Bianchi & Bianchi
[2022] FedCFamC2F 25
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bianchi & Bianchi [2022] FedCFamC2F 25
File number(s): ADC 1769 of 2019 Judgment of: JUDGE McGINN Date of judgment: 4 February 2022 Catchwords: FAMILY LAW – financial, commercial and other dealings between parties to a marriage and third parties – whether legal interests in certain real property which otherwise might comprise the majority of the property pool belongs to either the husband and/or the wife and/or third parties – third party claims against property held by the husband and/or wife including in respect of a partnership between the husband and the third parties – claim by third respondent against a company of which the husband and third respondent are sole shareholders and directors – the necessity for the provision of particulars at this time – need for particulars to facilitate efficient disposition of proceedings – necessary parties – joinder of company Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 Part 3.1
Family Law Act 1975 (Cth)Division: Division 2 Family Law Number of paragraphs: 32 Date of hearing: 3 February 2022 Place: Adelaide Counsel for the Applicant: Mr Richards Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the First Respondent: Ms Watson Solicitor for the First Respondent: Jordan & Fowler Family Lawyers The Second Respondent: Ms C Bianchi Counsel for the Third Respondent: Ms Miller Solicitor for the Third Respondent: Norman Waterhouse Lawyers ORDERS
ADC 1769 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BIANCHI
Applicant
AND: MR BIANCHI
First Respondent
MS C BIANCHI
Second Respondent
MR BIANCHI
Third Respondent
ORDER MADE BY:
JUDGE McGINN
DATE OF ORDER:
4 February 2022
IT IS ORDERED:
1.That pursuant to part 3.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 that each of the applicant and respondents join Bianchi of D Pty Ltd as the fourth respondent to these proceedings and so name the said company in all documents to be filed on behalf of any party.
2.That in respect of the wife’s application for final orders by her Amended Initiating Application sealed 9 April 2021 at [8] seeking a declaration in respect of E Street, Suburb F:
(a)within 42 days the wife do serve particulars of:
(i)the type(s) of cause(s) of action and, in respect of each cause of action, the elements of that cause that are asserted to be required to be established by the wife to claim the relief she seeks; and
(ii)in relation to each element referred to in the preceding subparagraph:
A.by separate paragraphs, the material facts in chronological order (where present) which will be asserted to establish each element seriatim; and
B.the documents that support each such assertion.
(b)within 56 days the second respondent serve particulars of any defence or answer to:
(i)each type(s) of cause of action and each of the elements thereof; and
(ii)any answer to each of the material facts and documents asserted by the wife and any document that supports such answer.
(c)within 63 days the wife file and serve a consolidated table entitled “Wife’s claim in respect of the E Street, Suburb F property” of the wife’s and the second respondent’s particulars referred to in this orders such that each particular of the wife shall be followed by the second respondent’s answer to that particular.
3.That in respect of the third respondent’s claims against the fourth respondent company Bianchi’s of D Pty Ltd:
(a)within 42 days the third respondent do serve particulars of:
(i)the type(s) of action and in respect of each cause of action the elements of that cause that are asserted to be required to be established by the third respondent to claim the relief the third respondent seeks;
(ii)in relation to each element referred to in the preceding subparagraph:
A.by separate paragraphs, each of the material facts in chronological order (where present) which will be asserted to establish that element; and
B.the document(s) that support each assertion.
(b)within 56 days that the fourth respondent company serve particulars of any defence or answer to:
(i)each type(s) of cause of action and elements thereof; and
(ii)any answer to each of the material facts and documents asserted by the third respondent and any document that supports such answer.
(c)within 63 days the third respondent do file and serve a consolidated table entitled “third respondent’s claims against fourth respondent company” of the third respondent and fourth respondent’s particulars referred to in this order such that each particular of the third respondent shall be followed by the fourth respondent’s answer to that particular.
4.That in respect of the wife’s claim for wages, superannuation and other entitlements against the partnership “Mr G and Mr Bianchi” and Bianchi of D Pty Ltd:
(a)within 42 days the wife do serve particulars of:
(i)the type(s) of action and, in respect of each cause of action, the elements of that cause that are asserted to be required to be established by the wife to claim the relief she seeks; and
(ii)in relation to each element referred to in the preceding subparagraph:
A.by separate paragraphs, each of the material facts in chronological order (where present) which will be asserted to establish that element; and
B.the document(s) that supports such assertion.
