Barre & Barre; Gilliam & Barre - [2019] FamCA 315

FAMILY COURT OF AUSTRALIA

BARRE & BARRE; GILLIAM & BARRE

[2019] FamCA 315

FAMILY LAW – PRACTICE AND PROCEDURE – where the parties in two proceedings overlap – where proceedings listed together – where creditor in matrimonial proceedings also claims husband was her de facto partner – where declaration sought pursuant to s90RD of the Family Law Act 1975 (Cth) – where the husband’s legal representatives filed a Notice of Ceasing to Act one working day prior to the hearing – procedural fairness afforded to the husband – hearing was limited to the issue of interim property distribution.

FAMILY LAW – PROPERTY – Interim distribution – where funds in a controlled monies account – the second and third respondents are creditors of the husband in the matter of Barre & Barre – order for interim property distribution to all the parties.

Family Law Act 1975 (Cth) ss 79, 90AE, 90K, 90KA, 90RD, 91, 91A, 91B, 92, 92A
Family Law Rules 2004 (Cth) rr 1.04, 6.02

APPLICANT:

(SYC 6149 of 2016)

Ms Barre

FIRST RESPONDENT:

Mr Barre

SECOND RESPONDENT:

(SYC 6149 of 2016 and SYC 342 of 2019)

Barre Pty Ltd

THIRD RESPONDENT:

(SYC 6149 of 2016)

Ms Haynes

FOURTH RESPONDENT:

(SYC 6149 of 2016 and SYC 342 of 2019))

Ms Gilliam

FILE NUMBER:

SYC

6149
342

2016

2019

DATE DELIVERED:

8 May 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Harper J

HEARING DATE:

6 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Blackah

SOLICITOR FOR THE APPLICANT:

Swaab Attorneys

COUNSEL FOR THE FIRST RESPONDENT:

In person

COUNSEL FOR THE SECOND

RESPONDENT:

In person

COUNSEL FOR THE FIRST INTERVENOR:

Mr Salama

SOLICITOR FOR THE FIRST

INTERVENOR:

Wood Marshall Williams

COUNSEL FOR THE SECOND

INTERVENOR:

Mr Dura

SOLICITOR FOR THE SECOND

INTERVENOR:

Barry Nilsson Lawyers

Orders

Barre & Barre - SYC 6149 of 2016

Leave be granted to Ms Haynes and Ms Gilliam to intervene as parties to the proceedings.
Ms Haynes henceforth be named as Third Respondent.
Ms Gilliam henceforth be named as Fourth Respondent.
There be paid to each of the Applicant, Ms Barre, the First Respondent, Mr Barre, and the Third & Fourth Respondents, Ms Haynes and Ms Gilliam respectively, the sum of $25,000 from the funds held in the Controlled Monies Account in the name of Swaab Attorneys (#…78) within 7 days.
The parties execute all necessary documents and take all necessary steps to effect the payments referred to in the previous order.
Orders be made in accordance with Paragraphs 1(a) and 1(b) of the orders sought in the Applicant’s Amended Response to an Application in a Case filed 2 May 2019.
Except as provided in these orders, pending agreement of the parties, including the Third & Fourth Respondents, or further order of the Court, each of the parties, including the Third & Fourth Respondents is restrained from taking any steps to dissipate, release or otherwise deal with the balance of funds held by or on behalf of the Applicant and First Respondent in the Controlled Monies Account in the name of Swaab (#...78).
The Fourth Respondent’s Application in a Case filed 30 April 2019 be otherwise dismissed.
All extant applications be adjourned to 21 June 2019 at 12:00pm for call-over.
Each of the Applicant, the First Respondent and Second Respondent serve upon the Third & Fourth Respondents by no later than 4:00pm on 14 June 2019 copies of all material filed in these proceedings in relation to the financial issues between the Applicant and First Respondent after 11 September 2018.
The First Respondent file and serve a Financial Statement by no later than 4:00pm on 14 June 2019.
Leave be granted to the First Respondent to file and serve an Application in a Case seeking either removal of the Third and/or Fourth Respondents as parties or for the release of any further monies to him and any Affidavit in support by no later than 4:00pm on 31 May 2019.
To the extent necessary, the requirements for the Third & Fourth Respondents to comply with rule 6.02 of Family Law Rules 2004 (Cth) in relation to their intervention in the proceedings be dispensed with.
All questions of costs for the period 6 May 2019-8 May 2019 be reserved.

