Kalita & Sachar
[2021] FedCFamC1F 187
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kalita & Sachar [2021] FedCFamC1F 187
File number(s): MLC 5428 of 2018 Judgment of: GILL J Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – PROPERTY – Undefended hearing – Application to set aside sale of property – Unable to establish the transaction was not bona fide – Application for alteration of property interests – Tracing proceeds of sale to determine property pool – Inference as to sum of undisclosed cash in the control of the respondent – Adjustment made in favour of applicant – Orders made for transfer of 90 per cent of property pool to the applicant
FAMILY LAW – PRACTICE AND PROCEDURE – Application for a vexatious proceedings order – Several applications filed by the respondent deemed devoid of merit – Frequency not established – Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 75, 79, 102Q, 102QB, 106B Cases cited: Benson & Drury (2020) FLC 93-998
Bevan & Bevan (2013) FLC 93-545
Chang v Su (2002) FLC 93-117
Dickons & Dickons (2012) 50 FamLR 244
Kennon v Kennon (1997) FLC 92-757
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Rilak & Tsocas [2020] FamCA 49
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 100 Date of hearing: 6 October 2021 Place: Canberra Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Legal Aid, ACT Solicitor for the First Respondent: No appearance Solicitor for the Second Respondent: No appearance ORDERS
MLC 5428 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KALITA
Applicant
AND: MR SACHAR
First Respondent
MR B SACHAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
Monies to be paid
1.That the money currently held in the ANZ Progress Saver account ending #...05 is the property of MS KALITA (the wife) and shall be forthwith paid to the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
2.That the money currently held in the AA Bank Direct Saver account ending #...49 is the property of MS KALITA (the wife) and shall be forthwith paid into the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Monies in trust
3.That the money currently held by BB Lawyers in their trust account is the property of MS KALITA (the wife) and shall be forthwith paid to the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Superannuation
4.That Order 1 of the Orders made 20 April 2020 be discharged.
5.That the Applicant Wife’s solicitor cause a copy of these Orders to be served on the Trustee of CC Pty Ltd (‘the Trustee’).
6.In accordance with section 90XT(1)(a) of the Family Law Act 1975, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of MR SACHAR from his interest in CC Super Fund (‘the Fund’), MS KALITA is entitled to be paid by CC Pty Ltd (‘the Trustee) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a percentage of 100 per cent and there is a corresponding reduction in the entitlement MR SACHAR would have had but for these Orders.
7.That the Trustee of the Fund be bound by these Orders.
8.That the operative time for Order 6 above is four (4) business days after the service of the final orders on the Trustee.
9.That the Trustee shall do all acts and things and sign all such documents as may be necessary to:
(a)Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to MS KALITA in the preceding clause/s of this Order; and
(b)Pay the entitlement whenever the Trustee makes a splittable payment from MR SACHAR’s interest in the Fund.
10.That the Court notes:
(a)That in accordance with section 90XZD of the Family Law Act 1975, the Trustee has been accorded procedural fairness in relation to the making of this Order and has been provided with a copy of the proposed Order;
(b)That the value of the transferable benefits created from the non-member spouse entitlement awarded under this Order is calculated in accordance with the Superannuation Industry (Supervision) Regulations 1994; and
(c)Any payments from the First Respondent’s superannuation interest in the Fund after the trustee has created a new interest in the Applicant Wife’s name in the Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation).
11.That in the event that any party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
12.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
(c)Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
(d)All insurance policies are to become the sole property of the owner named hereon;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(f)Any joint tenancy of the Husband and Wife in any real or personal estate is hereby expressly severed.
Further payment
13.That the Husband, within 14 days of the date of these Orders, deliver to the Registry of the Federal Circuit and Family Court of Australia at the Nigel Bowen Commonwealth Law Court, Cnr University Avenue and Childers Street Canberra the following:
(a)The 3 small gold kitty sets (with necklace and earrings);
(b)The bigger, heavier set of gold necklace and earrings;
(c)The gold bangles;
(d)5 rings; and
(e)1 gold chain.
14.That the Husband, within 14 days of the date of these Orders, pay $155,826.80 into the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Other
15.The second respondent’s child-related application filed 7 October 2020 is listed for hearing on 26 November 2021 at 10 am.
16.Ms Kalita is to produce at the hearing to the court evidence to demonstrate that these orders and hence the allocation of the hearing date has been brought to the attention of the other parties.
17.The oral application for costs is dismissed.
Notation
A.This Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kalita & Sachar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J
These proceedings primarily concern a property dispute between the wife and the husband. They follow the final breakdown of their relationship in December 2017. The proceedings also involve the brother of the husband, as the second respondent, in respect of an application made by the wife pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”) to undo the transfer of the former matrimonial home (the “Suburb D property”) to him by the husband following that separation. Further, the proceedings involve an application to make the husband subject to a vexatious proceedings order.
The property proceedings have followed a somewhat difficult path. They were listed for final determination along with the children’s proceedings in the Federal Circuit Court in late 2020. The children’s proceedings between the parents moved to finalisation, although a late child-related application by the brother was unable to be dealt with at that stage. The hearing in the Federal Circuit Court resulted in the wife having sole parental responsibility for their four children, and for the four children to live with her. The property proceedings, and the child-related proceedings insofar as they related to the brother, were then transferred to the Family Court of Australia.
Since the transfer the proceedings have been characterised by non-participation and non-compliance with directions by the brother and by non-compliance with directions by the husband. They have further been characterised by the making of unmeritorious applications by the husband.
Neither the husband nor his brother participated in the final hearing that related to property, the s 106B application and the vexatious proceedings issue and so it proceeded on an undefended basis. The remaining child-related application by the brother will be listed shortly for determination.
