Ristani & Ristani
[2025] FedCFamC2F 569
•12 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ristani & Ristani [2025] FedCFamC2F 569
File number(s): BRC 1568 of 2024 Judgment of: JUDGE O'SHANNESSY Date of judgment: 12 May 2025 Catchwords: FAMILY LAW – Joinder of third parties – injunction or undertaking – sham transactions alleged – one party joined – undertaking sufficient. Legislation: Family Law Act 1975 (Cth) ss 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.01, r 3.04 & r 10.18
Cases cited: Benson & Drury [2020] FamCAFC 303
Bonnici & Bonnici (1991) FLC 92-272
Dickons & Dickons [2012] FamCAFC 154
Fields & Smith (2015) FLC 93-638
Gosper & Gosper (1987) FLC 91-818
Hoffman & Hoffman (2014) FLC 93-591
Hurst & Hurst (2018) FLC 93-851
Kessey & Kessey (1994) FLC 92-495
Lovine & Connor and Anor (2012) FLC 93-515
Rigby & Kingston (No 3) [2021] FamCA 146 (‘Rigby’)
Shamon & Shamon (No 12) [2024] FedCFamC1F 69
Wallis & Manning (2017) FLC 93-759
Division: Division 2 Family Law Number of paragraphs: 85 Date of hearing: 11 December 2024 Place: Melbourne Counsel for the Applicant: Mr Mellas Solicitor for the Applicant: Evans Brandon Family Lawyers Counsel for the First Respondent: Mr Looney KC Solicitor for the Respondent: Pullos Lawyers Counsel for the Second Respondent: Ms Tabbenor Solicitor for the Second Respondent: Barry Nilsson Lawyers ORDERS
BRC 1568 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RISTANI
Applicant
AND: MS RISTANI
First Respondent
MR B RISTANI
Second Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
12 MAY 2025
THE COURT ORDERS BY CONSENT THAT:
Return of Funds to Offset Account
1.That the sum of $420,000 held in the trust account of Pullos Lawyers, be paid within two (2) business days into the following joint offset account:
Name: Mr Ristani & Ms Ristani
Bank: C Bank
BSB No.: …01
Account No: …28
2.Following the payment in the preceding Order, the Applicant Husband and Respondent Wife shall make no further withdrawal from the parties’ offset account ending in …28, unless with the prior written consent of the other party or pursuant to an Order of the Court.
Definitions
3.For the purpose of these Orders:
3.1. Husband’s “music collection” means the following items situated at D Street, Suburb E, Queensland:
(a)All discs, vinyls, cassettes and cd’s.
(b)All band memorabilia.
(c)All magazines.
(d)All band merchandise.
(e)All collector’s editions and box sets including any limited-edition albums, special collections or box sets.
(f)All musical instruments.
3.2. The “husband’s entities and trusts” means any corporate entity and trust in which the husband has a legal or beneficial interest, and including the following:
(a)F Pty Ltd.
(b)G Pty Ltd.
(c)F Trust.
(d)H Trust.
3.3. The Husband’s “valuables” means the following:
(a)Valuables 1.
(b)Valuables 2.
(c)Valuables 3.
(d)Valuables 4.
(e)Valuables 5.
(f)Valuables 6.
(g)Valuables 7.
(h)Valuables 8.
(i)Valuables 9.
(j)Valuables 10
(k)Valuables 11.
(l)Valuables 12.
(m)Valuables 13.
(n)Valuables 14.
(o)Valuables 15.
(p)Valuables 16.
(q)Valuables 17.
(r)Valuables 18.
(s)Valuables 19.
(t)Valuables 20
(u)Valuables 21
(v)Valuables 22.
(w)Valuables 23
(x)Valuables 24
(y)Valuables 25
(z)Valuables 26
(aa)Valuables 27.
(bb)Valuables 28
(cc)Valuables 29
(dd)Valuables 30
(ee)Valuables 31
(ff)Valuables 32
(gg)Valuables 33
(hh)Valuables 34
3.4. The Wife’s “valuables and jewellery collection” means all valuables and jewellery in her possession or control.
Valuation of the Husband’s Music Collection
4.That J Company be appointed as Single Expert Witness to value the husband’s music collection, as defined in Order 3.1 above, and for that purpose:
4.1. The parties send a joint letter of instruction to the Single Expert Witness requesting that they prepare a report within 14 days.
4.2. If the form of wording of the expert’s instructions cannot be agreed, then each party must instruct the Single Expert Witness within a further 7 days, providing a copy of the letter of instructions to all parties in the proceedings.
4.3. The husband and wife shall share equally in the costs of the Single Expert Witness fees to prepare the report;
4.4. The husband and wife comply with all reasonable requests and produce any document requested by J Company within 7 days of such request being made, to the extent those documents are within the party’s power, possession or control.
4.5. The husband make available to J Company the complete music collection.
Valuation of the Husband’s Valuables Collection and the Wife’s Valuables and Jewellery Collection
5.J Company be appointed to value the Husband’s valuables collection and the Wife’s valuables and jewellery collection, as defined in Orders 3.3 and 3.4
herein, and for that purpose:
5.1. The parties send a joint letter of instruction to the Single Expert Witness requesting that they prepare a report within 14 days.
5.2. If the form of wording of the expert’s instructions cannot be agreed, then each party must instruct the Single Expert Witness within a further 7 days, providing a copy of the letter of instructions to all parties in the proceedings.
5.3. The husband and wife shall share equally in the costs of the Single Expert Witness fees to prepare the report;
5.4. The husband and wife comply with all reasonable requests and produce any document requested by J Company within 7 days of such request being made, to the extent those documents are within the party’s power, possession or control.
5.5. The husband make available to J Company the complete valuables collection.
Valuation of the Husband’s Entities and Trusts
6.Mr K of L Company be appointed as Single Expert Witness to prepare a valuation of the husband’s entities and trusts, as defined in Order 3.2 herein (‘the Business Valuation’), and for that purpose:
6.1. Single Expert Witness must be instructed in accordance with Rule 7.13 of the Rules, however:
(a)If the form of wording of the expert's instructions cannot be agreed within 14 days, then each party must instruct the Single Expert Witness within a further seven (7) days, providing a copy of the letter of instruction to all parties in the proceedings, but otherwise;
(b)Rule 7.03 of the Rules, applies, preventing either party from unilaterally communicating with the Single Expert Witness.
6.2. Within twenty-one (21) days of the date of these Orders, the husband is to execute an authority to be addressed to each of the accountant/s engaged to provide advice to or undertake accounting for any of the husbands entities and trusts, such authority to be provided to the Single Expert Witness to enable the valuer to liaise with the said accountant(s);
6.3. The husband and wife shall share equally in the costs of the Single Expert Witness fees to prepare the report;
6.4. The husband and wife must provide any document requested by the Single Expert Witness within seven (7) days of receiving such a request, to the extent those documents are within the party's power, possession, or control;
6.5. Within twenty-one (21) days of receiving the report of the Single Expert Witness, the husband file and serve upon each other party an Affidavit annexing that report (whether or not such date precedes or post-dates the next Court event).
AND THE COURT ORDERS THAT:
The six transaction Annexure A investigation
7.That, in addition to and at the same time as the Business Valuation, L Company be appointed to provide a report on the relevant payments made and the purposes of those payments, with the payments listed in Annexure A (‘the Annexure A Addition Report), and for that purpose:
7.1. The parties send a joint letter of instruction to the Single Expert Witness requesting that they prepare a report within 14 days.
7.2. If the form of wording of the expert’s instructions cannot be agreed, then each party must instruct the Single Expert Witness within a further 7 days, providing a copy of the letter of instructions to all parties in the proceedings.
7.3. The Husband must comply with all reasonable requests and produce any document requested by L Company within 7 days of such request being made, to the extent that those documents are within his power, possession or control.
7.4. The costs of the Single Expert Witness fees to prepare the Annexure A Additional Report shall be paid by the Wife in the first instance and any contribution to the cost by the Husband be reserved to Trial.
AND THE COURT ORDERS BY CONSENT THAT:
Disclosure
8.That within 24 hours of the making of these Orders the husband provide to the wife any documents in his power, possession or control not already disclosed in relation to all payments made pursuant to the Deeds entered into between Mr Ristani, M Pty Ltd as Trustee for the N Family Trust, G Pty Ltd and Dr O and Ms P (“the N Company entities”) dated November 2021 and August 2022 together with all correspondence between the parties to those Deeds, or their legal representatives, in relation to the enforcement of the obligations pursuant to those Deeds.
