Bertalan & Shu (No 2)
[2023] FedCFamC1F 511
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bertalan & Shu (No 2) [2023] FedCFamC1F 511
File number(s): BRC 7798 of 2018 Judgment of: BAUMANN J Date of judgment: 16 June 2023 Catchwords: FAMILY LAW – PROPERTY – Where the Applicant has communicated informally with the Court that he has ongoing health complications – Where the Applicant has not engaged in proceedings – Where the Applicant had filed caveats during the course of proceedings over three properties being the subject to an Application previously before the Court – Where the Respondent sought orders in to remove those caveats –Final orders were made in accordance with the Respondent’s Application Legislation: Family Law Act 1975 (Cth)
Land Title Act1994 (Qld)
Cases cited: Bertalan & Shu [2023] FedCFamC1F 15 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 16 June 2023 Place: Brisbane Solicitor for the Respondent: Life Law Solutions ORDERS
BRC 7798 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BERTALAN
Applicant
AND: MS SHU
Respondent
order made by:
BAUMANN J
DATE OF ORDER:
16 JUNE 2023
THE COURT ORDERS:
Cemetery Stone
1.That the Respondent is at liberty to attend G Cemetery and take steps to remove her name, photograph and image from a stone which is meant to identify the final resting place of the parties (who are both still alive but are no longer in a relationship).
Caveats
2.That within seven (7) days the Applicant and/or his servants or attorneys take all steps, do all things and pay all monies required to remove the following caveats from property owned by Ms Nuan:
(a)Caveat number …76 registered against the property described as …, Title Reference …;
(b)Caveat number …66 registered against the property described at …, Title Reference …; and
(c)Caveat number …82 being registered against …, Title Reference ….
Other Orders
3.That the Applicant retain the following assets free from any claim by the Respondent (with any such assets that are in the possession of the Respondent to be delivered by her to the Applicant within seven (7) days of this Order:
(a)All bank accounts in his sole name or jointly with any other person other than the Respondent;
(b)All household contents in his possession;
(c)The Stone and Plot at G Cemetery bearing the Applicant’s name and picture on the stone;
(d)Any insurance policies in his name; and
(e)Superannuation policies in his name.
4.That the Respondent retain the following assets free from any claim by the Applicant (with any such assets that are in the possession of the Applicant to be delivered by him to the Respondent within seven (7) days of the date of this Order:
(a)All bank accounts in her sole name or jointly with any other person than the Applicant;
(b)Her motor vehicle;
(c)All household contents in her possession;
(d)Any insurance policies in her name; and
(e)Superannuation policies in her name.
5.That from the settlement date and unless otherwise specified in this order, expect for the purposes of enforcing payment due under these or any subsequent Orders:
(a)each party shall be solely liable for an indemnify the other against any other liability encumbering any item of property to which that party is entitled pursuant to this Order; and
(b)each party shall be solely liable for and indemnify the other regarding any loan or credit card debt in their respective names.
6.That each party shall do all acts and things reasonably required by the other including the signing and execution of all necessary documents to give effect to the provisions of this Order within fourteen (14) days of being requested to do so.
7.That if either party refuses to or neglects to sign or execute or return a document within fourteen (14) days of the request to do so, then a Registrar of the Brisbane registry of the Federal Circuit and Family Court of Australia is hereby appointed under s 106A of the Family Law Act 1975 (Cth) to sign or execute such document on behalf of that party upon lodgement of such document and filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.
8.That either party shall be at liberty to make an Application seeking orders that a defaulting party pay the other party’s taxed costs of an incidental to such requests and production of any documents to the Registrar.
9.That either party shall be at liberty to apply to implementation or enforcement of these Orders within giving seven (7) days’ notice in writing to the other party.
10.That should either party wish to be heard in relation to the issue of costs, they are to file and serve an Application and affidavit in support to that effect within fourteen (14) days of the date of these Orders.
11.That all pending applications be dismissed.
