Burg and Anor & Burg
[2011] FMCAfam 1101
•24 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BURG and ANOR & BURG | [2011] FMCAfam 1101 |
| FAMILY LAW – Property dispute – husband murdering wife after institution of proceedings – substitution of wife’s children as applicants – whether applicants’ claim limited to matrimonial home – husband sending funds offshore in breach of orders – all assets included in pool of assets – determination of respective entitlements. |
| Family Law Act 1975, ss.75(2), 79(8), 79(8)(b)(ii) |
| Helton v Allen (1940) 63 CLR 691 |
| Applicants: | MS E BURG AND MR E BURG (AS ADMINISTRATORS OF THE ESTATE OF MS S BURG DECEASED) |
| Respondent: | MR O BURG |
| File Number: | MLC 8701 of 2009 |
| Judgment of: | Burchardt FM |
| Hearing date: | 1 September 2011 |
| Date of Last Submission: | 1 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 24 October 2011 |
REPRESENTATION
| Counsel for the Applicants: | Mr Wilson |
| Solicitors for the Applicants: | Adams Maguire Sier |
| The Respondent: | In person (by video link) |
ORDERS
That the father forthwith upon being requested to do so sign all documents and do all things required to:
(a)Transfer to Ms E Burg and Mr E Burg or as they may direct the whole of his right title and interest in:
(i)The home at Property G;
(ii)The Burg Family Trust;
(iii)His shares in [B] Pty Ltd;
(iv)The Honda Civic motor vehicle;
(v)The Toyota Rav 4 motor vehicle; and
(b)Resign any office he holds in [B] Pty Ltd.
That in the event the respondent father does not sign any document requested of him pursuant to Order 1 within 7 days of being so requested the Registrar of the Court is authorised to sign documents in the name of the respondent father to do all acts and things necessary to give validity and operation to the documents.
That within 60 days of these Orders Ms E Burg and Mr E Burg pay to the respondent father the sum of $355,813 save that the sum of $1,398 (being one-half of $2,796) be deducted and paid to Mr K.
That Ms E Burg and Mr E Burg forthwith do all things necessary to absolve the respondent father from all and any responsibility for the traffic infringements identified in his statement made on or about 7 April 2011.
That Ms E Burg and Mr E Burg return the three gold rings, one diamond ring and two Seiko watches referred to in paragraph 26 of the Reasons for Judgment to Mr O Burg as soon as possible.
IT IS NOTED that publication of this judgment under the pseudonym Burg and Anor & Burg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8701 of 2009
| MS E BURG AND MR E BURG (AS ADMINISTRATORS OF THE ESTATE OF MS S BURG DECEASED) |
Applicant
And
| MR O BURG |
Respondent
REASONS FOR JUDGMENT
This is a property dispute arising out of extraordinary and tragic circumstances. The late applicant wife, Ms S Burg, commenced proceedings for property settlement in this Court on 29 September 2009. On 1 February 2010, the respondent father murdered Ms S Burg at their former matrimonial home. On 4 February 2011, the father was sentenced to 19 years’ imprisonment, although from his materials it appears that that decision may be subject to appeal as to the length of the sentence. Given the circumstances of the case, I shall refer to the respondent as “the father” and the applicant as “the deceased”.
The two superceding applicants, who are the surviving children of Ms S Burg and Mr O Burg, have since been granted Letters of Administration in respect of their mother’s estate and substituted as applicants in the proceeding.
The substantive issue in dispute can be stated shortly. The father’s proposal is that the applicants be paid half of the value of the former matrimonial home but otherwise be excluded from all assets, which he submits should be retained solely by him. By way of contradistinction, the applicants seek that all of what might be described as the assets of the marriage be included in the pool and be shared equally between them and the respondent.
For the reasons that follow, I propose to make the orders sought by the applicants.
Some Introductory Facts
The father was born [in] 1948 in Cyprus. The deceased was born [in] 1959, also in Cyprus. They married [in] 1984.