9.Within fourteen (14) days the husband provide disclosure to the wife of the following in his power, possession or control:
9.1. All correspondence and documents exchanged between the husband, the N Company entities, and any agent acting on behalf of the husband or the N Company entities, in relation to the purchase of the Q Company business.
9.2. All correspondence and documents, including all correspondence between the Husband and any professional on his behalf and the N Company entities or any professional on their behalf in relation to the payment to the Husband or the “husband’s entities and trusts” and/or the Reimbursement Amount.
9.3. All contracts of employment between the husband and Q Company or the N Company entities and all correspondence relating to the terms of the husband’s employment including documents related to any bonuses and the calculation or negotiation of bonus amounts.
9.4. Banking records including bank statements, mortgage statements, credit card statements, deposit / withdrawal records for all accounts in the husband’s name, or held for his benefit, whether solely or jointly with another person or held by a company or trust in which he has an interest or over which he has control and whether in Australia or in any other jurisdiction, for the period 14 February 2015 (being the date of separation per husband’s Initiating Application) to current date.
9.5. For all superannuation funds in which the husband is a member of, whether in Australia or in any other jurisdiction, the last available member statement and evidence of its current balance.
9.6. For any and all investments/shares in which the husband holds an interest in, whether in Australia or in any other jurisdiction, or under in which the husband has a legal or beneficial interest, the most recent holding statement and transaction listing showing all deposits and withdrawals for the period 14 February 2015 to current date.
9.7. For any and all corporate entities for in which the husband has a legal or beneficial interest, the following:
(a)Company constitution and any amending constitution thereto.
(b)Tax returns and financial statements for the last seven financial years.
(c)Business activity statements for the last twelve months.
(d)Details of all assets owned and liabilities owed.
(e)Shareholder agreements.
9.8. For any and all trusts in which the husband has a legal or beneficial interest, the following:
(a)Trust deeds and any amending deed thereto.
(b)Tax returns and financial statements for the last seven financial years.
(c)Business activity statements for the last twelve months.
(d)Loan account ledgers.
(e)Unpaid beneficiary entitlement ledgers.
(f)Details of all trust assets and liabilities.
(g)Details of any family trust election.
9.9. In relation to which the husband has become entitled or has interest in, any inheritance since 14 February 2015 (Husband’s contended date of separation), including but not limited to (including in relation to the estate of his late Father) all documents that are relevant to any estate in which the Husband is entitled to an interest or has received a distribution, including but not limited to:
(a)Copy of the Last Will and Testament.
(b)Any and all Deed of Indemnity and Release.
(c)All schedules of distributions.
(d)All correspondence between the Husband and the executor, and/or any other person acting on behalf of the estate.
AND THE COURT ORDERS THAT:
10.The adult child of the Husband and Wife, Mr B Ristani, be joined as a party to these proceedings.
11.Within seven (7) days of these orders, Mr B Ristani file and serve a Notice of Address for Service.
12.The parties do all acts and things to give effect to the orders of 11 June 2024 as to the valuation of the Country R properties.
13.In the event that the Second Respondent, Mr B Ristani, seeks any order to costs in regard to these proceedings, such application be made within 14 days and be by way of short written submission sent to Chambers of Judge O’Shannessy by email and if made, any response be within a further 14 days in short written submission emailed to my Chambers.
14.All other extant interim applications are dismissed.
‘Annexure A’
| Date | Amount | Description | Payer |
| 11.07.2016 | $250,000 | “Withdrawal” | NAB Account #...40 |
| 07.04.2017 | $90,000 | “Term Deposit” | NAB iSaver Account #...85 |
| 05.12.2017 | $348,040.85 | “Term Deposit” | NAB Term Deposit #...89 |
| 28.11.2021 | $50,000 | “[…]” offset | S Bank Offset Account #...28 |
| 28.11.2021 | $500,000 | “[…]” offset | S Bank Offset Account #...28 |
| 30.11.2021 | $20,000 | “[…]transfer” | S Bank Offset Account #...28 |
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
Introduction
On this interim hearing, I must determine whether or not to order the joinder of a third party to the section 79[1] proceedings between the Husband and Wife as the Husband seeks and the Wife and the parties proposed to be joined oppose. I must also determine the cost application that is brought by the adult son of the existing parties, Mr B Ristani.
[1] Of the Family Law Act 1975 (Cth) (‘the Act’).
Background
The Applicant Husband, Mr Ristani (‘the Husband’) and the Respondent Wife, Ms Ristani (‘the Wife’), commenced cohabitation in 1994. They married in 1995 and separated on a final basis in 2024. This is a long, if ultimately unhappy, marriage. Both parties agitate competing applications for property division orders pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’).
The Husband seeks orders to join the parties’ adult child, Mr B Ristani (‘Mr B Ristani’) and the Wife’s parents, Ms U and Mr V (collectively referred to as ‘the Grandparents’) to the proceedings.
The Husband filed an Application in a Case (‘AIC’) on 10 September 2024 on the eve of a directions hearing seeking the Wife replace $560,000 he alleged she had unilaterally withdrawn from the finance facilities then available to him. It was not in dispute that she had done so. On 27 September 2024, the Husband filed another AIC seeking to join the Grandparents to the proceedings and seeking that they be restrained from disposing of certain properties (‘the Country R Properties’) alleged to be very recently transferred by the Wife to them.
The Wife filed a Response to an AIC (‘RAIC’) on 15 November 2025 where she sought that both existing AIC be dismissed and sought a suit of orders, including for valuation of the Husband’s business, his music collection and his valuables collection and orders for a single expert witness to investigate six transfers of substantial funds by the Husband that were alleged to have occurred between 2016 and 2021 (‘the six transactions’).
The Husband filed an amended AIC on 20 November 2024 that then sought to join Mr B Ristani, as well as the Grandparents and to restrain him from disposing of dealing with the Country R Properties.
Much settled
By the sensible intervention of experienced counsel and senior counsel representing the Husband, the Wife and Mr B Ristani, during the morning of the hearing, a plethora of disputes were settled on an interim basis and the bulk of issues were resolved by agreement. By the process of tendering minutes of orders sought (H1) and the Wife’s counsel tendering a marked-up version of different orders sought (W1) it became clear that the Husband and Wife sought a suite of orders by consent. I will make those orders.
Remaining disputes
The remaining disputes then came down to only the following remaining issues:
·Whether the Grandparents should be joined to the proceedings; and
·Whether Mr B Ristani should be joined to the proceedings; and
·Whether Mr B Ristani’s second undertaking was sufficient to preserve the Country R properties for future consideration; and
·Whether the single expert witness (‘SEW’) appointed by the 11 June 2024 orders to value the Country R Properties should be retained or whether the Husband should choose a different SEW from those now nominated by the Wife; and
·Whether the agreed instructions to a SEW to value the Husband’s businesses should be made at this time or later, closer to final hearing, and whether, at the Wife’s expense, those instructions should extend to consideration of the questioned six transactions; and
·Whether the Husband should pay Mr B Ristani’s costs[2] given his undertaking filed on 6 December 2024 (‘Mr B Ristani’s second undertaking’).
[2] The Husband and Wife sensibly agreed that each of their costs be reserved.
I was told and accept that the matters in W1 that were not “highlighted” were agreed to. I accept that.
Decision Reserved
I heard the matter on 11 December 2024, and I reserved my decision and reasons. I apologise to the parties and their lawyers for that delay in delivering my decision and for the inconvenience and expense that delay has caused them.
Brief history of proceedings & the Country R Properties
The Husband and Wife each contend for different dates of separation. The Husband contends that the parties separated on or about 14 February 2015, whereas the Wife contends that the parties separated on or about 7 February 2023. The Husband commenced proceedings on 8 February 2024 seeking property division orders including where he sought to have the Country R Properties included in the pool of assets but, he asserts they should be retained by the Wife in the final property orders. The Wife now alleges that back in 2005, some ten years after marriage and about nineteen years before the issue of the property division proceedings, the Grandparents had transferred, or “given”, four properties in City T, Country R (‘the Country R properties’), to her as an “advance inheritance”. In the Wife’s response in these proceedings filed on 5 April 2024, she sought that the Country R properties be excluded from the asset pool and she says the Husband has made “no contribution”, in the section 79 sense, to those properties.[3]
[3] See [38] of the Wife’s affidavit filed 5 April 2024.
