The Queen v Ross-Jones; Ex parte Green
(1984) 156 CLR 185(1984) 56 ALR 609
(Decision by: Murphy)
IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION AND CERTIORARI DIRECTED TO THE HONOURABLE MR JUSTICE BRYCE ERNEST ROSS-JONES AND THE CHIEF JUSTICE AND OTHER JUDGES OF THE FAMILY COURT OF AUSTRALIA, LEONARD MARK MARINOVICH AND CAROL LESLEY MARINOVICH; Ex parte CAROLINE AGNES GREEN
Court:
Judges:
Gibbs C.J.
Mason
MurphyWilson & Dawson JJ.
Brennan
Deane
Judgment date: 6 DECEMBER 1984
Decision by:
Murphy
MURPHY J. The jurisdiction of the Family Court to entertain the application and make the challenged orders against Mrs Green depended upon there being a relevant "matrimonial cause" as defined in the Family Law Act 1975 (see s.4). There was none.
It is conceded by Dr Marinovich that in the Supreme Court of Victoria Mrs Green (formerly his mother-in-law) has obtained judgment (for $336,693.51 and costs) against him regularly. A bankruptcy notice against him (based on the judgment debt) has been issued and served by Mrs Green. Dr Marinovich has sought an injunction. In the Family Court of Australia Dr Marinovich applies to set aside the judgment and has obtained an interlocutory injunction to restrain Mrs Green from taking any further action to enforce the judgment.
This is not a case where one spouse is asking the Family Court to restrain proceedings elsewhere against the other spouse by some person who is not at arm's length but is in collusion with or the alter ego of the other spouse. Part of the judgment debt is founded on an assignment to Mrs Green by Dr Marinovich's former wife, but it is not suggested that this was a fraudulent conveyance. Mrs Green obtained judgment against Dr Marinovich in the Supreme Court; he now asks the Family Court to restrain Mrs Green from acting on the judgment. The case would not be different if a complete stranger had sued Dr Marinovich who then claimed indemnity from his former wife.
In these circumstances the Family Court is not the forum for any attempt to set aside or restrain proceedings upon the judgment of the Supreme Court. Parliament has allocated federal jurisdiction between various courts. Bankruptcy is allocated to the Federal Court of Australia, not the Family Court. The Family Court had no jurisdiction to entertain the application by Dr Marinovich against Mrs Green, nor to grant the interlocutory injunction. There are powerful considerations (to which Mr Justice Deane refers) against intervention by this Court at a stage before the Family Court has been able to give proper consideration to its jurisdiction, but this was an extreme case.
The order nisi for prohibition and certiorari should be made absolute.