(b)within 56 days each of the fourth respondent company and the first respondent husband and third respondent as partners serve particulars of any defence or answer to:
(i)each type(s) of cause of action and the elements thereof; and
(ii)any answer to each of the material facts and documents asserted by the wife and any document that supports any such answer.
(c)within 63 days the wife do file and serve a consolidated table entitled “Wife’s claims against company and partnership” and the wife’s, fourth respondent and partnership particulars referred to in this order such that each particular of the wife shall be followed by the fourth respondent company and then the partnerships answer to each of the particulars.
5.That in respect of the third respondent’s claims against the first respondent husband in respect of the partnership styled “Mr G and Mr Bianchi”:
(a)within 42 days the third respondent do serve particulars of:
(i)the type(s) of action and in respect of each cause of action the elements of that cause that are asserted to be required to be established by the third respondent to claim the relief the third respondent seeks; and
(ii)in relation to each element referred to in the previous subparagraph:
A.by separate paragraphs, each of the material facts in chronological order (where present) which will be asserted to establish that element; and
B.the document(s) that support such assertion.
(b)that within 56 days the husband as the respondent partner serve particulars of any defence or answer to:
(i)each type(s) of cause of action and the elements thereof; and
(ii)any answer to each of the material facts and documents asserted by the third respondent and any document that supports such answer;
(c)that within 63 days the third respondent to file and serve a consolidated table entitled “Third respondent’s claim against partnership styled “Mr G and Mr Bianchi” comprising the third respondent and the husband as respondent partner particulars referred to in this order such that each particular of the third respondent shall be followed by the husband’s (as responding partners) answer to that particular.
6.That in respect of the third respondent’s other claims against the husband and/or wife:
(a)within 70 days the third respondent do serve particulars of:
(i)the type(s) of action and in respect of each cause of action the elements of that cause that are asserted to be required to be established by the third respondent to claim the relief that the referred respondent seeks; and
(ii)in relation to each element referred to in the previous subparagraph:
A.by separate paragraphs, each of the material facts in chronological order (where present) which will be asserted to establish that element; and
B.the document(s) that support that assertion.
(b)within 84 days that the husband and wife each serve particulars of any defence or answer to:
(i)each type(s) of cause of action and the elements thereof; and
(ii)any answer to each of the material facts and documents asserted by the third respondent and any document that supports such answer
(c)within 91 days the third respondent to file and serve a consolidated table entitled “third respondent claims against husband and wife” of the third respondent, husband, and wife’s particulars referred to in this order such that each particular of the third respondent shall be followed by that of the husband and then that of the wife.
7.That on or before 29 April 2022 each of the parties file and serve, as that party may be advised, any application for disclosure and/or expert evidence and/or transfer of proceedings to the Family Court and Federal Circuit Court of Australia (Division 1).
8.The parties do all such things as may be reasonably required to enable a Family Assessment to be carried out with respect to the competing applications for parenting orders before the Court, with such Assessment and the Family Assessment Report arising thereafter:
(a)To include interviews with the child X born in 2007 and, at the discretion of the expert, observed interaction of the child with any relevant adult person in addition to the parties as the expert considers appropriate;
(b)To be carried out by such Family Consultant as the parties agree within 14 days or in default of agreement, as Ordered by the Court upon application of either party at the expiration of that time;
(c)To be at the joint and equal expense of the parties; and
(d)To be released to the parties no later than 15 June 2022.
9.The Family Assessment Report to deal with the following matters:
(a)Any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and
(c)Any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
10.The solicitors for the parties’ forward copies of all documents filed with the Court and all Orders made in these proceedings to the nominated report writer in accordance with the directions of the Family Consultant.
11.The parties do all things necessary to facilitate the completion of the report by the expert, including making themselves available for appointments by the Family Consultant and executing any authorities for the release of information to the Family Consultant.