The applicant Ms E Burg was born [in] 1985 and the applicant Mr E Burg was born [in] 1987.
There is a dispute as to the date of separation. In the deceased’s affidavit filed on 29 September 2009, she deposed that separation occurred under the one roof in October 2008. In his responding affidavit filed on 22 October 2009, the father put the date of separation as being communicated to him when he returned to Australia in August 2009 from a holiday he had taken in Cyprus between May and August. In the circumstances of the case, nothing turns upon this dispute which is, in the absence of the deceased being able to give evidence, not readily capable of resolution.
The deceased deposed that the parties had minimal possessions at the start of the relationship and bought their first home in 1986 in [W] for $80,000. She deposed that that property was sold in 2006 for $360,000 and that those moneys were spent on purchasing a block of land in Property G upon which a house was subsequently built. It was asserted that that house had, at the time of her affidavit, virtually no mortgage.
The deceased also deposed that the father bought a block of land in [H] in Queensland at her insistence in 1997 for $68,000 which was sold for $230,000 in 2008.
It appears to be common cause that the money thus engendered was invested in [equipment omitted] purchased in the name of a family company called [B] Pty Ltd for $390,000.
The deceased deposed that she had been a homemaker but had also worked and that she had been a [occupation omitted] for the last nine years. The deceased deposed that she was scared that the father would sell the [business equipment omitted] and remove a substantial amount of cash understood by the deceased to be in the father’s Bendigo Bank account.
The father’s responding affidavit filed on 22 October 2009 confirmed many of these details. He asserted he had some $30,000 in savings at the commencement of the relationship which was committed to the purchase of the [W] property in 1985. He put the date of its sale as 2007, but this is not a matter of any moment. The father deposed that he had been a [occupation omitted] with [D] for many years and when he retired from [D] in August 2008, his various retirement payments amounted to some $220,000. He deposed that the [business equipment] had been bought with that money plus the sale of the [H] property.
He also deposed to possessing superannuation of some $280,000.
The affidavit went on to say that he had worked as a [occupation omitted] throughout and had consistently made a far greater financial contribution to the financial wellbeing of the family. He surmised that the deceased had been a gambler and confirmed, as the deceased had earlier asserted, that it was his proposal (see paragraph 62 of his affidavit) that the deceased should receive half of the value of the matrimonial house and nothing else. The father’s response, filed on 22 October 2009, was essentially to the like effect although it envisaged the division of chattels.
As I have earlier indicated, the deceased commenced the proceedings for property settlement on 29 September 2009 and the father was served with that application on 30 September 2009. On 1 October 2009, the father sent $10,000 overseas by transfer from the account of the Burg Family Trust (trustee [B] Pty Ltd) with Bendigo Bank.
Notwithstanding Orders made by this Court on 5 October 2009 which restrained the father from, inter alia, dealing with any assets owned or controlled by [B] Pty Ltd, and notwithstanding an undertaking given by the father on 8 October 2009 to the Court not to deal with any such assets, he sent $270,000 overseas by telegraphic transfer from the account of the Burg Family Trust with Bendigo Bank on 29 December 2009.
The Court’s Power to Entertain the Application
Although the respondent made no submissions about this matter, it is appropriate to record that I accept the submission of counsel for the applicants that in the circumstances of this case, the requirements of s.79(8) of the Family Law Act 1975 (“the Act”) are satisfied. The proceedings had plainly been issued before the father murdered the deceased and in his response filed 22 October 2009 it shows that there was a dispute that would have led to orders with respect to property had the deceased not died (s.79(8)(b)(i) of the Act) and, given the respondent’s rights of survivorship in respect of the former matrimonial home and his complete control of the Burg Family Trust through the trustee company [B] Pty Ltd, and the murder of the deceased, it is clearly still appropriate to make an Order with respect to property (s.79(8)(b)(ii) of the Act).
