ALI & ALI

Case [2019] FamCA 1012


FAMILY COURT OF AUSTRALIA

ALI & ALI [2019] FamCA 1012

FAMILY LAW – PRACTICE AND PROCEDURE – Application for joinder – Whether the husband’s mother should be joined to property proceedings between the parties – Whether the joinder of the husband’s mother is a person whose interests would be affected by the making of an order under section 79 of the Family Law Act 1975 – Whether the joinder of the husband’s mother is necessary for the Court to completely and finally determine all matters in dispute – Application dismissed.

FAMILY LAW – PROPERTY – Settlement in relation to a marriage – Where the parties seeks orders for an adjustment of the matrimonial property – Where the husband contends he made a notable contribution to the property pool by way of winning the Lottery – Where the wife asserts the Lottery winnings were a joint contribution – Where the husband withdrew a large sum of money in cash and could not account for his expenditure – Where unaccounted funds withdrawn in cash by the husband are added back into the matrimonial property pool – Where the husband did not work for a significant period of the relationship – Where the wife has one adult child of a previous relationship and the husband has two children of a subsequent relationship – Where the parties own multiple properties in Australia and overseas – Where the parties agree the overseas property should be retained by the husband – Where Orders are made requiring the husband to pay to the wife $200,000 in accordance with findings made under section 79 of the Family Law Act 1975.

Evidence Act 1995 (Cth) ss. 76(1)
Family Law Act 1975 (Cth) pt. VIII, ss. 79, 75(2), 117.
Family Law Rules 2004 cl. 6 of sch, 1, r 6.02, 13.01, 13.04.

Allen v Snyder [1977] 2 NSWLR 685
AJO & GRO [2005] FLC 93-218
Baumgartner v Baumgartner [1987] 164 CLR 137
Bevan & Bevan [2013] FamCAFC 116
Briese & Briese (1986) FLC 91-713
British South Africa Co v Companhia de Mocambique [1893] AC 602
Campbell v Kuskey (1998) 22 Fam LR 674
Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631
Chen & Tan [2012] FamCA 225
Dickons & Dickons [2012] FamCAFC 154
DJM & JLM (1998) FLC 92-816
Efthidmiadis & Efthidmiadis (1993) FLC 92-361
Elford & Elford (2016) FLC 93-694
Fields & Smith (2015) FLC 93-638
Graf-Salzmann and Graf [2015] FCWA 68
Giumelli v Giumelli [1999] 196 CLR 101
Goddard Elliott v Fritsch [2012] VSC 87
Grier & Malphas [2016] FamCAFC 84
In theMarriage of Hickey (2003) 30 Fam LR 355
In the Marriage of Prince (1984) 9 Fam LR 481
Jabour & Jabour (2019) FLC 93-898
Jones v Dunkel [1959] 101 CLR 298
Kane & Kane (2013) FLC 93-569

Kowaliw and Kowaliw (1981) FLC 91-092

Lovine & Connor and Anor [2012] FamCAFC 168
Mayne & Mayne (2011) FLC 93-479
Marriage of Rosati (1998) 23 Fam LR 288
Miller v Sutherland (1990) 14 Fam LR 416
Muschinski…

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AGLC
ALI & ALI [2019] FamCA 1012
Case
[2019] FamCA 1012
Decision Date

CaseChat Overview and Summary

The case involved property settlement proceedings between a husband and wife. The husband's mother sought to be joined as a party to the proceedings, arguing her interests would be affected by any orders made under section 79 of the *Family Law Act 1975* (Cth). The court was therefore required to determine whether the husband's mother's joinder was necessary for the complete and final determination of the dispute.

The court was also required to determine the division of the matrimonial property. This involved considering the husband's claim of a significant contribution through lottery winnings, the wife's assertion that these were joint contributions, and the husband's inability to account for a substantial sum withdrawn in cash. The court also had to take into account the parties' respective contributions, including the husband's period of unemployment, the existence of adult children from previous relationships, and the ownership of multiple properties both in Australia and overseas.

The court dismissed the application for joinder, finding that the husband's mother's interests were not sufficiently affected to warrant her inclusion in the proceedings. In relation to the property division, the court ordered that unaccounted cash withdrawals by the husband be added back into the matrimonial pool. The court ultimately ordered the husband to pay the wife $200,000 and transfer his interest in certain Australian properties and a timeshare to her, while the wife was to transfer her interest in an overseas property to the husband. The husband was also restrained from dealing with certain properties and ordered to vacate the former matrimonial home, with the wife granted sole use and occupation.

Orders

Orders of the court

1.

That all previous Orders are discharged.

2.

