Jurisdiction of Courts (Cross-vesting) Act 1987 (WA), s 5 (4)

First Defendants : Mr W S Martin QC & Ms K J Bienvenu

Second Defendant : Mr W S Martin QC & Ms K J Bienvenu

Fox Enterprises Pty Ltd v Fox (1995) 13 ACLC 573

Leithead v Leithead (1991) 15 Fam LR 56

Mullins Investments Pty Ltd v Elliott Exploration Co Pty Ltd (1990) 1 WAR 531

Re Chapman & Jansen (1990) 100 FLR 66

Stanley v Stanley Exploration Services Pty Ltd (1998) 24 Fam LR 242

Woodard v H & J Nominees Pty Ltd (1993) 17 Fam LR 327

1 PULLIN J: This is an application to transfer proceedings from this Court to the Family Court of Western Australia, pursuant to s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA). The plaintiff is the de facto wife of the second defendant. They commenced living in a de facto relationship in 1989, and they separated in March 2003. There are two children of the relationship aged 13 and 6. The first defendants are the second defendant's parents.

2 On 16 June 2003, the plaintiff filed an application in the Family Court, seeking orders for property settlement and spousal maintenance. These proceedings are possible because of the 2002 amendments to the Family Court Act. The application indicated that a claim would be made relying on the cross-vesting legislation, and a copy of the writ in these proceedings was attached to the application.

3 Three days before the application in the Family Court on 13 June 2003, these proceedings were commenced. The writ has a general endorsement claiming that the first defendants hold the land at 119 Wolfe Road, Forrestdale on a constructive trust for the plaintiff and the second defendant; alternatively, that the land is impressed with an equitable lien.

4 This is explained further in the affidavit of the plaintiff, which reads:

"8. Prior to my commencing a relationship with Joel, his parents, the first named Defendants, sub-divided a block of land at Forestdale so as to create three separate titles being:

(i) Lot 6 on Diagram 6977 being the whole of the land contained in Certificate of Title Volume 1714 Folio 396 ('Lot 6');

(ii) Lot 7 on Diagram 68977 being the whole of the land contained in Certificate of Title Volume 1714 Folio 397 ('Lot 7'); and

(iii) Lot 8 on Diagram 68977 being the whole of the land contained in Certificate of Title Volume 1714 Folio 398 ('Lot 8').

9. Lot 7 was transferred to Joel's brother Gary James Devine and his wife Jennifer Louise Devine on or about the 28th May 1986. Lot 6 remains registered in the names of Joel's parents. Norman James Devine and Pamela Eva Devine reside at that property. Although Lot 8 remains registered in the names of the First Defendants, it is my contention that Joel is the beneficial owner of that property. The block was always referred to both by Joel and his parents as 'Joel's block'.

10. For all intents and purposes, Joel treated Lot 8 as his own and was encouraged to do so by his parents. In or about the 16th February 1994 Joel and I made an application for a housing loan in order to be able to construct a residence on the property. Annexed hereto and marked with the letter 'D' is a copy of the letter from BankWest approving the loan application made by Joel and myself for the property."

5 The solicitors for the first defendants wrote to the solicitors for the plaintiff on 13 March 2003 after the plaintiff and the second defendant separated, and said:

"6. Joel received a total of approximately $850,000.00 by way of settlement of his claim for personal injuries and an amount of approximately $840,000.00 was received after deduction of an amount of approximately $10,000.00 towards his costs. The balance which is currently invested on Joel's behalf is approximately $816,000.00 and it is the income from this investment which has been used to largely support the parties.

7. Our clients acknowledge that your client and Joel built a home on property belonging to Joel's parents, in about 1995. They also accept that the total cost of construction was approximately $120,000.00

8. As far as our clients are aware, your client contributed an amount of approximately $16,000.00 towards the costs of construction, from a lump sum settlement which she received.

9. Joel's parents contributed an additional $50,000.00 to enable the parties to pay out the mortgage on the home, by way of a loan to Joel and your client.

10. Mr & Mrs Devine also provided additional financial assistance, including purchasing the car owned and used by your client, at a cost of approximately $18,000.00.

11. There has never been any agreement in relation to the sale of the property on which the home was constructed to Joel and/or your client."

6 Putting aside s 205V of the Family Court Act, it seems that the proceedings in this Court could not have been commenced in the Family Court and could not be determined in that Court without the operation of the cross-vesting legislation. Section 4(6) of the Act will give jurisdiction to the Family Court if proceedings are transferred. Section 205V has been referred to in the plaintiff's outline of submissions, but it appears to me to have no operation in relation to this property.

