Foster and Cotter and Anor

[2016] FamCA 1038

FAMILY COURT OF AUSTRALIA

FOSTER & COTTER AND ANOR [2016] FamCA 1038

FAMILY LAW – Property – contested application for removal of second respondent from proceedings – contested application for summary dismissal – application refused.

Family Law Act 1975 (Cth), s 90AE, 118
Family Law Rules 2004 (Cth), rr 6.02, 6.04, 10.12

Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199

Bima and Anor & Minister for Immigration and Border Protection [2014] FamCA 1094
Diem & Vho and Ors [2016] FamCA 680
Friar & Friar [2011] FamCAFC 71
Kelly & Lomax and Anor [2013] Fam CA 496
Lindon v Commonwealth of Australia (No 2) (1996) 70 ALJR 541
Pelerman and Pelerman (2000) FLC 93-037
Wayne & Dillon and Anor [2008] FamCAFC 204

APPLICANT: Ms Foster

FIRST RESPONDENT:  Mr Cotter

SECOND RESPONDENT: Mr Parks

FILE NUMBER: MLC 1699 of 2014

DATE DELIVERED: 2 December 2016

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 28 & 29 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Geddes QC

SOLICITOR FOR THE APPLICANT: Kennedy Partners

COUNSEL FOR THE FIRST RESPONDENT: Mr Sweeney

SOLICITOR FOR THE FIRST RESPONDENT: M A Legal

COUNSEL FOR THE SECOND RESPONDENT: Mr St John QC and Mr Murphy

SOLICITOR FOR THE SECOND RESPONDENT: CE Family Lawyers

Orders

1. That paragraphs 1 and 2 of the second respondent’s Application in a Case filed 8 February 2016 be dismissed.

2. That paragraph 2 of the first respondent’s Further Amended Response to Initiating Application filed 14 August 2015 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1699 of 2014

Ms Foster

Applicant

And

Mr Cotter

First Respondent

And

Mr Parks

Second Respondent

REASONS FOR JUDGMENT

1. The second respondent Mr Parks, supported by the first respondent, brings an Application in a Case in response to an Amended Initiating Application filed by the applicant de facto wife pursuant to s 90AE of the Family Law Act 1975 (Cth) (“the Act”).

2. The applicant and the first respondent were in a de facto relationship from 1987.  There is disagreement about the date of separation.  On the applicant’s case the parties separated in April 2013.  On the first respondent’s case the parties separated in October 2009.  (For ease of reference I will refer to the de facto wife as the wife and the first respondent de facto husband as the husband.)

3. By way of final orders sought in the substantive property settlement proceedings, the applicant wife seeks orders in her favour and/or the husband, adjusting Mr Parks’ shareholdings in a number of entities which she alleges Mr Parks holds on behalf of the husband.

4. Mr Parks seeks the following orders:

   1. That [he] be removed as the Second Respondent in these proceedings;

   2. That paragraphs 5 and 6 of the Final Orders…