Bakir & Bakir

[2021] FamCA 309

FAMILY COURT OF AUSTRALIA

Bakir & Bakir [2021] FamCA 309

File number(s):	SYC 1231 of 2021
Judgment of:	HARPER J
Date of judgment:	27 April 2021
Catchwords:	FAMILY LAW – PROPERTY – Where the Court has made previous orders restraining the husband from disposing of assets without notice to the wife – Where the husband did so, however contends that notice was provided – Where the wife disputes such notice – Where the parties agreed to a range of Orders to progress the matter and protect the asset pool – Where the wife claims that funds from the sale of property has been inappropriately transferred to the husband’s brother and associated entities – Where the wife seeks for the joinder of such third parties – Where those third parties have been joined.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	10
Date of hearing:	27 April 2021
Place:	Sydney
Counsel for the Applicant:	Mr Wong
Solicitor for the Applicant:	Coutts Solicitors & Conveyancers
Counsel for the Respondent:	Mr Apelbaum
Solicitor for the Respondent:	Mistry Fallahi Lawyers

ORDERS

SYC 1231 of 2021

BETWEEN:

MS BAKIR

Applicant

AND:

MR BAKIR

Respondent

ORDER MADE BY:	HARPER J
DATE OF ORDER:	29 APRIL 2021

THE COURT ORDERS THAT:

1.   By consent, orders be made in terms of paragraphs 1, 2, 3 and 9 of exhibit A, being as follows;

1.   That pending further order pursuant to s(114)(1) of the Family Law Act (1975) (Cth) (“the Act”) the Husband is restrained from disposing of the following assets without the prior written consent of the Wife:

a.   2 B Street, Suburb C; and

b.   D Street, Suburb F.

2.   The pending further order Husband is restrained from further encumbering or drawing upon any loan facilities that are secured by the properties listed at 1(a) and 1(b) above without the prior written consent of the Wife.

3.   That pending further order Husband is restrained from dealing with any proceeds from the sale of 1 B Street, Suburb C save for an except causing the whole of the proceeds to be paid in to the trust account of Coutts Lawyers & Conveyance by 10 am on 28 April 2021.

…

9. That if not already filed or exchanged, the parties shall within 21 days of the making of this order, comply with their duty of full and frank disclosure pursuant to Rule 13 of the Family Law Rules (2004); most particularly by serving on the other party the following documents:

a.   Individual Tax Returns and Notices of Assessment for the last 3 financial years;

b.   Evidence of earnings, including income that is paid or assigned to another party, person or legal entity (i.e. a corporation – other than a public company – trust, partnership, joint venture business or other commercial activity);

c.   Documents evidencing any vested or contingent interest in property;

d.   Documents evidencing any vested or contingent interest in property owned by a legal entity (i.e. a corporation - other than a public company – trust, partnership, joint venture business or other commercial activity) that is fully or partially owned or controlled by the parties;

e.   For any other real estate in which the parties have a legal or beneficial interest either solely or jointly or in common with any other person(s):

f.    Appraisals or valuations for the past 12 months;

g.   All documents of title, transfers, discharge of mortgage and settlement statements;

h.   Any rental documents such as lease agreements for the past 12 months; and

i.    Any document containing or showing the details and/or payment of maintenance, repairs and/or improvements made to the property and/or rental of the property for the last 12 months.

j.    Appraisals or valuations of furniture, jewellery, cars or other chattels obtained in the last 12 months;

k.   All statements for the last 12 months, in respect of any banking, mortgage, credit card account or other financial institution account (including but not limited to savings, cheque, credit card, loan and investment account) in which the parties have any legal or beneficial interest, or in respect of which the parties have the power to sign directions or withdrawals;

l.    Records, for the last 12 months, of any investments including investments in stocks, shares, debentures, share options, margin lending accounts in which the parties have any legal or beneficial interest;

m.    Employment contracts or engagement letters with respect to the parties’ current or future prospective employment including documents evidencing any bonuses paid in the last 3 years;

n.   In relation to any superannuation interests:

o.   The most recent superannuation member statements and/or a completed superannuation information form from the trustee of the superannuation fund;

p.   For a member of a self-managed superannuation fund, a copy of the trust deed and the 3 most recent financial statements for the fund;

q.   In relation to any corporation in which the parties own shares, or have a legal or beneficial interest in such shares either solely or jointly or in common with any other person(s):

r.    All financial statements for the last 3 financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

s.   Annual returns for the last 3 financial years; and

t.    The memoranda and articles of association, constitution or founding documents.

