Anderson v McPherson - [2009] WASC 35

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ANDERSON -v- McPHERSON [2009] WASC 35

CORAM: JOHNSON J

HEARD: 24 JULY 2008

DELIVERED : 25 FEBRUARY 2009

FILE NO/S: CIV 2210 of 2007

BETWEEN: BRUCE WILLIAM ANDERSON
First Plaintiff
CAROLYN ANDERSON
Second Plaintiff
AND
STEPHANNIE MARRIEE McPHERSON
First Defendant
TROY KENNON ANDERSON
Second Defendant

Catchwords:

Cross-vesting - Actions related to more appropriate court - Interests of justice - Action arising out of other action

Legislation:

Family Law Act 1975 (Cth), s 79, s 90AE
Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA), s 4, s 5, s 10
Family Law Rules 2004 (Cth)

Result:

Application refused

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr A P Rumsley
Second Plaintiff             :     Mr A P Rumsley
First Defendant              :     Mr D J Morris
Second Defendant         :     Ms S M Holgate

Solicitors:

First Plaintiff                  :     Alan Rumsley
Second Plaintiff             :     Alan Rumsley
First Defendant              :     Bruce Havilah & Associates
Second Defendant         :     Slater & Gordon

Case(s) referred to in judgment(s):

Bourke v State Bank of NSW (1988) 85 ALR 61
Carey v Carey (Unreported, WASC, Library No 8307, 14 June 1990)
Commonwealth v Silverton Ltd (1991) 103 FLR 251
Dawson v Baker (1994) 120 ACTR 11
Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197
Osmond v Osmond (1988) FLC 91‑953
Re Chapman & Jansen (1990) 13 Fam LR 853
Seymour v Devine [2003] WASC 260
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

JOHNSON J: The first defendant, Stephanie Marriee Anderson, has applied to this court under s 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA) (the Act) to have the above action (the Supreme Court action) transferred to the Family Court of Western Australia to be heard together with an action already commenced by the first defendant in that court against the second defendant in this action (the Family Court proceedings). The second defendant, Troy Kennon Anderson, was the first defendant's de facto partner, and is the son of the first and second plaintiffs.

The facts

On 14 April 1994 the plaintiff and the defendants purchased a property at 44 Anstey Road, Forrestdale (the property). The title reflects the fact that the two plaintiffs own one undivided half share in the property and the two defendants own the other undivided half share.
The price paid for the property was $223,455.45 inclusive of stamp duty and fees. The purchase price was paid from the proceeds of sale of the plaintiffs' two properties in Palmyra, a total sum of $183,455.38, and a loan in the sum of $40,000 taken out by the plaintiffs and the defendants jointly from the ANZ Bank, and secured over the property.
A meeting had been held between the plaintiffs and the defendants in December 1993, at which time it was agreed that the plaintiffs would build a second house on the property. The cost of the house would be paid by way of another loan from the ANZ Bank for $80,000, secured over the property. The plaintiffs were to live in the granny flat of the existing house whilst the other house was being built. Rates and services were to be shared equally until the plaintiffs moved into the new house. The plaintiffs would pay the repayments on the first mortgage until they moved into the new house. The defendants would pay the second mortgage repayments and continue to do so until it was fully paid.
The new house was completed in early 1996 and the plaintiffs moved into the new house. From that date the defendants paid monthly payments under both loans. It is alleged by the plaintiffs that from April 1996 they have paid for improvements to the property, in addition to the amount paid for constructions of the rear house from the money borrowed under the second loan. The alleged total cost is said to be $107,490.
Consequently, in the statement of claim filed in the Supreme Court action, the plaintiffs allege that the defendants hold their half share of the property on a constructive trust for the plaintiffs to the extent of the pleaded interests. A declaration to that effect is sought as against the defendants, as well as a declaration that the defendants are liable to the ANZ Bank for the balance of the loans. The plaintiffs also seek equitable compensation or alternatively damages, interest and costs. As against the first defendant, the plaintiffs seek an order for the sale of the first defendant's interest in the property.