IT IS NOTED THAT:

Applications for Costs have been made by the Applicant and Third & Fourth Respondents.

Gilliam & Barre - SYC 342 of 2019

The Applicant’s Application in a Case filed 27 March 2019 seeking review of the Registrar’s decision be dismissed.
All extant applications be adjourned to 21 June 2019 at 12:00pm for call-over.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barre & Barre; Gilliam & Barre has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6149 of 2016 and SYC 342 of 2019

Ms Barre

Applicant

And

Mr Barre

First Respondent

And

Barre Pty Ltd

Second Respondent

And

Ms Haynes

Third Respondent

And

Ms Gilliam

Fourth Respondent

REASONS FOR JUDGMENT

These are reasons for judgment in proceedings SYC 6149/2016 and SYC 342/ 2019. The two proceedings were listed before the Court on 6 May 2019. As will become apparent, they share some of the same parties. As described in more detail later in these reasons, the central question relevant to this judgment is whether certain funds should be released from a controlled monies account.
Proceedings SYC 6149/2016 (“the matrimonial proceedings”) are proceedings between the applicant wife, Ms Barre (“the wife”), and the respondent husband, Mr Barre (“the husband”). These proceedings were originally commenced in the Federal Circuit Court of Australia in 2016. The proceedings have been before the Court for many years with numerous interlocutory applications.
The wife has amended her application many times and the present incarnation of her pleading is the Sixth Amended Initiating Application filed on 2 May 2019. The applicant wife’s application seeks both property and parenting orders. The husband has not filed a response to the Sixth Amended Initiating Application, but he did file a Response to the immediately preceding pleading of the wife, in which he also sought parenting and property orders. For the purposes of this judgment it is not necessary to set out the proposed orders of either party in great detail. I will refer to them as necessary in the course of these reasons.
Proceedings SYC 342/2019 (“the de facto proceedings”) are proceedings between the husband and Ms Gilliam, in which Ms Gilliam makes claims against the husband pursuant to part VIIIAB of the Family Law Act 1975 (“the Act”) asserting that a de facto relationship had existed between her and the husband from June 2016 to December 2018.
Ms Gilliam seeks declaration on the existence of a de facto relationship pursuant to s90RD of the Act and consequential orders. The husband denies any de facto relationship existed. Ms Gilliam also contends that she is a creditor of the husband. The husband agrees, and although in his Affidavit filed 17 April 2019 at paragraph 19 the husband appears to concede Ms Gilliam leant him a total of $150,000, he also contends he has repaid $118,000, leaving the sum of $32,000 still outstanding. However, he has conceded in open Court more than once that he owes Ms Gilliam no less than $150,000. For her part, Ms Gilliam asserts the debt is no less than $252,661. For the purpose of this judgment, and for reasons which will appear later, the precise quantification of the debt is not necessary, although it may have to be quantified at some point in the future.
There are several other parties to the matrimonial proceedings, including a proposed intervener. The second respondent is a company called Barre Pty Limited (“the company”).
Ms Haynes is the first intervener in the matrimonial proceedings. She is the mother of the wife. Ms Haynes contends she is a creditor of the husband, both directly and through loans made to the company. Ms Haynes has also commenced proceedings in the District Court of New South Wales claiming repayment of loan monies. I note that the defendants in the District Court proceedings are the husband, the wife and the company. Ms Haynes claims $160,000 from the husband and wife in those proceedings and $136,000 from the company.
In the matrimonial proceedings, the second proposed intervener is Ms Gilliam. She has made application to intervene on the basis she is both a creditor of the husband and a claimant upon his assets as a de facto spouse if her Application for a declaration pursuant to s90RD of the Act is successful.