u.   In relation to any trust of which the parties are either an appointer, trustee, or in the case of a corporate trustee, an office holder or shareholder, or of which the parties are a beneficiary or potential beneficiary of any kind:

v.   All financial statements for the last 3 financial years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

w.    The trust deed (including any amendments); and

x.   All market appraisals for any asset held by the trust.

y.   In relation to any partnership in which the parties have a legal and beneficial interest:

z.   All financial statements for the last 3 years, including balance sheets, profit and loss accounts, depreciation schedules and taxation returns;

aa.   The partnership agreement; and

bb.  All business activity statements for the last 12 months.

cc.   Any other document relevant to determining the parties’ income and the current value of the parties’ assets, liabilities and financial resources;

dd.  Documents relating to any current insurance policies held by, or on behalf of the parties or another person;

ee.   Any documents not referred to above which evidence:

ff.     Any vested or contingent interest in property;

gg.  Any vested or contingent interest in property owned by a legal entity (i.e a corporation - other than a public company – trust, partnership, joint venture business or other commercial activity) fully or partially owned or controlled by the parties, including income that is paid or assigned to any other party, person or legal entity; and

hh.  Any other financial resource.

2.   Orders be made in terms of paragraphs 4 and 5 of exhibit A, being as follows;

4.   That G Pty Ltd be joined to the proceedings as the Second Respondent.

5.   That Mr H Bakir be joined to the proceedings as the Third Respondent

3.   J Pty Ltd be joined as the fourth respondent to the proceedings.

4.   The proceedings be stood over to 10.00 am on 24 May 2021 in the Judicial Duty List.

5.   Leave be granted to G Pty Ltd, Mr H Bakir and J Pty Ltd to file and serve by no later than close of registry filing on 14 May 2021 any Application in a Case seeking to be removed as parties to the proceedings and for the discharge of any orders made on 27 April 2021 which may affect them.

6.   Upon the wife proffering the Usual Undertaking as to Damages to the Court, and noting that the Court accepts that Undertaking, Orders be made in terms of paragraphs 6, 7 and 8 of exhibit A, as follows;

6.   That on an ex-parte basis G Pty Ltd be restrained pending further order from dealing with in any manner the following:

a.   The proceeds of sale of 1 B Street, Suburb C;

b.   Any funds directed to be paid to them from K Lawyers from the proceeds of sale of 1 B Street ;

c.   Any funds paid to it by the Husband since 5 December 2020;

d.   Any funds it holds for and on behalf of the Husband and J Pty Ltd.

7.   That on an ex-parte basis Mr H Bakir be restrained pending further order from dealing with in any manner the following:

a.   The proceeds of sale of 1 B Street, Suburb C;

b.   Any funds directed to be paid to them from K Lawyers from the proceeds of sale of 1 B Street ;

c.   Any funds paid to him by the Husband since 5 December 2020;

d.   Any funds he holds for and on behalf of the Husband, G Pty Ltd and/or J Pty Ltd

8.   That on an ex-parte basis J Pty Ltd be restrained pending further order from dealing with in any manner the following:

a.   The proceeds of sale of 1 B Street, Suburb C;

b.   Any funds directed to be paid to them from K Lawyers from the proceeds of sale of 1 B Street ;

c.   Any funds paid to it by the Husband since 5 December 2020

d.   Any funds it holds for and on behalf of the Husband and/or G Pty Ltd.

7.   Order 6 be made up to and including 5.00 pm on 25 May 2021.

IT IS NOTED THAT:

A.    The wife will make specific request by correspondence for disclosure by the husband concerning the disbursement of approximately $306,000 from a NAB offset account ending #...21 between December 2020 and May 2021.

B.     The Applicant Wife filed an Amended Initiating Application seeking parenting orders on 26 March 2021, and the Respondent Father has filed a Response on 21 April 2021.

IT IS NOTED IN CHAMBERS THAT:

C. In the event the parties have not yet satisfied s 60I of the Act, they will be required to take all necessary steps to do so prior to the Court considering any parenting application.

