Badakar & Badakar
[2023] FedCFamC1F 638
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Badakar & Badakar [2023] FedCFamC1F 638
File number(s): DGC 2060 of 2020 Judgment of: JOHNS J Date of judgment: 14 July 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – joinder – application by wife for joinder of the husband’s mother – where the wife claims the husband transferred properties to his mother post-separation – where the wife claims the transactions entered into by the husband were intended to defeat her property claim – where the husband and his mother oppose the wife’s application – where the proposed second respondent’s rights may be directly affected by proceedings – where the husband’s mother should be joined to proceedings Legislation: Family Law Act 1975 (Cth) s 79(10)(b)
Federal Circuit and Family Law Rules of Australia (Family Law) Rules 2021 (Cth) Rules 3,01, 3.03
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 14 July 2023 Place: Melbourne Counsel for the Applicant: Mr Howe Counsel for the First Respondent: Appeared in Person Counsel for the Second Respondent: Appeared in Person ORDERS
DGC 2060 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS B BADAKAR
Applicant
AND: MR BADAKAR
First Respondent
MS C BADAKAR
Second Respondent
order made by:
JOHNS J
DATE OF ORDER:
14 July 2023
THE COURT ORDERS THAT:
1.That MS C BADAKAR be joined as the second-named respondent in the proceedings
2.That all extant interim applications be dismissed.
3.That all applications for final orders be adjourned for hearing before Justice Johns on 29 January 2024 at 10 am as a four-day matter and that the evidence in chief of all witnesses be given by affidavit.
4.The requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross‑examination occurring in the proceedings.
5.That by 4.00 pm on 16 October 2023 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c)a financial statement that complies with Chapter 6 of the Federal Circuit and Family Law Rules.
6.That the applicant pay all setting down and trial fees by 4.00pm on 16 October 2023.
7.that by 4.00pm on 13 November 2023 the first and second-named respondents each file and serve upon all other parties:
(a)an amended response setting out with precision what orders are being sought;
(b)the affidavits of evidence in chief of all witnesses including the respondent relied upon (noting that affidavits relied upon from previous hearings cannot be relied upon as evidence in chief);
(c)a financial statement that complies with Chapter 6 of the Federal Circuit and Family Law Rules.
8.That by 4.00pm on 27 November 2023 the applicant file and serve any affidavit in reply to that of the affidavits of the respondents.
9.If there is no agreement as to the value of the property subject of the proceedings by 29 September 2023 the parties do all acts and things necessary to appoint and instruct such single expert as may be agreed by 6 October 2023 (“the date”) as in default of agreement, within seven days of the date the applicant serve on the respondent a list of three suitably qualified valuers and within 14 days of receipt of the said list, the respondent nominate a single expert from that list, such single expert to value:-
(a)D Street, Suburb E; and
(b)F Street, Suburb G.
10.The cost of any valuation is to be paid in equal shares by the husband and the wife.
11.The valuation is to be completed and released to the parties by 1 December 2023.
12.That no party file any further material other than as provided by these orders without leave of the Court.
13.If a party takes objection to any evidence of another party:
(a)any objection be taken no later than 20 days prior to the trial by service of written notice on the solicitor for the other party;
(b)the party so served shall notify the objecting party in writing no later than 10 days prior to the trial of which objections so taken are the subject of agreement and which require determination;
14.That all parties have leave to issue subpoenae for the production of documents by arrangement with the registrar docketed with the management of the file,
15.That all parties have liberty to approach the registrar responsible for the management of the court file to vary the obligations under these orders to endure readiness for trial.
16.Should any party fail to comply with these orders or the ensuing amending directions of the docketed registrar:
(a)The Court may relist the case requiring the parties to justify why it should not be taken out of the list; and
(b)The party who has complied may immediately thereafter file an application in a case supported by an affidavit seeking for the matter to proceed on an undefended basis.
