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

1. 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 a glaring omission in the overall facts and circumstances of this case.  The serious issue to be tried is precisely how the wife came to be represented as having executed the deed in order for the deed to become operative and money disbursed in accordance with it.

   [1] Warin & Warin [2021] FedCFamC1F 269.

2. The balance of convenience overwhelmingly favours the impounding of the proceeds to be disbursed pursuant to the deed for the simple reason that if those funds are disbursed, they are at risk of being beyond the reach of the parties and therefore being beyond the operation of orders under s 79 of the Family Law Act in respect of which this proceeding has been brought.

3. The more important issue is the joinder of Warin Pty Ltd. It appears to be controlled by persons who are not presently before the court and in respect of which there is very little information that gives any insight into precisely how and what role that company occupied in the execution of the deed. Pursuant to rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 it is necessary for all relevant persons to be joined.  Accordingly, I grant the order for the joinder of Warin Pty Ltd. 

4. I also make the order, there being no substantive opposition on behalf of Mr Rubera or Ms Emslie.  Funds paid in pursuance of the operation of the deed must be paid into a controlled moneys account to be managed by the solicitors in this case pending further order by me. 

5. The only remaining issue is the urgency with which the case is to be further dealt with.  These orders will take effect as interim orders and hence are not yet interlocutory injunction orders.  I have in mind that Mr Vadarlis’s client has a short time to come before the court with material upon which he relies in support of his urgent interim application.  He must serve that material on or before 4:00pm on 16 December 2021.  The joined party and any other parties in this proceeding will have a short opportunity within which to respond.  I direct that that be done on or before 4:00pm on 21 December 2021 with a view to having this case returnable before me on 23 December 2021 at 2:15pm for full debate. 

6. If the position is unchanged then there is a possibility that an interlocutory injunction will be granted extending the operation of the orders made today on an urgent interim basis until the hearing and determination of the proceeding.  It remains to be seen what evidence emerges prior to next week.  I am persuaded on the usual authorities such as Australian Broadcasting Corporation v O'Neill,[2] A v Hayden,[3] Tableland Peanuts Pty Ltd v Peanut Marketing Board[4] and the most recent authority in the High Court of Smethurst,[5] that there are grounds for the grant of the orders sought in the terms that are sought and orders will be made accordingly. 

   [2] (2006) 227 CLR 57.

   [3] A v Hayden (No 2) (1984) 156 CLR 532.

   [4] (1984) 58 ALJR 283.

   [5] Smethurst v Commissioner of Police (2020) 94 ALJR 502.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson.

Associate:

Dated:       17 December 2021