KMR v SHF - [2011] QSC 153

SUPREME COURT OF QUEENSLAND

CITATION:

K M R v S H F [2011] QSC 153

PARTIES:

K M R

Applicant

v

S H F

Respondent

FILE NO/S:

SC 77 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

03 June 2011

DELIVERED AT:

Mackay

HEARING DATE:

30 May 2011.

JUDGE:

McMeekin J

ORDER:

1.   The Respondent's application is dismissed.

2.   The matter is listed for trial notwithstanding the absence of a Request for Trial Date;

3.   Direct that the respondent file and serve any further affidavit of himself or any witness on whom he intends to rely on or before 4pm on 16 June 2011.

4.   Direct that the trial be listed for hearing in the sittings of the circuit court in Mackay commencing 18 July 2011.

5.   The respondent pay the applicant's costs of each application on the standard basis.

CATCHWORDS:

PROCEDURE - Where de-facto relationship broke down before statutory amendments - Whether it is more appropriate that the matter be heard in the Family Court

JURISDICTION - ACCRUED JURISDICTION - Whether the Family Court has accrued jurisdiction

Family Law Act 1976 (Cth)

Family Law Amendment (De Facto Financial Matters and Other Measures Act) 2008 (Cth)

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld)

Property Law Act 1974 (Qld)

Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339

In the Marriage of Ireland; Collier (1986) 11 Fam LR 104

Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 403

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 45

Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261

Stott v Lyons & Stott [2007] QSC 87

Valceski v Valceski [2007] 70 NSWLR 36

Re Wakim; Ex parte McNally (1999) 198 CLR 511

COUNSEL:

Mr Burridge for the Applicant

Mr MA Fellows for the Respondent

SOLICITORS:

Beckey Knight & Elliott Solicitors for the Applicant

SR Wallace & Wallace Solicitors for the Respondent

McMEEKIN J: Ms R (the applicant) and Mr F (the respondent) previously enjoyed a de facto relationship which lasted some 15 years. It ended in 2007. Mr F then married a Ms D in June 2009. That marriage ended in a separation in October 2010. Ms R has brought an application in this Court for property adjustment under Part 19 of the Property Law Act 1974 (Qld) (“PLA”). Ms D has brought an application in the Family Court for a property settlement. Mr F is the respondent in each application.

There are two interlocutory applications before me. In one Ms R seeks that her property adjustment application be listed for trial notwithstanding that Mr F has not signed the Request for Trial nor filed his material. In the other Mr F seeks that the property adjustment application be transferred to the Family Court so both the applications he faces can be heard by the same tribunal. He concedes Ms R’s entitlement to the orders she seeks if I am against…

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 KMR v SHF

Details

AGLC: KMR v SHF [2011] QSC 153
Case: [2011] QSC 153
Decision Date: 03 June 2011

CaseChat Overview and Summary

The case of KMR v SHF involved a dispute between de facto partners regarding financial matters following the breakdown of their relationship. The respondent applied to transfer the case from the Magistrates Court to the Family Court, arguing that the Family Court has accrued jurisdiction under the Family Law Act 1976 and the Family Law Amendment (De Facto Financial Matters and Other Measures Act) 2008. The applicant opposed the transfer, contending that the Family Court did not have accrued jurisdiction as the relationship had ended prior to the legislative amendments.

The primary legal issue was whether the Family Court had the authority to hear the case due to accrued jurisdiction, given that the relationship had ended before the legislative changes were enacted. The court considered precedents such as In the Marriage of Ireland; Collier, Paris King Investments Pty Ltd v Rayhill, and Valceski v Valceski, which addressed the accrual of jurisdiction in similar contexts. The court also examined the statutory provisions under the Family Law Act 1976 and the Family Law Amendment Act 2008, alongside the Jurisdiction of Courts (Cross-Vesting) Act 1987 and the Property Law Act 1974.

The Family Court found that, despite the amendments, the relationship had concluded before they came into effect, thus no accrued jurisdiction existed for the Family Court to hear the matter. The court relied on the reasoning in Stott v Lyons & Stott, which held that the accrued jurisdiction must be assessed at the time the relationship ended, not at the time of the application. Consequently, the application to transfer the case was dismissed. The court ordered that the matter proceed to trial in the Magistrates Court, with a trial date set for the circuit court sittings in Mackay starting 18 July 2011. Additionally, the respondent was directed to file any further affidavits by 16 June 2011, and to pay the applicant's costs of the application.

Orders

Orders of the court

1. The Respondent's application is dismissed.

2. The matter is listed for trial notwithstanding the absence of a Request for Trial Date;

3. Direct that the respondent file and serve any further affidavit of himself or any witness on whom he intends to rely on or before 4pm on 16 June 2011.

4. Direct that the trial be listed for hearing in the sittings of the circuit court in Mackay commencing 18 July 2011.

5. The respondent pay the applicant's costs of each application on the standard basis.

Background

Background to the litigation

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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:	K M R v S H F [2011] QSC 153
PARTIES:	K M R Applicant v S H F Respondent
FILE NO/S:	SC 77 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	03 June 2011
DELIVERED AT:	Mackay
HEARING DATE:	30 May 2011.
JUDGE:	McMeekin J
ORDER:	1. The Respondent's application is dismissed. 2. The matter is listed for trial notwithstanding the absence of a Request for Trial Date; 3. Direct that the respondent file and serve any further affidavit of himself or any witness on whom he intends to rely on or before 4pm on 16 June 2011. 4. Direct that the trial be listed for hearing in the sittings of the circuit court in Mackay commencing 18 July 2011. 5. The respondent pay the applicant's costs of each application on the standard basis.
CATCHWORDS:	PROCEDURE - Where de-facto relationship broke down before statutory amendments - Whether it is more appropriate that the matter be heard in the Family Court JURISDICTION - ACCRUED JURISDICTION - Whether the Family Court has accrued jurisdiction Family Law Act 1976 (Cth) Family Law Amendment (De Facto Financial Matters and Other Measures Act) 2008 (Cth) Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld) Property Law Act 1974 (Qld) Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339 In the Marriage of Ireland; Collier (1986) 11 Fam LR 104 Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 403 Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 45 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Stott v Lyons & Stott [2007] QSC 87 Valceski v Valceski [2007] 70 NSWLR 36 Re Wakim; Ex parte McNally (1999) 198 CLR 511
COUNSEL:	Mr Burridge for the Applicant Mr MA Fellows for the Respondent
SOLICITORS:	Beckey Knight & Elliott Solicitors for the Applicant SR Wallace & Wallace Solicitors for the Respondent