Karbines & Karbines and Ors

[2008] FamCA 416

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES AND ORS [2008] FamCA 416

FAMILY LAW – JURISDICTION – property proceedings between parties – various interventions by other parties seeking to resolve related disputes – intervener seeking certain funds be paid to him as a result of the husband’s dealings with a property owned by the parties’ company now in liquidation – not persuaded that section 90AD extends the court’s jurisdiction to determine in all cases whether a debt owed by a husband and/or wife would automatically be within the jurisdiction of this Court – Warby and Warby cited – close interconnection between the issues arising between the intervener and the husband and property settlement proceedings – issues regarding the interaction of the parties in their roles as directors of various companies already arisen in proceedings - Court has jurisdiction to determine the intervener’s  claim

Family Law Act1975 (Cth) ss 90AD, 90AE

Warby and Warby (2002) FLC 93-091

APPLICANT: Mr Karbines

RESPONDENT: Mrs Karbines

1^st INTERVENOR: Mr Willa

2^nd INTERVENOR: Mrs Willa

FILE NUMBER: MLF 2479 of 2005

DATE DELIVERED: 27 May 2008

PLACE DELIVERED: Mount Gambier

JUDGMENT OF: Dawe J

HEARING DATE: 27 May 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A L Jordan

SOLICITOR FOR THE APPLICANT: Maddens Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Self-Represented

COUNSEL FOR THE INTERVENORS: Mr H. Bersee

SOLICITOR FOR THE INTERVENORS: Herman Bersee

Orders

1. I propose to hear the matter on the evidence to be presented and rule that I have jurisdiction and it is appropriate for me to exercise that jurisdiction. 

IT IS NOTED that publication of this judgment under the pseudonym Karbines and Karbines and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: MLF 2479 of 2005

MR KARBINES

Applicant

And

MRS KARBINES

Respondent

And

MR AND MRS WILLA

Intervenors

EX-TEMPORE REASONS FOR JUDGMENT

1. I have heard submissions from the husband and Mr Bersee, acting for Mr Willa, in relation to the question of jurisdiction and whether this Court is the appropriate forum to deal with the claims made by Mr Willa in the amended particulars of claim.

2. These proceedings in the Family Court of Australia were initially brought simply between the husband and the wife, in order to resolve standard proceedings by way of property settlement.  Subsequently, however, there have been interventions by other parties seeking to resolve other related disputes in this Court.  The disputes are connected to and related to the various issues which it is necessary for me to determine as part of the property settlement proceedings between the husband and wife.

3. One of the principal issues in relation to the proceedings between the husband and wife in this matter is the Court's requirement to determine what are the assets and liabilities of the parties.

4. The application before me by Mr Willa is against the husband, seeking certain funds be paid to Mr Willa as a result of what Mr Willa alleges is the husband's dealing with the S property, a property which was owned by C Pty Ltd, the company which went into liquidation in February 2007.

5. The property at S has been sold and moneys received from the sale of the S property used to discharge the indebtedness by way of mortgage.  C Pty Ltd's (in liquidation) share of that one-third interest in the property was used to discharge other debts which were secured over the company's interest in that property.

6. The claim that Mr Willa makes relates to several factors.  The first is a claim for a sum in excess of $20,000 which Mr Willa asserts is his share of moneys which were expended to discharge the mortgage over the S property which should not have been incurred, save for the default which he asserts is the default of the husband in making appropriate payments. 

7. The second relates to a claim by Mr Willa that the husband occupied the S property for a period, and excluded any further occupation of the property.  Therefore Mr Willa claims a third of the loss of what would have been the rent received by the owners of the property were it not for the husband's occupation of the S property.

8. The next item is for a third of the value of items Mr Willa asserts the husband wrongfully removed from the property at S; namely, a reception counter and a gravity pump.

9. The fourth and fifth relate to reimbursement of a third share of council rates and water rates, which Mr Willa asserts the husband should have paid because of his occupation of the premises.

10. I am not now determining whether there is appropriate legal basis or factual basis for those claims but am required to determine whether this Court has jurisdiction and whether the Court should exercise that jurisdiction. 

11. Mr Bersee submits that the provisions of the Act, and in particular section 90AD, give the Court jurisdiction to deal with these matters. In particular, that section says:

    “For the purposes of this part, a debt owed by a party to a marriage is to be treated as property for the purposes of paragraph (ca) of the definition of "matrimonial cause" in section 4.”

12. I am not persuaded that this section extends the jurisdiction of this Court to allow it to determine, in all cases, whether a debt owed by a husband and/or wife who have proceedings before this Court would therefore become a matter which was automatically within the jurisdiction of this Court. 

13. The provisions of section 90AE also provide that the Family Court can make an order under section 79 which is binding on a third party. It sets out various conditions and types of orders that the Court can make.

14. The issue to be determined is whether the jurisdiction exists and whether, if it does, this Court is an appropriate forum.

15. The dispute between the husband and Mr Willa involves a financial relationship between them and C Pty Ltd (now in liquidation).  The facts and issues are connected to the issues in dispute between the husband and wife and come within the scope and ambit of the matrimonial proceedings.

16. As the Full Court said in Warby and Warby [2002] FLC 93-091 (at paragraph 79):

    “[A]s a matter of law, the Family Court of Australia is not restricted to the determination of a family law claim or proceedings; it may exercise accrued jurisdiction to determine the non-federal aspects of a justiciable controversy of which the family law claim or cause of action forms a part.  The factual circumstances of the case will determine whether the jurisdiction arises and whether it is appropriate to exercise the jurisdiction.”   

17. There is a close interconnection between the issues arising between Mr Willa and the husband and the matrimonial property settlement proceedings.  The issue forms part of one significant issue that needs to be determined by the Court, namely, what are the debts of the husband?

18. Taking into account the issues which have already arisen in these proceedings (concerning the interaction of each of the parties in their roles as directors of various companies) I am satisfied that this Court does have jurisdiction to determine the claims by Mr Willa against the husband as set out in the summary of the particulars of claims, notwithstanding, of course, that other Courts would also have jurisdiction to determine separate claims if they were litigated in those jurisdictions.

19. I therefore find that I have the jurisdiction.  As to whether it is appropriate to exercise the jurisdiction, I also consider it is appropriate for the Court to do so because of the interaction of many of the facts which relate to the claims by Mr Willa to the factors that need to be determined in the Family Court section 79 property settlement proceedings between the husband and wife.

20. I therefore propose to hear the matter on the evidence to be presented and rule that I have jurisdiction and it is appropriate for me to exercise that jurisdiction. 

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  16 June 2008