Johnston v Becker

[1999] NSWSC 310

CITATION:	JOHNSTON v BECKER [1999] NSWSC 310
CURRENT JURISDICTION:	EQUITY
FILE NUMBER(S):	1442/99
HEARING DATE(S):	6 April 1999
JUDGMENT DATE:	9 April 1999
PARTIES :	PHILIP JAMES JOHNSTON v LEA NOELINE BECKER
JUDGMENT OF:	Bryson J at 1

COUNSEL :	PLAINTIFF: Ms E COHEN DEFENDANT: Ms D FITZSIMONS
SOLICITORS:	PLAINTIFF: NEIL J O'CONNOR & ASSOC. DEFENDANT: BRIGGS PAUL DOWDING
CATCHWORDS:	PRACTICE & PROCEDURE; Jurisdiction of courts; cross-vesting legislation; application to transfer proceedings to Family Court; proceedings related; interests of justice; Jurisdiction of Courts (Cross-Vesting) Act 1987 ss5(1), 5 (1) (b) (i), 5 (1) (b) (ii) (A), 5 (1) (b) (ii) (B); transfer to Family Court of De Facto Relationships claim was refused.
ACTS CITED:	Child Support (Assessment) Act 1989 (Cth), s 117. De Facto Relationships Act 1984 (NSW), s 27. Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW), subs 5 (1), subs 5 (1) (b) (i), subs 5 (1) (b) (ii) (A), subs (5) (1) (b) (ii) (B).
CASES CITED:	Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711. Murrant v Singleton (unreported 15 July 1998). O’Mara v Perry (unreported 26 March 1998).
DECISION:	SEE PARAGRAPH 9

