Kachmar & Madero

Case [2022] FedCFamC1F 476

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kachmar & Madero [2022] FedCFamC1F 476

File number(s): MLC 8783 of 2020
Judgment of: HARTNETT J
Date of judgment: 7 July 2022
Catchwords:

FAMILY LAW – PROCEDURAL – Application for joinder of parties – Where the wife seeks the husband’s mother and new partner are joined to property proceedings between the parties – Where the husband seeks the mother’s brother, father and two friends are joined to property proceedings between the parties –Whether the joinder of the proposed parties are persons whose interests would be affected by the making of an order under s 79 of the Family Law Act 1975 – Whether the joinder of the proposed parties are necessary for the Court to determine the matters in dispute between the parties – The wife’s application in a proceeding is successful – Where the husband did not seek leave to file his application in proceeding in accordance with central practice directions – No leave granted – The husband’s application in a proceeding dismissed.

FAMILY LAW – COSTS – Where the wife sought costs on an indemnity basis against the husband – Where the wife alternatively sought costs scale on a party/party basis against the husband – Where the husband was wholly unsuccessful – Where the husband has failed to comply with court orders – Costs ordered in favour of the wife.

Legislation:

Family Law Act 1975 (Cth) ss 79(10)(b), 117, sch 3

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01, 3.03, 3.04, 12.17

Cases cited:

Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Kohan & Kohan [1993] FLC 92-340

Munday v Bowman [1997] FLC 92-784

Wayne & Dillon & Anor [2008] FamCAFC 204

Yunghanns & Yunghanns [2000] FLC 93-029

Division: Division 1 First Instance
Number of paragraphs: 51
Date of hearing: 17 June 2022
Place: Melbourne
Counsel for the Applicant: Ms Dellidis
Solicitor for the Applicant: Waterson Legal
The Respondent: Litigant in person

ORDERS

MLC 8783 of 2020

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

MS KACHMAR

Applicant
AND:

MR MADERO

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

7 JULY 2022

THE COURT ORDERS THAT:

1.MS C is hereby joined as a Second Respondent to the proceeding.

2.MS D is hereby joined as a Third Respondent to the proceeding only for the purpose of compliance with Order 5(b) hereof and that thereafter she be removed as a party to the proceeding in the absence of the Applicant making any application to maintain the joinder with such application to be filed within 21 days of the Applicant’s inspection of the discovered documents.

3.By 4.00pm on 28 July 2022 the Second Respondent file a Response, Affidavit and Financial Statement.

4.By 4.00pm on 28 July 2022 the Second Respondent provide discovery as follows:

(a)the full address of the apartment she owns in the Country B (“the Apartment”);

(b)all documents relating to the purchase of the Apartment including, but not limited…

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AGLC
Kachmar & Madero [2022] FedCFamC1F 476
Case
[2022] FedCFamC1F 476
Decision Date

CaseChat Overview and Summary

In the case of Kachmar & Madero, the husband and wife were married in 2005 and separated in 2016. The wife filed an application in the Federal Circuit Court of Australia seeking interim and final property orders, which the husband responded to by seeking interim and final parenting and property orders. The husband moved to the Country B in 2021 and has remained there since, claiming to have been unemployed during that time. The wife purchased a business in 2021, claiming to have borrowed the entire purchase costs. In December 2021, the husband was ordered to repatriate funds to Australia and pay the wife's costs, which he failed to do. The matter was later transferred to the Court, where further orders were made, including the sale of a property owned by the parties. The wife sought to join the husband's mother and partner to the proceeding to determine all issues in dispute, as their rights may be directly affected.

The legal issues before the Court were whether the husband's mother and partner should be joined to the proceeding and whether the husband had complied with the orders made in December 2021. The Court found that there was no probative evidence to suggest that the husband's mother was unable to attend the hearing, and she simply failed to appear. The Court also found that the husband had not complied with the orders made in December 2021, as he had failed to disclose the address of an apartment registered in his mother's name. The husband claimed not to know the address, despite his partner's admission that they had stayed at the property on occasion.

The Court held that the husband's mother and partner should be joined to the proceeding to determine all issues in dispute, as their rights may be directly affected. The Court found that the husband had not complied with the orders made in December 2021 and ordered him to disclose the address of the apartment registered in his mother's name. The Court further ordered that the husband pay the wife's costs of the hearing on a party/party basis.