Documents relied upon
The mother relied upon the following documents:
(a)Affidavit of Mr G filed 21 June 2018;
(b)Wife's affidavit filed 15 September 2020;
(c)Wife's financial statement filed 15 September 2020;
(d)Wife's Amended Application for Final Orders filed 17 June 2021;
(e)Judgment – Sachar & Kalita (No 2) [2021] FCCA 1468;
(f)Response to Interim Orders filed 3 September 2021;
(g)Wife's Outline of Case Document (Final Hearing) filed 30 September 2021;
(h)Wife's Final Orders Sought filed 30 September 2021;
(i)Wife's aide memoire filed 30 September 2021; and
(j)Wife's court book filed 30 September 2021.
Exhibits
The following documents became exhibits in the proceedings:
(a)W1 – Wife's court book filed 30 September 2021;
(b)W2 – Wife's aide memoire filed 30 September 2021;
(c)W3 – Affidavit of MR SACHAR dated 10 July 2018;
(d)W4 – Affidavit of MR SACHAR dated 1 November 2018;
(e)W5 – MR SACHAR’s financial statement dated 4 October 2018;
(f)W6 – Wife's costs notice filed 6 October 2021;
(g)W7 (exhibited in chambers) – Correspondence from CC Super Fund regarding form of orders;
(h)W8 (exhibited in chambers) – Amended final orders sought by the wife; and
(i)C1 – Transcript of proceedings dated 7 October 2020.
Relief sought
The orders sought by the wife are annexed to this judgment. In general terms, the wife sought that the transfer of the former matrimonial home to the brother be reversed, that she be appointed trustee for sale of the property and receive 80 per cent of the net proceeds of that sale (the other 20 per cent going to the brother), and that the wife receive all identified remaining cash of the relationship and all superannuation.
In the alternative and recognising that there are difficulties in respect of the application relating to the former family home, the wife seeks that she be provided all cash currently identified to be in existence, all of the superannuation of the parties and an order directing the husband to make a further cash payment to her from various undisclosed funds in his control.
Additionally, the wife pursues orders for costs and also an order pursuant s 102QB of the Act, declaring husband to be a vexatious litigant.
Principles in relation to the adjustment of property
The key to the exercise of jurisdiction in relation to the property of the parties is that it must be just and equitable both to adjust the property interests at all[1] and to adjust them in a particular manner.[2]
[1] Stanford v Stanford (2012) 247 CLR 108, 120 [35] (French CJ, Hayne, Kiefel and Bell JJ).
[2] Bevan & Bevan (2013) FLC 93-545, [86] (Bryant CJ and Thackray J).
The necessary first step in consideration of whether it is just and equitable to make an order is to identify “according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property”.[3]
[3] Stanford v Stanford (2012) 247 CLR 108, 120 [37] (emphasis in original).
To that end parties in litigation relating to property are the subject of strong disclosure obligations. Such obligations are particularly necessary where one party rather than both hold either the property of the relationship or the information as to the property of the relationship. A party’s failure to disclose carries with it the potential to skew the determination of what is just and equitable. Accordingly, cases such as Weir & Weir[4] and Chang v Su[5] have identified that, where there has been a deliberate non-disclosure, a court should not be “unduly cautious about making findings in favour of the innocent party”,[6] and that circumstances of deliberate non-disclosure allow a court to adjust property even where unable to come to proximate findings to identify the pool of property.
[4] (1993) FLC 92-338.
[5] (2002) FLC 93-117.
[6] Weir & Weir (1993) FLC 92-338, 849.
Section 79 requires, in exercising the discretion to adjust the property interests of the parties, that the contributions of the parties are to be given consideration. In Dickons & Dickons, the Full Court said that
the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79). That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of the particular marriage.”[7]
(As per the original)
[7] Dickons & Dickons (2012) 50 FamLR 244, [21] (Bryant CJ, Faulks DCJ and Murphy J).
The circumstances of the making of the contributions may also be taken into account, in particular where the conduct of one party has made the contributions of another party significantly more arduous. Cases such as Kennon & Kennon[8] and Benson & Drury[9] have identified that part of the holistic, qualitative assessment of contributions includes the recognition of the effects of conduct such as family violence on the making of contributions, whether that impact is deduced by inference or by other, more direct, evidence.
[8] (1997) FLC 92-757.
[9] (2020) FLC 93-998.
Following the assessment of contributions, it is necessary for the Court to consider those matters set out at s 75(2) of the Act.
Once the Court has examined these matters, via a lens of what is just and equitable throughout, it is necessary for the court to consider whether the end result still meets the description of just and equitable.
It is against this legal framework that the circumstances of the parties are to be assessed.
The history of the relationship
The parties commenced their relationship in December 2006 marrying, via an arranged marriage, in India in 2007. As part of this arrangement the wife’s family provided a $20,000 dowry constituted of jewellery, subsequently retained by the husband post separation.
The parties moved to Australia, the husband purchasing the former matrimonial home at C Street, Suburb D, Victoria for $250,000. It is unclear how the funds were secured for the purchase, although the husband asserted that he contributed $25,000 to the deposit with his brother, the second respondent, providing $35,000 for the deposit. At that time the husband was working in transport while the wife, who was a healthcare professional undertaking her Masters in the lead up to the marriage and following the marriage, was initially forbidden to work by the husband.
The husband ceased working in November 2008 having earlier demanded that the wife commence work. She did so, working at Employer S from March 2008 until November 2010, taking some time off for the birth of two of their children. Ultimately, the parties have had four children, W, born in 2009, X, born in 2010, Y, born in 2012, and Z, born in 2013.
After the wife ceased work neither of the parties returned to paid employment prior to separation.