Legislation and legal principles

Jurisdiction of Courts (Cross-Vesting) Act

In interpreting the relevant sections of the Act, it is useful to consider the preamble to see if it sheds any light on the legislative intention with respect to those provisions. In this case, the preamble to the Act contains a clear expression of legislative intention which, it is submitted by counsel for the plaintiffs, has direct application to the construction of s 4(6) of the Act.
The preambles starts with the concession that inconvenience and expense have occasionally been caused to litigants by jurisdictional limitations in the various courts of the country. Subparagraph (b) of the preamble states that, whilst the Act provides for the determination by one court of both Federal and State matters in appropriate cases, it is desirable to structure the system in such a way as to ensure as far as practicable that proceedings concerning matters which, apart from the Act, would be entirely or substantially within the jurisdiction of a particular court, are instituted and determined in that court. I accept the submission of counsel for the plaintiffs that, in approaching an application of this type, this statement of legislative intention should be firmly kept in mind.
Section 4(6) of the Act gives jurisdiction to the Family Court if proceedings are transferred to it from the Supreme Court. It states:
If a proceeding is transferred from the Supreme Court to the State Family Court, the State Family Court has, by virtue of this subsection, jurisdiction with respect to so many of the matters for determination in the proceeding as that court would not have apart from this subsection.
Section 5(4) of the Act states:
Where ‑
(a)a proceeding (in this subsection referred to as the relevant proceeding) is pending in the Supreme Court or the State Family Court (in this subsection referred to as the first court); and
(b)it appears to the first court that ‑
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the other of the courts referred to in paragraph (a) and it is more appropriate that the relevant proceeding be determined by that other court;
(ii)having regard to ‑
(A)whether, in the opinion of the first court, apart from this Act and any law of the Commonwealth or another State relating to cross‑vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in that other court; and
(B)the interests of justice,
it is more appropriate that the relevant proceeding be determined by that other court; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by that other court,
the first court shall transfer the relevant proceeding to that other court.
Because there is, in this case, a Supreme Court proceeding, there is compliance with s 5(4)(a). With respect to s 5(4)(b) of the Act, it is sufficient grounds to transfer jurisdiction if any one of s 5(4)(i), (ii) or (iii) are met to the satisfaction of the court. The requirements under s 5(4)(b)(i) are that, firstly, the relevant proceeding, the Supreme Court proceeding, arises out of, or is related to, the Family Court action and, secondly, it is more appropriate that the relevant proceeding be determined by the Family Court.
The requirement contained in s 5(4)(b)(ii) is that, having regard to the fact that the proceedings in the Supreme Court could not be determined in the Family Court without the operation of the cross‑vesting legislation, which clearly is the case, and the interests of justice, it is more appropriate that the proceedings be determined in the Family Court.
The requirement in s 5(4)(b)(iii) is that it is otherwise in the interests of justice that the relevant proceeding be determined by the Family Court.
Consequently, relevant to the circumstances of this case, before the Supreme Court action may be transferred to the Family Court, it is necessary to establish:
(i)that one action arises out of the other, which it does not in this case, or that the two actions are related and that it is more appropriate that the Supreme Court action be heard in the Family Court; or
(ii)that, having regard to the fact that the proceedings in the Supreme Court could not be determined in the Family Court without the operation of the cross-vesting legislation, which they could not, and in the interests of justice, it is more appropriate for the Supreme court action to be determined in the Family Court; or
(iii)that it is in the interests of justice that the relevant proceedings be determined by the Family Court.
I accept the submission of counsel for the first defendant that in each of the tests prescribes in s 5(4)(b)(i) to (b)(iii) it is necessary to establish that a transfer of jurisdiction is in the 'interests of justice' but, for the purposes of 5(4)(b)(i), the interests of justice are merely a component of the 'appropriateness' test, that for the purposes of s 5(4)(b)(ii) they are a requirement in addition to the 'appropriateness' test, whereas for the purposes of s 5(4)(b)(iii), they are the sole consideration.
The party seeking to have a proceeding transferred is the party which has the burden of persuading the court that the interests of justice require the transfer: Dawson v Baker (1994) 120 ACTR 11 (18) (Higgins J).
In Carey v Carey (Unreported, WASC, Library No 8307, 14 June 1990) (7) Franklyn J held that the definition of 'related to' in s 5(4) of the Act should be given a wider rather than a restrictive meaning: see also Seymour v Devine [2003] WASC 260 [9] (Pullin J). His Honour also noted that it is the 'proceedings' which must be 'related' and that requires an identification of the issues in both proceedings, although the conclusion that the proceedings are related is not necessarily established by the existence of specific issues common to both. Franklyn J adopted the observation of Powell J in Osmond v Osmond (1988) FLC 91‑953, 76‑893 when he said:
I am by no means persuaded that the fact that there may be a common question to be tried is sufficient to establish such a relationship as s 5(4)(b)(i) contemplates.
See also Seymour v Devine [9] (Pullin J).
As to whether it is more appropriate that the relevant proceedings be determined by the Family Court, in Carey v Carey [10] Franklyn J noted that what is relevant to ascertainment of the more appropriate court is the fact that the issues involved in the proceedings instituted in this court all fall within the jurisdiction of this court and none fall within the jurisdiction of the Family Court in the absence of a cross‑vesting order. Further, his Honour observed that the proceedings in the Supreme Court involved questions of law with which the Supreme Court is very familiar. However, Franklyn J conceded (Carey v Carey [9]) that familiarity with the matters for determination, of itself, was not a ground for holding the Supreme Court to be the more appropriate court because the wording of s 4 of the Act whereby the legislature expressly confers on the Family Court jurisdiction for such matters clearly accepts the equal competence of the Family Court to deal with such matters. Franklyn J further considered that the fact that the Supreme Court proceeding involved a determination of the rights of a third party in respect of property, some portion of which is said to be matrimonial property, was a factor which militated against the Family Court being the more appropriate court: Carey v Carey [10].
