Friis v Friis - [2000] QCA 62

SUPREME COURT OF QUEENSLAND

CITATION: Friis v Friis & Ors [2000] QCA 62

PARTIES: GLENDA CAROLYN FRIIS
(as Legal Personal Representative of the Estate of
MERVYN JOHN FRIIS)
(applicant)
v
PHYLLIS ISABEL FRIIS
(first respondent)
JAMES JOSEPH and LYNETTE CAROL FRIIS
(second and third respondents)

FILE NO/S: Appeal No 10772 of 1999
Fam CA Appeal No NA16 of 1999
Fam CA No BR 10743 of 1997

DIVISION: Court of Appeal

PROCEEDING: Miscellaneous Application – Civil

ORIGINATING COURT:
Family Court at Brisbane

DELIVERED ON: 10 March 2000

DELIVERED AT: Brisbane

HEARING DATE: 21 February 2000

JUDGES: McPherson JA, Williams and Wilson JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made.

ORDER: Applications adjourned to a date to be fixed.
Costs reserved.

CATCHWORDS:
FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – JURISDICTION – APPEALS – application seeking order under Federal Courts (State Jurisdiction) Act 1999 (Qld) that certain appeals presently pending in Full Court of the Family Court be “treated as a proceeding” in Court of Appeal of the Supreme Court of Queensland – whether source of jurisdiction for judgment at first instance of Family Court was State cross-vesting legislation – effect of Re: Wakim – effect of definition of “ineffective judgment” in s 4 Federal Courts (State Jurisdiction) Act – consideration of “accrued jurisdiction” of federal courts – limits of “accrued jurisdiction” of Family Court in relation to judgment at first instance to be properly determined by Family Court – effect of such determination on operation of s 4

CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – whether Family Court has accrued jurisdiction by virtue of s 75 and s 76 of the Commonwealth Constitution – extent and basis of Family Court’s jurisdiction to be determined by that court

Constitution of the Commonwealth of Australia, s 75, s 76, s 109
Family Court Rules (Cth), O 31A
Family Law Act 1975 (Cth), s 4(1) s 40(3), s 78(8), s 85, s 94
Judiciary Act 1903 (Cth), s 78B
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(4)
Acts Interpretation Act 1954 (Qld), s 9(1)(a)
Federal Courts (State Jurisdiction) Act 1999 (Qld) s 3, s 4, s 6, s 7(2), s 8, s 11

Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 4(2)

DMW v CGW (1982) 151 CLR 491, considered
Fencott v Muller (1983) 152 CLR 570, considered
Maiden v Maiden (1909) 7 CLR 727, applied
McLaughlan v Fosbury (1904) 1 CLR 546, applied
Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, considered
Smith v Smith (1986) 161 CLR 217, considered
Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 251, distinguished
Re Wakim; ex parte McNally (1999) 73 ALJR 839, followed

COUNSEL: Mr S Keim for the applicant
Mr T North for the first respondent
Mr J D Houston for…

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 Friis v Friis

Details

AGLC: Friis v Friis [2000] QCA 62
Case: [2000] QCA 62
Decision Date: 10 March 2000

CaseChat Overview and Summary

The case of Friis v Friis arose in the context of a family law matter where the primary dispute was the jurisdiction of the Family Court of Australia over certain appeals. The parties involved were Friis and Friis, and the case was brought before the Court of Appeal of the Supreme Court of Queensland. The central issue revolved around whether the appeals, which were pending in the Full Court of the Family Court, should be treated as proceedings in the Queensland Supreme Court under the Federal Courts (State Jurisdiction) Act 1999. A significant aspect of the case was determining the source of the jurisdiction for the initial judgment rendered by the Family Court, and whether that judgment was subject to state cross-vesting legislation.

