Valerio & Valerio [2025] FedCFamC1F 376 (5 June 2025)

1. The oral application for adjournment of the proposed second respondent is dismissed.
2. By consent as between the husband and the wife, and the proposed additional respondents do not to be heard, E Pty Ltd (ABN ...) is joined as a party being the fourth respondent to the proceedings.

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 a pseudonym Valerio & Valerio has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These reasons determine an application for an adjournment made by 16 proposed additional respondents to parenting and financial proceedings commenced by Ms Valerio ("the wife") by way of an Initiating Application filed on 6 June 2023.
2. Mr Valerio ("the husband") and the wife commenced cohabitation in or about August 2008 and married in early 2017. They affected a separation on 6 June 2022. There are four children of the marriage, W born 2011 currently aged 13 years old; X born 2013 currently aged 11 years old; Y born 2015 currently aged 10 years old; and Z born 2018 currently aged 7 years old.
3. The wife contends that a significant value of the property of she and the husband comprises corporate and trust interests in the D Group. Broadly, she contends the husband's interests are held by 11 trustee companies on behalf of trust structures that in turn own real property and trading enterprises conducting business. It is her case that some of those interests are held by the husband with his mother.
4. The husband puts into issue the wife's contentions as to his interests in D Group Pty Ltd. The evidence relied upon by the wife identifies significant changes in the legal ownership and control of the proposed additional respondents during the course of the current proceedings. It is her broad contention that these changes occurred absent notice and are designed to defeat her substantive claim for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act").
5. By way of an Application in a Proceeding filed on 22 January 2025, the wife sought a raft of relief pursuant to s 106B of the Act setting aside a number of the contended dispositions identified earlier in these orders, and the joinder of the husband's mother, Ms B Valerio, as the proposed second respondent in the proceeding.
6. By way of orders made in chambers on 13 February 2025:
   1. On or before 22 February 2025, both the husband and the proposed second respondent, [Ms B Valerio], file and serve a Response to the Application in a Proceeding filed on 22 January 2025 and any affidavit evidence in support.
   2. On or before 22 February 2025, each of the husband and the wife file and serve an updated financial statement and undertaking as to disclosure pursuant to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
   3. On or before 28 February 2025 each of the husband and the wife file and serve a financial questionnaire.
   4. On or before 28 February 2025 the husband shall serve upon the wife a joint working draft balance sheet to include all assets, liabilities, superannuation interest and financial resources as he understands to be suggested to be relevant and to include values as he understands are alleged by each party.
   5. On or before 7 March 2025 the wife shall make any additions to the joint working draft balance sheet as required to reflect her contra allegations and any values that are agreed (if applicable).
   6. Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy.
   7. On or before 15 March 2025 the husband shall file and serve a final, settled version of the joint working draft balance sheet.
   8. The proceeding is listed for hearing of the Application in a Proceeding of the wife filed 22 January 2025 and otherwise to case management before His Honour Justice Campton in person at 12 noon on 28 March 2025.
   9. On or before 21 March 2025 each of the husband and wife and proposed second respondent are to file an outline of case for the purposes of the hearing on 28 March 2025 of not more than five pages.
   10. If a party fails to appear on the adjourned date, consideration will be given to striking out the relief sought by that party and/or the matter proceeding in their absence.
7. On 28 March 2025, Ms Wearne appeared for the wife. There was no appearance by or on behalf of the husband. Mr Coleman SC appeared for the proposed second respondent, Ms B Valerio, the husband's mother. At that time, the following orders were made:

1. The hearing of the wife's Application in a Proceeding filed on 30 January 2025 as to joinder of an additional party and injunctions for the preservation of property be adjourned part heard to 9.00 am on 5 June 2025. 2. On or before 8 May 2025 the wife have liberty to file and serve upon the husband and any proposed additional respondents to the proceeding an amended Application in a Proceeding as to joinder annexing:

(a) Should she achieve leave, a further amended initiating application to be filed identifying with particularity the final orders sought as to the adjustment of property, as against any proposed additional respondent, and as to parenting, and in so far as relief is sought against an additional proposed respondent, points of claim identifying with precision the level and factual contentions grounding the relief sought. > > (b) Any further additional affidavit evidence adduced in support of her amended interlocutory relief.

1. On or before 29 May 2025 each of the husband and any proposed additional respondent shall file and serve a response to the wife's Amended Application in a Proceeding as filed pursuant to these orders and any affidavit evidence in support thereof.

THE COURT FURTHER NOTES THAT:

1. The proposed additional second respondent, the husband's mother, [Ms B Valerio], will file and serve an undertaking not to disturb the current corporate structure of the [D Group] without providing 28 days' notice in writing of such proposed change or alteration or variation to the wife. It is anticipated that such undertaken will be filed and served on or before 4 April 2025.

