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…
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- AGLC
- Badenoch & Faldyn (No 2) [2022] FedCFamC2F 794
- Case
- [2022] FedCFamC2F 794
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the distribution of the sale proceeds of the matrimonial home, the role of the Trustee in Bankruptcy in the distribution, and the implications of Mr Faldyn's bankruptcy on the division of assets. The court had to ensure that the orders complied with the Family Law Act 1975 (Cth) and that the Trustee in Bankruptcy's rights were considered. The court also had to address the implications of the bankruptcy on the division of assets and ensure that the proceeds were distributed in accordance with the law.
The court found that the parties had reached a consent agreement regarding the distribution of the sale proceeds from the B Street, Suburb C property. The court approved the consent orders, which provided for the disbursement of the sale proceeds in specified proportions to the applicant, the second respondent, and the Trustee in Bankruptcy. The court noted that the Trustee in Bankruptcy did not seek a stay of the proceedings and had joined in the application for the orders. The court also directed the appointment of a Single Expert for the assessment of the child, as well as the filing of curricula vitae of the proposed experts. Parenting proceedings were adjourned for case management.
The court made orders in accordance with the consent reached by the parties, which included the disbursement of the sale proceeds and provisions for indemnity and costs. The court excused the Trustee in Bankruptcy and the second respondent from further attendance in the proceedings. The orders were made in full and final satisfaction of the respective claims by the applicant, the second respondent, and the Trustee in Bankruptcy in relation to the vested matrimonial property of the first respondent. The court emphasised that the form of the order was subject to entry in the court’s records and noted that the copy of the Reasons for Judgment may be subject to review or variation.
Orders
Orders of the court
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.
3.3 Trustee in Bankruptcy in relation to the vested matrimonial property of the first respondent.
4 That 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.
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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