Blyton & Cleaves

[2021] FamCA 518

FAMILY COURT OF AUSTRALIA

Blyton & Cleaves [2021] FamCA 518

File number(s):	MLC 8851 of 2017
Judgment of:	BENNETT J
Date of judgment:	13 July 2021
Catchwords:	FAMILY LAW – FINANCIAL – where injunctions made to finalise tax returns of relevant superannuation entities before final hearing – where Registrar is authorised to sign documents on behalf of the Husband.
Number of paragraphs:	6
Date of hearing:	13 July 2021
Place:	Melbourne
Counsel for the Applicant:	Ms Jenkins
Solicitor for the Applicant:	Hayes and Associates
Counsel for the Respondent:	Mr Cleaves In Person
Solicitor for the Respondent:	Mr Cleaves In Person

ORDERS

MLC 8851 of 2017

BETWEEN:

MS BLYTON

Applicant

AND:

MR CLEAVES

Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	13 JULY 2021

IT IS ORDERED BY THE COURT THAT:

1.Pursuant to paragraph 3 of the Orders made 13 April 2021 within 24 hours the parties pay F Accountants:

a.$27,500 for work undertaken by them for the parties Self-Managed Superannuation Funds.

b.$2,640 in order that they can prepare 2017, 2018, 2019, & 2020 returns for the B Self-Managed Super Fund.

c.$1,036 to be held on trust by them to pay the ATO super levy for the B Self-Managed Super Fund once the assessment has been completed being a total of $31,176.

2.The Respondent immediately sign the C Trust Account tax returns for the C Self-Managed Super Fund for the 2015, 2016, 2017, 2018, 2019 and 2020 years as prepared by F Accountants.

3.The Respondent sign upon being available the B Trust Account tax returns for the B Self-Managed Super Fund for the 2015, 2016, 2017, 2018, 2019 and 2020 years as prepared by F Accountants.

4.As the Respondent has refused to sign the documentation to give effect to paragraphs 2 and 3 herein the Registrar of the Melbourne Registry of the Family Court be, and is hereby, appointed under Section 106A of the Family Law Act 1975 to sign or execute such necessary documents on behalf of the Respondent and it shall be sufficient proof of the husband’s refusal to sign and the necessity for execution of documents for the applicant’s solicitor to make an affidavit to that effect.

5.The wife’s costs of and incidental to this Application be fixed in the sum of $5,500 and liability for payment of such costs by the husband be reserved for determination by the learned trial judge NOTING THAT the husband asserts that any compliance issues will be resolved once and for all by the final hearing.

6.That for the purpose of paragraph 1 of this Order the applicant wife be authorised to sign any withdrawal slips or transfers on behalf of both parties and any other documents required to pay to F Accountants the sum of $31,176 from the G Bank/H Bank account in the name of Mr Cleaves and & Ms Blyton ATF for the B Trust BSB ... Account number ....

7.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy be provided to the parties.

IT IS DIRECTED:

8.That the minute of orders of the wife as amended be marked Exhibit “A” and remain on the Court file.

AND IT IS NOTED:

A.That the husband maintains that the sum of $27,500 paid to F Accountants is an overpayment and that the returns for B Self-Managed Super Fund and the C Trust are “illegal”.  The husband reserves the right to prove the illegality at the final hearing and proposes to adduce evidence that the Australian Taxation Office has not found the parties’ self-managed superannuation funds to be compliant and he will seek payment by the wife of reasonable costs incurred by him in that respect.

B.That this matter is listed for a final defended hearing before the Honourable Justice Hartnett on 6 December 2021.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me in the Judicial Duty List on the wife’s application, filed on 2 July 2021, and the husband’s response thereto, filed 11 July 2021, in relation to finalising compliance by the B Self-Managed Super Fund and the C Self-Managed Super Fund in anticipation of a final hearing before Hartnett J in December 2021. 

