SEIDLER & CERNY (No.2)

[2015] FCCA 1998

FEDERAL CIRCUIT COURT OF AUSTRALIA

SEIDLER & CERNY (No.2) [2015] FCCA 1998

Catchwords:
FAMILY LAW – Property – Interim property adjustment – competing claims – effort to refinance – read un-redacted material produced under subpoena – objection by third party – multiple interlocutory applications – serious allegations – strategy to prolong proceedings – impact of house move on mother and child – mother granted transfer of property – transfer of matter to Family Court of Australia.

Legislation:
Federal Circuit Court of Australia Act 1999 (Cth), s.39
Family Law Act 1975 (Cth), ss.79, 80, 106A, 114

Cases cited:
Davis & Davis (1976) 1 FamLR 11,522
O’Dea & O’Dea (1980) 6 FamLR 675
Davis & Davis (1982) 8 FamLR 975
Marvel & Marvel(No.2) (2010) FamCAFC 101
Seidler & Cerny [2015] FCCA 1032
Strahan & Strahan (2009) 42 FamLR 203
Zschokke & Zschokke (1996) 20 FamLR 766

Applicant: MS SEIDLER

Respondent: MR CERNY

File Number: SYC 6696 of 2014

Judgment of: Chief Judge Pascoe

Interim Hearing date: 31 March 2015

Date of Last Submission: 15 July 2015

Delivered at: Sydney

Delivered on: 27 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Christopher Othen

Solicitors for the Applicant: Rebekah Dorter Family Lawyer and Mediator

Counsel for the Respondent: Ms Mary-Clare Kennedy (Withdrawn)

Solicitors for the Respondent: MacPherson and Kelly Lawyers (Sydney) (Withdrawn)

Solicitor as the Independent Children’s Lawyer: Ms Maureen Power (NSW Legal Aid)

ORDERS

That pending further order:

1. That as and from 12:00pm on 27 July 2015, the Applicant Wife has to the exclusion of the Respondent Husband sole use and occupation of the house and property located at Property W (reference (omitted)) (“the Property W property”).

2. That as and from 12:00pm on 27 July 2015, the respondent be restrained by injunction from approaching or entering upon the Property W property except with the prior written consent of the occupant applicant or pursuant to an order of the Court.

3. Within 7 days of the date of these orders, the parties do all actions and things, and sign and execute all documents necessary, to cause the Property W property to transfer in its entirety, including any equitable claim, to the applicant.

NOTE A: Order (3) is made as an Interim property adjustment only.

1. The applicant is restrained from further encumbering the Property W property save for the terms and conditions held within the mortgage approved by the (omitted) Bank, dated 27 April 2015.

NOTE B: Order (4) is made pending final hearing only.

1. Pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of the Court, immediately after the expiration of the time specified in Order (3), may sign any document on behalf of a party who refuses or neglects to execute documents or instruments in compliance with these Orders.

2. The applicant shall, pending final order:

   (a)indemnify the respondent in respect of the mortgage loan referred to in Order (4) and shall forthwith be responsible for paying all instalments due; and

   (b)pay for and indemnify the respondent with respect to all outgoings, municipal and water rates and levies in relation to the Property W property.

3. The matter of costs relating to the Interim Hearing of 31 March 2015 and the subsequent filing, appearances, and applications flowing therefrom be reserved until final hearing.

4. The substantive matter is transferred to the Family Court of Australia at Sydney, pursuant to s.39 of the Federal Circuit Court of Australia Act 1999 (Cth), save for the outstanding issue relating to the (omitted).

IT IS NOTED that publication of this judgment under the pseudonym Seidler & Cerny (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6696 of 2014

MS SEIDLER

Applicant

And

MR CERNY

Respondent

REASONS FOR JUDGMENT

1. Interim Parenting Orders regarding the child of the parties, X, were decided in Seidler & Cerny [2015] FCCA 1032 that contains separate Orders. These Orders and Reasons relate to interim Property only.

