Wife Seeks Joinder of Husband's Brother in Property Dispute
Genesalio & Genesalio [2023] FedCFamC1F 160
and Appeal
Genesalio & Genesalio [2023] FedCFamC1A 109
Intro
In the Genesalio case, the wife has filed an application to join her husband's brother as a second respondent in the ongoing property dispute. The wife claims that the husband and his brother have conducted businesses and investments through a partnership, and thus, the husband has an interest in assets acquired by the partnership or held by his brother. The court must determine whether the brother's rights may be directly affected by the proceedings and if his participation is necessary to resolve all issues in dispute.
Facts
In the Genesalio case, the facts considered include:
1. The husband and Mr. M Genesalio have agreed to conduct businesses and make investments by way of a partnership since around mid, referred to as the Genesalio Partnership Agreement.
2. The wife contends that the husband has an interest in or entitlement to the assets acquired by that partnership and otherwise held by his brother or entities associated with him.
3. The wife's February affidavit includes the husband's representations to her about the existence of a partnership between him and Mr. M Genesalio, maintenance of various properties, purchase of the matrimonial home with her and G Street with Mr. M Genesalio, development of properties owned by E Pty Ltd in D Street, his ability to use various properties as security for the matrimonial home, and his dealings with third parties including the V Company and the wife's brothers in relation to D Street suburb C.
4. Affidavits of Mr. U and Mr. T dated February and March respectively also provide relevant information about the case.
5. The dealings between the husband and Mr. M Genesalio, whereby shares in various companies are involved.
These facts are part of the basis for determining whether the husband's brother should be joined to the proceedings and if there is an equitable interest in third-party property involved.
IRAC Analysis
Issue: The main issue in the Genesalio case is whether the husband's brother should be joined as a party to the proceedings concerning the division of property between the husband and wife, given that they allegedly conducted businesses and made investments through a partnership.
Rule: The relevant rules governing this case are Section 90B of the Family Law Act (Cth) and Rule 6.03 of the Federal Circuit and Family Court of Australia Family Law Rules (Cth). Section 90B states that any other person whose interests would be affected by the making of an order sought by the parties is entitled to be joined as a party to the proceeding. Rule 6.03 prescribes the procedure for joining a party to proceedings when their rights may be directly affected by an issue in a proceeding and their participation as a party is necessary for the court to determine all issues in dispute in the proceeding.
Application: In this case, the wife contends that since around mid, there was an agreement between the husband and his brother to conduct businesses and make investments via a partnership (the Genesalio Partnership). The wife asserts that assets acquired by this partnership or held by entities associated with it should be considered part of the property division in their divorce proceedings.
The court must decide whether joining the husband's brother as a party to these proceedings is necessary for determining all issues in dispute. Based on Rule 6.03, two factors need consideration: (a) are his rights directly affected by an issue in the proceeding, and (b) is his participation necessary for determining all matters in dispute?
If it can be established that there was indeed a partnership between the husband and his brother, and that assets acquired or held by it should be included in property division, then it may be argued that joining him as a party is necessary. The wife has provided evidence through her own affidavit, affidavits from other witnesses, and dealings between the husband and his brother to support her claim of the existence of this partnership.
Conclusion: The court needs to assess the evidence presented by the wife and determine whether it sufficiently establishes the existence of the Genesalio Partnership and its relevance to the property division in question. If it does, then the husband's brother's rights may be directly affected, and his participation as a party could be considered necessary for resolving all issues in dispute.
The Husband Appealed the decision
The court dismissed an appeal seeking review of the decision regarding joinder in a family law case. The appellant contested being joined as a party in proceedings between spouses. The court rules that the proposed appeal has no reasonable prospects of success. The jurisdictional error claim is rejected as no jurisdictional fact needed to be established for the interlocutory decision. The court also states that substantial injustice isn't proven, and the application for leave to appeal is summarily dismissed. The appellant is ordered to pay the respondent's costs. #FamilyLaw #AppealDismissed
Parties Details
Counsel for the Applicant:
Mr Dinelli SC & Ms Frederico
Solicitor for the Applicant:
Mazzeo Lawyers
Counsel for the First Respondent:
Ms Vohra SC
Solicitor for the First Respondent:
Matthew Oldham Barrister & Solicitor
Proposed Second Respondent:
In Person (Self-Represented Litigant)
Counsel for the Proposed Third Respondent:
Ms Dwyer
Solicitor for the Proposed Third Respondent:
Franzese & Associates Lawyers & Consultants