Carrillo & Carrillo (No 3)
[2024] FedCFamC1F 493
•23 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carrillo & Carrillo (No 3) [2024] FedCFamC1F 493
File number(s): BRC 2953 of 2022 Judgment of: BAUMANN J Date of judgment: 23 July 2024 Catchwords: FAMILY LAW – INTERIM – Interlocutory application for leave to amend and summary dismissal Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 43
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.50, 2.52, 131
Cases cited: Carrillo & Carrillo [2023] FedCFamC1F 953 Division: Division 1 First Instance Number of paragraphs: 18 Date of last submission/s: 15 April 2024 Date of hearing: 8 February 2024 Place: Brisbane Counsel for the Applicant: Mr P Hackett Solicitor for the Applicant: Sambanis Family Law Solicitor for the First Respondent: Barry Nilsson Lawyers Counsel for the Second Respondent: Ms S Minnery Solicitor for the Second Respondent: Hopgood Ganim Lawyers ORDERS
BRC 2953 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CARRILLO
Applicant
AND: MR CARRILLO
First Respondent
MS B CARRILLO
Second Respondent
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
2 JULY 2024
THE COURT ORDERS:
1.That the Applicant wife’s application for leave to amend her Initiating Application pursuant to Rule 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), so far as it pertains to orders seeking relief under Section 106B of the Family Law Act 1975 (Cth) (“the Act”) (orders 3A, 3B, 3C, 3D and 3E) is dismissed.
2.That the Applicant have leave to amend her Initiating Application to seek orders as set out at 3F, 3G, 3H and 3I of the further amended Initiating Application filed 22 December 2023.
3.That the application by the First and Second Respondents for the orders sought by the Applicant wife at 3F, 3G, 3H and 3I be summarily dismissed, be dismissed.
4.That in respect of the parts of the wife’s Initiating Application that are not dismissed by these Orders:
(a)within fourteen (14) days of the date of these Orders, the wife file and serve a points of claim particularising any contentions of law the wife relies upon as grounds for the relief sought by her and all material facts they content will support that relief, and any further evidence upon which she relies to support her claim;
(b)within twenty one (21) days of service of the points of claim and supporting affidavit/s, the husband and Second Respondent file and serve a points of defence; and
(c)within twenty one (21) days of compliance with Order 4(b) hereof, any party be at liberty to bring an application for summary orders pursuant to s 45A of the Act and r 10.09 of the Rules in relation to the Initiating Application.
5.That the wife’s application for further disclosure, set out in her amended Application in a Proceeding filed 16 February 2024 be listed for further hearing once Order 4 hereof of these Orders are satisfied.
6.That in respect of the Application in a Proceeding filed by the wife on 29 April 2024 be listed for further submissions and/or directions at 9.30am on 12 July 2024, after the parties have had an opportunity to consider the reasons published for these Orders, and noting that no Response by either Respondent to the Application in a Proceeding filed 29 April 2024 has been filed.
7.That the costs of all parties are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 the pseudonym Carrillo & Carrillo has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
In the midst of ongoing and expensive litigation seeking alteration of property orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”), the Applicant wife Ms Carrillo (“the wife”) and the Respondent husband Mr Carrillo (“the husband”), have also, through Applications made by the wife, caused the husband’s mother Ms B Carrillo to be engaged in the substantive litigation.
As the Reasons delivered on 10 November 2023 (see Carrillo & Carrillo [2023] FedCFamC1F 953) made clear, the context for this ongoing conflict (which the parties have tried to resolve by mediation – unsuccessfully), is the assertion by the husband that the nett assets and interests available as between the husband and wife for alteration under s 79 are indeed modest.
The wife, who is the primary carer of the five children of the relationship and has not worked out of the relationship since the birth of Y (the oldest child) in 2009, has persistently asserted that the husband has an interest in various corporate entities, discretionary trusts and unit trust (which have significant value), that Ms B Carrillo says she both controls legally and also owns personally.
