Tom Skaventzos and Anastasia Skaventzos v Nick Tirimon and Venetia Tirimon No. SCGRG 91/1028 Judgment No. 4066 Number of Pages 4 Courts and Judges (1993) 61 Sasr 103

[1993] SASC 4066

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN J

CWDS
Courts and judges - jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s.5(l) - civil action by parents against daughter and son-in-law - for recovery of debt or alternatively for interest in their former matrimonial home - application by son-in-law and daughter for settlement of property pursuant to Family Law Act 1975 (Cth.) - former matrimonial home subject of those proceedings - civil action "related to" proceedings in Family Court - more appropriate that civil action be heard and determined by the Family Court in conjunction with proceedings in that Court - order made transferring civil action to the Family Court: Lambert v Dean and Anor (1989) FLC 92-037, Mattock v Mattock and Anor (1989) FLC 92-038 and Stevens v Stevens (1990) 14 Fam.LR
149 referred to.

HRNG ADELAIDE, 16 July 1993 #DATE 30:7:1993
Counsel for plaintiffs:     Mr G Carabelas
Solicitors for plaintiffs:    Carabelas and Co
Counsel for defendant:        Ms M T Pyke
Solicitors for defendant:     Bonnins

ORDER
Action be transferred to the Family Court at the Adelaide Registry.

JUDGE1 MULLIGHAN J This is an application by the first defendant for an order pursuant to s.5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth.) for an order that the action be transferred to the Family Court of Australia, Adelaide Registry, for hearing and determination. This is the second such application made by the first defendant. On 15th October 1991 Olsson J dismissed an application by the first defendant seeking the same order: see Skaventzos and Anor. v Tirimon and Anor. (1991) 162 LSJS 53. On that occasion, as now, the application was opposed by the other parties. 2. The plaintiffs are the parents of the second defendant who is the former wife of the first defendant. By summons filed on 15th August 1991 the plaintiffs commenced this action in this Court seeking a total sum of $468,186.16 alleged to be the total amount of various loans made by the plaintiffs to the defendants. When Olsson J considered the cross-vesting application, the claim was only of that nature and for a lesser sum. 3. On 3rd September 1990 the first defendant instituted proceedings against the second defendant pursuant to the Family Law Act 1975 in the Family Court of Australia, Adelaide Registry, seeking, inter alia, an order by way of settlement of property that their former matrimonial home at 10 Thistleton Crescent, Pasadena, be sold and that the net proceeds be divided between them in such proportions as the Family Court may consider just and equitable, that she pay to him such further monies as the Court considers just and that their personal property be divided in such proportions as the Court may determine. The second defendant filed an answer and cross-application and sought an order by way of settlement of property that the first defendant transfer to her all his estate and interest in the former matrimonial home, that she pay such sum of money to him as the Court may consider appropriate and that each of them retain, as their sole property, the items of personal property at present in the possession of each of them. 4. Olsson J took the view that the action in this Court is not "related to" the proceedings in the Family Court as those proceedings are fundamentally different and separate from the issues which arise in this action. He accepted that the resolution of the plaintiff's claim could have a profound effect on the net asset position of the defendants and consequently have a potential impact on the nature of any order for settlement of property and that it was probable that the plaintiffs would be called as witnesses in the proceedings in the Family Court, but he did not regard these matters as a sufficient nexus between this action and the proceedings in the Family Court. It is unnecessary to set out in detail the reasoning of Olsson J. 5. Since he made his order, both sets of proceedings have continued and the proceedings in the Family Court are nearing trial. There have been various interlocutory steps taken in this action and the plaintiffs have filed and delivered an amended Statement of Claim in which they have also pleaded that, in the alternative to their claim for repayment of monies allegedly advanced to the defendants, that such monies were advanced in pursuance of a common arrangement or understanding, presumably between all of the parties, whereby they would be beneficially entitled to an interest in the former matrimonial home of the defendants to the extent of the payments, the total of which, it appears, exceeds the market value of the property. It is this new claim which the first defendant contends is a proper basis for a cross-vesting order. 6. In the settlement of property proceedings, the Family Court will have to determine what is the property of the defendants, or either of them, which will necessarily involve a determination of whether the plaintiffs have an interest in the matrimonial home. That is an issue which will have to be resolved in both proceedings and, in my view, it is preferable and desirable that it be decided promptly and in only one action. 7. S.5(1) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 provides:
    "5(1) Where:
    (a) a proceeding (in this subsection referred to as the
    'relevant proceeding') is pending in the Supreme Court of a
    State or Territory (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 Federal Court or
    the Family Court and it is more appropriate that the
    relevant proceeding be determined by the Federal Court
    or the Family Court;
    (ii) having regard to:
    (A) whether, in the opinion of the first court, apart
    from this Act and any law of a State relating to
    cross-vesting of jurisdiction and apart from any accrued
    jurisdiction of the Federal Court or the Family Court, 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 the
    Federal Court or the Family Court;
    (B) the extent to which, in the opinion of the first
    court, the matters for determination in the relevant
    proceeding are matters arising under or involving questions
    as to the application, interpretation or validity of a law
    of the Commonwealth and not within the jurisdiction of the
    first court apart from this Act and any law of a State
    relating to cross-vesting of jurisdiction; and
    (C) the interests of justice; it is more appropriate
    that the relevant proceeding be determined by the Federal
    Court or the Family Court, as the case may be; or (iii) it
    is otherwise in the interests of justice that the relevant
    proceeding be determined by the Federal Court or the Family
    Court;
    the first court shall transfer the relevant proceeding to
    the Federal Court or the Family Court, as the case may
be." 8. It may be seen that two criteria must be satisfied, namely that this action is related to the proceedings in the Family Court and it is more appropriate that the proceedings be determined by that Court: Lambert v Dean and Anor. (1989) FLC 92-037 per McLelland J In my view both of these requirements have been clearly satisfied. The nature of any advances of money by the plaintiffs to the defendants and to which of them are matters relevant to both proceedings. Whether the plaintiffs have an equitable interest in the former matrimonial home of the defendants is a crucial question to be resolved before an order for settlement of property can be made and is "a substantial common question that arises in both proceedings": Mattock v Mattock and Anor.
(1989) FLC 92-038. The relief sought by the plaintiffs in this action, if justified, may be granted by the Family Court if the cross-vesting order is made: s.4 of the Jurisdiction of Courts (Cross-vesting) Act. It would be unreasonable to expect the defendants to have to litigate both proceedings. Furthermore, it is not to be assumed that the second defendant will oppose the claim of the plaintiffs to the same extent as the first defendant or at all and the hearing of both proceedings in the same court will avoid any possibility of collusion between the second defendant and the plaintiffs to the possible prejudice of the first defendant: Stevens v Stevens (1990) 14 Fam LR 149. In my view, it is undesirable and contrary to the interests of justice that the first defendant should have to be involved in two proceedings, with all of the attendant delay and expense, when all issues between the parties may be resolved in the one trial in the Family Court. 9. I intend, and make, no criticism of the decision of Olsson J which was based upon a situation different from that which now exists. I order that this action be transferred to the Family Court at the Adelaide Registry.