Eccheli & Eccheli (No 11) [2025] FedCFamC1F 671 (24 September 2025)

Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56

Wayne v Dillon (2008) 40 Fam LR 543; [2008] FamCAFC 204

Ms Cantrall on 15 September, Mr Dura SC on 18 September

Counsel for the Third and Fourth Putative Respondents:

Mr Foley on 15 September, no appearance required on 18 September

Solicitor for the Third and Fourth Putative Respondents:

Rockliffs Lawyers on 15 September, no appearance required on 18 September

No appearance on 15 September, no appearance required on 18 September

Mr Tyson on 15 September, no appearance required on 18 September

Cara Marasco & Company Solicitors on 15 September, no appearance required on 18 September

Mr Fabian, Fabian Strategic Legal on 15 September, no appearance required on 18 September

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

MR MARCELINO (and another named in the Schedule)

1. Orders and notations are made in accordance with paragraphs A and 1 to 4 of a document titled "Consent Orders" filed 15 September 2025 (marked as Exhibit A) as set out hereunder:

1. For the purposes of these Orders, the "entities" are defined as:
   1. AL Pty Ltd;
   2. AM Pty Ltd;

1. In accordance section 114Q of the Family Law Act 1975 (Cth) and in light of the Harman Obligation, if any such obligation arises in these circumstances, that the Wife be granted leave to provide the following material to the legal representatives acting on behalf of the above-mentioned entities.
2. That within the 2 business days from the date of these Orders, the Wife provide the following documents to the above-mentioned entities:

2.1 The Husband's Application in a Proceeding filed 20 June 2025;

2.2 The Husband's supporting Affidavit filed 20 June 2025;

2.3 The Husband's Amended Application in a Proceeding filed 25 June 2025;

2.4 Husband's Financial Statement filed 9 September 2025;

2.5 The Wife's Response to an Application in a Proceeding filed 1 August 2025;

2.6 The Wife's supporting Affidavit filed 1 August 2025;

2.7 The Wife's Case Outline document filed 12 September 2025;

1. In the event that further material is filed by either party relevant to the Wife's Response to an Application in a Proceeding filed 1 August 2025, that the Wife be granted leave to provide those documents to the entities.
2. That within 28 days of receipt of the above-mentioned documents, pursuant to Order 2, the entities, provide to each party, a proposed Minute of Order to the relief sought by the Wife."
3. I list this matter for mention before me in relation to the matters the subject of Exhibit A at 9.30 am on 20 October 2025 by way of Webex.
4. I reserve all parties' costs in relation to the question of orders being sought against AL Pty Ltd and AM Pty Ltd.
5. Leave is granted to the husband to make an oral application for an adjournment.
6. The husband's application for an adjournment is refused.

AND THE COURT NOTES THAT reasons will be delivered in due course.

1. Orders are made in accordance with paragraphs 5, 6 and 7 contained in the wife's Response to an Application in a Proceeding sealed 1 August 2025 as set out hereunder:

1. Pursuant to Rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Mr Marcelino be joined as Third Respondent in these proceedings.
2. Pursuant to Rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), AK Pty Ltd (ACN [...]) be joined as Fourth Respondent in these Proceedings.
3. Pursuant to Rule 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Mr Earls be joined as Fifth Respondent in these Proceedings."

AND THE COURT NOTES THAT reasons will be delivered in due course.

1. The court notes the undertaking given by Ms Burrows that she will not deal with the funds in her trust account pending the determination of this application.
2. Orders are made in accordance with paragraphs 1 to 4 of the wife's Response to an Application in a Proceeding sealed on 1 August 2025 as set out hereunder:

1. That upon the making of these Orders, the Wife be permitted to utilise the funds currently held on her behalf by the Wife's Solicitor in a controlled monies account, in payment of the mortgage payment arrears, late payment fees and dishonored payment fees owing on the Suburb E property home loan including any penalties and late payment fees, to CC Pty Ltd.
2. Other sums as and when they fall due, to CC Pty Ltd, in payment of the monthly Suburb E property mortgage.
3. Other sums as and when they fall due, in payment of the Suburb E property outgoings.
4. It be declared that all payments made in accordance with Orders 1, 2 and 3 are owed to the Wife by the Husband and/or AA Pty Ltd as Principal Borrower, for consideration on a final basis and the Husband, in his capacity as director of AA Pty Ltd shall provide all necessary instructions to the Accountant of AA Pty Ltd to record any funds paid by the Wife in accordance with Orders 1 and/or 2 as a loan owing by AA Pty Ltd to the Wife in the financial statements of AA Pty Ltd."
5. The husband is to do all acts and things and sign all documents necessary to cause his solicitors to pay from the funds held in their trust account on his behalf the sum of $20,000 to the wife in satisfaction of order 4 made 4 April 2025.
6. Upon the husband undertaking given to the court through his solicitor the husband is injuncted from dealing in any way with up to $600,000 of the funds held in his solicitors trust account.
7. The husband is file and serve any further documents on which he intends to rely in relation to proposed Order 3 set out in the wife's Case Outline sealed 12 September 2024, such documents to be filed by 4.00 pm on Wednesday, 17 September 2025.
8. I list the matter for hearing before me in relation to order 3 at 9.30 am on Thursday, 18 September 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 Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

THE COURT NOTES THAT Mr Christianson, solicitor, is excused from further attendance today.

1. With the husband's consent, an order is made that the husband is restrained from providing any instructions to AN Lawyers in relation to funds held by that firm totalling $1,962,628.
2. By 1.00 pm today, the husband is to do all acts and things and sign all documents necessary to cause the sum of $605,000 to be paid from the trust account of his solicitors Zali Burrows at Law, such sum to be paid to AO Bank account, controlled monies account BSB [...], account number [...54].
3. Otherwise all extant applications are dismissed with the exception of those that are coming back before the court on 20 October 2025.

AND THE COURT NOTES THAT reasons will be delivered in due course.

[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 Eccheli & Eccheli has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).]

1. On 15 and 18 September 2025, the Court was yet again invited by the parties to make further interlocutory orders in this long-standing financial saga. In that respect, on 4 July 2025, the Court made orders listing the then outstanding interlocutory applications for hearing on 15 September 2025 and made directions for the parties to file their evidence. As it was, and as is the pattern with orders made in this matter, not all of the orders were complied with.
2. At the hearing on 15 September 2025, the wife sought a suite of orders set out in her Response to an Application in a Proceeding filed 1 August 2025 as well as four additional orders set out in her Case Outline filed 12 September 2025. In broad terms, the relief in the Response sought the application of the proceeds of sale of a property in payment of the mortgage over a property in Suburb E (Orders 1 to 4), the joinder of parties to the proceedings (Orders 5 to 7) and the appointment of trustees for the sale of various properties (Orders 8 to 17). The orders in the Case Outline sought to enforce orders previously made (Orders 1 and 2) and sought the husband make payments to a controlled monies account totalling approximately $4.1 million and with the parties thereafter restrained from accessing the account (Orders 3 and 4).
3. Agreement was ultimately reached with representatives of the various parties affected by the orders sought for the appointment of Trustees and orders were made by consent which adjourned Orders 8 to 17 of the wife's Response to 20 October 2025.
4. In relation to the application for joinder, counsel appeared for two of the proposed joinder parties affected by Orders 5 and 6 in the wife's Response indicating they did not oppose joinder.
5. The husband's solicitor advised the Court that all of the orders sought by the wife were opposed, notwithstanding the position advanced by two of the proposed joinder parties. The husband despite earlier seeking relief contained in an Amended Application in a Proceeding filed 25 June 2025, sought an adjournment based on his asserted ill health and, inconsistently with that order, also sought an order that the funds the wife sought to access by Orders 1 to 4 of her Response be applied in reduction of a debt to AP Bank in relation to the JJ Property (Exhibit B).
6. Following the hearing of submissions as to the adjournment application, the adjournment was refused. The Court thereafter heard submissions as to joinder, joined the putative respondents, and then heard submissions as to the balance of the relief. Notwithstanding the husband's initial opposition to all of the relief sought by the wife, by the time it came to submissions, the husband through his solicitor conceded that an order should be made in the terms of the first order sought by the wife in her Case Outline, such order to be met from funds held in trust by his solicitor. Counsel for the wife conceded that Order 2 in the wife's Case Outline was in essence the same as Orders 1 to 4 in the Response and if made amounted to making the same order twice. Consequently, Order 2 in the Case Outline was not pressed.
7. Following submissions, the Court proceeded to make Orders 1 to 4 as sought in the Response which also by necessary consequence compromised the relief the husband sought in Exhibit B and adjourned for determination Orders 3 and 4 to 18 September 2025 in circumstances where the husband's solicitor contended she could not meet the relief sought, notwithstanding the husband having addressed extensively the contentions in his affidavit already filed that morning.
8. The husband filed further affidavits in opposition to the wife's relief on 17 September 2025.
9. On 18 September 2025, senior counsel for the wife indicated that the wife only sought that the funds held in the husband's family law solicitor's trust account be paid into a controlled monies account to meet the payments in relation to the Suburb E mortgage. During the course of submissions, it became apparent that there were other funds held by other solicitors in their trust account totalling in excess of $1.8 million. An oral application was made restraining the husband from dealing with those funds. The husband opposed the order dealing with the funds in his family law solicitor's trust account but consented to an injunction dealing with the funds in the other solicitor's trust account.
10. Orders were made that the husband pay $605,000 from the funds held in his family law solicitor's trust account into a controlled monies account and orders were also made with the husband's consent injuncting him from dealing with the funds held in the other solicitor's trust account.
11. The Court indicated that reasons for the making of the above orders would be delivered in due course.
12. These are those reasons.

