Daeger & Daeger (No 3)

Case [2023] FedCFamC1F 437

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daeger & Daeger (No 3) [2023] FedCFamC1F 437

File number(s): WOC 484 of 2019
Judgment of: CURRAN J
Date of judgment: 24 October 2023
Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application to reopen – where both parties consent to matter being reopened – where during the relationship the parties mortgaged and guaranteed the former matrimonial home to assist their adult son to purchase a home – where no evidence called at the final hearing as to existence of a second mortgage – where the interests of justice are better served by allowing the application to reopen – consent order for matter to be reopened.
FAMILY LAW – Application for joinder – whether the parties’ adult son should be joined to property proceedings between the parties – whether the joinder of the adult son is necessary for the court to completely and finally determine all matters in dispute –where application for joinder is refused  
Legislation:

Family Law Act 1975 (Cth) ss 79, 90AE

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01

Cases cited:

AC and Ors & VC and Anor (2013) 49 Fam LR 276

Ascot Investments v Harper [1981] 148 CLR 337

Australian Securities and Investments Commission v Rich (2006) 235 ALR 587

Hunt v Hunt (2007) 26 Fam LR 64

Knowles & Gaudi [2008] FamCA 436

Stephens & Stephens & Anor (Enforcement) [2009] FamCAFC 240

Sweep & Sweep (No. 2) [2018] FamCAFC 228

Wayne & Dillon & Dillon [2008] FamCAFC 204

Division: Division 1 First Instance
Number of paragraphs: 73
Date of last submission/s: 21 September 2023
Date of hearing: 10 August 2023
Place: Sydney
Solicitor for the Applicant: Ms Shiels of Shiels Lawyers Pty Ltd
Counsel for the Respondent: Ms Beck
Solicitor for the Respondent: Caldwell Martin Cox

ORDERS

WOC 484 of 2019

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

MR DAEGER

Applicant
AND:

MS DAEGER

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

24 OCTOBER 2023

THE COURT ORDERS THAT:

1.The husband's Application in a Proceeding dated 6 June 2023 is dismissed.

2.Noting that on 10 August 2023 an order was made by consent granting the husband leave to reopen the proceedings, the husband's Application in a Proceeding filed 23 June 2023 is otherwise dismissed.

3.The wife's Response to Application in a Proceeding filed 10 July 2023 is dismissed.

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…

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AGLC
Daeger & Daeger (No 3) [2023] FedCFamC1F 437
Case
[2023] FedCFamC1F 437
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the parties were involved in a property dispute following the finalisation of their relationship. The husband sought to reopen the proceedings to address a second mortgage on a property held by their adult son, and the wife opposed this application. The husband also sought for their son to be joined as a party to the proceedings, a request which the wife also opposed. The central issue before the court was whether the interests of justice would be better served by allowing the application to reopen, and if the son should be joined as a party to the proceedings.

The court determined that the application to reopen the proceedings should be allowed, given that both parties had consented to the reopening. The court found that the existence of a second mortgage had not been properly evidenced at the final hearing, and that allowing the application would better serve the interests of justice by ensuring that all relevant matters were properly considered. However, the application for the son to be joined as a party was refused, as the court found that his joinder was not necessary to completely and finally determine all matters in dispute between the parties.

The court dismissed the husband's application to reopen the proceedings and his application for the son to be joined as a party. The wife's response to the husband's application was also dismissed. The form of the order is subject to review to remedy minor typographical or grammatical errors, or to record a variation to the order. The court's reasons for judgment may be subject to review in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

WOC 484 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DAEGER

Applicant

AND:

MS DAEGER

Respondent

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

24 OCTOBER 2023

THE COURT ORDERS THAT:

1. The husband's Application in a Proceeding dated 6 June 2023 is dismissed.

2. Noting that on 10 August 2023 an order was made by consent granting the husband leave to reopen the proceedings, the husband's Application in a Proceeding filed 23 June 2023 is otherwise dismissed.

3. The wife's Response to Application in a Proceeding filed 10 July 2023 is dismissed.

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

No request was received to relist the matter for further submissions or for cross examination. Accordingly, without any request to relist the matter, or cross-examine any witness, the application was to be dealt with in Chambers.EVIDENCE IN RESPECT OF THE SECOND MORTGAGE At the time of the final hearing, the husband asserted that Mr I's property at Town UU was mortgaged to the Town TT property "to the amount of $125,000", and he annexed the Westpac mortgage to his affidavit. Curiously, the only mortgage referred to in his financial statement was the mortgage to the ANZ bank. Other than the existence of the Westpac mortgage (annexure 34), there was no evidence of the current alleged liability, bank statements, application for finance or other evidence filed with his affidavit relevant to the Westpac mortgage. A balance sheet was provided in which the husband had included a guarantee of $150,000 as a liability. The husband's counsel was asked to take me to any evidence to support any findings about the existence or treatment of the alleged mortgage or guarantee: HER HONOUR: And where do you say I find evidence of the mortgage on [Town UU] that's somehow attached to this, of $150,000? MS VOGEL: So there's no evidence. HER HONOUR: Right?MS VOGEL: It's to do with [Mr I]. HER HONOUR: There's no evidence?MS VOGEL: So [Mr I] - sorry. Just one moment. HER HONOUR: Ms Vogel, if there's no evidence before me, on what basis would I find that there is anything other than the guarantee of $80,000? MS VOGEL: It was never tendered, so it shouldn't have been put on the balance sheet. HER HONOUR: Right. So is that removed from the balance sheet? MS VOGEL: It's just a guarantee. HER HONOUR: Is it conceded that there should be nothing on the balance sheet in relation to [Town UU]? MS VOGEL: It's only relevant if the former matrimonial home gets sold. HER HONOUR: I will come back to Ms Beck afterwards, but it seems to me that there is the possible liability, if the [property] is sold, of an $80,000 guarantee. That's the evidence that appears to me to come from the wife's affidavit. MS VOGEL: That's correct. The potential liability arising from the guarantee entered into by the parties was at that time accepted, as contended by the wife, to be limited to $80,000. The evidence of the wife was that she and the husband were guarantors of a loan taken out by Mr I at the time he purchased his property at Town UU, and that the guarantee was, at that time, for the sum of $80,000. Other than the mortgage document provided by the husband, no documentary evidence of the current status of the guarantee or loan was filed. When specifically asked to address the status and treatment of the alleged loan, it was submitted that: MS BECK: We would say in those circumstances it cannot be considered a joint marital liability. It's not an outstanding liability. It's not a liability at the moment. At best, it might be a liability in the event of several things having to happen first. HER HONOUR: Yes. [Mr I] defaulting on his obligations, first of all, his property not increasing in value, second of all. I accept what you say about that; that your client's evidence - which, in fact, is the only evidence that is before me - says that, "We were becoming guarantors for the $80,000 loan." That's the only evidence that I have, that your client says we - she and [Mr Daeger] - were the guarantors for that loan. MS BECK: Well, your Honour, if it is considered a joint liability, then I'm not too sure how the court would deal with it in any case. And it probably would make no difference to the outcome if it's a joint liability. HER HONOUR: Yes. So MS BECK: So ultimately HER HONOUR: So you say it shouldn't factor into the balance sheet? MS BECK: It should not factor HER HONOUR: Yes, yes. MS BECK: into the balance sheet.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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