Wife asserts she owns the Country R Properties
Some two months after the commencement of these proceedings, the Wife stated in her affidavit of 5 April 2024,[4] that is some two months after the commencement of the case:
38.The properties in [Country R] were gifted to me by my parents at various times around 2005. My father is presently 98 years of age, my mother 85, and these properties represent my inheritance in advance of my parents’ demise. I am uncertain of the values of the properties at the present time. Based on the municipal values of the properties, their combined value would be around $250,000. [The Husband] has made no contribution to the properties whatsoever, and I will be seeking to have the properties excluded from the pool.
39.The rental on the properties of [Country R] goes direct to my parents and has always done so, noting that only two of the four properties are rentals. [The Husband] is well aware of this.
[4] Exhibited as W2.
Country R Properties need to be valued
The issue of how the Country R Properties would be taken into account at final hearing is an issue that should be resolved by agreement or at final hearing and I make no finding about that in this interim decision. However, the law is very clear that all of the property of either of the parties must be disclosed and identified and there is no category of exempt property when it comes to section 79 proceedings. Further, the applicable law does not presume such things as equality, or any other share, of section 79(4)(a) contribution by the parties. A party does not have to directly, or financially, contribute (in the section 79 sense) to any particular item of property. Such matters as the usually considered as “direct” contribution by a party who inherited, or received a gift of, property will be weighed in accordance with all relevant “contributions” and the provisions of section 79 of the Act in the context of all of the particular circumstances of the case.[5]
[5] The usual suspects of authorities frequently referred to for those principles include: Bonnici & Bonnici (1991) FLC 92-272, Gosper & Gosper (1987) FLC 91-818, Kessey & Kessey (1994) FLC 92-495, Dickons & Dickons [2012] FamCAFC 154 at [24], Lovine & Connor and Anor (2012) FLC 93-515 at [40] to [42], Hoffman & Hoffman (2014) FLC 93-591 at [52], Fields & Smith (2015) FLC 93-638 at [43], Wallis & Manning (2017) FLC 93-759 at [105], Hurst & Hurst (2018) FLC 93-851 and Benson & Drury [2020] FamCAFC 303 at [35].
As at the time of the hearing, the parties had not been able to agree on the value of the Country R Properties or by whom they should be valued. At the interim hearing before me it was not disputed that however those properties were to be taken into account, if at all, the Court and the parties needed to be reliably informed as to the value of the Country R Properties. The procedural rules of this Court provide for, in the first instance, a jointly retained single expert witness (‘SEW’) to report as to the value of items of property where there is no agreement.
Soon after: Wife transfers Country R Properties to her parents
It is alleged by the Husband that the Wife unilaterally transferred her right and title of the properties back to her parents within a month of filing the affidavit of 5 April 2024,[6] and without any notice to him, and without him having any knowledge of that proximate to the transfer. Those matters are not disputed.
[6] Counsel for the Husband states this on TP 13 L31-34 and the date of transfer does not appear disputed.
11 June 2024 orders for valuation of Country R properties
About a month after the transfer, during a directions or procedural hearing on 11 June 2024, orders were made by consent before a Senior Judicial Registrar of this Court, where it is the Husband’s case (and that does not appear to be disputed) that he was still unaware of the transfer of the Country R Properties from the Wife’s name to her parents, an order was made for valuation of the Country R Properties by the usual process of identifying and appointing a SEW.
The June orders (which were consented to) provided for valuations of the Country R properties with the Wife to select one of the three valuers put forward by the Husband with the payment to be shared equally between the parties as follows:
6.That within seven (7) days, the Wife shall select one of the following valuers who shall be jointly instructed and paid equally to conduct a market valuation of the four (4) real properties in [Country R] and whilst the valuer is not Australian, he or she shall be requested to provide an opinion which aligns with the duties of single experts owed to this Court:-
6.1.[Mr W] of […] (mobile +[…]; […] @[…]);
6.2.[Mr X] of […] (mobile + […]; […]@[…]); or https:// […]
6.3.[Ms Y] of […] (mobile + […]; […] @ […]).
7.That within fourteen (14) days of receipt of the valuations from the [Country R] valuer, the parties shall do all acts and things as are necessary to file an Affidavit of each single expert annexing their valuation report/s.
Save for the issue of the Wife’s actual consent and knowledge of them, those orders and the process of how they came about is entirely in accordance with the rules of court for such things and are very common in section 79 proceedings, and the contrary is not contended.
That was not … “my consent”
But these orders became an issue within these proceedings as the Wife claims that, although represented by solicitors who apparently consented on her behalf, she did not actually consent to these orders being made and that her parents are upset of the orders made regarding valuations.
But it is not disputed that at the time of the orders the Husband had still not been informed of the transfer of the Country R Properties out of the Wife’s name some months earlier.
Lest there be any doubt, it is the settled law of the land that all parties to section 79 proceedings bear a duty of full and frank financial disclosure of all relevant financial information and documents in a timely manner.
Wife’s delayed disclosure of transfer of Country R Properties to her parents
At the time of the hearing before Judicial Registrar Turnbull on 11 September 2024, the orders for valuations had not been complied with. During that hearing, it was submitted by the Wife’s counsel that.[7]
MS CARTER: …The properties were put into her name by her parent in [Country R]. And on 4 May 2024, the properties were transferred back to the parents. This was on the instruction of the parents. They did not want their properties in [Country R] to form part of this dispute between the parties…
[7] Transcript of the hearing of 11 September 2024 was annexed to the Husband’s affidavit of 5 December 2024 as Annexure ‘A’
I am told by counsel, and it was not disputed, that this is the first disclosure of that transfer. Further orders made at the hearing on 11 September 2024 were that the parties’ son and the Wife’s parents be put on notice of these proceedings. At the time of this hearing, the orders for valuation had not yet been complied with. At the 11 September 2024 hearing, the interim controversies, as they then were, were fixed for hearing before me on 11 December 2024, the day I heard the matter.
The Husband had already filed an AIC seeking the return of the $560,000 that the Wife had recently dealt with on 10 September 2024. I infer that the news of the transfer of the Country R Properties to the Grandparents prompted the next AIC to be filed by the Husband where he sought to both restrain and join them.
Country R Properties transferred to the parties’ son Mr B Ristani
In the meantime, on 19 November 2024, that is about five months after the orders for valuation and about two months after the delayed disclosure of the Country R properties being transferred by the Wife to her parents, and while the Husband’s second AIC was pending, the Husband’s lawyers were informed by the Wife’s parents that the Country R Properties had now been transferred to the parties’ adult child, Mr B Ristani. I am told through counsel that Mr B Ristani has now filed an undertaking to this court about not disposing of or dealing with any assets in his name until final orders.
There is a significant discrepancy between the parties as to the value of these properties. The Wife asserts about AUD $250,000 and the Husband asserts up to about AUD $1.7 million. Those estimates are relevant to the identification and an issue in dispute but neither party is an expert qualified to give such an opinion. On this interim hearing, I make not finding as to the value of those properties. However, it is clear they have value and it is clear that it is in the interests of justice, in the sense of an orderly hearing of the competing section 79 property alteration applications, that such value be reliably known by the Court and the parties.
The Husband does not seek that the Wife or any other potential party sell transfer or deal with the Country R Properties, but seeks that the Wife’s interest in them be taken account of, as property of the Wife, in the section 79 property alteration dispute.
Proceedings on 11 December 2024
As stated above, the matter was listed before me for an interim defended hearing by Judicial Registrar Turnbull. I was notified of this listing through communication with my Chambers. The matter is allocated to the Brisbane registry and was conducted via Microsoft Teams. However, counsel for the Wife and Husband appeared in person, with counsel for the proposed third party (Mr B Ristani) appearing via Microsoft Teams.
I was assisted, through experienced practitioners, with the exact orders sought by the parties that were drafted and handed to the Court. Both the Husband and the Wife’s orders sought were tendered as an exhibit in these proceedings.
The Husband’s orders sought were as follows.[8]
[8] Exhibit ‘H1’.
Joinder of Third Parties and Relief Against Third Parties and Wife
1.That the Wife’s parents, [Mr V] and [Ms U], and the adult son of the Husband and Wife, [Mr B Ristani], be joined as parties.
