· 2022-12-15T07:10:10+0000 · 664 posts

De Facto Wife Seeks Joinder and Injunction

Hien & Waldron (No 2) [2022] FedCFamC2F 1588 (18 November 2022)

The parties are in a de facto relationship. The applicant de facto wife seeks to join the company to the present proceedings as well as an injunction of the sale of the parties' property without consent. The Court, in adjudicating this dispute, assessed the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Facts

The applicant de facto wife seeks orders, amongst other things, to join the company C Street, Suburb D Pty Ltd (“the company”) to the present proceedings pursuant to Rule 3.03 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (“the Rules”) and that the property at C Street, Suburb D in the State of South Australia not be sold without the written consent of the parties to the proceedings or an order of the Court.

Other orders were sought of a procedural nature which were dealt with by orders made by this Court from time to time before the matter came before the Court for argument on 12 October 2022. An affidavit in support of the Application in a Proceeding of the Applicant de facto wife affirmed 19 July 2022 and sealed on that date was filed in support of the application. The property at C Street, Suburb D in the State of South Australia is registered in the sole name of the company.

The sole director and secretary of the company is a Mr B Waldron who is the father of the respondent de facto husband in the substantive parenting and financial proceedings pending in this Court. The shareholder of the company is a company known as E Pty Ltd of which the only directors are the de facto husband's parents Ms Waldron and Mr B Waldron. The only shareholders of E Pty Ltd are the de facto husband's parents. It is the de facto wife's Amended Initiating Application with respect to the question of property settlement and the Financial Statement and affidavit filed in support of that Amended Initiating Application that gives context to the present Application in a Proceeding.

That Amended Initiating Application sought final orders pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act). The applicant de facto wife sought by way of an interlocutory order an order that the property situated at C Street, Suburb D, SA ("the former matrimonial home") as well as the items of personal property, furniture, furnishings and effects contained in the said property as well as any motor vehicles held in the name of the parties or on behalf of the parties shall be valued by agreement or failing agreement on or before 31 August 2022 by certain nominated valuers.

In the de facto wife's Financial Statement, sworn and affirmed 8 June 2022 filed in support of the Amended Initiating Application seeking orders for property settlement, at Part I identified (at paragraph 36) as part of the property owned by the de facto wife deponent the property at C Street, Suburb D, South Australia with the registered owner identified as C Street, Suburb D Pty Ltd and claiming a 50% share "on trust" with an estimated value of that half share of $650,000 whilst at the same time identifying elsewhere in the Financial Statement at paragraph 47 borrowings by the company of $490,000. For the purposes of the present application the Court dispenses with the requirements of the Rules so as to permit the applicant de facto wife to rely upon those affidavits and in particular the affidavit of 9 June 2022 as that affidavit is necessary to provide context for the present Application in a Proceeding.

The proceedings commenced as to parenting and property settlement have been consolidated pursuant to the orders of 4 August 2022.

In respect of that consolidation the applicant de facto wife has been deemed to be the applicant, the respondent de facto husband has been deemed to be the first respondent and the respondent de facto husband's parents and each of them have been jointly nominated as the second respondents and the Independent Children's Lawyer has been jointly nominated by the Court as the other party.

On 4 August 2022 the Court made certain holding orders pending judgment and the making of orders in relation to the Application in a Proceeding of 21 July 2022 against the company precluding that company from selling or refinancing or further encumbering the C Street, Suburb D property without the consent of the de facto wife and the de facto husband or order of the Court having been first had and obtained with liberty to the company to apply on short notice and otherwise setting down the Application in a Proceeding for argument on 12 October 2022. The Court directed the de facto wife file serve a copy of her Amended Initiating Application of 9 June 2022 (introducing into the proceedings the question of property settlement) and her affidavit in support thereof upon the solicitors for the company and directing that within 21 days the company do file a and serve a Response to the Application in a Proceeding.

