Court and pleaded guilty to “indecent assault” upon the wife and was released without conviction with a fine of $2500.  Thus, it will be seen in his defence to the civil proceedings that he does not admit the allegations notwithstanding his plea of guilty.

The husband’s application for anti-suit injunctions
22.	On 18 December 2009, the husband filed his application in which he sought an anti-suit injunction against the wife if it was found that the proceedings fell within the accrued jurisdiction of this Court.  Other orders of an ancillary nature were also sought.
23.	The wife filed a response to that application on 6 January 2010 simply seeking a dismissal of the husband’s application.

The husband’s affidavit
24.	After acknowledging the background to which I have referred, the husband said that he was retired and lived off his investments apart from offering some small assistance to his son from time to time in his business.  He said he had used much of his retirement savings in legal fees for the various proceedings referred to above together with intervention orders.  He said he had recently borrowed a further $50,000 to fund his legal proceedings.
25.	He sought that the Family Court deal with the Magistrates Court proceedings because the same matters would be canvassed in both courts and the wife had the same lawyers in those prospective proceedings.  He said the wife would not be prejudiced by the proceedings being heard in one court.
26.	The crux of his evidence was that a judgment for damages against him would have a direct consequence on the amount of funds or property which he had available to him thereafter to live.  He said that the wife claimed her health was in issue as a result of his alleged assaults and that was directly relevant to the family law proceedings.
27.	There is some dispute about this last issue because through her counsel, the wife has indicated that she is not intending to argue in this Court that the consequences of the husband’s conduct had had an impact on her contribution as a homemaker.  In addition, it is asserted by the wife through her counsel that the issue of the impact of the husband’s conduct upon her is not a major issue for the purposes of s 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
28.	The husband’s affidavit then went on to say that the two proceedings and the facts of them, are intricately entwined as the incidents occurred towards the end of the marriage.  He said the wife had sought to use those assault proceedings to coerce him into a family law settlement.  
29.	The husband finally said that the wife had threatened to ruin his “face” in the local area and had contacted the press who had followed him out of court and photographed him and written articles.
30.	I am not convinced that the last issue is one of relevance because although the husband does not admit the allegations nor deny them, I am not aware of any application to the Magistrates Court for some form of suppression order.  

The wife’s affidavit
31.	In her affidavit, the wife confirmed much of the background to which I have referred.  She complained about the lateness of the husband’s application.  In summary, the wife said that the two proceedings were “separate and distinct”.  

