Valeas & Valeas
[2025] FedCFamC1F 185
•21 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Valeas & Valeas [2025] FedCFamC1F 185
File number: SYC 9253 of 2023 Judgment of: CAMPTON J Date of judgment: 21 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the husband seeks to join the Prothonotary of the Supreme Court of New South Wales and the wife’s mother contending that they are necessary parties to the proceedings pursuant to r 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the joinder of the Prothonotary is not necessary – Where the wife’s mother’s joinder is not put into issue by the wife – Wife’s mother joined as the second respondent to the proceeding. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 7, r 3.01
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 21 March 2025 Place: Sydney Solicitor for the Applicant: Mr Phair, Dettmann Phair Lawyers Counsel for the First Respondent: Mr Elachkar Solicitor for the First Respondent: Zahr Partners Solicitor for the Second Respondent: Did not appear Solicitor for the Proposed Respondent: Ms Drummy, Crown Solicitor’s Office ORDERS
SYC 9253 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VALEAS
Applicant
AND: MS VALEAS
First Respondent
Ms Roldan
Second Respondent
NEW SOUTH WALES CROWN SOLICITOR’S OFFICE
Proposed Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
21 MARCH 2025
THE COURT ORDERS THAT:
1.The wife’s mother, Ms Roldan, be joined as the second respondent to the proceeding
2.The Application in a Proceeding of the husband filed on 19 March 2025 and sealed on 20 March 2025 be otherwise dismissed.
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 the pseudonym Valeas & Valeas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
By way of an Initiating Application filed on 5 December 2023 in the Federal Circuit and Family Court of Australia (Division 2) Mr Valeas (“the husband”) commenced proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) as to the adjustment of property between he and Ms Valeas (“the wife”). By way of a Response to an Initiating Application filed on 22 February 2024 the wife sought different orders as to the adjustment of property.
These reasons determine the Application in a Proceeding of the husband filed on 19 March 2025 seeking to join the Prothonotary of the Supreme Court of New South Wales (“the Prothonotary”) and the wife’s mother, Ms Roldan.
BACKGROUND
The husband was born in 1970 and is currently 55 years old. The wife was born in 1970 and is currently 54 years old. They married in late 1997 and separated on 1 August 2021. There are six children of the marriage, Mr B who was born in 1998 and is currently 26 years old, Ms C who was born in 1999 and is currently 25 years old, Ms E who was born in 2002 and is currently 23 years old, Ms D who was born in 2003 and is currently 21 years old, Mr X who was born in 2006 and is currently 19 years old, and Y who was born in 2007 and is currently 17 years old.
The husband is a qualified health professional. He was employed by F Pty Ltd, a company incorporated in 2019. He is the sole shareholder and director. From 2021 the corporation contracted his services as a health professional and consultant. His current contention is that he is unable to continue to contract his services, encountering challenges as to his mental and physical health. He consults a General Practitioner, attends a psychologist, and may attend a psychiatrist to assist in living with his mental health challenges. He is treated by a specialist due to back pain subsequent to an accident in 2021 in which he said he sustained an injury.
The wife is currently employed by G Organisation on a casual basis. The terms of her current employment, albeit casual, are full time.
The husband and his father are the directors of H Pty Ltd, formerly known as J Pty Ltd. That corporation provided health services. The husband contends that in or about 2010 his shareholding was transferred to his father, and that he has not held a beneficial interest in the corporation since that time.
The parties obtained a single forensic accounting report pursuant to ch 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) from Mr K dated June 2024 opining as to the value of each corporation and the parties’ interests therein as at 30 June 2023. It is uncertain at this point whether that single expert evidence will be updated for trial.
In mid-2001 a property at 1 L Street, Suburb N, NSW (“the 1 L Street property”) was purchased in the wife’s sole name for $850,000. The parties resided in the property from 2003.
In early 2004 the property at 2 L Street, Suburb N (“the 2 L Street property”) was purchased for $850,000 in the names of the husband, the wife, and the wife’s mother as tenants in common, with the husband holding a 98 per cent interest and each of the wife and the wife’s mother, Ms Roldan, holding a one per cent interest.
It is agreed between the parties, and it appears not put into dispute by the wife’s mother, that the one per cent interest legal interest she holds in that 2 L Street, Suburb N property is held beneficially for the husband and the wife. The wife’s mother has been served with a copy of the orders made on 11 November 2024 as directed on or before 25 November 2024. She has to date has not engaged in the proceedings.
The single real property expert, Mr M, has opined as to the value of each of the Suburb N properties. They are contended to comprise a development site.