The alternative basis upon which a matter in the Supreme Court may be transferred to the Family Court, that is, where it is otherwise in the interests of justice, has also been described as a phrase which ought to be read widely: Bourke v State Bank of NSW (1988) 85 ALR 61, 77 (Wilcox J). In Dawson v Baker, Higgins J observed that the real issue is 'as to the range and relative weight of matters which are relevant to whether a transfer of proceedings is or is not in the interests of justice' (18). It has also been held that it is necessary to make a value judgment as to whether it is in the interests of justice that the transfer should be made: Dawson v Baker (14) (Miles CJ); Seymour v Devine [10] (Pullin J).
It is of particular interest that in Dawson v Baker, Higgins J (with whom Gallop J agreed) referred with approval to the conclusion of Gallop J in Commonwealth v Silverton Ltd (1991) 103 FLR 251 that the question of which was the 'more appropriate' forum included a consideration of the interests of justice: Dawson v Baker (18). Indeed, in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 476, Lord Goff held that 'the appropriate forum' is a forum 'in which the case may be tried more suitably for the interests of all the parties and the ends of justice' and identified a number of propositions as relevant to that conclusion. However, in Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 the majority of the High Court rejected the Spiliada Maritime Corporation approach of weighing the various advantages and disadvantages of the competing forums, criticising it as leading to uncertainty and offering no real guidance. However, in Dawson v Baker, which involved an application to transfer a matter from one State court to another State court, Higgins J noted (24), in the context of a transfer within a federation, that there is probably no more than a difference in emphasis between the test as propounded by Deane J in Oceanic Sun Line Special Shipping Co Inc and by Lord Goff in Spiliada Maritime Corporation. His Honour concluded (24) that the legislation seemed to him to embrace the less restrictive emphasis which may be deduced from Spiliada Maritime Corporation. Higgins J also observed that what is 'more appropriate' and what is 'in the interests of justice' will plainly vary from case to case and it is not possible to limit the range of matters which will be relevant, or the weight any such matter will be afforded in the circumstances of a particular case (22).
Counsel for the first defendant submitted that the concluding words of s 5(4) provide that a court which makes the findings prescribed in any one of the paragraphs to that subsection shall make the appropriate transfer of jurisdiction. The use of the word 'shall' is said in this context to indicate that the order will follow the finding: if the court is satisfied that a precondition for cross‑vesting has been met, then the decision to transfer jurisdiction will not be a matter of discretion, it will be a result prescribed by law. I agree with that submission. In my view, the mandatory nature of the decision to transfer sits comfortably with the value judgment involved in considering the preconditions.
A number of arguments were advanced by the defendants as to why the proceedings should not be transferred. Particular reliance was placed on the decision in Seymour v Devine where Pullin J dealt with an application under the Act in very similar circumstances to those arising in this case. The only factor which is also relevant in this application is that transferring the matter to the Family Court was said to result in the first defendants being entangled in the proceedings in the Family Court. Whilst Pullin J accepted that this was a relevant aspect to be taken into account, he did not consider that, standing alone, it was a reason to refuse to make an order under the Act [12].
There were three bases upon which Pullin J in Seymour v Devine determined that the Supreme Court proceeding should be transferred to the Family Court. First, he found that the proceedings were related to the Family Court proceedings and that it was more appropriate that the proceedings be determined in the Family Court. His Honour's reason for that conclusion was that the issues concerning the contribution of the plaintiff and the second defendant and the first defendants to the real estate were intertwined and should be dealt with in the one place [15]. I do not understand Pullin J to be stating that, wherever there is common property or joint ownership of real estate, that it will be more appropriate for the matter to be dealt with in the Family Court as part of the matrimonial proceedings. It would appear to be the fact that the issues with respect to property were 'intertwined', and no doubt the degree to which they were 'intertwined', which was the essential factor in that case.
The second basis referred to was that Pullin J considered that it was in the interests of justice that the proceedings be transferred [16]. The following statement explains why that conclusion was reached:
Alternatively, I consider it is in the interests of justice that the proceedings be transferred, and I say this because, first, the contributions which have been made by the parties; that is, by the plaintiff and the second defendant and by the first defendants in relation to this property; are all issues which have to be determined. It would be, in my view, not in the interests of justice to have some of those issues about contribution dealt with in the Family Court; that is, the contributions as between the plaintiff and the second defendant; and to have a separate consideration of those issues in this Court in relation to the title to the property. In a sense, the title to the property which has to be decided in the proceedings in this court depends upon an analysis of the contributions which have been made by the parties in the two sets of proceedings.
It can be seen that his Honour's concern was that there would be a duplication of evidence; that is, a separate consideration of the same issues in two different courts.
The third basis identified by Pullin J was that the matters before the courts were 'a true family dispute' involving the financial relations between the plaintiff, the second defendant and the parents of the second defendant over the period of the relationship between the plaintiff and the second defendant in relation to not only the real estate but also other property, such as a motor vehicle.

