Heywood v Botka

[2005] WADC 248

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   HEYWOOD -v- BOTKA [2005] WADC 248

CORAM:   WILLIAMS DCJ

HEARD:   5 - 6 DECEMBER 2005

DELIVERED          :   19 DECEMBER 2005

FILE NO/S:   CIV 1864 of 2004

BETWEEN:   PETER HEYWOOD

Plaintiff

AND

PILSY ELIZABETH BOTKA
Defendant

Catchwords:

Jurisdiction - Family law - Property of parties - Whether District Court of Western Australia has jurisdiction to determine

Legislation:

Family Law Act 1975, ss 4(1)(ca), (eaa), s 4(2), s 8, s 31

Result:

Action dismissed

Representation:

Counsel:

Plaintiff:     Ms L Roche

Defendant:     Mr B Wheatley

Solicitors:

Plaintiff:     Lisa Roche

Defendant:     Nicholson Clement

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

Nil

Case(s) also cited:

Nil

1. WILLIAMS DCJ:  The plaintiff and defendant in these proceedings were married on 1 November 1997.  The marriage was dissolved by a Decree Absolute on 26 March 2002.

2. During the course of the marriage on 3 May 2000 the plaintiff and defendant purchased a unit at 9/72 King George Street, Victoria Park as joint tenants.

3. This action concerns the proceeds of the sale of the unit, which took place on the 21 January 2002 prior to the Decree Absolute.

4. The plaintiff says that there was an agreement between himself and the defendant to sell the property on the basis that the defendant would receive 60 per cent of the proceeds of the sale and the plaintiff would receive 40 per cent of the proceeds of the sale.  The defendant accepts that there was an agreement to this effect but says that subsequent to that agreement a further agreement was entered into whereby the defendant would receive the whole of the proceeds of the sale.  The defendant did in fact receive the whole of the proceeds of the sale and these proceedings are brought by the plaintiff to recover what he says is owing to him namely 40 per cent of the proceeds of the sale.

5. The defendant says inter alia, that the plaintiff's action is a "matrimonial cause" as defined in s 4 of the Family Court Act 1975 ("the Act") and as such falls within the exclusive jurisdiction of the Family Court.

6. That issue was never listed as to be dealt with as a preliminary question of law (See Rules of Supreme Court 1971– O 31 r 2).  As a consequence the matter came before me to be dealt with on the pleadings and I have in fact heard the whole of the case over a period of 2 days.

7. Having come to the conclusion that the District Court of Western Australia does not have jurisdiction to deal with the matter I propose to make no findings with respect to the other issues raised in the pleadings.

8. The Act provides as follows:

   "Section 4(1):

   'matrimonial cause' means:

   …

   (ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

   (i)    arising out of the marital relationship;

   (ii)in relation to concurrent, pending, or completed proceedings between those parties for principal relief; or

   …

   (eaa)without limiting any of the preceding paragraphs, proceedings between the parties to a marriage with respect to a financial agreement made by them;

   …

   (2)A reference in this Act, the standard Rules of Court, or the related Federal Magistrates Rules to a party to a marriage includes a reference to a person who was a party to a marriage that has been dissolved or annulled, in Australia or elsewhere, or that has been terminated by the death of one party to the marriage."

9. In my view the plaintiff's claim amounts to a "matrimonial cause" as defined by the Act. The plaintiff is suing the defendant with the respect to the "property of the parties" to the marriage as defined in s 4(1)(ca) of the Act or alternatively with respect to a financial agreement made between them as defined in s 4(1)(eaa) of the Act.

10. Section 8 of the Act states:

    "After commencement of this Act …proceedings by way of a matrimonial cause shall not be instituted accept under this Act."

11. Section 31 of the Act provides as follows:

    "(1) Jurisdiction is conferred on the Family Court with respect to:

    (a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act."

12. It follows in my view that there is no jurisdiction in the District Court of Western Australia to deal with this matter. 

13. The plaintiff's action is dismissed.