H v D
[2012] WASC 291
H -v- D [2012] WASC 291
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 291 | |
| Case No: | CIV:1250/2012 | 6 AUGUST 2012 | |
| Coram: | PRITCHARD J | 16/08/12 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | H D |
Catchwords: | Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(4) Whether a proceeding is a related proceeding Whether ordering a transfer would be in the interests of justice Turns on own facts |
Legislation: | Property Law Act 1964 (WA) Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) Family Court Act 1997 (WA) Interpretation Act 1984 (WA) Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) |
Case References: | Anderson v McPherson [2009] WASC 35 Armstrong v Armstrong [2004] WASC 121 Bankinvest AG v Seabrook (1988) 14 NSWLR 711 Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339 BHP Billiton Ltd v Schultz (2004) 221 CLR 400 Bray v Bray (1926) 38 CLR 542 Carey v Carey (Unreported, SCt of WA, Lib No. 8307, 14 June 1990 (Franklyn J)) Dawson v Baker (1994) 120 ACTR 11 Fell v John Fell [2007] WASC 157 H v P [2011] WASCA 78 Hoddell v Hoddell Pty Ltd [1999] WASC 156 Leithead v Leithead (1991) 109 FLR 177 Martin-Smith v Woodhead [1990] WAR 62 Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635 Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 Re Hamilton-Irvine and the Companies Act 1985 (1990) 94 ALR 428 Seymour v Devine and Ors [2003] WASC 260 Valceski v Valceski [2007] NSWSC 440 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
D
Defendant
Catchwords:
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5(4) - Whether a proceeding is a related proceeding - Whether ordering a transfer would be in the interests of justice - Turns on own facts
Legislation:
Property Law Act 1964 (WA)
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)
Family Court Act 1997 (WA)
Interpretation Act 1984 (WA)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Result:
Application granted
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Category: B
Representation:
Counsel:
Plaintiff : Mr W Vogt
Defendant : In person
Solicitors:
Plaintiff : Vogt Graham Lawyers
Defendant : In person
Case(s) referred to in judgment(s):
Anderson v McPherson [2009] WASC 35
Armstrong v Armstrong [2004] WASC 121
Bankinvest AG v Seabrook (1988) 14 NSWLR 711
Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd [2006] NSWSC 339
BHP Billiton Ltd v Schultz (2004) 221 CLR 400
Bray v Bray (1926) 38 CLR 542
Carey v Carey (Unreported, SCt of WA, Lib No. 8307, 14 June 1990 (Franklyn J))
Dawson v Baker (1994) 120 ACTR 11
Fell v John Fell [2007] WASC 157
H v P [2011] WASCA 78
Hoddell v Hoddell Pty Ltd [1999] WASC 156
Leithead v Leithead (1991) 109 FLR 177
Martin-Smith v Woodhead [1990] WAR 62
Nullagine Investments Pty Ltd v Western Australian Club Inc (1992) 177 CLR 635
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Re Hamilton-Irvine and the Companies Act 1985 (1990) 94 ALR 428
Seymour v Devine and Ors [2003] WASC 260
Valceski v Valceski [2007] NSWSC 440
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- PRITCHARD J:
Introduction
1 Mr H and Ms D are the registered proprietors, as joint tenants, of a property in Waikiki (the Property). Mr H commenced proceedings in this Court seeking orders pursuant to s 126 of the Property Law Act 1969 (WA)(the PL Act) that the Property be sold and the proceeds of the sale (after the discharge of any encumbrances, and the payment of expenses and charges relating to the sale) be paid into court pending the making of orders by the Court as to the division of those proceeds (the Supreme Court proceeding).
2 In March 2012, Ms D filed an Initiating Application in the Family Court of Western Australia, seeking that the Family Court make financial orders, regarding property and maintenance and child support orders (the Family Court proceeding). Ms D's case is that the Family Court has power to make orders in the exercise of its jurisdiction with respect to de facto relationships under Pt 5A of the Family Court Act 1997 (WA) (the FC Act) and, in particular, s 205Z of the FC Act.
