Willmann & Willmann
[2022] FedCFamC1F 232
•8 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willmann & Willmann [2022] FedCFamC1F 232
File number(s): SYC 6037 of 2021 Judgment of: REES J Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – JURISDICTION – Where proceedings were initiated in the Family Court of Australia prior to 1 September 2021 – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 followed – Legislative intent that the jurisdiction of the Family Court of Australia continue in the Federal Circuit and Family Court of Australia (Division 1) in respect of proceedings filed in it – Where the Court is satisfied that Division 1 has jurisdiction to hear and determine this application.
FAMILY LAW – PRACTICE AND PROCEDURE – Joinder application – Where the husband’s Response to Initiating Application had not been filed by the first return date – Proposed respondents contend the husband must file an application seeking leave they be joined – Proposed respondents contend discretion to grant leave should not be exercised – Where the Court has accrued jurisdiction to hear the matter and therefore no discretion to decline to exercise that jurisdiction – Where the husband has done that which is required to join respondents to the proceedings – No basis established for dismissing the joinder application – Orders made declaring that the respondents were joined to proceedings on the filing of the Response to Initiating Application.
Legislation: Family Law Act 1975 (Cth) s 31
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 25, 52
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) Sch 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.04, 3.03
Cases cited: Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd (2001) 204 CLR 559
Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208
Duarte and Anor & Morse (2019) FLC 93-902
Emanuele & Anor v Australian Securities Commission and Ors (1997) 188 CLR 114
Houghton v Arms (2006) 225 CLR 553
Noll & Noll and Anor (2013) FLC 93-529
Wallace & Stelzer and Anor (2013) FLC 93-566
Division: Division 1 First Instance Number of paragraphs: 37 Date of hearing: 8 April 2022 Place: Sydney Counsel for the Applicant: Mr Beaumont SC with Mr Macauley Solicitor for the Applicant: Sim & Co Legal Services Solicitor for the First Respondent: Barkus Doolan Counsel for the Second and Third Respondents: Mr Cooper Solicitor for the Second and Third Respondents: Pigdon Norgate Family Lawyers ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILLMANN
Applicant
AND: MS WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS:
1.That the Response to an Application in a Proceeding filed on 9 February 2022 by Mr Andrews and Ms Andrews is dismissed.
2.That the Court declares that Mr Andrews and Ms Andrews were joined as parties to these proceedings on 18 October 2021.
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 Willmann & Willmann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
In financial proceedings between Ms Willmann (“the wife”) and Mr Willmann (“the husband”), the husband seeks orders against the wife’s parents, Mr Andrews and Ms Andrews (“the respondents”).
Because these proceedings were commenced by an Initiating Application filed in the Family Court of Australia (as it then was) before 1 September 2021, I must firstly satisfy myself that I have jurisdiction. As is explained later in these reasons, I am so satisfied.
The husband, on 18 October 2021, filed a Response to the wife’s Initiating Application naming the respondents as the second and third respondents and seeking a declaration that the respondents hold a property at B Town on trust for the husband and the wife and consequential orders.
The respondents object to being joined as parties and say that the husband must file an application seeking leave that they be joined.
The husband, whilst not conceding that it is necessary, filed an Application in a Proceeding on 15 December 2021 seeking leave to join the respondents together with an affidavit setting out the evidence upon which he relies in relation to the orders he seeks against them and Points of Claim.
The respondents filed a Response to an Application in a Proceeding on 9 February 2022 but they have not filed any evidence in support of their Response.
If the respondents were effectively joined as parties by the filing of the husband’s Response to Initiating Application then it is not necessary to determine whether the husband requires leave to join them.
The husband’s case is that between 2009 and 2010 the respondents made representations to him that, if he and the wife managed, operated and maintained the B Town property the respondents would transfer the property to them. In short, the husband seeks:
·A declaration that the respondents hold the B Town property on trust for the husband and the wife.
·An order that the respondents transfer the B Town property to the husband and the wife as tenants in common in equal shares.
·A declaration that the respondents are estopped from denying that the B Town property is held on trust for the husband and the wife.
·In the alternate, a declaration that the B Town property is subject to an equitable charge in favour of the husband and the wife to the value of their contributions to it.
It is not contested that this Court has jurisdiction to hear and determine the husband’s claim against the respondents.