2.That the Wife’s parents and the adult son of the Husband and Wife referred to in paragraph 1 hereof, are each restrained, whether by themselves, their servants or agents or any attorneys from conducting any dealings with the real properties known as:-
[four named properties in [City T Country R], the ‘ [Country R] Properties’]
purportedly transferred to the Wife’s parents on or about 4th May, 2024 and purportedly transferred by the Wife’s parents to the adult son of the Husband and Wife on or about 18th November, 2024, unless such dealing is for the purposes of transferring the properties back into the name of the Wife.
(the Husband and Wife had sought other orders now agreed or not pursued on 11 December 2024)
…
In response to the orders sought by the Husband in ‘H1’, ‘W1’ set out the orders sought by the Wife as well as those orders as agreed. The amended response to the Husbands orders were as follows.[9]
[9] Exhibit ‘W1’.
Procedural
1.The Orders 1 to 5 and 8 of the Applicant’s Amended Application in a Proceeding be dismissed, and the Applications in a Proceeding filed 10 and 27 September 2024, and 25 November 2024 be dismissed.
In the Alternative
2.In the alternative to Order 1, that in relation to the Orders sought in the amended Application in a Proceeding filed herein on 20 November 2024, the Orders sought at paragraphs 1, 3, 4 and 6-8 be dismissed, Order 2 as far as it relates to [the Grandparents]… and the Applications in a Proceeding filed 10 and 27 September 2024[10], and 25 November 2024 be dismissed.
[10] Sealed on 30 November 2024.
3.That in relation to the Orders sought in the Response to an Application in a Proceeding herein on 15 November 2024, the Orders sought at 3-7, 11-17 and 19 be dismissed.
4.That otherwise the outstanding interim relief sought by the parties be adjourned to a listing before Judicial Registrar Turnbull for the making of any necessary Orders and Directions on a date to be fixed not before 6 February 2024.
(other orders consented to are not included here)
…
Valuation of the Husband’s Entities and Trusts
13.[Mr K] of [L Company] be appointed as Single Expert Witness to prepare a valuation of the husband’s entities and trusts, as defined in Order 10.2 herein, and for that purpose:
13.1.Single Expert Witness must be instructed in accordance with Rule 7.13 of the Rules, however:
(a)If the form of wording of the expert's instructions cannot be agreed within 14 days[11], then each party must instruct the Single Expert Witness within a further seven (7) days, providing a copy of the letter of instruction to all parties in the proceedings, but otherwise;
(the issue of 14 days or later on was the only dispute as to this SEW)
…
[11] The Husband did not oppose the SEW or the terms of that appointment rather he pressed that it should be deferred until closer to final hearing to save the unnecessary expense of possible revaluation.
Accountant
14.That [L Company] be appointed to provide a report on the relevant payments made and the purposes of those payments, with the payments listed in Annexure A[12], and for that purpose:
14.1.The parties send a joint letter of instruction to the Single Expert Witness requesting that they prepare a report within 7 days.
14.2.If the form of wording of the expert’s instructions cannot be agreed, then each party must instruct the Single Expert Witness within a further 7 days, providing a copy of the letter of instructions to all parties in the proceedings.
14.3.The Husband must comply with all reasonable requests and produce any document requested by [L Company] within 7 days of such request being made, to the extent that those documents are within his power, possession or control.
14.4.The costs of the Single Expert Witness fees to prepare the report shall be paid by the Wife in the instance and any contribution to the cost by the Husband be reserved to Trial.
…
[12] Aka ‘the six transactions’.
Mr B Ristani sought the following orders.[13]
[13] Part E of the Outline of Case filed 11 December 2024.
1. That upon the Undertaking of [Mr B Ristani] being filed and served upon each of the parties contemporaneously with this Response to Application in a Proceeding:
a.The Application in a Proceeding filed by the Applicant on 20 November 2024 so far as it seeks relief against:
i. [Mr B Ristani];
ii. & iii [the Grandparents]
is dismissed.
2.The Applicant pay the costs of and incidental to [Mr B Ristani] on an indemnity basis.
Applicable Rules and legal principles on joinder
All parties acknowledge rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’). The Husband seeks that I join Mr B Ristani and the Grandparents to the proceedings, but he does so after the first court date has passed and requires leave of the court. Rules 3.01 and 3.03(4) of the Rules provide:
3.01 Necessary parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
…
3.03 Adding and Removing a Party
…
(4)A party may only add another party after the first court date with the leave of the court.
…
[Notes omitted, emphasis added]
It is also necessary I recite Rule 10.18.
10.18 Undertakings
(1)Unless the court otherwise orders, an undertaking to the court has the same force and effect as an order of the court.
(2)An undertaking that is required or permitted to be given by a person under these Rules may be given orally or in writing.
(3) An undertaking given by a person in writing must be:
(a) signed by the person or the person's legal representative; and
(b) filed in the filing registry.
Hence the applications turn on whether the rights of Mr B Ristani’s and/or the Grandparents’ rights may be directly affected and if so whether their participation as a party in the proceedings between the Husband and Wife is necessary for the court to determine all issues in dispute. And the Husband, as applicant, has the burden of satisfying me that is so.
THE HUSBAND’S CASE
Joinder application
Extracts from transcript include the following:
HIS HONOUR: Why do you need to join the parents and/or the son?
MR MELLAS: I will say a few things about that, your Honour, and then I will differentiate between the parents and the son and why we’re asking for everyone to be joined. The first point, your Honour, is this: my client does foreshadow in his outline – yes, it’s not currently an order that he’s seeking, but he says:
I do not currently know whether I need a section 106B order, given that there is other property in Australia which might satisfy my entitlement, but I understand this depends upon the valuation to be provided by the single expert.
Now, we don’t know what the value is, and until we get the valuation from the single expert, if they’re worth more than the 1.7 million, it may well be that any claim my client has may not be able to be satisfied.
HIS HONOUR: And your case is at this point in time, the valuation, the single expert valuation that should have been undertaken - - -
MR MELLAS: Yes.
HIS HONOUR: - - - has been stymied by the wife.
MR MELLAS: Correct. Correct. We’ve not been able to get the valuation.
…
MR MELLAS: …neither the wife nor [Mr B Ristani] or anybody says the basis of why these transfers really occurred…
…
MR MELLAS: In terms of the parents, it’s because they seemed – well, according to the wife, they seemed to have exercised some control over the wife and some control over the son, in the middle of these proceedings…
HIS HONOUR: If the facts of your case are made out, it is unilateralism, high-handed, indulgent behaviour. If her facts are made out, it’s a more human reaction to a complex situation.
…
MR MELLAS: It’s the second phase of it, where it’s transferred to the parents and then, all of a sudden, November – not even a month ago – in fact, about three weeks ago, in the midst of these court proceedings – in the midst of all of - - -
HIS HONOUR: Yes. Two very cheeky things have happened.
MR MELLAS: It’s more than cheeky, your Honour.
HIS HONOUR: Well, I’m trying to put it neutrally. All right.
MR MELLAS: More than cheeky. No. This is not – they’re not cheeky events, your Honour.
…
HIS HONOUR: So it’s a moving feast, but why does that mean it’s necessary to join anyone? Because your case is whatever we end up proving it’s worth, okay, your case is it’s going to be on her side of the ledger.
MR MELLAS: Well, it will be. Yes.
HIS HONOUR: Yes. So if it’s going to be on her side of the ledger, why do I need to join the parents and/or the son when, on your case, it’s going to stay on her side of the ledger? And doing the figures, I can’t see how I am going to need to claw it back and sell it.
MR MELLAS: The court ultimately, though, will have to make a determination - - -
…
MR MELLAS: As to ownership of that property.
HIS HONOUR: Yes.
MR MELLAS: It won’t necessarily affect the rights of third parties, because all it would be is possibly a declaration, or a finding, that those [Country R] properties form part of the legal and equitable interests of the wife, and should be taken into account - - -
…
I sought further clarity on the question of whether the Wife’s parents and the parties’ adult child should be joined to the proceedings.
HIS HONOUR: But why do I need to join them?
MR MELLAS: To ensure it doesn’t happen again,[14] and to ensure we get to the property to the value it, at first instance. They’re not here to object. They’re not here to object, your Honour. That is a factor. One factor. And I would say that they are necessary parties, as I say is the son.
