Daire & Gamer

Case [2021] FedCFamC1F 261

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Daire & Gamer [2021] FedCFamC1F 261

File number(s): MLC 1134 of 2021
Judgment of: BENNETT J
Date of judgment: 7 December 2021
Catchwords: FAMILY LAW – FINANCIAL/THIRD PARTIES
PRACTICE & PROCEDURE- disjoinder of parties- where application joins second to fourth respondent without any statement of claim or cause of action pleaded- where joining party provided with an opportunity to provide contentions of fact an law before disjoinder or injunctive relief is further considered.  
Legislation:

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

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

Federal Magistrates Court Rules 2001 (Cth)

Cases cited: Wayne v Dillon and Anor [2008] FamCAFC 204
Division: Division 1 First Instance
Number of paragraphs: 54
Date of hearing: 21 September 2021
Counsel for the Applicant: Mr Puckey QC
Solicitor for the Applicant: Taussig Cherrie Fildes
Counsel for the Respondent: Mr Dickson QC
Solicitor for the Respondent: Lander & Rogers
Counsel for the Second to Fourth Respondents: Mr Williams QC
Solicitor for the Second to Fourth Respondents: Hartley Family Law Pty Ltd
Counsel for the Intervener: Dr Ingleby
Solicitor for the Intervener: Marshalls Dent Wilmoth

ORDERS

MLC 1134 of 2021

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

MS DAIRE

Applicant
AND:

MR GAMER

First Respondent

MR B GAMER

Second Respondent

MS D GAMER  (and another named in the Schedule)

Third Respondent

MS C GAMER

Intervener

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

7 DECEMBER 2021

THE COURT ORDERS THAT:

1.The hearing on 8 December 2021 be vacated and the matter be listed before me on 20 December 2021 at 9:00 a.m. and I reserve liberty to the parties to seek an adjournment of that date administratively, by consent.

2.By not later than 4.00 p.m. on Tuesday 14 December 2021 the wife file and serve any further amended initiating application upon which she seeks to rely and such application be supported by, and have annexed to it, the contentions of fact and law relevant to any relief sought against third parties including but not limited to the second to fourth respondents.

3.For the avoidance of doubt the wife may rely on her affidavit filed on 17 June 2021 sworn in compliance with r.3.03(3)(a) and/or r.3.03(5)(a)(ii) of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth).

4.The submissions of the applicant on the joinder and injunctive relief sought against the second to fourth respondents received by email on 21 July 2021 at 11:24am and copied to the other parties be marked exhibit “W1” and I direct it remain on the court file.

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…

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AGLC
Daire & Gamer [2021] FedCFamC1F 261
Case
[2021] FedCFamC1F 261
Decision Date

CaseChat Overview and Summary

In the matter of Daire & Gamer, the court was tasked with deciding an application by Mr. B Gamer and Ms. D Gamer to be disjoined as second and third named respondents in de facto property settlement proceedings. The original proceedings were commenced by Ms. Daire against Mr. Gamer following the breakdown of their relationship. The applicants, the children of the respondent, sought to be disjoined from the proceedings, arguing they were not necessary parties and that their involvement was disproportionate to the nature of the dispute.

The central legal issue before the court was whether the children of the parties, who were not primary to the dispute, should be joined as respondents in the de facto property settlement proceedings. The court considered the necessity of the children's involvement in the proceedings and whether their inclusion was proportionate to the nature of the dispute, in accordance with the Family Law Act 1975 and the Central Practice Direction- Family Law Case Management.

The court determined that while there was a superficial appeal to requiring pleadings when third parties, such as the children in this case, were involved, it was more beneficial to provide the applicant with an opportunity to regularise her case by providing factual and legal contentions to which the second to fourth respondents could respond. The court rejected the application to strike out the proceedings but ordered that the wife prepare further documentation to clarify the claims against the second to fourth respondents. The court also noted the importance of proportionality in relation to costs incurred by the parties and an equitable use of the court's resources.

As a result of the court's decision, the application by Mr. B Gamer and Ms. D Gamer to be disjoined from the proceedings was dismissed, and the wife was required to prepare further documentation to clarify the claims against the second to fourth respondents. The court further directed that any party seeking orders as to costs should provide notice to the other parties and be in a position to inform the court of the amount of professional costs claimed if calculated in accordance with the family law scale of costs.

