FAMILY COURT OF AUSTRALIA
| PENCIOUS & PENCIOUS | [2010] FamCA 605 |
| FAMILY LAW – PRACTICE AND PROCEDURE – JOINDER – husband wishes to join wife’s parents as they were given a lump sum of cash at the time of separation – Husband then seeks injunctive relief against the parents and that the funds so disgorged be used as litigation funding monies – Application dismissed – Joinder will only occur where there is a cause of action shown and it is reasonably necessary to be so joined – No apparent cause of action on the papers and no necessity shown here – Discussion about Part VIIIAA injunctions |
| Family Law Act 1975 (Cth) |
| B Pty Ltd and Ors & K & K [2008] FamCAFC 113 Hunt v Hunt and Others (2006) 36 Fam LR 64 Strahan & Strahan [2009] FamCAFC 166 Townsend & Townsend (1995) FLC 92-569 Valceski v Valceski (2007) 36 Fam LR 620 |
| APPLICANT: | Mr Pencious |
| RESPONDENT: | Ms Pencious |
| INTERVENOR: | Mr and Mrs S |
| FILE NUMBER: | MLC | 11069 | of | 2008 |
| DATE DELIVERED: | 20 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | THE HONOURABLE JUSTICE CRONIN |
| HEARING DATE: | 21 APRIL 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | MR SALAMANCA |
| SOLICITOR FOR THE APPLICANT: | BERGER KORDOS |
| COUNSEL FOR THE RESPONDENT: | MR WOOD |
| SOLICITOR FOR THE RESPONDENT: | ADRIAN ABRAHAMS FAMILY LAWYERS |
| COUNSEL FOR THE INTERVENOR: | MR NICHOLSON |
| SOLICITOR FOR THE INTERVENOR: | MARIA BARBAYANNIS & CO |
Orders
That the application in a case of the husband filed 26 February 2010 is dismissed.
That save as to any issue of costs, the response of the wife filed 19 April 2010 is dismissed.
That save as to any issue of costs, the response of the wife’s parents filed 19 April 2010 is dismissed.
Certify that is was appropriate for a party to be represented by counsel.
IT IS NOTED that publication of this judgment under the pseudonym Pencious & Pencious is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 11069 of 2008
| MR PENCIOUS |
Applicant
And
| MS PENCIOUS |
Respondent
And
MR AND MRS S
2nd Respondents
REASONS FOR JUDGMENT
Rule 6.02 of the Family Law Rules 2004 makes clear that certain persons must be included as a party to a case. The rule relates to circumstances arising where the rights of third party persons may be directly affected by an issue in a case and where their participation as a party is necessary for the court to determine all issues in dispute in the case. The rule would seem to be sufficiently simple that a party can join a person fitting those circumstances by naming them on an application. In my view, it is not that simple.
The recipient of the application for joinder as well as all other parties to the litigation must be able to identify what material facts give rise to a cause of action against the party sought to be joined. Perhaps the practical test is whether the…
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- Pencious & Pencious [2010] FamCA 605
- Case
- [2010] FamCA 605
- Decision Date
CaseChat Overview and Summary
The court was required to determine the fate of the husband's application and the responses filed by the wife and her parents. The orders indicate that the court had to decide whether to uphold or dismiss these respective filings.
Justice Cronin dismissed the husband's application filed on 26 February 2010. Furthermore, the court dismissed the responses filed by the wife and her parents on 19 April 2010, with the exception of any issues relating to costs. The court also certified that it was appropriate for a party to be represented by counsel.
Orders
Orders of the court
1.
That the application in a case of the husband filed 26 February 2010 is dismissed.
2.
That save as to any issue of costs, the response of the wife filed 19 April 2010 is dismissed.
3.
That save as to any issue of costs, the response of the wife’s parents filed 19 April 2010 is dismissed.
4.
Certify that is was appropriate for a party to be represented by counsel.
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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