2. This property proceeding was commenced by the Applicant Mother (“the Wife”) by Application filed on 24 October 2014.

3. The initiating Application was further amended by way of Application in a Case (Amended), filed on 23 March 2015. The Wife applied for the Respondent Father’s (“the Husband”) “right, title, and interest in the former matrimonial home… (“the Property W property”) to [transfer to] the applicant wife by way of interim property adjustment order.” This application was to coincide with the Wife’s refinancing of the mortgage over the house to her name, with the effect that the Husband would pay mortgage repayments until final property determination.

4. At all times, the Wife maintains the position that she and child of the marriage, X, now aged 3, remain in the Property W property and that the Husband be restrained from entering the property without the Wife’s written consent.

5. The Husband applies for the Property W property to be sold and the sale proceeds divided amongst the parties.

6. The matter was set down for interim hearing on 31 March 2015. This interim hearing was with regard parenting only however the Wife also sought to be heard on the property issue. The Husband objected to that course, however the Wife was allowed to canvass property matters as the issue of maintenance impacted her capacity to remain in the matrimonial home.

7. The Wife, by way of Application in a Case filed 2 April 2015, sought to reopen the Interim Hearing of 31 March 2015. The Wife sought to file additional evidence regarding her refinancing capacity. The matter was listed for Interlocutory Hearing on 28 April 2015.

8. On 15 April 2015, the Husband filed a subpoena which was objected to by the parents of the Wife (“the (omitted)”) on 27 April 2015, as a relevant party.

9. On 28 April 2015, both the Application in a Case, filed 2 April 2015, and the Objection, filed 27 April 2015, was heard. The Objection was upheld.

10. The Husband’s legal representatives withdrew on 18 May 2015.

11. On 25 May 2015, the Husband filed an Application in a Case to reopen the Interlocutory Hearing of 28 April 2015.

12. On 10 June 2015, the Husband filed an Amended Application in a Case, expanding on the Application in a Case, filed 25 May 2015, and seeking new parenting orders.

13. On 5 July 2015, the Husband filed Further Amended Application in a Case, expanding on the Further Application in a Case, filed 10 June 2015, and seeking to address matters already heard at the Interim Hearing of 31 March 2015. Further, the Husband sought to have the matter transferred to the Family Court of Australia. The matter was listed for Interlocutory Hearing on 15 July 2015.

14. At the Interlocutory Hearing, the Husband’s Application in a Case, most relevantly the application to reopen the Interim Hearing of 28 April 2015, was dismissed.

15. These Reasons regarding Property are therefore a culmination of the Interim Hearing of 31 March 2015, and the two Interlocutory Hearings of 28 April 2015 and 15 July 2015.

The Law

1. The injunctive power that can be exercised by the Court under s.114 of the Act permits the Court to make such order as it considers proper.

2. Section 80 of the Act sets out the general powers of the Court, relevantly s.80(1)(h):

   “The Court, in exercising its powers under this Part, may do any or all of the following:

   …

   (h) make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further notice.”

3. I am mindful of the requirement of s.79(2) of the Act that states that I shall not make an order under this section unless I am satisfied that, in all circumstances, it is just and equitable to make such an order.

4. The decision in Strahan and Strahan (2009) 42 Fam LR 203; [2009] FamCAFC 166 (“Strahan”) at FamCAFC [118] refers to two stages of an application or interim property settlement;

   “There are two stages to the hearing of such an application where the power is to be exercised pursuant to s.80(1)(h) of the Act. This is recognised by the fact that although the power under s.79 should ordinarily be exercised on a once-only basis, “circumstances may arise before there can be a final hearing” where the power is exercised. Thus the first step is to resolve whether to exercise the power before a final hearing, and if it is resolved to do so, then the second step involves the exercise of that power.”