Orders

Orders of the court

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Background

Background to the litigation

The Application in a Case filed 6 July 2021 by Mr B Gamer and Ms D Gamer seeking that they be disjoined as second and third named respondents in proceedings between their father, Mr Gamer, and the applicant, Ms Daire. On 12 July 2021 it was agreed, and I ordered, that the application in a case filed by the second and third respondents and the wife’s response thereto proceed by written submissions. The following submissions have been filed and served:(a)Outline of submissions on behalf of the second, third and fourth respondents sealed 13 July 2021 (“the respondents’ submissions”);(b)Submissions of the applicant on the joinder and injunctive relief sought against the second to fourth respondents received by email on 21 July 2021 at 11:24am and copied to the other parties and which is marked exhibit “W1” (“the applicant’s submissions”); and(c)Reply submissions on behalf of the second, third and fourth respondents sealed 2 August 2021 (“the respondent’s reply”).RELEVANT BACKGROUND This de facto property settlement proceedings were commenced on 4 February 2021 following the breakdown of the relationship between the applicant, Ms Daire, and the respondent, Mr Gamer. They lived together from 1995 (on the applicant’s case) or 2002 (on the respondent’s case) until 25 November 2020 (on the applicant’s case) or 25 December 2020 (on the respondent’s case). They resided separately but under the one roof at their former family home at E Street, Suburb F. The applicant obtained an intervention order against Mr Gamer and he was required to vacate the former family home on 8 February 2021. The respondent resided temporarily in Suburb G before moving to H Street, Suburb J. Although the applicant and respondent do not agree on the duration of their relationship, it is common ground that they lived together on a genuine domestic basis within the meaning of 4AA of the Family Law Act 1975 (Cth) (“the Act”). For ease of reference, I will refer to them as “the wife” and “the husband” respectively. The wife is 60 years old and in reasonable health. She is in long term employment in a professional services firm. She resides at the former family home at E Street, Suburb F (“Suburb F”). Suburb F is owned jointly by the husband and the wife. The wife has a daughter, Ms K, from a previous relationship. Ms K is 30 years old. The husband is 70 years old and resides at H Street Suburb J (“Suburb J”), a property in which he and the wife lived at various times. Suburb J is registered in the name of the husband. The husband is semi-retired having previously operated a financial services firm, a small business and other investments. The husband deposes to being of average physical and mental health. He has hypertension, a pulmonary embolism, poor hearing and failing night sight. He has experienced depression and anxiety since separation. He takes daily medication for physical health issues and is treated by a psychologist. He is prescribed and continues to take Mirtazapine which is an anti-depressant. He deposes that Mirtazapine “clouds my ability for clear thinking, makes me drowsy and I have had suicidal thoughts. [He] was admitted to L Hospital on 20 April 2021 after suffering a breakdown”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

If any party seeks orders as to costs on the next date, they should provide the other parties with notice of that application and be in a position to inform me of the amount of professional costs claimed if calculated in accordance with the family law scale of costs. Come what may, it will be my strong preference to finalise costs on the next date rather than to require the parties to submit to an assessment process. Accordingly, I need to be in a position to quantify costs. CONCLUSION The Central Practice Direction- Family Law Case Management[10] makes it clear that proceedings must be run with regard to proportionality in relation to costs incurred by the parties and an equitable use of the court’s resources. There is a superficial attraction to requiring pleadings when third parties are involved. However, a statement of claim, can be a largely uninformative document. It is preferable to provide the applicant wife with an opportunity to regularise her case by providing contentions of facts and law to which the second to fourth respondents can respond than to strike out her application in a proceeding and have her start all over again.[10] Federal Circuit and Family Court of Australia, Central Practice Direction- Family Law Case Management, 20 August 2021. Given that the wife is now to prepare further documentation, the listing on 8 December 2021 does not appear necessary so I will adjourn it for another week. If the parties agree on a more convenient date, they can contact my Chambers and request an adjournment to the agreed date or something like that date when I am available. I am satisfied that the Order is appropriate.

Ratio Decidendi

Legal Principle Established

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