KRAUS & KATURAS - [2019] FCCA 1133

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRAUS & KATURAS

[2019] FCCA 1133

Catchwords:
FAMILY LAW – Application to join wife’s 94 year old mother as a party to property proceedings – failure by husband to particularise his claim dispute multiple requests and opportunities to do so – competing prejudice.

Legislation:

Family Law Rules 2004 (Cth) r.6.03
Federal Circuit Court Rules2001 (Cth), rr.11.01, 11.02

Cases cited:

Bishop and Bishop [2003] FamCA 240
Southwell & Jane (No.2) [2011] FamCA 734
Goodwin & Goodwin [2018] FCCA 385
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113
Gould v Gould; Swire Investments Ltd (1993) FLC 92-434

Applicant:

MR KRAUS

Respondent:

MS KATURAS

File Number:

MLC 2795 of 2017

Judgment of:

Judge Harland

Hearing date:

15 April 2019

Date of Last Submission:

15 April 2019

Delivered at:

Melbourne

Delivered on:

1 May 2019

REPRESENTATION

Counsel for the Applicant:

Mr Lennon

Solicitors for the Applicant:

Lennon Lawyers

Counsel for the Respondent:

Ms Johnston

Solicitors for the Respondent:

Dwyer & Co Solicitors

Counsel for the Proposed Second Respondent:

Mr Edmunds

Solicitors for the Proposed Second Respondent:

Dimos Lawyers

ORDERS

That the Interim Orders sought by the husband in his amended initiating application be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Kraus & Katuras is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2795 of 2017

MR KRAUS

Applicant

And

MS KATURAS

Respondent

REASONS FOR JUDGMENT

This is an application by the applicant husband to join the wife’s mother as a respondent to the proceedings. Initially he sought to join the wife’s parents but subsequently the wife’s father died. The orders he seeks in support of this are set out in his amended initiating application. He erroneously refers to r.6.03 of the Family Law Rules 2004 instead of r.11 of the Federal Circuit Court Rules 2001. In his initiating application the husband says the parties started cohabitating in … 2010, married on … 2011 and separated on 8 November 2015. The parties’ twins were born on … 2015. The wife says they met in … 2009 and married on … 2010. She agrees they separated on 8 November 2015.
The husband commenced the proceedings on 23 March 2017 seeking unparticularised property orders and parenting orders.
In his first affidavit he refers to he and the wife living in the property owned by the wife’s parents at Property A (“the Property A unit”). The wife’s parents lived in the other unit on the same block. He refers to applying insurance monies he received of approximately $120,000 to renovating that home and paying for IVF treatments. He also refers to a period of living with the wife’s parents while the renovation works were being carried out between … 2012 and … 2013. Significantly the husband does not make any reference to having any sort of equitable interest in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KRAUS & KATURAS

Details

AGLC: KRAUS & KATURAS [2019] FCCA 1133
Case: [2019] FCCA 1133
Decision Date: 1 May 2019

CaseChat Overview and Summary

In the Family Court of Australia, the husband sought to join his wife's 94-year-old mother as a party to property proceedings. The wife opposed this application, arguing that the husband had failed to adequately particularise his claim against her mother despite multiple requests and opportunities to do so. The court was therefore required to consider whether to permit the joinder of the mother as a party, balancing the competing prejudices faced by each party.

The central legal issue before the court was whether the husband had established a sufficient basis to join the mother as a party to the property proceedings. This involved assessing whether the husband had adequately particularised his claim against her, and whether the prejudice to the husband in not joining her outweighed the prejudice to the mother and the wife in her being joined.

Judge Harland dismissed the husband's application to join the mother as a party. The reasoning focused on the husband's persistent failure to particularise his claim against the mother, despite repeated opportunities. The court found that the prejudice to the mother, an elderly individual, in being subjected to protracted litigation without a clear understanding of the case against her, coupled with the prejudice to the wife in the ongoing uncertainty and potential for further delay, outweighed any prejudice the husband might suffer from not joining her. Consequently, the interim orders sought by the husband in his amended initiating application were dismissed.

Orders

Orders of the court

That the Interim Orders sought by the husband in his amended initiating application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.