Cleary & McKenzie (No 2)

Case [2023] FedCFamC1F 1009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cleary & McKenzie (No 2) [2023] FedCFamC1F 1009

File number: SYC 4879 of 2022
Judgment of: SCHONELL J
Date of judgment: 23 November 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the wife sought to join the husband’s sister and son to the proceedings on the basis that they held properties on trust for her and the husband – Where the joinder was opposed – Where the wife does not seek final relief against the putative respondents – Application dismissed.   
Legislation:

Family Law Act 1975 (Cth) s 79

Family Law Rules 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03

Cases cited:

B Pty Ltd and Ors & K and Anor (2008) FLC 93-380; [2008] FamCAFC 113

Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223

Riemann & Riemann and Ors (No. 3) [2017] FamCA 911

Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

Wayne v Dillon (2008) 40 Fam LR 543; [2008] FamCAFC 204

Division: Division 1 First Instance
Number of paragraphs: 29
Date of hearing: 22 November 2023
Place: Sydney
The Applicant: Litigant in person
Solicitor for the First Respondent: Holmes Donnelly & Co Solicitors
The Second Respondent: Did not participate
The Putative Third Respondent: Litigant in person
The Putative Fourth Respondent: Litigant in person

ORDERS

SYC 4879 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CLEARY

Applicant
AND:

MR MCKENZIE

First Respondent

MR STEWART

Second Respondent

MR V MCKENZIE(and another named in the Schedule)

Putative Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

22 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The applicant wife’s Application in a Proceeding filed 30 October 2023 is dismissed.

2.Costs of the application 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).

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 the pseudonym Cleary & McKenzie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SCHONELL J:

  1. By Application in a Proceeding filed 30 October 2023, the applicant wife (“the wife”) seeks to join Mr V McKenzie (“the putative third respondent”) and Ms Gallagher (“the putative fourth respondent”) (collectively “the putative respondents”) to the proceedings.

  2. On 6 November 2023, the Court made orders for the wife’s application…

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AGLC
Cleary & McKenzie (No 2) [2023] FedCFamC1F 1009
Case
[2023] FedCFamC1F 1009
Decision Date

CaseChat Overview and Summary

In the case of Cleary & McKenzie (No 2), the applicant, Ms Cleary, sought to join the husband’s sister and son to the proceedings on the basis that they held properties on trust for her and the husband. The application was opposed by the putative respondents. The Federal Circuit and Family Court of Australia was required to determine whether the putative respondents should be joined to the proceedings.

The court considered the statutory provisions and case law relevant to the joinder of parties. The court found that the putative respondents were not necessary parties to the proceedings as Ms Cleary did not seek final relief against them. Instead, she sought to join them for the purpose of obtaining information and evidence. The court held that the putative respondents were not required to be joined to the proceedings as their interests were not directly affected by the issues in dispute between the parties.

The court dismissed the application and ordered that the putative respondents were not to be joined to the proceedings. The court also reserved costs of the application. The decision was based on the principle that a person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding. In this case, the putative respondents were not necessary parties as Ms Cleary did not seek final relief against them.

The final orders of the court were that the applicant’s application in a proceeding filed 30 October 2023 was dismissed and that the costs of the application were reserved. The form of the order was subject to the entry in the Court’s records.

Orders

Orders of the court

SYC 4879 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CLEARY

Applicant

AND:

MR MCKENZIE

First Respondent

MR STEWART

Second Respondent

MR V MCKENZIE(and another named in the Schedule)

Putative Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

22 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The applicant wife’s Application in a Proceeding filed 30 October 2023 is dismissed.

2. Costs of the application 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).

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.

Background

Background to the litigation

I heard submissions from the parties and indicated that I would dismiss the wife’s application and deliver reasons in due course. These are those reasons.BACKGROUND The wife was born in 1968 and is currently 55 years of age. The husband was born in 1951 and is currently 71 years of age. The putative third respondent is the husband’s son and the putative fourth respondent is the husband’s sister. On 21 July 2023, this matter was set down for hearing for three days commencing 22 November 2023. As a consequence of the wife’s application for joinder, those trial dates were vacated, and the application listed for hearing on 22 November 2023. The wife contended that four properties (a property at Suburb W and three dwellings in Suburb K) registered in the names of the putative respondents are held on trust for her and the husband. The wife contended that the husband obtained a loan to purchase the Suburb W property which was secured against a property in Town X that is in her name. She said that in 2007, she discovered that the Suburb W property was actually registered in the putative third respondent’s name and not the husband’s. She deposed that both the husband and the putative third respondent told her that the property was being held on trust for husband. The wife also contended that she and the husband made mortgage repayments and rate payments totalling approximately $90,000, and that the husband received rent from a business operating from a building on the property. The putative third respondent denied the wife’s contentions, contending that he purchased the Suburb W property for his own benefit. In relation to the three dwellings in Suburb K, the wife contended that she and the husband wanted to purchase the dwellings and that the husband suggested receiving financial assistance from the putative fourth respondent. She said that the putative fourth respondent subsequently purchased the dwellings for around $300,000 and that she and the husband have made payments totalling approximately $92,600 in payment of the mortgages and levies. The putative fourth respondent denied the wife’s contentions and stated that she would be seeking to recover monies loaned to the husband and wife. APPLICABLE LAW - JOINDER Section 79(10)(b) of the Family Law Act 1975 (Cth) provides that any other person whose interests would be affected by the making of an order is entitled to be joined to the proceedings. The Act reflects what McHugh J observed in Victoria v Sutton (1998) 195 CLR 291 that: 77.The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. …(Footnote omitted) Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:3.01 Necessary parties A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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