Re Morris, Con Ex Parte Morris, Dina v McDonald, Geoffrey David [1996] FCA 922

NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA) GENERAL DIVISION ) NB 2183 of 1996 BANKRUPTCY DISTRICT OF THE STATE ) OF NEW SOUTH WALES ) RE: CON MORRIS Debtor EX PARTE: DINA MORRIS Applicant GEOFFREY DAVID McDONALD Respondent

CORAM: SACKVILLE J PLACE: SYDNEY DATE: 10 SEPTEMBER 1996 REASONS FOR JUDGMENT The applicant is the wife of a bankrupt. She applies pursuant to s.35A of the Bankruptcy Act 1966 (Cth) (the "Act") for an order that the proceedings be transferred to the Family Court of Australia. The proceedings relate to an application to annul the bankruptcy of her husband, pursuant to s.153B of the Act. The sequestration order against the estate of the husband was made because he filed a debtor's petition on 30 July 1996. I have been told from the bar table, although of course I make no judgment about it, that the debtor's petition was filed in breach of an undertaking that had been given by the husband in the course of the Family Court proceedings.

Mr Freeman, who appears for the applicant, has provided me with some details of the proceedings in the Family Court. It is not necessary to deal with those at length. However, it does appear from what I have been told and from the affidavit evidence that there were complex financial issues at stake in the proceedings between the wife and the bankrupt. It also appears that other parties were joined to the Family Court proceedings. These include the parents of the bankrupt and a company in which they have a substantial interest, if not control. O'Ryan J determined the Family Court proceedings. It appears that his Honour made a number of findings relating to the property available for orders under s.79 of the Family Law Act 1975 (Cth). In the course of making those findings, his Honour apparently made judgments about the credit of the bankrupt and of the wife. His Honour found, so I have been told, that claims by some persons to be creditors of the bankrupt were not made bona fide. Those claims are recorded in the statement of affairs filed on behalf of the bankrupt in this court. The matter is not an entirely straightforward one. Section 35A(1) and (3) provides that: "(1)...where a proceeding is pending in the Federal Court, the Federal Court may, on the application of a party to the proceeding or of its own motion, transfer the proceeding to the Family Court. (3)...where a proceeding is transferred to the Family Court: (a) the Family Court has jurisdiction to hear and determine the proceeding; (b) the Family Court also has jurisdiction to hear and determine matters not otherwise within its jurisdiction (whether by virtue of paragraph 9a) or otherwise): (i) that are associated with matters arising in the proceeding."