Ramirez & Ramirez

Case [2024] FedCFamC1F 403

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Ramirez & Ramirez [2024] FedCFamC1F 403

File number(s): SYC 9681 of 2023
Judgment of: SCHONELL J
Date of judgment: 4 June 2024
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the adult child of the matrimonial relationship sought to join the proceedings – Where the former de facto partner of the husband sought to join the proceedings – Where a company claiming equitable interest in the former matrimonial home sought to join the proceedings – Where the husband and wife opposed the joinder of the former de facto partner of the husband – Where the husband and wife support the joinder application of the child of the matrimonial relationship – Where the husband and wife neither oppose nor consent to the joinder of the company – Where the Court is of the view that joinder of the former de facto partner of the husband and the adult child of the relationship is necessary to determine the matters in dispute – Where the Court is of the view that the company’s claim arises entirely in contract – Joinder application of the company refused – Orders made for joinder of the adult child of the matrimonial relationship and the former de facto partner of the husband as respondents.

FAMILY LAW – COSTS – Where the former de facto partner of the husband sought costs in respect of the joinder application – Orders made that costs in respect of the joinder Application by the former de facto partner of the husband should be paid from the husband and wife’s share of their property settlement entitlements.

Legislation:

Family Law Act 1975 (Cth) ss 79(10)aa, 79(10)(b) 117, 117(2), 117(2A)

Family Law Rules 2004 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03(4)
Cases cited:

B Pty Ltd and Ors & K and Anor (2008) FLC 93-380; [2008] FamCAFC 113

Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223

Krishna and Suk [2019] FamCA 794

Riemann & Riemann and Ors (No. 3) [2017] FamCA 911

Rigby and Kingston (No. 3) [2021] FamCA 146

Victoria v Sutton (1998) 195 CLR 291;[1998] HCA 56

Wayne v Dillon (2008) 40 Fam LR 543; [2008] FamCAFC 204
Division: Division 1 First Instance
Number of paragraphs: 57
Date of hearing: 4 June 2024
Place: Sydney
Counsel for the Applicant: Mr Smith
Solicitor for the Applicant: Quill Legal Pty Ltd
Solicitor for the First Respondent: Ms Duncan, M Duncan & Associates
Counsel for the Proposed Second Respondent: Mr Weightman
Solicitor for the Proposed Second Respondent: Lagom Family Law
Counsel for the Proposed Third and Fourth Respondent: Mr O’Shea
Solicitor for the Proposed Third and Fourth Respondent: Stephen Teece Solicitor

ORDERS

SYC 9681 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR RAMIREZ

Applicant
AND:

MS RAMIREZ

First Respondent

MS SCHUSTER

Proposed Second Respondent

MS HOLLAND (and another named in the Schedule)

Proposed Third Respondent

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Details
AGLC
Ramirez & Ramirez [2024] FedCFamC1F 403
Case
[2024] FedCFamC1F 403
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Ramirez & Ramirez involved a dispute regarding the joinder of parties in family law proceedings concerning the distribution of assets following a divorce. The husband, Mr Ramirez, and the wife had been divorced since 2013 and had two adult children, one of whom, Ms Holland, sought to join the proceedings. Additionally, Ms Schuster, the former de facto partner of the husband, sought to join the proceedings, as did B Pty Ltd, a company claiming an equitable interest in the former matrimonial home. The husband and wife opposed the joinder of Ms Schuster but supported the joinder of Ms Holland. The husband and wife neither opposed nor consented to the joinder of B Pty Ltd.

The central legal issues before the court were whether Ms Holland and Ms Schuster should be joined to the proceedings and whether B Pty Ltd's claim should be considered. The court needed to determine if the joinder of these parties was necessary to resolve the disputes at hand and if B Pty Ltd's claim was purely contractual, which would exclude it from family law jurisdiction. The court held that the joinder of Ms Holland and Ms Schuster was necessary to address the matters in dispute, as their involvement was integral to the property settlement and the potential sale of the former matrimonial home. Conversely, the court found that B Pty Ltd's claim arose entirely in contract and thus fell outside the scope of family law proceedings.

As a result, the court ordered that Ms Holland and Ms Schuster be joined to the proceedings as the second and third respondents, respectively. It also ruled that B Pty Ltd's application for joinder be dismissed. Furthermore, the court directed that costs related to the joinder application by Ms Schuster be paid by the husband and wife from their share of their property settlement entitlements. The court further restrained the husband from dealing with his interest in the property without providing 28 days' notice to Ms Schuster. The matter was set for a Conciliation Conference, and Ms Schuster was granted leave to make an oral application for costs against the husband and wife.

Orders

Orders of the court

SYC 9681 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR RAMIREZ

Applicant

AND:

MS RAMIREZ

First Respondent

MS SCHUSTER

Proposed Second Respondent

MS HOLLAND (and another named in the Schedule)

Proposed Third Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

4 JUNE 2024

THE COURT ORDERS THAT:

1. Pursuant to r 3.03(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Ms Schuster and Ms Holland are joined to the proceedings as the second and third respondents.

2. The second respondent is directed to file a Response within 14 days.

3. The husband is restrained from dealing with his interest in the property described as C Street, Suburb D without first giving 28 days' written notice to the second respondent.

