Kordell and Van der Linden

[2008] FamCA 1041

FAMILY COURT OF AUSTRALIA

KORDELL & VAN DER LINDEN [2008] FamCA 1041

FAMILY COURT – JURISDICTION – Transfer of proceedings in State Supreme Court

APPLICANT: Ms Kordell

RESPONDENT: Mr Van der Linden

FILE NUMBER: PAC 3975 of 2003

DATE DELIVERED: 17 June 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Parramatta

JUDGMENT OF: Justice STEVENSON

HEARING DATE: 30 April 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton

SOLICITOR FOR THE APPLICANT: Caldwell Martin Cox

COUNSEL FOR THE RESPONDENT: Mr Gould

SOLICITOR FOR THE RESPONDENT: Moira Ryan Lawyers Pty Limited

Orders

1. That the Application in a Case filed on 29 April 2008 and the Response to an Application in a Case filed on 7 May 2008 are dismissed.

2. That the costs of this interim application be reserved to the final hearing.

IT IS NOTED that publication of this judgment under the pseudonym Kordell & Van der Linden is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3975 of 2003

MS KORDELL

Applicant

And

MR VAN DER LINDEN

Respondent

REASONS FOR JUDGMENT

Background

1. On 13 October 2004 Purdy J delivered judgment and made orders in proceedings for settlement of property between Mr Van der Linden (“the husband”) and Mrs Van der Linden (“the wife”).  The husband appealed successfully against these orders and, on 4 August 2006, the matter was remitted for re-hearing.  In most unfortunate circumstances, the re-hearing has yet to occur and is listed to commence on 23 June 2008.

2. Sadly, the wife developed cancer and died in February 2005.  By a will dated 17 December 2004 her sister, Ms Kordell, was appointed executor of her estate.  The late wife’s will provided that her estate be divided equally between her three children, R, C and J.  A grant of probate was made to Ms Kordell on 25 May 2005.  She was substituted as a party in these proceedings by order made on 8 June 2005. 

3. On 9 August 2006 the husband commenced proceedings in the Supreme Court on behalf of the children C and J, pursuant to the Family Provision Act [1982], in relation to the estate of the late wife.  C and J are the children of the marriage of the husband and the wife.  R is the child of a prior marriage of the wife.  R was born in November 1982 and is 25; C was born in March 1992 and is 16 and J was born in July 1993 and is 14 years old.

The Competing Applications

1. On 29 April 2008 the Executor filed an Application in a Case, seeking the following orders:

   1.That the husband forthwith do all things in both is own capacity and his capacity as Plaintiff on behalf of [C] and [J] in Family Provision Act proceedings number […] commenced by way of summons in the Supreme Court of NSW, Equity Division dated 9^th August 2006 and filed 11^th August 2006 to cause the said proceedings to be transferred and otherwise removed from that forum to the Family Court of Australia at Parramatta, proceedings number PAF 3975/2003 for hearing and consolidation with the trial listed to commence over three days on 23^rd June 2008.

   2.That in the alternative to Order 1 hereof, the proceedings pursuant to s79 of the Family Law Act in the Family Court at Parramatta number PAF 3975/2003 be transferred to the Supreme Court for determination pursuant to the Jurisdiction of Courts (Cross Vesting) Act.

   3.That leave be granted to the Applicant to rely upon the Affidavits already filed by her to date in these proceedings.

   4.That the husband pay the costs of and incidental to the application.

   By Response filed on 7 May 2008 the husband sought the following orders:

   1.That the Application in a Case dated 15 April 2008 made by the Case guardian be dismissed.

   2.That the Applicant pay the costs of and incidental to the interim proceedings.

Consideration

1. The transfer of proceedings from one court to another involves the exercise of discretion.  If I were to make an order compelling the husband to cause the transfer of the Family Provision Act proceedings from the Supreme Court of New South Wales to this court, I would deprive the State court of its right to exercise discretion as to the transfer.  I would not presume to do so.  In my view, any application that the Family Provision Act proceedings be transferred from the Supreme Court to this court should properly be made to the Supreme Court itself.

2. There remains the question whether I should transfer the section 79 proceedings in this court to the Supreme Court.  The husband opposes such a transfer and seeks that the section 79 proceedings be heard by this court, on the hearing dates which have been fixed to commence on 23 June 2008.

3. On behalf of the husband it was submitted that the parties to the two sets of proceedings, although identical, are the same in name only.  It was said that the real plaintiffs are the children of the husband and the late wife, as Ms Kordell’s involvement only arises from her appointment as the executor of the estate of her sister. 

4. It was thus submitted that this case is distinguishable from situations where a third party becomes involved in family law proceedings in circumstances, for example, such as a monetary advance by a parent of one party or construction of a granny flat on land belonging to a husband and wife.  The two sets of proceedings here, so it was submitted, do not arise out of a common substratum of facts and are severable from each other.

5. It seems to me that there is some force in these submissions. The real combatants in the Family Provision Act proceedings would appear to be the husband, via his children C and J, and the late wife’s daughter R. The issues to be determined and the principles to be applied in the two sets of proceedings are quite different. The first matter to be determined is the value of the estate of the late wife, which must proceed pursuant to the Family Law Act. That decision can be made quickly, if the section 79 proceedings remain in this court.

6. For these reasons, I propose to dismiss the Application in a Case filed on 7 May 2008.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson

Associate:     

Date:              17 June 2008