CLEAVE & CLEAVE - [2020] FamCA 314

FAMILY COURT OF AUSTRALIA

CLEAVE & CLEAVE

[2020] FamCA 314

FAMILY LAW – INTERVENTION – Third party – Where there is an application for leave to intervene in the proceedings – Where the application is opposed – Where the intervener contends he has an equitable interest in a trust which the parties have an interest in – Where the intervener is the son of the parties – Where the intervener has standing – Orders

FAMILY LAW – COSTS – Circumstances justifying an order – Conduct of the parties to the proceedings – Where the applicant seeks costs on an indemnity basis – Where there is an application for intervention – Where the intervener had notice of the parties’ claims and of the interim hearing – Where the intervener failed to make the application for intervention until the day of the interim hearing – Orders

Family Law Act 1975 (Cth) ss 78, 79, 106B, 114, 117(2A)
Family Law Rules 2004 (Cth) rr 6.02, 10.12, 19.08, 19.18
Law and Justice Legislation Amendment Act 1988 (Cth) s 39

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337
Donis & Ors v Donis [2007] VSCA 89
Giumelli v Giumelli (1999) 196 CLR 101
Kennon v Spry (2008) 238 CLR 366
Kohan & Kohan (1993) FLC 92-340
Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158
Prantage & Prantage (2013) FLC 93-544
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Re Wilcox; Ex parte Venture Industries Pty Ltd and Ors (No 2) (1996) 72 FCR 151
Smith v Smith (1986) 161 CLR 217

APPLICANT:

Mr Cleave

RESPONDENT:

Ms Cleave

INTERVENER:

Mr B Cleave

FILE NUMBER:

ADC

1857

2019

DATE DELIVERED:

1 May 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

22 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wells QC with Mr McGinn

SOLICITOR FOR THE APPLICANT:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Pyke QC

SOLICITOR FOR THE RESPONDENT:

Rosey Batt & Associates

COUNSEL FOR THE INTERVENER:

Mr Whitington QC

SOLICITOR FOR THE INTERVENER:

Jordan & Fowler Family Lawyers

Orders

That leave is given for Mr B Cleave to be joined as the second respondent to the proceedings.
That the second respondent pay the costs of the husband thrown away in respect of the hearing on 22 April 2020 to be determined on a party/party basis as may be agreed or in default of agreement as determined by the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CLEAVE & CLEAVE [2020] FamCA 314
Case: [2020] FamCA 314
Decision Date: 1 May 2020

CaseChat Overview and Summary

In the matter of *Cleave & Cleave*, Berman J of the Family Court of Australia considered an application for leave to intervene in family law proceedings. The applicant for intervention, Mr B Cleave, who is the son of the parties to the principal proceedings, contended that he possessed an equitable interest in a trust in which the parties also held an interest. The application for intervention was opposed by the parties.

The primary legal issue before the Court was whether Mr B Cleave had standing to intervene in the proceedings, given his asserted equitable interest in the trust. A secondary issue concerned the appropriate costs order, particularly in light of the timing of the intervention application and the conduct of the intervener.

Berman J determined that Mr B Cleave did have standing to intervene, recognising his claimed equitable interest in the trust as sufficient to warrant his joinder in the proceedings. Regarding costs, the Court found that the intervener's failure to make his application for intervention until the day of the interim hearing, despite having prior notice of the parties' claims and the hearing, justified an order for costs against him.

Consequently, the Court ordered that Mr B Cleave be joined as the second respondent to the proceedings. Furthermore, the Court ordered that the second respondent pay the costs of the husband that were thrown away in respect of the hearing on 22 April 2020, to be determined on a party/party basis.

Orders

Orders of the court

That leave is given for Mr B Cleave to be joined as the second respondent to the proceedings.

That the second respondent pay the costs of the husband thrown away in respect of the hearing on 22 April 2020 to be determined on a party/party basis as may be agreed or in default of agreement as determined by the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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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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