Warin & Warin (No 2) - [2021] FamCA 483

FAMILY COURT OF AUSTRALIA

WARIN & WARIN (NO. 2)

[2021] FamCA 483

FAMILY LAW – PRACTICE AND PROCEDURE – application to cross-examine affidavit deponents at an interlocutory hearing – no power conferred by Family Law Act, Family Law Rules or Family Law Regulations.

FAMILY LAW – BANKRUPTCY – application to summarily terminate bankruptcy founded on a debtor’s petition – no power – s 106B of the Family Law Act not to be invoked summarily.

FAMILY LAW – JOINDER – application granted.

Bankruptcy Act 1966 (Cth)
Family Law Act 1975 (Cth) s 106B
Family Law Regulations 1984 (Cth)
Family Law Rules 2004 (Cth) rr 6.02, 15.09

Calverley v Green (1984) 155 CLR 242
Dyer v Dyer [1788] 30 ER 42
Goodridge & Beadle (2017) 57 Fam LR 425
Muschinski v Dodds (1985) 160 CLR 583
Stanford v Stanford (2012) 247 CLR 108
The Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278
Warin & Warin [2020] FamCA 796

APPLICANT:

Ms Warin

FIRST RESPONDENT:

Mr Warin

SECOND RESPONDENT:

Mr Stanton & Mr Basfield in their capacity as Trustees in Bankruptcy of the Bankrupt Estate of the Respondent Husband

FILE NUMBER:

MLC

7368

2020

DATE DELIVERED:

6 July 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

On the papers

DATE OF FINAL SUBMISSION:

5 July 2021

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not applicable

SOLICITOR FOR THE APPLICANT:

Vadarlis & Associates

COUNSEL FOR THE FIRST RESPONDENT:

Not applicable

SOLICITOR FOR THE FIRST RESPONDENT:

Sebastian Rubera & Associates

COUNSEL FOR THE SECOND RESPONDENT:

Not applicable

SOLICITOR FOR THE SECOND RESPONDENT:

Maddocks Lawyers

Orders

Ms Inston is joined forthwith as the third respondent to this proceeding.
On or before 4pm on 5 August 2021 the wife must file and serve a statement of claim against all respondents in the form and to the details required for a statement of claim in the Federal Court of Australia.
On or before 4pm on 6 September 2021 each respondent must file and serve a defence to the wife’s statement of claim.
The wife’s application to examine the bankrupt, Mr Winsor and Ms Inston is dismissed.
The wife’s application on an interim basis to set aside the bankrupt’s bankruptcy is dismissed.
The listing on 6 August 2021 is vacated.
The further hearing of this proceeding is adjourned to 8 September 2021 at 10am for directions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Warin & Warin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Warin & Warin (No 2)

Details

AGLC: Warin & Warin (No 2) [2021] FamCA 483
Case: [2021] FamCA 483
Decision Date

CaseChat Overview and Summary

In *Warin & Warin (No 2)*, the Family Court of Australia considered applications made by the wife concerning her husband's bankruptcy and the ownership of a property. The wife sought to cross-examine deponents of affidavits, to summarily terminate her husband's bankruptcy, and to join a third party, Ms Inston, to the proceedings. The husband, who had petitioned for his own bankruptcy, contended he had standing to be heard, while the trustees in bankruptcy opposed the application to set aside the sequestration order.

The court was required to determine whether it had the power to order the examination of certain individuals at an interlocutory hearing, whether it possessed the power to summarily terminate the husband's bankruptcy under section 106B of the *Family Law Act 1975* (Cth), and whether Ms Inston should be joined as a third respondent. The wife's allegations included that funds for a property purchase originated from the husband, that his post-bankruptcy financial circumstances were unchanged, that his bankruptcy was not genuine, and that his accountant had failed to comply with subpoenas.

Wilson J found that the *Family Law Act*, *Family Law Rules*, and *Family Law Regulations* did not confer power to order the examination of affidavit deponents at an interlocutory hearing, and therefore dismissed this application. Similarly, the court held that section 106B of the *Family Law Act* was not to be invoked summarily to terminate a bankruptcy, particularly given the significant debts involved and the work already undertaken by the trustees. The court reasoned that such an application should only be considered after a fully contested trial. However, the court granted the application to join Ms Inston as a third respondent, finding that her rights to a property potentially held on trust for the bankrupt could be directly affected by the proceedings, and her participation was necessary for the court to determine all issues in dispute.

Consequently, the wife was ordered to file and serve a statement of claim against all respondents within one month, with the respondents to file their defences within a further month. The wife's applications to examine individuals and to summarily set aside the bankruptcy were dismissed. The matter was adjourned for further directions.

Orders