Johnston v Becker - [1999] NSWSC 310

CITATION: JOHNSTON v BECKER [1999] NSWSC 310

CURRENT JURISDICTION: EQUITY

FILE NUMBER(S): 1442/99

HEARING DATE(S): 6 April 1999

JUDGMENT DATE:
9 April 1999

PARTIES :

PHILIP JAMES JOHNSTON
v
LEA NOELINE BECKER

JUDGMENT OF: Bryson J at 1

COUNSEL : PLAINTIFF: Ms E COHEN
DEFENDANT: Ms D FITZSIMONS

SOLICITORS: PLAINTIFF: NEIL J O'CONNOR & ASSOC.
DEFENDANT: BRIGGS PAUL DOWDING

CATCHWORDS: PRACTICE & PROCEDURE; Jurisdiction of courts; cross-vesting legislation; application to transfer proceedings to Family Court; proceedings related; interests of justice; Jurisdiction of Courts (Cross-Vesting) Act 1987 ss5(1), 5 (1) (b) (i), 5 (1) (b) (ii) (A), 5 (1) (b) (ii) (B); transfer to Family Court of De Facto Relationships claim was refused.

ACTS CITED: Child Support (Assessment) Act 1989 (Cth), s 117.
De Facto Relationships Act 1984 (NSW), s 27.
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), subs 5 (1), subs 5 (1) (b) (i), subs 5 (1) (b) (ii) (A), subs (5) (1) (b) (ii) (B).

CASES CITED: Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711.
Murrant v Singleton (unreported 15 July 1998).
O’Mara v Perry (unreported 26 March 1998).

DECISION: SEE PARAGRAPH 9

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BRYSON J
FRIDAY 9 APRIL 1999

1442/99 PHILIP JAMES JOHNSTON v LEA NOELINE BECKER

JUDGMENT
1 HIS HONOUR : The plaintiff commenced these proceedings by Statement of Claim on 19 February 1999 and claimed orders adjusting the property interests of the parties under the De Facto Relationships Act 1984 (NSW) in respect of a relationship which existed from about April 1994 until July 1998. The plaintiff claims by way of adjustment orders that the house property which he owns at Wahroonga be transferred to the defendant, alternatively be sold and the proceeds paid to the defendant, and an order that the motor vehicle which the defendant now drives be transferred to the defendant. The defendant in her Defence and Cross-claim filed on 29 March 1999 admits the relationship and alleges that there was an earlier relationship from November 1988 to December 1992, alleges contributions by her, alleges that the Cross-Defendant owns substantial assets unknown to her and makes further claims relating to adjustment including an order that the Cross-defendant pay her $500,000.00, and also maintenance of $500.00 per week under s 27 of the De Facto Relationships Act 1984 until 20 October 2007. She also claims an order under s 117 of the Child Support (Assessment) Act 1989 (Cth) relating to child support for the two children of the parties who were born on 2 October 1990 and 20 October 1995.
2 The plaintiff made an Application, also filed on 19 February 1999, to the Family Court of Australia at Sydney for orders relating to the parenting of the children, with detailed orders dealing with contact and defining dates and times, at week-ends, during the school week, at holiday times and telephone contact. The defendant filed a Response in the Family Court dated 26 March 1999 which claims orders relating to parenting…

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 Johnston v Becker

Details

AGLC: Johnston v Becker [1999] NSWSC 310
Case: [1999] NSWSC 310
Decision Date: 9 April 1999

CaseChat Overview and Summary

The matter before the court involved Johnston, the applicant, seeking a transfer of proceedings from the Federal Circuit and Family Court to the Family Court under the Jurisdiction of Courts (Cross-Vesting) Act 1987. The respondent, Becker, opposed the transfer. The crux of the dispute was Johnston's claim for property settlement and spousal maintenance arising from a de facto relationship with Becker. The legal issues the court needed to resolve were whether the proceedings were related as required by the cross-vesting legislation and whether transferring the matter to the Family Court would be in the interests of justice.

The court examined the statutory criteria for transferring proceedings, focusing on whether the proceedings were related under section 5(1)(b)(i) and (ii) of the Act. It found that while the proceedings were related, the applicant had not demonstrated that the transfer was in the interests of justice as required by section 5(1)(b)(ii)(B). The court considered the broader context of the proceedings, including the nature of the claims and the potential for more efficient resolution in the Federal Circuit and Family Court. Given the complexity of the property settlement issues and the existing Federal Circuit and Family Court proceedings, the court concluded that transferring the matter to the Family Court was not warranted.

Consequently, the court dismissed the application for transfer. The reasoning hinged on the balance between the related nature of the proceedings and the broader interests of justice, which were deemed better served by keeping the matter in the Federal Circuit and Family Court. This decision highlights the court's careful consideration of the statutory criteria and the practical implications of transferring proceedings under the cross-vesting legislation.

Orders