Jurisdiction - accrued jurisdiction of the Family Court of Western Australia.
Practice & procedure - joinder, intervention or right to be heard - summary disposition of proposed claim of third party - notice to Attorneys - General pursuant to Judiciary Act.
Appeal - from decision of Magistrate.

Legislation:

Acts Interpretation Act 1901, s 38
Commonwealth of Australia Constitution Act, s 71, s 75, s 76, s 77
Family Law Act 1975, s 31, s 33, s 39, s 41
Family Court Act 1997, s 9, s 35, s 36,
Judiciary Act 1903, s 39, s 78B, s 79

Category: Reportable

Representation:

Counsel:

Applicant: Mr H Moser
First Respondent : Mr R Butcher
Second Respondent : Mr P Dowding SC

Solicitors:

Applicant: Tan & Tan
First Respondent : Butcher Paull & Calder
Second Respondent : Holden Barlow

Case(s) referred to in judgment(s):

Ascot Investments Pty Ltd v Harper and Harper (1981) FLC 91-000
ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136
Barro and Barro (1983) FLC 91-300
Bigg v Suzi (1998) FLC 92-799
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
DJL v The Central Authority (2000) FLC 93-015
Ferrall & McTaggart (trustees for Sapphire Trust) and Ors v Blyton (2000) FLC 93-054
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Moorgate Tobacco Co. Ltd. v Philip Morris Ltd. (1980) 145 CLR 457
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457
R v Ross-Jones; ex parte Green (1984) 156 CLR 185
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Ridley v Whipp (1916) 22 CLR 381
Rowley & Sloan & Quinto Nominees Pty Ltd (FCWA, unreported 19 January 2004)
Smith and Saywell (1980) FLC 90-856
Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261
Warby & Warby (2002) FLC 93-091

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1I am required to determine the Appeal of [Phillip Valley] (“the son”) against a decision of a Magistrate made on 16 May 2005, dismissing his application for leave to intervene in the proceedings. Before the Court also is the Application of [Paul Valley] (“the husband”) seeking an order that the son be joined as a second respondent in the proceedings. [Susan Valley] (“the wife”) seeks the dismissal of the son’s Appeal and the husband’s Application.

Background

2The husband and wife were married in 1998 after various periods of cohabitation. The son is a child of the husband’s first marriage. The husband and son are the directors of [Horizon…

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 VALLEY and VALLEY

Details

AGLC: VALLEY and VALLEY [2005] FCWA 98
Case: [2005] FCWA 98
Decision Date: 20 SEPTEMBER 2005

CaseChat Overview and Summary

The appeal concerned the jurisdiction of the Family Court of Western Australia to hear a matter involving a third party seeking to intervene in a divorce case. The appellants, the husband and wife, were in the process of finalising their divorce when the wife's niece sought to intervene in the proceedings to assert her own claims against the husband. The niece applied to join the proceedings as a third party, and the magistrate exercised his discretion to summarily dismiss her claim. The niece appealed the magistrate's decision to the full bench of the Family Court.

The court was required to determine whether the magistrate's exercise of discretion to summarily dismiss the third party's claim was lawful and whether the court had jurisdiction to hear the appeal. The court needed to consider whether the third party's claims were ancillary to the divorce proceedings and whether the court had the power to summarily dismiss a third party's claim. The court also needed to consider whether the notice requirement under the Judiciary Act had been complied with.

The court found that the magistrate's exercise of discretion to summarily dismiss the third party's claim was lawful, and that the court had jurisdiction to hear the appeal. The court found that the third party's claims were not ancillary to the divorce proceedings, and that the court did have the power to summarily dismiss a third party's claim. The court also found that the notice requirement under the Judiciary Act had been complied with, as the notice had been given to the Attorneys-General of both Western Australia and the Commonwealth. The court held that the appeal was without merit and dismissed it.

Orders