THE COURT FURTHER ORDERS THAT:

...

1. All parties have liberty to apply to relist the proceedings on short notice in the event of issues arising in relation to preparation for trial by way of email request to my chambers and in the event of such relisting the party requesting the relisting shall append to the email, copied to all parties, a minute of order sought on the relisting for mention.

2. The husband is placed on notice that in the event there is no appearance by or on his behalf on the adjourned date, his Amended Response to an Initiating Application filed on 31 October 2023 will be struck out and the matter will proceed on an undefended basis as against him.

3. The husband is directed to file a Notice of Address for Service and an undertaking as to disclosure in compliance with ch 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on or before 4 April 2025. In the event the husband fails or neglects to comply with this order, his Amended Response to an Initiating Application filed on 31 October 2023 is be struck out.

THE COURT FURTHER NOTES THAT:

1. The husband resides with the proposed second respondent, [Ms B Valerio], his mother who is present at Court today.

THE COURT FURTHER ORDERS THAT:

1. The wife is to cause a sealed copy of these orders to be forwarded to the husband by email on or before close of business on 31 March 2025. Any further requirement as to the husband being served with a copy of these orders is dispensed with.

(As per the original)

1. The wife filed an Amended Application in a Proceeding in compliance with those orders seeking, in addition to the joinder of Ms B Valerio as the proposed second respondent in the proceedings, the joinder of the following:

(a) C Pty Ltd (ACN ...);

(b) E Pty Ltd (ACN ...);

(c) D Group Pty Ltd (ACN ...);

(d) D1 Holdings Pty Ltd (ACN ...);

(e) D2 Pty Ltd (ACN ...);

(f) D15 Pty Ltd (ACN ...);

(g) D4 Pty Ltd (ACN ...);

(h) D5 Pty Ltd (ACN ...);

(i) D6 Pty Ltd (ACN ...);

(j) D7 Pty Ltd (ACN ...);

(k) D8 Pty Ltd (ACN ...);

(l) D9 Pty Ltd (ACN ...);

(m) D10 Pty Ltd (ACN ...);

(n) D11 Pty Ltd (ACN ...); and

(o) D12 Pty Ltd (ACN ...).

1. The wife's Amended Application in a Proceeding, in addition to seeking the joinder of the additional respondents also:

(a) Sought injunctive relief restraining the husband in his capacity from undertaking certain conduct for the preservation of property;

(b) Attached a proposed Further Amended Initiating Application for which leave was sought to file pursuant to r 2.50 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"); and

(c) Pleaded the wife's case for relief as sought against the proposed additional respondents by way of points of claim.

1. It is uncontroversial that the Amended Application in a Proceeding and the affidavit evidence in support thereof was served upon the proposed additional respondents on or about 13 May 2025.
2. The orders made on 28 March 2025 adjourned the hearing of the wife's Application in a Proceeding filed on 30 January 2025 as to be amended by way of the Amended Application in a Proceeding as identified, part-heard to today.
3. It is against that background that the proposed second through to 17th respondents, but not the fourth respondent, seek an adjournment of the part-heard hearing of the amended joinder application. The adjournment is opposed by the wife. The husband agrees to the adjournment as sought by the proposed respondents.
4. The proposed respondents did not adduce any evidence in support of the application for an adjournment. It is their submission that they require further and better particulars of the wife's points of claim prior to the consideration of the relief to be determined today as to joinder and injunctions for the preservation of property. They contend that the rules provide 28 days for a response to be filed, that there is a failure to afford procedural fairness, and that they have been given notice of the proposed claims made against them "at the eleventh hour".
5. The proposed additional respondents, excluding the fourth respondent, are instructed by the same solicitors as the proposed second respondent, the husband's mother, Ms B Valerio. If I understand the husband's case correctly, the remaining other proposed respondents form part of the property interests of his mother.
6. The wife in her proposed Further Amended Initiating Application, being Annexure A to her Application in a Proceeding filed on 8 May 2025, seeks relief pursuant to s 106B of the Act as follows:
   1. That pursuant to section 106B of the Family Law Act 1975 and to the extent necessary to give effect to order 1:

3.1. The share sales agreement dated 20 September 2024 is set aside; and

3.2. Any transaction conducted consequent to it including any transfer of shares in [D Group Pty Ltd] and [D1 Holdings Pty Ltd] by the husband or by him in his role as director of [E Pty Ltd] shall be set aside.