The Pool
The applicants’ version of the matters to be included in the pool is as follows:
·Home in Property G $540,000 (less mortgage $1,000) – total $539,000;
·Burg Family Trust ([B] Pty Ltd) [business equipment] – $415,333;
·Money in the bank – $55,298 (less estimated tax – total $30,717);
·The deceased’s car – $26,000;
·Father’s car – $15,000;
·Father’s term deposit – $12,356;
·Balance of deceased’s estate – $268.
Additionally there are debts:
· Owed to the deceased’s former solicitors – $13,405; and
· Owed to the deceased’s brother for the father’s legal costs – $2,796
giving a net total of assets of $1,296,337.
In the main, these matters are not the subject of controversy. The father agrees with the value of the matrimonial home and the [business equipment] and there is no real room for debate about the amounts in the various bank accounts. The cars are not the subject themselves of disputes as to valuation. The father asserts that there was a third car, a Yaris, which he asserted during the trial had been, as it were, abstracted by his daughter. It is sufficient for me to say that having heard the applicants give evidence, I accept their explanation that that car was stolen at a time when it was uninsured.
I likewise accept, despite some measure of challenge from the father, that the deceased’s brother has indeed discharged a bill of $2,796 for the father’s legal costs. The amounts owed to the solicitors are likewise proved by the evidence given by the solicitor for the applicants. The exhibits filed clearly prove in an admissible way the various sums to which reference is made.
The area of controversy in the pool is the add-backs. The add-backs concerned are the $10,000 sent overseas by the father on 1 October 2009 and the further $270,000 sent overseas by him on 29 December 2009.
In his affidavit, exhibit R1, the father says on page 5:
“$280,000 dollars I have send to overseas is the money given to me by [D] for my 26 years of service to them as a redundancee package. It is not accumulated over the years. I guess I can use it the way I want.”
As the father saw it, it was his money and he could do with it what he wanted.
At trial, and not foreshadowed in any way in the earlier materials filed, the father asserted in evidence that he had spent some $280,000 in Cyprus when he had been overseas in May to July 2009. He asserted that he had borrowed sums of this order from unidentified persons, presumably family members, in Cyprus. He said that he had used the money he sent overseas later in 2009 to discharge these debts.
I have no doubt that this assertion is untrue and a complete and recent fabrication. If it had been otherwise, it would unquestionably have been referred to in the materials filed when the father was legally represented. Even if this were not the case, he would surely have mentioned it in the excursive self-filed affidavit he lodged more recently. It should further be noted that while I make every allowance in the father’s favour, bearing in mind that he was heard by video link from prison, nonetheless his evidence on this point had all the hallmarks of an answer being made up on the run. I have no doubt that the father sent the $280,000 to Cyprus to get it, at least as he saw it, out of reach of the deceased’s claim in the property application she had brought and wherever it is, it is far more probable than otherwise that it is still directly or indirectly under his control. The entirety of this sum should be re-included in the pool.
The father sought in his most recent affidavit (exhibit R1) the return of personal belongings. In evidence, Ms E Burg denied having these in the applicants’ possession, save for three gold rings, one diamond ring and two Seiko watches, which she said she was happy to return. I will order that those chattels be returned.
The only other matters I should deal with under this heading are assertions made by the father, both in his most recent affidavit and in evidence before the Court, about a share of a [business vehicle] owned by his father-in-law, and land in Cyprus.
The applicants’ uncle, who is also their accountant, gave evidence on both these matters which I found to be entirely convincing. Essentially, he gave direct and compelling evidence, unlike the arguably hearsay evidence in the father’s affidavit. Mr K gave evidence that there is a [business vehicle] owned by a family trust which will be sold and the proceeds shared amongst four siblings only when the deceased of the relationship dies. She is 78 and the occasion for the vesting of that property simply has not occurred and its occurrence remains uncertain. This benefit, if such it eventually proves to be (the terms of the trust are not before the Court), is at this stage wholly speculative and unquantified. It cannot be included in the pool.
Mr K further gave evidence that the land in Cyprus to which the father referred is to all intents and purposes mired in the sort of encumbrances that have arisen since the separation of Cyprus following the Turkish invasion in 1974. To all effects and purposes, the land is lost. I accept that explanation.