…
HIS HONOUR: Why is the son necessary at this point?
MR MELLAS: Well – and again, I will go back to what my client has said. A Section 106B application may not be necessary, but that depends on the - - -
HIS HONOUR: It might be.
MR MELLAS: In a month’s time, if we do get the valuations, it may well be made at that stage.
…
[14] References to the properties being transferred in and out of the Wife’s parents’ names.
When questioned, counsel alleged the transfer of the properties between the Wife’s family bluntly as follows.
HIS HONOUR: Yes. And are you alleging, or is it too early to ask, that this is a sham?
MR MELLAS: Absolutely, your Honour.
HIS HONOUR: A series of sham transactions?
MR MELLAS: Absolutely. Yes, absolutely, orchestrated by the wife. Or her parents, as the wife says. Don’t know who. Maybe it’s [Mr B Ristani]. Don’t know.
It was also contended that joinder was necessary to obtain proper disclosure and valuation.
Country R properties noy yet valued
As recited above, orders of June 2024 provided for the Country R properties to be valued, with the Wife to select the valuer. At the time of the interim hearing before me, this had not yet been complied with.
Appointment of Australian accountant as a single expert
The Wife alleges that a number of transfers of a lot of money from the Husband’s accounts has not been properly accounted for and she seeks an expert valuation by a single expert (for the purpose of these reasons, the expert valuer will be known as ‘[Mr W]’) to assist her get to the bottom of that. The retention of Mr W for that purpose is opposed by the Husband in the limited sense of asserting that should come later, not at this time. It is the case of the Husband that the controversial transactions, that total to approximately $560,000, are easily traceable and there is no need for an expert to be appointed.
HIS HONOUR: - - - why shouldn’t the wife have the opportunity to have an expert look at that - -
MR MELLAS: Yes.
HIS HONOUR: - - - when, at first instance, it’s at her own expense?
MR MELLAS: Yes.
HIS HONOUR: As opposed to the court being bombarded with - - -
MR MELLAS: No, I understand that.
HIS HONOUR: - - - with amateur accounting, and “in my opinion”, you know, that was a reasonable expense…and so on.
MR MELLAS: I tend to understand that argument when there are, sort, of 100 transactions, and somebody has got to analyse them. Not when there are five or six that can be easily traceable. That’s all I will say about that. I am not going to take that one any further, your Honour.
HIS HONOUR: All right. Thank you. Yes. Thank you.
THE WIFE’S CASE
Joinder application
The Wife opposes the application of the Husband to join her parents and their adult child. During the hearing, senior counsel for the Wife addressed me as to why.
MR LOONEY: There’s no basis for joinder now; it’s premature. The properties – even on your Honour’s calculations, the [Country R] properties would need to be worth more than $6 million before they would have to be sold in order to do a 50 per cent allocation to the husband. And, of course, those properties, if they are worth that sort of money, would then take the percentage well beyond a fifty-fifty in favour of the wife. The likelihood that there will be any order required different to the order that the husband seeks that the properties remain with the wife, if that’s the ultimate finding that they are hers in equity, or it’s a premature distribution, then it just simply doesn’t arise on the material. Not only do we not have a practical reason for joinder, we also don’t have a pleaded case. The authorities are absolutely clear about this. You don’t do joinder because you want to do a fishing exercise for discovery; you want to try and work out what has occurred. That’s simply not the basis for joinder. It’s perfectly conventional that this court would look at the ownership of the property, both legal and equitable. There’s no dispute that there was legal ownership at the time the proceedings were commenced, and had been for many, many years. There’s an explanation that has been provided by the wife that makes it a perfectly neutral explanation for events that have occurred, particularly in circumstances where the parents are 99 and mid-80s. There’s suggestion that there’s double outrage, in terms of the parents then transferring to the son who has now got advice. And your Honour has seen the position that the husband, with respect, sensibly has taken to advance the position. There’s simply no need for joinder at present, and they may never need to be joinder. They simply shouldn’t be joined. It’s not my client’s case to resist the joinder particularly, I will leave that to my learned friend, in relation to [Mr B Ristani]. But in terms of the parents, the only evidence we have about the parents is that they were – that they are extremely elderly, that they have mobility issues. And that they have language difficulties; that they speak [Country R Language], and they communicate in [Country R Language]. Very limited English. In those circumstances, in the absence of a clear basis for joinder, with them not being present, your Honour just simply wouldn’t exercise a discretion to join them. They don’t meet the rules for joinder, of being necessary parties to resolve these proceedings.
Senior counsel further submitted.
MR LOONEY: Whoever owns property, as an issue between the parties to the marriage, doesn’t justify the joinder of any third party unless there are orders sought against those third parties in order to deal with the property. It’s a regular occurrence in this court that questions of ownership between inter partes can be resolved not by any declaration, but merely by a finding leading to the ultimate decision as to what property adjustments are to be made.
…
MR LOONEY: But because there isn’t any need to make an order against the property, nobody needs to be joined. Because wherever the property is, even if it had been the proverbial shares that have been – had gone up in smoke, the same issues would arise. It just happens to be real property.
Senior counsel also helpfully referred me to the matter of Rigby & Kingston (No 3) [2021] FamCA 146 (‘Rigby’) where Carew J referred to legislation relied upon by senior counsel:
41In my reasons for judgment dated 26 May 2020 I quoted the following authorities from [15]:
15. In Wayne & Dillon, Warnick J (sitting in the appellate division) said:
17. … any person joined to a proceeding ought, at that point, be able to take advice on whether the facts pleaded (if established) would lead to a successful claim. Joinder to litigation is a serious step with often significant financial consequences.
16.In B Pty Ltd v Ors & K and Anor, the Full Court (Faulk DCJ, Coleman and Warnick JJ) allowed an appeal by third parties concerned with relief sought under Part VIIIAA of the Act and said:
52. We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.
…
32. The very point of pleadings is to enlighten a party as to the case they will meet at trial. As the High Court said in Dare v Pulham (Murphy, Wilson, Brennan, Deane and Dawson JJs writing jointly):
Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it …; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial …; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings…
(citations omitted)
42 I further noted in my reasons for judgment dated 26 May 2020 at [32] – [33]:
32.Consistent with the requirements of ss 90AE and/or 90AF the husband must identify:
a) What it is that the husband seeks of each third party; or
b)What rights, liabilities or property interests of each third party the husband seeks to alter; and
c) Why is the order or injunction reasonably necessary; or
d)In what way is the order or injunction sought by the husband against each third party reasonably appropriate and adapted to effect a division of property between the parties to the marriage; and
e)How is the order or injunction proposed by the husband just and equitable or proper or just and convenient.
33. It is only when those matters are apparent the third party respondents will be able to provide evidence of such matters as are required by ss 90AE and/or 90AF, for example:
a)The taxation effect (if any) of the order or injunction on each third party;
b)The third party’s administrative costs in relation to the order or injunction;
c)The economic, legal or other capacity of each third party to comply with the order or injunction; and
d) Any other matter raised.
(citations omitted)
43In the absence of any pleading identifying how the rights of the Unit Trusts (in which neither the wife nor entities controlled by her hold units) may be directly affected, it is not apparent why they should remain as parties to the proceedings. There is, for instance, no assertion that the Unit Trusts are shams, and even in circumstances where trustees and beneficiaries have chosen to no longer be bound by the obligations of the trust relationship (not that this is pleaded by the husband) - “A trust once validly constituted does not change in nature because the trustee and some beneficiaries subsequently choose no longer to abide by the obligations of the trust relationship”.
I acknowledge the wisdom and authority of the authorities referred to. I did not apprehend any controversy in this case about the statements of law in the authorities referred to.
Country R valuations
The issue of why the Wife did not comply with the orders of June 2024 was a live issue at this hearing. The first issue that was raised is that the orders of 11 June 2024, which were made by consent (according to the orders) were not actually consented to by the Wife. Senior counsel pointed me to the Wife’s affidavit that set out the particulars of how the Wife did not consent to those orders.[15]
[15] The Wife’s affidavit of 6 December 2024 at [6-14].
Furthermore, another live issue of those orders was why the Wife did not comply with the orders of having the Country R properties valued. The Wife sets out her reasoning of why the order of valuation was not complied with.
Appointment of Valuer for the 4 real properties in [Country R]
16.As I depose to at paragraph 31 of my Affidavit filed 15 November 2024, [Mr Ristani] nominated [Mr X] ("[Mr X]") as the valuer from his panel to value the [Country R] properties.
