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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bianchi & Bianchi

Details

AGLC: Bianchi & Bianchi [2022] FedCFamC2F 25
Case: [2022] FedCFamC2F 25
Decision Date

CaseChat Overview and Summary

Bianchi & Bianchi was a case heard by Judge McGinn in the Federal Circuit and Family Court of Australia, Division 2. The dispute arose from the breakdown of the marriage between Ms Bianchi and Mr Bianchi, and the complex financial dealings between Mr Bianchi, his mother, and his brother. The key issues before the court were determining the ownership of certain properties and resolving the financial claims between the parties, including claims related to a partnership and a company. The court needed to decide whether to join the company as a party to the proceedings and to order the parties to provide particulars of their claims to facilitate efficient disposition of the case.

Judge McGinn concluded that it was necessary to join the company as a party and ordered the parties to provide detailed particulars of their claims within specific timeframes. The court reasoned that after a lengthy period of proceedings, multiple hearings, and considerable costs, it was time for the parties to clearly articulate their positions. The provision of particulars would help define the issues and allow the court and parties to determine the necessary steps for the case to proceed. Although the third respondent opposed the orders and mentioned pursuing claims in other courts, the court found that it had jurisdiction to determine the matters before it. The court also disagreed with the third respondent's claim of having an interest in the wife's claim against the husband's mother, stating that his role was that of a witness.

The final orders included joining the company as a party, requiring the parties to provide particulars of their claims in a consolidated table, setting deadlines for filing disclosure applications and expert evidence, and scheduling a further hearing to consider transfer of proceedings, trial listing directions, disclosure, expert evidence, and other directions. The court also ordered a Family Assessment to be carried out to address the unresolved parenting issues.

Orders