Warin & Warin (No 4) - [2022] FedCFamC1F 160

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Warin & Warin (No 4) [2022] FedCFamC1F 160

File number(s): MLC 7368 of 2020

Judgment of: WILSON J

Date of judgment: 18 March 2022

Catchwords: FAMILY LAW – STANDING – whether the first respondent as an undischarged bankrupt has standing – held – no standing.

Legislation:
Family Law Act1975 (Cth) ss 79(12) and 79(13)

Bankruptcy Act1966 (Cth) ss 5(1) and 58(1)(a)

Cases cited:
1 Glover & Webster [2021] FedCFamC1F 69

2 Pacelli & Hopkinson & Anor [2010] FMCAFam 1248

Warin & Warin [2021] FedCFamC1F 269

Division: Division 1 First Instance

Number of paragraphs: 11

Place: Melbourne

Solicitor for the Applicant: Vadarlis & Associates

Solicitor for the First Respondent: Sebastian Rubera & Associates

Solicitor for the Second and Third Respondents: Maddocks Lawyers
ORDERS

MLC 7368 of 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 INSTON

Third Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

18 MARCH 2022

THE COURT ORDERS THAT:
1.The bankrupt has no standing in this litigation otherwise than in relation to the private superannuation fund.
2.On or before noon on 24 March 2022, the parties must bring a minute of orders that give effect to these reasons.

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 the pseudonym Warin & Warin is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J

These reasons address the standing of the first respondent, as an undischarged bankrupt to participate in this litigation, separately and independent of his trustees-in-bankruptcy ("the trustees").
The trustees and the wife oppose the grant of standing in favour of the bankrupt.
In my reasons for judgment handed down on 10 December 2021 in Warin & Warin[1] I said the following –
Curiously, in his defence the bankrupt acknowledged he had no standing. However, that position must be confined to the bankrupt’s vested assets (whatever those may be) yet not to the bankrupt’s non-vested assets including his interests in the parties’ self-managed superannuation fund, known as the R Superannuation Fund.
[1] [2021] FedCFamC1F 269.
The trustees contended that pursuant to s 58(1)(a)…

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 4)

Details

AGLC: Warin & Warin (No 4) [2022] FedCFamC1F 160
Case: [2022] FedCFamC1F 160
Decision Date

CaseChat Overview and Summary

The case of Warin & Warin (No 4) involved a dispute between Ms Warin, the applicant, and Mr Warin, the first respondent, concerning the standing of the first respondent in the litigation. The matter was heard in the Federal Circuit and Family Court of Australia, Division 1. The court was required to determine whether the first respondent, an undischarged bankrupt, had standing to participate in the litigation independently of his trustees-in-bankruptcy.

The central legal issue was whether the first respondent, as an undischarged bankrupt, had standing to participate in the litigation separately from his trustees-in-bankruptcy. The court considered the provisions of the Bankruptcy Act 1966 and the Family Law Act 1975, specifically sections 5(1), 58(1)(a) of the former and sections 79(12) and 79(13) of the latter. The trustees and the applicant opposed the bankrupt's standing, arguing that under the Bankruptcy Act, the bankrupt's property vests in the trustees, and the Family Law Act prohibits a bankrupt from making submissions in relation to vested property without leave. The bankrupt argued that his interest in the private superannuation fund, the R Superannuation Fund, had not vested in the trustees.

The court found that the bankrupt had no standing in the litigation except in relation to the private superannuation fund. The reasoning was based on the combined operation of the Bankruptcy Act and the Family Law Act, which vest the bankrupt's property in the trustees and prohibit the bankrupt from participating in litigation concerning that property without leave. The court rejected the bankrupt's argument that the trustees had the burden of disclosing vested property, stating that the court was not bound by a magistrate's decision on the matter. The court also noted the applicant's contention that the bankrupt might be warehousing assets but did not reach a conclusion on this issue.

In conclusion, the court ruled that the first respondent had no standing in the litigation except in relation to his interest in the private superannuation fund. The court ordered that the bankrupt had no standing otherwise and directed the parties to bring in a minute of orders by noon on 24 March 2022 to give effect to these reasons.

Orders