17.As detailed in paragraphs 6 to 15 of my Affidavit herein, I did not consent to the panel of valuers proposed by [Mr Ristani] being included in the Orders of 11 June 2024. I do not accept that [Mr X] is appropriately qualified to undertake the valuations as a jointly appointed Court expert in these proceedings.
18.The [Country R] properties are all in the city of [City T] in [Country R]. The [City T] Court publishes a National Gazette (National Gazette listing of Court experts) which includes a list of court accredited experts, including valuers, that the Court in [City T] regularly refers to. I have read that list. [Mr X] is not listed as a valuer in the National Gazette published by the [City T] Court.
19.I have identified a panel of three property valuers who do appear on the National Gazette listing of Court experts. I seek that Order 6 of the Orders made on 11 June 2024 be set aside and request that [Mr Ristani] choose one from this panel of [Country R] Court approved valuers to undertake the valuation of the [Country R] properties.
(a)(A named, apparently [Country R], person).
(b)(A named, apparently [Country R], person).
(c)(A named, apparently [Country R], person).
(emphasis added)
I raised with senior counsel my concern with the Wife’s case on this point:
HIS HONOUR: My view, subject to persuasion, is that the choice of the expert – that ship has sailed. And I have either got – and I know, and it’s clear, that – well, I’m assuming he made the concession before that knowledge was being passed around, that he would make sure [Mr X] got to value the property. So that ship has sailed. And the challenge to the appointment comes not quite six months after that process was set in place.
MR LOONEY: I understand, your Honour. I can’t put it higher than I have.
Senior Counsel also put to the Court that the choosing of such valuer should be left to the Wife, particularly when the valuation is likely to be a material issue on her side of the ledger in this property dispute.
I cannot make a finding on an interim hearing that there was some sort of perverse non-representation of the Wife in the obtaining of the valuation order. Assuming she did not consent, that order was entirely the sort of order likely and at least not infrequently made. That the Husband proposed three valuers does not mean any of them are his valuers.
Appointment of single expert accountant to report on payments and transfers
The Wife seeks and the Husband opposes the joint or court ordered appointment of L Company to report on payments or transfers made by the Husband of approximately $560,000 during the marriage, with the Wife to pay for the report in the first instance.
What the Wife does not concede
Although she did so when represented by her previous solicitors, the ones who she (in substance) alleges acted without her instructions, and I infer, perhaps perversely, in the process of the 11 June 2024 orders relating to the single expert valuation of the Country R Properties, the Wife at this time, or in the hearing before me, did not concede or seek orders based on her assertion in the earlier affidavit that:
38.The properties in [Country R] were gifted to me by my parents at various times around 2005. My father is presently 98 years of age, my mother 85, and these properties represent my inheritance in advance of my parents’ demise…
Since so asserting, the Wife has:
·transferred the Country R properties to her parents, although hitherto registered or recorded in her name since 1985, that is for most of the marriage; and
·failed to alert the Husband or the Court to the transfer in the lead up to or at the 11 June 2024 directions hearing; and
·failed to alert the Husband or the Court to the transfer of the Country R properties until oral address at the 11 September 2024 directions hearing; and
·maybe, or perhaps, agreed or acquiesced, or on the evidence at least failed to protest, in the transfer of the Country R properties from her parents to Mr B Ristani, the parties’ adult child; and
·opposed the joining of her parents and/or Mr B Ristani to the proceedings.
MR B RISTANI’S CASE
Counsel for the parties’ adult child, Mr B Ristani, raised her concerns of the joinder of her client:
MS TABBERNOR: …Your Honour, it appears from the submissions made this afternoon that effectively what the husband is saying is, “At some point in the future when I know the value of these properties, I may or may not wish to join the son, because I may or may not need to do something with these properties if I can’t realise – if the wife can’t realise her entitlement through the Australian assets”. I endorse and adopt the submissions of my learned friend for the wife, in respect of the mathematics on the balance sheet, based on the documents that I have seen….[16]
…
MS TABBERNOR: The court has historically been cautious about the joinder of third parties, and the reasons for that are obvious and clear. Joinder of third parties increase the cost of litigation, they expend the time of litigation. And, in a case such as this, my client is a student, […], who both parties depose to providing for financially. So certainly, there is somewhat of a chicken and egg situation, where his legal fees are being met by borrowings from his mother and, certainly, that may have an effect of dissipating the pool.
…
MS TABBERNOR: But there is no actual cause of action against my client personally. There’s no cause of action for in personam injunctions. There’s no cause of action in that personal sense. The submissions were made – and so on that basis, my client says that his joinder is not necessary within the meaning of the law – of the rules, and not necessary in a legal sense in respect of the determination of the issues in dispute of the parties.
…
MS TABBERNOR: But at the moment, in terms of what the husband seeks, in terms of the husband being able to receive his entitlement and what he says he needs from this court, my client does not need to be involved.
…
MS TABBERNOR: And he says to the court, “I am not necessary, and I do not want to be involved in these proceedings”. Not only that, he comes to the court saying that the only reason that he could potentially ever be involved is in respect of interim issues around valuations, and also in respect of injunctions to preserve the subject matter of the dispute. Now, my client offered verbally or undertook or suggested to the court that he would make sufficient undertakings in late November. On 6 December, he filed an undertaking… That he will cooperate with the valuation property process, and secondly, that he will agree not to deal, transfer or otherwise dispose of these properties until final hearing.
[16] To the effect that on the parties’ opinions of the undisputed assets, at a 50/50 division, the need to claw back and deal with the Country R Properties was highly unlikely.
It is common ground that at the time of this hearing, the Country R properties were in the name of the parties’ adult child, Mr B Ristani. It is also common ground, and accepted by all parties, that Mr B Ristani provided two undertakings to the parties regarding these properties. That is, to co-operate with valuation and not to deal with the properties.
Mr B Ristani’s first, 26 November 2024, undertaking
The first undertaking that was provided to the parties was via email on 26 November 2024 and was set out in paragraph 6 of the Son’s affidavit:
6.On 26 November 2024 I caused my solicitors, Barry Nilsson, to send correspondence to the parties' solicitors in response to the Applicant's Application in a Proceeding, setting out my position as follows:
…
…In relation to this matter and in response to the above-mentioned correspondence, we are instructed as follows:
1.Our client is the owner of the following properties:
(the same four properties in [City T, Country R] known as the [Country R] Properties)
("The [Country R] properties")
2.On an entirely without admission basis, our client is prepared to provide an undertaking in the usual form that:
•He will not deal with the [Country R] properties, including transferring the properties to any third party, pending written agreement with your clients or Order of the Federal Circuit and Family Court of Australia.
•That he will do all things and acts necessary to cause the valuation of the [Country R] properties in co-operation with your respective clients at your respective clients' costs.
3.In circumstances where our client's proposal ensures that the properties are secured and valued, there should be no need for our client and the maternal grandparents to be joined to the proceedings. On that basis, our client requires confirmation that Evans Brandon Family Lawyers' client will withdraw his Application to join our client and our client's maternal grandparents to these proceedings.
4. In the event that notwithstanding the concessions made herein, Evans Brandon Family Lawyers' client continues to press his Application to join our client and/or the maternal grandparents to these proceedings, we put you on notice that our client will be seeking his costs on an indemnity basis for the hearing scheduled for 11 December 2024. Further, our client will require Evans Brandon Family Lawyers' client to particularise the basis upon which he says that our client and/or our client's maternal grandparents need be joined to these proceedings and the relief sought against each of them respectively on a final basis. Without such particularisation our client cannot properly respond to Evans Brandon Family Lawyers’ client’s Application.
Mr B Ristani’s second, 6 December 2024, undertaking
The second undertaking that was filed in these proceedings on 6 December 2024 and is as follows:
On a without admission basis, until a further Order of this Honourable Court or with the prior written agreement of the Applicant and Respondent, I undertake in relation to the following properties:
(the same four named properties in [City T Country R])
(the [Country R] Properties)
To do the following:
•I will not, whether by myself, my servant, agent or any attorneys, conduct any dealings with regards to the [Country R] Properties.
•I will cooperate with the Applicant and Respondent to facilitate the inspection of the [Country R] Properties for the purpose of valuation at the cost of the Applicant and Respondent, or either of them, by [Mr X][17], who has been appointed as a single expert by the Court's Orders.