5. Regarding the first stage, the overarching consideration is the interests of justice. It is not necessary for the Wife to establish compelling circumstances. All that is required in determining whether to exercise the wide and unfettered discretion conferred by the power to make such an order, is that it is appropriate to exercise the power in this situation, being mindful that an order made pursuant to s.79 of the Act, is a once-and-for-all order made after a final hearing.[1]

   [1] Strahan & Strahan (2009) 42 Fam LR 203; [2009] FamCAFC 166 per Boland, Thackray, and O’Ryan JJ at [132]

6. When turning to the substantive step, the provisions of s.79 of the Act, especially s.79(4), must be considered and applied with limitations as this is not the final hearing.[2]

   [2] Strahan & Strahan (2009) 42 Fam LR 203; [2009] FamCAFC 166 per Boland, Thackray, and O’Ryan JJ at [135]

7. I have also considered Zschokke and Zschokke (1996) 20 Fam LR 766; [1996] FamCA 79 (“Zschokke”) in this decision.

8. In Strahan, reference is made to the Full Court decision of Zschokke and the matters a court would be required to consider in making an Order under s.80(1)(h) of the Act. The Full Court in Zschokke said at Fam LR 781-782;

   “If the order is to be made under s.80(1)(h), it would seem that regard should be had to the requirement in s.79 that the orders be just and equitable and this would require the court to undertake at least some brief consideration of the matters in s.79(4) including those referred to in s.75(2). If on a brief consideration of those matters it seems unlikely to the court that the party who is the applicant for the interim order for an advance of funds from the other party will be likely to receive by way of property settlement a sum sufficient to cover the advance, that would seem to be sufficient to enable the order sought to be made... and...it must be an integral part of any order under s.80(1)(h) for an advance of funds from the part in possession of the bulk of the parties assets to the other party, that such advance can then be taken in to account in the property settlement, that is, it must be capable of satisfying part of the other party’s entitlement.”

9. In order to exercise my discretion, I will include a consideration of the history of the marriage, the asset pool, the issues in contest, and the financial position of the parties amongst other issues.

The History of the Marriage

1. The history of the marriage and relevant observations made by the Court of the parties’ relationship are canvassed in the interim Parenting judgment and need not be repeated here, save that;

   a)the Wife and X remain in the Property W property after the Husband moved out on 16 September 2014;

   b)the Wife has been diagnosed with Anxiety and Depression, undergoes therapy, and takes medication; and

   c)the maternal grandparents assist the Wife in caring for X at the Property W property.

The Asset Pool and Financial Position

1. Very little evidence was put on by the parties to enable me to fully assess their asset pool. This is not a criticism as the final division of property will not be addressed until final hearing; this judgment only goes to interim property adjustment and may be altered at final hearing.

2. However, I am mindful of the parties’ financial positions.

3. On 24 October 2014, the Wife filed a Financial Statement. It listed her financial summary as follows:

   a)Total average weekly income = $2,263.58

   b)Total personal expenditure = $4,156.39

   c)Estimated total value of owned property = $801,000

   d)Total gross value of superannuation = $42,376.64

   e)Estimated total liabilities = $643,280.50

   f)Total financial resources = $0

4. On 4 November 2014, the Husband filed a Financial Statement. It listed his financial summary as follows:

   a)Total average weekly income = $2,816

   b)Total personal expenditure = $4,531

   c)Total value of owned property = $818,747

   d)Total gross value of superannuation = $83,975

   e)Total liabilities = $1,121,373

   f)Total financial resources = $0

5. The main asset, and the subject of these Reasons, is the Property W property, purchased for $1,350,000 in 2012.

6. The Property W property was to be sold at auction on 18 October 2014. The Wife unilaterally withdrew the property from auction on 17 October 2014. The Husband applies for the Property W property to be sold at auction with the reserve price set at $1,700,000.

7. Amongst other debts, the parties together borrowed $100,000 from the Husband’s parents to secure a loan over the Property W property, of which $25,000 was repaid.