Where the wife’s last Costs Notice filed following the wife’s submissions on 18 April 2024 reveals that the wife had at that time incurred costs of $792,530,80, of which sum only $189,527.29 has been paid, the ongoing litigation is clearly funded by the continued efforts of her legal team.
Apart from the dispute as to whether the loan agreements and/or support guarantees are a “sham” and whether the husband’s employment agreement is also a “sham” which survived the earlier Applications by the husband and Ms B Carrillo for summary dismissal, the wife’s further amended Application field 22 December 2023 raised, if not totally new relief, then pleaded additional relief.
The said further amended Application (“the Application”) was filed at a time when the parties were aware that the substantive proceedings had been listed for a five day trial commencing 22 July 2024.
On 6 February 2024, Ms B Carrillo filed an Application in a Proceeding seeking summary dismissal of the new claims against her made by the wife. The wife needed leave to amend her Application (Rule 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)), and on 16 February 2024, the wife filed an Application in a Proceeding seeking that leave.
With the trial fast approaching, the Court ordered that written submissions be delivered. A window for the Court to consider the matter was lost when the wife’s written submissions in reply due on 12 April 2024 were delivered late on 3 May 2024.
The submissions considered were filed as follows:
(a)By the wife on 20 March 2024;
(b)By the Second Respondent on 10 April 2024;
(c)By the husband on 15 April 2024; and
(d)Reply submissions by the wife on 3 May 2024.
The written submissions set out both the extensive material relied upon and the principles to be applied in the exercise of the Court’s discretion, about which no dispute existed.
On 2 July 2024, the Court pronounced the Orders set out at the commencement of these Reasons and said written Reasons would follow. These are the Reasons for those Orders.
Considering the trial is imminent and further aware of the need to continuously express “conclusions” relating to the orders so that the parties are able to concentrate on how the five days allocated from 22 July 2024 can be used, I do provide these Reasons in short form.
LEAVE TO AMEND
I have decided that leave for the wife to amend her claims at paragraphs 3A, 3B, 3C, 3D and 3E seeking s 106B relief, should be refused for the following reasons (essentially persuaded by the written submissions of Ms B Carrillo (supported by the husband)) on this issue that:
(a)the Court has power to give leave to amend (r 2.50) and on terms (r 2.52(2)) and can dispense with full compliance with the Rules “in the interests of justice” (r 131 and s 43 of the Federal Circuit and Family Court of Australia Act 2021 (Cth));
(b)I agree with the submissions of Ms B Carrillo that in respect of paragraphs 3A, 3B, 3C, 3D and 3E the wife is seeking to enliven claims for relief substantially the same as were dismissed on 10 November 2023; and
(c)the wife has not persuaded me on her evidence and submissions that any new evidence is available at this time to overcome the substantial prejudice to Ms B Carrillo (including costs) that flow from granting leave to the wife to amend at this late stage.
LEAVE TO AMEND AND SUMMARY DISMISSAL
In respect of the amended relief set out at 3F, 3G, 3H and 3I of the Application, I am persuaded by the submissions of the wife that such claims are slightly different from those dismissed on 10 November 2023, and that by adopting the principles for applications for summary dismissal articulated in the earlier Judgment, I am not satisfied at this stage on the untested evidence (taken at its highest) that the wife’s claims “have no reasonable prospects”. I adopt again the summary of principles set out at [34] of the earlier Judgment.
Having reached the conclusion as to dismissing the Application by Ms B Carrillo for this relief, it is in “the interests of justice”, in my view, to permit the wife to amend and I give her leave to do so.
POINTS OF CLAIM
As an alternate submission, Ms B Carrillo contended that for any relief that was to continue involving Ms B Carrillo (that is not summarily dismissed), clarification through “points of claim” is desirable.
I agree, and make orders accordingly, however in doing so, I acknowledge that the timeframe ordered will not enable the trial to proceed on 22 July 2024.
I have listed the matter for a further Case Management Hearing on 12 July 2024, at which time I intend to discuss with the parties how the time allocated for trial can be usefully used – including whether a discrete hearing in respect of the relief affecting Ms B Carrillo – in the circumstances of this case – is an option.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 23 July 2024
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