3 Ms D has now applied to this Court for an order that the Supreme Court proceeding be transferred to the Family Court (the transfer application) pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) (the Cross-vesting Act). Mr H opposes the transfer application.
4 For the reasons set out below, the Supreme Court proceeding should be transferred to the Family Court, on two grounds. First, it appears to me that the Supreme Court proceeding is related to the Family Court proceeding and it is more appropriate that the Supreme Court proceeding be determined by the Family Court. Secondly, it is in the interests of justice that the Supreme Court proceeding be determined by the Family Court.
5 These reasons deal with the following matters:
1. Factual background;
2. The bases for the transfer application;
3. The matters the subject of the Supreme Court proceeding and the Family Court proceeding;
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- 4. Whether the Supreme Court proceeding is related to the Family Court proceeding;
5. Whether it is more appropriate, or in the interests of justice, that the Supreme Court proceeding be determined by the Family Court.
1. Factual background
6 Both Mr H and Ms D relied on affidavit evidence in relation to the transfer application, and the factual matters referred to in these reasons are set out in those affidavits.
7 Mr H and Ms D were married in 1995, separated in 1999 and divorced in 2004. While they were married, they had two children, and Ms D also has a child from another relationship (the children). All of the children are less than 18 years of age. The children live with Ms D at the Property. She is the primary carer for the children and is not employed.
8 Mr H and Ms D commenced a further relationship in May 2007. The precise nature of their further relationship is disputed, as I explain below. Shortly after commencing their further relationship, Mr H and Ms D purchased the Property together, and lived together with the children at the Property. The relationship broke down and they separated in March 2008, at which time Mr H moved out of the Property.
9 In July 2011, Mr H and Ms D resumed their relationship, or commenced a further relationship, and at that point Mr H commenced residing at the Property with Ms D and the children. The relationship broke down in approximately January 2012 and, in mid-January 2012, Mr H ceased living at the Property.
10 The Property is subject to a mortgage to the ANZ Bank (the Bank). For the most part, Mr H and Ms D have each paid half of the monthly mortgage repayments.
11 Since January 2012, Mr H has been unable to work for medical reasons. Although he has been continuing to make his share of the mortgage repayments since that time, Mr H has deposed that if he is not able to sell the Property within 'the next couple of months' he will have no funds to continue paying his share of the mortgage repayments. Counsel for Mr H submitted that Mr H commenced the Supreme Court proceeding in order to avoid the situation arising where he is unable to avoid defaulting on his share of the mortgage repayments in respect of the Property, with the result that the Bank forecloses on the loan.
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12 Ms D opposes the sale of the Property. She says that her relationship with Mr H was a de facto relationship, within the meaning of that term in s 13A of the Interpretation Act 1984 (WA), and that the Family Court should deal with the question of ownership and/or sale of the Property, in the course of determining property and maintenance issues between Ms D and Mr H.
2. The bases for the transfer application
13 Ms D's case is that the Supreme Court proceeding is related to the Family Court proceeding and that it is more appropriate that the Supreme Court proceeding be determined by the Family Court. In addition, Ms D submits that this is a case where it is in the interests of justice that the matter the subject of the Supreme Court proceeding be determined by the Family Court.
14 In making the transfer application, Ms D thus relied on s 5(4)(b)(i) and s 5(4)(b)(iii) of the Cross-vesting Act. It is convenient to set out those provisions in full:
(4) 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;
… or
(iii) it is otherwise in the interests of justice that the relevant proceeding be determined by that other court,
15 There are some well-established principles relevant to applications to transfer proceedings from one court to another under the national legislative scheme of which the Cross-vesting Act forms part.
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16 First, if it appears to the court to which the application is made that the criteria set out in the legislation for a transfer are established (such as that it is in the interests of justice that the proceedings be determined by another court), then the first court is required to exercise the power of transfer. No exercise of discretion arises: BHP Billiton Ltd v Schultz(2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh & Heydon JJ), 434 [62] (Gummow J, Hayne J agreeing (468) [177]), 481 [222] (Callinan J).
