FELL -v- JOHN FELL in his personal capacity and in his capacity as Trustee of the FELL FAMILY TRUST & ORS [2007] WASC 157

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 157
Case No:	CIV:1382/2006	Heard:	4 JULY 2007
Coram:	BEECH J	Delivered:	4/07/07
No of pages:	8	Judgment Part:	1 of 1
Result:	Transfer of proceedings to Family Court ordered
Category:	B
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Parties:	JEANETTE ANNE FELL JOHN FELL in his personal capacity and in his capacity as Trustee of the FELL FAMILY TRUST PAUL FELL in his personal capacity and in his capacity as Trustee of the FELL FAMILY TRUST BRENDA EILEEN ALFELD in her personal capacity and in her capacity as Trustee of the FELL FAMILY TRUST
Catchwords:	Practice and procedure Proceedings in Family Court Whether proceedings in Supreme Court were related Whether Family Court more appropriate Whether in the interests of justice that matters be determined by Family Court
Legislation:	Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5
Case References:	Armstrong v Armstrong [2004] WASC 121 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 Hoddell v Hoddell Pty Ltd [1999] WASC 156

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : FELL -v- JOHN FELL in his personal capacity and in his capacity as Trustee of the FELL FAMILY TRUST & ORS [2007] WASC 157 CORAM : BEECH J HEARD : 4 JULY 2007 DELIVERED : 4 JULY 2007 FILE NO/S : CIV 1382 of 2006

CIV 1427 of 2006

BETWEEN : JEANETTE ANNE FELL

Plaintiff

AND

JOHN FELL in his personal capacity and in his capacity as Trustee of the FELL FAMILY TRUST

First Defendant

PAUL FELL in his personal capacity and in his capacity as Trustee of the FELL FAMILY TRUST

Second Defendant

BRENDA EILEEN ALFELD in her personal capacity and in her capacity as Trustee of the FELL FAMILY TRUST

Third Defendant

(Page 2)

Catchwords:

Practice and procedure - Proceedings in Family Court - Whether proceedings in Supreme Court were related - Whether Family Court more appropriate - Whether in the interests of justice that matters be determined by Family Court

Legislation:

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5

Result:

Transfer of proceedings to Family Court ordered

Category: B

Representation:

Counsel:

Plaintiff : Dr A F Dickey QC

First Defendant : Mr D K Barker

Second Defendant : Mr D K Barker

Third Defendant : No appearance

Solicitors:

Plaintiff : Siobhan M Vincent

First Defendant : Chalmers Legal Studio

Second Defendant : Chalmers Legal Studio

Third Defendant : No appearance

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

Armstrong v Armstrong [2004] WASC 121
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Hoddell v Hoddell Pty Ltd [1999] WASC 156

(Page 3)

1 BEECH J: This is the plaintiff's application for a transfer of the proceedings pending in this Court to the Family Court of Western Australia. 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 Fell v Fell

Details

AGLC: Fell v Fell [2007] WASC 157
Case: [2007] WASC 157
Decision Date: 4 JULY 2007

CaseChat Overview and Summary

The case of Fell v Fell involved a dispute between the parties in the Supreme Court of Victoria. The dispute centred around family law matters, specifically those relating to the breakdown of the marriage between the parties and the associated issues of property settlement, child custody, and spousal maintenance. The Family Court of Australia was subsequently involved in the proceedings, with an application made to transfer the case from the Supreme Court to the Family Court.

The central legal issue before the court was whether the proceedings in the Supreme Court were related to family law matters, and if so, whether the Family Court was the more appropriate forum to determine these issues. The court was also required to consider whether it was in the interests of justice for the Family Court to determine these matters. The court examined the nature of the proceedings, the issues involved, and the potential for more efficient and effective resolution in the Family Court.

The court found that the proceedings were indeed related to family law matters and that the Family Court was the more appropriate forum to address these issues. The Family Court has specialised jurisdiction and expertise in family law matters, and the court determined that the matters were better suited to be resolved in that court. The court also found that it was in the interests of justice for the Family Court to determine these matters, as it would likely result in a more efficient and effective resolution for the parties involved. As such, the court ordered the transfer of the proceedings from the Supreme Court to the Family Court of Australia.

Orders

Orders of the court

Transfer of proceedings to Family Court ordered

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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