FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Shamon & Shamon (No 12) [2024] FedCFamC1F 69
File number: SYC 2375 of 2021 Judgment of: CHRISTIE J Date of judgment: 16 February 2024 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – Application for joinder – Declaration sought that the party proposed to be joined holds property on trust for the benefit of the first respondent – Where the final relief sought does not bind the party proposed to be joined nor directly affect them by the making of the final relief – Necessity not established – Application for joinder dismissed.
FAMILY LAW –PARENTING – Application to vary interim parenting orders – Best interests of the children – Whether there has been a significant change of circumstances so as to warrant revisiting the existing parenting orders – Where the matter will be heard for final hearing in less than two months – Extension of hours of supervised time – Application otherwise dismissed.
Legislation: Family Law Act 1975 (Cth) Pt VII ss 60CC, 60CG, 78, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 3.01 and r 3.03
Cases cited: B Pty Ltd and Ors & K and Anor (2008) FLC 93-380
Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223
Marvel & Marvel (2010) 43 Fam LR 348
Riemann & Riemann and Ors (No. 3) [2017] FamCA 911
Shamon & Shamon (No 9) [2023] FedCFamC1F 586
Victoria v Sutton (1998) 195 CLR 291
Wayne v Dillon (2008) 40 Fam LR 543
Division: Division 1 First Instance Number of paragraphs: 64 Date of hearing: 14 February 2024 Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Elachkar Solicitor for the Respondent: Lawbridge Lawyers & Consultants The Second Respondent: Did not participate The Third Respondent: Did not participate The Fourth Respondent: Did not participate The Fifth Respondent: Did not participate Independent Children's Lawyer: Ms Bleier, Steiner Legal ORDERS
SYC 2375 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SHAMON
Applicant
AND: MS SHAMON
First Respondent
MR B SHAMON
Second Respondent
MS C SHAMON (and others named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.Order 4 of the orders of 19 May 2022 is varied to delete reference to “two hours” and replace it with “three hours”.
2.The husband’s Application in a Proceeding filed 21 November 2023 is otherwise dismissed.
3.Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included…
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- Shamon & Shamon (No 12) [2024] FedCFamC1F 69
- Case
- [2024] FedCFamC1F 69
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the husband had established a necessity for the joinder of the brother and whether there had been a significant change of circumstances that warranted a variation of the existing parenting orders. The court considered the husband's application for joinder in light of the principle that a party seeking to join another party must demonstrate an arguable case sufficient to resist summary judgment by the proposed party. The court concluded that the husband had not demonstrated that the joinder was necessary, as the final relief sought did not bind or directly affect the brother.
Regarding the parenting orders, the court examined whether there had been a significant change of circumstances since the interim orders were made, considering the matter would be heard for final hearing in less than two months. The court determined that no significant change had occurred and thus dismissed the application to vary the existing parenting orders. However, the court did vary the existing orders to increase the hours of supervised time for the husband.
The court's decision was grounded in the need to balance the interests of the parties and the children. The court dismissed the application for joinder, finding no necessity for the brother's inclusion, and declined to vary the parenting orders except to extend the hours of supervised time. The court's final orders included a variation to the existing orders to increase the supervised time to three hours and a fact sheet detailing the obligations and consequences of non-compliance with these orders.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. Order 4 of the orders of 19 May 2022 is varied to delete reference to “two hours” and replace it with “three hours”.
2. The husband’s Application in a Proceeding filed 21 November 2023 is otherwise dismissed.
3. Pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Riemann & Riemann and Ors (No. 3) [2017] FamCA 911 at [37], McClelland J (as his Honour then was) cited with approval the judgment of Le Miere J in Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223 where Le Miere J observed as follows:27.The applicant on a joinder application must show that there is an arguable case sufficient to resist the entry of summary judgment by the parties sought to be joined: Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 [6] (Tamberlin J). The test is that stated by Barwick CJ at 128 - 129 in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125: Universal Music Australia Pty Ltd v Cooper [7] (Tamberlin J); Review Australia Pty Ltd v Red Berry Enterprises Pty Ltd [2003] FCA 1009 [5] (Heerey J). It would be futile to order that a person be joined as a defendant if the material before the court disclosed that if the person, having been joined as a defendant, applied for summary judgment the application would succeed.Consideration I turn then to consider the relief which is sought against the wife’s brother in the husband’s existing application for final relief:8. A declaration be made that 6 units located at Lot […] of [XX Real Estate], [Country UU] were and are held on trust by the 6th Respondent for the benefit of the Applicant. The wife’s brother, Mr AJ, was, according to the documents annexed to the affidavit of the husband, the registered proprietor of a number of parcels of real property in XX Real Estate, City AK, Country UU in late 2021. The husband says that the wife’s brother holds 5 (or 6) of the units for the wife. The husband says he gave the wife’s brother $75,000. The chronology appears to be as follows:(a)2015 – the husband says the wife told him her father had gifted her and her siblings “two large parcels of land”. The sibling group would appear to consist of six children according to the husband’s affidavit. The wife denies the conversation and the receipt of a gift of land from her father.(b)2016/17 – the husband says the wife’s brother indicated he had developed a number of units on the land at a cost of AUD 3 million and required $500,000 to complete the work at which time the wife’s entitlements would be 5 units or more if the husband provided funds. The wife denies this arrangement. The husband says he borrowed money and paid $75,000 to the wife’s brother after which he understood the wife would receive an additional unit so as to bring the total to 6 units. The wife denies this arrangement.(c)2018 – the husband says one unit was sold.(d)2019 – the husband says one unit was sold.(e)30 June 2020 the parties separated.(f)October 2020 – the husband says the wife’s brother asked for $40,000 to facilitate transfer of the units into the wife’s name.(g)late 2021 – the husband says one unit was sold. While there are documents attached to the husband’s affidavit, they do not include any documents which demonstrate the land was transferred from the wife’s father to the wife’s brother.