1. The husband's application for an adjournment of the proceedings was based upon matters set out his affidavit sworn 15 September 2025 and a medical certificate from a Dr AQ.
2. The husband's affidavit contended that he was unwell and in such pain that he could not attend court, was unable to be observe the proceedings, but was apparently well enough to be available to provide instructions. He also sought an adjournment contending that persons sought to be affected by the orders wished to be heard, an assertion of non-disclosure by the wife, and the late notice of the orders sought by the wife in her Case Outline.
3. The parties affected by the appointment of a trustee appeared at the hearing on 15 September 2025, as did two of the parties sought to be joined. As such, an adjournment was unnecessary to provide them an opportunity to be heard. The issue of non-disclosure did not provide a platform for an adjournment in circumstances where the husband had notice of the listing of the proceedings on 4 July 2025 and the hearing was initially listed as a consequence of the filing of his Application in a Proceeding on 25 June 2025. Any late service of a subpoena was entirely a function of a lack of diligence on his part and did not prevent his solicitor making submissions.
4. In Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Barrett J observed at [22] to [23] as follows:

All too frequently judges see cryptic written statements from medical practitioners referring to some undisclosed and undiagnosed "medical condition", culminating in the assertion that a person is unfit to attend court or unfit for a court hearing. To the extent that such statements are put forward as evidence about the state of the person's health and the extent to which impaired health may incapacitate a person from participating in court proceedings, the statements fail the most fundamental test for the reception of expert evidence. Bald unexplained and unfathomable statements of that kind must be simply rejected out of hand as evidence of anything.

Doctors probably do not realise that they are engaging in an exercise in futility when they issue such certificates and expect courts to treat them as evidence if, indeed, that is what the doctors do expect. These are matters about which professional organisations within the medical profession really ought to consider informing their members.

1. His Honour's observations are apposite to aspects of the application by the husband.
2. The medical certificate relied upon by the husband, whilst slightly less opaque than that referred to by his Honour supra, is unpersuasive in establishing that the husband is so unwell that the proceedings need to be adjourned. The medical certificate was in the following terms:

This is to certify that [Mr Eccheli],

Will be unable to attend work/study from 12 September 2025 to 26 September 2025 because of a medical condition, Renal Stones with pain and severe acute anxiety and depression.

1. I reach that conclusion for the following reasons:

(1) The husband's assertions of ill health such that he cannot attend court and needs an adjournment is remarkable in circumstances where he was able to provide instructions to his solicitor to prepare an affidavit sworn on the morning of the hearing comprising some 98 pages of evidence and documents by way of annexures. The various paragraphs of the affidavit of the husband responded to the Case Outline of the wife which was only sealed on 12 September 2025. His ill health was not such as to prevent him undertaking that task.

(2) The medical certificate does not say the husband is unable to attend court because of his medical condition; it merely says he is only unable to attend "work/study".

