Judge’s denial of leave to proceed was ‘repugnant to’ prior consent order…

family law casenotes

…granting leave under s44(6) – property – de facto thresholds

In Eden [2022] FedCFamC1A 178 (27 October 2022), Austin J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia, considered a decision of Judge Morley, where a de facto wife’s initiating application for property orders was dismissed for want of jurisdiction.

There was uncertainty about the final date of separation, but in April 2018 a judge granted leave to proceed pursuant to s44(6) of the Family Law Act (Cth), based on the de facto husband’s admission that jurisdiction existed ([10]-[12]).

Despite that grant of leave, Judge Morley found that if the relationship broke down prior to 1 March 2009, there was no jurisdiction to make any order other than dismissing the proceedings for lack of jurisdiction ([17]).

Austin J said (from [20]):

“The respondent’s deliberate decision to concede the existence of jurisdiction was confirmed by him before the primary judge in September 2020 and reiterated by him in the appeal …



[25] Parties are bound by the way in which they conduct their cases and these parties mutually conducted the original litigation on the premise that their de facto relationship existed at, and subsisted until sometime beyond, 1 March 2009. Jurisdiction to entertain the appellant’s substantive property settlement claim was therefore established …

[26] … It is true parties cannot consensually invest courts with jurisdiction or power they do not possess (Harris v Caladine [1991] HCA 9 …), but there was no need to cure any jurisdictional lacuna here because the parties formally conceded the necessary jurisdictional facts.

[27] … The dissipation of any controversy over the existence of jurisdiction obviated any need for a finding on contested evidence. …

[28] … [U]nless and until the parties were released from their binding concessions in the proceedings, the primary judge could not go behind the orders made by the other judge in April 2018.”

The appeal was allowed and the proceedings remitted for re-hearing, with the court ordering costs certificates.

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (

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