Narkis & Narkis (No 3)

Case [2019] FamCA 278

FAMILY COURT OF AUSTRALIA

NARKIS & NARKIS (NO. 3) [2019] FamCA 278
FAMILY LAW – PROPERTY – where the wife did not participate in property proceedings and the court proceeded on an undefended basis – where the wife now seeks to argue that the power of the court to alter interests in property was not exhausted – consideration of the extent of the s 79 power – where the court finds that the property of the parties was dealt with by the orders and the power is therefore spent.
Family Law Act 1975 (Cth)
Bevan and Bevan (2013) FLC 93-545
Branchflower and Branchflower (1980) FLC 90-857
Florie and Florie (1988) FLC 91-913
Gabel & Yardley (2008) FLC 93-386
Hickey and Hickey and the Attorney-General for the Commonwealth of Australia (intervener) (2003) FLC 93-143
Horrigan & Jennings [2018] FamCAFC 206
Mullane v Mullane (1983) FLC 91-303
Narkis & Narkis (see [2016] FamCA 976; [2016] FamCA 1048; [2017] FamCA 52; [2017] FamCA 118; [2017] FamCA 184; [2017] FamCA 200; [2017] FamCA 225; [2017] FamCA 226)
Ramsay and Ramsay (No 2) (1983) FLC 91-323
Robson and Robson [2003] FamCA 217
Strahan and Strahan (interim property orders) (2011) FLC 93-466
APPLICANT: Ms Narkis
RESPONDENT: Mr Narkis

SECOND RESPONDENT/PROPOSED

INTERVENER:

 Mr HH
FILE NUMBER: MLC 210 of 2014
DATE DELIVERED: 3 April 2019
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Cronin J
HEARING DATE: By Way of Written Submissions

SUBMISISONS RECEIVED FROM

COUNSEL FOR THE APPLICANT: Mr McEvoy QC With Ms Matson
SOLICITOR FOR THE APPLICANT: Farrar Gesini Dunn
COUNSEL FOR THE RESPONDENT: Ms Lane
SOLICITOR FOR THE RESPONDENT: Cantwell Family Lawyers
COUNSEL FOR THE SECOND RESPONDENT/PROPOSED INTERVENER: Mr Wraith
SOLICITOR FOR THE SECOND RESPONDENT/PROPOSED INTERVENER: Tisher Liner FC Law

Orders

  1. That paragraph 7 of the wife’s amended initiating application filed 24 May 2018 is dismissed.

  2. That Mr HH (as trustee of the Mr Narkis and Ms JK Family Trust) be joined as a party to the proceedings and forthwith file a Notice of Address for Service.

  3. That all outstanding applications for final orders are adjourned to a date to be fixed to be listed for final hearing before a judge.

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 Narkis & Narkis 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 MELBOURNE

FILE NUMBER: MLC 210  of 2014

Ms Narkis

Applicant

And

Mr Narkis

Respondent

And

Mr HH

2nd Respondent

REASONS FOR JUDGMENT

  1. As long ago as 28 March…

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AGLC
Narkis & Narkis (No 3) [2019] FamCA 278
Case
[2019] FamCA 278
Decision Date

CaseChat Overview and Summary

In *Narkis & Narkis (No 3)*, the wife sought to join Mr HH, as trustee of the Mr Narkis and Ms JK Family Trust, as a party to the proceedings. The husband opposed this application. The matter came before Cronin J in the Federal Circuit Court of Australia.

The primary legal issue before the court was whether Mr HH, as trustee of the family trust, ought to be joined as a party to the financial proceedings between the husband and wife. This involved considering the court's power to join third parties and the relevance of the trust to the property settlement.

Cronin J reasoned that the trust was a relevant consideration in the property settlement, particularly in light of the wife's allegations concerning the dissipation of assets. The court applied principles relating to the joinder of parties in family law proceedings, which permit the joinder of a third party where their interests are directly affected by the proceedings or where their involvement is necessary for the just and equitable determination of the parties' rights. The court found that the trustee's joinder was necessary for the proper resolution of the financial dispute.

Consequently, the court ordered that Mr HH, as trustee of the Mr Narkis and Ms JK Family Trust, be joined as a party to the proceedings and file a Notice of Address for Service. The court also dismissed paragraph 7 of the wife’s amended initiating application and adjourned all outstanding applications for final orders to a date to be fixed for final hearing.

Orders

Orders of the court

1.

That paragraph 7 of the wife’s amended initiating application filed 24 May 2018 is dismissed.

2.

That Mr HH (as trustee of the Mr Narkis and Ms JK Family Trust) be joined as a party to the proceedings and forthwith file a Notice of Address for Service.

3.

That all outstanding applications for final orders are adjourned to a date to be fixed to be listed for final hearing before a judge.

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

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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