Chan v Johnson

[2014] NSWSC 1439

Supreme Court

New South Wales

Medium Neutral Citation:	Chan v Johnson [2014] NSWSC 1439
Hearing dates:	Friday, 7 October 2014
Date of orders:	07 October 2014
Decision date:	07 October 2014
Jurisdiction:	Equity Division
Before:	Brereton J
Decision:	Notice of Motion for transfer of proceedings dismissed with costs
Catchwords:	PROCEDURE – transfer of proceedings – related proceedings in Federal Circuit Court – no jurisdiction to transfer proceedings to Federal Circuit Court
Legislation Cited:	(Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987, s 5(1)(b)(ii)
Cases Cited:	Valceski v Valceski [2007] NSWSC 440; (2007) 210 FLR 387; (2007) 36 Fam LR 620
Category:	Procedural and other rulings
Parties:	Louisa Chan (plaintiff) Jessica Shuang Johnson (defendant)
Representation:	Counsel: Mr Nowlan (plaintiff) Mr Schonell (defendant) Solicitors: Key Partners Solicitors (plaintiff) MacElbing Mednis & Associates (defendant)
File Number(s):	2014/237157

Judgment (ex tempore)

1. HIS HONOUR: By notice of motion filed on 15 September 2014, the defendant Jessica Johnson seeks an order that the proceedings be transferred to the Federal Circuit Court, to be joined with proceedings already pending in that Court.

2. Although the evidence has not been examined in detail, I apprehend that the proceedings pending in that Court are proceedings under the (Cth) Family Law Act 1975, for financial adjustment between de facto partners. The present plaintiff, Mrs Chan, is the mother of one of those de facto partners, and the defendant, Ms Johnson, is the other de facto partner. These proceedings concern a claim to an interest in property in the name of one of the de facto partners, and no doubt a similar issue would arise in the financial adjustment proceedings in the Federal Circuit Court.

3. Ordinarily, for reasons that I have explained in Valceski v Valceski [2007] NSWSC 440; (2007) 210 FLR 387; (2007) 36 Fam LR 620, because the family law dispute is the larger dispute of which the dispute in this Court is a subset, it would be appropriate that these proceedings be transferred to the Court hearing the family law dispute, which is seized of the larger and more comprehensive litigation. However, the family law proceedings are, as the Notice of Motion acknowledges, pending not in the Family Court of Australia but in the Federal Circuit Court. There is no power in this Court, under the (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987, to transfer proceedings to the Federal Circuit Court. The notice of motion as originally framed is, for that reason, entirely misconceived.

4. There is of course power to transfer the proceedings to the Family Court of Australia but that power is conditioned on the Court being satisfied that it is in the interests of justice that the relevant proceeding be determined by the Family Court [Jurisdiction of Courts (Cross-Vesting) Act, s 5(1)(b)(ii)]. As there is no proceeding pending in the Family Court, and no application made or foreshadowed for removal of the proceedings in the Federal Circuit Court into the Family Court, it is not possible to see why it is more appropriate that this proceeding be determined by the Family Court. If the Circuit Court proceedings were removed into the Family Court, or there were some agreement that that should happen, the position might be different, but the condition is manifestly not satisfied at present.

5. An amendment to the motion, to seek that the proceedings be transferred to the Family Court with a view to being remitted to the Federal Circuit Court, has been foreshadowed, but that does not seem to me to enliven s 5(1)(b) because such an order made with a view to remitter would not contemplate determination of the proceeding by the Family Court.

6. Accordingly, I order that the Notice of Motion be dismissed with costs.

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Decision last updated: 05 February 2015