Both while working, and when not, the wife undertook the bulk of the care of the family, contributing by attending to the payment of bills, cleaning, cooking and caring for the children. The husband did little to contribute. However, he did much to render the wife’s contributions significantly more arduous. For example, at his insistence:
(a)They lived in a caravan for a period in the backyard of the home to allow the home to be rented out;
(b)They lived for a period in only part of the home so that it could otherwise be rented;
(c)The husband restricted access to electricity and to hot water causing, for example, the wife to have to cold hand wash for the family;
(d)The husband restricted the wife’s access to finances even when the money was earnt by the wife;
(e)The husband engaged in serious verbal abuse of the wife;
(f)The husband engaged in other abusive behaviour such as tipping out clean washing for supposed lapses by the wife in folding and putting away such washing, or by throwing food that she had prepared on the floor for her to clean up;
(g)The husband engaged in weekly violence against the wife; and
(h)The husband controlled the extent to which the wife was able to have contact with her family.
Together these matters rendered her already substantial contributions significantly more arduous.
Ultimately the parties separated on 19 December 2017, the wife leaving the home with nothing following an assault by the husband upon her for which he was later convicted.
Post separation conduct and events
Shortly following separation, and ever since, the wife has had the full care of all four children of the relationship, a situation set to continue pursuant to the final orders of the Federal Circuit Court. The husband has engaged in ongoing stalking behaviour of the wife, making her contributions in respect of caring for the children more arduous post separation.
A divorce order was ultimately made on 6 October 2021. The husband had opposed such an order being made. The husband did not attend to contest the order being made.
Due in part to the hurried circumstances of the separation the wife was not in possession of documents and information evidencing the financial arrangements of the parties. This rendered the requirement for the husband to provide disclosure as a matter of importance to the just determination of the dispute. The husband, despite multiple requests and orders of the court, has not provided proper or adequate financial disclosure to the wife. He has, however, set out various assertions as to his financial circumstances in affidavits that he has filed.
Following the end of the relationship the husband sold the Suburb D property to his brother. The sale price was $504,000, which was accepted at the trial by the wife to approximate market value. Of that sum $170,000 was required to discharge the mortgage. However, the balance paid to the husband on the settlement date (16 February 2018) was $227,530.15, constituting a significant shortfall in the payment of the purchase price. This shortfall was explained on the basis that an allowance of $104,000 was made to the brother in relation to contributions supposedly made. No support or verification, or even particularisation of such contributions was produced.
That left the $104,000 with little by way of explanation, although it was conceded by the wife that she was unable to affirmatively establish that the $104,000 was other than a genuine debt. As to the balance actually received by the husband there were various descriptions proffered as to its disposal that left no confidence in the husband’s candour and ultimately lead to a conclusion that while it has been established that the husband received the monies, it has not been established that they have left his control.
For example, on 4 October 2018 the husband filed a financial statement asserting that he had an amount of approximately $29,000 in an ANZ account but no other savings. This assertion as to the diminution of the proceeds of sale held by him to $29,000 was undermined by the husband’s later assertions as to the disposal and whereabouts of the proceeds.
Subsequently, on 5 November 2018 the husband filed an affidavit indicating that from the proceeds of the sale of the C Street property he had made a payment to his brother of $104,000 (“adjusted into the property for contributions”), $93,000 to himself, a further $60,000 remaining in the bank, legal fees of $17,350, credit card expenses of $24,409 and incurred food expenses of just under $30,000.
The inconsistency with the husband’s previous representation of holding a mere $29,000 is stark.
The rapid oscillations of the husband’s descriptions as to the status of the proceeds causes serious doubt that the money has been dealt with as described. Those doubts solidify into a firm rejection of the husband’s assertions when more concrete evidence is brought to bear as to the timing and manner of the movement of the proceeds.
At trial the wife was able to identify the location of a portion of the funds retained by the husband (the “available assets”) as:
(a)$5,000 contained in BB Lawyers Trust Account (the “trust account”), being monies deposited there by the husband from the sale proceeds of the Suburb D property;
(b)$10,018.65 contained in the AA Bank account ending #...49 (the “AA Bank account”);
(c)$29,574.50 contained in the ANZ account ending #...05 (the “ANZ account”); and
(d)$10,515 contained in the husband’s CC Super Fund account (the “superannuation”).[10]
[10] Mother’s outline of case filed 30 September 2021, p. 5.
This means that, excluding superannuation, the amount of identified located funds in the property pool is $44,593.15. The total pool of identified and located assets including superannuation thereby amounts to $55,108.15.
The issue then is the status of the remainder of the (unlocated) funds received by the husband.
In order to deal with this issue the wife adduced evidence to trace the movement of funds by the husband. This evidence painted a most troubling picture, both of an attempt to defeat the wife’s claim and of a challenge to the authority of the court.
Tracing the proceeds of sale
In addition to the AA Bank account and ANZ account identified above, the wife provided evidence that the funds from the sale of the matrimonial home can be traced through transfers between a number of other accounts in the husband’s name. These are identified as the:
(a)Westpac Classic Plus account ending #...57 (the “Classic Plus account”);
(b)Westpac E-Saver account ending #...94 (the “E-Saver"); and
(c)Westpac Altitude Platinum Credit Card account ending #...66 (“the Altitude credit card”).
As at 5 January 2018 (shortly post-separation but prior to the sale of the Suburb D property), the husband’s Classic Plus account contained $11,911. $6,847.45 was paid to an Altitude credit card on 19 January 2021 and a further payment of $1,091 on 5 February 2018 reduced the balance of the Classic Plus account to around $4000.
On 16 February 2018, the $227,000 from the proceeds of the sale of the property was paid into the Classic Plus account. The balance of the account then stood at $231,503.03.[11]
[11] Court book filed 30 September 2021, p. 48.
The husband made a further payment of $1,779.49 to the Altitude credit card on 21 February 2018 and then a series of withdrawals totalling $32,000 at various locations between 22–28 February 2017.
On 26 March 2018, two withdrawals of $9,500 and $150,000 were made. It is unclear what happened to the $9,500, but the $150,000 can be traced to the E-Saver account.
