Cleary & McKenzie (No 3)

[2023] FedCFamC1F 1102

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cleary & McKenzie (No 3) [2023] FedCFamC1F 1102

File number:

SYC 4879 of 2022

Judgment of:

SCHONELL J

Date of judgment:

18 December 2023

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the wife sought to join the husband’s son to the proceedings – Where part of the final relief sought by the wife includes an order for the sale of a property that is registered in the name of the husband’s son – Where the evidence appears to be that funds of the husband and wife were applied to the property – Where it is necessary that the husband’s son be joined to the proceedings to resolve the issues in dispute – Order made joining the husband’s son to the proceedings    

Cases cited:

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

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

Division:

Division 1 First Instance

Number of paragraphs:

16

Date of hearing:

14 December 2023

Place:

Sydney

The Applicant:

Litigant in person

The First Respondent:

Litigant in person

The Second Respondent:

Did not participate

The Putative Third Respondent:

Litigant in person

The 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:	18 DECEMBER 2023

THE COURT ORDERS THAT:

1.Mr V McKenzie be joined to the proceedings as the third respondent.

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 way of Further Further Amended Initiating Application filed 5 December 2023, the applicant de facto wife (“the wife”) sought to join the first respondent de facto husband’s (“the husband’s”) sister (“the fourth respondent”) and son (“the putative third respondent”) to the current proceedings.  

2. Directions were made for all parties to file their affidavits including those of the putative joinder parties.

3. On the hearing, the fourth respondent, Ms Gallagher, consented to joinder and orders were made accordingly. The question for determination therefore remained whether the putative third respondent, Mr…