Warby & Warby

[2001] FamCA 1469

[2001] FamCA 1469

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE   
  File No. ML7334 of 1998

IN THE MATTER OF:

MARK DONALD WARBY

Applicant Husband

AND

YVONNE ELIZABETH WARBY

Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CASE STATED

CORAM:  NICHOLSON CJ, FINN AND STRICKLAND JJ
DATE OF HEARING:         20 JUNE 2001
DATE OF JUDGMENT:      21 DECEMBER 2001

APPEARANCES

Ms S. Johns of Counsel  (instructed by Peter Falconer & Assoc, Solicitors, PO Box 1071, GEELONG  VIC  3220) appeared on behalf of the husband

No appearance for or on behalf of the wife

Warby and Warby  ML7334 of 1998

Date of Hearing       20 June 2001
Date of Judgment    21 December 2001
Coram:  Nicholson CJ, Finn and Strickland JJ

CATCHWORDS:

PRACTICE AND PROCEDURE – Case Stated for the opinion of the Full Court – Section 94A Family Law Act 1975 - Questions of law

JURISIDCTION OF FAMILY COURT OF AUSTRALIA – Accrued –Whether an accrued jurisdiction exists for exercise in the Family Court – The indicia, criteria, factors or considerations that will invoke the exercise of the Court’s accrued jurisdiction - Whether the Family Court has power to extend its accrued jurisdiction to the determination of an issue against a third party where that third party refuses to take part in the proceedings.

This matter came before the Full Court by way of a Case Stated by Frederico J on 25 November 1999 pursuant to s. 94A of the Family Law Act 1975 ("the Act"). It essentially raised the question of whether the Family Court of Australia has an accrued jurisdiction, and if so, the extent of that jurisdiction and the circumstances in which it should be exercised.

The facts as set out in the Case Stated by Frederico J are as follows

"1.In or about 1982, the Wife purchased 20 Kyema Drive, Lara in the State of Victoria (“The Property”) as tenants-in-common with her father, Clement Eldridge (“The Wife’s Father”).  The Wife and the Wife’s father made respective contributions to the purchase price of the property, which amounts are in dispute between the parties, and there was a mortgage on the property held by the National Australia Bank (“The Mortgagee”).

2.In or about 1984/85, the parties commenced cohabitation in the property.

3.In or about 1986/89, the Wife’s father paid a sum of money to the mortgagee which had the effect of discharging the mortgage on the property.  At about the same time or shortly thereafter, there was an agreement entered into:

(a)according to the Wife, between the Wife and the Wife’s father for repayment to the Wife’s father of the sum paid by the Wife’s father to discharge the mortgage (The Wife’s Agreement”);

(b)according to the Husband, between the parties and the Wife’s father for repayment to the Wife’s father of an amount (in periodic payments) to extinguish the Wife’s father’s equity in the property (“The Husband’s Agreement”);

4.        On 21 January 1989, the parties were married.

5.In or about 1992,…