Chin v Brinkhoff

[2008] WASCA 45

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   CHIN -v- BRINKHOFF [2008] WASCA 45

CORAM:   PULLIN JA

BUSS JA

HEARD:   15 FEBRUARY 2008

DELIVERED          :   15 FEBRUARY 2008

PUBLISHED           :  4 MARCH 2008

FILE NO/S:   CACV 33 of 2007

BETWEEN:   HOI TEOW CHIN

Appellant

AND

DONNA GEVA BRINKHOFF
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE MONAGHAN

File No  :(P)PTW 604 of 1979

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE JUDGES

File No  :(P)PTW 604 of 1979

Catchwords:

Family law - Orders made in the Magistrates Court of Western Australia - Proceedings and orders concerning property - Appellant contended that s 96 of the Family Law Act 1975 (Cth) conferred jurisdiction on Court of Appeal - Whether Court of Appeal has jurisdiction

Legislation:

Family Court Act 1997 (WA), s 210A
Family Law Act 1975 (Cth), s 41, s 96
Jurisdiction of Courts (Family Law) Act 2006 (Cth)
Supreme Court Act 1935 (WA), s 7(4), s 58(1)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     No appearance

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     Crossing Family Lawyers

Case(s) referred to in judgment(s):

Y and M [2007] FCWA 89

1. PULLIN JA:  On 15 February 2008, the court dismissed this appeal.  These are the reasons for that judgment. 

2. The appellant and the respondent were married in 1974 and divorced in 1986.  Many years later the respondent was granted leave to institute proceedings in relation to property settlement.  The property settlement proceedings were commenced in the Hobart registry of the Family Court of Australia and were transferred to the Federal Magistrates Court in Launceston.  Orders were made for property settlement.  After a number of adjournments and failing to comply with the orders for property settlement, an order was made transferring the proceedings to the Family Court of Western Australia in 2002.  The appellant applied in that court to set aside the orders for property settlement and that application was dismissed.  Consequential orders were then made by Family Law Magistrates in the Magistrates Court of Western Australia on 5 and 19 February 2007 which are the orders the subject of this appeal.  These orders dismissed the appellant's form 2 application for a stay of proceedings and for the proceedings to be transferred to the Supreme Court of Western Australia.  Orders were also made to enable the sale of property which had been the subject of the proceedings.

3. The appellant submitted that this court has jurisdiction to entertain the appeal by reason of s 96(1) of the Family Law Act 1975 (Cth) which provides that:

   An appeal lies from a decree of a court of summary jurisdiction of a State or Territory exercising jurisdiction under this Act to the Family Court or to the Supreme Court of that State or Territory.

   Section 96(1AA) of the Family Law Act states that s 96 does not apply to a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia. This provision was introduced as an amendment to the Family Law Act by the Jurisdiction of Courts (Family Law) Act 2006 (Cth) (see item 26 of the schedule to that Act) and it commenced on 1 July 2006. A transitional provision of the latter Act (item 27(2)) provided that the amendment applied to 'proceedings instituted' after the commencement. Penny J in Y and M [2007] FCWA 89 [20], held that 'proceedings instituted' in item 27(2) was a reference to the 'substantive proceedings'. It is arguable that the substantive proceedings in this case were proceedings for property settlement which were instituted before commencement of the Act last mentioned. If Y and M's case is correctly decided, and if the substantive proceedings in this case were proceedings for property settlement which were instituted before commencement of the Jurisdiction of Courts (Family Law) Act, then s 96(1AA) does not apply to this appeal.

4. However, it is not necessary to consider this aspect further because s 41(2) and (3) of the Family Law Act provide that:

   (2)Where, whether before or after the commencement of this Act, a State has created a court known as a Family Court, the Governor‑General may, by Proclamation, declare that, on and after a date specified in the Proclamation, this section applies to that court.

   (3)Where, by virtue of a Proclamation under subsection (2), this section applies to a court, this Act has effect in relation to the institution of proceedings on or after the date fixed by the Proclamation … as if references in section … 96 to the Supreme Court of a State were, in relation to the State in which the court referred to in the Proclamation is established, references to that court, and that court is invested with federal jurisdiction accordingly.

5. A proclamation was made by the Governor General on 4 November 1991, declaring under s 41(2) of the Family Law Act that, on and after 5 November 1991, s 41 of the Family Law Act 'applies to the Family Court of Western Australia'.

6. There were some transitional provisions in s 41(3A) allowing for proceedings which were pending in the Supreme Court of the State immediately before the date fixed by the proclamation to be determined in the Supreme Court on or after the date fixed by the proclamation. This appeal was not pending immediately before the proclamation. The result is that s 96 did not confer jurisdiction on this court to entertain the appeal.

7. In any event, even if the Supreme Court had jurisdiction by virtue of s 96 of the Family Law Act and there had been no proclamation, the General Division of this court would have had jurisdiction and not the Court of Appeal. This is because s 7(4) of the Supreme Court Act 1935 (WA) reads:

   The General Division exercises all of the jurisdiction of the Supreme Court other than the jurisdiction referred to in section 58(1).

   Nothing in s 58(1) of the Supreme Court Act conferred jurisdiction on the Court of Appeal to entertain this appeal. 

1. Finally, s 210A of the Family Court Act 1997 (WA) did not apply to confer jurisdiction because the appeal did not concern an exercise of 'non‑federal jurisdictions' of the Magistrates Court.

2. For these reasons, this appeal was dismissed on the basis that the Court of Appeal has no jurisdiction to hear the appeal.

3. BUSS JA: My reasons for joining with Pullin JA on 15 February 2008 in dismissing the appeal are those set out in his Honour's reasons with the exception that it is not necessary to decide, and I reserve my position on, whether the General Division of the Supreme Court, as distinct from the Court of Appeal Division, would have jurisdiction in the event that the Supreme Court had jurisdiction in the appeal by virtue of s 96 of the Family Law Act 1975 (Cth).