Short Procedural History

It is not necessary to relate at length or in great detail the procedural history of both matters. However, it is useful to refer to the manner in which the proceedings came to be listed together on 6 May 2019.
In the matrimonial proceedings the husband filed an Application in a Case on 13 December 2018. This Application sought orders that monies held by Swaab Attorneys in a controlled monies account (#...78), which I will refer to as the controlled monies account, be released into an account nominated by him and that certain orders made by his Honour Judge Kemp on 28 July 2017, in the Federal Circuit Court requiring monthly accounts from the husband, be discharged. Swaab Attorneys are the solicitors for the wife.
This Application of the husband was given a return date of 21 January 2019 in a Judicial Duty List.
It was common ground that the funds in the controlled monies account were the proceeds of sale of a property at G Road, Suburb B. The Suburb B property was owned by the company. It is relevant to record here that the husband is the director of the company and its two issued shares are held by D Pty Limited, of which the husband is sole director and shareholder.
In the matrimonial proceedings Ms Haynes filed a Notice of Intervention by Person Entitled to Intervene and an Affidavit in support on 15 January 2019. She annexed to this Affidavit a schedule of orders she would seek as intervener. These orders included an order seeking to freeze the funds in the controlled monies account.
On 18 January 2019, the wife filed a Response to the husband’s Application in a Case seeking a range of orders, including Orders 1(a) and (b) for the payment to her of a share of rent already received by the husband from the property at D Street, Suburb J (“the D property”), up to the date of the response together with half of any future rental income. It was common ground that the wife and husband are joint owners of the D property. This Response was also listed on 21 January 2019.
Ms Gilliam filed a Notice of Intervention by Person Entitled to Intervene in the matrimonial proceedings on 18 January 2019 and Affidavit in support.
The matrimonial proceedings came before his Honour Justice Loughnan on 21 January 2019. Orders were made by consent for Ms Gilliam to particularise her claims for monies owing and the parties’ contending applications, including notices of intervention were stood over to 6 May 2019 in the Judicial Duty List.
In the de facto proceedings, Ms Gilliam filed her Initiating Application with Financial Statement and Affidavit in support on 22 January 2019. Leave was given to list her Initiating Application on 19 February 2019.
After several procedural hearings, the proceedings came before me on 8 April 2019. Registrar Bastiani had noted that on 19 February 2019 the husband conceded he owed Ms Gilliam $150,000. This concession was repeated before me on 8 April 2019. On that date both the husband and Ms Gilliam were represented by counsel. Before Registrar Bastiani, and again before me, the husband also consented to the interim release to Ms Gilliam of $25,000 from the controlled monies account, subject to agreement by the affected parties in the matrimonial proceedings.
I note here that on 27 March 2019, Ms Gilliam filed an Application in a Case in her de facto proceedings seeking review of a registrar’s decision to list the proceedings on 8 May 2019. It is not clear what happened to this Application, but it appears to have been overtaken by events and has become otiose.
On 8 April 2019 I listed the de facto proceedings for hearing on 6 May 2019. The issue in the de facto proceedings, the question of whether a declaration sought by Ms Gilliam pursuant to s90RD of the Act as to the existence of a de facto relationship should be made. An estimate was given of three days hearing time. I made procedural directions and noted that the matrimonial proceedings were also listed on 6 May 2019 and that consideration may be given to consolidating the two proceedings.
Pursuant to orders made on 21 January 2019 in the matrimonial proceedings the parties engaged in private mediation on 12 April 2019. The mediation failed to resolve the disputes between the parties. On 30 April 2019, Ms Gilliam, as a proposed second intervener, filed an Application in a Case in the matrimonial proceedings seeking payment to her lawyers of $150,000 from the controlled monies account. This application was given a return date of 6 May 2019.
In the matrimonial proceedings the wife filed an Amended Response to an Application in a Case (“Amended Response”) on 2 May 2019. The amendments to proposed orders 1(a) and (b) did not change the nature of the orders sought in her original Response, but changed the amount claimed and inserted a mechanism for payment to the wife upon default in payment by the husband.
Both proceedings came before me on 6 May 2019. On that date the husband was self-represented. Counsel appeared briefly as a courtesy to the Court and asked to be excused after informing me that his instructor’s retainer had been terminated by the husband on Friday, 3 May 2019. I granted leave to counsel to be excused. The wife was represented by counsel, who had prepared a detailed case outline in support of the wife’s amended response to the husband’s Application in a Case in the matrimonial proceedings. Ms Gilliam was represented by counsel, who had prepared a detailed Case Outline for the hearing of her claim for a declaration of the de facto relationship pursuant to s90RD of the Act. Ms Haynes was also represented by counsel.
The husband applied for an adjournment of all proceedings. He submitted he was not ready, that his father was gravely ill and this had distracted him from attending to preparation for hearing. He had no money to pay his lawyers and he was generally “running on emotion”. He presented in court as emotional and, at times, confused in his submissions. Ms Gilliam did not consent to an adjournment of her Applications, but her counsel, Mr Dura, fairly conceded that the hearing for his client’s declaration as to the existence of a de facto relationship could probably not proceed in the circumstances. Nonetheless, he pressed for interim relief in the form of release of $25,000 from the controlled monies account to Ms Gilliam. As already noted, the husband had earlier agreed to this.
The wife also did not consent to any adjournment of her interim applications, but pressed for a hearing of her claims for interim relief set out in her Response. Her counsel, Mr Blackah, pointed out that the wife had been in the Court system for a number of years and the husband had changed lawyers a number of times. However, Mr Blackah fairly accepted that in the circumstances it would probably not be appropriate to deal with all his client’s claims for relief beyond the release to her of approximately $20,000 from the controlled monies account, referrable to rent received by the husband, and an order for the husband to account to her for future rental income from the D property, that is the relief claimed in orders 1(a) and (b) of the wife’s Amended Response.
Ms Haynes initially submitted the funds in the controlled monies account should be frozen. However, Mr Salama, who appeared for Ms Haynes, submitted that Ms Haynes would agree to $25,000 being released to Ms Gilliam on the basis that the other parties, apart from the company, should receive the same amount. He submitted that beyond this payment the funds in the controlled monies account should be frozen pending final determination of the parties’ contending claims.
The Court adjourned to allow the parties to discuss this proposal. Upon resumption of the hearing it was common ground that, in principle, each party should receive $25,000, but the husband sought an additional amount referable to the likely costs if his father passed away in the near future and the wife’s agreement to the release of such funds was conditional upon the Court making orders in accordance with paragraphs 1(a) and (b) of her Amended Response. Accordingly, there was no unqualified consent to the payment of $25,000 to each party.
After hearing from the parties I determined the Court should accede to the husband’s Application for adjournment, but only in part. Balancing the interests of the parties, the pressures upon Court resources and the need to utilise court time to progress both proceedings to finality, I proceeded to hear arguments for the release of $25,000 to each party other than the company, including the proposed interveners, the husband’s arguments for additional funds and the wife’s arguments for orders 1(a) and (b) in her Amended Response to be made. These reasons are limited to those issues.