•I will facilitate the inspection by [Mr X] before 20 December 2024, or as otherwise directed by [Mr X].
[17] The undertaking of 6 December 2024 was not conditional upon one of the Wife’s then proposed list of valuers be retained.
Detail on undertakings
It is the Husband’s case that an undertaking may have issues with enforceability. I raised with counsel a potential issue of the wording of this undertaking:
HIS HONOUR: Yes. I’m interested in this: that he may – some people see “deal with” as one of the widest possible things, and then – I’m sure you’ve come across cases where someone says, “Yes, yes, that means sell. No, no, I’ve only mortgaged it.”…
MS TABBERNOR: … well, your Honour, the terms of the undertaking that are proffered – and it’s in the first dot point. That he will not conduct any dealings with regards of the [Country R] properties. Now, in my submission,
…
HIS HONOUR: …Conduct any dealings. Yes. It would include encumbering - - -
MS TABBERNOR: Yes.
HIS HONOUR: - - - would it not?
MS TABBERNOR: Of course.
HIS HONOUR: Thank you. Yes.
MS TABBERNOR: It would. It would. And he undertakes not to do those things except by way of a – by written agreement by the applicant and the respondent, his parents, or further order of the court.
HIS HONOUR: Yes.
MS TABBERNOR: And that certainly it is one of the strongest forms of undertaking that he can give.
Counsel further opined:
MS TABBERNOR: Rule 10.18(a) makes it very clear that undertakings have the full force of orders. And so certainly, regardless of whether or not it’s an order or regardless of whether or not it is an undertaking, it has the exact same force and effect in respect of enforceability. I also note that a breach of an undertaking is contempt. That is well-established… It is just as serious and it is on all fours as breaching a court order. So certainly the court would not accept any suggestion that the undertaking is not of the same legal force and effect of an order.
…
MS TABBERNOR: There was also a suggestion that one reason why my client needed to be a party was to ensure that it – I think the quote was to ensure that it doesn’t happen again, ie, ensure that other transfers don’t happen again. Frankly, that is covered by the undertaking. It would be covered by an order.
I also raised a further question with counsel:
HIS HONOUR: Your client says, “Here’s an undertaking. I don’t need to be a party. I’m not a necessary party. No one is seeking that I do anything with this property other than preserve it, which I’m prepared to do”. But he doesn’t say, “I’m prepared to abide the decision of the court as to the ownership of the property”. Does that matter, that he doesn’t say that?
MS TABBERNOR: Not at this point in the proceedings, and the reason for that is, at this point in the proceedings, my client is in the dark about the extent of the final relief that might be sought... Effectively, what that is in respect of an undertaking is, sort of, akin to a submitting appearance or something of the like to say, “I will go along with the decision of the court”. Now, why that wouldn’t trouble your Honour at this point is because my client could not be in a position to make that particular undertaking before knowing the case that is pled and what it is that the husband may seek for him to do. He may elect to be a witness.
…
I was helpfully directed to the full court decision in the matter of Wayne & Dillon [2008] 40 FamLR 543 where Warnick J found:
[18]The word “necessary” in r 11.01(1) must mean something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
[19]However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”. Thus, in an application such as was before the Federal Magistrate, such a question falls for consideration.
Counsel for Mr B Ristani relied on the decision of Shamon & Shamon (No 12) [2024] FedCFamC1F 69 (‘Shamon’) where counsel suggested that Christie J dealt with similar facts and circumstances regarding a joinder of a party to a proceeding:
20The second question that I must determine is whether the husband has established an arguable case such that joinder is necessary.
21The husband establishes that the wife’s brother owns property. He deposes to conversations with the wife’s brother. The wife denies any conversations or knowledge of any arrangement whereby her brother holds property on her behalf.
22The husband’s contention and the wife’s denial means that whether or not the property in Country UU is held on trust for the wife is an issue in the proceedings. It will remain in issue whether I join the wife’s brother or not. If orders requiring the wife’s brother to do something were sought, then I would have no hesitation in making him a party – his joinder would be, in a real sense, “necessary”.
23If the husband is ultimately determined to be accurate in his representation of the ownership of the property the participation of the wife’s brother may, as I raised with counsel, be necessary in order to have valuation evidence. But, it would be inevitable at this stage that formal valuation (even if possible – and there is no evidence) would necessitate vacation of the hearing dates. The concept of that which is necessary to determine the dispute must include some notion of what steps are reasonable and proportionate in the context of the litigation as a whole.
24I have not heard any concrete proposal about valuation. But I do have some evidence of value in the husband’s own evidence. The present evidence being the best evidence available is contained in the transfer documents and supports the conclusion that even if the declaration were to be made as sought, the value of the property is de minimis in the context of the husband having accumulated $502,464 of legal fees according to his most recently filed costs notice (December 2023) and the wife having accrued $439,256 in legal fees according to her most recent costs notice (February 2024).
25 The husband bears the onus of establishing the two matters in the Rules:
(1) that the rights of the wife’s brother are directly affected; and
(2)that the wife’s brother is a necessary party (as opposed to a witness) to determine all issues as between the parties.
26I am not satisfied that the proposed third party would be directly affected by the making of the declaration if made. The reason for that conclusion is that a declaratory order is one which merely declares what the rights are between parties (here the wife and her brother). If a declaration were to be made in reliance upon s 78 of the Act, the husband seeks no consequential orders. This is unsurprising since the property is located outside Australia. In circumstances where the wife decries any rights, it is difficult to see that even if the declaration were made it would have any direct effect on the proposed third party.
I raised with counsel my contemplation of Shamon and the relevance of that case to the hearing before me:
HIS HONOUR: Can I just take you to – the issue going through my mind on that point why I, at the moment, don’t see this case as analogous to those cases where there’s a broad allegation, “Look, you know, my brother-in-law told me that it was really my wife’s property, and my wife told me that her father gave it to her but it was in her brother’s name”, or whatever, held on trust or I’m a beneficiary of a trust. This is a case where the wife has gone on affidavit saying, “(1) I’m the registered proprietor, to the extent such a notion is consistent with the law of [Country R]. (2) I own these properties”, and then an order for the valuation is made and there’s no demurrer heard …against that process. And it’s not until they’re back at court again, when she said, “By the way, back before you made that valuation (order) when I was represented at court, I transferred them to somebody else”. Now, hence the facts are quite different in that sense, are they not?
MS TABBERNOR: Well, the facts are different in the sense that the process by which the property ended up in the hands of a third party is different. So certainly, the path to legal ownership in being someone other than the spouse party is a different road to the same outcome, in that sense. Now, the wife’s conduct will no doubt be the subject of cross-examination in a final hearing, and there might be findings that are being sought in respect of that. But it doesn’t change the salient point, which is whether it’s an add-back, whether it’s declared to be property of the wife, whether there’s a 106B process that is sought to legally put the property back in the hands of the wife, noting that it seems unlikely that 106B orders from an Australian court would have the full force and effect in [Country R]. But putting that as – or the like, the point remains, my client is not necessary.
HIS HONOUR: Well, they – the 106B order would not operate on the government of [Country R], if one were made, but it would operate on the grandparents or your client, presuming there’s jurisdiction.
THE GRANDPARENTS’ POSITION
The Wife’s parents, the Grandparents, did not appear in the proceedings before me. The Wife asserts they do wish to be involved. That is not an implausible assertion.
THE COUNTRY R PROPERTIES
The Wife’s senior counsel asserted, correctly, that the Husband could pursue a case for an “add back” of the value of the Country R properties, were that just and equitable, without the Grandparents or Mr B Ristani being joined. It is common ground and undisputed that the Country R properties had been registered in the name of the Wife, and arguably owned by her, for most of the marriage. It is common ground that the Wife deposed to ownership of, or an interest in, the Country R properties as described above. It is common ground that the Wife sought that the Country R properties be “excluded” from the asset pool. It is common ground that, whether the Wife consented to it or not, an order for the valuation of the Country R properties was made back in June 2024. It is common ground that the Wife did not cooperate with that order for valuation at any time soon thereafter. It is common ground that while the proceedings were adjourned for further directions, the Wife transferred the Country R properties, without notice to the Husband, to her parents. It is common ground that without notice to the Husband, the parents then transferred those same Country R properties to Mr B Ristani.