On behalf of the respondents it is submitted that leave should not be granted because there are “compelling reasons” not to exercise the discretion to grant leave. I will now deal with those reasons.
Firstly it is submitted that the joinder of the respondents would:
…transform the proceedings from a relatively vanilla matrimonial division of property matter into a large and complex dispute involving multiple parties and ownership of a highly valuable item of real property.
Secondly, senior counsel for the respondents submits:
…this Court is not the most suitable forum for the [h]usband’s proposed claim. If the claim is to be brought, its natural forum is the Real Property List of the Supreme Court of New South Wales. That list is well equipped to ensure that the claim would be resolved efficiently by a specialist judge regularly dealing with such claims.
(Footnote omitted)
Thirdly, it is submitted that the issue about ownership of the B Town property could be determined as a preliminary matter in the Supreme Court of New South Wales (“the Supreme Court”) without the wife’s involvement and, once that has been done, these proceedings could continue.
Where it is not in dispute that the Court has accrued jurisdiction to hear the matter, there is no discretion to decline to exercise that jurisdiction.
In Australian Securities and Investments Commission (ASIC) v Edensor Nominees Pty Ltd (2001) 204 CLR 559, Gleeson CJ, Gaudron and Gummow JJ stated:
Moreover, in Re Wakim, Gummow and Hayne JJ (with whom Gleeson CJ and Gaudron J agreed generally) expressed doubts as to what was meant by statements in some of the cases that the “accrued jurisdiction” was “discretionary” rather than “mandatory”. Ordinarily, questions of abuse of process, forum non conveniens and the like aside, jurisdiction conferred upon a court is to be exercised.
(Footnotes omitted)
That statement was cited with approval in Houghton v Arms (2006) 225 CLR 553 and in Noll & Noll and Anor (2013) FLC 93-529 the Full Court of the Family Court of Australia, referring to the authorities above, stated:
24.Thus it must be accepted that if, in the present case, the primary judge’s reasons can be read as suggesting that if the accrued jurisdiction was attracted, he would not as a matter of discretion exercise it because of considerations of time and delay, his Honour would have been in error…
In relation to the first proposition, that is not a basis upon which this Court can decline to exercise jurisdiction.
The concept of “suitable forum” is not engaged where this Court has jurisdiction.
In relation to the third proposition, it is clear that if the husband’s claim against the respondents were to be commenced in the Supreme Court, that Court would also have jurisdiction to hear and determine the family law issues and would be obliged to exercise that jurisdiction. Nothing is gained.
I turn then, to the provisions of Part 3.2 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Rule 3.03 of the Rules provides:
3.03 Adding a party
(1) A party to a proceeding may include any person as a party by:
(a) naming the person as a party in the application, response or reply; and
(b)serving on the person a copy of the application, response or reply and all other relevant documents filed in the proceeding.
(2)A party may add another party after a proceeding has started by amending the application or response to add the name of the party.
(3) A party who relies on subrule (2) must:
(a)file an affidavit setting out the facts relied on to support the addition of the new party, including a statement of the new party’s relationship (if any) to the other parties; and
(b) serve on the new party:
(i)a copy of the application, amended application, response or amended response; and
(ii) the affidavit referred to in paragraph (a); and
(iii) any other relevant document filed in the proceeding; and
(c) serve on the other parties:
(i)a copy of the application, amended application, response or amended response; and
(ii) the affidavit referred to in paragraph (a).
(4)A party may only add another party after the first court date with the leave of the court.
(5) A party who relies on subrule (4) must:
(a) file:
(i) an Application in a Proceeding; and
(ii)a affidavit setting out the facts relied on to support the addition of the proposed new party, including a statement of the proposed new party’s relationship (if any) to the other parties; and
(b) serve on the proposed new party:
(i) a copy of the Application in a Proceeding; and
(ii) the affidavit referred to in subparagraph (a)(ii); and
(iii) any other relevant document filed in the proceeding; and
(c) serve on the other parties:
(i) a copy of the Application in a Proceeding; and
(ii) the affidavit referred to in subparagraph (a)(ii).
The scheme of r 3.03 is that additional parties are joined by seeking orders against them in the Initiating Application, Response to Initiating Application or Reply.
The husband has done that which is envisaged in r 3.03(1). He has filed a Response to Initiating Application naming the respondents as parties and served a copy of the Response and the relevant documents upon them.