17.That the practitioners for the parties file and serve electronically to …@... by 4.00pm on 22 January 2023 the following:
(a)a concise set of orders to be sought if different from those already filed;
(b)a list of the applications and affidavits to be read and, if not the whole affidavit, the relevant paragraphs relied upon;
(c)a list of assets and liabilities;
(d)a list of objections to evidence upon which rulings are required; and
(e)a bullet-point summary of argument in relation to the issues in dispute.
18.That each party provide to the court at the commencement of the hearing, a statement setting out costs incurred to that date and from what source those funds have been paid and what costs are expected to be incurred until the completion of the hearing.
AND THE COURT NOTES:-
A.That the requirements of s 102NA(2) of the Family Law Act 1975 will apply to any cross-examination occurring in the proceedings;
B.That the parties have each been advised by the Court:-
a.That pursuant to those requirements, neither party may cross-examine the other party personally;
b.That pursuant to those requirements, any cross-examination of either party may only be conducted by a legal practitioner acting on behalf of the other party;
c.As to the availability of the Commonwealth Family Violence and Cross‑Examination of Parties Scheme and the means by which they may apply to that scheme for the provision of a lawyer; and
d.That a copy of these orders will be provided by the Court to Victoria Legal Aid, which administers the said scheme.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Badakar & Badakar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
By Amended Application in a Proceeding filed 17 September 2022, the wife Ms B Badakar seeks orders for the joinder of the husband’s mother as a party to the proceedings. At paragraph 1 of that application she seeks an order in the following terms:-
That the Respondent husband's mother, [Ms C Badakar], be added as a Respondent to the proceedings.
That application is supported by the affidavit of the wife filed 27 January 2022.
The application made by the wife is opposed by the respondent husband. He relies upon his Response to an Application in a Proceeding filed 5 October 2022 and further upon his affidavit that was filed on 24 May 2023.
The application is also opposed by the proposed second respondent, Ms C Badakar, who relied upon her Response to an Application in a Proceeding filed 24 May 2023 and an affidavit filed the same day.
Today, the applicant wife is represented by Counsel. The respondent husband and his mother, the proposed second respondent, appear at Court representing themselves. The proposed second respondent has had the assistance of an interpreter to aid her in understanding the proceedings and also in making submissions to the Court.
The basis upon which the applicant seeks the joinder of the proposed second respondent is set out plainly at [8] to [12] inclusive of her affidavit filed 27 January 2022. Those paragraphs provide as follows.
[8]At the time of our separation, the Respondent was the registered owner of the following residential properties:
i. [D Street, Suburb E], Victoria […]
ii. [F Street, Suburb G], Victoria […]
[9]While my application for settlement of the matrimonial property was on foot, the respondent transferred these two properties to one [Ms C Badakar], who is the mother of the Respondent.
[10] This transfer was done to defeat my claim.
[11]A title search of the two properties reveals that the transfers were made after the date of my application for property settlement…
[12]I note that the Respondent has produced documents purporting to show loans from his mother to himself. It is my assertion that these documents have been manufactured to defeat my claim.
The application that the wife seeks to press at final hearing is that which is contained in her Amended Application for Final Orders filed 19 November 2021. That application includes relief sought as set out at [2], which provides as follows:
Pursuant to section 106B of the Family Law Act 1975, the transfer of the property situated at and known as [D Street, Suburb E] Victoria […] more particularly described Volume […] Folio […] from First Respondent Husband to the Second Respondent be set aside.
Further, at [5] of that application, the applicant seeks the following relief:-
Pursuant to section 106B of the Family Law Act 1975, the transfer of the property situated at and known as [F Street, Suburb G] Victoria […] more particularly described Volume […] Folio […] from First Respondent Husband to the Second Respondent be set aside.
Those applications are opposed by the husband and the proposed second respondent.