17 Secondly, no particular significance attaches to the plaintiff's choice of forum and a party applying for the transfer of proceedings to another court does not bear any burden of showing that the first court is a clearly inappropriate forum for the resolution of the litigation. It is both necessary and sufficient that, in the interests of justice, the second court is more appropriate to determine the proceedings: BHP Billiton Ltd v Schultz421 [14] (Gleeson CJ, McHugh & Heydon JJ). A court dealing with a transfer application therefore applies the legislation without any kind of presumption as to where the balance of the interests of justice might lie: BHP Billiton Ltd v Schultz421 - 422 [14] - [16], 425 [25] (Gleeson CJ, McHugh & Heydon JJ) 436 [69], 437 [72], 439 [77] (Gummow J, Hayne J agreeing [177]), 465 - 466 [167] - [169] (Kirby J).
18 Thirdly, the interests of justice are not the same as the interests of one party, and the Cross-vesting Act should not be applied in a way that favours the rights of one party to litigation over another: BHP Billiton Ltd v Schultz421 [15] (Gleeson CJ, McHugh & Heydon JJ), 466 [169] (Kirby J), 481 [222], 492 [258] (Callinan J). The interests of justice necessarily include justice to all parties to the proceedings, and it may also be necessary to take into account interests wider than those of the parties to the proceedings. Nevertheless, the interests of the respective parties, which might in some respects be common and in other respects conflicting, will arise for consideration. The justice referred to in s 5 of the Cross-vesting Act is not divorced from practical reality: BHP Billiton Ltd v Schultz421 [15] (Gleeson CJ, McHugh & Heydon JJ).
19 Fourthly, whether it is more appropriate, or in the interests of justice, that one court rather than another determine a particular matter will require an analysis of all of the circumstances of the particular case. The decision calls for a 'nuts and bolts' management decision as to which court is the more appropriate to hear and determine the substantive dispute: BHP Billiton Ltd v Schultz[420 - 421 [13] (Gleeson CJ, McHugh & Heydon JJ, citing Bankinvest AG v Seabrook(1988) 14 NSWLR 711, 713 - 714 (Street CJ)). The sorts of factors which will be relevant to determining which court is the more appropriate to determine the
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- proceedings and where the interests of justice will lie, include questions of cost, efficiency, expense and the specialist nature of one or other court in relation to the subject of the litigation: BHP Billiton Ltd v Schultz[421 - 424 [15] - [21] (Gleeson CJ, McHugh & Heydon JJ).
20 Finally, whether the transfer of proceedings is in the interests of justice is a value judgment to be made having regard to the circumstances of the case: Seymour v Devine and Ors[2003] WASC 260 [10] (Pullin J, citing Dawson v Baker(1994) 120 ACTR 11 , 14 and Hoddell v Hoddell Pty Ltd[1999] WASC 156 [17] (Murray J)).
3. The matters the subject of the Supreme Court proceeding and the Family Court proceeding
21 In order to assess whether the criteria in s 5(4)(b)(i) or (iii) are made out in this case, it is necessary to start by considering the matters which are the subject of the Supreme Court proceeding and the Family Court proceeding.
(a) The Supreme Court proceeding
22 The Supreme Court proceeding is brought pursuant to s 126(1) of the PL Act, which provides:
Where in an action for partition the party or parties interested, individually or collectively, to the extent of a half share or upwards in the land to which the action relates request the Court to direct a sale of the land and a distribution of the proceeds, instead of a division of the land between or among the parties interested, the Court shall, unless it sees good reason to the contrary, direct a sale accordingly.
23 The purpose of s 126(1) (and of the legislation which preceded it) is to provide a remedy for a joint tenant or tenant in common, who, in the event of a dispute with another co-tenant, may otherwise be without an adequate remedy to protect his share or interest in the land: Nullagine Investments Pty Ltd v Western Australian Club Inc(1992) 177 CLR 635, 650 (Brennan J), 656 - 657 (Deane, Dawson & Gaudron JJ).