Family Law Act 1975 (Cth) and Family Law Rules 2004 (Cth)

There are also a provision of the Family Law Act 1975 (Cth) (FLA) which is relevant to a determination of the application before the court.
Section 79 relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them ‑ altering the interests of the party to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage ‑ altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i)either or both of the parties to the marriage; or
(ii)the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
...
(10)The following are entitled to become a party to proceedings in which an application is made for an order under this section:
(a)a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;
(b)any other person whose interests would be affected by the making of the order.
It can be seen that, under s 79(10) of the FLA a third party may apply for appropriate orders regarding their rights in relation to real property. In Carey v Carey [8], Franklyn J noted that an order under s 79 of the FLA can only be made in respect of 'the property of the parties to the marriage or either of them'. Franklyn J also noted, with the respect to the relevant issue in the Supreme Court proceeding, that the validity of the contract was a matter necessarily to be established before any order was made under either s 79 or s 85 of the FLA and that, in his opinion, that could be done with out any injustice to the plaintiff 'just as well in these proceedings by judges well conversant by experience with the law and equitable principles involved, and indeed such a preliminary determination might well be of considerable assistance to the Family Court when it comes to consider the matters before it': Carey v Carey [9].
The Family Law Rules 2004 (Cth) also deal with the involvement of third parties in proceedings in the Family Court. Rule 6.02 provides:
6.02Necessary parties
A person [who is not an applicant or a respondent, but] whose rights may be directly affected by an issue in a case and whose participation as a party is necessary for the court to determine all issues in dispute, must be included as a party.
It can be seen that there is an express requirement that the participation of the third party be necessary for the court to determine the issues in dispute. Therefore, where the third party’s entitlement to property jointly owned by the husband wife is first determined in the Supreme Court, it would not be ‘necessary’ for the third party to be joined in the Family Court proceedings.

