Canvil and Merle and Ors

[2016] FamCA 363

FAMILY COURT OF AUSTRALIA

CANVIL & MERLE & ORS [2016] FamCA 363

FAMILY LAW – PRACTICE & PROCEDURE – JOINDER – where orders are sought against real property - where it is claimed that the property is held on trust – where the purported beneficial owners of the property are joined to proceedings.

Family Law Rules (2004) (Cth).

APPLICANT: Mr Canvil

FIRST RESPONDENT: Ms Merle

SECOND RESPONDENT: Mr E Canvil and Ms G Canvil

INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

FILE NUMBER: BRC 4803 of 2012

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 29 February 2016

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE FIRST RESPONDENT: Mr Hackett

SOLICITOR FOR THE RESPONDENT: Evans & Company Family Lawyers

THE SECOND RESPONDENT: Mr E Canvil and Ms G Canvil

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Black

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Dooley Solicitors

Orders

1. Mr E Canvil and Ms G Canvil are joined as Second Respondents to the proceedings.

2. Upon the Applicant Husband being provided with a copy of this Order, he shall provide a copy of the same to Mr E Canvil and Ms G Canvil forthwith and such provision is deemed to be service.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4803 of 2012

Mr Canvil

Applicant

And

Ms Merle

First Respondent

And

Mr E Canvil and Ms G Canvil
Second Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Ex Tempore

1. In this matter I have raised at the commencement of the trial this morning my concerns arising from the application of Rule 6.02(1) of the Family Law Rules 2004. That rule relevantly provides as follows:

   A person whose rights may be directly affected by an issue in a case, and whose participation as a party is necessary for the Court to determine all issues in dispute in the case, must be included as a party to the case.

2. The concerns I raised arise from the terms of that rule as made applicable as a consequence of the factual scenario outlined in the material of the parties and as part of the orders sought by the respondent wife in the proceedings, she proposes there be the sale of property at H Street (in the event of a failure to pay to her a sum of money arrived at as a consequence of a conclusion that the H Street property is, relevantly, property of the parties for the purpose of the proceeding).

3. The H Street property, it is uncontentious to say, is property registered in the name of the husband, Mr Canvil.  There is evidence before the Court given by both him and his father, Mr E Canvil, in relation to the acquisition of that property.  It is clear that he, Mr Canvil, asserts the existence of a constructive trust.  It could not be thought on the evidence before the Court that such a claim could successfully be made.  It is also, though, uncontentious that the funds used to acquire the H Street property were provided in their entirety by the Canvils Senr - if I might refer to them collectively as that.  It is also uncontentious, it seems, that there has been no indirect or indirect financial contribution made by either of the parties to the proceedings, (namely, Mr Canvil and the respondent wife) to the acquisition or maintenance of the H Street property.

4. Mr Canvil’s case is that he holds his interest in the property on trust – he says constructive trust – for his parents consequent upon their provision of the funds for its acquisition and maintenance.  It is the property in which they, it seems, have lived since its acquisition, I think, in about 1987, from recollection.

5. The correspondence tendered by Mr Hackett, who appears on behalf of Ms Merle, covers a period as long ago as mid-2013.[1]  It is clear from the contents of that piece of correspondence, at least, that Mr Evans, on behalf of Ms Merle, communicated directly with, at least at that stage, Mr E Canvil and provided to him, by way of attachment, a copy of the Order made by Registrar Coutts on 16 May 2013.  That Order contains the following notation:

   The wife asserts real property in New South Wales registered in name of the husband is matrimonial property.  The husband asserts his parents, Mr E and Ms G Canvil, are the beneficial owners of this property.

   [1]          Exhibit 2

6. It is clear, then, that Mr Evans forwarded to Mr E Canvil a copy of the Order to which I have referred, together with a redacted copy of the Amended Application of Mr Canvil and Ms Merle’s response.  That appears to have occurred consistent with other terms of the Order made by the Registrar in May of that year. 

7. It is also clear, from reference to Exhibit 2, that the Registrar had ordered that, the Canvils senior be served, given the existence of their alleged interest in the H Street property. The Exhibit also mentions the need for them to obtain legal advice in relation to intervention in the proceedings.

8. There has been no intervention by the Canvils senior in the proceedings. However, Mr Canvil maintains the position in relation to the H Street property and proposes to call Mr Canvil senior as a witness in his case. Mr Canvil senior has provided an affidavit, I think, filed on 31 December 2012.

9. I am concerned that the terms of the orders sought by the wife are such that the Canvils seniors’ rights may be directly affected by an issue in the case. I also consider that their participation as parties in the proceeding is necessary for me to determine the issues in dispute in the case.  Whilst I accept that they have been provided with information in relation to the issue – namely, the dispute as between their son and Ms Merle as to the manner in which the H Street property should be considered and/or the conclusions in respect of it which should be reached - I am concerned that they have not been afforded the rights and obligations which arise as a consequence of being a party to the proceedings.

10. Included in that would be the right properly to be heard in relation to any orders and to seek to advance arguments - if they exist - which counter those advanced on behalf of Ms Merle. 

11. For those reasons then, I consider that they must be included as parties to the case. I intend to make an order joining them to the proceedings. 

12. I now intend to hear from the parties in relation to what I can propose take place: namely, that I proceed to hear the parenting aspect of this proceeding and adjourn part heard (to as soon as I can) the outstanding aspect of the property proceedings. In that way, I can take advantage of the evidence that has been prepared by the parties and the arrangements that have been made in relation to those witnesses who are to give evidence in the parenting aspect of it.

13. In an attempt to minimise any potential difficulties, in relation to valuation evidence which has now been amassed and filed, I had given thought to attempting to allocate to this matter two further days on 18 and 19 April of this year during a time otherwise allocated for judgment writing.

14. I am confident, given the notice that has previously been given to the Canvils senior, as to the claims and material in the matter that, whilst this is, in one sense, a very short period of time between joinder and final hearing, it will afford to them a proper opportunity to seek to be heard further or to seek to be heard in relation to that hearing.

15. This will also enable me to continue for as many days of this week as are necessary to deal with the parenting aspect of the matter and to take the evidence, for example, from Ms Merle’s father (whose evidence touches upon only the parenting aspect of the matter) and to deal with the evidence of, for example, Dr I and Ms W who has prepared further reports and, in that sense, bring to a conclusion at least this aspect of the outstanding proceedings before the Court. 

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 29 February 2016.

Associate: 

Date:  3 March 2016