MANDERVILLE & BORAH - [2019] FCCA 2752

FEDERAL CIRCUIT COURT OF AUSTRALIA

MANDERVILLE & BORAH

[2019] FCCA 2752

Catchwords:
FAMILY LAW – Joinder – whether the father of the respondent should be joined to the proceedings.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.11.01, 13.07
Family Law Act 1975 (Cth), ss.79, 90SM, 106

Cases cited:

B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113
Bishop & Bishop [2003] FamCA 240
Chen & Tan [2012] FamCA 225
Kraus & Katuras [2019] FCCA 1133
Teo & Guan [2015] FamCAFC 94
Wayne & Dillon & Anor [2008] FamCAFC 204

Dickey, A, ‘Orders in respect of foreign property under section 79’ (1993) 67 Australian Law Journal 538

Nygh, P, Conflict of Laws in Australia (2014, 10^th ed, Lexis Nexis Butterworths)

Applicant:

MS MANDERVILLE

Respondent:

MR BORAH

File Number:

BRC 1678 of 2015

Judgment of:

Judge Spelleken

Hearing date:

11 July 2019

Date of Last Submission:

11 July 2019

Delivered at:

Brisbane

Delivered on:

26 September 2019

REPRESENTATION

Solicitors for the Applicant:

HopgoodGanim Lawyers

Counsel for the Respondent:

Ms Carr (direct brief)

Counsel for the proposed Second Respondent:

Mr Dodd

Solicitors for the proposed Second Respondent:

Parry Coates Family Law

ORDERS

That the Application in a Case filed on 25 February 2019 be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 1678 of 2015

MS MANDERVILLE

Applicant

And

MR BORAH

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter between the applicant, Ms Manderville (‘the applicant’) and the respondent Mr Borah (‘the respondent’), the Court is asked to decide whether the respondent’s father, Mr H, (‘Mr H’) should be joined as the second respondent to the proceedings.
The applicable rule with respect to a joinder application can be found in Rule 11.01 of the Federal Circuit Court Rules 2001 (Cth) which is set out as follows:
11.01 Necessary parties
(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party in the proceeding.
(2) The Court may require a person to be included as a party.
(3) A person required to be included as an applicant who does not consent to be included may be included as a respondent.
(4) The Court may decide a proceeding even if a person is incorrectly included or not included as a party.

Evidence

The applicant relied on the Application in a Case, a further Amended Response and supporting affidavit filed on 12 February 2019.
The respondent relied on the response to the Application in a Case filed on 22 February 2019, his affidavit filed on 21 February 2019 and 22 February 2019 and the amended reply filed on 15 February 2018.

Relevant History

In 1988, the respondent and Mr H purchased a property in the UK at M Street, City N,…

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 MANDERVILLE & BORAH

Details

AGLC: MANDERVILLE & BORAH [2019] FCCA 2752
Case: [2019] FCCA 2752
Decision Date: 26 September 2019

CaseChat Overview and Summary

In proceedings before Judge Spelleken, the applicant sought to join the father of the respondent to the proceedings. The nature of the underlying dispute is not detailed, but the application concerned the joinder of a party to existing family law proceedings.

The central legal issue before the court was whether the father of the respondent should be joined as a party to the proceedings. This required the court to consider the relevant provisions of the *Family Law Act 1975* (Cth) concerning the joinder of parties and the principles governing such applications.

The court dismissed the application filed on 25 February 2019. The judgment was published under the pseudonym Manderville & Borah, with approval granted pursuant to s.121(9)(g) of the *Family Law Act 1975* (Cth).

Orders

Orders of the court

ORDERS

1. That the Application in a Case filed on 25 February 2019 be dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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