8. In 2014, the couple refinanced their position with a mortgage with (omitted) Bank (“the (omitted)”) that required repayments of almost $8,000 per month.

9. The debts of the couple, including mortgage obligations over the Property W property, and financial contributions to the property of the marriage appear to be mutual.

10. The Wife is the primary carer of X. The Husband rents a property also in (omitted). Since separation, the Husband pays approximately $80 per month to the Wife in child support.

11. It appears that the Husband ceased repaying the (omitted) Bank mortgage in the fourth quarter of 2014 and the Wife in the second quarter of 2015, during these proceedings.

12. I note that the Husband has significantly reduced his working hours, ostensibly to care for X. In the light of the Parenting Orders, this is now not the case.

The Issue in contest

1. The present application involves one key issue:

   a)In the interim, should the property be transferred to the Wife?

   b)If (a) is answered no, should the house be sold?

   c)If (a) is answered yes, does the mother’s proposed re-financing preserve the value of the home pending final hearing?

2. The multiple claims made by the Husband during the Interlocutory Hearing on 15 July 2015 remain either alive for determination at final hearing, or were otherwise dismissed.

The Wife’s Evidence

1. At the Interim Hearing of 31 March 2015, counsel for the Wife stated that the Husband’s position was for the Property W property be sold or that the Wife take exclusive ownership and sole financial responsibility for the property. However, the Husband does not oppose the Wife’s sole occupancy pending the Court’s decision of whether to sell the house.

2. Presently, the Property W property is encumbered with a mortgage to the (omitted) Bank requiring repayments of approximately $8,000 per month. As noted above, these repayments have ceased and the mortgage is in arrears.

3. The Wife proposes to have the Property W property transferred to her on an Interim basis so that she can refinance the property so as to reduce the monthly mortgage repayments. It was stated that such a transfer will neither affect the Husband’s position or rights, nor attract stamp duty. Moreover, counsel for the Wife explicitly stated that the transfer would and should only occur if the Wife consented to a caveat that the Property W property would not be further financially encumbered whilst in her temporary ownership as agreed.

4. Counsel for the Wife suggested that the proposal “makes sense” in terms of preserving the asset.

5. The Wife, a (occupation omitted), has found employment and can work from home.

6. Presently, the Husband provides $79 per month in maintenance. As such, counsel asserted, the Wife is practically the sole financial provider for X.

7. Moreover, the issue of mortgage contribution by the Husband has to be dealt with by way of maintenance. I note that although the Wife initially sought an Order for maintenance, she does not press that claim now.

8. Counsel suggested that the Husband had made a calculated decision to reduce his work, and thus income, so as to reduce the amount of child support he was required to pay as well as mortgage repayments.

9. Counsel stated that the Husband works vastly less than what he used to as an (occupation omitted), and could easily take on more work to reach the previously earned monthly income of $30,000 per month so as to meet the $2,500 per month mortgage repayment and $79 per month child support payments.

10. Counsel for the Wife stated that the sale of the Property W property should be an issue for final determination, not an interim determination.

11. At the Interlocutory Hearing of 28 April 2015, the Court admitted additional evidence by the Wife as the evidence was of direct probative value and was unavailable at the Interim Hearing held on 31 March 2015. Counsel for the Husband did not oppose the evidence.

12. The wife submitted evidence which showed her capacity to meet new mortgage repayments of $5,000 per month on an unconditional loan approval from (omitted) Bank (“(omitted) Bank”).

13. The Wife’s submissions repeat that there is no prejudice to the Husband’s position should the property be transferred and that the Property W property is preserved for final determination.

The Husband’s Evidence

1. Counsel for the Husband at the Interim Hearing of 31 March 2015 stated that the reason for the Husband’s reduction in work was so that he could spend more time with X.

2. Moreover, Counsel stated that the Husband cannot increase his work because of the restrictive hours the Wife allows him to spend with X and that he is a (occupation omitted).