12.The Family Consultant be at liberty to liaise with any person in relation to the welfare of the child.
13.The parties be restrained from providing any documents (other than those filed with this Court or Orders made in these proceedings) to the expert without providing a copy to the other party, such copy to be provided no less than seven (7) days prior to any appointments with the expert (NOTING the expert has the discretion to accept or reject the document so provided to them).
14.That the Applicant Wife file and serve a copy of the Family Assessment Report within 48 hours of receipt of the same.
15.That this matter be adjourned to 29 June 2022 at 9.30am for consideration of:
(a)transfer of proceedings;
(b)trial listing directions;
(c)disclosure;
(d)expert evidence; and
(e)directions generally.
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 a pseudonym Bianchi & Bianchi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN:
The financial aspects of these proceedings arise out of two broad factual scenarios: –
(a)firstly, the breakdown of the marriage between the applicant wife and the first respondent husband; and
(b)secondly, the financial, commercial and other dealings including transactions between the first respondent husband, the second respondent (being the husband’s mother) and the third respondent (being the husband’s brother).
The second scenario impacts the first as the breakdown of the marriage between the husband and wife saw financial claims of property settlement and maintenance brought by the wife which on her case, the husband’s case and the second and third respondents cases as disclosed by affidavits filed to date, require an assessment of:
(a)whether legal interests in certain real property which otherwise might comprise the majority of the property pool for division between the husband and wife do in fact belong to either the husband and/or the wife and/or are subject to equitable interests held by others; and
(b)the taking of accounts between the husband and the third respondent in respect of a partnership between them and a claim by the third respondent against a company of which the husband and third respondent are the sole shareholders and directors.
The third respondent by an affidavit sealed 30 January 2020 and by his Response of the 31 January 2020 had set out his position in relation to these matters.
In part, the third respondent seeks orders for disclosure of production by the applicant wife and the first respondent husband and an adjournment of the wife’s application for final orders which, at that stage was seeking declarations, and orders for property settlement.
The wife’s Amended Initiating Application sealed 9 April 2021 at [9] seeks declarations of an unspecified nature in respect of the wife and third respondents entitlements to unpaid wages, superannuation and any other “alleged entitlements”.
That Amended Initiating Application also introduced parenting issues into the proceedings. A section 11F report of the Family Law Act 1975 (Cth) September 2021 has been made available in respect of those issues. Those issues remain unresolved.
Financial matters between the husband and wife also remain unresolved.
The financial contentions of the parties disclosed in affidavits filed to date can be summarised as follows: –
(a)E Street, Suburb F: registered proprietors: second and third respondents as tenants-in-common; claimant: wife that the husband has a beneficial interest in all of that of the second respondent in that property;
(b)H Street, Town J: registered proprietors: first respondent husband and third respondent as tenants-in-common in the partnership “Mr G and Mr Bianchi partnership”;
(c)K Street, Town J: registered proprietors, first respondent husband and third respondent as tenants-in-common;
(d)Bianchi’s of D Pty Ltd: first respondent husband half shareholder and director; third respondent half shareholder and director: third respondent making unspecified claim;
(e)“Mr G and Mr Bianchi partnership”: husband and third respondent equal partners possibly; claim by third respondent at least in respect of capital accounts.
There remain unarticulated claims by the third respondent against the company, partnership and the husband and wife (see Third Respondent’s first affidavit and the report of Mr L at page 1) and also by the wife against the partnership and a company for wages, superannuation and “other entitlements.”
The husband and his brother are parties to the proceedings; the company is not. The husband and his brother are the only shareholders and directors of the company and claims between them and in respect of the company can be taken to have been known to each other since the commencement of the proceedings. The wife has also been aware of those claims.
It is necessary that the company be joined as the fourth respondent and an order pursuant to Part 3.1 that each of the applicant and respondent’s join “Bianchi’s of D Proprietary Limited” as the fourth respondent will be made.
There was a mention /directions hearing in this matter on the 3 February 2022. Prior to that hearing the Court had circulated to the parties a foreshadowed set of orders and directions so as to permit both the financial and parenting aspects of this matter to be considered prior to the directions hearing and to limit the amount of time that might otherwise have to be allocated to the directions hearing.