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J

FRIDAY 9 APRIL 1999

1442/99 PHILIP JAMES JOHNSTON v LEA NOELINE BECKER

JUDGMENT

1 HIS HONOUR : The plaintiff commenced these proceedings by Statement of Claim on 19 February 1999 and claimed orders adjusting the property interests of the parties under the De Facto Relationships Act 1984 (NSW) in respect of a relationship which existed from about April 1994 until July 1998. The plaintiff claims by way of adjustment orders that the house property which he owns at Wahroonga be transferred to the defendant, alternatively be sold and the proceeds paid to the defendant, and an order that the motor vehicle which the defendant now drives be transferred to the defendant. The defendant in her Defence and Cross-claim filed on 29 March 1999 admits the relationship and alleges that there was an earlier relationship from November 1988 to December 1992, alleges contributions by her, alleges that the Cross-Defendant owns substantial assets unknown to her and makes further claims relating to adjustment including an order that the Cross-defendant pay her $500,000.00, and also maintenance of $500.00 per week under s 27 of the De Facto Relationships Act 1984 until 20 October 2007. She also claims an order under s 117 of the Child Support (Assessment) Act 1989 (Cth) relating to child support for the two children of the parties who were born on 2 October 1990 and 20 October 1995.
2 The plaintiff made an Application, also filed on 19 February 1999, to the Family Court of Australia at Sydney for orders relating to the parenting of the children, with detailed orders dealing with contact and defining dates and times, at week-ends, during the school week, at holiday times and telephone contact. The defendant filed a Response in the Family Court dated 26 March 1999 which claims orders relating to parenting which differ in detail from the orders claimed by the plaintiff.
3 The defendant now applies by Notice of Motion filed on 29 March 1999 for a Cross-Vesting Order under subs 5 (1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW) transferring the proceedings to the Family Court of Australia.
4 Neither party has asked the Family Court of Australia to make orders dealing with the maintenance of their children. Questions of maintenance are ordinarily dealt with administratively and come before the courts only on appeal or review of administrative decisions under the Child Support (Assessment) Act 1989 (Cth). However the defendant has in her Cross-claim made a claim under s 117 of that Act, and contends that there are special circumstances for which that section provides so that the Court should make a maintenance order. This application in her Cross-claim is the only embodiment of any controversy relating to maintenance of the children; there have been no administrative proceedings or other proceedings under Child Support legislation. Were it not for this claim in her Cross-claim there would be no dispute about maintenance. The defendant’s responsibility for the care of the children is relevant to her claim under s 27 of the De Facto Relationships Act, but that claim could not lead to a maintenance order in respect of the children being made under State legislation. An administrative authority or a court which decided a dispute about the maintenance of the children could not, unless legislation limited the subject matters which could be considered, come to a decision without knowing what property and financial resources each party has available. The same must be said of the Claim and Cross-claim under the De Facto Relationships Act.
5 The approach which I should take is indicated by judgments, principally that of Rogers AJA, in Bankinvest AG v Seabrook & Ors (1988) 14 NSWLR 711. Although some passages in Street CJ’s observations could be thought to make a different formulation of the approach to be taken they concluded by saying that the reasons prepared by Rogers AJA are definitive of the law and practice on this topic in New South Wales. The central consideration is which court is the more appropriate forum for the case: “What court is more appropriate and what court is pointed to by the interests of justice.” (Bankinvest at 728). I have also been referred to some first instance decisions; the decision of Mr Justice Einstein in Murrant v Singleton (unreported 15 July 1998) and my own decision in O’Mara v Perry (unreported 26 March 1998). There have been many occasions when cross-vesting applications have been considered at first instance; they are dominated by their facts and by the authoritative exposition in the Bankinvest case, and expressions in those cases do not carry my consideration any further. In my view, the parties’ controversy as it now stands has a more real and substantial connexion with the Supreme Court of New South Wales than with any other court; this Court is the appropriate forum as the Court upon which jurisdiction was conferred by the Parliament of New South Wales when it created remedies in respect of de facto relationships. The parenting aspects of the controversy as it is now constituted appear to me to be no more than ancillary to the dispute between the parties relating to property. The dispute relating to parenting does not (according to the claims which have been made up to the present time before the Family Court) involve any need for detailed consideration of the assets, financial resources, income or other means of parties. In terms of subs 5 (1) (b) (i) the proceedings are related, but in my view they are not closely related. The matters on which the parties are in difference relating to parenting appear to me to be of relatively small importance, such as should be and well could be resolved by conciliation.
6 In my opinion the appropriate forum for the defendant’s Cross-claim for maintenance for herself, under s 27 of the De Facto Relationships Act, is the court upon which jurisdiction in de facto relationships litigation was conferred by legislation. The claim for a remedy in special circumstances under s 117 of the Child Support (Assessment) Act 1989 is at present no more than a minor part of the controversy relating to parenting; its part is no more than that the defendant has invoked it in her Cross-claim, as there has not been any exchange of positions between the parties, no claim to provide in some way for the maintenance of the infants followed by a failure to meet it, and little of substance in child maintenance as part of a controversy. The position may develop differently, but I have to decide the application now. When the question of child support is developed, it may well be resolved in a satisfactory way by administrative procedures; it remains to emerge whether this will happen. In terms of subs 5 (1) (b) (ii) (A), the claim under s 117 would but for Cross-vesting legislation have been incapable of being instituted in the Supreme Court. In terms of subs (5) (1) (b) (ii) (B) the matters for determination are, to a limited extent only, matters arising under Commonwealth law and not otherwise within the jurisdiction of the Supreme Court.
7 It is an important consideration that the number of law-suits between the parties and the number of places in which issues relating to their means are examined by courts should be minimised; one law-suit is better than two. However when I weigh this factor with other matters under my consideration it does not outweigh other factors. The litigation in the Family Court relating to parenting, if it ever comes to hearing, is likely to be very modest in scale.
8 In my judgment the interests of justice do not support a Cross-Vesting Order.
9 The Notice of Motion of 29 March 1999 is dismissed with costs.

I hereby certify that paragraphs 1-9 are the reasons for judgment of the Honourable Justice John Bryson.

Dated 9 April 1999. (H D LEWIS)

Associate.

Last Modified: 04/11/1999