Gull and Gull

[2012] FamCA 334

FAMILY COURT OF AUSTRALIA

GULL & GULL [2012] FamCA 334

FAMILY LAW – PROPERTY – Application for partial distribution of funds in trust account

Family Law Act 1975 (Cth)

APPLICANT: Mr Gull

RESPONDENT: Ms Gull

FILE NUMBER: MLC 10581 of 2008

DATE DELIVERED: 1 May 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 1 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weil

SOLICITOR FOR THE APPLICANT: Vernon Da Gama and Associates

THE RESPONDENT: In person

Orders

IT IS ORDERED BY CONSENT

1. That the further hearing of the application filed 10 January 2011 (as amended) be adjourned to 10.00am on 30 May 2012 as a one day matter.

2. That the husband file and serve an amended application as referred to in his case outline filed 27 April 2012 no later than 4.00pm on 9 May 2012.

3. That the wife file and serve any response to the amended application by no later than 4.00pm on 25 May 2012.

4. That any further affidavit or other material upon which either the husband or the wife may seek to rely be filed and served by no later than 4.00pm on 25 May 2012.

5. Reserve to both parties general liberty to apply upon 14 days written notice first given.

6. Reserve the question of the costs of the husband of this day.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable for the husband to engage counsel to attend.

2. That the wife sign all documents and do all acts and things and furnish to the solicitor for the husband a withdrawal of caveat lodged by her or on her behalf in respect of the Certificate of Title concerning the property at … M Street, Suburb B in the State of Victoria.

3. That the wife forthwith complete her obligations pursuant to paragraph 7 of the orders made on 19 March 2008.

BY THE COURT

1. That of the money in the sum of $522,688.55 lying in trust pursuant to paragraphs 1(i), 4 and 6 of the orders made on 19 March 2008, there be an interim distribution of $300,000 of that sum pursuant to paragraph 3 of the orders made on 19 March 2008 and paragraph 2 of the order made on 26 February 2010 pending the final determination of the extant application referred to above:

   (a)    as to the husband $122,953.85; and

   (b)    as to the wife, $177,046.15, which sum will be deposited in the bank account nominated by the wife.

2. That until further order, until such time as the wife files her tax returns with the Australian Taxation Office for the tax years 1 July 2000 and ending 30 June 2011, the wife be restrained from repatriating funds lying in any of her Australian bank accounts to any banking institution outside Australia.

3. That the reasons for judgment this day be transcribed.

4. That paragraph 1 of the orders made on 29 June 2010 is discharged and the Court advise the Australian Federal Police accordingly.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gull & Gull 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 MELBOURNE

FILE NUMBER: MLC 10581 of 2008

Mr Gull

Applicant

And

Ms Gull

Respondent

REASONS FOR JUDGMENT

1. This is an ex tempore judgment arising out of a number of oral applications by both parties.  What was before me today were the applications of both parties to determine what could only be described as a mess arising out of some final financial orders from 2009. 

2. As I understand the complicated background of this case there was a contested hearing in 2008, orders in 2009 and 2010 and the proceedings seem to have been to the Full Court.  An application was also made for special leave to the High Court. 

3. Today, the wife, who is not represented by a lawyer, made an application to adjourn the proceedings on the basis that she needed time to consider what underpins the husband’s pursuit of orders under s 79A(1)(c),  I learned of that altered application in reading the husband’s outline of argument which was filed with the court only a day or so ago and Mr Weil quite properly did not really oppose the matter being adjourned.

4. Having had that application made, an oral application was then made by the husband for a partial distribution of funds which currently stand at $522,688 in the trust account of the solicitor for the husband.  Those were the contentious funds that were apparently held in India and which Mushin J ordered to be returned to Australia when he made orders in March 2008.  The oral application of the husband is encapsulated in the 11 orders that he seeks which are in the form of a minute drawn today.  The wife has an objection in respect of number 1 of those minutes.  Her objection is that no money should be released on an interim basis bearing in mind that the hearing is to take place on 30 May.

