BEYERSDORF & CHU

[2016] FamCA 1053

FAMILY COURT OF AUSTRALIA

BEYERSDORF & CHU [2016] FamCA 1053

FAMILY LAW – PROPERTY – Application by wife for spousal maintenance and a property settlement – Orders by consent in circumstances where Court is satisfied that it is a just and equitable division of property

FAMILY LAW – PROCEDURAL – Leave granted for wife to make submissions in respect of whether the Court should refer the papers to the Commissioner of Taxation or Department of Human Services

Family Law Act 1975 (Cth)

APPLICANT: Mr Beyersdorf

RESPONDENT: Ms Chu

FILE NUMBER: SYC 3587 of 2012

DATE DELIVERED: 7 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 7 September 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Maddox

SOLICITOR FOR THE APPLICANT: LLL The Law Firm

COUNSEL FOR THE RESPONDENT: Mr Campton SC

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. BY CONSENT final property orders be made in accordance with the minute of order signed by the parties, initialled by me and dated today’s date, an engrossed copy attached hereto and marked Exhibit “1”.

2. My determination as to whether I refer the papers to the Commissioner of Taxation and/or The Secretary of the Department of Human Services be adjourned to chambers.

3. All extant applications be and are hereby dismissed.

4. Leave be given to each party to apply in relation to implementation of this order to operate for a period of forty five (45) days from the date of this order.

IT IS DIRECTED

1. An electronic version of the minute of order, in word format, be forwarded to my administrative associate, by the solicitor for the respondent husband, within one (1) business day of the date of these orders.

2. All documents exhibited in these proceedings remain on the court file.

3. All documents on subpoena remain in the Family Court Registry for a period of twelve (12) months from the date of this order or such other period as directed by a Judge exercising jurisdiction under the Family Law Act 1975 (Cth).

4. Counsel for the applicant wife shall provide written submissions to me, through my administrative associate at … within fourteen (14) days from the date of these orders in relation to my consideration as to whether there ought to be a reference of the papers to the Commissioner of Taxation or The Secretary, Department of Human Services.

5. A copy of the reasons for these orders be taken out and placed on the Court file.

6. A copy of the transcript of the discussion between the bench and the bar table from 4.00pm until 4.35pm be taken out and placed on the Court file.

IT IS NOTED

1. Each of the parties was represented by counsel or senior counsel.

2. Throughout the course of the hearing the wife had available to her an interpreter and that the interpreter has certified on the short minute of order that she has interpreted the document to the wife and that the wife asserted she understood the document.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

Exhibit “1”

Definitions:

A)"Husband's bank account" means all bank accounts in the Husband's name.

B)"Husband's properties" means:

a.1 B Street, Suburb C;

b.D Street, Suburb E;

c.2 B Street, Suburb C; and

d.F Street, Suburb G;

C)"Husband's shares" means all shares held in the Husband's name or any entity in which he has an interest;

D)"parties" means the Applicant wife and the Respondent husband in these proceedings;

E)"Suburb C property" means 2 B Street, Suburb C in the State of New South Wales, which property is registered in the Husband's sole name;

F)"Wife's bank accounts" means all bank accounts held in the Wife's sole name or jointly with any other person.

It is ordered that:

1. That the wife's spouse maintenance application is hereby dismissed.

2. That the wife's application pursuant to Section 79 of the Family Law Act is dismissed.

3. That within 28 days of the date of these orders the Wife shall:

   (a)Vacate the Suburb C property leaving the property as vacant possession and in good order and repair, including the removal of all rubbish;

   (b)Deliver to the Husband all keys held by the Wife for the Suburb C property;

4. Forthwith upon the making of these orders the wife shall (at her cost) do all acts and things and sign all documents to remove any and all caveats the Wife (or legal representatives) have caused to be lodged on the Husband's properties.

5. That upon the expiration of 35 days, the wife is hereby restrained from attending upon or entering the Suburb C property without the husband's express written consent and/or from attending upon or entering the Husband's properties without the husband's express written consent.

6. That in the event the Wife does not vacate the Suburb C property within 35 days of the date of these orders (as required by Order 3) that a warrant issue to the Australian Federal Police and New South Wales Department pursuant to Rule 20.54 of the Family Law Rules to remove the Wife from the Suburb C property.

7. The husband have exclusive occupancy of the Suburb C property upon the wife's compliance with Order 3 or the removal of the Wife from the Suburb C property pursuant to Order 5.

