BAO & QUADE
[2021] FCCA 630
•1 April 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAO & QUADE | [2021] FCCA 630 |
| Catchwords: PRACTICE AND PROCEDURE – Joinder of parties after the commencement of proceedings. |
| Legislation: Family Law Act 1975 (Cth), ss.79, 75 Federal Circuit Court Rules 2001, r.11.01, 11.05 |
| Cases cited: Wayne v Dillon (2008) 40 Fam LR 543 Watson v Ling (2013) FLC 93-527 Manderville & Borah [2019] FCCA 2752 |
| Applicant: | MS BAO |
| Respondent: | MR QUADE |
| File Number: | BRC 5272 of 2020 |
| Judgment of: | Judge Howard |
| Hearing date: | 19 March 2021 |
| Date of Last Submission: | 19 March 2021 |
| Delivered at: | Brisbane |
| Delivered on: | 1 April 2021 |
REPRESENTATION
| Solicitors for the Applicant: | North Coast Law |
| The Respondent attending as a self-represented litigant. |
ORDERS
That the applications contained in paragraphs 1, 2, 3, 4, 5 and 11 of the Application in a Case filed by the Respondent (Mr Quade) on 9 October 2020 are hereby dismissed.
That the balance of the Application in a Case filed by the Respondent (Mr Quade) on 9 October 2020 shall be adjourned to a date to be fixed in the Federal Circuit Court of Australia in Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Bao & Quade is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 5272 of 2020
| MS BAO |
Applicant
And
| MR QUADE |
Respondent
REASONS FOR JUDGMENT
The matter before the Court involves property and parenting issues.
On 19 March 2021 the matter came before the Court for the hearing of a particular application. The husband (the respondent in the main proceedings) had filed an Application in a Case on 9 October 2020, seeking various orders. However, at the hearing on 19 March 2021 the application really became focused upon whether or not the Court should grant leave to the husband to join a person by the name of Ms C (also known as Ms C). Ms C was born in 1996. Ms C is the daughter of the applicant wife in the current proceedings. Ms C was born in China. Ms C's father was the first husband of the wife (Ms Bao). Ms C's father was a member of the China armed forces. Unfortunately for Ms C her father was killed in an aircraft accident in 1997.
The husband alleges that the wife owned an apartment in City D, China. He says that after the separation the property was sold on 18 October 2018 and he alleges (in his brief affidavit filed 30 September 2020) that the net proceeds of sale of the apartment were paid to Ms C (the wife's daughter). In paragraph 5 of that affidavit the husband refers to the apartment as being "her residential apartment property". That is a reference to the wife. The husband has provided in annexure 1 of his affidavit a copy of a document which is written in Mandarin (on the reverse page) and translated into English on the front page. The translation has been done by the wife – presumably at the request of the husband. The document shows that the buyer of the property in City D was, "Mr E".
There are two "sellers" of the property namely the wife – Ms Bao (the wife) and her daughter (Ms C). As to the “ownership” in respect of the City D property this is indicated on the document (annexure 1 of the husband's affidavit) as having been owned completely by Ms C. This is apparent from the column headed "percentage sold – All". The document also notes that the buyer (Mr E) under the heading – "percentage bought." It included the word "All". The document – on its face – indicates two sellers but that so far as “ownership” was concerned the sole owner was Ms C – the daughter of the wife in the current case.
The husband in the current proceedings seeks to join Ms C as a party to the proceedings. The Court has been told the net property pool in this case is approximately $770,000. The Court has also been told (paragraph 7 of the wife's affidavit filed 18 March 2021) that the sale price was $140,000 AUD (or at least the equivalent in Chinese currency).
The wife in her affidavit (filed 18 March 2021) includes the following paragraphs:-
“3. I have disclosed to Mr Quade that my daughter, Ms C, was the recipient of the proceeds of the sale of the China property. This property was bought by her father ( deceased) and in as in tradition and expectation when the property was sold the proceeds went to her by way of inheritance. As documented in Mr Quale's affidavit, annexure 1 the property was solely owned by my daughter. I was merely the guardian.
4. I do not know how my daughter has used her inheritance. However, she had to move from the Family Home due to Domestic Violence against her by Mr Quale and assume she used the funds to support herself.
5. I do not agree that my daughter's inheritance should be added to the property pool in these proceedings.
6. I have provided Mr Quale with the sale transfer document as he asked, and I have provided him a translation. He is completely at liberty to obtain his own translated copy.
7. I have disclosed the sale price of the property as the equivalent of $140,000.”
The husband's own affidavit (annexure 1) indicates that the City D property in China was owned by Ms C. This is indicated by the word "All" being included in the column under the heading, "percentage sold". I agree with the submission made on behalf of the wife – if the husband wishes to obtain an independent translation of the Mandarin document setting out the sale and transfer of the property in City D, China – that he is perfectly entitled to do so.
The husband told the Court on 19 March 2021 (he is self-represented) that he "presumed" that the property was owned by the wife. It seems that the parties might have lived in that property in China for some period of time.