IT IS DIRECTED THAT:

8.   The parenting aspect of the proceedings, including any Application for interim relief, be listed before a Senior Registrar in the first available date, with the parties to be notified by the Court.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bakir & Bakir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J:

1. These proceedings came before me on 29 March 2021, on which date I made certain orders compelling the husband to give the wife no less than 10 days’ written notice of the proposed settlement of the sale of property known as 1 B Street, Suburb C.  The settlement of that sale took place on 16 April 2021.  There is a dispute between the husband and the wife as to whether the husband gave the requisite 10 days’ notice prior to settlement taking place. 

2. In any event, the matter came back before me on 27 April 2021. The day before this listing, the wife filed an amended application in a case seeking a range of orders. The matter was mentioned on 27 April 2021 and the parties engaged in negotiations. During the course of the morning, the wife produced a proposed minute of order which became exhibit A. The husband consented to proposed orders 1, 2, 3 and 9 of exhibit A. I note that there were included in the proposed minute some parenting orders and consequential orders, including an order empowering the Registrar to execute documents pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”).  Those orders do not need to be the subject of further comment in these reasons. 

3. The wife also raised, as a matter for disclosure, the dispersal of some $306,000 from an NAB offset account #...21.  The husband conceded the withdrawal of these funds, however suggested that there was only a modest amount of some $4,000 left as a credit balance in that account.  I note that the wife will seek specific disclosure by correspondence of the details of the disbursal of the funds from the offset account, including details of the parties by whom each disbursal or disbursement was received. 

4. There was, then, a further application made by the wife, orally, but formulated in writing as part of exhibit A in proposed orders 4 to 8

5. Those orders seek the joinder of G Pty Ltd and Mr H Bakir, the husband’s brother, as respondents, and certain injunctions, including restraints on G Pty Ltd and a company called J Pty Ltd.  The basis for those orders, which are sought to be made ex parte, is briefly as follows. 

6. There was no dispute that the husband’s brother was the sole director and shareholder of G Pty Ltd and J Pty Ltd.  There was no dispute that at the settlement of the sale of 1 B Street, a total amount of $806,372.98 was paid to J Pty Ltd.  The wife pointed to the fact that in an affidavit filed by the husband on 21 April 2021, the husband deposed to loans owing to G Pty Ltd as the builder of a duplex at 1 B Street and 2 B Street; the evidence of the husband was that the proceeds of sale of 1 B Street after payment to the National Australia Bank had been used to repay G1 Pty Ltd part of the builders loan.

7. There was no mention in the husband’s affidavit of J Pty Ltd.  The inference that the wife asks me to draw is that, in fact, the husband caused the $806,372.98 to be paid to J Pty Ltd as a way of diverting funds, or, at least, diverting them to an entity which had not previously been disclosed.  The wife also provided evidence which showed that there was an application by J Pty Ltd for voluntary deregistration made in April 2021.

8. The husband, in his affidavit of 21 April 2021 put forward a proposed draft balance sheet which indicated, after taking account of the balance of a builder’s loan to G Pty Ltd of $460,000 and other liabilities, there were net assets of only $102,000 plus some superannuation available to the parties for the purpose of property settlement.  If $806,372.98 should be brought back into the property pool, the amount about which the parties may argue will increase significantly.  I do not know whether this is likely or nor am I able to form a view of the overall matrimonial pool in respect of which the parties will ultimately seek property adjustment.

9. However, I am satisfied that on the material which has been provided by the wife on 27 April 2021 that there is sufficient unexplained movement of significant amounts of money between the sale proceeds of 1 B Street and companies of which the husbands brother is the sole director and shareholder to warrant the conclusion that they may well be a necessary party to the proceedings and that there should be a short interim restraint upon them disposing of any current proceeds held by them which have been received as a result of the sale of either 1 B Street or 2 B Street pending those entities and the husband’s brother being given an opportunity to be heard by the Court.

10. Accordingly, I propose to join Mr H Bakir as a respondent to the proceedings, together with G Pty Ltd and J Pty Ltd, as well as restrain them from dealing with any of the proceeds of sale of 1 B Street but preserving the right for them to apply to be disjoined and for any injunctive relief, made in respect of them, to be discharged.  Accordingly, I make the orders which appear at the commencement of these reasons.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper.

Associate:

Dated:       27 April 2021