25 October and 9 November 2022; further written submissions filed on 14, 22 and 28 November 2022
Date of orders:
2 February 2023
Decision date:
02 February 2023
Jurisdiction:
Common Law
Before:
Chen J
Decision:
(1) Order, pursuant to s 5(1)(b)(ii)(C) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), that the proceedings (2021/353072) be transferred to the Federal Circuit and Family Court of Australia (Division 1), Sydney Registry.
(2) Order that the costs of the parties in this court, other than the costs of this notice of motion, be reserved to the Federal Circuit and Family Court of Australia (Division 1).
(3) Order that the plaintiffs and second defendant pay the first defendant’s costs of, and incidental to, this notice of motion (excluding any costs thrown away by the filing of the amended notice of motion filed in court on 25 October 2022, in respect of which make no order as to costs).
Catchwords:
JURISDICTION OF COURTS – Transfer of proceedings – from Supreme Court to Federal Circuit and Family Court of Australia – whether seriously arguably that Federal Circuit and Family Court of Australia would not have jurisdiction
[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.
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AGLC
Comino v Kremetis [2023] NSWSC 32
Case
[2023] NSWSC 32
Decision Date
CaseChat Overview and Summary
In Comino v Kremetis, the dispute arose between the parties over issues pertaining to the transfer of proceedings from the Supreme Court to the Federal Circuit and Family Court of Australia. The plaintiff, Comino, sought to have the matter heard in the Supreme Court, while the defendant, Kremetis, argued that the Federal Circuit and Family Court of Australia had jurisdiction over the matter. The Federal Circuit and Family Court of Australia was called upon to determine the appropriate forum for the proceedings.
The court was required to decide whether it was seriously arguable that the Federal Circuit and Family Court of Australia did not have jurisdiction over the matter. The court examined the relevant legislative provisions, including the Family Law Act 1975, to ascertain the scope of its jurisdiction. The court also considered the principles of federalism and the importance of determining the appropriate forum for the proceedings in order to avoid unnecessary duplication and to ensure that the matter was heard by the most appropriate court.
The court found that it was seriously arguable that the Federal Circuit and Family Court of Australia had jurisdiction over the matter. The court held that the relevant legislative provisions conferred jurisdiction upon the Federal Circuit and Family Court of Australia in relation to family law matters, and that the dispute between the parties fell within the scope of those provisions. The court also noted that the principles of federalism and the importance of determining the appropriate forum for the proceedings supported the conclusion that the Federal Circuit and Family Court of Australia had jurisdiction. Consequently, the court ordered the transfer of the proceedings to the Federal Circuit and Family Court of Australia.