The first deposit into the E-Saver account opened by the husband is that sum of $150,000 on 26 March 2018.[12] With the exception of a payment of $8,880 to the Altitude credit card on 11 June 2018 and a series of interest payments and withholding tax deductions, all subsequent withdrawals from the E-Saver account between 30 April 2018 and 15 June 2018 were transfers back to the Classic Plus account totalling $141,448. The final transfer on 15 June 2018 reduced the balance of the E-Saver account to zero.[13]
[12] Court book filed 30 September 2021, p. 53.
[13] Court book filed 30 September 2021, p. 53.
Hence it can be seen that the $150,000 transfer to the E-Saver account does not constitute a disposal of the funds and it is necessary to return to examine the activity in the Classic Plus account during this period.
After the 26 March 2018 $150,000 deposit into the E-Saver, the Classic Plus account stood at $39,898.12. Further withdrawals at various branches on 10, 13, 18 and 19 April 2018 totalling $30,000 were made, but the use of such has not been explained. On 23 April 2018 there was another withdrawal to the Altitude credit card of $1,464.30, leaving a balance of $5,410.48 in the Classic Plus account.[14]
[14] Court book filed 30 September 2021, p. 48.
Following a $6,400 deposit from the E-Saver account on 30 April 2018, a further $8,500 and $800 was withdrawn in separate transactions from the Classic Plus account on the same date. On 1 May 2018, $850 was withdrawn from the Classic Plus account. A deposit of $10,000 from the E-Saver on 3 May 2018 was followed on the same date and the day after by withdrawals of $5,000 and $6,500. This pattern continued with a further $10,000 deposit from the E-Saver on 8 May 2018 followed by withdrawals of $5000 and $4,700 on 14 May 2018. On 15 May 2018 a further $15,000 was deposited into the Classic Plus account from the E-Saver account, followed by two payments to the husband’s solicitors totalling $1,700 and a payment to the Altitude credit card of $3,317.69 between 18 and 21 May 2018.
The wife asserts that she was unaware of the transfer of the Suburb D property until March or April of 2018. She filed a response to the husband's application for final orders on 7 June 2018 seeking to restrain the proceeds and the removal of monies from the husband’s accounts. The application by the wife forms the necessary background to the husband’s ongoing movement of funds.
The next notable activity in the Classic Plus account occurred on 11 June 2018, following the wife filing her response on 7 June 2018. Between 11 to 15 June, a total of $100,048 was transferred from the E-Saver account back to the Classic Plus account. As noted above, these transfers reduced the balance in the E-Saver account to $0.
Concurrent withdrawals from the Classic Plus account over this period along with payments to the Altitude credit card and to the husband’s lawyers reduced the balance of the Classic Plus account to $0.48 on 15 June 2018.[15] Whilst some of the payments are identifiable, such as those to the husband’s lawyers (including the $5000 in the BB Lawyers trust account) or to the Altitude credit card, it is unclear where most of the withdrawn funds ended up. However, some withdrawals from the Classic Plus account match deposits into the ANZ account on 13–15 June,[16] which forms the basis of the wife’s claim that the $29,574.50 remaining in the ANZ account constitutes available assets for distribution. Similarly, the $9980 deposited into the AA Bank account on 15 June[17] matches the equivalent withdrawal from the Classic Plus account on the same date.
[15] Court book filed 30 September 2021, p. 47.
[16] Court book filed 30 September 2021, p. 46.
[17] Court book filed 30 September 2021, p. 54.
It can thereby be seen that between the wife responding on 7 June 2018 seeking to restrain the disposal of the funds and 15 June 2018 the husband emptied the approximately $100,000 contents from the E-Saver account into the Classic Plus account, with the Classic Plus account in turn being drained.
Careful attention should be paid to the timing of this conduct as it culminates on 15 June 2018, the day on which orders were made by Judge Williams restraining the husband from dealing with funds in the Classic Plus, E-Saver and Altitude credit card accounts and extending to any other accounts within his control which contained funds from the sale of the property.
The affidavit of the husband’s then lawyer, Mr G details the orders that were made by Judge Williams during the day to cause the husband to produce bank statements to identify the application of the proceeds of sale. The husband was at best tardy in his compliance with these orders, and spent this time attending to further emptying of the funds from the accounts via his mobile phone and through the use of an ATM in the immediate face of the proceedings to restrain him from doing so. It should not be inferred that the husband’s solicitor was aware of the husband’s depleting of the account at the time.
Husband’s explanation regarding the cash withdrawals
Adding to his earlier explanations the husband asserts that he paid a further $81,000 to his brother to repay loans, an amount that does not sit easily with the various descriptions of the retention of proceeds by the husband in his affidavits and financial statements set out above. It also sits uncomfortably with the previous explanation for why the husband did not receive the full proceeds of the sale in order to deal with a debt to the brother. The question that arises is that if the brother was owed such further money, why was it not dealt with in the same manner as the other asserted contributions, rather than firstly being paid to the husband in order to be repaid to the brother? The nature of the withdrawals also do not lead to a ready inference of repayment to the brother.
This explanation should be rejected.
The s 106B application
Section 106B of the Act provides a mechanism to set aside transactions intended to or otherwise likely to defeat an anticipated order of the court. The onus to establish the circumstances entitling her to relief rests upon the wife.
Here the necessary intention or likelihood arises in the event that the proceeds of the sale, accepted to be at market value, were improperly reduced by reference to monies owed to the brother. That impropriety is reliant upon it being established that there was no such debt.
The wife accepted that she could not establish that the $104,000 retained by the brother was other than for a genuine debt. While the non-participation of the brother in the proceedings renders the drawing of adverse inferences against him more easily done, the circumstances fell short of positively establishing that the transaction was other than genuine.
The wife accepted that this led to difficulty in establishing the s 106B claim.