24 Once the requirements of s 126(1) are established, the court is required to order the sale of a property unless there is good reason not to do so, in which case partition will be ordered instead. The only discretion is to refuse sale and to order partition 'for good reason': Nullagine Investments Pty Ltd v Western Australian Club Inc (666) (Toohey J); Bray v Bray(1926) 38 CLR 542, 545 (Knox CJ), 546 (Higgins J); Martin-Smith v Woodhead[1990] WAR 62, 69 - 70 (Kennedy J).
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25 Accordingly, the Supreme Court proceeding involves issues concerning whether Mr H has the requisite interest in the Property to entitle him to apply for an order for sale or partition, whether an order should be made for the sale of the Property or whether partition should be ordered instead, and (if a sale is ordered) what orders should be made to effect the sale, and in relation to the proceeds of any sale of the Property.
(b) The Family Court proceeding
26 In the Family Court proceeding, Ms D has applied to the Family Court for financial orders (relating to property and maintenance) and child support orders. In her application to the Family Court, the 'final orders' sought by Ms D include an order that Mr H transfer his interest in the Property to her and in the alternative, if the Family Court determines that the Property be sold, orders in relation to the sale and the division of any proceeds of the sale of the Property.
27 The orders which may be made by the Family Court in relation to financial matters between de facto partners include a declaration as to the title or rights of a de facto partner in respect of property and consequential orders giving effect to such a declaration, including orders as to sale or partition and interim or permanent orders as to possession: s 205ZA(1) and (2) of the FC Act.
28 In proceedings with respect to the property of de facto partners, the Family Court may make such orders as it considers appropriate to alter the interests of the parties in the property, including an order for a settlement of property in substitution for any interest in the property, and an order requiring either or both of the partners to make, for the benefit of either or both of the partners or a child of the de facto relationship, such settlement or transfer of property as the court determines: s 205ZG(1) of the FC Act. Before it may make such an order, the Family Court must be satisfied that in all the circumstances it is just and equitable to make the order: s 205ZG(3) of the FC Act. In deciding what order to make, the Family Court must take into account a range of matters, including the financial and non-financial contributions of a de facto partner to the relationship or a child of the de facto relationship to the acquisition, conservation or improvement of any of the property of the de facto partners, the contribution made by a de facto partner to the welfare of the family constituted by the de facto partners and any children of the de facto partners, including any contribution made in the capacity of homemaker or parent, and the effect of other orders made under the FC Act affecting a
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- de facto partner or child of the de facto relationship: s 205ZG(4) of the FC Act.
29 The Family Court also has a wide range of general powers including power to make an order that a specified transfer or settlement of property be made by way of maintenance for a de facto partner, and power to make an order that any necessary deed or instrument be executed or documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively: s 205ZI(1) of the FC Act.
4. Whether the Supreme Court proceeding is related to the Family Court proceeding
30 Counsel for Mr H submitted that it could not be said that the Supreme Court proceeding was related to the Family Court proceeding. He submitted that just because the Supreme Court and Family Court proceedings involved the same parties and the same subject matter, did not mean that the Supreme Court proceeding was related to the Family Court proceeding. Counsel also submitted that there was no direct relationship between the two sets of proceedings.
31 The authorities do not suggest that a direct relationship between the two sets of proceedings is required. The expression 'related to' should be given a wide, rather than a restricted, meaning: Seymour v Devine and Ors[9] (Pullin J, citing Carey v Carey(Unreported, SCt of WA, Lib No. 8307, 14 June 1990 (Franklyn J)).
32 The term 'related' means 'associated' or 'connected' and in order to be 'related' there needs to be some nexus or association between the two sets of proceedings in order that the conclusion can be drawn that they are related: Fell v John Fell[2007] WASC 157 [12] (Beech J); Armstrong v Armstrong[2004] WASC 121 [52] (Barker J); Re Hamilton-Irvine and the Companies Act 1985(1990) 94 ALR 428, 432 - 433 (Beaumont J); Leithead v Leithead(1991) 109 FLR 177 and Hoddell v Hoddell Pty Ltd[1999] WASC 156 [21] (Murray J).
