Warin & Warin (No 2)

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.