3. Therefore, the Husband cannot pay his portion of the monthly mortgage repayments. Counsel drew attention to the Husband’s affidavit, sworn and filed 6 March 2015, which was not challenged by the Wife, in which the Husband’s current yearly disposable income amounted to $36,000 per year after rent.

4. Counsel for the Husband suggested that the couple could never afford the Property W property and stated that the couple had financially overextended themselves. As such, the Wife cannot afford the house alone, otherwise she would be meeting the repayments at the moment. Therefore, the sale of the Property W property is sensible.

5. Counsel described the Husband’s financial position as “dire.”

6. Counsel suggested that to transfer the Property W property from the joint ownership to the sole ownership of the Wife – even in the interim – would be in circumstances where the Husband faces “imminent” bankruptcy.

7. Moreover, the Husband stated that the couple jointly, and he himself, have several creditors that only the sale of the Property W property could satisfy.

8. The Husband filed a Response to the Wife’s Application in a Case on 21 May 2015, after his legal representatives had withdrawn, and repeated his application to have the Property W property sold. The Husband applied to have the sale proceeds dispersed to pay the mortgage, the cancelled house auction debts, and other debts, and the balance to the parties.

9. In Orders issued by me on 7 May 2015, leave was granted to the Husband to attach to an affidavit of documents produced under subpoenas, filed 15 April 2015, as annexures so as to enable the Husband to tender the subpoenaed material as exhibits.

10. The Husband filed an affidavit, sworn and filed by him 21 May 2015, annexing documents relating to the Wife’s financial situation, attesting that she was unable to sufficiently refinance so as to maintain the Property W property.

11. The evidence contained within the Husband’s affidavit, sworn and filed 21 May 2015, was objected to by the Wife; on the grounds “that it goes beyond the leave granted; it is calculated to delay the determination of the present interim application; and it is replete with conclusions and submissions, and some of the annexures are not business records. [In the alternative], the evidence should be given no weight.”

1. On 25 May 2015, 10 June 2015, and 5 July 2015, the Husband filed an Application in a Case and an Affidavit in support, an Amended Application in a Case and an Affidavit in support, and a Further Amended Application in a Case without an Affidavit in support, respectively.

2. The Applications, inter alia, each went to specific documents produced under subpoena relating to the (omitted). The documents were the subject of a successful objection with relief provided to the (omitted) to redact documents or portions of documents by consent, at a time when both the Husband and Wife represented by counsel.

3. These Applications were dealt with at a single Interlocutory Hearing on 15 July 2015.

4. On 19 June 2015, the Wife and Counsel for the (omitted) each supplied the Court with submissions to the Application in a Case, filed 25 May 2015, and incorporated the Amended Application in a Case, filed 10 June 2015.

5. On 15 July 2015, the Husband pressed the 22 prayers contained within his Further Amended Application in a Case, filed 5 July 2015, to reopen the matter so as to adduce further evidence and to address other matters. A majority of the points were either not relevant for the interim Property proceeding, or were otherwise dismissed. These will be discussed below.

Discussion

1. The parties seek quite different orders. The Wife seeks occupation and, ultimately, ownership of the Property W property; the respondent seeks the sale of the Property W property. I note that a decision in favour of one party over that of the other should not simply rely on the balance of convenience or hardship (see: Davis (1976) 1 FamLR 11,522; O’Dea (1980) 6 FamLR 675; Davis (1982) 8 FamLR 975).

2. The authorities however demonstrate that the balance of convenience may however decide the matter where there is intense disharmony between the parties. The test to be applied is objective and each case must be determined on its particular facts.

3. The Court is mindful of the observations of the Full Court of the Family Court of Australia in Marvel & Marvel (No.2) (2010) FamCAFC 101 as to the difficulty in fact finding in interim proceedings where evidence cannot be tested. However, any decision is designed to protect the Property W property pending a final decision

4. As noted above, the Wife did not press her spousal maintenance claim at this interim stage. This leaves the Property W property application the only matter to be determined.

