Plaintiffs challenge joinder of non-parties to a marriage in family law proceedings
In property proceedings under s 79 of the Family Law Act 1975 (Cth) (FLA), Australia’s High Court refused to issue writs of certiorari quashing three orders of a judge of the Federal Circuit and Family Court of Australia (FCFCOA), Division 1.
In Genesalio v Justice Johns and other Judges of the Federal Circuit and Family Court of Australia (Division 1) [2025] HCA 45, a woman initiated proceedings in 2018 against her former husband. Specifically, she sought a property settlement under s 79 of the FLA. She alleged that her ex-husband had an interest in property held by his brother.
On 26 April 2023, Johns J in the FCFCOA, Division 1, issued a joinder order adding the ex-husband’s brother as a party to the proceedings. The brother attempted to appeal that order. A court registrar summarily dismissed this appeal. Austin J also rejected the appeal.
On 28 June 2024, Johns J ordered the joinder of additional parties, namely corporations controlled by the brother, in which the ex-husband allegedly held an interest.
On 30 August 2024, Johns J made final orders by consent, which provided for the sale of various properties. The final orders noted the ex-spouses’ intent to execute a financial agreement under ss 90D and 90E of the FLA concerning spousal maintenance.
The ex-wife applied for orders to enforce the sale of the properties. On 16 June 2025, Johns J issued consent orders for such a sale. On 3 July 2025, Johns J made further orders under ss 90AF and 114 of the FLA to facilitate the sale by preventing the ex-husband and his brother from intervening.
The plaintiffs applied for a constitutional or other writ for an extension of time to seek:
The High Court of Australia permitted the determination of the plaintiffs’ applications seeking a constitutional or other writ and seeking a stay without listing them for hearing under rr 13.03.1 and 25.09.1 of the High Court Rules 2004 (Cth).
The High Court dismissed the application for a constitutional or other writ and the application for a stay, both with costs.
The High Court deemed any extension of time unjustified in circumstances where none of the grounds for the certiorari writs were reasonably arguable. The High Court then had to dismiss the application for a constitutional or other writ, as well as the application for a stay, because the balance of the requested orders depended on the granting of the certiorari writs.
Thus, the High Court found it unnecessary to consider the ex-wife’s further submissions responding to the stay application or the responding affidavit of the ex-husband's brother.
The High Court ruled that it had to apply the relevant time limit for filing a certiorari writ in all but very exceptional cases, given the generous time period for a party to seek such a writ.
The High Court noted that the supporting material did not suggest that this was an exceptional case. The High Court held that extending the time would go against the interests of justice, considering the litigation history, the nature of the case, the parties’ conduct, and the consequences for them.
The High Court saw no persuasive explanation for the delay. The High Court pointed out that the plaintiffs, who alleged a medical condition and financial hardship, retained legal representation throughout the proceedings before the Division 1 court and gathered extensive material to support their applications.
The High Court inferred that the plaintiffs had brought the proceeding before it only after they failed to hinder compliance with the final consent orders, in an effort to evade the consequences of their decision to settle the proceedings in the Division 1 court, as advised by counsel.
To the extent that it needed to address the applications’ merits, the High Court concluded that the interests of justice weighed heavily against extending the time.