5. I propose to make the orders in the terms of the draft for the following reasons. 

6. In March 208 Mushin  J went to some unusual lengths to set out as the very first order what he found to constitute the assets of the parties for the purposes of the division.  His Honour then divided what he described as the net assets on a percentage basis.  A dilemma was that the significant portion of the pool of assets was contained in bank accounts in India and that money was to be repatriated under the orders.  Once repatriated, the funds were to be divided.  The dispute between the parties over those funds is reasonably confined to two things.

7. There are other issues in this case but the fundamental issues seem to be these.  First, the husband says that had he had an expeditious return of the Indian moneys, having regard to the exchange rate at that time, he would have been substantially better off.  He is therefore seeking under section 79A(1)(c) to set aside the orders because of the default, as he sees it, of the wife.  I am not making any findings of fact at this stage nor should I in respect of whether or not there is a default.  But on any view, a significant portion of the funds that are currently held in the trust account of the solicitor for the husband are not disputed.

8. The second issue relates to what the wife claims is about $15,000 against the husband and she wanted that sum deducted from the money that he would otherwise get from the first tranche that I have just referred to.  Her claim arises out of the fact that subsequent to the orders of Mushin J, the mortgage encumbering the home in which she now lives and which was to be hers pursuant to the orders, has been increased and she attributes that to the husband.  Paragraph 7 of the orders of Mushin J not only orders her to indemnify the husband from the moment of the transfer of the property to her, but also to indemnify him and keep him indemnified in respect of any liability, past, present or future including principal interest on any mortgage.

9. There is, therefore, no reason for me not to otherwise carry out the orders that Mushin J otherwise intended.  As a precaution, I propose to limit the distribution to a total sum of 300,000 out of the $522,000 because there is a possibility that if the husband’s application was successful, he might make a claim against what otherwise might belong to the wife.  Likewise if the wife is successful, she might want to claim against the husband.  On that basis I think there is no logical reason why the rest of the order should not be carried out.

10. Other orders which have been made by the orders of March 2008 include the transfer of the properties once the money came back from India.  The money is back from India.  There is no logical reason why the transfer should not be executed. 

11. The husband’s solicitor has offered to prepare the transfer and it is the obligation of the wife to carry out the execution of all the necessary documents to give effect to the transfer.  One of the other obligations she has under the orders is to remove a caveat.  There was some debate about whether or not she should actually go and do that herself, but again the solicitor for the husband has very sensibly offered to do it for her provided she pays the relevant withdrawal of caveat fee and she has agreed to that course of action.

12. It is clear also from other orders made subsequent to the final orders in 2008 that Mushin J was concerned about the wife travelling to India preventing his Honour’s orders from being carried out.  To that end, his Honour made an order that the wife be precluded from leaving Australia.  The money is back in Australia now and I see no reason why the foundation for those orders can remain.  On that basis I propose to discharge the airport watch order in respect of the wife. 

13. There was also an oral application made that I discharge the order in respect of the 17½ old son, but there is no evidence that I have read that might justify that today.  No doubt that is a matter that can be addressed in a month’s time.

14. I otherwise propose to adjourn the matter to 30 May.  One of the other orders to which the wife has agreed is that she complete her obligations under paragraph 7 of the orders made on 19 March.  Whilst it is not specifically spelt out that she is to arrange with the bank to release the husband from the mortgage, the intent of the order could not be clearer.  The order provides that the husband is to be indemnified by the wife as I have pointed out.  To the extent that the indemnity is only good as between the husband and the wife, should the bank take any action against the husband, then the wife is putting her house at risk because the husband would then call upon the indemnity.

15. It seems logical, therefore, that as part of some machinery provision, the clear understanding ought be that the wife is to arrange for that mortgage to be re-written so that the husband is no longer obliged to the bank.  I propose to have these reasons published so that there is no further argument about what has happened today. 

I certify that the preceding Fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 1 May 2012.

Associate: 

Date:  10 May 2012