5. The Property W property interim determination was greatly complicated and prolonged by the Husband’s filing of material and numerous interlocutory applications.

6. Throughout these proceedings, it is hard to avoid the conclusion that the Husband has been determined to cause maximum expense and inconvenience to the Wife and her family. Very serious allegations were made from the Bar table unsupported by evidence. Derogatory remarks were made about the Wife that were not at all relevant to the proceedings.

7. To summarise, the Husband has behaved in a manner that seems to been strategically intended to reduce his earning capacity whilst using as much time and effort as possible so as to deplete the Wife of her resources and cause her as much anxiety and disruption as possible.

8. In my opinion, the Husband’s behaviour verges on an abuse of process.

9. At the heart of the Husband’s many claims in his latest Application in a Case, relevant to this proceeding, is that he could not believe that a portion of a redacted (omitted) Bank document produced under subpoena, entitled “Credit Memo,” did not reveal impropriety by the Wife and her family that went to misleading (omitted) Bank and this Court. The un-redacted Credit Memo, it was claimed, would reveal information as to the terms and conditions of the (omitted) Bank mortgage which would be inconsistent with that which the Wife represented to the Court.

10. On 15 April 2015, the Husband filed a subpoena to (omitted) Bank, relevantly in the following terms:

    “6. Copies of all documents of every kind including correspondences and file notes between the bank and the customer [the Wife] (or any other person on her behalf including but not limited to Ms P) since 1 July 2014

    7. Copies of all documents of every kind including correspondences and file notes between the bank and any person or entity concerning [the Property W property] since 1 July 2014.

    8. Copies of all statements of accounts for account number (omitted).”

11. These items of the subpoena were objected to by the (omitted) on the grounds that the information held within these items were private or was of no legitimate forensic purpose to the matter at hand, and were merely a fishing expedition.

12. On 29 April 2015, by consent these objections were upheld including a costs order. This consent order was made whilst the Husband was represented by counsel.

13. The (omitted), again by consent of both parties represented by counsel, were permitted to redact information from certain documents that they believed were private. Afterwards, the redacted documents were made available to the parties for inspection.

14. At this point the Husband’s legal representatives withdrew and the Husband commenced representing himself.

15. The Husband was evidently not satisfied with the redacted (omitted) Bank documents and, as mentioned above, filed three Applications in a Case, each seeking, inter alia, to see the redacted material.

16. At the interlocutory hearing of 15 July 2015, I went to considerable effort to ensure the Husband had ample opportunity to voice his concerns and address the Court on his application. A hearing that should have taken half an hour or less took two hours.

17. Despite my explaining to the Husband that the Rules of Evidence guide the Court and that there is a public interest for the Court’s time not to be wasted, a lot of time was spent on irrelevant, repetitive, and unsupported assertions.

18. I indicated to the parties that I would read the redacted material on the (omitted) Bank “Credit Memo.” I have done so. I am satisfied that it is of no forensic value to the proceedings.

19. Accordingly, the Husband’s application to view the redacted material is refused.

20. Moreover, I am satisfied that the Property W property will suffer no devaluation or impropriety if transferred to the sole ownership of the Wife. The value of the Property W property is preserved, subject to fluctuations in the property market, as is the Husband’s interest in the property come final hearing. It is important that the Wife is able to proceed as quickly as possible given the delays caused by the Husband, and this is reflected in my Orders.

21. The Husband’s claim that the Wife will encumber the Property W property with legal fees is unfounded. However, as suggested by the Wife, I will make an Order that no further encumbrance may be placed over the Property W property. How the Wife pays for her litigation is otherwise a matter for her.

22. I am not persuaded by the Husband’s argument that the net worth of the Property W property will devalue if the Wife’s application is successful. The argument is unsupported by any evidence, save what could be characterised as the Husband’s “conspiracy theory,” which I have already rejected.