The husband and the wife broadly agree that the value of their superannuation and non-superannuation interests are in the range of approximately $5.8 million. Those interests are held primarily by way of the Suburb N properties, they also having about $100,000 of superannuation, motor vehicles, and other personal items. The superannuation interest of the parties are held by way of Superannuation Fund 1 (“Superannuation Fund 1”). The husband, the wife, their son Mr B, and their daughter, Ms E, are members of Superannuation Fund 1. It has a corporate trustee. The husband and the wife’s respective superannuation entitlements from a prior fund were rolled into Superannuation Fund 1.
The husband agitates final relief for the sale of the Suburb N properties, for the proceeds to be divided equally between the parties, and for the superannuation interests of the parties to be adjusted equally. The wife broadly contends that the property of the parties ought to be adjusted 70 per cent in her favour and 30 per cent in favour of the husband. She seeks the opportunity to acquire the husband’s interests in the Suburb N properties.
In or about late 2007 the husband was arrested on criminal charges for a drug related offence. He was held on remand until in or about late 2009. In or about late 2013 he was convicted of a drug related offence. He was incarcerated until in or about mid-2017. He contends he now lives with PTSD arising from his incarceration.
The parties’ eldest child, Mr B, has been charged with serious drug importation offences. He was granted Supreme Court bail on condition that a lien be provided by way of unregistered mortgage by the wife secured the 1 L Street, Suburb N property. The value of the lien is $3.6 million by way of surety for Mr B’s bail.
The Prothonotary has lodged a caveat on the title of the 1 L Street, Suburb N property, providing notice of the lien and the unsecured mortgage.
The husband contends the wife provided the security for Mr B’s Supreme Court bail without his knowledge or consent. It is his case that his claim for the adjustment of property may be prejudiced if Mr B does not comply with the bail conditions. There may be some merit to that concern and prejudice.
The wife has identified at court today that a consensual arrangement has been achieved with the NSW Crown to vary the terms of Mr B’s bail as ordered by the Supreme Court, such that the property the 1 L Street, Suburb N property will be released from the bail conditions as ordered, and a property of the wife’s mother substituted to secure Mr B’s ongoing bail. It is hoped that the variation to Mr B’s bail conditions will be determined by a judge of the Supreme Court in chambers, and if not, the application for variation of the bail conditions is listed in that forum in early 2025.
THE APPLICATION FOR JOINDER
The proceeding was listed for a case readiness hearing in Federal Circuit and Family Court of Australia (Division 2) on 27 February 2025 and transferred on that day to this forum. On 19 March 2025 (as sealed on 20 March 2025) the husband filed an Application in a Proceeding seeking the joinder of both the wife’s mother, Ms Roldan, and the Prothonotary as parties to the proceedings.
Ms Drummy from the Crown Solicitor’s Office (NSW) has attended at court today in response to the joinder application. The wife’s mother, Ms Roldan, has not attended at court today for the purposes of the joinder application.
It was the husband’s contention that each of the proposed additional respondents were necessary parties to the proceedings for the purposes of r 3.01 of the Rules which provides:
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
The rule does not identify the matters to be considered in the exercise of discretion to join a party to a proceeding. It mandates that a necessary party to a proceeding must be joined. The rule prescribes satisfaction of two conjunctive thresholds, being:
(a)Firstly, that the party who is proposed to be joined has rights that will be directly affected by the proceeding; and
(b)Second, that their participation in the proceedings are necessary to determine all issues in dispute in the proceeding.
If the evidence grounds such satisfaction, the rule obliges a joinder.
CONSIDERATION
The husband is seeking orders for the sale of the 2 L Street, Suburb N property, in which the husband’s mother holds a legal 1 per cent interest, and for the sale of the 1 L Street, Suburb N property currently subject to the Supreme Court caveat. He identified that he relied on s 79(10)(b) of the Act for the purposes of the joinder.
The husband encountered challenges in identifying the source of power by which this Court could make an order directing a judge of the Supreme Court to vary the terms of a bail order.
The husband has now been appraised as to the fact and circumstances of the wife’s application to vary the terms of Mr B’s bail condition in the Supreme Court. If successful, on any view, the current joinder application of the Prothonotary would have little utility. In those circumstances, the Application in a Proceeding of the husband filed 19 March 2025 and sealed on 20 March 2025 as to the joinder of the Prothonotary is refused and dismissed.
It is self-evident from these reasons that the wife’s mother, Ms Roldan, is a necessary party to the proceedings in that her legal rights will be directly affected by an issue in the proceedings, being either a sale of the 2 L Street Suburb N property in which she holds a one per cent interest, or the transfer of that property from the husband to the wife. The second limb of r 3.01 of the Rules is also satisfied in that her participation as a party, should she elect to do so, will be necessary for this Court to determine all issues in disputed pursuant to s 79 of the Act between the husband and the wife.
An order will be made that the wife’s mother, Ms Roldan, be added as the second respondent.
For all of the above reasons I make the orders as set out herein.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 21 March 2025
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