Badenoch & Faldyn (No 2)
[2022] FedCFamC2F 794
•16 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Badenoch & Faldyn (No 2) [2022] FedCFamC2F 794
File number(s): HBC 184 of 2019 Judgment of: JUDGE TAGLIERI Date of judgment: 16 May 2022 Catchwords: FAMILY LAW – property – where husband is undischarged bankruptcy – where Trustee in Bankruptcy joined as party to proceedings – final orders by consent between wife and Trustee in Bankruptcy Legislation: Family Law Act 1975 (Cth) s 79 Division: Division 2 Family Law Number of paragraphs: 5 Date of hearing: 16 May 2022 Place: Hobart Counsel for the Applicant: Mr M Foster Solicitor for the Applicant: Murdoch Clarke The First Respondent: No appearance required Counsel for the Second Respondent: Ms R Keys Solicitor for the Second Respondent: Katsikaris Family Law The Third Respondent: No appearance required Counsel for the Fourth Respondent: Ms S Nash Solicitor for the Fourth Respondent: O’Neill Partners Independent Children’s Lawyer No appearance required
Table of Corrections 6 July 2022 Date of certification amended to reflect date that ex tempore judgment was settled and provided to the parties ORDERS
HBC184 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS BADENOCH
Applicant
AND: MR FALDYN
First Respondent
MR A FALDYN
Second Respondent
MS FALDYN (and another named in the Schedule)
Third Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
16 MAY 2022
THE COURT ORDERS THAT:
Property
1.There be orders, declarations and notations made in terms of the document entitled “Consent Orders”, attached hereto and marked “A”, signed by the solicitors for the Applicant and the Second Respondent and the Fourth Respondent, and dated 16 May 2022.
THE COURT NOTES THAT:
A.The Fourth Respondent did not seek a stay of these proceedings pursuant to section 60 of the Bankruptcy Act 1966 (Cth), and has joined in asking the Court to make the orders at Attachment “A”.
THE COURT ORDERS THAT:
Parenting
2.The parenting proceedings are adjourned to a date to be fixed for case management.
3.The Independent Children’s Lawyer forthwith file a copy of the curricula vitarum of the two psychiatrists proposed as Single Expert, being:
(a)Dr K; and
(b)Dr L.
4.Within 7 days of receipt of the documents referred to in Order 3, the Court will make a Chambers order for the appointment of a Single Expert for the assessment of the child X born in 2010.
5.The Independent Children’s Lawyer make urgent enquiries as to the progress of First Respondent’s application to Tasmanian Legal Aid for representation under the Cross Examination Ban Scheme, and further report the same to Chambers by email (including the other parties) within 48 hours of the making of this Order.
“A”
BY CONSENT IT IS ORDERED:
1.That within 7 days of the date of these orders the applicant shall do all acts and things necessary to authorise M Conveyancing to disburse the remaining proceeds of sale of the property at B Street, Suburb C (“B Street, Suburb C property”) currently held in the trust account of M Conveyancing as follows:
1.1$10,000 to the Trustee in Bankruptcy of the Estate of Mr Faldyn (First Respondent) as nominated by the Trustee in Bankruptcy (Fourth Respondent).
1.2 The balance then remaining:
1.2.1 50% to the Applicant as nominated by her.
1.2.2 50% to the Second Respondent as nominated by him.
2.That in the event the applicant refuses or neglects to execute any deed, document or instrument necessary to give effect to Order 1 herein then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the applicant and do all acts and things necessary to give validity and operation to the deed, document or instrument.
3.The Court otherwise notes that these orders are in full and final satisfaction of the respective claims (if any) pursuant to Section 79 of the Family Law Act 1975 (Cth) by the:
3.1 Applicant.
3.2 Second respondent.
3.3Trustee in Bankruptcy in relation to the vested matrimonial property of the first respondent.
4That the second respondent shall indemnify and keep indemnified the applicant and the fourth respondent in relation to any claim or any monies owed to O Pty Ltd in relation to any financial contribution by the said company towards the acquisition, conservation or improvement of the B Street, Suburb C property.
5.That there be no order as to costs in relation to the financial aspect of these proceedings.
6.That Mr Gray, Trustee in Bankruptcy (Fourth Respondent) and Mr A Faldyn (Second Respondent) are excused from further attendance in these 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Badenoch & Faldyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE TAGLIERI
Having heard the submissions from the parties and noting the existence of the loan agreement and what is agreed in respect of the loan agreement and what is not conceded, as articulated by Mr Foster, it is apparent that the property which remains the subject of these proceedings as matrimonial property is very limited in scope. The parties live in different jurisdictions. And their matrimonial home has not been joint for many, many years. It can be inferred that the parties, by default, have shared items of personal property and chattels as between them; and the only asset of significance that would engage this Court’s deliberations, pursuant to section 79 of the Family Law Act 1975 (Cth), commonly appears to be the sum of around about what I am told is $200,000 being held in the account of M Conveyancing in trust, it being the net sale proceeds left from the sale of B Street, Suburb C (“the property”).
I say “left” because upon that sale, pursuant to the loan agreement to which Ms Keys referred, a sum of money was repaid in the vicinity of $121,000 to the second respondent; and the issue at trial would have been whether there was a further loan to the applicant, amounting to, after repayment of a $50,000 contributed by her father, approximately $143,000.
Faced with consideration of a very short marriage, the history to acquisition of the parties, the dispute about the loan agreement and what is owing in respect of it, in view of Mr Faldyn’s (“the husband”) bankruptcy, the bankruptcy trustee, who would otherwise be the recipient of any adjustment in his favour from the matrimonial property, has brokered what I am told is a commercial agreement.
I am satisfied that, based on the contributions that were the subject of submissions made by Mr Foster, the overall arrangements set out in paragraphs 1.1 and 1.2 of the proposed consent minute, is just and equitable. I make orders accordingly.
Just one final matter to address the reasons that I have just given, I did afford the husband an invitation for him to join in the link this afternoon; and he was aware that there was a high degree of possibility that final consent orders would be made in the property matter. He has chosen not to participate in the hearing. It is proper for me to infer that, that arises because by operation of law, consequent to his bankruptcy, any interests that he may have been awarded pursuant to these proceedings would have been vested property in the bankruptcy trustee. They are just additional, supplementary reasons to cover off on the husband not participating.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 27 June 2022
SCHEDULE OF PARTIES
HBC184 of 2019 Respondents
Fourth Respondent:
MR GRAY AS TRUSTEE IN BANKRUPCY
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