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 the pseudonym Bertalan & Shu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J:
The Applicant husband, Mr Bertalan (who is approaching his 85th birthday) and the Respondent wife, Ms Shu (who is currently 58 years of age), commenced cohabitation in 2000; were married in Country B in 2001; and separated in June 2018. The husband, as I shall call him, commenced proceedings in the Federal Circuit Court of Australia (as it was then known) in July 2018. There is no real purpose in explaining the long history since then, save to identify that after the matter was transferred to the Family Court of Australia (as it was then known), and despite a number of Court events, ultimately, the matter was listed for a discrete hearing as to a specific issue.
That hearing took place and on 24 January 2023, the Court delivered Reasons (see Bertalan & Shu [2023] FedCFamC1F 15) which effectively summarily dismissed the husband’s Application for declarations that the Second Respondent, Ms Nuan, held property on trust for or on behalf of the husband and wife. Those Reasons explain some of the history. As I noted at the time the discrete issue was listed and, subsequently, as set out at [34] of those earlier Reasons:
It is common ground that if the three properties (or a substantial proportion of their equity) do not form part of the divisible property pool between interests of the husband and wife, then sadly there is little other property to divide.
There is no evidence that has been produced since January 2023 to suggest that there is any other property. In fact, in competently prepared written submissions on behalf of the Respondent wife (filed 23 May 2023), the solicitors for the Respondent at paragraph 9 correctly, in my view, identify that apart from personal furniture and the like, the only property available to be distributed between the parties consists of:
(a)a motor vehicle, which the wife asserts was purchased for her by her daughter; and
(b)a grave plot at G Cemetery, which the wife has previously obtained Orders that allow her to remove her name and image from the stone and seeks a continuation of that Order in circumstances where the removal has not yet occurred.
The Applicant husband has been given and afforded many opportunities to engage with the Court since the summary dismissal Orders were made. On 5 May 2023, documents were tendered which included an email from the husband’s daughter which suggested that the husband had been in hospital for a number of months and “is still not well enough to address the court or sign documents to dismiss the matter”. That email was preceded by an email of 30 March 2023 to the solicitors for the wife where they had brought to the husband’s attention the Orders made 16 March 2023.
Importantly, the wife’s solicitors have been seeking to have the husband sign a general request to remove caveats that he had, during the course of proceedings, caused to be filed under the Land Title Act1994 (Qld) with the Registrar of Titles over the three properties the subject of the summary dismissal Application.
I am satisfied that the husband is aware of the proceedings. Importantly, the solicitor for the wife, Mr McDonald, today indicates and he must acknowledged for his efforts in persevering with this matter over many years, that he has not heard from the husband since the Orders made by the Court on 5 May 2023 other than a person who he thinks is one of the daughters of the husband, a lady named Ms P, who has forwarded to him a general request signed by the husband.
I am satisfied that the failure by the husband to comply with directions enlivens the jurisdiction of the Court to proceed on an undefended basis. My Order of 5 May 2023 speaks for itself, but in particular, whilst requiring the Applicant husband to file and serve by 8 June 2023 any written submissions, the Court noted:
the failure of the unrepresented Applicant husband to appear before the Court today, because his daughter asserts that the Applicant has “been in hospital for [a number of] months and is still not well enough to address the Court or sign documents to dismiss the matter”, the Court orders that the Respondent wife shall file and serve within thirty (30) days, written submissions as to why the orders contended for by the Respondent in the amended Response filed 30 March 2023 achieve justice and equity for both parties.
I take the fact that he has signed the document finally to release the caveats as reflective of not only that he has been aware of the Order made by me on 5 May 2023 but, in effect, does not wish to be heard on the Court’s intention that the matters be disposed of finally today.
The wife, in circumstances where she says and I accept, sadly, there are really no assets to divide, contends for the Orders set out on a final basis in the amended Response filed 30 March 2023. Those Orders do provide for caveats to be removed, and Mr McDonald quite sensibly identified that even though he has an emailed, signed request, if there is an impediment to the Registrar of Titles registering that request, he may require the Registrar of the Court to sign the request, such that the orders set out in the amended Response are still sought in those terms.
In my view, the Orders that are being sought by the wife are just and equitable to both parties. On a final basis, I make the orders set out in the amended Response. I note that the orders provide the parties with a right to seek costs, although, in respect of the wife, one wonders if she sought an application for costs, what the source of any payment would be.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 23 June 2023
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