(3) Despite the husband saying he takes medication for kidney stones and depression, the doctor makes no reference to any such medication being prescribed.

(4) The medical certificate does not disclose the basis upon which the medical practitioner concluded the husband was unable to attend "work/study" or whether the medical practitioner has even examined the husband.

(5) The medical certificate is not annexed to an affidavit sworn by the medical practitioner.

(6) The medical certificate does not comply with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules") for the adducing of expert evidence.

1. I am satisfied that the husband advanced no proper basis for adjournment of these proceedings and that no adjournment should be granted. Further, the disposition of cases without undue delay and the efficient of public resources such as courts are considerations which apply in the determination as to whether or not a court should grant an adjournment (Aon Risk Services Australia Ltd v ANU [2009] HCA 27; (2009) 239 CLR 175). The time has long passed where parties can merely turn up and expect a court to grant an adjournment based on flimsy evidence.
2. I further observe that despite the husband's assertions as to ill health in an affidavit sworn 15 September 2025, he was able to swear another affidavit on 17 September 2025 and appear before the Court on 18 September 2025.

1. The wife seeks the joinder of three parties as the third, fourth, and fifth respondents in the proceedings. The legal representative for the third and fourth respondents conceded that joinder was proper.
2. The husband opposed the application for joinder. The sole reasons advanced by the husband's solicitor opposing joinder was that the wife's relief against the parties was based on s 106B(1A) of the Family Law Act 1975 (Cth) ("the Act") and in circumstances where the husband was not bankrupt there was no basis for the relief and thus joinder was unnecessary. The submission is bereft of merit and entirely misconceives the basis of the wife's relief, which is not predicated on s 106B(1A) of the Act, but rather on s 106B of the Act, and names the proposed joinder parties in her Amended Response.
3. Section 79AA(10)(b) of the outlines that any other person whose interests would be affected by the making of the order is entitled to be joined to the proceedings. The Act reflects what McHugh J observed in Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 that_:_
   1. The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. ...

A person whose rights may be directly affected by an issue in a 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.

1. Rule 3.03(4) provides that a party who seeks to join a third party to the proceedings after the first court date must seek leave to do so.
2. In Wayne v Dillon [2008] FamCAFC 204; (2008) 40 Fam LR 543, Warnick J observed in respect of the superseded Family Law Rules 2004 (Cth) that "necessary" meant:
   1. ... something more than "useful" or "expeditious". In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified "case", joinder is unlikely to be "necessary".
   2. However, if a cause of action, recognisable at law, against a "third person" is particularised, then it is at least highly likely that joinder will be "necessary for the court to completely and finally determine all matters in dispute". ...
3. I am satisfied, given the relief sought by the wife, the evidence, and the consent to joinder by two of the proposed parties that it was necessary that the three proposed respondents be joined to the proceedings.

