Mitchell v McGillivray [2001] FCA 326

FEDERAL COURT OF AUSTRALIA

Mitchell v McGillivray [2001] FCA 326

BANKRUPTCY – application by former wife for annulment of former husband's bankruptcy consequent upon acceptance of debtor's petition – application for variation of consent orders and for property settlement pending in Family Court of Western Australia – s 153B of Bankruptcy Act empowers Federal Court to transfer annulment application to Family Court – "Family Court" defined in Bankruptcy Act as "the Family Court of Australia" – whether the fact that the Family Court of Western Australia is a different, State, Court presents a discretionary bar to transferring the application to the Family Court of Australia – application transferred to Family Court. Bankruptcy Act 1966 (Cth), ss 35A(1), 153B Family Law Act 1975, s 79A Re Sharpe (Lindgren J, unreported, Federal Court of Australia, 17 October 1996) referred to Re Maas (Whitlam J, unreported, Federal Court of Australia, 17 July 1997) referred to PAMELA KAY MITCHELL v BRIAN JOHN McGILLIVRAY and OFFICIAL TRUSTEE IN BANKRUPTCY W 7099 of 2000 CARR J 29 MARCH 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 7099 OF 2000

BETWEEN: PAMELA KAY MITCHELL

Applicant

AND: BRIAN JOHN McGILLIVRAY

First Respondent

OFFICIAL TRUSTEE IN BANKRUPTCY

Second Respondent

JUDGE: CARR J

DATE OF ORDER: 29 MARCH 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The proceedings commenced by the application filed on behalf of the above-mentioned applicant on 1 December 2000 in application W7099 of 2000 be transferred to the Family Court of Australia pursuant to s 35A(1) of the Bankruptcy Act 1966 (Cth). 2. The costs of the application to transfer be costs in the cause of the proceedings transferred. 3. Any costs which have been reserved in the proceedings be reserved to the Judge dealing with the matter in the Family Court of Australia. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.