It is a matter that is determinative against the s 106B application in relation to the transfer of the property to the brother.
In any event, relief under s 106B being discretionary, there was a further matter pointing away from the relief being granted, as it was established that the brother had made the payment of the balance of the funds to the husband, and since then has been responsible for the payment of the mortgage on the property. The wife accepted that if s 106B orders were made they would need to deal with the payments made by the brother, but was unable to show how her proposed orders would do so. This also meant that such relief would not have been appropriate.
No order pursuant to s 106B should be made.
The fall-back position
The fall-back position of the wife in the event that, as here, the s 106B order is not to be made, was to require the payment of a sum to her in addition to the identified and located assets. It relies upon distinctly different matters to the s 106B application, as it relies upon the pool of the property of the parties as being identified to include the balance of the proceeds received by the husband from his brother.
That relies firstly upon the established fact that the husband received $227,000 on settlement of the Suburb D property. Of this sum almost $45,000 is able to be located as identified above. It is unclear where the balance lies.
However, that lack of clarity does not defeat the wife’s claim that the balance should be included in the pool of property as a currently existing asset. Lack of clarity about where the asset lies does not equate directly to a finding that the asset no longer exists in the control of a party, or was disposed of by a party.
Here while an issue of disposal arises, it is unexplained in any convincing manner by the putative disposer, the husband. The absence of a persuasive explanation as to disposal leaves intact the underlying fact that the husband has taken receipt of the funds. It was within his power to demonstrate where the funds currently lie, or how they were disposed of if no longer in existence or in his control. He either has not done so, or has not done so in a manner that establishes the loss of the funds by him.
For example, to the extent that a claim is made of the payment of further loans to the brother, it is without anything that would give it credence, for the reasons identified above.
Further, the shell game of shuffling the money between accounts, and accelerating of the transfers in the face of the court exercising jurisdiction to restrain the use of the funds does not provide credible evidence that the funds are in fact gone in a relevant sense.
The only transfers with a hint of capacity to establish that the funds have actually been depleted are the payments of the credit cards as evidenced in the bank statements.
The aide memoire of the Wife provided a schedule of transactions to the Altitude Credit Card.[18] These transactions are evidenced in the corresponding statements provided in the Court Book, which demonstrate that a total of $26,580.05 was paid off the Altitude credit card between January and June 2018:
[18] Wife’s aide memoire filed 30 September 2021, p. 12.
(a)$6,847.45 transferred from the Classic Plus account on 19 January 2018;
(b)$1,779.49 transferred from the Classic Plus account on 21 February 2018;
(c)$524.62 transferred from the Classic Plus account on 22 March 2018;
(d)$1,464.80 transferred from the Classic Plus account on 23 April 2018;
(e)$3,317.69 transferred from the Classic Plus account on 21 May 2018;
(f)$8,880 transferred from the E-Saver account on 9 June 2018;
(g)$2,000 transferred from the Classic Plus account on 15 June 2018; and
(h)$1,766 transferred from the Classic Plus account on 15 June 2018.
This leaves the position that it has been established that the husband received proceeds of $227,000 from the sale of the Suburb D property. The evidence establishes that while the husband has moved the funds around, and in a manner that does not reveal their current location (save for the specific amounts identified), the evidence does not establish that the funds are no longer in existence, save to the extent that the bank records relied upon reveal the portion of $26,580.05 as having been spent on the credit card.
Accordingly the current pool of property may be reckoned by taking from the payment of $227,000 the amount of $26,580.05. This incorporates currently restrained proceeds. To this should be added a superannuation interest held by the husband of $10,515, and jewellery (the dowry) retained by the husband of $20,000.
This leaves a current pool of approximately $230,000, of which $10,515 is superannuation and $44,593.15 is held in the two restrained accounts and the solicitor’s trust account, as set out below.
LINE NUMBER DESCRIPTION VALUE A BB Lawyers Trust Account monies $5,000.00 B AA Bank account ending #...49 $10,018.65 C ANZ account ending #...05 $29,574.50 D Husband’s CC Super Fund $10,515.00 E Cash in control of the husband $155,826.80 F Jewellery $20,000.00
The balance of the sum received by the husband and spent by the husband via the credit cards ($26,580.05), without reference to the wife, and without explanation represents an additional amount from which the husband has already prematurely taken a benefit.
Taking into account what the husband has already taken, the total pool may be reckoned at approximately $257,515.
Consideration
The contributions heavily favour the wife. In addition to the dowry jewellery provided at the start of the relationship, her contributions during the relationship were rendered significantly, and at times apparently deliberately, more arduous by the conduct of the husband, as she contributed to the welfare of the family in a non-financial manner. Further, whilst maintaining her non-financial contributions the wife undertook work to contribute financially when the husband had ceased to continue to do so. It cannot be inferred or accepted that the husband increased his non-financial contributions during the time that the wife was working.
This is not to say that the husband made no contributions. It is accepted that he worked for part of the relationship, in a manner that helped the parties acquire the Suburb D property.
Since the end of the relationship, while there is nothing to suggest that the husband has made any contributions of significance, the wife has continued her strong contributions in the care of the children whilst dealing with the added burden imposed by the husband’s conduct, having assaulted her on separation, then stalked her and subjected her to unmeritorious court applications.
The appropriate qualitative assessment in the light of these factors is that the wife’s contributions favour her 80 per cent to the husband’s 20 per cent.
Turning to the s 75(2) factors, it should be noted that the wife is shortly to obtain qualification to enable her to work in healthcare, and anticipates securing work in that industry. Her prospects are not poor, but limited by the responsibilities that she bears as the sole carer of the four children, such that she anticipates initially engaging in part time work in support of her role caring for the children.
The added responsibilities for the care of the children, in the context of the limited pool, calls for a further adjustment in her favour at 90 per cent to the husband’s 10 per cent.
