Houghton and Cotter and Anor

[2014] FamCA 626

FAMILY COURT OF AUSTRALIA

HOUGHTON & COTTER AND ANOR [2014] FamCA 626

FAMILY LAW – Joinder – application – opposed

Family Law Act 1975 (Cth)

APPLICANT: Ms Houghton

RESPONDENT: Ms Cotter

INTERVENOR: Mr Cotter

FILE NUMBER: MLC 129 of 2013

DATE DELIVERED: 7 July 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 July 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Treyvaud

SOLICITOR FOR THE APPLICANT: Clancy & Triado

COUNSEL FOR THE RESPONDENT: Mr Macfarlane

SOLICITOR FOR THE RESPONDENT: Harwood Andrews Lawyers

SOLICITOR FOR THE INTERVENOR: Mr Farmer

SOLICITOR FOR THE INTERVENOR: Stephen Farmer & Associates

Orders

1. ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin as the 2^nd case in the monthly list commencing at 10.00am on 13 October 2014 as a four day matter.

2. The evidence in chief of all witnesses shall be given by affidavit.

3. The matter be listed for mention at 9.00am on 1 October 2014 (noting that the second respondent is excused from personal attendance).

   TIMETABLE:

4. By 4 pm on 29 August 2014 the applicant file and serve upon all other parties:

   (a)an amended application setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

5. The applicant pay all required court fees by 4 pm on 29 August 2014.

6. By 4 pm on 12 September 2014 the 1^st  named respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought;

   (b)all affidavits of evidence to be relied upon; and

   (c)a financial statement.

7. By 4 pm on 3 October 2014 the 2^nd named respondent file and serve upon all other parties:

   (a)an amended response setting out with precision the orders to be sought; and

   (b)all affidavits of evidence to be relied upon.

8. That the 2^nd named respondent is joined as a party to proceedings.

9. By 4 pm on 19 September 2014 the applicant file and serve any affidavit in reply.

10. Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon.

    SUBPOENAE

11. All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

    CASE MANAGEMENT

12. The registrar may vary the filing timetable under these orders.

13. If a party fails to comply with these orders, a party who has complied may file an application in a case supported by an affidavit seeking to proceed on an undefended basis.

14. Any rulings required on objections to evidence shall be set out in the case outline.

15. By 4 pm on 9 October 2014 all parties file electronically to a case outline in one document setting out:

    (a)a concise set of orders to be sought;

    (b)the list of the affidavits to be read;

    (c)the list of objections to evidence requiring a ruling;

    (d)the outline of the issues in dispute; and

    (e)a list of assets and liabilities.

    COSTS

16. At the commencement of the hearing, each party shall provide the court with a statement setting out their costs incurred to that date, the source of any payments made and what costs are expected until the completion of the hearing.

17. That reasons for the joinder this day be delivered as soon as practicable.

    AND THE PARTIES SHOULD NOTE:

    A.Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

    B.Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Houghton & 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 129  of 2013

Ms Houghton

Applicant

And

Ms Cotter

Respondent

And

Mr Cotter    
Intervenor

REASONS FOR JUDGMENT

1. In these property and parenting proceedings, an amended application by the mother sought to join the father’s sibling as a party to the proceedings on the basis that the main assets from which any alteration of property interests order could be satisfied are owned by the father’s sibling.

2. Mr Farmer on behalf of the proposed second respondent opposes the joinder.  He submitted that it was premature if indeed, the issue relates to enforcement of the orders.  He conceded however that if the Court made an order in excess of the value of the property that his client was prepared to forego, the matter would have to come back to court for the purposes of joinder and further hearing.  The difficulty with that position is that the proposed second respondent would not have been a party to the proceedings and would have no right to argue about the merits of the proceeding as distinct from how the enforcement would occur.

3. Whilst there is a superficial attraction to Mr Farmer’s submitted proposal, it might save costs in the meantime but end up in further litigation. 

4. The problem was compounded by the fact that neither party was able to clearly articulate what the position would be that they would be pursuing at trial.  The mother’s position was said to be that she was seeking 60 per cent.  Her counsel conceded that that was ambitious bearing in mind an acknowledgement that the respondent father had made significant contributions particularly in relation to the business at the commencement.  The father’s position too was fluid because of the fact that he was unable to say what the assets were at this time.  There is a very significant valuation dispute and whilst his shadow expert has been engaged, there is a very big difference between the two experts not only in terms of the quantum but the methodology for the valuation.  Thus, the submission by Mr Farmer that his client would be prepared to forego his interests in a property for the purposes of the father and the brother satisfying the debt, is of little comfort when neither party has a clear picture of what the likely outcome would be.

5. Rule 6.02 of the Family Law Rules 2004 provides that a person whose rights may be directly affected by an issue in a case and whose participation as a party is necessary for the Court to determine all issues in dispute, must be included as a party to the case.

6. In this case, there is little doubt that the proposed second respondent would be directly affected by any order let alone any issue in the case because it may be that what he is proposing would not satisfy any order in favour of the mother culminating in a sale of a further interest in a property that he has.  I find therefore that his participation is necessary not only for the purposes of enforcement but also indeed whether or not it is just and equitable to make an order at all.  In my view therefore the second respondent must be included as a party to the case.  Orders have been made accordingly.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 July 2014.

Associate: 

Date:  4 August 2014