33 In my view, there is a sufficient nexus or connection between the Supreme Court proceeding and the Family Court proceeding such that it can be said that the Supreme Court proceeding is related to the Family Court proceeding. I base that conclusion on two factors. First, the same parties and subject matter are involved in each proceeding. Secondly, there is a significant overlap between the issues the subject of each proceeding, namely whether, and the circumstances in which, the Property
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- should be sold, and if it is sold, how any proceeds of the sale should be divided between the parties.
34 Counsel for Mr H also submitted that the Supreme Court proceeding was not related to the Family Court proceeding because in the Supreme Court proceeding there was a third party (the Bank) with an interest in the Property. However, counsel properly conceded that the Bank had no role to play in the litigation. It is well established that mortgagees are not necessary, or, indeed, appropriate, parties to applications under s 126(1), although the position of mortgagees must be considered in connection with the form of any order which may be made: Martin-Smith v Woodhead[1990] WAR 62, 66 (Kennedy J). In my view, the fact that the Bank has an interest in the Property does not prevent the conclusion that the Supreme Court proceeding is related to the Family Court proceeding. The fact that the Property is subject to a mortgage to the Bank is a matter which would be relevant in each proceeding to the extent (for example) that orders might be made requiring the sale of the Property, and the discharge of any encumbrances prior to the division of the proceeds of sale between the parties.
35 I turn, then, to consider whether it is more appropriate, or in the interests of justice, that the Supreme Court proceeding be determined by the Family Court.
5. Whether it is more appropriate, or in the interests of justice, that the Supreme Court proceeding be determined by the Family Court
36 Counsel for Mr H submitted that because the Supreme Court proceeding was not (on his submission) related to the Family Court proceeding, it was not necessary to consider whether it was more appropriate that the Supreme Court action be determined by the Family Court. Counsel for Mr H did, however, address the interests of justice, and submitted that it was not in the interests of justice that the Supreme Court proceeding be transferred to, and determined by, the Family Court.
37 Whether it is more appropriate that the proceedings be determined by another court, and whether it is in the interests of justice that the proceedings be determined by that other court, are closely aligned concepts: Fell v John Fell[2007] WASC 157 [12] (Beech J) and BHP Billiton Ltd v Schultz(2004) 221 CLR 400, 421 [14] (Gleeson CJ, McHugh & Heydon JJ). Accordingly, I have taken into account the submissions made on Mr H's behalf both in relation to the interests of justice and in relation to the question of whether it is more appropriate that the Supreme Court proceeding be determined by the Family Court.
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38 The parties' submissions as to whether it was more appropriate, or in the interests of justice, that the Supreme Court proceeding be determined by the Family Court focused on two main themes:
(a) Ms D and Mr H submitted that the Supreme Court and the Family Court respectively did not have jurisdiction to deal with the proceedings before them; and
(b) The parties each referred to a number of more general considerations which they submitted were relevant to determining whether it was more appropriate, or in the interests of justice, that the Supreme Court proceeding be determined by the Family Court.
(a) The jurisdictional arguments
39 Ms D submitted that Mr H was prohibited from commencing the Supreme Court proceeding by virtue of s 205V of the FC Act, which provides:
A de facto partner who is, or was, eligible to apply for an order with respect to property under Division 2 [of Pt 5A of the FC Act] may not apply to the Supreme Court in its equitable jurisdiction for relief in respect of that property.
40 As the relief sought in the Supreme Court proceeding relies on the Court's power under s 126(1) of the PL Act, and does not rely on the equitable jurisdiction of the Supreme Court, s 205V does not appear to have any application in this case.
