Boyen and Boyen and Ors

[2012] FamCA 666

FAMILY COURT OF AUSTRALIA

BOYEN & BOYEN AND ORS [2012] FamCA 666

FAMILY LAW – PROPERTY – Interim

Family Law Act 1975 (Cth)

APPLICANT: Ms Boyen

RESPONDENT: Mr Boyen

2^nd RESPONDENT: Mr P Boyen

3^rd RESPONDENT: Mr R Boyen

4^th RESPONDENT: Ms C Boyen

FILE NUMBER: CSC 516 of 2011

DATE DELIVERED: 13 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 3 August 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Williams Graham Carman

SOLICITOR FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE 2^ND RESPONDENT: Litigant in person

SOLICITOR FOR THE 3^RD & 4^TH RESPONDENT: Adrian Hawkes

Orders

Orders made 3 August 2012

1. The 3^rd and 4^th Respondents’ application to summarily dismiss applications made by the applicant is dismissed.

2. I note the wife asserts that what purports to be her signature on the document that is referred to in paragraph 14 of her affidavit of 2 August 2012 is not her signature.  The husband has produced from the bar table today the original of that document which is marked Exhibit 1. I mark a letter dated 2 May 2007 (with annexures) as Exhibit 2. I mark an email dated 10 July 2012 as Exhibit 3.

3. The parties confer and attempt to identify a single expert who can conduct a forensic analysis for the purposes of establishing whether or not the signatures on documents in Exhibits 1, 2 and 3 that purport to be the signature of the wife are in fact her signature. For that purpose the wife is to provide to that expert any written document the expert might require her to provide for the purposes of that analysis.

4. The husband and wife are to equally pay the costs of the expert’s work.

5. I discharge any order the registrar has made in relation to discovery and I will make new orders in relation to discovery.

6. Each party give to the other general discovery of any document that they have in their possession that is relevant to the following matters:

   6.1.The withdrawal and transfer of funds from the joint account as detailed in paragraph 71 of the wife’s affidavit filed 18 October 2011;

   6.2.The transfer of the sum, in whole or in part, of $260,000 which is referred to in the affidavit of Ms C Boyen filed 2 August 2012.

7. The 3^rd and 4^th Respondents provide all documents relevant to the receipt, investment, use and expenditure of the sum of $260,000 paid to the 3^rd and 4^th Respondents by the husband and the 2^nd Respondent in about March 2007.

8. The 3^rd and 4^th Respondents provide all documents relevant to the source of and the payment of the sum of AUD $56,419.90 by International Money Transfer by the 3^rd and 4^th Respondents to G Ltd dated 11 February 2003.

9. The 3^rd and 4^th Respondents provide all documents relevant to the source of and payment of the sum of $114,647.11 to Westpac Account No. …24 held by the Husband and the 2^nd Respondent on 7 June 2000.

10. The 3^rd and 4^th Respondents provide all documents relevant to the source of and payment of the sum of $127,991.11 to Westpac Account No. …24 held by the Husband and the 2^nd Respondent on 6 March 2005.

11. The 3^rd and 4^th Respondents provide all documents relevant to the receipt, investment, use and expenditure of the sum of $260,000.00 paid to the Third and Fourth Respondents by the Husband in or about March 2007.

12. The 3^rd and 4^th Respondents provide all records, papers, books and other documents evidencing and/or recording loans, advances, gifts or payments of money made by, for, on behalf of, to, or at the request of the Husband and the 3^rd and 4^th Respondents to each other.

13. Pursuant to s 62G Family Law Act 1975 (Cth) (“FLA”) a family report be prepared in relation to matters concerning arrangements in the best interests of W born … August 2001 (“the child”). The family report writer is to report on all relevant matters under s 60CC(2) and (3) FLA.

14. Within 14 days the father file and serve an amended application for final orders setting out the parenting orders he seeks on a final basis in respect of the child.

15. Within 28 days the mother file and serve an affidavit setting out the evidence upon which she relies in respect of her concerns that would prevent the child being with his paternal grandparents for relatively short periods of time while the father works on the weekends that the child is due to be with his father.

16. This matter will be relisted for a telephone mention upon the release of the family report and leave granted to either party to relist the matter by telephone mention once the forensic report becomes available or if there is any other matter that any of the parties wishes to agitate in terms of the preparation of the matter for final hearing.. 

17. The moneys that are coming from Japan by way of sale of a … motor vehicle of approximately $30,000 are to be paid as to one half to the husband and one half to the wife by way of an interim property distribution.

18. All parties costs of the appearance on 31 July 2012 and today be reserved. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Boyen & Boyen 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: CSC 516 of 2011

Ms Boyen

Applicant

And

Mr Boyen

Respondent

And

Mr P Boyen

2^nd Respondent

And

Mr R Boyen

3^rd Respondent

And

Ms C Boyen

4^th Respondent

REASONS FOR JUDGMENT

1. I note I am dealing with an application of the 3^rd and 4^th Respondents that is dated 3 June 2012 which in effect asks for summary dismissal of applications made by the wife in these proceedings against the 3^rd and 4^th Respondent. As articulated now, those applications are:

   1.1.An application under s 106B Family Law Act in relation to an amount of money of $260,000 (see paragraph 11 of the wife’s affidavit filed 2 August 2012);

   1.2.In the event that the evidence justifies it, a declaration that the 3^rd and 4^th Respondents hold part or all of Property K in trust for the husband and wife;

   1.3.An application under s 106B Family Law Act in respect of the transfer of a property at M to the 3^rd and 4^th Respondents by the husband and his brother in 2006.

2. I look at the material that has been filed by the wife and take it at is highest. I am unable to say that it would be fanciful that at a full hearing of the matter the wife will inevitably be unsuccessful in relation to each or any of the applications referred to above. That of course is not to say that she will be successful in any of those applications. On the basis of the untested evidence only of the wife at its highest, I am unable to summarily dismiss the application.

I certify that the preceding two (2) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 13 August 2012.

Associate: 

Date:  13 August 2012