Appearances on behalf of the wife, husband and third respondent at that directions hearing. There was no appearance by or on behalf of the second respondent.
The foreshadowed directions in relation to financial matters were directed to the articulation, through the provision of particulars, of the various claims made amongst the parties to date.
The Court considers that given the length of time that the proceedings have been on foot, the number of hearings that have occurred so far, costs associated with the proceedings (on the husband’s behalf as at 3 May 2021 being estimated in excess of $48,000), extent of the nature of affidavit to date (including that filed on behalf of the second respondent and third respondent including expert opinion and other witness evidence) and that mediation has now been concluded that the time has arrived for the parties to support apply and clearly articulate their respective positions about the various financial claims they maintain.
The Court considers the provision of particulars at this time to be a necessary step in defining the issues that might exist between the parties and place the Court and the parties in a clear position to ascertain what steps need to be taken to enable this matter to proceed to determination.
The third respondent opposed the making of orders and directions as to financial matters of the type foreshadowed informing the Court that advice had now been had by the third respondent from a commercial lawyer and that various claims including a taking of accounts and a consideration of what was termed “Division 7A” matters and the manner in which claims by or against the company Bianchi’s of D Pty Ltd might be made or taken had be considered. In addition it was stated the particularisation of such claims would take about six further weeks.
Further it was indicated that such claims would be pursued in other Courts.
Those matters are noted by this Court but do not dissuade it that for the purposes of the current proceedings – which are the concern of this Court – and that whatever may come to be done in other Courts is a matter to be considered when and if such proceedings come to be issued.
There was no submission, and there appears not to have to date (upon this Judges reading of the material filed to date) that this Court lacks jurisdiction or is otherwise unable to determine the matters placed before it to date by the parties including the second and third respondents.
Considerations such as those as the third respondent has pressed at the directions hearing of 3 February may need to be revisited (if at all) once the nature and extent of claims has been clarified by the provision of the foreshadowed particulars.
The third respondent needs to particularise his claims which are now at least two years old.
The wife needs to particularise her claim as they are at least two and a half years old.
In addition, the Court also notes that the parties have had the benefit of a mediation which has been a long time coming which implies that the parties must have given consideration to, and made known, their respective positions.
The third respondent claims by his affidavit to have an “interest” in the wife’s claim against the second respondent (the husband’s mother). He says this “interest” arises in the event that the wife’s claim is made out in relation to the E Street, Suburb F property and that the wife then might apply for as partition and/or sale (on the assumption that the wife may be successful in her claim). The Court disagrees. The third respondent’s role in the wife’s claim in respect of the husband’s claimed interest in that property of the second respondent is that of a witness. The wife is not seeking sale of the property and/or sale and/or partition of the claimed interest and neither her nor the third respondent claim an interest in the second respondent’s property on their own behalves.
The wife’s claims in respect of the second respondent’s (the husband’s mother) property also needs to be articulated.
The foreshadowed orders are intended to enable the Court to receive in a tabulated form the various claims of the parties, the reasons for those claims and the material to which regard might be had in assessing those claims. In this way it is intended that both the Court and the parties might have a point of reference from which decisions (and orders and directions if need be) as to the future conduct of these proceedings might be informed.
Submissions were made on behalf of the wife and supported by the respondent husband but opposed by the third respondent that on the foreshadowed draft order should be reordered such that the third respondent comes to provide his particulars prior to those of the husband and wife and the second respondent. It was also submitted that the third respondent should be afforded six weeks to provide a particulars in respect of his various claims.
The Court accepts that there is merit in those submissions.
To assist the Court a request was made for a copy of the foreshadowed minutes of order and directions be amended and provided as an aide memoire to illustrate the timing which the wife and husband urged upon the Court and the same was provided. The Court has had regard to that aide memoire.
At the conclusion of the mention/directions hearing the Court indicated that it would deliver some brief reasons and publish orders in due course by electronic means.
Accordingly the Court for the reasons given considers that orders and direction should be made in terms set out at the beginning of these reasons.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn. Associate:
Dated: 4 February 2022
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