It was said on behalf of the respondents that a failure by the de facto wife to both nominate a correct section of the Act and, more particularly, to name the company as a respondent to the de facto wife's Amended Initiating Application for property settlement and to seek orders specifically in relation to the property at C Street, Suburb D was fatal to the application for interim injunctive relief as against the company. The injunctive relief sought by the de facto wife's Application in a Proceeding was that the property at C Street, Suburb D not be sold without the written consent of the parties or order of the Court.

Issue

Whether or not the application should be granted.

Applicable law

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) - provides that a person whose rights may be directly affected by an issue in the proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.

Blueseas Investments Pty Ltd v Mitchell and McGillivray (1999) FLC 92–856 - provides that the provision of an undertaking as to damages or at least an undertaking that can be regarded as practicably enforceable is only a matter to be brought to account in assessing the question of the balance of convenience with respect to the granting of an interim injunction.

Waugh and Waugh (2000) FLC 93–052 - provides that in undertaking the exercise of determining whether there is a serious question to be tried it must be recognised that a distinction is to be drawn between the seeking of injunctions to restrain the dissipation of assets to which recourse might be had to enforce a judgment to be obtained and the preservation of property for the purpose of property settlement proceedings under the Act to prevent the dissipation of assets in which an "essential connection" exists between the property and the substantive proceedings.

Yunghanns & Ors v Yunghanns & Ors [1999] FamCA 64; (1999) FLC 92-836 - provides that this Court in exercising its power under the Act can grant an interlocutory injunction for the purposes of preserving assets pending determination of an application for property settlement by enjoining a person from disposing of or of encumbering an asset.

Analysis

This Court is not a court of pleading but a court by which proceedings are prosecuted by way of application and affidavit at least until, generally speaking, matters reach trial.

In that context the Court entertained the submissions and the application in this matter on the basis that each of the parties who made submissions should have reasonably understood that the application was for a property settlement being pursued on behalf of the de facto wife pursuant to Part VIIIAB of the Act given the content of affidavit material filed.

The claimed inability on behalf of the applicant de facto wife to plead particular relief was asserted to arise as the result of the failure for disclosure to have been provided on behalf of the de facto husband, his parents and the company. The claim that the alleged lack of disclosure on behalf of the de facto husband's parents and/or the company precluding the de facto wife's articulating or particularising claims is tantamount to saying that a claim cannot be made because it is not known without disclosure.

If that were so, it would be an admission that the claim could not have been made or is otherwise brought as unknown. Rather, the better understanding of such a claim of non-disclosure is that the claim is, in fact, known (and can therefore be articulated) but that the evidence by which such a claim might be established to the satisfaction of the Court is yet to be marshalled by the claimant.

Disclosure is not needed for compliance with such orders. The affidavit material filed makes plain there exists disputed issues of fact between the de facto wife and the de facto husband's parents and the company as to the equitable ownership of the property at C Street, Suburb D and with respect to alleged loans between the de facto husband's parents and one or both of the parties to the de facto relationship.

Although financial relief is claimed in affidavits, it is not sought directly by way of application as against the de facto husband's parents or the company/their property. This appears to the Court to be a failure on behalf of the applicant de facto wife to comply with the Rules. However, the de facto husband's parents, the company and the de facto husband remain on notice of the de facto wife's claims against the company property and in respect of certain alleged loans through the service of the Amended Initiating Application and the documents filed in support of that application and the various affidavits filed in support of the Application in a Proceeding.

Conclusion

The company C Street, Suburb D Pty Ltd should be joined as a party to these proceedings as third respondent. The company C Street, Suburb D Pty Ltd is restrained and an injunction is granted restraining that company from selling, encumbering or disposing of its interest in the property known as and situate at C Street, Suburb D in the State of South Australia being the whole of the land comprised and described in Certificate of Title ... save and except: (a) for the purposes of refinancing any existing liability secured by way of mortgage over the said property upon such terms that do not increase the liability as at the date of this order that is so secured; or (b) without the written consent of the applicant de facto wife first had and obtained; or (c) without order of this Honourable Court first had and obtained.

#Property