Testart v Testart (No 2) [2023] FCA 209

Federal Court of Australia

Testart v Testart (No 2) [2023] FCA 209 File number: VID 661 of 2021

Judgment of: O'CALLAGHAN J

Date of judgment: 16 March 2023

Catchwords: INDUSTRIAL LAW – interlocutory application by respondent to dismiss applicant's claims for compensation for alleged contraventions of ss 45 and 323 of the Fair Work Act 2009 (Cth) – where applicant and respondent are "parties to a marriage" within the meaning of s 4(1)(ca) of the Family Law Act 1975 (Cth) – where applicant alleged she was hired by respondent under contract of employment – where applicant and respondent divorced – respondent sought summary dismissal of proceeding on the ground that applicant's claim was a "matrimonial cause" within the meaning of s 4(1)(ca) of the Family Law Act 1975 (Cth) and thus within the exclusive jurisdiction of the Federal Circuit and Family Court of Australia – whether claims for compensation for breach of civil remedy provisions under the Fair Work Act 2009 (Cth) were "property" within the meaning of s 79 of the Family Law Act 1975 (Cth) – Mullane v Mullane (1983) 158 CLR 436 applied – whether applicant's claim "arises out of the marital relationship" within the meaning of s 4(1)(ca)(i) of the Family Law Act 1975 (Cth) – whether applicant's claims under the Fair Work Act 2009 (Cth) were claims that "relate to completed divorce proceedings between the parties" within the meaning of s 4(1)(ca)(ii) of the Family Law Act 1975 (Cth) – respondent sought summary dismissal of proceeding on the ground that applicant was prevented from bringing civil remedy claims under the Fair Work Act 2009 (Cth) by reason of the principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 – whether and to what extent applicant's claims were time-barred by operation of ss 544 and 545(5) of the Fair Work Act 2009 (Cth)