Mr B Ristani has sensibly acquiesced in the exercise of the Court’s jurisdiction against him and, late in the piece, provided two undertakings to the Court not to dispose of the Country R properties without agreement or order of the Court. The Husband squarely alleges that the process of transfer of the Country R properties from the Wife to the parents, and the parents to Mr B Ristani, is a sham. That question cannot be resolved on an interlocutory hearing, without the usual discovery and testing of evidence. But the Wife does not concede that the value of the Country R properties, as determined by the Court after the single expert witness valuation process has been completed, should be added to the balance sheet as an asset on her side of the ledger. Of course, it cannot be disputed that, were she to do so, it would be open to her to pursue the not uncommon and well-established position or argument that those properties, coming from her side of the family, were a substantial direct contribution, within the meaning of s 79(4)(a) and the settled jurisprudence of authorities including Gosper& Gosper [1987] FLC 91-818 and Kessey and Kessey (1994) FLC 92-495.
But the Wife, when dealing with the question of joinder of her parents and of Mr B Ristani, does not make that concession, even in the face of the sham transactions allegation by the Husband, in these proceedings.
Mr B Ristani sensibly tenders an undertaking. The first was conditional upon the Husband agreeing to effectively set aside the order and single expert witness process of the order of 11 June 2024 and have the Husband accept the Wife’s very late complaints and tipping of that process upside down. The second undertaking, filed three working days before the actual hearing, was more measured and sensible, and did not have any such conditions attached to it. But Mr B Ristani’s support in that first undertaking of support of the Wife’s course of effectively redoing the single expert valuation order was clear.
The Husband relies upon the following uncontroversial matters to demonstrate, or corroborate, his allegation of sham transactions which, if proved, may have the effect of a court determining the value of the Country R properties being an asset in the Wife’s hands, notwithstanding that there may be room for movement on the station of the second, “contribution”, stage of the orthodox Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 (“Keskin”), 4-step analysis, or its replacement under the new, and pending, legislation. The Husband points to:
(1)The Wife acknowledging ownership of the Country R properties at the same time as seeking to exclude those properties from the section 79 asset pool; and
(2)In the face of an order that she participate in the single expert process of valuing the Country R properties, she transferred the properties to her parents; and
(3)Her parents then, late in the piece, transferred the properties to Mr B Ristani; and
(4)The Husband alleges that other funds that may be characterised as arising during the marriage have also been transferred to Mr B Ristani.
I do not make any finding, or even tentative finding, about whether there has been a sham or series of sham transactions. But the allegation of sham transactions, by inferences that could (not would) be drawn from the undisputed transactions, is not implausible.
CONCLUSION AS TO JOINDER OF MR B RISTANI
In the face of these matters, Mr B Ristani simply asserts:[18]
14. I am the owner of the following properties:
(a)-(d) [the [Country R] Properties]
(the “[Country R] Properties”).
15. I am aware the [Country R] Properties are at issue in these proceedings.
16.On or around 18 November 2024 my grandparents on my mother's side, [Ms U] and [Mr V] (my “Grandparents”), transferred the properties to me.
[18] In his affidavit filed 6 December 2024.
His counsel asserted that his doing so assisted the Court as it gave substance to his proffered undertaking. The assertion of ownership was made in the affidavit filed 6 December 2024, with the first undertaking having been given on 26 November of 2024.
But Mr B Ristani, whilst claiming ownership of the Country R properties and having participation in a series of sham transactions alleged against him, does not undertake to abide or follow the determination of the Court in regard to that first step of the Keskin approach, that is the identification and ownership of the assets and liabilities of the parties. He simply says, “I own them” and I don’t want to be a party.
At final hearing, with what is currently in issue and squarely alleged, a finding about whether Mr B Ristani has been and is involved in a sham transaction will likely be determined.
In all of these circumstances, and whether or not a section 106B claw back order is sought or not, Mr B Ristani’s rights concerning the Country R properties issue in these proceedings may be affected and he is a necessary party to the determination of who owns, and/or who should be regarded as owning the Country R properties and whether or not the current, and recently ascertained position, is or is not a sham. To have an allegation that you have participated in, and hold property as a result of, sham transactions, in my view, may directly affect a person, and affect Mr B Ristani in this case, and makes Mr B Ristani a necessary party to these proceedings.
Mr B Ristani’s undertaking sufficient
I am satisfied Mr B Ristani’s undertaking, in the circumstances of Rule 10.18 (recited above) and him being a party, is sufficiently protective of all parties’ rights as to make saying the same thing in an injunction unnecessary. I accept Mr B Ristani’s undertaking and will not make the injunction sought.
CONCLUSION AS TO JOINDER OF THE GRANDPARENTS
The proceedings, and what I have been told, faintly raise the issue of the capacity of the Grandparents. On one view, they are merely the originators of the generosity of the transfer of the Country R properties to the Wife may years ago and the conduit of the transfer of the properties to Mr B Ristani. I make no findings about that. But, in the circumstances where they no longer hold those properties, whereas Mr B Ristani does, and whether or not they participated in the alleged sham transactions, I am not satisfied, at this point, that their interests are directly affected and that their participation is necessary to determine all issues in dispute in the proceedings. It may be that one or other party calls them as witnesses.
I take into account that unless they are parties, there is no obligation on the Grandparents to provide to the other parties the content of any relevant communications between them about these transactions. But there is a heavy burden upon the Wife to inform the Court and the other parties of all relevant communications and documents as between her and each of the Grandparents. I also take into account that there is the same heavy obligation in regard to disclosure and communication of documents between Mr B Ristani and the Grandparents as between Mr B Ristani and the Wife. I also acknowledge that to merely obtain disclosure of relevant communications and documents is not usually regarded as a proper basis to join a stranger to the litigation as a party.
In all of those circumstances, I am satisfied that the requirements in regard to rule 3.01 are made out in so far as the application to join Mr B Ristani is made, but not, at least at this time, in regard to the Grandparents. I will not join the Grandparents as parties.
CONCLUSION AS TO INSTRUCTIONS TO SINGLE EXPERT WITNESSES
When to do the Business Valuation
Collectively the parties to this case have the capacity, and it may be the reasons, to strongly dispute many things. The intervention of counsel and senior counsel has assisted clear a way forward. But given the overall level of conflict, I am satisfied that all valuations should be undertaken sooner rather than later. And I am not satisfied any sensible settlement discussions, which would be in the parties’ interests, are possible without all valuations being on the table. Hence, I will adopt the 14 days timeframe of the Wife’s proposal, not the “down the track” proposal of the Husband.
The six transactions instructions to SEW
I am satisfied that the common ground transfers of substantial funds by the Husband on the dates alleged may be relevant to the identification of the pool at the first step and/or to the valuation of the Husband’s business entities. It is common ground that there will be, as there should be, sooner or later, a single expert valuation of the Husband’s business entities. In those circumstances, I am satisfied that such a valuation exercise should look at the transactions that the Wife seeks to impugn. I am not satisfied that without specific reference, those transactions would not be dealt with in any event by the single expert valuer. But, for the avoidance of doubt, the same valuer should be directly instructed to examine those transactions as part of the valuation exercise, and particularly in circumstances where the Wife asserts that that part of the valuation exercise, should be at her expense in the first instance.
The instructions to the single expert valuer should be within 14 days and not within 7 on any point.
Keep the existing valuer of the Country R Properties
I am not satisfied that the grounds advanced by the Wife, late in the piece, are grounds that warrant the existing order being discharged. The evidence does not sufficiently impugn the competence and independence of that expert to be properly retained as an expert witness. For the avoidance of doubt the parties should do all things to immediately proceed with the valuation of the Country R properties by Mr X as sought by the Husband.
COSTS
The Husband and Wife seek that their costs be reserved for the interim defended hearing and to be determined at the Final Hearing. It is Mr B Ristani’s case that he seeks indemnity costs. This was set out within his affidavit of 6 December 2024.
Mr B Ristani’s cost application assumed success in his joinder opposition. He has been successful on his “my undertaking is enough” position. As discussed with counsel, costs are usually dealt with after the relevant decision. So it should be in this case. The other parties seek that their costs be reserved. If Mr B Ristani seeks costs of this proceeding, application should be made within 14 days by short written submission sent to my Associates by email and, if made, any response be within a further 14 day in short written submission emailed to my Associates.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 12 May 2025
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