Joinder of a party is covered by Part XI of the Federal Circuit Court Rules 2001. One of the relevant rules is 11.01. Rule 11.01 provides in subsection 1:-
(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
I queried at the outset the fact that the husband had not served the proposed respondent with a copy of the Application in a Case. I considered adjourning the matter to give him time to serve the document. I would have required him to do that, pursuant to rule 11.05. Even in the absence of rule 11.05 – on procedural fairness grounds the proposed respondent (Ms C) should have been served with a copy of the application so that she could have been heard. As I say, I considered adjourning the matter in order to give the husband an opportunity to serve Ms C.
However, I was persuaded by the submissions made by Ms Moseley, solicitor on behalf of the wife to the effect that the application to join Ms C should be dismissed. The husband has not established that Ms C is "a person whose participation is necessary for the Court to completely and finally determine all matters in dispute" – in this proceeding. On the evidence before the Court Ms C is the owner of the property. The wife has provided some further background in relation to how Ms C came to be the owner. The property had originally been bought by Ms C's father. The matter before the Court relates to section 79 property adjustment proceedings. There are, of course, also parenting proceedings on foot.
In Wayne v Dillon (2008) 40 Fam LR 543 Warnick J spoke of the importance of a party (in this case the husband) particularising a cause of action against a proposed party; (I note paragraph 7 of the decision in Wayne v Dillon). The husband seems to have "presumed" or "suspected" that the City D property had been owned by the wife; that the City D property had been sold and that the wife’s daughter from an earlier marriage had received the sale proceeds. However, in the husband's own affidavit the only evidence which is relevant to this issue is annexure 1. As noted earlier in these reasons, annexure 1 indicates that all of the City D property had been owned by Ms C. There is, therefore, it seems to me not a properly particularised claim to be made against Ms C. The property is hers (100%) and she has sold it to another party. The wife's involvement is (as explained by the wife) as a guardian.
I have come to the conclusion that the husband therefore has not established that Ms C is a necessary party. I also note what was said by Warnick J in paragraph 18 of Wayne v Dillon. In paragraph 18 His Honour states:-
“18. The word ‘necessary’ in r 11.01(1) must mean something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be ‘necessary’.”
As indicated during the course of argument, there are available alternative means in the present case to joining Ms C to the substantive proceedings. The husband will still be permitted at the final hearing to question the wife in relation to the City D property. If the Court determines that the wife did have some form of interest in that property – this can still be a matter taken into account by the Court in the section 79 property adjustment proceedings. More particularly, the Court could craft an order in the substantive proceedings to address the issue. In this regard, I drew the parties attention to section 79(4) and section 75(2)(o). I also note the decision of Justice Murphy in Watson v Ling (2013) FLC 93 – 527.
I also note that the Court is required to consider matters of prejudice. The wife in this case points out that her daughter (Ms C) has a domestic violence order against the husband. If she does not have a current domestic violence order she certainly obtained one on 19 March 2018 in the Suburb F Magistrates Court. It is maintained by the wife that it would cause prejudice – at least, by way of stress and clearly in respect of cost – to join Ms C as a party. I think that submission is correct.
The primary reason I am dismissing the husband’s application to join Ms C is because she is not a "necessary" party to the proceedings as required by rule 11.01. In addition – the prejudice to be caused to Ms C by being brought into a property adjustment proceedings between her mother and her mother's former husband exceeds any prejudice that might be caused to the husband by the non-joinder of Ms C. The non-joinder of Ms C will not prevent the husband from seeking an order under section 79 adjusting the property interests more in his favour – if the Court concludes that the City D property was actually owned by the wife or at least partially owned by the wife.
To put it another way – an order can be crafted to protect the husband if that becomes necessary. The prejudice to Ms C outweighs the prejudice to the husband (Mr Quade). In relation to the issue of prejudice I note that this has been referred to in multiple decisions, including a decision of Her Honour Judge Spelleken in Manderville & Borah [2019] FCCA 2752.
For the reasons noted – the husband's application to join Ms C as a party to these proceedings is dismissed. That effectively means that in respect of the application in a case filed 9 October 2020 any of those orders sought relating to the joinder of Ms C are dismissed. That includes paragraphs 1, 2, 3, 4, and 5. I'm dismissing 5 because the applicant has disclosed the sale price of the property in City D. That was $140,000.
I would also dismiss paragraph 11 (which sought an order for substituted service on Ms C). As to the balance of the orders sought in that Application in a Case – these will need to be adjourned to a date to be fixed. Many of them seem to be in the nature of interrogatories. The time available to hear this matter on 19 March was not sufficient to deal with the ancillary matters contained in the Application in a Case filed 9 October 2020.
The Court indicated at the outset that there was not to be any consideration of parenting matters. That was not contained in the Application in a Case. The current order is for four nights a fortnight with the father. So far as parenting is concerned the case involves two young boys X and Y (born in 2008 and 2010 respectively). They live primarily with the mother and spend four nights per fortnight with the father. The father would like an equal time order. It was apparent to me that the question of whether or not an equal time order should be made is something that should be left to the final hearing.
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 1 April 2021
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