Material relied upon

In light of the narrow issues for determination, Ms Gilliam relied upon her Financial Statement filed 22 January 2019 and her Affidavit in support filed 30 April 2019 together with a Bundle of Exhibits which I marked Exhibit A.
The wife relied upon her Amended Response to an application in a case and the affidavit filed on 2 May 2019 with her exhibits there too, which I mark exhibit 1 as a bundle, together with her case outline filed for the duty list on 6 May 2019.
The husband made reference to some material orally concerning his father in support of his adjournment application, but did not tender it after objection from other parties. He did not seek to rely on any other material.
Ms Haynes read her Affidavit filed 15 January 2019.

Consideration

These proceedings and their interrelationship gave rise to the appearance of some complexity. However, the issues to be determined by the judgment are very narrow. Before discussing the parties’ evidence and submissions relevant to those issues in more detail, it is important to emphasise four matters.
First, the property or financial orders sought by the wife and the husband for that matter, start from a declaration and that the Court give effect to a Binding Financial Agreement entered into of the husband and wife of 31 August 2005. Although the wife sought at one point to set aside the Binding Financial Agreement under s90K of the Act, she now presses for its enforcement and the husband conceded both on 6 May 2019 and by his most recent pleading that the Binding Financial Agreement is valid and binding upon the parties. Consequently, the matrimonial proceedings fall to be determined to part VIIIA of the Act, rather than part VIII. The jurisdiction of this Court to make property adjustment or as pursuant to s79 of the Act has, therefore, been removed by the existence of the binding financial agreement.
Secondly, although its validity and binding nature are not now in contention, the Binding Financial Agreement is silent on questions of child support and spousal maintenance. Both the wife and the husband seek parenting orders. The wife seeks orders both to enforce the Binding Financial Agreement pursuant to s 90KA of the act and for lump sum child support. She does not seek spousal maintenance because she has entered into a new relationship. According to paragraph 17 of her Affidavit sworn 2 May 2019 she commenced a new relationship in about 2016 and gave birth to a child of that relationship on 18 January 2018.

