Rooke and Rooke and Anor - [2018] FCCA 987

FEDERAL CIRCUIT COURT OF AUSTRALIA

ROOKE & ROOKE & ANOR

[2018] FCCA 987

Catchwords:
FAMILY LAW – Property settlement – transfer of proceeding – cross-vesting.

Legislation:

Family Law Act 1975 (Cth), ss.78-79

Jurisdiction of the Court (Cross-Vesting) Act 1987 (Cth), s.5

Cases cited:

BioAg Pty Ltd v Hickey [2007] NSWSC 296

Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 33 ALR 465

Applicant:

MS ROOKE

First Respondent:

MR ROOKE

Second Respondent:

MS CASSIDY

File Number:

SYC 1332 of 2017

Judgment of:

Judge Henderson

Hearing date:

15 February 2018

Date of Last Submission:

9 February 2018

Delivered at:

Sydney

Delivered on:

15 February 2018

REPRESENTATION

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

First Choice Family Lawyers

Counsel for the First Respondent:

Mr Wong

Solicitors for the First Respondent:

Santone Lawyers

Solicitors for the Second Respondent:

Mr La Cava of Cara Marasco & Company

ORDERS

The proceedings are remitted to the Supreme Court of New South Wales on a date and time to be fixed by that Court.

IT IS NOTED that publication of this judgment under the pseudonym Rooke & Rooke & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 1332 of 2017

MS ROOKE

Applicant

And

MR ROOKE

First Respondent

MS CASSIDY

Second Respondent

REASONS FOR JUDGMENT

The matter of Rooke & Rooke & Cassidy. This is an application filed by the husband, amended on 6 July 2017, seeking on a final basis a declaration that the second respondent, his mother-in-law, holds one half of her property at (omitted) on trust for he and his former wife, her daughter. Clearly, this is an application falling within the original equitable jurisdiction of the Supreme Court of New South Wales.
This application is not only opposed by the wife and the applicant’s mother-in-law, but if the husband wishes to pursue this application, they each say the whole of the proceedings should be remitted to the Supreme Court. It is clear that the Supreme Court can, if necessary, exercise a federal jurisdiction and make orders under section 79 and declarations under section 78,[1] from a reading of section 5(4)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act,[2] which is the relevant Act in this particular application.
[1] Family Law Act 1975 (Cth), ss.78-79
[2] Jurisdiction of the Courts (Cross-Vesting) Act 1987 (Cth) s5(4)ii.
The following is applicable to these proceedings:
a)Where a proceeding is pending in the Federal Court or the Family Court and it appears to the first court that it is otherwise in the interests of justice that the relevant proceedings be determined by the Supreme Court of a state or territory, the first court shall transfer the relevant proceedings to that Supreme Court.
b)Uncontentiously, this Court can also deal with the husband’s claim for equitable relief by way of a declaration in relation to the holding on trust of interest in his mother-in-law’s property and, clearly, the ensuing family law…

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.

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Details

Case: [2018] FCCA 987
Decision Date: 15 February 2018

CaseChat Overview and Summary

The case of *Rooke and Rooke* concerned a dispute between the parties, heard by Judge Henderson. The precise nature of the dispute is not detailed in the provided text, but the outcome indicates it involved matters requiring determination by the Supreme Court of New South Wales.

The central legal issue before the court was the appropriate forum for the resolution of the dispute. The court was required to decide whether the matter should proceed in its current jurisdiction or be remitted to a higher court.

Judge Henderson determined that the proceedings should be remitted to the Supreme Court of New South Wales. This decision suggests that the complexity or nature of the dispute necessitated the jurisdiction of the Supreme Court. The court's reasoning, while not fully elaborated in the provided text, led to the conclusion that the Supreme Court was the appropriate venue for further adjudication.

Consequently, the court ordered that the proceedings be remitted to the Supreme Court of New South Wales, with the specific date and time for this to be fixed by that Court.

Orders

Orders of the court

The proceedings are remitted to the Supreme Court of New South Wales on a date and time to be fixed by that Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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