The jurisdictional question  
32.	It is now beyond doubt that this Court has what is known as an Accrued Jurisdiction.
33.	In Fencott and Ors and Muller and Anor (1983) 152 CLR 570, the majority of the High Court said that in identifying a s 76(ii) matter:
…it would be erroneous to exclude a substantial part of what is in truth a single justiciable controversy and thereby to preclude the exercise of judicial power to determine the whole of that controversy. What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.
34.	The majority then went on to say:
But in the end, it is a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.
35.	In Warby and Warby (2001) FLC 93-091 the Full Court of this Court set out six factors which were relevant as to whether the Court would exercise accrued jurisdiction.  Those factors were:
1.	What the parties have done;
2.	The relationship between or among them;
3.	The laws which attach rights or liabilities to their conduct and relationships;
4.	Whether the claims are part of a single justiciable controversy and in determining that question whether the claims are “attached” or not “severable” or “disparate”;
5.	Whether the claims are non-severable from a matrimonial cause and arise out of a common sub-stratum of facts; and
6.	Whether the Court has the power to grant appropriate remedies in respect of the “attached” claims.
36.	The factors set out in Warby were drawn from Fencott and Muller as well as earlier decisions of the High Court.
37.	In Bergman and Bergman [2009] FamCAFC 27 the Full Court dealt with an appeal from Young J in which his Honour refused to join third parties to proceedings and then to permit the amendment of a response to seek orders under Part VIIA of the Act as well as to exercise the accrued jurisdiction against the third parties.  The Full Court noted that Young J examined the relevant authorities and concluded that there was no single justiciable controversy such as would attract the accrued jurisdiction.  Their Honours (Bryant CJ, Finn and Warnick JJ) said:
But he also concluded that if he was wrong in that conclusion, he would not as a matter of discretion exercise the accrued jurisdiction. We observe here that it must now be accepted that once it is determined that accrued jurisdiction is available in a particular matter there is, at least as a general rule, no discretion not to exercise such jurisdiction.
The Full Court found there was no error having regard to the ultimate decision made by Young J that there was no single justiciable controversy.
38.	I was referred by the parties to the decision of Brown J in Jess and Jess [2008] FamCA 30.  Her Honour was dealing with an anti-suit injunction application in which proceedings had been brought in the Supreme Court by a relative of the husband.  Her Honour pointed out that as far as the mandatory injunction was concerned, the wife was seeking that an order be made that the relative make an application in the Supreme Court pursuant to the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Vic).  Her Honour pointed out that the decision whether to transfer would be that of the judicial officer before whom the application was heard in the Supreme Court and not the party.  That added an additional issue in an anti-suit injunction application.
39.	A similar situation could arise here save that unlike in Jess, both (and the only) parties as husband and wife before the court could be injuncted and there may be no need to trouble the Magistrates Court.  However, the state legislation to which I have earlier referred only applies to transfer of Supreme Court proceedings in any event.
40.	Anti-suit injunction proceedings in relation to third parties have been treated with much caution because it would be an unusual step for one Australian court to restrain litigants from proceeding in their court of choice in another place.  The Full Court of this Court in Tansell and Tansell (1977) FLC 90-280 said that this Court ought to avoid making orders restraining a party continuing with proceedings validly instituted in another court.
41.	Anti-suit injunctions have been made where they were necessary and appropriate to avoid injustice (See Lederer and Hunt (2007) 36 Fam LR 587).
42.	The unusual feature here is that unlike many of the anti-suit injunction cases, there is no third party.  As such, a number of the authorities to which I have been referred are distinguishable.  
43.	In the end, the issue is whether or not there is one judiciable controversy between the husband and the wife.
44.	It was argued by counsel for the husband that there was the possibility of two different determinations on the facts arising from hearings in two different courts.  In my view, that is irrelevant because any finding in the Magistrates Court would bind this Court as to the entitlement of the wife and the obligation of the husband.  That is not to say that this Court could not thereafter adjust the parties’ entitlements to achieve a just and equitable outcome as required by s 79(2) of the Act which might in fact indirectly alter the financial position as otherwise determined by the Magistrates Court.
45.	In Marsh and Marsh (1994) FLC 92-433 at 80,625, Coleman J said:
There are really no other provisions of Section 75(2) which do impact in this case to affect the proper division of the assets of the parties, with the possible exception of Section 75(2)(o), which becomes relevant by virtue of the verdict for damages which I propose entering in favour of the applicant as against the respondent.  I do not believe it legitimate to make that award and then take it into account under Section 75(2)(o) to reduce what is otherwise properly the entitlement of the applicant.  By the same token it is a debt which the respondent will have to reduce what he receives of the meagre matrimonial assets of the parties and it will, relative to those meagre funds, provide a substantial boost to what the applicant receives.  Moreover, I cannot fail given the terms of Section 79(2) of the Act to do what is just and equitable in an overall sense.
	I do not understand his Honour to say that an adjustment cannot be made under s 79(2) regardless of the award of damages.  (See also Re Q (Damages for sexual assault) (1995) FLC 92-565 at 81,631 per Kay J).
46.	I return then to the jurisdiction issue.  Is there one justiciable controversy?
47.	This is a long marriage where this Court’s primary role under the Act is to determine entitlements based upon factors set out in s 79.  Save in respect of s 75(2)(o) to which I have referred, and the issue of conduct being irrelevant to the diminished contribution of a party, issues of conduct giving rise to compensation and damages are not matters with which this Court would normally deal.  Thus, an issue such as a series of assaults late in the marriage would not normally be relevant.
48.	The claim by the wife in tort is not connected to any property proceedings and the evidentiary issues are of peripheral relevance to the property proceedings.  To the extent that an order for damages against the husband might diminish his financial strength including particularly his retirement benefits, those matters can be contemplated under s 79(2).
49.	The claim is also disparate from the property claim.  It has different concepts involving issues of the duty of care.  Whether that duty has been breached and what should be done to put the plaintiff in a position she should have been in but for the tort, is not a matter connected with the evidence of contribution and adjustments of the type set out in s 75(2).
50.	In addition, in this case, there is an application for exemplary damages which might normally be awarded to reflect public disapprobation.  Those matters are also unrelated to the determination of any entitlement based upon contribution.
51.	In Bishop and Bishop (2003) FLC 93-144 the Full Court (Nicholson CJ, Kay and Young JJ) at 78,408 said:
The purpose of exercising accrued jurisdiction is to enable the Court to deal with a single justiciable controversy.  This does not mean a single justiciable issue.  The present case makes it obvious that there may be many issues but one broad controversy, that being as to what part of the assets of all of the parties is subject to the making of orders of this Court under s 79.  The reason why the jurisdiction is exercised is to enable the real issues to be determined between the parties, the underlying purpose being to do justice between them.  In applying the tests laid down in Warby, these matters should be borne in mind by judges who are called upon to exercise the jurisdiction.
	As in Bishop, here there are a number of issues.  However, in Bishop, it was necessary to determine those issues for the purposes of working out the assets of the parties.  In this case, the parties know what the pool is but the argument is how is it to be divided.
52.	One way of looking at this issue is whether the common facts or substratum of facts give rise to the issues in dispute.  It is stretching the language to say that an assault in a marriage that may or may not give rise to damages is a significant factor in a property case where there is no claim that contribution has been made more difficult because of conduct or because the conduct adversely affects future health or earning capacity.
53.	In my view, the nature and basis of the claims in the two proceedings are quite different having arisen from completely different sets of facts.
54.	Accordingly, I could not find that there is a single justiciable controversy here.  As such, there is no jurisdiction to determine the matter under the Court’s accrued jurisdiction.
I certify that the preceding Fifty Four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin 

Associate:  

Date:  13 January 2010