The application

The first defendant relies on a number of issues in support of the submission that the Supreme Court action should be transferred to the Family Court. The primary proposition on which the first defendant relies is that any determination of the proportion of the property owned by each party requires consideration of contributions made during the marriage between the first and second defendants. This proposition was developed in oral submissions and put to this court on the basis that if the first defendant's interest in the property were determined in the Supreme Court action, she would be prejudiced because the Supreme Court determination would be made without consideration of issues that arise specifically between the first and second defendants. The issues identified by counsel were the future care and maintenance and welfare of the two children as well as the first defendant's non‑financial contribution to the property.
My immediate response to this proposition was that the power of the Family Court to determine the first defendant's right to property, based on principles set out in s 79(4), do not extend to property other than matrimonial property. This is because jurisdiction of the Family Court to exercise those powers arises only where the parties are a married or de facto couple. The power to join third parties does not, in my view, detract from that proposition. It is necessary to join third parties in order to accurately identify the matrimonial assets, to ensure that any orders made do not conflict with third party rights, and to bind third parties to orders made, such as the sale of property.
Consequently, the Family Court must first identify the matrimonial assets and where a portion of such assets are said to be owned by a third party, the rights of a third party to any asset such as real property would be determined in accordance with the common law and any relevant equitable principles.
Where, as in this case, an action has been brought in the Supreme Court to determine the proportion of the property held on constructive trust by the defendants for the plaintiffs, the same principles would apply to the determination of that issue in either the Supreme Court or the Family Court and, subject to any difference in view by the respective judicial officers on matters such as credibility, the result of the determination should be the same, whether the matter is heard in the Supreme Court of the Family Court.
If the matter were first determined in the Supreme Court, then the Family Court would be provided at the outset with a determination of the portion of the property which is an asset of the defendants and hence is a matrimonial asset. The Family Court can then apply its powers according to the evidence adduced in the Family Court to determine the respective entitlements of the defendants to the matrimonial asset. However, despite my observations, counsel for the first defendant maintained a contrary position.
Counsel for the plaintiffs submitted that the Family Court proceedings can relate only to the 'property of the parties to the marriage': FLA s 79(1). This is because that portion of the property which reflects the legal or equitable interest of the plaintiffs in the property cannot be 'property of the parties to the marriage'. Consequently, it was the submission of counsel for the plaintiffs that transferring the matter to the Family Court would not allow the Family Court to apply its powers under s 79 to alter the plaintiff's interest in the property by taking into account matters which are intended only to affect the interests of the parties to the marriage in matrimonial property.
It was not until counsel for the first defendant took the court to the specific provisions of the FLA that he ultimately conceded that his submission on this point was flawed. In my view, it is not only common sense, but the direct consequence of the clear wording of s 79(1) of the FLA, which justifies that concession. Section 79(1) clearly states that it is only in proceedings 'with respect to the property of the parties to a marriage or either of them' that the Family Court may make such orders as it considers appropriate altering 'the interests of the parties in the property'. In my opinion, it is obvious that the 'property' there being referred to is the 'property of the parties to a marriage'.
Another issue raised contained a number of propositions but was essentially that the relative contribution of the plaintiffs and defendants to the property is the material issue in both the Family Court proceedings and in the Supreme Court action. Not only could the plaintiffs apply under s 79(10) FLA to the Family Court to make an appropriate order regarding their rights in relation to real property, there is a further argument that, as r 6.02 of the Family Law Rules 2004 (Cth) states that any party other than the parties to the proceedings whose rights may be affected by an issue in a case must be included as a party to the case, it is clearly considered to be in the interests of justice that the rights in relation to the property are determined in the Family Court.
In my opinion, neither of these provisions make it more appropriate or in the interests of justice for the Supreme Court action to be transferred to the Family Court. It is not the case that, irrespective of this order, the plaintiffs will be joined to the Family Court proceedings under r 6.02. The Family Court is entitled to await the decision of the Supreme Court identifying the plaintiff's interest in the property, and hence also the defendants interest in the property, in which case that portion of the property which is matrimonial property is identified and there is no third party interest in any matrimonial property on which s 79(1) or r 6.02 can operate. In particular, as I have noted with respect to r 6.02, once the Supreme Court action is finalised, it will no longer be ‘necessary’ for the plaintiffs to be joined in the Family Court proceedings.