Thirdly, the husband conceded in open Court that he owed money to Ms Haynes. It is unclear whether he conceded the company also owed money to Ms Haynes. However, the central point is that Ms Haynes’s status as a creditor of the husband was not in doubt.
Fourthly, it can be seen that even if Ms Gilliam’s claim to a declaration and orders as a de facto spouse is unsuccessful, she will also remain a creditor of the husband.
The financial circumstances of the husband and wife can only be stated in a broad brush way at this stage of the proceedings. However, the wife’s evidence shows that there is presently a balance of some $492,000 in the controlled monies account. This was uncontested by the other parties. Also, according to the wife’s evidence, which was not the subject of any challenge, there was net equity in the D property of $1.554 million. The wife also owns C Street, Suburb J, which has net equity of $342,000 and the husband and wife are beneficiaries of a self-managed superannuation fund with a value of $733,000.
In addition, the husband has interests in some businesses. The value of these businesses is unclear. One such business, F Pty Limited, is in liquidation. According to the wife, the liquidator has made a claim upon the husband and wife for a shareholder’s loan of $499,166, but the wife denies ever being a director or shareholder of that company. The status of that particular claim otherwise remains unclear.
As between the husband and the wife, the division of assets will be governed by the Binding Financial Agreement. The wife’s claim for lump sum child support will also require determination at a final hearing. I note that since the Binding Financial Agreement excludes jurisdiction under Part VIII, s79(10) of the Act, as a vehicle to allow creditors to become parties and seek to protect their interests, does not apply. The same observation is made concerning s90AE of the act, which is limited in its application to proceedings under s79 of the Act. However, the interests of creditors may be taken into account in the exercise of any discretion pursuant to section 90KA or an intervener who is a creditor may seek to invoke the accrued jurisdiction of the Court to seek findings about the existence of their debt or debts. I express no concluded view about these questions in these reasons, but will return to the question of leave to intervene a bit later.
I am satisfied that each party should receive $25,000 from the controlled monies account. This will diminish its balance by $100,000.
At paragraphs 86 and 87 of her Affidavit filed 2 May 2019 the wife sets out a quantification of her claim based upon application of the provisions of the Binding Financial Agreement. Putting to one side the funds in the controlled monies account on her assessment, it would appear the husband would receive in round figures assets totalling $790,000 plus superannuation of $365,795.
The wife also asserts claims to lump sum child support and other costs, which total $563,168 on her evidence. She asserts that this total could fall upon the funds in the controlled monies account. However, this is not self-evident. The funds in the controlled monies account are owned by the company. As ultimate controller of the company as described above, the husband may be ordered to utilise controlled money account funds to satisfy the wife’s claims under the binding financial agreement, but this does not necessarily follow. The wife’s claims, if successful, may be satisfied in a number of different ways. I am not satisfied that this evidence establishes an impediment to the release of $25,000 to each party, including the wife, especially in circumstances where no party argued before me that such release should not take place by reason of the fact that the wife’s asserted claims to lump sum child support could not otherwise be satisfied.
Moreover, the funds in the controlled monies account form part of the asset pool in the matrimonial proceedings and may form part of the asset pool in the de facto proceedings if Ms Gilliam’s claims of a de facto relationship are upheld. Ms Gilliam has not quantified her claimed entitlement under part VIIIAB of the Act. However, even on her best case the alleged de facto relationship lasted for no more than two and a half years.
The value of the husband’s shares in the company, although presently not precisely quantified, will ultimately reflect, at least in part, the value of the controlled monies account, since the funds in the controlled monies account are owned prima facie by the company, of which D Pty Limited is the only shareholder, as already noted above. It was uncontroversial that both Ms Gilliam and Ms Haynes are creditors of the husband. Ms Haynes also claims to be a creditor of the company, as already pointed out.
Ms Gilliam’s evidence is clear that she is in a parlous financial situation. The wife also asserts that she is in difficult financial circumstances. I note that she is the primary carer of the two children of her relationship with the husband.
