FAMILY LAW – PRACTICE AND PROCEDURE – joinder – application by the husband for joinder of wife’s current partner and wife’s mother – where husband alleges that proposed additional parties have colluded with wife to keep matrimonial assets from his reach – where husband has not established a properly particularised claim against either of the proposed additional parties – joinder refused
[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.
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Details
AGLC
Olindo & Donati [2023] FedCFamC2F 1367
Case
[2023] FedCFamC2F 1367
Decision Date
CaseChat Overview and Summary
In Olindo & Donati, the Federal Circuit and Family Court of Australia (Division 2) addressed an application by Mr Olindo to join additional parties to ongoing family law proceedings. Mr Olindo sought to join his wife's current partner, Mr Meade, and his mother, Ms B Donati, on the basis that they had colluded with his wife to prevent him from accessing matrimonial assets. The application was contested by Ms Donati and the proposed additional respondents.
The court was tasked with determining whether Mr Olindo had sufficiently particularised a claim against Mr Meade and Ms B Donati to justify their joinder as parties to the proceedings. The court examined the particulars of the claim and the evidence provided by Mr Olindo to assess if there were grounds for the additional joinder. The court noted that the husband had not established a properly particularised claim against either of the proposed additional parties. Consequently, the court concluded that joinder was not warranted under the circumstances presented.
The court dismissed the application for joinder and struck out the statement of claim filed by Mr Olindo. The court ordered that any application for costs be filed and served within 28 days of the date of these orders. This decision underscores the importance of particularisation in family law proceedings, particularly when seeking to join additional parties.
Orders
Orders of the court
ADC 3022 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR OLINDO
Applicant
AND:
AND:
AND:
MS DONATI
Respondent
MR MEADE
Proposed Second Respondent
MS B DONATI
Proposed Third Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
30 OCTOBER 2023
UPON NOTING THAT:
A. Mr Meade, being the registered proprietor of the properties at B Street, Suburb C, South Australia and D Street, Suburb E, South Australia has advised the Court via his legal representative of his consent to valuations of those properties being undertaken for the purpose of these proceedings.
THE COURT ORDERS THAT:
1. The Application in a Proceeding filed by the Husband on 29 May 2023 is dismissed.
2. The Statement of Claim filed by the Husband on 1 August 2023 is struck out.
3. Any application for costs be filed and served within 28 days of the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.