The court was required to consider several complex legal questions, including the applicability of section 4 of the Federal Courts (State Jurisdiction) Act, which defines an "ineffective judgment." The court also had to examine the notion of "accrued jurisdiction" of federal courts, particularly the Family Court, in relation to the judgment at first instance. This required an analysis of the limits of the Family Court's jurisdiction as it pertained to judgments made under state cross-vesting legislation, and how these limits affected the operation of section 4. Furthermore, the court had to address whether the Family Court's jurisdiction was established under sections 75 and 76 of the Commonwealth Constitution and the extent to which that jurisdiction could be exercised.

The court concluded that the determination of the Family Court's accrued jurisdiction concerning the initial judgment had to be made by the Family Court itself. This determination would subsequently influence the application and effect of section 4 of the Federal Courts (State Jurisdiction) Act. The court found that the jurisdictional issues raised were complex and required a detailed examination of both state and federal legislative frameworks, as well as constitutional provisions. Ultimately, the appeals were adjourned to allow for further consideration, and costs were reserved pending the resolution of these jurisdictional matters.

Orders

Orders of the court

Applications adjourned to a date to be fixed.

Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

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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CITATION:	Friis v Friis & Ors [2000] QCA 62
PARTIES:	GLENDA CAROLYN FRIIS (as Legal Personal Representative of the Estate of MERVYN JOHN FRIIS) (applicant) v PHYLLIS ISABEL FRIIS (first respondent) JAMES JOSEPH and LYNETTE CAROL FRIIS (second and third respondents)
FILE NO/S:	Appeal No 10772 of 1999 Fam CA Appeal No NA16 of 1999 Fam CA No BR 10743 of 1997
DIVISION:	Court of Appeal
PROCEEDING:	Miscellaneous Application – Civil
ORIGINATING COURT:	Family Court at Brisbane
DELIVERED ON:	10 March 2000
DELIVERED AT:	Brisbane
HEARING DATE:	21 February 2000
JUDGES:	McPherson JA, Williams and Wilson JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made.
ORDER:	Applications adjourned to a date to be fixed. Costs reserved.
CATCHWORDS:	FAMILY LAW AND CHILD WELFARE – THE FAMILY LAW ACT 1975 (CTH) AND RELATED LEGISLATION – JURISDICTION – APPEALS – application seeking order under Federal Courts (State Jurisdiction) Act 1999 (Qld) that certain appeals presently pending in Full Court of the Family Court be “treated as a proceeding” in Court of Appeal of the Supreme Court of Queensland – whether source of jurisdiction for judgment at first instance of Family Court was State cross-vesting legislation – effect of Re: Wakim – effect of definition of “ineffective judgment” in s 4 Federal Courts (State Jurisdiction) Act – consideration of “accrued jurisdiction” of federal courts – limits of “accrued jurisdiction” of Family Court in relation to judgment at first instance to be properly determined by Family Court – effect of such determination on operation of s 4 CONSTITUTIONAL LAW – OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION – RESTRICTIONS ON COMMONWEALTH AND STATE LEGISLATION – whether Family Court has accrued jurisdiction by virtue of s 75 and s 76 of the Commonwealth Constitution – extent and basis of Family Court’s jurisdiction to be determined by that court Constitution of the Commonwealth of Australia, s 75, s 76, s 109 Family Court Rules (Cth), O 31A Family Law Act 1975 (Cth), s 4(1) s 40(3), s 78(8), s 85, s 94 Judiciary Act 1903 (Cth), s 78B Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 5(4) Acts Interpretation Act 1954 (Qld), s 9(1)(a) Federal Courts (State Jurisdiction) Act 1999 (Qld) s 3, s 4, s 6, s 7(2), s 8, s 11 Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld), s 4(2) DMW v CGW (1982) 151 CLR 491, considered Fencott v Muller (1983) 152 CLR 570, considered Maiden v Maiden (1909) 7 CLR 727, applied McLaughlan v Fosbury (1904) 1 CLR 546, applied Re Finlayson; ex parte Finlayson (1997) 72 ALJR 73, considered Smith v Smith (1986) 161 CLR 217, considered Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 251, distinguished Re Wakim; ex parte McNally (1999) 73 ALJR 839, followed
COUNSEL:	Mr S Keim for the applicant Mr T North for the first respondent Mr J D Houston for…