On 9 September 1996, the solicitors for the defendant forwarded a standard transfer form to the registrar of the Family Court with a request that it be executed by the registrar to enable the land to be transferred to the defendant as a result of the defendant's husband defaulting in payment of maintenance as required by the Family Court order dated 12 March 1993 as amended by the order of 24 July 1996. In the circumstances, however, the registrar declined to execute the transfer without further direction and of her own motion had the matter re-listed for hearing before a judge of the Family Court on 16 October 1996.

On 30 August 1996, the defendant applied to remove the caveat, following which the plaintiff made the application to this court seeking an order that the time for the removal of the caveat be extended until further order.

On 27 September 1996, a master of this court made an order extending the time for removal of the caveat until 18 October 1996. On that date he made an order extending the time for removal until further order. The within application to transfer the proceedings to the Family Court was filed on 15 October 1996 and the summons was returnable for 18 October. The Family Court proceedings came on before a judge of that court following the referral to him by the registrar on 16 October 1996. On the basis that the application for transfer of proceedings was to be heard in this court, the Family Court judge ordered that the matter be removed from the pending list but noted that the parties might wish to bring the matter on for determination at a later date.

The power to transfer proceedings to another court is contained in s5 of the Jurisdiction of Courts (Cross-vesting) Act 1987 ("the Cross-vesting Act"). That section, in so far as it is relevant to the present application provides as follows: "(1) Where - (a) a proceeding (in this subsection referred to as the 'relevant proceeding') is pending in the Supreme Court; and (b) ... (i) it appears to the Supreme Court that 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; or (ii) ... (iii) it appears to the Supreme Court that it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court,the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be."

The only reference to 'proceeding' in the Cross-vesting Act is a statement that "proceeding does not include a criminal proceeding". In s4 of the Family Law Act 1975, "proceedings" is stated to mean "a proceeding in a court, whether between parties or not, and includes cross-proceedings or an incidental proceeding in the course of or in connexion with a proceeding". The defendant submitted therefore that proceedings were pending in the Family Court of Australia as it would be necessary for the Family Court to determine the validity and effect of the orders made on 12 March 1993 and 24 July 1996 and that would have a direct and substantial impact on the issues before this court. Accordingly, and also having regard to the interests of justice it was more appropriate for the action to be transferred to the Family Court.Pursuant to the provisions of s5(1)(b)(i)of the Cross-vesting Act there are two criteria to be satisfied, namely, that the action is related to proceedings pending in the Family Court and that it is more appropriate that the proceedings be determined by that Court. The plaintiff submitted that there were not any pending proceedings in the Family Court as the action between the defendant and her husband had been completed and the only issue raised in this court was the issue as to the validity of the mortgage which arises out of the provisions of Corporations Law and the remedy with respect to that matter was exclusively within the ordinary jurisdiction of this court. The plaintiff further argued that it would not be appropriate to make the order pursuant to paragraph 5(1)(b)(iii) of the Cross-vesting Act as that would be an injustice to the plaintiff, who sought to debate a discrete point, that is, whether the execution of the mortgage on 23 February 1992 constituted a proper exercise of the power of the directors and that was an issue which could be conveniently and expeditiously dealt with in this court. An order for transfer, however, would inevitably involve the plaintiff in wider issues between the parties which potentially would be protracted and would involve the plaintiff in increased and unnecessary costs.

In Hallawi v Australian Guarantee Corporation & Anor (1989) FLC 92-045, the wife had commenced proceedings in the Family Court under s79 of the Family Law Act for the transfer to her of the husband's interest in property. The husband had obtained an advance from a bank pursuant to a mortgage. The wife brought proceedings in the Supreme Court for the mortgage to be set aside on various grounds, including that her signature had been forged on the mortgage documents and seeking a declaration that the husband held his interest in the property upon trust for her. In that case, Kearney J ordered the proceedings to be transferred to the Family Court as the determination of the section 79 application in the Family Court would cover the same material and would be involved in the wife establishing her claim for a declaration of trust in respect of the husband's interest in the property. Further, that the consideration of the section 85 application in the Family Court would cover the same ground relating to the execution of the mortgage as was involved in the Supreme Court proceedings. He found that the wife had established that the Supreme Court proceedings were related to the Family Court proceedings and it was appropriate that the Supreme Court proceedings be determined by the Family Court and it was in the interests of justice for the proceedings to be transferred.

In Lambert v Dean & Anor (1989) FLC 92-037, an order was made transferring proceedings to the Family Court. McLelland J found that the two criteria in s5 of the Act had been satisfied, firstly that the pending Family Court proceedings were related to the Supreme Court proceedings, in that in each proceeding orders were sought affecting proprietary interests in the home and secondly, it was more appropriate that the whole matter be handled by the specialist expertise of the Family Court. In each of those cases, however, the determination as to rights and property had not been resolved by the Family Court. Similarly in Skaventzos v Tirimon [1993] SASC 4066; (1993) 61 SASR 103 and Mattock v Mattock (1989) 97 FLR 112, the proceedings for determination of the interest in property had not been completed. In this case, however, the order for settlement of property as between the defendant and her husband made on 12 March 1993 as varied by the order of 24 July 1996 is a final order. The only matter of which the Family Court is currently seized is the application to the registrar to execute the mortgage in view of the husband's default. Can that be said to be a pending proceeding? I should interpolate that it was not suggested in argument that the form of the order made by the Family Court judge on 16 October 1996, removing the matter from the pending list was determinative of this issue. The terminology used by the judge makes it clear that the action taken on that occasion was simply a case management procedure which does not affect the question to be determined on this application as to whether there is a proceeding which is pending. In my view, the application by the defendant to enforce the order by her request for the registrar to execute a memorandum of transfer and falls within the definition of "proceedings" within s4 of the Family Law Act. I consider therefore there is a pending proceeding which is related to the proceedings in this court. It is necessary then to consider whether it is more appropriate that this matter be determined by the Family Court.

Although the subject mortgage is included in the Family Court order of 12 March 1993, as varied by the order of 24 July 1996, it is not an asset which forms part of the order for property settlement. It is only included by way of security for the payment to the defendant of monies due to her. If the mortgage is not valid the defendant will still have an entitlement to that money but will have to find some other means of enforcing her order. I appreciate that the defendant may not have agreed to the terms of the orders without some security being included but, nevertheless, it seems to me that the issue of the validity of the mortgage is a discrete matter which is more appropriately dealt with by the Supreme Court than the Family Court. If the mortgage is valid the defendant will be able to pursue the enforcement of her order without any difficulty. If the mortgage is not valid then it may well be that the issue of property settlement will be at large between the defendant and her husband. Such proceedings could be protracted and costly. I do not see why they should involve the plaintiff. In my opinion, therefore, this application should be refused.