4. The parties have liberty to restore the matter on 7 days' notice in writing.

5. A Registrar is requested to allocate a Conciliation Conference.

6. Leave is granted to the second respondent to make an oral application for costs against the applicant and first respondent.

7. The applicant and first respondent pay in equal shares the costs of the second respondent assessed in the sum of $6,700, such sum to be paid from their share of their property settlement entitlements.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

B Pty Ltd relied upon the following documents:(1)Application in a Proceeding sealed 7 May 2024; and(2)Affidavit of Mr E filed 6 May 2024.BACKGROUND The husband was born in 1951 and is aged 72 years. The wife was born in 1955 and is aged 68 years. The husband and wife commenced cohabitation in 1973, married in 1975 and separated in 2012. They were divorced in 2013. There are two children of their relationship: Mr F and Ms Holland. Both are over 18. Ms Holland seeks to be joined to the proceedings as the proposed third respondent. The husband and Ms Schuster, according to him, commenced cohabitation in 2010 and separated in January 2023. Ms Schuster was born in 1984 and is aged 39 years. They have one child G born 2012 who is aged 12. Ms Schuster seeks to be joined as the second respondent. During the husband and wife's relationship they purchased a property at C Street, Suburb D which became their home. They also conducted a business. The business profits according to the husband paid the mortgage on the Suburb D property and living expenses of the parties. Following their separation the parties continued to operate the business, but Covid affected its profitability and the husband says that in 2021 he ceased to operate the business which was continued by the wife until mid-2023 when it was closed. He contends that the only assets of substance as between he and the wife is the Suburb D property. He says it is valued according to his Financial Statement at $9 million subject to a debt to the bank of approximately $920,000. He is not working, is living with a friend and cannot get a Centrelink benefit as Suburb D is according to his affidavit perceived as an investment. The wife is in receipt of a Centrelink benefit and continues to live in the Suburb D property. The wife says in her affidavit that following their separation, she assisted her daughter with meeting legal fees in relation to her divorce. In her affidavit she says the following:9.When [Ms Holland] finalised her family law property settlement in or about 2012, she consulted our family accountant about how to utilise her funds. On his recommendation she paid it to the joint account I held with [Mr Ramirez] which was the mortgage offset account and from which account we paid all business and living costs. There was no loan agreement or documentation regarding the funds paid. To the best of my recollection, the plan was that we could use it to reduce our mortgage on the basis however that [Ms Holland] could call on the funds if required at a future date and we agreed with the proposal. As far as I recall [Ms Holland] gave to us a sum in the vicinity of $590,000.00 which included reimbursement of the legal fees we had paid from our business account.10.The mortgage on the home at [Suburb D] was not reduced by my daughters funds and these were fully dissipated within the offset account over the next ten years or so. The mortgage as at 30 June 2023 was $93,4677.72. It was slightly reduced from the balance at 31/12/2022 which was $949,040.56 Annexed […] are copies of the mortgage offset statement for the periods October to December 2022 and April to June 2023.…28.In respect of my daughter [Ms Holland], she and her three children have lived with me at [Suburb D] since about 2010 when she was separated from her then husband. She has continued to live with me to the current date together with her three children. Over the years [Ms Holland] has funded some renovations suitable for the living arrangements for her and the children. She has receipts indicating the extent of her contributions.…30.After the business closed in 2023 [Ms Holland] has helped fund some of the mortgage payments. I have borrowed more funds from my friend [Ms H] and I understand [Mr E] who is [Ms Holland’s partner] has assisted her with funds to give me for the mortgage instalments from time to time. [Mr Ramirez] has not been able to help and [Ms Schuster] has not been involved.…36.[Ms Holland] and [Mr E] came up with a plan to help out by [Mr E] via his company [B Pty Ltd] offering to acquire [Mr Ramirez’s] interest in the [Suburb D] property. I became aware discussions were conducted in 2023 with [Mr Ramirez] not involving me but I learned there was no agreement on the purchase price or property value. [Mr E] supplied two valuations for the property one from a valuer for the NAB, both of which are Annexed marked "Rl AND R2".37.[Mr Ramirez] commenced this family law action against me, seeking an urgent sale of the [Suburb D] property and a hearing date for the interim application was listed 18/3/24. In the meantime, the court recommended we attempt mediation which we did. The mediation on 21/3/24 was conducted over the entire day and included me, [Mr Ramirez] and [Ms Holland] via her legal representative. At the end of the day an agreement was reached and recorded in principle by the mediator to the effect that [Mr E] via his company [B Pty Ltd] would purchase [Mr Ramirez’s] interest in the [Suburb D] property for an agreed sum and would refinance the mortgage. [Mr Ramirez] was to be indemnified against any claim that [Ms Holland] may have on the [Suburb D] property, which would be my responsibility thereafter. Annexed marked "S" are the terms which we had initially agreed upon. We cannot finalise an agreement with [Ms Holland] and [Mr E] unless respectively [Ms Holland] and [B Pty Ltd] are joined to the proceedings.38.If we are allowed to finalise the terms of settlement between [Mr Ramirez], myself and [Ms Holland] and [B Pty Ltd], [Mr Ramirez] will receive a just and equitable distribution from the [Suburb D] property which would form part of his assets for a financial adjustment with [Ms Schuster] in any separate proceedings they might conduct.

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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