41 Ms D submitted that the Family Court has jurisdiction to deal with the Family Court proceeding pursuant to s 205Z(1)(b) and (c) of the FC Act. That section provides:
(1) A court may make an order in relation to a de facto relationship only if satisfied -
(a) there has been a de facto relationship between the partners for at least 2 years;
(b) there is a child of the de facto relationship who has not yet attained the age of 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or
(c) the de facto partner who applies for the order made substantial contributions of a kind mentioned in
- section 205ZG(4)(a), (b) or (c) and failure to make the order would result in serious injustice to the partner.
42 Counsel for Mr H submitted that the Family Court did not have jurisdiction to deal with the Family Court proceeding because, on Mr H's evidence, there was no de facto relationship between him and Ms D and, in any event, it was common ground that the relationship had not endured for at least two years. Counsel for Mr H also submitted that the children were not children of the de facto relationship, but were, instead, children of the marriage between Mr H and Ms D. Finally, counsel for Mr H submitted that there was no evidence that Ms D had made substantial contributions to the acquisition, conservation or improvement of the Property of the kind mentioned in s 205ZG(4)(a), (b) or (c), so that the requirement under s 205Z(1)(c) of the FC Act was not satisfied.
43 In the context of applications brought under s 5(1)(b)(ii) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) (which is in virtually identical terms to s 5(1) of the Cross-vesting Act), the Supreme Court hearing a transfer application is required to determine whether it is more appropriate that a proceeding brought in the Supreme Court be determined by the Federal or Family Court. In making that determination, the court is required (amongst other things) to have regard to whether the relevant proceeding would have been capable of being instituted in the Federal Court or the Family Court of Australia, and to the interests of justice. In that context, it has been accepted that it may well not be more appropriate, or in the interests of justice, that the proceeding be determined by the Federal Court or Family Court of Australia if it is seriously arguable that the transferee court does not have jurisdiction to deal with the proceeding: Valceski v Valceski[2007] NSWSC 440 [21] (Brereton J); Benlair Pty Ltd v Terrigal Grosvenor Lodge Pty Ltd[2006] NSWSC 339 [57] – [58]. See also the discussion in Valceski [22] of the difficulties that can arise when jurisdiction is in question by reference to the history of Paris King Investments Pty Ltd v Rayhill[2006] NSWSC 578.
44 Counsel for Mr H submitted that the same principle should apply in relation to the transfer application in this case, even though the transfer application in this case is brought pursuant to s 5(4) of the Cross-vesting Act.
45 I have some difficulty accepting that the principle referred to in Valceskiis applicable, or at least that it is applicable without some qualification, in cases where a transfer is sought under s 5(4) of the
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- Cross-vesting Act, for two reasons. First, s 5(4) of the Cross-vesting Act does not require the court to form any opinion about whether the Family Court would have jurisdiction to deal with the matter the subject of the Supreme Court proceeding. Secondly, at least in the case of an application under s 5(4)(b)(i) of the Cross-vesting Act, the jurisdiction of the transferee court (eg the Family Court) will already have been invoked through the commencement of proceedings in that court, prior to the making of the application to transfer. At the least, it would be highly undesirable for this Court, in the context of an application under s 5(4) of the Cross-vesting Act, to express a view as to whether the Family Court had jurisdiction to deal with a proceeding which has been commenced in that court. If it were asserted that some doubt existed as to the jurisdiction of the transferee court, an alternative course would be to defer consideration of an application to transfer under the Cross-vesting Act until such time as an application challenging the jurisdiction of the transferee court had been determined by that court.
46 In any event, it is not necessary in this case to decide whether the principle referred to in Valceksiis applicable in relation to an application under s 5(4) of the Cross-vesting Act because, on the basis of the evidence before this Court, no determination can be made as to whether it is 'seriously arguable' that the Family Court does not have jurisdiction to deal with the Family Court proceeding. That is so for three reasons.
