Eccheli & Eccheli (No 5)

Case [2025] FedCFamC1F 301

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Eccheli & Eccheli (No 5) [2025] FedCFamC1F 301

File number: SYC 1191 of 2024
Judgment of: CAMPTON J
Date of judgment: 8 May 2025
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks leave to amend his Initiating Application pursuant to r 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and to join the adult daughter of the parties to the proceeding – Where the husband contends that the parties adult daughter holds her legal interest in a real property on trust for him – Where the wife contends their adult daughter holds her interest on trust for both she and the husband – Where there is an inconsistency in the husband’s evidence as to the contended beneficial interest – Where the proposed respondent daughter has not been served with the Amended Application in a Proceeding or any draft amended Initiating Application incorporating pleadings by way of Points of Claim as to the legal and factual basis grounding his contention as to that beneficial interest – Application for leave to amend substantive relief and for the joinder of an additional party refused.
Legislation:

Family Law Act 1975 (Cth) ss 78, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 2.50, 3.01
Division: Division 1 First Instance
Number of paragraphs: 27
Date of hearing: 8 May 2025
Place: Sydney
Solicitor for the Applicant: Ms Burrows, Zali Burrows Lawyers
Counsel for the First Respondent: Mr Dura SC
Solicitor for the Respondent: Watts McCray
The Second Respondent: Did not participate

ORDERS

SYC 1191 of 2024

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

MR ECCHELI

Applicant
AND:

MS ECCHELI

First Respondent

MS C ECCHELI

Second Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 MAY 2025

THE COURT ORDERS THAT:

1.The husband’s application for leave to amend his Initiating Application filed on 21 February 2024 is dismissed.

2.The husband’s application to join Ms N to the proceedings 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

CAMPTON J:

  1. Mr Eccheli (“the husband”) commenced proceedings in the Federal…

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AGLC
Eccheli & Eccheli (No 5) [2025] FedCFamC1F 301
Case
[2025] FedCFamC1F 301
Decision Date

CaseChat Overview and Summary

The husband, Mr Eccheli, applied for leave to amend his Initiating Application and to join his adult daughter, Ms N, as a party to the family law proceedings. The wife, Ms Eccheli, opposed both applications. The dispute revolves around the legal interest held by Ms N in a property at D Street, Suburb E, NSW, which is jointly owned by Ms N and the wife. The husband contends that Ms N holds her interest in the property on trust for him, while the wife argues that Ms N holds it on trust for both her and the husband. The court had to decide whether to grant the husband's request for leave to amend his application and join Ms N as a party.

The court considered the inconsistency in the husband's evidence regarding the beneficial interest in the property, and the lack of service on Ms N of the proposed Amended Application in a Proceeding or any draft amended Initiating Application. The court noted that procedural fairness requires that Ms N be given an opportunity to engage with the application for joinder. Additionally, the court highlighted the need for the draft Amended Initiating Application to include Points of Claim identifying the legal and factual basis for the substantive claim against Ms N, the proposed joined party.

The court dismissed the husband's application for leave to amend his Initiating Application and to join Ms N to the proceedings. The reasoning behind the decision was based on the procedural fairness requirement of serving Ms N with the Amended Application in a Proceeding and the necessity for the draft Amended Initiating Application to include legal and factual particulars grounding the relief sought against her.

The court made an order dismissing the husband's application for leave to amend his Initiating Application and to join Ms N to the proceedings.

Orders

Orders of the court

SYC 1191 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ECCHELI

Applicant

AND:

MS ECCHELI

First Respondent

MS C ECCHELI

Second Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 MAY 2025

THE COURT ORDERS THAT:

1. The husband’s application for leave to amend his Initiating Application filed on 21 February 2024 is dismissed.

2. The husband’s application to join Ms N to the proceedings 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

These reasons determine an application of the husband for leave to amend his Initiating Application and to join an adult child of the marriage, Ms N, as a party to the proceeding.BACKGROUND The wife was born in 1965 and is currently 59 years old. The husband was born in 1965 and is also 59 years old. They commenced cohabitation in 1990. They married in 1992. There are three children of the marriage, Ms N who was born in 1993 and is currently 31 years old, Ms C Eccheli who was born in 1995 and is currently 29 years old, Mr P who was born in 1999 and is currently and 26 years old. The husband and the wife effected a separation in December 2015. An order for divorce was made in 2017. Sometime in 2018 they recommenced cohabitation. In 2019 they remarried, and on 17 November 2023 affected a final separation. In late 2021 a property at D Street, Suburb E NSW (“the Suburb E property”) was acquired for the sum of approximately $9 million. The evidence is scant, but it appears the acquisition was funded by way of a sale of a property at Suburb B owned by the parties or a corporate entity or trust in which they had a direct or indirect interest. The parties agree that the Suburb E property was acquired without encumbrance by way of mortgage. The legal title of the Suburb E property is held 80 per cent by Ms N and 20 per cent by the wife. The husband estimates its current value to be in the range of $13 million. In or about September 2023 AA Pty Ltd, in its own right and in its capacity as trustee of the AA Family Trust, obtained by way of a loan agreement an advance of $6 million. That liability of the AA Family Trust was secured upon the title of the Suburb E property. Each of the husband, the wife, and Ms N provided, by way of deed, guaranteed the AA Family Trust performance and compliance with the terms of the loan agreement. The loan agreement and guarantee is secured by way of real property mortgage on the title of the Suburb E property entered on 17 October 2023 by the wife and Ms N. It is uncontroversial that:(a)By way of an order made as to spouse maintenance on 12 April 2024, the husband was directed to pay the mortgage instalments due on the loan agreement entered by the AA Family Trust secured upon the Suburb E property as and when they fell due; and(b)As between the husband and the wife, the wife was to have exclusive occupation of the Suburb E property; and(c)The mortgage payments in respect of the Suburb E property loan advance payable in the first instance by the AA Family Trust were in arrears in the sum of $285,540 as at 30 April 2025; and(d)On 6 May 2025 CC Pty Ltd on behalf of DD Ltd, the lender and holder of the mortgage security, issued a notice of default and demand seeking repayment of the principle of $6,261,505 and arrears due under the Suburb E loan and mortgage agreement (Exhibit 6). It is the husband’s contention that Ms N holds her legal interest in the Suburb E property beneficially for him. It is the wife’s contention that Ms N holds her legal interest in the Suburb E property beneficially for she and the husband.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

If the evidence, and I stress the evidence, grounds such satisfaction, the rule obliges a joinder.CONSIDERATION By way of his Initiating Application filed on 26 February 2025, the husband does not seek any final orders relating to the Suburb E Property. By way of her Response to an Initiating Application filed on 22 March 2024, the wife also does not seek any orders adjusting the legal interest in the Suburb E property. The husband seeks leave to file an Amended Initiating Application setting out with particularity the final orders he seeks. He has not adduced into evidence a draft of that proposed amended initiating application to be filed, should leave be achieved. A reading of the evidence of the husband, including that contained in his financial statement filed on 16 April 2025 identifies that the AA Family Trust (the borrower of the loan advance) is a discretionary trust of which he is “the principal” and primary beneficiary. The tenor of his documents leads to a conclusion the AA Family Trust is his property amenable to adjustment in the s 79 proceedings. The husband contends that the 80 per cent legal interest of Ms N in the Suburb E property was a construction for “asset protection and estate planning purposes only”. That said, the husband gives evidence that he and the wife advanced funds to Ms N to acquire her interest in the Suburb E property by way of a written loan agreement. His evidence suggests the written loan agreement, which is yet to be received in evidence, was made between he and the wife as “the lenders”, and Ms N as “the borrower”. Standing back, and at this time in the proceedings, there is an inherent inconsistency between the contention as to there being an advance from the husband and the wife to Ms N to acquire the Suburb E property in her own right, and a contention made by each of the husband and the wife as to Ms N beneficially holding her legal interest in that property for them. Neither the husband nor the wife has explained the inconsistency. They have each had the opportunity to do so. It is uncontroversial that Ms N currently resides with wife in Suburb E property. The husband concedes that she has not been served with his Amended Application in a Proceeding or any of the affidavit or other evidence he relies upon today. She could not have been served with proposed his draft Amended Initiating Application for which he seeks leave to file and progress. It appears yet to be drafted. In the ordinary course, an application for leave to amend substantive relief by way of r 2.50 of the Rules would, as a matter of procedural fairness, at least require service of that document upon Ms N, affording her an opportunity to engage with the application for joinder. Additionally, the draft Amended Initiating Application in these circumstances would include a pleading by way of Points of Claim identifying the foundation of his case for the substantive claim made against a third party to the marriage. To be clear, that document ought to include the legal and factual particulars grounding the relief sought affecting the interests of Ms N as the proposed joined party.