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:
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.
Directions were made for all parties to file their affidavits including those of the putative joinder parties.
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…
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- Cleary & McKenzie (No 3) [2023] FedCFamC1F 1102
- Case
- [2023] FedCFamC1F 1102
- Decision Date
CaseChat Overview and Summary
The central legal issue the court needed to decide was whether it was necessary to join Mr. V. McKenzie to the proceedings to fully and finally determine all matters in dispute. The court had to consider whether joinder was essential to resolve the issues regarding the property and the application of funds from both Ms. Cleary and Mr. McKenzie to the property.
The court found that joinder was necessary to "completely and finally determine all matters in dispute" as per the principles outlined in Wayne v Dillon. The court noted that if Ms. Cleary did not succeed in her case against Mr. V. McKenzie, costs could become a significant issue. Consequently, the court concluded that an order for joinder should be made, ensuring that all relevant parties are present to resolve the disputes effectively.
The court ordered that Mr. V. McKenzie be joined to the proceedings as the third respondent. This decision ensures that the court can address all issues related to the property and the application of funds from both Ms. Cleary and Mr. McKenzie, thereby facilitating a comprehensive resolution of the matter.
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:
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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