8. That immediately upon the Wife's compliance with her obligations pursuant to paragraphs 3 (or upon the happening of Order 6) and except as otherwise provided for in these orders as against the Husband, the Wife is the sole owner of and the Husband has no interest in:

   (i)the Wife's bank accounts;

   (ii)the furniture, furnishings and effects in the Wife's possession; and

   (iii)all other property (including choses in action) of whatsoever nature and kind in the possession and/or control of the Wife at the date of the making of this order.

9. That except as otherwise  provided for in these orders, as against the Wife the Husband is the sole owner of and the Wife has no interest in:

   (i)The Husband's properties;

   (ii)The furniture, furnishings and effects in the Husband's possession;

   (iii)The Husband's bank accounts;

   (iv)The Husband's shares;

   (v)The Suburb C property; and

   (vi)All other personal property (including choses in action) of whatsoever nature and kind in the possession and/or control of the Husband at the date of the making of this order.

10. That except as otherwise provided for in these Orders, the Husband and the Wife shall each respectively be solely responsible for all and any debts and/or liabilities incurred in that party's sole name or jointly with any other party and/or in relation to any of the assets to which each party is entitled pursuant to these Orders.

11. No order as to costs.

12. That the husband (at his cost) within 7 days cause the caveats he has lodged a the following properties to be withdrawn at his expense:

    12.1H Street, Suburb I;

    12.2J Street, Sydney; and

    12.3K Street, Suburb L.

13. That in the event either party fails to comply with an order or sign documents to give effect to these orders pursuant to s 106A of the Family Law Act 1975 (Cth) a registrar be permitted to sign such documents.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3587 of 2012

Mr Beyersdorf

Applicant

And

Ms Chu

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. In the proceedings between Mr Beyersdorf (‘the husband’) and Ms Chu (‘the wife’), I have been asked to make consent orders to bring to an end all aspects of the financial matters between the husband and the wife, including spouse maintenance and property.  These proceedings were commenced in 2012 and have sadly taken some four years to reach finality.  The matter was heard before me over three days this week, albeit the last day most of it was spent in terms of negotiation between the parties.  The only party to be the subject of cross-examination was the wife.  The husband sought orders as contained in Exhibit H2, and the orders which I am asked to make are similar to those, although it seems that a claim for repayment of an alleged debt was not pursued, nor was an application for costs.

2. The wife had sought orders as set out in her case outline and in her amended application for the transfer of a property and some funds.  A balance sheet had been provided to me, which was Exhibit H7; all was agreed in relation to that balance sheet, with the exception of the alleged loan by the husband to the wife and funds which had circulated through the wife’s bank accounts and that of her brother and sister-in-law.  The background for this matter is set out in the case outlines of each of the parties and I indicated to them that I would treat the areas where they were in agreement as agreed facts and I have done so for the purpose of making the orders that I propose to make.

3. The outlines of cases show that the parties met in about 2002.  They married in 2006.  There was an issue as to the date of separation and there was an issue as to whether the parties lived together at all, or at least on what basis.  The parties individually acquired and sold properties during the marriage.  There was a significant issue of disclosure or nondisclosure and alleged failure by the wife to make full and frank disclosure of her financial circumstances.  Each of the parties was represented by counsel.  In the case of the husband he was represented by senior counsel.  I am satisfied that each of the parties was represented by competent counsel.

4. Particularly in the case of the wife, these terms of settlement reveal how competent her counsel was that this matter has settled rather than run to final determination by this Court.  The wife gave evidence over about two days and issues arose in the course of her evidence as to entitlements to Centrelink payments, which she has been receiving for many, many years and questions of income tax arising from allegations of collecting rents from students or boarders and from the purchase and sale of properties.  I intend to make no findings in relation to that, although I can say that the evidence was, to say the least, troubling.

5. There is some assertion that the wife received regular income, perhaps of and in excess of $100,000 per year over a number of years and perhaps some material which shows from where that income may have come.  At this stage I make no findings as to whether it was income or was not income.  Hundreds of thousands of dollars have passed through various bank accounts in various names.  I have not been provided with any tax records of the wife and I am troubled by that.  I am also troubled by her failure to disclose or her perceived failure to disclose.  What I intend to do is make the orders and then ask and direct that counsel for the wife make written submissions to me within 14 days as to why I should or not should refer the papers to the Commissioner of Taxation and to the Department of Human Services.

6. I am told by senior counsel for the husband that he makes no submissions one way or the other, although he made some helpful submissions in respect of the delay in making that determination.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 7 September 2016.

Associate:     

Date: 7 December 2016