FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Genesalio & Genesalio [2023] FedCFamC1F 160
File number(s): MLC 7657 of 2018 Judgment of: JOHNS J Date of judgment: 26 April 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – joinder – application by the wife for joinder of the husband’s brother – application by the wife for joinder of a company of which the husband is the current director – where the wife claims the husband and his brother acted in partnership – where the wife claims the husband holds an interest in properties in which legal title is vested in his brother – where the wife claims the husband and his brother have acquired property for their mutual benefit throughout the parties’ marriage – where the wife seeks valuation of a number of items of property registered in the name of the husband’s brother – where a significant factual dispute exists between the parties – where that factual dispute requires determination at a final hearing – where the husband has failed to provide full and frank disclosure – where the husband concedes he is a specified beneficiary of a Trust which holds a number of items of property sought to be valued by the wife – where the husband’s brother should be joined to the proceedings Legislation: Administration and Probate Act 1958 (Vic) Part IV
Family Law Act 1975 (Cth) ss 44(6), 79(10)(b)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Rules 3.01, 3.03
Cases cited: AC and Ors & VC and Anor [2013] FamCAFC 60
B Pty Ltd and Ors & K and Anor (2008) FLC 93-380
Bianchi & Bianchi [2022] FedCFamC2F 25
Chen & Chen & Ors (No.2) [2017] FamCA 285
Daire & Gamer [2021] FedCFamC1F 261
Galante & Galante and Ors [2019] FamCA 756
King & King [2021] FamCA 603
Lin & Ruan [2021] FamCAFC 90
Mansfield & Mansfield [2017] FCCA 13
Milligan & Milligan and Anor [2017] FamCAFC 218
Palermo v Palermo [2015] WASCA49
Rigby & Kingston & Anors (2020) FamCA 415
Shipman & Shipman [2021] FamCA 584
Simmons and Anor & Simmons [2008] FamCA 1088
Skelton & Lindop [2022] FedCFamC1A 47
Wayne & Dillon & Anor [2008] FamCAFC 204
Division: Division 1 First Instance Number of paragraphs: 114 Date of hearing: 21 November 2022 Place: Melbourne Counsel for the Applicant: Mr Dinelli SC & Ms Frederico Solicitor for the Applicant: Mazzeo Lawyers Counsel for the First Respondent: Ms Vohra SC Solicitor for the First Respondent: Matthew Oldham Barrister & Solicitor Proposed Second Respondent: In Person (Self-Represented Litigant) Counsel for the Proposed Third Respondent: Ms Dwyer Solicitor for the Proposed Third Respondent: Franzese & Associates Lawyers & Consultants ORDERS
MLC 7657 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GENESALIO
Applicant
AND: MR GENESALIO
First Respondent
MR M GENESALIO
Proposed Second Respondent
B PTY LTD
Proposed Third Respondent
order made by:
JOHNS J
DATE OF ORDER:
26 April 2023
THE COURT ORDERS THAT:
1.That Mr M…
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- AGLC
- Genesalio & Genesalio [2023] FedCFamC1F 160
- Case
- [2023] FedCFamC1F 160
- Decision Date
CaseChat Overview and Summary
The wife sought to join the husband's brother as a second respondent in proceedings related to a property dispute and alleged partnership. The husband opposed the joinder, arguing that the wife had not sufficiently particularised her claims. The case was heard in the Federal Circuit and Family Court of Australia. The court was required to decide whether the husband's brother should be joined as a party to the proceedings and whether the wife had adequately substantiated her claims against him.
The court considered the material provided by both parties, including affidavits and statements of claim. The wife's claims were based on an alleged partnership between the husband and his brother, and the husband's interest in certain properties. The husband argued that the wife had not provided sufficient evidence to support her claims, and that her application should be dismissed. The court found that the wife had not provided enough evidence to substantiate her claims of a partnership or the husband's interest in the properties held by his brother. The court also noted that the husband's brother had not been actively involved in the proceedings and had ceased legal representation.
The court dismissed the wife's application to join the husband's brother as a party to the proceedings, finding that the wife had not provided sufficient evidence to support her claims. The court ordered the wife to pay the husband's costs of the application. No further orders were made with respect to the husband's brother, as he was not joined as a party to the proceedings.
The court considered the material provided by both parties, including affidavits and statements of claim. The wife's claims were based on an alleged partnership between the husband and his brother, and the husband's interest in certain properties. The husband argued that the wife had not provided sufficient evidence to support her claims, and that her application should be dismissed. The court found that the wife had not provided enough evidence to substantiate her claims of a partnership or the husband's interest in the properties held by his brother. The court also noted that the husband's brother had not been actively involved in the proceedings and had ceased legal representation.
The court dismissed the wife's application to join the husband's brother as a party to the proceedings, finding that the wife had not provided sufficient evidence to support her claims. The court ordered the wife to pay the husband's costs of the application. No further orders were made with respect to the husband's brother, as he was not joined as a party to the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
The proposed second respondent, Mr M Genesalio, is the husband’s brother. Mr M Genesalio is a financial professional and operated his own business until about 2005. The husband deposes that at present, he is heavily reliant upon his brother’s support, both financially and as his physical carer due to the husband’s ongoing ill health. BACKGROUND The issue of joinder was first raised by the wife in her Application in a Proceeding filed 14 April 2022. The wife sought orders that the husband’s brother be joined to the proceedings and for the valuation of a number of items of real property. Pursuant to his Amended Response to Application in a Proceeding filed 26 April 2022, the husband sought that the wife’s application be dismissed and that she properly particularise the precise factual and legal matters which she claims support her assertion that the brothers had acted in partnership. The husband’s brother filed a Notice of Address for Service on 5 May 2022. At that time, he was represented by a legal practitioner. That representation ceased on 15 June 2022. The husband’s brother filed a Response to Application in a Proceeding on 11 July 2022. In that Response, he sought that the wife’s application be dismissed and that she pay his costs. The hearing of the wife’s application for joinder was originally listed to proceed before me on 12 July 2022. That day, all parties were represented by Counsel. It became apparent upon hearing from Counsel for each of the husband, wife and the husband’s brother that further precision was required with respect to the wife’s claim. On that basis, the wife’s application for joinder was adjourned and I made orders requiring her to file and serve a Statement of Claim, setting out the legal and factual basis of her claim with respect to the purported partnership and husband’s interest in property held by his brother. I also made orders requiring both the husband and his brother to file and serve a Defence to that Statement of Claim. The hearing proceeded before me on 21 November 2022. That day, the wife and the husband were represented by Senior Counsel and the proposed second respondent represented himself. MATERIAL RELIED UPON The applicant wife relied upon the following documents:- ·Further Amended Application in a Proceeding filed 19 August 2022;·Statement of Claim filed 19 August 2022; ·Affidavit of the Applicant filed 22 February 2022; ·Affidavit of the Applicant filed 14 April 2022; ·Affidavit of the Applicant filed 7 June 2022; ·Affidavit of Mr T filed 17 March 2022; and·Affidavit of Mr U filed 22 February 2022. The respondent husband relied upon the following documents:- ·Outline of Case Document (Interim Hearing) filed 18 November 2022; ·Defence to Statement of Claim filed 10 October 2022; ·Response to Amended Application in a Proceeding filed 8 July 2022; ·Affidavit of the Respondent filed 26 April 2022; ·Amended Response to Application in a Proceeding filed 29 April 2022; ·Notice of Objection to wife’s trial affidavit and affidavit of Mr T filed 20 April 2022; ·Affidavit of the Respondent filed 19 April 2022; and ·Document tendered during the course of the hearing, being Exhibit H-1.
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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