Pencious & Pencious

[2010] FamCA 605

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

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.

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
2^nd Respondents

REASONS FOR JUDGMENT

1. 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.

2. 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…