Grange and Grange and Ors

[2013] FamCA 171

FAMILY COURT OF AUSTRALIA

GRANGE & GRANGE AND ORS [2013] FamCA 171

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder of parties – Injunctions issued

Family Law Act 1975 (Cth)

APPLICANT: Ms Grange

FIRST RESPONDENT:	Mr Grange
SECOND RESPONDENT:	Ms A
THIRD RESPONDENT:	Ms B

FILE NUMBER: ROC 580 of 2011

DATE DELIVERED: 18 March 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 18 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Ms Clegg
SOLICITOR FOR THE APPLICANT	Madden Solicitors

FOR THE FIRST RESPONDENT: In person

ORDERS

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Pursuant to rule 6.03 of the Family Law Rules 2004 (Cth) Ms A be joined in the proceedings as Second Respondent hereto.

2. Pursuant to sections 114 and 90AF of the Family Law Act 1975 (Cth) an injunction issue restraining Ms A from dealing with, purporting to sell or otherwise encumbering or dealing with the property known as, more particularly described as Lot … on RP …, C Street, D town, being all of the land contained in certificate of title ….

3. Pursuant to rule 6.03 of the Family Law Rules 2004 (Cth) Ms B be joined in the proceedings as Third Respondent hereto.

4. Pursuant to sections 114 and 90AF of the Family Law Act 1975 (Cth) an injunction issue restraining Ms B from dealing with or disbursing the monies received by her upon the sale of the E Allocations attached to the property situated at C Street, D Town.

5. Each of the Applicant and First Respondent provide discovery as required pursuant to the Family Law Act 1975 (Cth) within fourteen (14) days of this Order.

6. The First Respondent forthwith file and serve an affidavit upon the Applicant deposing to all relevant details concerning the proceeds of the E allocation rights including details of any accounts where those proceeds have been deposited and the First Respondent be restrained by injunction from dealing with or disposing of any such funds.

7. Pursuant to sections 114 and 90AF of the Family Law Act 1975 (Cth) an injunction issue restraining the First Respondent from selling or otherwise dealing with the machines and assets owned by “F Contractors”.

8. Each party’s costs of and incidental to this Applicant be reserved to the trial Judge.

IT IS ORDERED BY CONSENT OF THE APPLICANT AND FIRST RESPONDENT THAT

1. The Applicant and First Respondent attend a mediation to be conducted with a private mediator.

2. After conclusion of disclosure in the proceedings, the Applicant shall nominate to the First Respondent the names of three (3) prospective mediators who could conduct the mediation in the matter.

3. The First Respondent shall identify to the Applicant within fourteen (14) days of that nomination which of those mediators he agrees to conduct the mediation and notify the Applicant of that.

4. The Applicant and First Respondent do all acts and things necessary to arrange the mediation to be conducted.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grange & Grange and Ors 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 BRISBANE

FILE NUMBER: ROC 580 of 2011

Ms Grange

Applicant

And

Mr Grange

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The present parties to these proceedings, Ms Grange, the Applicant Wife, and Mr Grange, the Respondent Husband, married in 1978 and separated in 2008.  By her Amended Initiating Application, filed on 13 February 2013, the Applicant Wife seeks a variety of final and interim property orders. 

2. The orders the Wife seeks are directed in part to the transfer from the Husband to his daughter, Ms A, in 2004, of the property known as C Street D Town.  The Applicant Wife seeks that that transfer of property be set aside and associated relief.

3. The other part to which the Amended Initiating Application directs itself is a transaction involving the Respondent Husband’s mother Ms B.  It is the Wife’s case that the parties, that is, the Husband and Wife, had an equitable interest held in the company name of G Pty Ltd, in respect of a materials allocation.  It seems that this materials allocation was sold for a price of $1,125,000.

4. The Wife’s substantive application is that the parties have the beneficial interest and ownership of that sum of money and that, in effect, Ms B holds that property on trust for the parties.  The Wife seeks, by an Amended Application in a Case filed on 10 December 2012, the joinder to these proceedings of the daughter Ms A, with respect to the C Street and the joinder of Ms B, with respect to the allocation referred to. 

5. The Respondent Husband appears for himself today.  He has not filed any material in response to the Amended Application in a Case.  He asserts from the bar table that the joinder of the parties is unnecessary, because, he says, they are beneficially entitled to the respective properties.

6. However, it seems to me that that is plainly on the Wife’s material, a trial issue and there is a serious question to be tried in respect of the beneficial ownership of the two properties.  It may well be that the Husband can ultimately demonstrate that the beneficial ownership is consistent with his case.  However, on the hearing today Ms B, despite having been served with the proceedings and the proposed joinder and injunctions sought against her, does not appear by herself or by any legal representative.

7. I am satisfied on the contents of exhibit 1, admitted in the proceedings, that Ms A would appear to be attempting to evade service of the formal documents.  I am satisfied that both parties ought be joined to the proceedings.  I am also satisfied, given the Wife’s case and the serious issues to be tried, that the balance of convenience favours the grant of the injunctions sought by the Wife in respect of any dealings with those respective properties, pending the hearing and determination of the issues at a trial.

8. The Wife also seeks orders with respect to the Husband providing disclosure and agrees to provide disclosure herself and the Husband did not mount any forceful opposition on the hearing today in respect of an order directing him to file and serve an affidavit specifically dealing with the proceeds of the allocation rights that apparently he says were received by his mother and, he says, with the consent of the Wife.

9. At this stage, because they are trial issues and both Ms A and Ms B will need to be heard or at least have the opportunity to be heard in terms of orders affecting what appear to be their present substantive legal rights, I decline to make declarations that would follow the findings contended for by the Wife in the substantive proceedings.  However, I am satisfied in respect of the making of orders for joinder of the two parties referred to as parties to these proceedings and I am satisfied as to the making of orders for injunctions in the meantime.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 18 March 2013.

Associate: 

Date:  18 March 2013