In the alternative to the s 106B orders the wife sought orders that she would retain the monies held in the various identified accounts including the solicitor’s trust account, the husband’s superannuation along with either a cash payment from the husband of $192,000 and the return of the jewellery or, absent the jewellery, payment of $212,000.
As to the form of the orders for the superannuation, the wife was permitted to provide material demonstrating that procedural fairness had been accorded to the superannuation fund subsequent to the hearing of the matter. She did so and the form of orders identified by the fund are contained at Exhibit W7 and in the amended form of orders that she subsequently provided that are replicated at the end of the judgment.
The evidence is that the husband retained the jewellery. There can be no satisfaction that he has disposed of it. It is appropriate that an order be made on the basis that it still forms a part of the pool for it to be returned to the wife.
Orders will be made for the wife to receive 90 per cent of the total pool of $257,515 incorporating the cash in identified accounts, jewellery, superannuation, cash otherwise controlled by the husband and the amount prematurely distributed by the husband. That is a gross amount of $231,763.50.
This means that in addition to the wife receiving the amounts in the identified accounts, jewellery and superannuation, a further cash payment of $156,655.35 would be required. However, that exceeds the cash still in the control of the husband of $155,826.80. Accordingly the order will be made for the amount that remains in existence at $155,826.80. Although this is slightly less than the amount required to reach 90 per cent, the difference is marginal and the ultimate result still fits the description of just and equitable.
It may be anticipated that the wife will encounter difficulties in enforcement of these orders. That difficulty does not, however, call for lesser orders to be made in her favour.
Application for a vexatious proceedings order
The wife seeks an order that the husband be prohibited from instituting further proceedings in this Court in relation to property under s 102QB of the Act. Orders made on 22 July 2021 placed the parties on notice that such an application would be made.
Relevantly ss 102QB(1) and (2) are in the following terms:
(1)This section applies if a court exercising jurisdiction in proceedings under this Act is satisfied:
(a) a person has frequently instituted or conducted vexatious proceedings in Australian courts or tribunals; or
(b) a person, acting in concert with another person who is subject to a vexatious proceedings order or who is covered by paragraph (a), has instituted or conducted vexatious proceedings in an Australian court or tribunal.
(2)The court may make any or all of the following orders:
(a) an order staying or dismissing all or part of any proceedings in the court already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act;
(c) any other order the court considers appropriate in relation to the person.
Note: Examples of an order under paragraph (c) are an order directing that the person may only file documents by mail, an order to give security for costs and an order for costs.
The basis put forward for the wife is that the husband has made repeated applications that have been unmeritorious. This contention, if made out, attracts the definition at s 102Q(c), being “proceedings instituted or pursued in a court or tribunal without reasonable ground”.
In Rilak & Tsocas, I summarised the operation of the vexatious litigant provisions as follows:
[27] Two key ingredients are to be established before the Court considers exercising the discretion to make a vexatious proceedings order. They are that vexatious proceedings have been instituted or conducted and that this has occurred frequently.[19]
[19] Rilak & Tsocas [2020] FamCA 49, [27] (citations omitted).
As to what is understood to be vexatious, and what constitutes frequent, extracting from Pencious & Searle[20] which in turn relied upon Official Trustee in Bankruptcy v Gargan (No 2) (“Gargan”),[21] at [28]–[35] of Rilak & Tsokas I further said:
[20] (2017) FLC 93-805.
[21] [2009] FCA 398.
[28] The approach to this compound issue taken in Cannon & Acres and in Pencious & Searle involved a first step of individually analysing each of the proceedings in order to establish which could be described as vexatious and then secondly determining whether or not this had happened frequently.
[29] In dealing with what is meant by vexatious, and in dealing with a s 102QB application, the Full Court in Pencious & Searle adopted what had been said by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398:
In an often quoted passage in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Perram J spoke of the general principles that apply to applications for vexatious proceedings orders. His Honour said:
A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established.
First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen’s ordinary right. It is, therefore, not lightly to be made.
Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings may fairly be said to be both habitual and persistent.
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant’s conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
Eighthly, each of these notions – the want of reasonable grounds, habitual institution and persistent institution – are to be gauged objectively. But this does not mean that a litigant’s own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto – so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
Tenthly, other proceedings commenced before bodies which are not courts, such as the Administrative Appeals Tribunal, are not directly pertinent to the existence of the power but may nevertheless throw light on the vexatious nature of proceedings before the Court; so too, the existence of a body of such administrative litigation may have relevance to the question of whether the Court’s power to make the order, once enlivened, should be exercised.
Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest – although not determine – a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.
(Original emphasis)
[30] It may be drawn from here that the protective nature of the provision, and the severe consequences of depriving a person of access to a court remain central matters to be borne in mind in considering the operation of the provision. These require a careful consideration of what is asserted to be vexatious in the light of the inclusive, non-exhaustive statutory definition.
[31] What also emerges is that neither the statutory provision at s 102Q(a), (c) or (d), nor the explanation given by Perram J require, as a necessary element, a subjective intention or knowledge that the proceedings
a)Abuse the process of a court or tribunal;
b)Are without reasonable grounds;
c)Are conducted in a way so as to harass or annoy, cause delay or detriment or achieve another wrongful purpose.
[32] This is consistent with the protective nature of the power.
[33] However, subjective intention remains relevant (s 102Q(b)) where proceedings are conducted to harass or annoy, to cause delay or detriment, or for another wrongful purpose.
[34] The Full Court in Pencious & Searle also examined the concept of “frequently”:
It is useful at this stage to refer to some general principles that have emerged from considerations of the sections in other jurisdictions analogous to s102QB.