That within 28 days of the date of these Orders:

(a) The Respondent husband shall:

(i) Do all acts and things and sign all documents necessary to transfer to the Applicant wife all of his right, title and interest in the properties:

a. B Street, Suburb C, New South Wales ("the Suburb C property")

b. D Street, Suburb E, New South Wales ("the Suburb E property")

c. Any interest that he has in F time share, described as a 7,000 annual credit membership ("F time share").

(ii) Pay the Wife the sum of $200,000, to an account as nominated by the Wife.

(b) The wife shall do all acts and things and sign all documents necessary to transfer to the husband all her right, title and interest in the properties situated at 1 & 2 G Street, City H State J, USA ("the State J property"). To give effect to this Order:

(i) The husband shall forthwith do all things to prepare the documents to be signed by the wife to give effect to this Order, and provide same to the solicitor for the wife; and

(ii) The wife shall sign the documents prepared by the husband to give effect to this Order on receipt of those documents by her solicitor, and then provide such documents to her solicitor to hold in Escrow pending compliance by the husband with Order (2)(a) ((2)(a)(i) and (2)(a)(ii) inclusive), and will attend to the exchange of these documents with the husband on his compliance.

3.

That pending implementation of Order (2), the husband shall be and is hereby restrained from:

(a) selling, transferring, encumbering, alienating or in any other way dealing with the Suburb C property or the Suburb E property, except in compliance with these Orders;

(b) selling, transferring, encumbering, alienating or in any other way dealing with the interest of the husband and the wife in the State J property;

(c) leaving the Commonwealth of Australia.

4.

That the husband vacate the Suburb C property within 28 days of the date of these Orders, and thereafter:

(a) the Husband shall remain away;

(b) the wife shall have sole use and occupation of the Suburb C property.

5.

Pending the husband's vacation of the Suburb C property, pursuant to these Orders, the husband shall do all acts and things to maintain the Suburb C property to a reasonable standard and in good condition.

6.

That in default of the husband's compliance with Order (4) above, a Warrant for Possession pursuant to r 20.54 of the Family Law Rules 2004 be issued in respect to the Suburb C property so as to provide vacant possession of the property to the wife.

7.

Liberty is granted for the parties to apply to the Court in chambers for the Warrant for Possession to issue.

8.

That the husband and wife shall forthwith do all acts and things to direct and pay the balance of the controlled monies retained by the solicitor for the Applicant on behalf of the parties to an account as nominated by the wife.

9.

That as between the wife and the husband, and subject to the above Orders, the wife and the husband shall each respectively retain all interest in and entitlement to:

(a) all personal property now in her/her respective possession or control;

(b) all shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively;

(c) all interests in life insurance policies and superannuation funds standing in his/her sole name respectively.

10.

Both the husband and wife release the other from all actions, proceedings, claims, demands costs and expenses whatsoever and howsoever arising which either of them had or may have against the other.

11.

That the parties shall do all acts and things necessary to give effect to these Orders.

12.

That in the event that either party does not sign any document that is necessary to give effect to these Orders, the Registrar of the Family Court of Australia Sydney shall be appointed pursuant to s 106A of the Family Law Act 1975 to execute such document in the name of the said party upon the Registrar being provide with evidence of said party not signing by way of Affidavit.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

In Briese & Briese (1986) FLC 91-713 at 75,181, Smithers J applied the House of Lords decision in Livesey v. Jenkins (1985) 1 All ER 106 in determining that:… in financial proceedings between spouses each party must make a full and frank disclosure of all material facts. In that case it was made clear that full and frank disclosure was required as a matter of principle in the light of the fact that it was the duty of the Court, taking into account a number of designated criteria, to make a decision which basically involved the exercise of a discretion. [Emphasis added]. His Honour further stated at 75,181:In my view it is fundamental to the whole operation of the Family Law Act in financial cases that there is an obligation of the nature to which I have referred. Livesey v. Jenkins makes it clear that mere compliance with rules of court or practice directions does not alter the basic principle of the need for full and frank disclosure by the parties. [Emphasis added]. In that regard, r 13.01(1) of the Rules relevantly provides that:… each party to a case has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the case, in a timely manner. Further, r 13.04(1) of the Rules relevantly provides that:A party to a financial case must make full and frank disclosure of the party's financial circumstances, including:(a) the party's earnings, including income that is paid or assigned to another party, person or legal entity;…(g) any disposal of property (whether by sale, transfer, assignment or gift) made by the party, a legal entity mentioned in paragraph (c), a corporation or a trust mentioned in paragraph (f) that may affect, defeat or deplete a claim:(i) in the 12 months immediately before the separation of the parties; or(ii) since the final separation of the parties; and … Clause 6 of Part 1 of Schedule 1 of the Rules relevantly provides:(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to: …(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute. Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). [Emphasis added] The fact that the obligation of disclosure exists as a duty to the Court, as well as the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents. In Graf-Salzmann and Graf [2015] FCWA 68 Walters J noted:… a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including a party's capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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