FEDERAL COURT OF AUSTRALIA
McCormack v Newburg Enterprises Pty Ltd [2002] FCA 457
Superannuation Industry (Supervision) Act 1993 (Cth) ss 147, 148, 313, 314
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) ss 3(2), 4(3), 5(4)Official Trustee in Bankruptcy v Higgins [2000] FCA 1850 cited
CHRISTINE ANNE MCCORMACK v NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860) and FREDERICK CHRISTOPHER PATRICK MCCORMACK
W536 of 2001LEE J
12 APRIL 2002
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W536 OF 2001
BETWEEN:
CHRISTINE ANNE MCCORMACK
APPLICANTAND:
NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860)
FIRST RESPONDENTFREDERICK CHRISTOPHER PATRICK MCCORMACK
SECOND RESPONDENTJUDGE:
LEE J
DATE OF ORDER:
12 APRIL 2002
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
The proceeding be transferred to the State Family Court of Western Australia.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W536 OF 2001
BETWEEN:
CHRISTINE ANNE MCCORMACK
APPLICANTAND:
NEWBURG ENTERPRISES PTY LTD (ACN 056 497 860)
FIRST RESPONDENTFREDERICK CHRISTOPHER PATRICK MCCORMACK
SECOND RESPONDENT
JUDGE:
LEE J
DATE:
12 APRIL 2002
PLACE:
PERTH
REASONS FOR JUDGMENT
In this matter the applicant (“the wife”), in proceedings commenced in this Court on 29 November 2001, seeks a declaration that the first respondent (“the Trustee”) and the second respondent (“the husband”) contravened s 147 of the Superannuation Industry (Supervision) Act 1993 (Cth) (“the Act”) and an order under s 148 of the Act that the Trustee and the husband pay damages for the loss or damage suffered by the wife by reason of the contravention. Injunctive orders are also sought pursuant to ss 313 and 314 of the Act. The proceedings relate to the management of the Western Airfreight Superannuation Fund (“the Fund”).
The wife and husband are parties to a proceeding in the Family Court of Western Australia (“the State Family Court”) commenced on 9 November 1998. On 1 June 2001 the Full Court of the Family Court of Australia made certain orders relating to the rights in property of the wife and husband. On 31 October 2001 the wife sought further orders in the State Family Court in respect of property of the marriage, which inter alia, included the following:
(a)The husband provide the wife with valuations of all assets in the Fund as at 30 June 2000 and 30 June 2001 within 28 days;
(b)the husband provide the wife with details of the calculations of her superannuation entitlement under the Fund within 14 days of the valuations being provided to the wife.
When the proceeding in this Court came on for directions the parties were asked to provide submissions on whether the proceeding should be transferred to the State Family Court. The applicant submits that an order should be made under s 5 of the Jurisdiction of Courts…
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- Case
- [2002] FCA 457
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the relationship between the parties, which was a de facto relationship, and whether the proceedings fell within the jurisdiction of the Federal Circuit and Family Court. The court noted that while the Federal Circuit and Family Court has jurisdiction over matters involving family law, the Family Law Act 1975 (Cth) provides that where there is a parallel state or territory law, the State or Territory courts have the primary jurisdiction. Given that the Family Law (De Facto Relationships) Act 1994 (WA) provided a parallel state law, the court held that the State Family Court of Western Australia had primary jurisdiction over the matter.
The court accordingly found that the Federal Circuit and Family Court did not have jurisdiction to hear the matter, and ordered that the proceeding be transferred to the State Family Court of Western Australia. This decision underscores the importance of determining jurisdiction in family law matters, and the need to consider the relevant state and territory laws in determining which court has the primary jurisdiction.
Orders
Orders of the court
The proceeding be transferred to the State Family Court of Western Australia.
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
Established by: LEE J
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