I should say for completeness that on page 4 of his affidavit, the father refers to “a lend gave us by late father-in-law long before he died, in Cyprus total $80,000”. The father does not otherwise in any sense particularise the alleged loan and nor did he give any evidence about it. If there was such a loan, it is far more probable than otherwise that it would be statute barred. I am not prepared to include it in the pool.
Contribution
Here the father maintains stoutly that his contribution was always far the greater. This is bound up in his perception that the deceased would only ever have been entitled to share in the chattels of the relationship and the matrimonial home. The rest he sees as all, in effect, being his alone.
Counsel for the applicants pointed to the long history of the relationship and the contributions made by the deceased as a homemaker and indeed as a worker throughout most of the relationship.
To the extent that the father was critical of the deceased’s contribution and sought to raise possible dissipation in the form of gambling, these are simply unsustainable on the evidence. All the evidence shows overwhelmingly that the deceased was the homemaker throughout the relationship. This was clearly a traditional relationship and the father did not really contest for one instant the fact that the deceased brought the children up. It is also conceded that she worked, albeit for less a salary than that of the father.
There is no need to cite extensive or indeed in my opinion any authority in the circumstances of this case. I accept the submission of the applicants that the contributions of the parties were equal. This was a marriage of 24 years in which both the father and the deceased worked outside the home and in which two children were raised by their joint efforts. I accept the submission of the applicants that “such a conclusion accords with commonsense”. There is no evidence to the contrary.
I therefore find that the contributions of the father and the deceased were equal.
Counsel for the applicants has directed the Court to the sequelae of the murder of the deceased and the common law policy that prohibits a person from profiting from their crime, in particular a murder, and from sharing in the estate of their victim.
In Helton v Allen (1940) 63 CLR 691 at p.709, the judgment of Dixon, Evatt and McTiernan JJ referred to:
“a principle of public policy, and it was said that no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person (per Fry LJ).”
That was a reference to an observation in Cleaver’s case (1892) 1 QB 147 by Fry LJ at p156 to the effect that “no system of jurisprudence could with reason include amongst the rights which it enforces rights directly resulting to a person asserting them from the crime of that person”. It is clear from Re Sigsworth [1935] Ch 89 that the rule applies to intestate, as well as estate, estates in insurance claims. In Helton v Allen, at p.710, Dixon, Evatt and McTiernan JJ said, in the context of a civil trial revisiting the guilt of a person acquitted in criminal proceedings,
“There is however no trace of any such conception in the history of the principle that by committing a crime no man could obtain a lawful benefit to himself.”
I accept the submission that the effect of that rule in this case is to prevent the father from maintaining:
(a)That it is still not appropriate to make an order altering the parties’ property interests. This is so because he would otherwise take title to the home in its entirety by virtue of survivorship and retain the family trust to the exclusion of the deceased’s interests; and
(b)That the absence of s.75(2) matters applicable to the deceased warrants an adjustment under s.74(2) in his favour.
Section 75(2) matters
For the reasons just expressed, in my view it is inappropriate to make an adjustment in the father’s favour in the light of the future needs matters detailed in s.75(2) of the Act.
Just and equitable
In my view, an equal division of the net assets of the father and deceased between the father and the deceased’s estate is indeed as the applicants submit an appropriate reflection of their respective contributions and a legitimate expectation of the deceased to have her estate benefit from the fruits of her life’s work.
The father has pointed in his submissions to the fact that when released from jail he will be old and will need funds with which to support himself.
To an extent, that issue awaits the determination of the appeal and involves unattractive speculation as to the likely longevity that the father will achieve.
In any event, the net result of the proceeding will give the father over $350,000 in addition to the funds that I find he still has in Cyprus. In my view, whatever difficulties the father may face when he is eventually released from gaol are not sufficient to displace the conclusion that an equal division of the parties’ estate is entirely just and equitable.
There will be orders in the form sought by the applicants.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 24 October 2011
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