Orders

Orders of the court

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Background

Background to the litigation

The husband relied upon his: (a)Application in a Proceeding filed 23 May 2022; (b)affidavits filed 23 May 2022, 9 March 2022, 9 February 2022, 21 January 2022 and 24 November 2021; and (c)financial statement filed 21 January 2022. BACKGROUND The wife was born in 1978 and was 43 at the interim defended hearing. The husband was born in 1976 and was 46. The parties commenced cohabitation in 2000 and were married in 2005. The parties separated on 18 November 2016. There are two children of the marriage, X born in 2010 and aged 11 years, and Y born in 2012 and aged 10 years. They reside with the wife in Australia. One child has special needs. In 2018, the husband commenced a relationship with his new partner, Ms D. On 8 December 2019, the parties were divorced. On 12 August 2020, the wife filed an Initiating Application in the Federal Circuit Court of Australia (now Division 2 of the Federal Circuit and Family Court of Australia) (“Division 2”) seeking interim and final property orders. On 20 October 2020, the husband filed a Response seeking interim and final parenting and property orders. On 28 May 2021, the husband travelled to the Country B. Since that time the husband has remained so residing in the Country B. He was granted a temporary resident visa which expires in 2026, and lives with his partner Ms D in her rental property. Ms D works as a health care worker and provides some support to the husband. The husband claims to have been unemployed for approximately for 12 months before his arrival in the Country B and for the period thereafter. In 2021, the wife purchased a business from her former employer for the sum of $120,000. The wife claims that she borrowed the totality of the purchase costs. On 10 December 2021, Judge Harland of Division 2 delivered reasons for judgment in the wife’s interim application for a departure from child support. Relevantly, she made orders that: (1)the husband repatriate $149,950 to Australia and that such monies be placed in the trust account of the solicitor for the wife; (2)the husband file an affidavit addressing the transfer of funds by him, and provide any supporting documentation; (3)the husband file a financial statement; (4)the husband pay the wife’s costs of $2,903.75 in relation to an earlier hearing on 20 October 2021 on a party/party basis; and (5)the wife’s cost of the hearing before Judge Harland be reserved. The husband has failed to comply with (1) and (4) above. On 14 February 2022, the matter was transferred to the Court. On 25 February 2022, orders were made, relevantly, for documents, including the wife’s Application in a Proceeding filed 7 February 2022, and supporting affidavit, to be served upon Ms C, the husband’s mother and proposed second respondent, and Ms D, the proposed third respondent, via email; for the husband to disclose his bank accounts both in Australia and the Country B; and reserving and fixing the costs of and incidental to the wife’s Application in a Proceeding filed 7 February 2022 in the sum of $6,524.38. Consent orders were also made for the sale of E(1) Street, Suburb F in the State of Victoria. This is a vacant block of land which is property of the parties. The sale of this property has been delayed due to, on the wife’s evidence, the husband seeking a higher reserve price of $768,000, which is more than the two offers the parties have received.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Between 18 March 2022, and the hearing of the competing applications on 17 June 2022, further orders were made, including:·on 6 May 2022, for the husband to pay the costs of the wife’s application filed 29 April 2022 fixed in the sum of $4,986.52 and that those costs be paid to the wife from the husband’s frozen ANZ bank accounts; and·on 11 May 2022, the husband’s objection to the documents produced by the ANZ, pursuant to subpoena, being released for inspection was dismissed.CONSIDERATION As earlier referred to, Ms C is the husband’s mother (“Ms C”) and Ms D is the husband’s partner (“Ms D”). Counsel for the wife submitted that pursuant to r 3.01 of the Family Law Rules it was necessary to join Ms C and Ms D to the proceeding to determine all issue in dispute in the proceeding as their rights may be directly affected. The wife’s application for joinder of the proposed second and third respondents was opposed by the husband. Ms C, the proposed second respondent, is aged approximately 66 years and lives in Country G. She did not appear at the hearing on 17 June 2022 despite the order made 16 March 2022 that she so attend. On the morning of the hearing, the husband emailed a medical certificate to chambers which stated that Ms C “suffers anxiety”. The medical certificate was not filed, nor translated in accordance with r 2.17 of the Family Law Rules. Upon the hearing, the husband submitted that Ms C had also suffered a number of strokes; was physically unfit to attend; and did not understand English. Counsel for the wife submitted that Ms C, had in the past, the responsibility of caring for the husband’s grandmother, who the wife believes is now in an aged care facility. Otherwise, counsel for the wife had no knowledge as to the state of health of Ms C. There is no probative evidence before the Court as to any of Ms C’s health issues, whatever they may be, causing her an inability to attend the hearing by video link. She simply failed to appear. I am satisfied Ms C is aware of the application of the wife for the joinder of her to the proceeding. Ms D did attend the hearing by video link and indicted orally, her opposition to joinder.Joinder of Ms C It is a fact not in dispute that the husband sent some part of the parties’ funds overseas. It is not in dispute that the husband has failed to disclose his application of those funds. The wife alleges that some of those funds were transferred by the husband to Ms C. The wife has now become aware of the fact that there is an apartment in the Country B, that the husband and his partner stay at occasionally, which is registered in the name of the husband’s mother. It is the husband’s evidence that his mother is a private person and that she will not allow him to disclose the address of the apartment. The wife seeks this information to enable the wife to undertake a title search. Order 7 of the orders made 16 March 2022 required the husband to disclose the address of the apartment by no later than 4pm on 23 March 2022. The husband has not complied with this order. When asked by the Court during the hearing what the address was, the husband submitted that he does not know the address. This seemed extraordinary given Ms D’s subsequent admission that she and the husband had stayed at the property on occasion.