Appearances: Miss Taunton of Counsel (instructed by Erdem Hussein, Solicitor & Attorney, Suite G, 1^st Floor, 111 Main Street, Blacktown, NSW, 2148) for the Appellant/Wife
Mr Lloyd of Counsel (instructed by Webb Thom & Associates, Solicitors, 1012 Victoria Road, West Ryde, NSW, 2114) for the First Respondent/Husband
Mr Collier of Counsel (instructed by Maund & Co, solicitors, 7/2-6 Hunter Street, Parramatta, NSW, 2150) for the Second Respondent/Intervener

JURISDICTION OF THE FAMILY COURT OF AUSTRALIA – Appeal against costs order- Jurisdiction to make an order for costs in proceedings between a party to the marriage and an intervener – Jurisdiction as to costs dependent upon jurisdiction to make substantive order on application of intervener - Whether the trial Judge made order in substantive proceedings in purported exercise of cross-vested state jurisdiction, or under s79 of the FLA, or in exercise of accrued federal jurisdiction. Zdravkovic and Zdravkovic (1982) FLC 91-220 considered and applied: Stack v Coast Securities (No.9) Pty Ltd (1983) 154 CLR 261; Fencott v Muller (1983) 152 CLR 570; Smith v Smith (1986) 161 CLR 217; Phillip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 33 ALR 465; Smith & Smith (No.2) (1985) FLC 91-604; McKay and McKay (1984) FLC 91-573; and Ireland & Ireland (1986) FLC 91-731 considered.

ORDERS OF THE FAMILY COURT OF AUSTRALIA – Order made beyond jurisdiction – Whether order made in purported exercise of cross-vested state jurisdiction prior to decision of High Court in Re: Wakim; ex parte McNally (1999) 163 ALR 270, and not able to be supported by any other source of jurisdiction, is a nullity, or valid and binding until set aside – Such order valid and binding until set aside on appeal or quashed by prerogative writ issued by High Court – DMW v CGW (1982) 151 CLR 491 and Re Macks and Others; Ex parte Saint [2000] HCA 62; 176 ALR 545 applied, Residual Assco Group Ltd v Spalvins [2000] HCA 29; 74 ALJR 1013; McLaughlan v Fosbury (1904) 1 CLR 546; and Maiden v Maiden (1909) 7 CLR 727, referred to.

APPEAL TO FULL COURT OF FAMILY COURT OF AUSTRALIA – Appeal from order made in purported exercise of cross-vested state jurisdiction – Effect of the Federal Courts (State Jurisdiction) Act 1999 (NSW) – Re Macks (supra) and Friis v Friis (2000) FLC 93-009 referred to.

On 28 April, 2000, the Full Court published its reasons for orders, which were made on 16 June, 1999, and allowed, in part, an appeal…

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 Wade-Ferrell & Wade-Ferrell

Details

AGLC: Wade-Ferrell & Wade-Ferrell [2001] FamCA 138
Case: [2001] FamCA 138
Decision Date: 22 March 2001

CaseChat Overview and Summary

The Full Court of the Federal Court of Australia heard an appeal concerning a dispute between the parties, Wade-Ferrell and Wade-Ferrell. The precise nature of the dispute is not detailed in the provided text, but it involved an appeal from a decision of a single judge of the Federal Court.

The primary legal issue before the Full Court was whether the single judge had erred in their previous determination. This involved a review of the legal and factual findings made at the initial hearing.

The Court's reasoning and the legal principles applied are not elaborated upon in the provided text. However, the presence of three judges (Lindenmayer, Finn, and Morgan JJ) indicates that the Full Court considered the arguments presented by the parties and applied relevant Australian federal law to the facts of the case.

The final orders or outcome of the appeal are not specified in the provided text.

Orders