Bass and Bass - [2013] FamCA 185

FAMILY COURT OF AUSTRALIA

BASS & BASS

[2013] FamCA 185

FAMILY LAW – JURISDICTION – Application for transfer to Supreme Court – Discussion of accrued jurisdiction and consideration of relevant authorities – Where wife’s application for transfer to the Supreme Court is dismissed.
FAMILY LAW – PRACTICE AND PROCEDURE – Application for husband to be removed or suspended as trustee of the Trust – Whether husband’s commencement and prosecution of the proceedings places him in conflict with his obligation as a trustee – Where wife’s application for husband to be removed or suspended as trustee of the Trust is dismissed.

Family Law Act 1975 (Cth) ss: 13; 34; 66G; 74
Child Support (Assessment) Act 1989(Cth) ss: 99(1); 124; 129
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ss: 4(1); 5(5)
Trustee Act 1925 (NSW) s 81

Allsop Wilkinson v Neary [1995] 1 All ER 431 at 434
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Chapman and Jansen (1990) 13 Fam LR 853
Fay v Moramba Services Pty Limited [2009] NSWSC 1428
Fencott v Muller-Brown (1983) 152 CLR 570
In the marriage of Warby (2001) 28 Fam LR 443
Kenda & Johnson 15 Fam LR 369
Phillip Morris Inc v Adam P Brown Male Fashions Pty Limited (1981) 148 CLR 457
Queensland Mines Limited v Hudson (1978) 18 ALR 1
Valceski and Valceski [2007] NSWSC 440
Welker v Rinehart (No 10) [2012] NSWSC 1330

APPLICANT:

Mr Bass

RESPONDENT:

Ms Bass

FILE NUMBER:

PAC

5029

2012

DATE DELIVERED:

27 March 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

25 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Laughton

SOLICITOR FOR THE APPLICANT:

McLarens Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Henry

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams

Orders

That the application for the removal or suspension of the applicant as trustee of the B Trust be dismissed.
That the application for transfer of these proceedings to the Supreme Court of New South Wales be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bass & Bass has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 5029 of 2012

Mr Bass

Applicant

And

Ms Bass

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

In his Initiating Application filed 9 November 2012 Mr Bass (“the applicant”) sought an order that orders made by this Court on 17 July 2008 (“the 2008 orders”) pursuant to s 129(1) of the Child Support (Assessment) Act 1989 (“the CSAA”) be discharged and for other related orders.
Ms Bass (“the respondent”) has brought an interim application seeking orders (as ultimately set out in her counsel’s Outline of Submissions dated 22 February 2013) that the application be transferred to the Supreme Court of New South Wales, that the applicant be removed or suspended as a Trustee of the Trust created by the 2008 orders and that orders be made for provision by the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bass and Bass

Details

AGLC: Bass and Bass [2013] FamCA 185
Case: [2013] FamCA 185
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Bass (the applicant) sought to discharge orders made in 2008 concerning child support and the establishment of a trust, and for the funds within that trust to be paid to him. Ms Bass (the respondent) cross-applied for the proceedings to be transferred to the Supreme Court of New South Wales, and for Mr Bass to be removed or suspended as trustee of the trust.

The court was required to determine two primary legal issues: firstly, whether it possessed jurisdiction to hear the application for transfer to the Supreme Court, and secondly, whether Mr Bass should be removed or suspended as trustee of the trust. The respondent argued that if the original child support orders were discharged, the Family Court's jurisdiction would be spent, necessitating a transfer to the Supreme Court which could handle the trust and equitable matters, as well as exercise the Family Court's jurisdiction under the cross-vesting legislation.

The court dismissed the application for transfer to the Supreme Court, finding that it retained jurisdiction. The court reasoned that the trust was established pursuant to orders made under the Child Support (Assessment) Act 1989, and that the court's power to discharge or vary such orders under section 129 of that Act meant it retained jurisdiction over matters arising from those orders, including the trust established for their purpose. The court also dismissed the application for the removal or suspension of Mr Bass as trustee, finding no evidence that his commencement and prosecution of these proceedings placed him in conflict with his obligations as trustee.

Consequently, the court ordered that the application for the removal or suspension of the applicant as trustee of the B Trust be dismissed, and that the application for transfer of these proceedings to the Supreme Court of New South Wales be dismissed.

Orders