I am of the view that rr 3.03(2) and 3.03(4) do not qualify r 3.03(1) but rather set out the procedure to be adopted if the additional party has not been joined as provided in r 3.03(1). As with legislation, it is necessary to construe the Rules to avoid an irrational result such as that for which the respondents contend.
I am strengthened in that view by the judgment of Gaudron J in Emanuele & Anor v Australian Securities Commission and Ors (1997) 188 CLR 114 where her Honour stated, in relation to provisions for leave:
…that such provisions should not be construed as directing an inflexible approach unless it is clearly indicated. Courts are possessed of powers to be exercised in the interests of justice. And as a general rule, the interests of justice are not well served by the exercise of powers inflexibly and without regard to the convenience of the situation.
The overarching purpose of the Rules is stated in r 1.04(1) in the following terms:
The overarching purpose of these Rules, as provided by section 67 of the Federal Circuit and Family Court Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
…
Relying on the statement of Gaudron J and the overarching purpose of the Rules, I would if necessary, dispense with compliance of r 3.03(4). I do not consider it necessary here.
However, if I am mistaken in that view, I would nevertheless grant leave.
The husband has complied with the provisions of rr 3.03(2), (3) and (5). He has set out the orders he seeks, provided Points of Claim and sworn an affidavit of the evidence upon which he relies in support of that claim.
His evidence discloses an arguable claim against the respondents. Counsel for the respondents submitted that the husband’s claim is not arguable because the husband has not established any detrimental reliance on the pleaded representations and that the husband received benefits from the respondents which would balance any detriment he has suffered. As to the first, in the husband’s affidavit sworn 15 December 2021 at paragraphs 69 to 74 he deposes to the things he did in reliance on the asserted representations by the respondents.
As to the second, there is no evidence from the respondents of any benefits received by the husband.
The respondents have not established any basis upon which they should not be joined.
The respondents became parties to the proceedings when orders were sought against them by the husband in his Response to Initiating Application filed on 18 October 2021.
JURISDICTION
These proceedings were commenced in the Family Court of Australia (as it then was) and doubt has arisen, as a result of the repeal of s 31 of the Family Law Act 1975 (Cth) as to the continuing jurisdiction of Division 1 of the Federal Circuit and Family Court of Australia to hear such matters.
I have had the advantage of reading the decision of Aldridge J in Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 where his Honour stated:
It is plain that the legislature did not intend to deprive the Court of jurisdiction in matters already filed in it that had not been the subject of transfer from [the Federal Circuit and Family Court of Australia (Division 2)]. This is because the Family Court of Australia continued in operation, albeit under a new name, with the clear intention that it would continue to operate as a superior court of record. There is no provision in any of the legislation which provides for matters filed in the Family Court of Australia to be transferred to any other court. They remain in the Family Court of Australia with the obvious legislative intent that they be heard and determined by it in the exercise of the jurisdiction provided by s 31 of the [Family Law Act 1975 (Cth)].
…
In short, the legislature intended that the jurisdiction of the Family Court of Australia, by whichever name it is called, continue in respect of proceedings filed in it.
Further, his Honour stated:
It seems therefore, that to the extent necessary, words should be implied into s 25 of the [Federal Circuit and Family Court of Australia Act 2021 (Cth)] so as to make it clear that Division 1 acquired the jurisdiction in respect of matters filed in it prior to 1 September 2021, as was previously conferred by s 31 of the [Family Law Act 1975 (Cth). The same result could be achieved by reading Sch 1, Item 36 of the [Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth)], which repealed s 31 of the [Family Law Act 1975 (Cth)], as being read subject to the words, that the repeal did not apply to matters currently before the Court.
Such an approach clearly gives effect to the intention of the legislature that the jurisdiction of the Family Court of Australia was to be maintained. See the similar approach adopted by the Full Court in Wallace & Stelzer and Anor (2013) FLC 93-566 and Duarte and Anor & Morse (2019) FLC 93-902. It is worth noting that in both these matters, the High Court of Australia refused to grant special leave to appeal against the Full Court decisions.
Having satisfied myself that, for the reasons set out above, I have jurisdiction to consider the application before me, it is not necessary to consider the efficacy or validity of the use of s 52 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 8 April 2022
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