ORDERS 1 TO 4 OF THE WIFE'S RESPONSE AND ORDERS SOUGHT BY HUSBAND IN EXHIBIT B

1. Order 2 of orders made on 12 April 2024 required the husband to pay by way of spousal maintenance the monthly repayments of principal and interest over the former matrimonial home at Suburb E.
2. On 8 May 2025, Campton J heard an application by the husband to discharge Order 2. His Honour dismissed the husband's application and determined that the arrears of spousal maintenance pursuant to the order as at the date of judgment on 16 May 2025 stood at $285,540.
3. The husband was in arrears under the terms of the original order and has also failed to comply with the order to pay the arrears quantified by Campton J. In the course of his solicitor's submissions, I was not taken to any change of circumstances that has arisen since 16 May 2025.
4. I am satisfied that the husband's affidavits discloses that the husband has sought to preference payments to other persons contrary to his obligations to comply with an order of this court. I am satisfied that without the Court's further intervention he would not willingly comply with the Court's orders.
5. I am satisfied that there are funds available to meet the order the wife seeks. The evidence before the Court establishes that the mortgagee has commenced legal proceedings to sell the Suburb E property given the husband's default. This litigation is entirely a consequence of the husband's deliberate failure to comply with orders of this court. It is a circumstance entirely orchestrated by his default.
6. The proceeds of sale of a property in Queensland are available to meet the indebtedness. The husband's solicitor submits from the bar table, in the absence of any admissible evidence, that the mortgagee will not refrain from proceeding with the sale, notwithstanding that there are funds available to meet the arrears. In the absence of admissible evidence, I am satisfied that any steps that can be taken to preserve this asset as a consequence of the husband's deliberate default should be taken.
7. The husband's contention that funds can be better applied to the reduction of other debt is specious. The husband has failed in his duty of disclosure as canvassed extensively in the judgment of Campton J delivered 16 May 2025 and recorded as Eccheli & Eccheli (No 7) [2025] FedCFamC1F 333. I am not satisfied that the husband's financial position is as dire as he presents. The husband should be purging his default, not exacerbating it. His deliberate continuing default and contumelious conduct should not be permitted to continue. There are funds available that can meet the husband's compliance with the orders which has the added advantage of reducing the parties' overall indebtedness.
8. I further note the consent orders made by the Court on 4 April 2024 contained a notation that it was the agreed position of the parties that a property in Queensland would be sold and the proceeds applied in reduction of the mortgage over the Suburb E property. It is the proceeds of sale of that property which the wife seeks to use to pay the arrears of mortgage. In that sense, the wife is doing no more than ensuring there is compliance with the Court's orders and giving effect to the party's agreement.
9. For the above reasons, I decline to make the orders sought by the husband in Exhibit B.

1. There are funds held in the husband's solicitors trust account in excess of $605,000. The circumstances in which the funds come to be in the husband's solicitors trust account are set out in paragraphs 26 to 32 of the husband's affidavit sworn 15 September 2025.
2. On 16 May 2025, Campton J made orders restraining the husband from dealing with the proceeds of sale of a property at Town S. By the terms of Order 3 made that day, the proceeds of sale of that property after various payments were to be deposited into an interest-bearing deposit account in the name of the vendor and the husband was restrained from doing any act or thing to deal with those monies other than with the agreement in writing of the wife.
3. Settlement of the sale occurred in August 2025. Annexed to the husband's affidavit sworn 15 September 2025 was a letter from solicitors confirming that settlement had taken place that day and the sum of $1,149,736.38 had been deposited into a bank account of Q Pty Ltd, an entity controlled by the husband. The affidavit identified that the monies were then applied in payment to AR Bank, consultants, contractors, and BB Accountants, by a transfer of an amount to another company controlled by the husband. The husband thereafter paid $635,000 into his solicitor's trust account, a payment of $145,000 to AP Bank in relation to interest due in relation to another property, and $91,860 to a Ms V to repay a debt.
4. Senior counsel for the wife submitted that these payments are in breach of the orders made by Campton J. That submission is self-evident from the husband's affidavit and demonstrates an arrogant disregard for orders of this court.
5. During submissions on 18 September 2025, it became apparent from documents referred to in the husband's affidavit sworn 17 September 2025 that some $1,962,628 had been paid to AN Lawyers trust account. The submissions of the wife's senior counsel were that it was a payment in contravention of his Honour's orders. The husband's solicitor explained to the Court that those monies were held by way of some rental deposit bond. The wife may have an arguable case that these monies have also been dealt with in breach of the husband's obligations pursuant to the orders made by Campton J.
6. The husband's affidavit of 15 September 2025 contends that he needs the sum of $320,000 to meet his legal fees in the proceedings. That does not accord with the Costs Notice filed 12 September 2025 which states that the solicitors' costs are to be paid at the end of the case. While a subsequent Costs Notice states otherwise it is not explained how the solicitor can resile from a previously stated agreement with the client to await payment.
7. During the course of submissions on 18 September 2025, the husband's solicitor sought to contend that there are other payments required to be made from the trust account of his family law solicitor. I find that submission difficult to accept in circumstances where it appears to be contrary to the representations contained in the husband's affidavit sworn two days earlier to which no reference is made to any such payments.
8. In circumstances where the husband, by his own admission, has dealt with funds contrary to orders of the Court, where there is a persistent failure to comply with orders, where there are clear deficiencies in the husband's disclosure and findings of non-disclosure, then it is appropriate that the relief sought by the wife be granted.
9. The solicitor for the husband should reflect on her own conduct in receiving into her trust account monies in breach of an order of which she was on notice.

I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.