1. That pursuant to section 106B of the Family Law Act 1975 the transfers of the husband's shares in the following [D Trustee Companies] on 17 September 2024, 18 September 2024 and 1 November 2024 are set aside, or in the alternative pursuant to section 79 and section 90AE(2) of the said Act the husband and the second Respondent shall do all acts and things and sign all documents necessary to cause the transfer of 50% of the Second Respondent's shares in the following [D Trustee Companies] and notify ASIC of the change in shareholding:

4.1. [D2 Pty Ltd];

4.2. [D15 Pty Ltd];

4.3. [D4 Pty Ltd];

4.4. [D5 Pty Ltd];

4.5. [D9 Pty Ltd];

4.6. [D10 Pty Ltd];

4.7. [D11 Pty Ltd].

1. That pursuant to section 106B of the Family Law Act 1975 the husband's resignations as director of the [D Trustee Companies] referred to in order 4 are set aside or in the alternative pursuant to section 79 and section 90AE(2) of the said Act, the husband and the second Respondent shall do all acts and things and sign all documents necessary to appoint the husband as a director of the said companies and notify ASIC of the appointments.

1. The wife further seeks relief pursuant to s 90AF(2) of the Act as follows:
   1. That pursuant to section 90AF(2) and pending compliance with order 1 the husband, the second Respondent and the fourth Respondent are restrained by injunction from doing any act or thing which:

6.1. Causes the removal of the husband as director and/or shareholder of any of the [D Trustee Companies];

6.2. Causes the removal of the husband as a director and/or shareholder of [E Pty Ltd];

6.3. Causes the appointment of any directors other than the husband or the second Respondent to the third to seventeenth Respondents;

6.4. Affects in any way the powers of the husband or [E Pty Ltd] to appoint trustees under any Deed.

6.5. Varies the terms of any Trust Deed governing the [F Discretionary Trust], any of the [D Unit Trusts] and any of the [D Discretionary Trusts] without the wife's written consent;

6.6. Exercises their power of appointment of Trustee over [F Discretionary Trust], any of the [D Unit Trusts] and any of the [D Discretionary Trust]; and

6.7. Transfers, assigns, mortgages or otherwise deals with any of the property or profits of the [F Discretionary Trust], any of the [D Unit Trusts] and any of the [D Discretionary Trusts], save and except for the purpose of complying with order 1.

1. Noting in order 6 shall be construed as restraining the continued operation of any [...] business in the ordinary course of that business.

2. That pursuant to section 90AE(2) to the extent necessary to give effect to order 1 in their respective roles as directors and/or trustees of [E Pty Ltd], the [D Unit Trusts] and the [D Discretionary Trusts], the husband, the second Respondent, the fourth Respondent and the 7th to 17th Respondents shall do all acts and things, liquidate such real and personal property owned by the said Trusts and sign all documents necessary to pay or cause to be paid to the wife the lump sum in order 1.

3. That the wife shall have liberty to amend order 8 to provide particularity of specific steps to be taken with respect to the property of the said Trusts once:

9.1. The husband and the third parties have made a full and frank disclosure of the financial position of each of the said Trusts; and

9.2. Evidence of single joint valuation and taxation experts has been filed and served in the proceedings.

1. I do not accept the construction of Order 17 as made on 28 March 2025 as submitted by the proposed additional respondents that such order was directed only to the proposed second respondent, Ms B Valerio. The construction of the terms of the said order are unequivocal and speak for itself.
2. I do not accept the submission made by the proposed additional respondents in support of the application for an adjournment that they have not been afforded procedural fairness for the purposes of the hearing today. The points of claim annexed by the wife to her proposed Further Amended Initiating Application are comprehensive, identifying the foundations for the relief sought by way of s 106B and s 90AF of the Act. It is pivotal to the determination of the application for an adjournment that:

(a) There is no evidence adduced by the proposed additional respondents as to making any request for the provision of further and better particulars of the points of claim from the date that they were served with the documents, approaching one month ago, and the current time.

(b) There is a vacuum of evidence as to any prejudice in the determination of the relief listed today in circumstances where the provisions of r 3.01 of the Rules - as to the double threshold for the mandatory joinder of the proposed additional respondents - is directly engaged by way of the proposed amended relief as sought against them pursuant to s 106B and s 90AF of the Act.

1. On one view, the proposed adjournment could be entirely futile, and would do little more than occasion additional cost, expense and delay. That determination ought not be confused with any application that may be brought, should joinder be achieved, for summary dismissal or determination of the relief as prosecuted by the wife against the proposed additional respondents. Such application, if made at some time in the future upon the provision of further and better particulars when sought, engages different considerations from those listed for hearing today.
2. For all the above reasons, the application for adjournment is dismissed.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Campton.