7 Reference has been made to outcomes in other cases such as Hoddell v Hoddell Pty Ltd [1999] WASC 156, M v Bellitto, unreported; SCt of WA (Wallwork J); Library No 960232; 30 April 1996, and Miller v Miller, unreported; SCt of WA (Heenan J); Library No 980340; 19 June 1998, but in my opinion I do not need to refer to them in any respect because they provide, in my view, merely examples of the outcomes on different facts.

8 The principles are clear enough, and they are stated in the legislation. The proceedings in this Court must be related to the Family Court proceedings, and it must be more appropriate that these proceedings be determined by the Family Court before an order is made transferring the proceedings to the Family Court.

9 The expression "related to" in s 5(4) should be given a wide, rather than a restricted, meaning: Carey v Carey, unreported; SCt of WA (Franklyn J); Library No 8307; 14 June 1990. I recognise that the mere existence of some issues common to both proceedings will not necessarily establish that the proceedings are related, and I also note what Franklin J said in Carey's case (supra); namely:

"The sufficiency of the relationship however may be more difficult to establish when a third party is involved in one or other of the proceedings and in my opinion, where the effective issue in such proceedings is a determination of the rights and obligations of that third party whether as plaintiff or defendant, it is less likely that it would be an action 'related to' the other proceeding."

10 Whether the transfer of proceedings is in the interests of justice, if consideration is given to that aspect of s 5(4), is a value judgment: Dawson v Baker (1994) 120 ACTR 11 at 14 and Hoddell's case at [17].

11 A number of arguments are advanced by the defendants as to why the proceedings should not be transferred. The defendants first argue that the substantial issue in the Family Court will be the appropriate order concerning the second defendant's major asset, which is an amount arising from an award of damages for personal injuries and which is a sum in excess of $800,000. While that is the major asset, the facts concerning it, in my view, are unlikely to be contentious, other than the issue about how one breaks up the $800,000 into its various components.

12 It is also true, as the defendants submit, that transferring the matter to the Family Court will mean that the first defendants are entangled in the proceedings in that Court, and that is a relevant aspect to be taken into account; but it is not a reason standing alone to refuse to make an order under the Cross-vesting Act.

13 The defendants also submit that the case is tenuous and shadowy, but in my opinion it is not necessary for me to make an assessment about the strength of the case in circumstances where the first defendants concede that some contribution has been made by the plaintiff and the second defendant to the property in question. The defendants also submit that interim orders could be made under s 79 of the Family Court Act and an adjournment allowed until after these proceedings are dealt with. There is some issue about whether that is so, but in my view this point, even if s 79 can be availed of, is not determinative of the application.

14 It is also submitted that there are different interlocutory procedures in the two Courts. There may be some differences, but once again this is not a matter which is determinative of the application. Undoubtedly, there will be some differences between the two Courts. The main difference is likely to be that in this Court there is provision for an application for summary judgment, but as the matter stands at the moment, my assessment is that it is likely that there is a triable issue which would stand in the way of a summary judgment application, certainly in relation to the claims for an equitable lien.

15 In my opinion, these proceedings are related to the Family Court proceedings and, in my view, it is more appropriate that the proceedings be determined in the Family Court. This is because the issues concerning the contribution of the plaintiff and the second defendant and the first defendants to the real estate are intertwined and should be dealt with in the one place.

16 Alternatively, I consider it is in the interests of justice that the proceedings be transferred, and I say this because, first, the contributions which have been made by the parties; that is, by the plaintiff and the second defendant and by the first defendants in relation to this property; are all issues which have to be determined. It would be, in my view, not in the interests of justice to have some of those issues about contribution dealt with in the Family Court; that is, the contributions as between the plaintiff and the second defendant; and to have a separate consideration of those issues in this Court in relation to the title to the property. In a sense, the title to the property which has to be decided in the proceedings in this court depends upon an analysis of the contributions which have been made by the parties in the two sets of proceedings.

17 Another factor is that this is a true family dispute involving the financial relations between the plaintiff, the second defendant and the parents of the second defendant in relation to, not only the real estate, but also other property, such as a motor vehicle, over the period of the relationship between the plaintiff and the second defendant. For all of those reasons, I would make the order which has been sought by the plaintiff.