Krishna and Suk and Anor

[2019] FamCA 794

FAMILY COURT OF AUSTRALIA

KRISHNA & SUK AND ANOR [2019] FamCA 794

FAMILY LAW – PRACTICE AND PROCEDURE – Application for the de facto spouse to intervene in proceedings between a husband and wife – Where the applicant was not required in those proceedings in order for her interests to be protected – Application dismissed – Where the applicant’s initiating application is to be listed on the date final orders are made between the husband and wife.

Family Law Act 1975 (Cth) s 92.

APPLICANT: Ms Krishna

RESPONDENT: Ms Suk

SECOND RESPONDENT: Mr Fulham

FILE NUMBER: SYC 6579 of 2011

DATE DELIVERED: 30 October 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 30 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Breeze

SOLICITOR FOR THE APPLICANT: FKG Law

SOLICITOR FOR THE RESPONDENT: Blanchfield Nicholls

SOLICITOR FOR THE SECOND RESPONDENT: Crawford Ryan Lawyers Pty Ltd

Orders

IT IS ORDERED

1. That the Application in a Case filed by the de facto spouse, Ms Krishna, on 21 October 2019 seeking to be joined as a party to proceedings between Ms Suk and Mr Fulham be dismissed.

2. That the applicant de facto spouse, Ms Krishna, file and serve upon Mr Fulham an Initiating Application setting out the orders which she seeks upon a final and interim (if applicable) basis on or before 22 November 2019.

3. That the Initiating Application referred to in Order 2 be adjourned to the date upon which final orders are made in suit no. SYC6579/2011.

4. That upon the making of final orders in suit no. SYC6579/2011, the applicant de  facto spouse be at liberty to make such application as she may wish to the Court as to further orders in the proceedings referred to in Order 2.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krishna & Suk and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6579 of 2011

Ms Krishna

Applicant

And

Ms Suk

Respondent

Mr Fulham
  Second Respondent

REASONS FOR JUDGMENT

1. Ms Suk (“the first respondent”) and Mr Fulham (“the  second  respondent”) separated in July 2011 and commenced proceedings in relation to their financial affairs in 2013.

2. Those proceedings are listed for final hearing for three days commencing on 25  November 2019.

3. On 21 October 2019, Ms Krishna (“the applicant”) filed an application to intervene in those proceedings.

4. The applicant asserts that she and the second respondent lived in a de facto relationship from late 2012 until they separated on 9 September 2019.  They have a child together.

5. The application to intervene is opposed by both the first and second respondents.

6. There is no dispute that the applicant has the right to bring an application in relation to the de facto relationship between her and the second respondent. However, it is also not in dispute that, if she were to intervene in the proceedings between the first and second respondents, the hearing would be extended by one to two days and could not be contained within the time allocated. If it were necessary for the hearing to be vacated and other dates allocated, those dates would be likely to be in September 2020.

7. Applications to intervene are governed by the provisions of section 92 of the Family Law Act 1975 (Cth) which provides, relevantly:

   Intervention by other persons

   (1)In proceedings (other than divorce or validity of marriage proceedings), any person may apply for leave to intervene in the proceedings, and the court may make an order entitling that person to intervene in the proceedings.

   (1A)  Omitted.

   (2)An order under this section may be made upon such conditions as the court considers appropriate.

   (3)Where a person intervenes in any proceedings by leave of the court the person shall, unless the court otherwise orders, be deemed to be a party to the proceedings with all the rights, duties and liabilities of a party.

8. Section 92 gives no guidance as to the circumstances in which intervention should be permitted.

9. The case law suggests that persons should be permitted to intervene where their interests are affected by the substantive proceedings, so that they may protect their own interests; or where their interests would be prejudiced in some way if they were not parties to the proceedings.

10. In the present case, the applicant has filed an application setting out the basis of her claim against the second respondent. She claims contributions as a home maker and parent in relation to their child and in relation to the children of the first and second respondents who, for a period of the de facto relationship, spent time in the household of the applicant and the second respondent on a week about basis.

11. The applicant does not claim that she made any contribution, either financially or physically, to the acquisition, conservation or improvement of the property pool which is in dispute between the first and second respondents.

12. She does not claim that she and the second respondent have or had any assets jointly held.

13. She does not claim any equitable or beneficial interest in the property of the first and second respondents.

14. She does not claim to be a creditor of either the first or second respondents.

15. It was conceded by counsel for the applicant that the applicant’s claim is against only that portion of the assets of the marriage which are determined to be the entitlement of the second respondent.

16. No persuasive argument was advanced which suggested that the applicant needed to be a party to the proceedings between the first and second respondents in order for her interests to be protected.

17. In those circumstances, the interests of the applicant are protected by the scheme of orders proposed by the second respondent which would see the applicant file an Initiating Application in new proceedings between herself and Mr Fulham and list that application for mention at the same time as judgment is delivered in the substantive proceedings between the first and second respondents. It is open to the applicant, in those proceedings, to seek such orders as she may be advised to ensure that the assets then available for distribution, are preserved.

18. The application to intervene is dismissed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 30 October 2019.

Associate: 

Date:  30 October 2019