Werther and Werther & Anor

[2014] FamCA 1043

FAMILY COURT OF AUSTRALIA

WERTHER & WERTHER AND ANOR [2014] FamCA 1043

FAMILY LAW – Joinder of third party

Family Law Act 1975 (Cth)

APPLICANT: Ms Werther

1^st RESPONDENT: Mr Werther

2^nd RESPONDENT: Ms Wills

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 1447 of 2011

DATE DELIVERED: 29 September 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 29 September 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Snyder

SOLICITOR FOR THE 1^ST

RESPONDENT:

Mr Gregory

THE 2^ND RESPONDENT:

In Person

Orders

1. That Ms Wills is joined as a party to the proceedings between the husband and wife.

2. That by 4.00pm on 6 October 2014, the wife file and serve on all other parties, an amended initiating application setting out with precision the proposed orders she seeks.

3. That by 4.00pm on 20 October 2014, the second respondent Ms Wills, file and serve on all other parties a response to the amending initiating application of the wife.

4. That the costs of the husband of this day are reserved.

5. That the application filed 15 September 2014 by the wife and the response this day by Ms Wills are otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1447 of 2011

Ms Werther

Applicant

And

Mr Werther

1^st Respondent

Ms Wills

2^nd Respondent

REASONS FOR JUDGMENT

1. This is an application in a case filed on 15 September by the applicant in relation to the joinder of Ms Wills.  Ms Wills has had some legal advice but has prepared her own response requesting that the application be dismissed.  The Family Law Rules require that when a person may be affected by an order made by the court, that person must be joined.  Ms Wills quite efficiently argues that there are other powers of the court to deal with the matter and there is no need for her to be joined.  She points out that the intent of this application is to simply cause her inconvenience. 

2. Whilst that might very well be the ultimate result, that is not a basis upon which I should ignore the joinder at this stage bearing in mind that there is an assertion by the wife that Ms Wills is the registered proprietor of a property over which funding was provided and secured by a mortgage to what seems to me to be the husband’s parents.  Ms Werther says that the loan was also guaranteed by the respondent husband.  The wife then asserts that as a result of that set of transactions, she is going to argue that the property is held by Ms Wills on trust for the husband. 

3. No doubt the truth will come out of all of this but at this stage the quintessential issue is whether or not Ms Wills should be joined and based on chapter 6 of the rules I think she should.  Ms Wills is joined as a party to the proceedings between the husband and the wife.  

4. By 4 pm on 6 October 2014 the wife file and serve on all other parties an amended initiating application setting out with precision the proposed orders.  By 20 October 2014 the second respondent file and serve on all other parties a response to the amended initiating application.  The application in a case filed on 15 September and the response filed this day are otherwise dismissed.  I reserve the husband’s costs.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 September 2014.

Associate: 

Date:  14 November 2014