OHB -v- MTM [2007] WASCA 6

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASCA 6
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:95/2006	Heard:	20 DECEMBER 2006
Coram:	STEYTLER P PULLIN JA BUSS JA	Delivered:	8/01/07
No of pages:	10	Judgment Part:	1 of 1
Result:	Appeal transferred to the Full Court of the Family Court of Australia
Category:	A
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Parties:	OHB MTM CHILD
Catchwords:	Courts and Judges Jurisdiction of Court of Appeal to entertain appeal from parenting order made in Family Court of Western Australia Child resident in Queensland Crossvesting Whether jurisdiction of Courts (Crossvesting) Act 1987 (Cth) confers jurisdiction on Court of Appeal Whether Court of Appeal should transfer proceedings to the Full Court of the Family Court of Australia
Legislation:	Commonwealth Constitution, s 51(xxii) Commonwealth Powers (Family Law - Children) Act 1990 (Qld), s 3(1)(b) Family Court Act 1997(WA), s 36(3), s 58(1), s 210, s 211(3) Family Law Act 1975 (Cth), Pt 7, s 4(1), s 61B, s 69ZJ, s 93A(1)(a), s 94(1) Jurisdiction of Courts (Crossvesting) Act 1987 (Cth), s 3(1), s 3(2), s 4(1), s 7(5), s 7(6), s 7(7), s 7(8), s 11(3) Jurisdiction of Courts (Crossvesting) Act 1987 (WA), s 7(5), s 7(6), s 7(7), s 7(8) Supreme Court Act 1935 (WA), s 7(4), s 57, s 58, s 59, s 60
Case References:	MTM and OHB [2006] FCWA 55 B & Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 604; [2003] FCA 451 Minister for Immigration and Multicultural and Indigenous Affairs v B & Anor (2004) 219 CLR 365; [2004] HCA 20

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : OHB -v- MTM [2007] WASCA 6 CORAM : STEYTLER P

PULLIN JA

BUSS JA

HEARD : 20 DECEMBER 2006 DELIVERED : 9 JANUARY 2007 FILE NO/S : CACV 95 of 2006 BETWEEN : OHB

Appellant

AND

MTM

Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : MARTIN J

Citation : MTM and OHB [2006] FCWA 55

Catchwords:

Courts and Judges - Jurisdiction of Court of Appeal to entertain appeal from parenting order made in Family Court of Western Australia - Child resident in Queensland

(Page 2)

Crossvesting - Whether jurisdiction of Courts (Crossvesting) Act 1987 (Cth) confers jurisdiction on Court of Appeal - Whether Court of Appeal should transfer proceedings to the Full Court of the Family Court of Australia

Legislation:

Commonwealth Constitution, s 51(xxii)

Commonwealth Powers (Family Law - Children) Act 1990 (Qld), s 3(1)(b)
Family Court Act 1997(WA), s 36(3), s 58(1), s 210, s 211(3)
Family Law Act 1975 (Cth), Pt 7, s 4(1), s 61B, s 69ZJ, s 93A(1)(a), s 94(1)
Jurisdiction of Courts (Crossvesting) Act 1987 (Cth), s 3(1), s 3(2), s 4(1), s 7(5), s 7(6), s 7(7), s 7(8), s 11(3)
Jurisdiction of Courts (Crossvesting) Act 1987 (WA), s 7(5), s 7(6), s 7(7), s 7(8)

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 OHB v MTM

Details

AGLC: OHB v MTM [2007] WASCA 6
Case: [2007] WASCA 6
Decision Date: 9 JANUARY 2007

CaseChat Overview and Summary

In the case of OHB v MTM, the Court of Appeal was asked to determine its jurisdiction to hear an appeal from a parenting order made in the Family Court of Western Australia. The child at the centre of the dispute resided in Queensland, complicating jurisdictional questions. The legal issues before the court involved whether the Courts (Cross-Vesting) Act 1987 (Cth) conferred jurisdiction on the Court of Appeal to entertain the appeal, and whether the Court of Appeal should transfer the proceedings to the Full Court of the Family Court of Australia.

The court examined the statutory provisions to ascertain the proper jurisdictional pathway for appeals from parenting orders. It considered the relevant sections of the Cross-Vesting Act, which provide for the transfer of jurisdiction between state and federal courts in family law matters. The court concluded that the statutory scheme did not confer jurisdiction on the Court of Appeal but rather required the proceedings to be transferred to the Full Court of the Family Court of Australia. The appeal was subsequently transferred to the Full Court in accordance with the statutory requirements.

The reasoning of the court was grounded in the interpretation of the statutory provisions and the jurisdictional framework established by the Cross-Vesting Act. The court found that the appeal should not be heard by the Court of Appeal but must be transferred to the Full Court of the Family Court of Australia as mandated by the legislation. This decision ensures that the appeal follows the correct procedural pathway and maintains consistency with the jurisdictional framework designed to handle family law matters.

Orders

Orders of the court

Appeal transferred to the Full Court of the Family Court of 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

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