47 First, a very wide range of factors arises for consideration in relation to the question whether two people are in a de facto relationship (see s 13A(1) and (2) of the Interpretation Act 1984 (WA)), and it can often be difficult to determine whether or not a de facto relationship existed: see H v P[2011] WASCA 78 [58] (Murphy JA, Pullin & Buss JJA agreeing). Although some of the matters in the affidavit evidence relied upon by the parties in relation to the transfer application are consistent with the existence of a de facto relationship, the affidavit evidence does not fully address the factors relevant to whether Mr H and Ms D were in a de facto relationship. In any event, given the parties' dispute about the existence of a de facto relationship, the evidence as to the existence of such a relationship would need to be tested through cross-examination at a trial, and the whole of the evidence considered, before any conclusion could be reached as to whether the parties' relationship in fact fell within the definition of a de facto relationship.
48 Secondly, counsel for Mr H submitted that a 'child of the de facto relationship' (as that phrase is used in s 205Z(1)(b) of the FC Act) had to be conceived during the course of the de facto relationship, whereas the
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- children in this case were children of the marriage. However, that submission is at odds with s 205T of FC Act which provides that a 'child' (of a de facto relationship) includes a biological child of both of the de facto partners born before the commencement of the de facto relationship, and includes a child of a de facto relationship that has ended. In addition, counsel for Mr H acknowledged that he was not aware of any authority to support the construction for which he contended, and accepted that the meaning of the phrase was yet to be determined by the Family Court.
49 Thirdly, the evidence before this Court in relation to the transfer application does not permit an assessment to be made (for the purpose of s 205Z(1)(c) of the FC Act) as to whether Ms D made a substantial contribution of the kind referred to in s 205ZG(4). I note that counsel for Mr H was also unaware of any authority in relation to the question of what constitutes a 'substantial contribution' of the kind referred to in s 205ZG(4) of the FC Act.
50 For completeness, I note that Ms D submitted that she intended to apply to the Family Court for an extension of time in which to alter or change a property settlement agreement she had reached with Mr H when their marriage ended, and that this would be an alternative basis for the jurisdiction of the Family Court to make orders in respect of the Property. There was no evidence in relation to this foreshadowed application, and counsel for Mr H had not been given any notice of Ms D's intention to rely on this alternative ground for the jurisdiction of the Family Court. In these circumstances, I have not taken into account this alternative argument in relation to the jurisdiction of the Family Court.
(b) The more appropriate court and the interests of justice: considerations
51 In my view, it is more appropriate that the Supreme Court proceeding be determined by the Family Court and the interests of justice would clearly be served if that occurred. I have reached this conclusion having regard to a number of factors. First, the dispute between Mr H and Ms D is, in essence, a dispute arising from the breakdown of a domestic relationship. The Family Court is the court with the specialist expertise and with a full range of powers to deal fully with the financial ramifications of the breakdown of a domestic relationship for the parties to that relationship.
52 Secondly, as I have already observed, there is an overlap in the parties and the subject matter in both proceedings, and there will clearly
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- be a considerable overlap between the issues considered in the Supreme Court proceeding and in the Family Court proceeding. The evidence and submissions in the Supreme Court proceeding (pertaining, for example, to the parties' present interest in the Property, and as to the division of any proceeds of the sale of the Property) would be required to be adduced and made in the determination of the parties' interest in the Property and how the Property should be dealt with, for the purpose of making financial orders in the Family Court.
53 Thirdly, as I have noted above, the Family Court has ample powers to require the sale of the Property if it considers that that course is just and equitable, and to effect that sale.
54 Fourthly, of considerable significance to the question of the interests of justice in this case is the fact that transferring the Supreme Court proceeding to the Family Court will permit the interests of the children – so far as they may be relevant to a decision as to whether the Property should be sold (particularly as the Property is the children's place of residence), and if so, how the interests of the children may bear upon the division of any proceeds of the sale of the Property – to be taken into account.