The financial position of the husband is presently opaque. There is no clear evidence before me about his financial position. The evidence suggests problems with disclosure. I can make no findings about this for the purposes of this judgment, but it is a reasonable inference that his circumstances are such that he is in need of some cash. He made submissions to this effect.
I am also satisfied that the wife should receive a payment of $20,562 from the controlled monies account, being her share of the rent received by the husband for the D property up to the filing of her Amended Response to an Application in a Case as well as ongoing receipt of half any future rent. I take account of the fact that the husband and wife own the D property as joint tenants. It was common ground that the husband has rented the D property and received rental income from it while he presently lives in a flat on the property.
The wife is prima facie entitled to half the income from the property, in my view. The husband did not dispute the wife’s entitlement to half the rent. He did, however, submit that at present all rental income is applied towards mortgage repayments. That may be so. However, the wife is entitled to half the rent as co-owner. She is also prima facie liable for half the mortgage payments or all the mortgage repayments on a joint and several basis as a co-mortgagor. She will have to make arrangements to meet any such liability. An ongoing receipt of half the future rent would be of assistance in this regard. Ms Gilliam did not wish to be heard in relation to proposed orders 1(a) and (b) in the wife’s Amended Response. Nor did Ms Haynes.
Ms Gilliam made no submission in opposition to $25,000 being paid to Ms Haynes. Ms Haynes made no submission in opposition to $25,000 being paid to Ms Gilliam.
Mr N submitted a payment to Ms Gilliam of $25,000 will not produce a result which could disentitle any of the other parties. On the evidence before me, I agree. In truth, that submission could be extended to the total payment of $120,562 from the controlled monies account. This would also be consistent with the position of all parties in seeking a payment to each of them of $25,000. There are sufficient assets available to satisfy the claims of other parties and interveners, even if the controlled monies account is diminished by this amount. Payment of $25,000 to each of Ms Gilliam and Ms Haynes would also, of course, proportionally reduce the amount owing to them as creditors.
It remains to deal with the husband’s argument that he should receive a further amount from the controlled monies account.
He initially submitted such amounts should be up to a total of $80,000 to $100,000, but he later reduced this to $40,000. He made submissions that he would need this money to give his father appropriate funeral rites and return him to Country M for burial in the event that he passed away in the near future. Whilst, not unsympathetic to his situation, the other parties resisted any such extra payment to the husband because his application was made, in effect, “on the run”. There was no formal application documents supported by proper evidence proving the medical condition of his father, the prognosis or, more importantly, the likely costs associated with the father’s demise, should it take place. I accept those submissions. I decline to make any order at this stage for the release of further monies to the husband from the controlled monies account. The husband, however, is not prevented from bringing any further applications supported by proper evidence in the future.
Ms Haynes submitted that the funds in the controlled monies account should otherwise be frozen after the payments covered by these reasons are made. I accept these submissions in the circumstances, subject to further agreement of the parties or further order of the Court.
Before completing these reasons and pronouncing orders it is necessary to refer in more detail to the question of intervention. Part XI of the Act deals with some situations of interventions by persons in proceedings as of right. ss91, 91A, 91B and 92A of the Act specify a range of persons entitled to intervene.
Neither Ms Haynes nor Ms Gilliam is a person entitled to intervene pursuant to any of those sections. Section 79(10) of the Act entitles, amongst others, a creditor to become a party to proceedings in which an application is made under that section by a party to a marriage:
(10) The following are entitled to become a party to proceedings in which an application is made for an order under this section by a party to a marriage (the subject marriage ):
(a) a creditor of a party to the proceedings if the creditor may not be able to recover his or her debt if the order were made;
(aa) a person:
(i) who is a party to a de facto relationship with a party to the subject marriage; and

