Brummell & Malone [2025] FedCFamC1F 371 (4 June 2025)

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Brummell & Malone has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons determine an application by Ms Dimova to adjourn the hearing of an Application in a Proceeding of Mr Brummell ("the de facto husband") filed on 21 May 2025 listed for hearing today.
2. To give context to the Application in a Proceeding, on 7 December 2010 the de facto husband and Ms B ("the de facto wife") entered a Pt VIIIAB financial agreement pursuant to s 90UC of the Family Law Act 1975 (Cth) ("the Act"). That document has attached to it a certificate of advice provided to the de facto wife dated 7 December 2010 and signed by her solicitor, Mr C. By way of Points of Claim filed on 14 March 2025 the de facto husband asserts that he received the requisite advice as to the entry to the agreement by Mr D and implicitly, that he received a certificate from that solicitor. He currently does not have a copy of that certificate. He is presently undertaking forensic procedures by way of the solicitor Mr D and the firm he acted for to obtain that certificate.
3. The agreement records the parties to it commenced their de facto relationship in 1985, that there are no children of the relationship, and hence the agreement was entered during the currency of the relationship. The de facto husband says that he and the de facto wife separated in 2013.
4. The terms of the agreement broadly provide for the de facto husband, within 28 days of its entry, to transfer to the de facto wife his shares in a trading enterprise referred to as E Pty Ltd ("[E Pty Ltd]"), and that he would receive monthly payments of $10,000 from E Pty Ltd until the mortgages on three real properties, being F Street, Suburb G ("the [F Street] property"), BB Street, Suburb H ("the [Suburb H] property"), and J Street, Suburb G, were discharged. Further clauses provide for E Pty Ltd to make repayments in respect of those mortgages. Other clauses provide that in the event of a sale of E Pty Ltd, the de facto husband would receive 50 per cent of the net proceeds of sale in lieu of the payment of the mortgage and monthly repayments identified.
5. The de facto husband's Points of Claim plead as to the performance of the terms of the agreement including the transfer of the de facto husband's shares in E Pty Ltd to the de facto wife and as to the payment of monthly sums of $10,000 and towards mortgages. The Suburb H property and the F Street property have been sold. The de facto husband pleads that, since October 2018, he did not receive any further payments from the de facto wife or from E Pty Ltd. He asserts that in mid-2020 the de facto wife transferred her shareholding in E Pty Ltd to her son, Mr M, for no consideration, that share transfer being registered in late 2020.
6. The de facto wife died in 2021.
7. Contested proceedings were conducted in the Supreme Court of NSW as to the last will of the late de facto wife to be the subject of a grant of probate, one will being made in 2015 and the other being made in June 2020 in Country K. Those proceedings were determined on a defended basis in that forum. A grant of probate was issued by the Supreme Court of NSW in late 2024 on the will of the late de facto wife made in June 2020. The executor is Mr Malone, the respondent for the estate in these proceedings. He is the late de facto wife's brother. He is a Country K resident. The will records:
   1. House and Land at [L Street, Suburb N, NSW], Australia, to be given to [Ms Dimova], date of birth: [...]1981, who is my daughter
   2. House and Land at [O Street, Region P, NSW], Australia, to be given to [Ms Dimova, date of birth: [...]1981, who is my daughter
   3. Right(s), position(s), and all ordinary shares in relation to the company [Q PTY LTD] (ACN: [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   4. Right(s), position(s), and all ordinary shares in relation to the company [E PTY LTD] (ABN: [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   5. Right(s), position(s), and all ordinary shares in relation to the company [S PTY LTD] (ABN: [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   6. Right(s), position(s), and all ordinary shares in relation to the company [T PTY LTD] (ABN: [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   7. Right(s), position(s), and all ordinary shares in relation to the company [U PTY LTD] (ABN: [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   8. Right(s), position(s), and all ordinary shares in relation to the company [V PTY LTD] (ABN: [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   9. Right(s), position(s), and all ordinary shares in relation to the company [W PTY LTD] (ABN [...]), to be given to [Mr M], date of birth: [...]1980, who is my son
   10. Land, with [Document] Title Deed No. [...], Land [X Property], total land area: [...]* to be given to [Mr M], date of birth: [...]1980, who is my son
   11. Land, with [Document] Title Deed No. [...], Land [Y Property], total land area: [...]*, to be given to [Mr M], date of birth: [...]1980, who is my son
   12. Land with [Document] for Land with [Z Property], total land area: [...]*, to be given to [Mr M], date of birth: [...]1980, who is my son
   13. Land with [Document] for Land with [AA Property], total land area: [...]*, to be given to [Mr M], date of birth: [...]1980, who is my son
   14. Other assets, if any, to be given to [Mr M], date of birth: [...]1980, who is my son
8. It is uncontroversial that by way of the will forming the terms of the grant of probate, Ms Dimova, the de facto wife's daughter, receives in specie real properties at Suburb N and Region P, and Mr M, the de facto wife's son, receives the balance of the estate including any residue.
9. By way of Clause 4.1, the contended s 90UC agreement identifies that it is binding on the heirs, executors, administrators, and assigns of each of the de facto husband and the de facto wife.
10. It is against that background that on 30 September 2024 the de facto husband filed an Initiating Application in the Federal Circuit and Family Court of Australia (Division 2) seeking enforcement of the contended s 90UC agreement against the legal personal representative of the estate of the deceased de facto wife. On 3 February 2025 the de facto husband filed and Amended Initiating Application seeking additional declarations that the agreement is binding pursuant to s 90UJ(1B) and s 90UK of the Act.
11. On 13 January 2025 the executor of the late de facto wife's estate filed a Response to the Initiating Application of the de facto husband and Response to the Points of Claim filed by the de facto husband, on 16 April 2025. In short compass, the estate puts into the fact and enforceability of the agreement and in the alternative seeks the agreement, or specific clauses of the agreement, to be set aside pursuant to ss 90UM(1)(e) or (f) of the Act, and in a further alternative seeks declaratory relief as to the proper construction of the agreement.
12. On 6 November 2024 Ms Dimova filed a Notice of Intervention by Person Entitled to Intervene in these proceedings. No formal order for intervention was sought or made.
13. Remarkably, the conduct of the proceedings in Division 2 appears to record that Ms Dimova has intervened in the proceeding.
14. It is challenging to decipher how Ms Dimova has an entitlement by way of r 3.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") to intervene in the proceedings as of right, being a person who is "entitled under the Family Law Act to intervene in the proceeding without the court's permission".
15. Upon a review of the file on transfer to this Court, orders and notations were made in chambers on 30 May 2025 as follows:

THE COURT NOTES THAT:

1. The conduct of the proceeding in Division 2 prior to transfer to Division 1 of the Federal Circuit and Family Court of Australia records:
   1. [Ms Dimova] as being a daughter of the deceased de facto wife, [Ms B] (also known as [...]) ("[...]") who passed away [in] 2021; and

b. [Ms Dimova] as being a party to the proceedings.

1. On 6 November 2024, [Ms Dimova] filed a Notice of Intervention by Person Entitled to Intervene pursuant to r 3.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"). The affidavit in support of the notice does not appear to identify an entitlement of [Ms Dimova] to intervene in the proceeding other than by way of adopting r 3.07 of the Rules to intervene in the proceedings.

2. The applicant de facto husband by way of an Application in a Proceeding filed on 20 May 2025 seeks dismissal of the Notice of Intervention by Person Entitled to Intervene of [Ms Dimova] filed on 6 November 2024.

3. A grant of probate of the will of the late de facto wife, [Ms B], was made to the respondent, [Mr Malone], being the brother of [Ms B] [in late] 2024.

4. Pursuant to orders made by a senior judicial registrar on 4 March 2025 the applicant de facto husband filed points of claim on 14 March 2025 and the respondent filed a response to those points of claim on 16 April 2025.

5. The proceedings were transferred to this Court by way of an order made on 21 May 2025.

THE COURT ORDERS THAT:

1. The proceedings are listed for hearing to determine the Notice of Intervention by Person Entitled to Intervene of [Ms Dimova] and the Application in a Proceeding of the de facto husband filed on 20 May 2025 and otherwise for case management before Justice Campton by Webex at 11.30 am on 4 June 2025.

(Emphasis removed)

1. By way of exchange, during the listing today, the parties have been referred to:

(a) Section 92 of the Act, which provides a wide power to the Court to permit a person to intervene in proceedings. That said, the section also enables the Court to limit the extent of the intervention and the rights, duties, and obligations which flow from such intervention by the imposition of conditions, no doubt taking into account the effect of such intervention on the rights, duties, and obligations of the existing parties in the proceedings.

In this matter, those considerations are directed to the executor of the late de facto wife's estate. The executor has indicated that he does not wish to be heard on any issue as to the intervention of Ms Dimova in the proceedings. He says that, on that subject matter, he is "in the hands of the Court". The fiduciary obligations of the executor in protecting and promoting the interests of the estate are self-evident, as are the benefits by way of the grant of probate from the estate flowing to Ms Dimova. I encounter challenges, at this point, in identifying the position taken by the estate to Ms Dimova's participation in the proceedings as a party. Implicitly, does the executor concede he cannot discharge his function?

(b) Rule 3.01 of the Rules, which provides a double threshold for a person to be included as a necessary party to the proceedings, being:

(i) That their rights may be directly affected by an issue in the proceedings; and importantly also

(ii) Their participation as a party is necessary for the court to determine all issues in dispute in the proceeding.

At this point, I again encounter challenges in the capacity of Ms Dimova to achieve the thresholds identified in r 3.01.

1. It is against that background that Ms Dimova seeks an adjournment of the hearing of the Application in a Proceeding of the de facto husband listed today. She identifies that:

(a) Orders made by a judicial registrar on 21 May 2024, at the time of the transfer, required her to file any Response to the Application in a Proceeding on or before 18 June 2025 and affidavit material in support thereof; and

(b) Notwithstanding the publication of the orders on 30 May 2025 on the court portal, she only became aware of today's listing yesterday evening.

1. The adjournment application is opposed by the de facto husband. He submits the adjournment is futile because Ms Dimova has no right of intervention by r 3.07. Implicitly, he submits that any relief for joinder ought to be made by way of an Application in a Proceeding pursuant to r 3.03 supported by an affidavit. He submits that any adjournment, having regard to the futility of her current position, will simply produce additional costs.
2. Weighing up all the above matters, I am of the view that the interests of justice are served by way of granting the application for adjournment by Ms Dimova, to file the material she wishes to adduce, on condition. The listing today has been a waste of resources. Hearing dates cannot be allocated. The litigation cannot progress. The adjournment may waste further costs.
3. The legal representative appearing for Ms Dimova today has indicated that a listing after 25 June 2025 is requested in circumstances where the solicitor with the primary carriage of the matter in the firm instructed by Ms Dimova returns from leave after that date.
4. Additionally, by way of exchange in the hearing today, it appears the de facto husband may elect to undertake further forensic processes in anticipation of the hearing of a separate issue at trial as to the enforceability of the financial agreement. He ought to have the opportunity to progress those further enquiries.
5. For all the above reasons, I make the orders as set out herein.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.