23. I am required to consider whether, even in the interim, my decision is just and equitable. The Wife’s application does not disadvantage the Husband; the asset is preserved should the Property W property be ordered to be sold at final hearing and appropriate adjustments can be made to the Husband if not.

24. In fact, the Wife has done everything necessary to preserve the value of the Property W property. The Wife has refinanced with another mortgage and will pay out the (omitted) Bank mortgage which is now in arrears. I do not accept the Husband’s assertions that the Wife or the (omitted) will add any additional amounts to the debt on the house or disadvantage the Husband’s interest in the property in any way.

25. I am also mindful of X’s best interests, which cannot be disregarded. X is three years old and there was evidence that he has suffered from the conflict between his parents. The Property W property is the only home X has ever known. The Property W property is within close proximity to the (omitted), who provide support to the Wife, and to the Husband’s rented property.

26. Moreover, the Husband went to great pains to stress to the Court that the Wife has mental health issues. If that is indeed the case, the stress of a forced move from the Property W property is likely to be highly detrimental to her mental state and to impact adversely on X. I do not believe it would be at all appropriate to add to the stress of the Wife or X unless there are compelling reasons to do so. There is no such evidence.

27. Further, I also consider it unfair to the Wife that I order the Property W property to be sold at this point in time. Such an order would deny her the opportunity to keep the house if she ultimately is able to do so. Again, compelling evidence would need to be before the Court for me to consider it was necessary to order the sale of the Property W property now and force the Wife and X to move house. Again, there is no such evidence.

28. I also note the comments made at Interlocutory Hearing on 15 July 2015 by the Husband that the Wife has ceased to pay mortgage repayments relating to the former mortgage. I find it unconscionable that the Husband would call upon the Court to grant his order which is at odds with those proposed by the Wife for actions that the Husband himself has taken. Indeed, it is the Husband’s behaviour in delaying the Interim Hearing, first heard on 31 March 2015, that is the cause of the Wife not being able to commence her refinancing, discharge the (omitted) Bank mortgage, and commence repaying the (omitted) Bank mortgage.

29. It is disappointing that the Husband has adopted a strategy to make it as difficult as possible for the Wife to refinance in a timely manner. The Husband’s apparent strategy is more likely to have caused diminution of value to the Property W property than the alleged actions of the Wife.

30. I do not propose to deal with each prayer made by the Husband at the Interlocutory Hearing of 15 July 2015. I have dealt with those prayers that are relevant to the Property aspect of the Interim Hearing of 31 March 2015 and within my power.

Transfer to the Family Court of Australia

1. I will make an Order for the transfer of this matter to the Family Court of Australia. There are a number of reasons for my decision.

2. In particular, the Husband has made very serious allegations which go to the integrity of a senior Australian judge. There was no evidence to support these assertions but it is only proper that such allegations are dealt with by a superior Court.

3. Further, although this case itself should not be complex, the Husband’s behaviour has already significantly lengthened the proceedings and the case is unlikely to be dealt with within the time-frame appropriate for this Court.

4. There are significant issues in relation to mental health, the effect of the parties’ conduct on mental health, and the well-being of X.

5. In summary, this case clearly fits within the Protocol for Transfer between this Court and the Family Court of Australia.

6. Accordingly, the Husband’s application for transfer is successful.

Conclusion

1. The Court considers it just and equitable to make the interim orders sought by the Wife for the transfer of the Property W property to her ownership in the interim pending final hearing, in circumstances where:

   a)she is the primary carer for the child; and

   b)she is the majority financial contributor to the maintenance of X; and

   c)she, pursuant to the (omitted) Bank mortgage, is the financial contributor to the Property W property; and

   d)X is young and forming a relationship with his environment and nearby family members, including the Husband’s rented property.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of Chief Judge Pascoe

Date:  27 July 2015