The husband and wife were married in Country H in 2008. The position of the wife is that the parties separated in February 2020. The husband maintains that, in fact, separation occurred in November 2018. The date of separation is a contested issue, which is a matter that will be resolved upon a final hearing. It is not a matter that I can determine this day where there is no testing of evidence.
At the time of the parties' separation, whether that be in 2018 as contended by the husband or 2020 as contended by the wife, the husband was the registered owner of the properties at D Street and F Street. That this is so is confirmed in the husband's affidavit filed 24 May 2023, to which a copy of the certificate of title of the D Street property is annexed (annexure MB2). That annexure confirms that that property was transferred by the husband to the proposed second respondent in July 2020. That transfer clearly occurred after the parties' separation. It also occurred after the commencement of these proceedings, which were commenced by the wife upon her Application for Final Orders filed 23 June 2020.
The husband also relies upon annexure MB6 to his affidavit filed 24 May 2023, that exhibits the certificate of title in relation to the F Street property. That document confirms that the property is now registered in the name of the proposed second respondent. That document further confirms that the F Street property was transferred to the proposed second respondent by the husband in July 2020, after the date upon which the husband contends the parties separated.
It is said by the husband that although the properties the subject of this application were originally registered in his name, they were, in fact, properties held by him for his parents.
It is said by him that he entered into a loan agreement with his mother in relation to both properties and that the existence of that loan agreement confirms that he held no interest in those properties. That is a fact disputed by the wife. Ultimately, the issues around how the properties were acquired and who held an interest in them at the time of their acquisition as well as in the ensuing period are factual disputes that will only be determined upon a testing of evidence at the final hearing.
The proposed second respondent confirmed her opposition to being joined to the proceedings. She submitted that to join her was not appropriate, as she described herself as not being educated and confirmed that she did not want to be part of the proceedings. She further stated that the properties the subject of the dispute had belonged to her late husband, and accordingly, she should not be required to return them to her son.
On any view, it is clear that there is a significant factual dispute between the parties in relation to the acquisition and ownership of the two subject properties. The common ground between the parties is that both properties were acquired during the parties’ marriage, and upon their purchase were registered in the husband's name.
The husband has produced bank statements that would indicate that he has met mortgage payments in relation to the D Street property. There is a real and live dispute as to whether the transactions that were entered into after the commencement of these proceedings to transfer those properties from the husband to the proposed second respondent ought be set aside.
Section 79(10)(b) of the Family Law Act 1975 (Cth) (“the Act”) states that “any other person whose interests would be affected by the making of the order”, as sought by the parties, are entitled to be joined as party to the proceedings. It is clear that if I am persuaded that I ought make orders as sought by the applicant setting aside the husband’s transfer of the properties to his mother, she, as the proposed second respondent, is a person whose rights will be affected by the making of the orders sought by the wife.
Rule 3.01 of the Federal Circuit and Family Court of Australia Rules 2021 (Cth) (“the Rules”) prescribes the procedure for joining a party to the proceeding. That rule provides as follows:-
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
The process for joining a party is that which is set out at rule 3.03 of the Rules. Specifically, rule 3.03(4), provides the following:-
A party may only add another party after the first court date with the leave of the court.
These proceedings have had their first court date. Accordingly, it is on that basis that the applicant now seeks leave to join the proposed second respondent.
Having regard to the agreed facts as to the history of the acquisition of the two subject properties and as to the timing of the transfer of those properties to the proposed second respondent, I am satisfied that her rights may be directly affected by the issues in the proceedings, and particularly by the applicant's application seeking an order pursuant to section 106B of the Act to set aside the transfers of property to her by the respondent.
Further, I am satisfied that it is necessary for the proposed second respondent to participate in the proceedings in order to enable the Court to determine the disputes between the parties as to their interests in the properties transferred to her by the respondent, and to determine the parties' competing section 79 applications.
Accordingly, I will make orders as sought by the applicant for the joinder of the husband’s mother as a party to the proceedings.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Ex-Tempore Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 14 July 2023
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