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Jane v Jane

Jane v Jane

Case [2008] VSC 341 5 September 2008

Jurisdiction

Interests of Justice

Family Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 7412 of 2007

RODNEY BRUCE JANE	Plaintiff
v
LAREE MADONNA JANE & ORS	Defendants

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JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2008
DATE OF JUDGMENT:	5 September 2008
CASE MAY BE CITED AS:	Jane v Jane
MEDIUM NEUTRAL CITATION:	[2008] VSC 341

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Jurisdiction – Family court proceeding between husband and wife involving children and property which wife alleges includes units in unit trust - Husband’s son from previous marriage brought proceeding in Supreme Court seeking declaration that father holds units on trust for him – Wife applied to transfer proceeding to Family Court – Interests of justice – Application refused - Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D G Collins SC	DLA Phillips Fox
For the First Defendant	Ms K McMillan SC and Mr P D Corbett	Kenna Teasdale
For the Second and Third Defendants	Mr M Worsnop (solicitor)	Kahns

HIS HONOUR:

Introduction

By amended summons[1] filed 21 July 2008, the first defendant Laree Madonna Jane (who I will call “Laree”) sought an order pursuant to s 5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (“the Act”) that the proceeding be transferred to the Family Court of Australia at Melbourne for hearing and determination. The application was opposed by the plaintiff Rodney Bruce Jane (who I will call “Rodney”), the second defendant Robert Frederick Jane (who I will call “Bob”), and Bob Jane Corporation Pty Ltd (“BJC”).
[1]The summons was amended to correct the erroneous statement in the original summons filed 13 June 2008 that the order was sought under s 5(2) of the Act.

I heard the application in the Practice Court on 21 July 2008, together with a summons filed by Rodney on 17 July 2008 which sought leave to amend the statement of claim by substituting Bob Jane Pty Ltd for BJC as third defendant. The application to amend was not opposed and I granted Rodney leave, pursuant to which he filed an amended writ and statement of claim on 30 July 2008.

Background

In November 2006 Laree and Bob separated after almost 20 years of marriage. On 18 December 2006 Laree commenced a proceeding in the Family Court seeking orders in relation to the three children of the marriage, and an adjustment of property as between her and Bob. Laree’s Application for Final Orders did not particularise the financial orders sought, instead seeking that “the wife be excused from particularising any further orders sought by her until such time as the husband files and serves a Form 13 Financial Statement and provides a full and frank disclosure of all his assets, liabilities and financial resources to the wife”.

As to Bob’s financial position, counsel for Laree said that Bob and Laree have “acquired considerable wealth through the operations of BJC and other related entities”. I note that Bob was the founding director…

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 Jane v Jane

Details

AGLC: Jane v Jane [2008] VSC 341
Case: [2008] VSC 341
Decision Date: 5 September 2008

CaseChat Overview and Summary

Jane v Jane involved a dispute between a husband and wife concerning their children and property, including units in a unit trust. The husband’s son from a previous marriage initiated a proceeding in the Supreme Court seeking a declaration that his father holds the units on trust for him. The wife then applied to transfer the proceeding to the Family Court, arguing that it was in the interests of justice to do so. The application was refused, and the court considered whether the Family Court had jurisdiction over the matter.

The primary legal issue before the court was whether the Family Court had the jurisdiction to hear the proceeding initiated by the husband’s son, given that it was initially filed in the Supreme Court. The court had to determine if transferring the case to the Family Court would be in the interests of justice, considering the nature of the proceeding and the parties involved. The court examined the relevant provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), particularly section 5(1), which outlines the circumstances under which a proceeding may be transferred between courts.

The court found that the proceeding did not fall within the types of cases that could be transferred under section 5(1) of the Act. The case involved a dispute over property rights, specifically the trust claim regarding the units in the unit trust, which was not a matter within the Family Court’s jurisdiction. The court concluded that the proceeding should remain in the Supreme Court, as it did not meet the criteria for transfer under the Act. Therefore, the wife's application to transfer the proceeding was refused.

Orders