FEDERAL CIRCUIT COURT OF AUSTRALIA
| ASHJAIM & GASPAR | [2019] FCCA 2703 |
| Catchwords: FAMILY LAW –Unusual property dispute– Applicant’s business venture which created cash flow failed – Applicant sending monies overseas – Respondent on folly of her own post-separation – Respondent files affidavit admitting to lying to the court –Respondent’s lack of disclosure , transparency and honesty with the court – Referral of papers to Australian Taxation Office and Attorney-General. |
| Legislation: Family Law Act 1975 (Cth) |
| Cases cited: Sebastian & Sebastian (No.5) [2013] FamCA 191 Baglio & Baglio [2013] FamCA 105 Challen & Challen (2007) FamCA 1292 Oriolo v Oriolo (1985) FLC 91-653 Briese v Briese (1986) FLC 91-713 |
| Applicant: | MR ASHJAIM |
| Respondent: | MS GASPAR |
| File Number: | MLC 5625 of 2016 |
| Judgment of: | Judge Curtain |
| Hearing dates: | 4, 5, 6, 7 & 8 February 2019 |
| Date of Last Submission: | 9 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 26 September 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Weil of Counsel |
| Solicitors for the Applicant: | Pearce Webster Dudgals |
| Counsel for the Respondent: | Mr Rothschild appearing as solicitor advocate, save for 9 July, 2019 when Respondent appeared in person |
| Solicitors for the Respondent: | Brendan Rothschild Legal Group |
THE COURT ORDERS THAT:
The Applicant Father born … 1976 (“the Father”) and the Respondent Mother born … 1966 (“the Mother”) and their servants and agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the children X born … 2008, female, and Y born … 2007, male (“the children”) from the Commonwealth of Australia.
The children be and are hereby restrained from leaving the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding Order by placing the X and Y on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the X and Y on the Airport Watch List for a period of two (2) years.
Upon expiration of the period referred to in Order 3 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the X and Y from the Airport Watch List.
BY ORDER OF THE COURT, THE COURT ORDERS THAT:
The Respondent to pay the Applicant the sum of $83,400 (“the payment”) within 90 days (“the date”);
That contemporaneously with the payment:
(a)The Applicant do all such acts and things and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent all of his right, title and interest in the real property situate at and known as A Street, Suburb B (“the real property”); and
(b)The Respondent indemnify the Applicant…
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- AGLC
- ASHJAIM & GASPAR [2019] FCCA 2703
- Case
- [2019] FCCA 2703
- Decision Date
CaseChat Overview and Summary
The court was required to determine the division of property and liabilities between the parties, including the disposition of real property, various businesses, family trusts, and motor vehicles. Additionally, the court had to address concerns regarding the children's welfare and the potential for breaches of federal law, leading to a referral of papers to the Australian Taxation Office and the Attorney-General.
Judge Curtain's reasoning focused on achieving a just and equitable distribution of assets and liabilities, taking into account the parties' conduct and financial circumstances. The court ordered an injunction restraining the children from leaving Australia for two years, with the Australian Federal Police to place them on the Airport Watch List. In terms of property, the Mother was ordered to pay the Father a sum of money, with the real property to be transferred to her upon payment, or sold if payment was not made. The parties were to retain ownership of their respective businesses and associated debts, with specific indemnities outlined. The Mother was also to retain control of the family trusts.
The court further ordered that the Respondent Mother pay the Applicant Father $83,400 within 90 days. Contemporaneously with this payment, the Applicant was to transfer his interest in the real property to the Respondent, who was to indemnify him against the mortgage and outgoings. If the payment was not made, the real property was to be sold out of court, with proceeds applied first to sale costs, then the mortgage, then the outstanding payment to the Applicant with interest, and the balance to the Respondent. Pending payment or sale, the Respondent was to occupy the property and meet mortgage and outgoings. The Applicant was to retain his business and associated debts, while the Respondent was to retain her businesses and associated debts, including significant financial liabilities. The Respondent was also to retain control of the Gaspar Family Trust and the MM Family Trust. The court also imposed restrictions on the parties operating businesses within a five-kilometre radius of each other. Finally, the court ordered that copies of the judgment and orders be forwarded to the Attorney-General's Department and the Australian Taxation Office for investigation into potential breaches of federal law.
