Warin & Warin (No 2) - [2021] FedCFamC1F 310

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin (No 2) [2021] FedCFamC1F 310

File number(s): MLC7368/2020

Judgment of: WILSON J

Date of judgment: 17 December 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application to join a party.

Legislation:
Family Law Act 1979 s 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 3.01

Cases cited:
A v Hayden (No 2) (1984) 156 CLR 532

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

Warin & Warin [2021] FedCFamC1F 269

Smethurst v Commissioner of Police (2020) 94 ALJR 502

Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283

Division: Division 1 First Instance

Number of paragraphs: 4

Date of hearing: 13 December 2021

Place: Melbourne

Solicitor for the Applicant: Vadarlis & Associates

Solicitor for the First and Third Respondents: Sebastian Rubera & Associates

Solicitor for the Second Respondent: Maddocks Lawyers
ORDERS

MLC7368/2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS WARIN

Applicant

AND:
MR WARIN

First Respondent

MR STANTON & MR BASFIELD IN THEIR CAPACITY AS TRUSTEES IN BANKRUPTCY OF THE BANKRUPT ESTATE OF THE RESPONDENT HUSBAND

Second Respondent

MS WINDSOR

Third Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.Warin Pty Ltd is joined as the fourth respondent to this proceeding.
2.Funds paid in pursuance of the operation of the deed made between the first respondent and the Commissioner of Taxation must be paid into a controlled moneys account to be managed by the solicitors for the parties in this proceeding pending further order by me.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT

A serious issue has arisen in this case. It concerns the circumstances surrounding the execution of a deed expressed to have been made on behalf of the wife and its provision to the ATO such as to precipitate the flow of funds and the creation of a fund relating to the first respondent. When I handed down reasons on 10 December 2021,[1] I observed that very little in the way of disclosure surrounded the execution of or entering into, or for that matter, any aspect of the deed. That is…

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] FedCFamC1F 310
Case: [2021] FedCFamC1F 310
Decision Date

CaseChat Overview and Summary

In Warin & Warin (No 2), the Federal Circuit and Family Court of Australia addressed an application by Ms Warin to join Warin Pty Ltd as a party to the proceeding, as well as an application to impound funds disbursed under a deed executed between Mr Warin and the Commissioner of Taxation. The case concerns the circumstances under which a deed was executed, which led to the disbursement of funds from Mr Warin's account to the Commissioner of Taxation. Ms Warin argued that the deed was executed without her knowledge or consent and sought to join Warin Pty Ltd as a party, alleging that it had a controlling interest in Mr Warin's affairs.

The legal issues before the court included whether Warin Pty Ltd should be joined as a party to the proceeding and whether funds disbursed under the deed should be impounded pending further order. The court had to consider the relevant provisions of the Family Law Act 1979 and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The court also needed to assess the balance of convenience and the need for urgency in making the orders sought by Ms Warin.

Justice Wilson held that the balance of convenience favoured impounding the proceeds to be disbursed pursuant to the deed to prevent the funds from being beyond the reach of the parties and the court's orders. The court also found that Warin Pty Ltd should be joined as a party due to the lack of information about its role in the execution of the deed. The court cited several authorities, including Australian Broadcasting Corporation v O'Neill, A v Hayden, Tableland Peanuts Pty Ltd v Peanut Marketing Board, and Smethurst v Commissioner of Police, to support its decision. Justice Wilson granted the application to join Warin Pty Ltd as the fourth respondent and ordered that funds paid in pursuance of the deed be paid into a controlled moneys account managed by the solicitors in the case pending further order.

The court ordered that Warin Pty Ltd be joined as the fourth respondent to the proceeding and that funds disbursed under the deed be paid into a controlled moneys account pending further order. The orders were made as interim orders and were not interlocutory injunction orders. The matter was set down for further debate on 23 December 2021, with the possibility of an interlocutory injunction being granted if the position remained unchanged.

Orders