(ii) who could apply, or has an application pending, for an order under section 90SM, or a declaration under section 90SL, in relation to the de facto relationship;

(ab) a person who is a party to a Part VIIIAB financial agreement (that is binding on the person) with a party to the subject marriage;

(b) any other person whose interests would be affected by the making of the order.

However, since the validity of the Binding Financial Agreement is not in question and neither party seeks to set it aside under s90K of the Act with consequential reliance on s79 the matrimonial proceedings are not now, even if they once were, “proceedings in which an application is made for an order under s79”. This much is clear from the contents of the wife’s sixth amended initiating application filed 2 May 2019.
The Response to the wife’s further Amended Initiating Application filed by the husband on 31 October 2018 also concedes the validity of the Binding Financial Agreement and he, as already noted, did so in open Court. Consequently, s79(10) of the Act grants no entitlement to Ms Haynes or Ms Gilliam to intervene in the matrimonial proceedings.
However, s 92 of the Act provides that in proceedings other than divorce or validity of marriage proceedings any person may apply for leave to intervene in proceedings and the Court may make an order entitling that person to intervene. Accordingly, both Ms Haynes and Ms Gilliam require leave to intervene. Such leave has not yet been formally granted.
Rule 6.02 of the Family Law Rules 2004 (Cth) (“the Rules”) requires a person seeking to intervene to file an Application in a Case and Affidavit in support setting out the facts relied upon to support intervention. It is not clear from the file that Ms Haynes or Ms Gilliam have fully complied with r6.02 of the Rules by filing an Application in a Case, although, as already noted, both of them have filed Affidavits in support of their proposed intervention.
When the hearing was concluded on 6 May 2019, I stood over the proceedings to 8 May 2019, at 11 am for the delivery of judgment. It was clear on 6 May 2019 that all parties represented and Mr Barre proceeded on the basis that it was appropriate for both Ms Gilliam and Ms Haynes to intervene in the matrimonial proceedings, in particular for the purposes of receiving a possible payment of $25,000, along with the husband and the wife. It was not contended by Mr Barre at that stage that leave to intervene should not be granted. Prior to the delivery of these reasons for judgment on 8 May 2019, Mr Barre served on the other parties, and, I am told, forwarded to my chambers, a document entitled Orders Sought and a bundle of evidentiary material.
When the matter was called on 8 May 2019, I raised with counsel for Ms Gilliam and counsel for the wife the fact that there appeared to be further documentary material sought to be relied upon by Mr Barre. With the consent of all parties, the document entitled Orders Sought was tendered to me and I marked it Exhibit 2.
That document set out in ten paragraphs a range of what appeared to be proposed order by Mr Barre, which ranged far and wide beyond the narrow ambit of debate on 6 May 2019. However, it was apparent from the terms of paragraphs 2 and 3 of Exhibit 2 that Mr Barre purported to raise either resistance to Ms Haynes and Ms Gilliam being given leave to intervene or, alternatively, sought that they be removed as parties.
In light of that characterisation of paragraphs 2 and 3, I invited submissions from counsel for Ms Gilliam and counsel for the wife together with the representative of Ms Haynes on the question of leave to intervene. All proposed intervening parties and the wife submitted that the basis upon which the hearing was conducted on 6 May 2019 was that if leave to intervene had not yet been granted to either Ms Gilliam or Ms Haynes it was implicitly appropriate in circumstances where they both claim to be creditors and their status as creditors was not put in dispute.
Whilst I take account of the fact that there are presently on foot proceedings in the District Court brought by Ms Haynes as plaintiff and it may be necessary for her to elect whether to prosecute those proceedings in circumstances where she may become a party to the matrimonial proceedings in this Court, in my view that is not a sufficient basis in light of the other matters referred to justify refusing leave for her to intervene.
Moreover, there is, in my view, clear utility in granting leave to both Ms Haynes and Ms Gilliam to intervene as acknowledged creditors in these proceedings as a way in which to enable all outstanding issues to be determined in an expeditious and efficient fashion. This accords with the approach to be taken in all proceedings as set out, for example, in r1.04 of the Rules.
Accordingly, I propose to grant leave to both Ms Haynes and Ms Gilliam leave to intervene in these proceedings. I also propose to grant to Ms Gilliam and Ms Haynes that the requirements of r6.02 of the Rules be dispensed with to the extent necessary.

Future Directions

Finally, I note that although these proceedings have the appearance of complexity, in truth the issues reduce to a reasonably manageable compass.
In the matrimonial proceedings, once it is accepted the Binding Financial Agreement is binding the issues become confined to the factual disputes relevant to its interpretation and enforcement. The wife’s application for child support, Mr Blackah submitted, and I accept this is probably correct, is likely to occupy no more than two days’ hearing time.
After their leave to intervene is granted, the only question in relation to Ms Gilliam and Ms Haynes is the size of the debts owed to them and whether and how they should be discharged in the context of the available assets.
In the de facto proceedings, the principle factual question is the existence or otherwise of the alleged de facto relationship.
I propose, therefore, to stand over both proceedings to call over on 21 June 2019. At that time, consideration will be given to whether the proceedings should be consolidated or at least dealt with together on some basis and to the allocation of final hearing dates and any necessary procedural directions.

I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Harper delivered on 8 May 2019.

Associate:

Date: 6 June 2019