Xylander & Xylander (No 2)

Case [2025] FedCFamC1F 8


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Xylander & Xylander (No 2) [2025] FedCFamC1F 8

File number: SYC 5938 of 2024
Judgment of: SCHONELL J
Date of judgment: 16 January 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of proceedings from Federal Circuit and Family Court of Australia (Division 1) to Supreme Court of NSW – Ex tempore – Order made for transfer of proceedings.  
Legislation:

Australian Securities and Investments Commission Act 2001 (Cth)

Family Law Act 1975 (Cth) Pt VIII

Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 5(4)

Cases cited:

Edwards v Hyundai Motors Company Australia Pty Ltd; Sims v Kia Australia Pty Ltd [2023] FCA 1113

Peros v Irons [2024] FCA 902

Xylander & Xylander [2024] FedCFamC1F 550

Division: Division 1 First Instance
Number of paragraphs: 19
Date of hearing: 16 January 2024
Place: Sydney
Counsel for the Applicant: Mr Crossland
Solicitor for the Applicant: Jake McKinley Pty Ltd
The First, Second and Third Respondents: Did not participate

ORDERS

SYC 5938 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR XYLANDER

Applicant

AND:

MS XYLANDER

First Respondent

MS B XYLANDER

Second Respondent

MR C XYLANDER

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

16 JANUARY 2024

THE COURT ORDERS THAT:

1.The proceedings in the Federal Circuit and Family Court of Australia (Division 1) proceeding no. SYC5938/2024 (FCFCOA proceedings) be transferred to the Supreme Court of New South Wales proceeding no. …, pursuant to section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

2.Costs of the FCFCOA proceedings to date and of this application to be costs in the cause.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Xylander & Xylander has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

SCHONELL J:

  1. The husband and wife are engaged in Part VIII proceedings in this court following the breakdown in August 2022 of their 50-year marriage.

  2. The proceedings were commenced by the husband seeking orders against the first respondent, his wife, and the second and third respondents, two of his adult children.

  3. The husband contends that there has been, before the litigation commenced, a failure by the wife to comply with the pre-action procedures, and subsequent to the commencement, a…

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AGLC
Xylander & Xylander (No 2) [2025] FedCFamC1F 8
Case
[2025] FedCFamC1F 8
Decision Date

CaseChat Overview and Summary

The case of Xylander & Xylander (No 2) involved Mr Xylander as the applicant and Ms Xylander, Ms B Xylander, and Mr C Xylander as respondents. The dispute originated in the Federal Circuit and Family Court of Australia (Division 1) and concerned the transfer of proceedings to the Supreme Court of New South Wales. The matter was heard ex tempore by Schnell J on 16 January 2024.

The primary legal issue before the court was whether the proceedings should be transferred from the Federal Circuit and Family Court of Australia (Division 1) to the Supreme Court of New South Wales under section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The court had to consider the appropriate forum for the resolution of the family law matters at hand and determine whether the transfer was warranted under the relevant statutory provisions.

Schnell J concluded that the proceedings should be transferred to the Supreme Court of New South Wales. The decision was based on an analysis of the relevant statutory framework and the considerations of expeditious and efficient resolution of the family law matters. The court found that the transfer was in the interests of justice and appropriate under the cross-vesting provisions. Consequently, the court made an order transferring the proceedings and directed that the costs of the Federal Circuit and Family Court of Australia proceedings, up to that date, and the costs of the application be borne by the applicant.

Orders

Orders of the court

SYC 5938 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR XYLANDER

Applicant

AND:

MS XYLANDER

First Respondent

MS B XYLANDER

Second Respondent

MR C XYLANDER

Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

16 JANUARY 2024

THE COURT ORDERS THAT:

1. The proceedings in the Federal Circuit and Family Court of Australia (Division 1) proceeding no. SYC5938/2024 (FCFCOA proceedings) be transferred to the Supreme Court of New South Wales proceeding no. …, pursuant to section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth).

2. Costs of the FCFCOA proceedings to date and of this application to be costs in the cause.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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