Budiarta and Zavahir - [2016] FamCA 923

FAMILY COURT OF AUSTRALIA

BUDIARTA & ZAVAHIR

[2016] FamCA 923

FAMILY LAW – PRACTICE AND PROCEDURE – Application for joinder – Whether husband’s mother should be joined to property proceedings between the parties – Whether the joinder of the husband’s mother is necessary for the Court to completely and finally determine all matters in dispute – Where wife relies upon her s 106B application for dispositions made by the husband to the husband’s mother to be included in property adjustment orders pursuant to s 79 of the Act at trial – Where husband’s mother is already involved in these proceedings and intends to give evidence at trial as the husband’s witness – Application dismissed.

Family Law Act 1975 (Cth) ss 79, 80(1) and 106B
Family Law Rules 2004 (Cth) 6.02, 6.03 and 6.04

Wayne & Dillon & Dillon [2008] FamCAFC 204

APPLICANT:

Ms Budiarta

RESPONDENT:

Mr Zavahir

OTHER PARTY:

Ms Beliz

FILE NUMBER:

BRC

1270

2014

DATE DELIVERED:

3 November 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

25 October 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Green

SOLICITOR FOR THE APPLICANT:

Doyle Family Law

SOLICITOR FOR THE RESPONDENT:

Ms Stratton-Funk

Nita Stratton-Funk Lawyers

COUNSEL FOR THE OTHER PARTY:

Mr Linklater-Steele

SOLICITOR FOR THE OTHER PARTY:

Shila Batenburg & Associates

Orders

The Respondent wife’s application to join the husband’s mother as a Second Respondent to the proceedings is dismissed.

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 Budiarta & Zavahir 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 BRISBANE

FILE NUMBER: BRC 1270 of 2014

Ms Budiarta

Applicant

And

Mr Zavahir

Respondent

And

Ms Beliz

Other Party

REASONS FOR JUDGMENT

The Respondent wife in these parenting and property adjustment orders proceedings currently listed for trial before me in February 2017 filed a Further Amended Response on 24 May 2016. In that document, as part of the final orders she sought, she sought an order that the Applicant husband’s mother, be joined as a Second Respondent to the property adjustment orders proceedings, as well as orders pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”) setting aside some transfers of money from the husband to his mother, one of which occurred prior to their separation and four others that occurred in the aftermath of their separation. The wife also sought orders for the husband’s mother to pay that money directly to her to meet her entitlements to property adjustment pursuant to s 79(4) of the…

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.

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Details

Case: [2016] FamCA 923
Decision Date: 3 November 2016

CaseChat Overview and Summary

In the matter of *Budiarta and Zavahir*, heard before Forrest J, the wife sought to join the husband's mother as a second respondent to the proceedings. The husband opposed this application.

The central legal issue before the Court was whether the husband's mother ought to be joined as a party to the proceedings. This required the Court to consider the principles governing the joinder of third parties in family law proceedings, particularly in circumstances where their involvement might be necessary for the effective resolution of the dispute between the primary parties.

Forrest J dismissed the wife's application. While the precise reasoning is not detailed in the provided text, the outcome indicates that the Court was not satisfied that joining the husband's mother was necessary for the proper and just determination of the proceedings between the husband and wife. The Court's decision implies that the threshold for joining a third party in such proceedings was not met on the facts presented.

Orders

Orders of the court

The Respondent wife’s application to join the husband’s mother as a Second Respondent to the proceedings is dismissed.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.