In Potier v Attorney General (NSW) (2015) 89 NSWLR 284 Leeming JA, with the concurrence of Basten and Meagher JJA, discussed what is meant by “frequently” in the context of vexatious proceedings:
The power to make an order under the Vexatious Proceedings Act is conditioned upon a court being satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia. The meaning of a word like “frequently” turns very much on its context; that is no different from many other protean words (such as “adversely affect” and “mistake”: cf Independent Commission Against Corruption v Cunneen [2015] HCA 14 at [2] and [57] and CTM v The Queen [2008] HCA 25; 236 CLR 440 at [7]). It is not possible to articulate a precise test. However, the following two matters relevant to its construction for the purposes of this appeal may be noted. Each supports the conclusion that “frequently” is a relatively low threshold.
First, the change in language from the predecessor provision (s 84 of the Supreme Court Act) of “habitually and persistently” was deliberate, and plainly lowered the threshold condition.
Secondly, there are vexatious proceedings and vexatious proceedings. It is one thing to file urgent appeals or applications for judicial review which cause substantial disruption to courts and other litigants and participants in the legal system (for example, the adjournment of a trial), or to make serious allegations of fraud unfounded in the evidence. It is quite different to encounter some poorly known legal doctrine which denies reasonable grounds to the proceedings or renders them technically an abuse of process, or to file a series of applications for the annulment of decisions of magistrates (I have in mind the nine applications for annulment made by Mr Viavattene all listed and determined on the same day: see Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [70]). That is to say, both the quality of the vexatiousness of a proceeding, and the nature of the proceeding itself, inform the assessment of frequency.
I can readily envisage circumstances where a litigant commences only a handful of large proceedings, making serious allegations without any proper basis, but which occupy a significant amount of time and resources of parties and the courts, which could satisfy the statutory test of “frequently”. This illustrates the fact that “[t]he issue posed by the statutory term “frequently” is not to be assessed merely by an arithmetic calculation”: Viavattene at [49].
Each of those considerations favour “frequently” being a relatively low threshold.
The parties exchanged submissions on whether the proportion of proceedings instituted by a person being found to be vexatious was relevant to whether the threshold condition is satisfied. I do not think that it is. The statute requires the Court to be satisfied that a person has instituted or conducted vexatious proceedings frequently; whether the proportion of all proceedings instituted or conducted by the person which are vexatious is high or low does not bear upon that question. By the same token, suppose the question is whether a traveller will frequently encounter rabid dogs in a particular area. The answer does not turn on how many non-rabid dogs the traveller is likely to encounter in the area.
That said, the proportion of proceedings which are vexatious is highly relevant to the exercise of discretion to make an order, if the threshold condition is satisfied. For an order may bear upon all proceedings instituted or conducted by a person, and it will be essential for the Court to bear in mind its operation on existing and likely future proceedings, particularly those which are not vexatious.
…
We agree with those propositions.
[35] It may be drawn from this passage that the concept of “frequently” is reliant upon context, may be described as a low threshold, and involves consideration of the “quality of the vexatiousness” to determine whether or not the test of “frequently” is met.
(Citations omitted)
Consideration should be given to whether the interlocutory applications made by the husband following transfer were unmeritorious in the sense described by Perram J in Gargan, being “manifestly hopeless or devoid of merit”.[22]
[22] Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 [6].
Immediately prior to the hearing of the property matter two interlocutory applications filed by the husband were dismissed, being applications filed on 16 July 2021 and 22 July 2021 (which appeared to cover the same ground). Not only did the husband fail to attend to prosecute the applications, but they were constituted by a bizarre mishmash of claims and relief being pursued, including claims as to intellectual property rights over recordings of what had been, or would be said in court. They were palpably unmeritorious in the sense described by Perram J in Gargan.
Further, on 22 July 2021, the father made an oral application that I recuse myself from the further hearing of the matter and identified several bases on which he sought that I recuse myself. I dismissed the father’s recusal application as none of the bases he raised established a reasonable apprehension of bias. The application was without merit, again in the sense set out in Gargan.
While I was also directed to proceedings before the Federal Circuit Court, in relation to which the husband was criticised by the presiding judge, I am unable to determine whether the husband’s conduct of those proceedings was such as to attract the descriptions at s 102Q of the Act.
Having determined that the above applications were “manifestly hopeless or devoid of merit”, consideration should be given as to whether they meet the relatively low threshold for “frequently” described in Pencious & Searle that is in turn reliant on consideration of the vexatious nature of the applications.
Although the applications of 16 and 22 July 2021 are, on their face, vexatious, it is not appropriate to consider them to be separate instances, as it appears that the 22 July 2021 filing was to prosecute the earlier filing of the 16 July 2021 application, rather than to be dealt with separately. Although they sought numerous forms of relief, in truth they constitute a single instance of the commencement of vexatious proceedings. Even where the application for recusal is added as a further instance of vexatious proceedings, in combination they fall short of the descriptor “frequently” at s 102QB of the Act, as explained in Pencious & Searle.
The vexatious proceedings order application will be dismissed.
Disposing of the child-related application
Orders will be made for the listing of the brother’s child-related application for hearing.
COSTS
The wife orally sought her costs in relation to the hearing of this matter. No application for costs was made in either her Amended Initiating Application filed 17 June 2021, nor in her final orders sought filed 30 September 2021. Under those circumstances, where the husband was not on notice of such a possible application the oral application for costs will not be entertained and will be dismissed.
I certify that the preceding one hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 11 November 2021
ANNEXURE A
Amended final orders sought by the applicant wife
Transfer of Property
1. That, pursuant to section 106B of the Family Law Act 1975 (‘FLA’) the sale of the property situated at volume … Folio … Suburb D Victoria and known as C Street (‘the Property’) from the First Respondent to the Second Respondent on 18 January 2018 be set aside.
2. That, upon Order 1 above being made, the First Respondent be restrained by injunction from transferring, disposing of, encumbering, further encumbering or otherwise dealing with the Property except as allowed by these orders.
