Foley v Farquharson - [2003] QSC 21

SUPREME COURT OF QUEENSLAND

CITATION:

Foley v Farquharson & Anor [2003] QSC 021

PARTIES:

VINCENT PATRICK FOLEY
(plaintiff)
and
NELLIE ALDEN FARQUHARSON
(first defendant)
and
ROBYN GERTRUDE FOLEY
(second defendant)

FILE NO:

S10520 of 2002

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

14 February 2003

DELIVERED AT:

Brisbane

HEARING DATE:

28 January 2003

JUDGE:

Mackenzie J

ORDER:

1.   that the first and second defendants be given leave under UCPR 135 to bring the application notwithstanding that a notice of intention to defend has not been filed.

2.   that proceeding S10520 of 2002 in the Brisbane Registry of the Supreme Court of Queensland be transferred pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to the Family Court of Australia at Brisbane.

3.   that the plaintiff pay the defendants’ costs of and incidental to the application, to be assessed.

CATCHWORDS:

PROCEDURE – JURISDICTION – where there is an application for proceedings involving state matters to be transferred to the Family Court – where the applicant seeks a declaration that real property and/or the proceeds of sale are held by way of a constructive trust - where there is an application to restrain the defendant dealing with real property and/or the proceeds of sale - where there is an issue of the distribution of matrimonial property- whether the Family Court has accrued jurisdiction to hear such matters

Family Law Act 1975 (Cth), s 79
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(1)

Finlayson v Finlayson & Gillam [2002] Fam CA 898, applied
Re Wakim ; Ex parte McNally (1999) 198 CLR 511, considered
Warby v Warby (2001) 28 Fam LR 443, applied

COUNSEL:

Mr M Conrick for the plaintiff
Mr M.W. Jarrett for the defendant

SOLICITORS:

Clewett Corser & Drummond for the plaintiff
Bruce Dulley and Andrew Crooke for the defendant

MACKENZIE J: This is an application for a declaration that the first defendant holds certain real property and/or the proceeds of its sale by way of a constructive trust on behalf of the plaintiff, the first defendant and the second defendant in equal shares. There is also a claim for an injunction restraining the first defendant from dealing with one-third of the net proceeds of sale of the land other than by directing its payment to the plaintiff. An order under s 79 of the Family Law Act 1975 (Cth) dividing the property of the plaintiff and the second defendant or either of them, 50% to the plaintiff and 50% to the second defendant is also sought. Alternatively the applicant seeks such other order under s 79 adjusting the interests of the plaintiff and the second defendant in property of the plaintiff and the second defendant or either of them as to the court seems just and equitable.

The relief sought is essentially a distribution of property of a marriage, with the additional factor that there is a claim that property held by the first defendant is subject to a…

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 Foley v Farquharson

Details

AGLC: Foley v Farquharson [2003] QSC 21
Case: [2003] QSC 21
Decision Date: 14 February 2003

CaseChat Overview and Summary

The matter of Foley v Farquharson was heard in the Supreme Court of Queensland, Brisbane Registry, where the applicant sought to transfer proceedings from the Supreme Court to the Family Court of Australia. The applicant, Foley, sought a declaration that real property and the proceeds of sale were held by the defendants in a constructive trust, and an order to restrain the defendants from dealing with the property or proceeds. The defendants, Farquharson, contested the application, leading to the issue of whether the Family Court had jurisdiction over matters involving state law.

The court was required to determine whether it had the jurisdiction to transfer the proceedings to the Family Court, despite the fact that the matter involved state law matters, specifically the distribution of matrimonial property. The court also needed to decide whether the defendants should be granted leave to bring the application despite the absence of a notice of intention to defend.

The court ruled that it had the jurisdiction to transfer the proceedings to the Family Court, as the matters involved were of a kind that the Family Court could hear. The court noted that the Family Court had the necessary powers to deal with issues of property distribution in the context of family law. The court also granted the defendants leave to bring the application, despite the lack of a notice of intention to defend, as the application was in the interests of justice.

The court ordered that the first and second defendants be given leave to bring the application, that the proceedings be transferred to the Family Court of Australia at Brisbane, and that the plaintiff pay the defendants’ costs of and incidental to the application. The decision highlights the importance of ensuring that family law matters are heard in the appropriate court, even when they involve issues of state law.

Orders

Orders of the court

1. that the first and second defendants be given leave under UCPR 135 to bring the application notwithstanding that a notice of intention to defend has not been filed.

2. that proceeding S10520 of 2002 in the Brisbane Registry of the Supreme Court of Queensland be transferred pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to the Family Court of Australia at Brisbane.

3. that the plaintiff pay the defendants’ costs of and incidental to the application, to be assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Foley v Farquharson & Anor [2003] QSC 021
PARTIES:	VINCENT PATRICK FOLEY (plaintiff) and NELLIE ALDEN FARQUHARSON (first defendant) and ROBYN GERTRUDE FOLEY (second defendant)
FILE NO:	S10520 of 2002
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	14 February 2003
DELIVERED AT:	Brisbane
HEARING DATE:	28 January 2003
JUDGE:	Mackenzie J
ORDER:	1. that the first and second defendants be given leave under UCPR 135 to bring the application notwithstanding that a notice of intention to defend has not been filed. 2. that proceeding S10520 of 2002 in the Brisbane Registry of the Supreme Court of Queensland be transferred pursuant to s 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to the Family Court of Australia at Brisbane. 3. that the plaintiff pay the defendants’ costs of and incidental to the application, to be assessed.
CATCHWORDS:	PROCEDURE – JURISDICTION – where there is an application for proceedings involving state matters to be transferred to the Family Court – where the applicant seeks a declaration that real property and/or the proceeds of sale are held by way of a constructive trust - where there is an application to restrain the defendant dealing with real property and/or the proceeds of sale - where there is an issue of the distribution of matrimonial property- whether the Family Court has accrued jurisdiction to hear such matters Family Law Act 1975 (Cth), s 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(1) Finlayson v Finlayson & Gillam [2002] Fam CA 898, applied Re Wakim ; Ex parte McNally (1999) 198 CLR 511, considered Warby v Warby (2001) 28 Fam LR 443, applied
COUNSEL:	Mr M Conrick for the plaintiff Mr M.W. Jarrett for the defendant
SOLICITORS:	Clewett Corser & Drummond for the plaintiff Bruce Dulley and Andrew Crooke for the defendant