2. The accountants, F Accountants have been responsible for preparation of the relevant documentation for the self-managed superannuation funds.  The accountants were linked in to the proceedings on 13 April 2021 to provide some context to the wife’s evidence as outlined in her affidavit filed on 9 April 2021.  The wife deposed that the husband “complains about F Accountants and the work that they have undertaken on their behalf this is tied to his wanting to involve the ATO with complaints that he makes about the work that F Accountants have done”. The wife further deposed:

   8. (b) I say that F Accountants have acted properly and done their very best to assist us in trying to make our SMSF legally compliant. The real problem is that the husband disagrees with how they have prepared the necessary documents and he refuses to take their advice. He also refuses to sign the relevant tax documents which need to be submitted to the ATO. The husband is wrong. The husband is also refusing to facilitate the release of funds so that F Accountants can be paid for the work that they have done. This is very unfair to them. I note that while the husband makes many assertions about F Accountants, he has failed to provide any expert evidence to support his claims. He makes many assertions about the law, the ATO and ASIC. I do not accept that what he says is correct.

   (c) I do not agree that the husband should be paid any funds from out SMSF until the matters in dispute are resolved. If he is paid the funds that he seeks then there is a risk that there will not be sufficient funds available to meet my claim in these proceedings.

   (d) The mortgage is currently up to date. I deny the husband’s allegations about what occurred with the mortgage in 2019.

   9. On 27 July 2020 I filed an application in a case seeking a series of orders, including orders to enable F Accountants to be paid. Some of the issues raised by me in that application were able to be sorted out, others I decided to not to press. I now understand that when these proceedings were transferred to the Family Court that application was dismissed. At this time, while I feel very bad that F Accountants have not been paid for the work that they have done. I cannot justify spending more money on legal fees to resolve that issue on an interim basis.

   10. So far I have incurred legal fees in this matter of $110,000 of which I owe $62,500 to my lawyers.

   11. This matter has been adjourned on many occasions. One of the main reasons for these delays has been that out SMSF is not legally complaint. It was hoped that we would be able to solve these problems before going to trial to limit the issues in dispute before the court. However, this has proved impossible. On each occasion the husband (usually self-represented) raises another alleged problem and makes a further claim which is usually not in fact correct. I have found that in each busy duty list the court does not have hours to devote to untangling the complex web of claims and allegations made by the husband. We are told to go out of court and sort it out. We never can.

   12. I agree that in principle, if we could resolve the issues with the SMSF it may be easier to resolve our overall dispute at trial. It would also be easier to determine the value of our asset pool. But given the history of this matter and the significant legal fees that I have incurred to date, with no resolution of anything, I simply as that the husband’s application in a case be dismissed and the matter be listed for trial. If the husband then wishes to pursue his many baseless and complicated unsupported allegations, he can do so at trial.

3. On 13 April 2021, I ordered that F Accountants’ fees be paid and the returns executed.  Today, in light of the husband having refused to make the payment or sign the returns, I have made orders to facilitate the finalisation of returns for the self-managed superannuation funds.  The husband maintains that these transactions are “illegal” and that he will be able to prove that at the final hearing but he has no evidence today.  He said he would not sign documents, in particular, tax returns but did not oppose the Registrar signing on his behalf.  That is what I have ordered.   

4. The wife has made an application for costs which I have resolved ought to be fixed in the sum of $5500, an amount less than the indemnity costs sought.  In light of the fact that the husband says that the Australian Taxation Office will take a definite view which is supportive of him and adverse to F Accountants by the time of the final hearing, I have refrained from ordering that he pay the wife’s costs at this point.   I have left the issue of liability for payment by the husband of those costs to the learned trial judge on the basis that it will be a matter that will be dealt by the learned trial judge who will by that stage have the evidence of the position of the Taxation Office and be able to discern whether it supports what the husband has contended. 

5. The parties should note that, at the final hearing, Hartnett J will only be able to take into account facts which are agreed or the subject of evidence.  To the extent that the husband wants to advance the allegations of impropriety by the wife and F Accountants, it is insufficient for him to assert (as he does in his lengthy affidavit of 15 March 2021) that they have breached a duty, are dishonest, or are negligent.  Similarly, his statement that he has referred a matter to the Australian Taxation Office for investigation does not constitute evidence of the truth of the particulars and facts he has sent to the Australian Taxation Office.  The husband informed the court that he has an expert lined up to give the necessary evidence in admissible form at the final hearing (but not in time for today).

6. Similarly, the statement by the accountants linked into the hearing on 13 April 2021 was not evidence because neither were sworn.   If the wife wishes to rely on their commentary, she will have to put it into a form which is admissible as evidence before the trial judge. In that regard, each party already had a transcript of what Mr D said on 13 April 2021.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       20 July 2021