55 Fifthly, there was nothing in the evidence to support the conclusion that a transfer of the Supreme Court proceeding to the Family Court would involve greater costs or expense to the parties, or a less efficient resolution of their dispute, than if the Supreme Court proceeding were not transferred. Furthermore (and contrary to the submission by counsel for Mr H) the transfer of the Supreme Court proceeding to the Family Court would avoid a multiplicity of proceedings. If the Supreme Court proceeding were to be dealt with in this Court, and if the Property were sold and the parties divided the proceeds of that sale, that would not bring an end to the Family Court proceeding. There does not appear to be any reason why the Family Court proceeding would not continue, for the purpose of making financial orders having regard to the financial position of the parties in view of the sale of the Property. If the Supreme Court proceeding is transferred to the Family Court, however, that court will be able to deal with all of the issues relating to the parties' financial affairs, including whether the Property should be sold, and with what division of the proceeds of that sale.
56 A number of other factors were advanced on Mr H's behalf in support of his contention that it would not be in the interests of justice that
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- the Supreme Court proceeding be transferred to, and determined by, the Family Court.
57 First, it was submitted that the decision in Anderson v McPherson[2009] WASC 35 should be applied in this case. The decision in Andersoninvolved an application of the Cross-vesting Act to facts quite different from those in the present case. The interests of justice require an assessment of the particular facts of each case, and the result in one case cannot be determinative of another, factually different, case.
58 Secondly, Mr H deposed that costs in the Supreme Court ordinarily follow the event, whereas the ordinary rule in the Family Court is that each party should bear its own costs, although there was a limited discretion to award costs. The implication appeared to be that (assuming he was successful) Mr H would be able to recover his legal costs in the Supreme Court proceeding from Ms D. This submission was directed purely to the best interests of Mr H, rather than to a matter relevant to the interests of both parties.
59 Thirdly, Mr H deposed to his belief that there would be an advantage to the parties if the Supreme Court proceeding continued to be dealt with by this Court, by virtue of the system of pleadings in the Supreme Court. The nature of this advantage was not explained in Mr H's affidavits. However, counsel for Mr H submitted that the requirement for pleadings in the Supreme Court proceeding would enable the issues in dispute between the parties to be confined, and that this would assist the parties. This submission, in essence, was a submission that the issues in dispute in the Supreme Court proceeding would be confined as a result of the pleadings. However, as will be apparent from the authorities to which I have referred above, the issues in the Supreme Court proceeding will necessarily be very confined, simply by virtue of the nature of the application under s 126(1) of the PL Act itself. Those considerations will not be different if the matter is dealt with by the Family Court.
60 Fourthly, counsel for Mr H submitted that Ms D had not provided any evidence that she could service the mortgage over the Property by herself, and that this was a sufficient reason for refusing the transfer application. In my view, this consideration is of no relevance to the interests of justice and I do not take it into account.
61 Finally, Mr H expressed concern about the expedition with which the proceedings would be able to be dealt with in the Family Court if the Supreme Court proceeding were transferred, and the implications this
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- might have for his ability to continue making mortgage repayments. Mr H deposed that if he were unable to sell the Property 'in the next couple of months' he would not be able to continue to make mortgage repayments. He made the same statement in an affidavit sworn on 21 March 2012, and in an affidavit sworn on 20 July 2012. Beyond this general statement, there was no evidence as to precisely how long Mr H would be in a position to continue to make repayments, and little evidence as to Mr H's financial position more generally (apart from his present unemployment). Furthermore, although Mr H deposed that a trial in the Family Court was unlikely to be listed before September or October 2013, there was no evidence as to whether an earlier trial date might be obtained in the event of urgency. There was, however, evidence from Ms D, that the Family Court proceeding has been listed for a conciliation conference in September 2012, so that some discussion of the way the matter should be dealt with by the court may be possible at that time. Ultimately, the lack of evidence in relation to the expedition (or possible lack thereof) in resolving the Supreme Court proceeding in the Family Court means that I am unable to place any weight on this consideration.
Conclusion
62 As it appears to me that the Supreme Court proceeding is related to the Family Court proceeding, and that it is more appropriate that the Supreme Court proceeding be determined by the Family Court, and that it is in the interests of justice that the Supreme Court proceeding be transferred to the Family Court, the Supreme Court proceeding should be transferred to the Family Court, and I will make an order to that effect.
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