Mitchell v McGillivray

The matter before the court involves an application by Mitchell for the annulment of the bankruptcy of McGillivray, who had filed his own petition for bankruptcy on 16 May 2000. Mitchell, the former wife of McGillivray, filed her application under section 153B of the Bankruptcy Act 1966 (Cth) and also sought the transfer of the application to the Family Court of Australia, alternatively. The primary issue before the court was whether the application for annulment of bankruptcy should be transferred to the Family Court of Australia.

The court considered the provisions of the Bankruptcy Act 1966 (Cth) and the Family Law Act 1975 (Cth) and determined that section 153B of the Bankruptcy Act empowers the Federal Court to transfer the principal application to "the Family Court." However, section 5(1) of the Act defines the Family Court as meaning "The Family Court of Australia." The court resolved this potential conflict by noting that the Family Court of Western Australia, in exercising federal jurisdiction under section 41(3) of the Family Law Act 1975 (Cth), has jurisdiction relevantly co-extensive with the jurisdiction of the Family Court of Australia. Therefore, the court found that the application for annulment of bankruptcy could be transferred to the Family Court of Australia.

The court ordered the transfer of the proceedings commenced by Mitchell's application to the Family Court of Australia pursuant to section 35A(1) of the Bankruptcy Act 1966 (Cth). The costs of the application to transfer were to be costs in the cause of the proceedings transferred, and any costs which had been reserved in the proceedings were to be reserved to the Judge dealing with the matter in the Family Court of Australia.