Another issue raised was that the matter is a 'true' family dispute involving financial relations between the defendants, not limited to this property but also to other property which was acquired over the period of the relationship. In making this submission reliance is placed on the statement to that effect of Pullin J in Seymour v Devine [17]. However, on the information available to me, it is not the case that the Supreme Court action relates to anything other than the property in Forrestdale. Neither has it been established that the dispute covers the entire period of the relationship between the first and second defendant, although, clearly, the facts set out above indicate that the relevant period is from 1994 onwards. For myself, on the information available to me, I do not consider that this factor is of particular relevance and would not, on its own, lead me to conclude that it would be more appropriate or in the interests of justice for the Supreme Court action to be transferred to the Family Court.
Yet another issue raised was that the defendants are incurring legal costs and delays in the Supreme Court which could be avoided if the matter were to be dealt with in the one proceeding. I see two problems with this submission. The first is that I have no way of knowing, and have not been advised of, the timing of matters in the Family Court so that I can make the necessary comparison to accept the submission. As Franklyn J observed in Carey v Carey:
There is nothing before me to suggest that the matter can be dealt with more expeditiously in the Family Court than in this Court which is already seized with jurisdiction [10].
I also share the view of Nicholson CJ in Re Chapman & Jansen (1990) 13 Fam LR 853, 861, that, in considering applications for transfer, courts should be careful to avoid drawing unfavourable comparisons with each other, whether as to delays, capacities or procedures.
Secondly, as I have noted above, if the issue of the plaintiffs' interest in the property is determined in the Supreme Court, that outcome can be adopted by the Family Court as determining the proportion of the property which is matrimonial property of the defendants. In that way, costs will be saved and there is a strong likelihood that delay will in fact be reduced.
The final issue is more a response to the plaintiffs' submission that to transfer the proceedings to the Family Court would have the result of entangling the plaintiffs in a proceeding which addressed numerous issues which simply do not involve them. As counsel for the plaintiffs submitted, the Family Court proceedings necessarily include issues in relation to the respective contributions, both financial and non‑financial, of the defendants to any property, including the property in Forrestdale, the defendants' superannuation policies and motor vehicles. It is further submitted that the Family Court proceedings also relate to the defendants' two 15‑year‑old children, including their education and the effect of the defendants' children on the defendants' requirements. Counsel for the first defendant relied on the observation of Pullin J in Seymour v Devine [123] that the court should not refuse an application of this type for this reason alone.
With respect to Pullin J, I do not share the view that entangling a third party in a Family Court proceeding involving a number of other issues cannot, of itself, be the basis for refusing an application under s 5(4) of the Act. In Carey v Carey [10] Franklyn J made the following comment on the issues:
I agree with the observations of Powell J in Osmond v Osmond (1988) FLC 91-953 (9) that when third parties are involved, (and for present purposes in particular Esanda as mortgagee) third parties should not be compelled to be involved in the matrimonial proceedings and to await the outcome of the various additional issues which fall for consideration in s 79 applications.
It is the case that in Carey v Carey the third party is a mortgagee, but I see no reason why the consequences of a third party being involved in a matrimonial proceeding addressing additional issues unrelated to the third party, should be visited upon natural persons but not upon a corporate entity which is often in a far better position to deal with the undesirable consequences of such involvement.
Further, I am told that at this time the Supreme Court action is ready to be entered for trial, save for the determination of this application. In my view, that circumstance reduces the prospects of establishing that it is more appropriate or in the interests of justice that the matter now be transferred to the Family Court and for that court to commence dealing with the issue.

Conclusion

I consider that, in the circumstances of this matter, it is a sufficient reason for refusing the application that the plaintiffs would be compelled to become involved in Family Court proceeding in which a number of matters of no relevance to them must be dealt with at a time when the only issue which is relevant to them is ready for trial in the Supreme Court which will also dispose of the relevant issue for the purposes of the Family Court.
Moreover, I am simply not persuaded by the submissions made on behalf of the first defendant that the proceedings are related or that it would be more appropriate or in the interests of justice for the Supreme Court action to be transferred to the Family Court.
For these reasons I would dismiss the application.