Vacation of the Property
3. That, within 14 days of the date of these orders, the First Respondent and/or the Second Respondent do all things necessary to vacate the Property.
4. That, in the event the Property is not vacated in accordance with Order 4 above, proof of which shall be by affidavit signed by the Applicant Wife’s solicitor, a writ of possession shall issue forthwith in the following form:
To the Marshall of the Court and to all Australian Federal Police; where by an Order of this Court was made on ________ it was ordered that the First and Second Respondent cause the premises situated at Volume … Folio … Suburb D Victoria and known as C Street (‘the Property’) to be vacated and the Court being satisfied that the First and/or Second Respondent has failed to comply with the said order, YOU ARE HEREBY DIRECTED for the purposes of giving effect to the said order at such time and with such assistance as you may require and if necessary by force to enter the said property and cause the Applicant to have vacant possession thereof and to cause the First and/or Second Respondent to vacate the said Property.
5. That the Writ of Possession is to issue on the date these orders are made, but is to remain on the Court file only to be executed in the event the First Respondent and/or the Second Respondent fails to comply with Order 4 above.
Exclusive Access
6. That, upon vacation of the Property by the First and/or the Second Respondent, the Applicant Wife or her agent shall have exclusive access to the Property and the First and/or the Second Respondent are each restrained by injunction from entering onto the Property or causing any other persons to do so on their behalf.
Sale of the Property
7. That, the Property be sold by private treaty at the earliest possible date and at a price to be determined by the proper officer of the Real Estate Institute of Victoria or their nominee and the proceeds of the said sale be disbursed as follows:
a. Payment of all commissions/sale costs;
b. Payment of all mortgages including the costs of discharging the same;
c. Payment of all outstanding rates (property and water);
d. Payment of all conveyancing fees associated with the sale of the Property;
e. The balance of the net proceeds of sale to the Applicant Wife by way of deposit into the Legal Aid trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
8. That for the purposes of Order 7 above, the Applicant Wife be hereby appointed Trustee for the sale of the Property.
9. For the purposes of Order 7 above and pursuant to section 106A of the FLA, the Registrar of the Court shall do the following:
a. Do all things and sign all documents necessary to transfer and assign to the Applicant Wife all of the First and/or the Second Respondent’s respective interests in the Property; and
b. Execute a memorandum of Transfer of Land, to be prepared by the Applicant Wife’s solicitor and deliver the said Transfer of Land duly executed to the Applicant Wife’s solicitor.
10. That, until the sale of the Property occurs, the First and/or the Second Respondent continue to pay as they fall due all regular instalments in respect of the mortgage, council rates and water rates in respect of the property and pay forthwith any arrears in respect of the said instalments that are in existence at the date of sale.
Monies to be paid
11. That the money currently held in the ANZ Progress Saver account ending #...05 be forthwith paid to the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
12. That the money currently held in the AA Bank Direct Saver account ending #...49 be forthwith paid into the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Monies in Trust
13. That the money currently held by BB Lawyers in their trust account be forthwith paid to the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Superannuation
14. That Order 1 of the Orders made 20 April 2020 be discharged.
15. That the Applicant Wife’s solicitor cause a copy of these Orders to be served on the Trustee of CC Pty Ltd (‘the Trustee’).
16. In accordance with section 90XT(1)(b) of the FLA, whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of MR SACHAR from his interest in CC Super Fund (‘the Fund’), MS KALITA is entitled to be paid by CC Pty Ltd (‘the Trustee’) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a percentage of 100% and there is a corresponding reduction in the entitlement MR SACHAR would have had but for these Orders.
17. That the Trustee of the Fund be bound by these Orders.
18. That the operative time for Order 16 above is four (4) business days after the service of the final orders on the Trustee.
19. That the Trustee shall do all acts and things and sign all such documents as may be necessary to:
a. Calculate, in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to MS KALITA in the preceding clause/s of this Order; and
b. Pay the entitlement whenever the Trustee makes a splittable payment from MR SACHAR’s interest in the Fund.
20. That the Court notes:
a. That in accordance with section 90XZD of the FLA, the Trustee has been accorded procedural fairness in relation to the making of this Order and has been provided with a copy of the proposed Order;
b. That the value of the transferable benefits created from the non-member spouse entitlement awarded under this Order is calculated in accordance with the Superannuation Industry (Supervision) Regulations 1994; and
c. Any payments from the First Respondent’s superannuation interest in the Fund after the trustee has created a new interest in the Applicant Wife’s name in the Fund are not splittable payments in accordance with Division 2.2 of the Family Law (Superannuation).
21. That in the event that any party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
22. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:
a. Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these orders;
b. Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
c. Each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;
d. All insurance policies are to become the sole property of the owner named hereon;
e. Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
f. Any joint tenancy of the Husband and Wife in any real or personal estate is hereby expressly severed.
OTHER
23. That, pursuant to section 102QB of the Family Law Act 1975, the First Respondent be prohibited from instituting further proceedings in the Federal Circuit and Family Court of Australia in relation to property.
IN THE ALTERNATIVE TO ORDERS 1 – 10 above, the following Orders 24 to 26 be made:
24. That the Husband, within 14 days of the date of these Orders, deliver to the Registry of the Federal Circuit and Family Court of Australia at the Nigel Bowen Commonwealth Law Court, Cnr University Avenue and Childers Street Canberra the following:
a. The 3 small gold kitty sets (with necklace and earrings);
b. The bigger, heavier set of gold necklace and earrings;
c. The gold bangles;
d. 5 rings; and
e. 1 gold chain.
25. That the Husband, within 14 days of the date of these Orders, pay $192,000 (or such other amount as the Court may order) into the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
26. That, in relation to Order 24 above, and in the event the Husband does not have the described jewellery in his possession, the amount set out in Order 25 is $212,000.
NOTATION
A.This Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.
0
9
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