Orders
Orders of the court
1.
The Applicant Father born … 1976 (“the Father”) and the Respondent Mother born … 1966 (“the Mother”) and their servants and agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the children X born … 2008, female, and Y born … 2007, male (“the children”) from the Commonwealth of Australia.
2.
The children be and are hereby restrained from leaving the Commonwealth of Australia.
3.
It is requested that the Australian Federal Police give effect to the preceding Order by placing the X and Y on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the X and Y on the Airport Watch List for a period of two (2) years.
4.
Upon expiration of the period referred to in Order 3 above and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the X and Y from the Airport Watch List.
BY ORDER OF THE COURT, THE COURT ORDERS THAT:
5.
The Respondent to pay the Applicant the sum of $83,400 (“the payment”) within 90 days (“the date”);
That contemporaneously with the payment:
(a) The Applicant do all such acts and things and sign all such documents as may be required to transfer to the Respondent at the expense of the Respondent all of his right, title and interest in the real property situate at and known as A Street, Suburb B (“the real property”); and
(b) The Respondent indemnify the Applicant against all payments and liabilities pursuant to any mortgage relating to the real property (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind.
6.
In the event that the whole of the payment has not been made by the date the real property be forthwith sold altogether out of Court (“the sale”) and on completion of the sale, the proceeds of the sale be applied:
(a) First to pay all costs, commissions and expenses of the sale;
(b) Secondly to discharge the mortgage and any other encumbrance affecting the real property;
(c) Thirdly so much of the payment as then outstanding together with interest thereon at the rate prescribed by the Family Law Act 1975 adjusted monthly from the date to the Applicant; and
(d) Fourthly the balance to the Respondent.
7.
Pending the payment or completion of the sale:
(a) The Respondent have the sole right to occupy the real property and during such right of occupation the Respondent to pay all instalments pursuant to the mortgage and all rates and taxes and like outgoings of the real property as they fall due;
(b) The parties hold their respective interests in the real property upon trust pursuant to these orders; and
(c) Neither party encumber the real property without the consent in writing of the other party.
8.
The Applicant have ownership of and retain the Business H business at E Street, Suburb F currently operated by him and he indemnify the Respondent in relation to all debts associated with that business, together with the debts associated with the business previously run by him, his debt in relation to his Motor Vehicle G and all other debts standing in his name
9.
The Respondent have ownership of and retain the Business H business at C Street, Suburb D, the business (if any) at J Street, Suburb F and indemnify the Applicant in relation to all debts associated with those businesses, including superannuation debt, Australian Taxation Office debt, Bank debt, Bank debt, Gold Award Card debt, CBA overdraft, Citibank debt, the debt associated with her Motor Vehicle G and she indemnify the Applicant in relation to all of those debts and all other debts standing in her name.
10.
The Respondent retain control of the Gaspar Family Trust, the MM Family Trust and the assets associated therewith.
11.
The Respondent be restrained from operating a business at J Street, Suburb F, or any other premises within five kilometres of the Applicant’s Suburb F business and the Applicant be restrained from operating a business within five kilometres of the Respondent’s C Street, Suburb D business.
12.
Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the real property at A Street, Suburb B being deemed to be in the possession of the Respondent);
(b) Insurance policies remain the sole property of the owner/beneficiary named thereon/in;
(c) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(d) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
13.
Liberty be granted to the parties to seek procedural or “mechanical orders” in relation to the sale of the real property if they cannot agree on the terms and conditions of sale.
14.
The appropriate officer of the Federal Circuit Court of Australia at Melbourne cause a copy of these orders and this judgment to be forwarded to the relevant officers at the Attorney-General’s Department and the Australian Taxation Office to investigate any possible breaches of Federal Law by these parties or either of them.
15.
All extant applications be otherwise dismissed.
AND THE COURT NOTES THAT:
A. If after the expiration of the period set out in Order 3 above any parent seeks that the X and Y remain on the Airport Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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